CC BY
64UDC 343.3/.7
Serebrennikova A. V.
Doctor of law, Professor of criminal law and criminology Moscow state University. M. V. Lomonosov
Russia, Moscow
Soboleva E.A.
Laboratory assistant, Department of criminal law and criminology Moscow state University M. V. Lomonosov, Russia, Moscow
lebedev M. V.
Postgraduate student, Department of criminal law and criminology Moscow state University M. V. Lomonosov, Russia, Moscow DOI: 10.24411/2520-6990-2019-10525 INTERNATIONAL CRIMINAL LAW: IMPLEMENTATION ISSUES IN THE NATIONAL LEGISLATION OF THE RUSSIAN FEDERATION AND GERMANY
Abstract
The article deals with issues related to the implementation of the norms of international criminal law contained in the Convention on the Prevention and Punishment of the Crime of Genocide of December 9, 1948, into the internal legislation of the Russian Federation and Germany. In this regard, Article 357 of the Criminal Code of the Russian Federation and the Criminal Code of International Crimes of Germany.
Keywords: The Russian Federation, Germany, international criminal law, the criminal law, genocide.
Crimes against the peace and security of mankind are without a doubt one of the most cruel and dangerous criminal offenses. Events occurred in the world in the 21st century, for example, the mass slaughter of Ye-zidis in northern Iraq and Christians in Syria, the cruel murders of Rohingya Muslims in Myanmar, the violation of the rights of Muslim minorities of the Uygurs, ethnic Tibetans and Kazakhs in China, the military-political situation in Ukraine, in Libya and Afghanistan demonstrate the need for more effective cooperation of states to combat crime at the international level.
Despite the regulation of crimes against the peace and security of mankind at the international legal level, all states have different criminal law mechanisms to counter these types of crimes.
The choice of country for comparative legal research is due to the fact that the Federal Republic of Germany is a vivid example of a state that changed its national legislation under the influence of the development of international criminal law and adopted a special law of the so-called supplementary criminal law (Nebenstrafrecht) that criminalizes crimes against humanity and war crimes - the Law on the enactment of the Criminal Code of International Crimes of the Federal Republic of Germany of 2002.
The implementation of international criminal law in the domestic legislation of the state, including the establishment of criminal liability for international crimes, including for genocide, is an important task of any modern state.
The basis for the criminal legislation of Russia and Germany are the Constitution of the Russian Federation of 1993 and the Basic Law of Germany of 1949 and generally recognized principles and norms of international law. For example, the 1993 Constitution of the Russian Federation of 1993 contains a provision recognizing the principles and norms of international law and
international treaties of the Russian Federation as an integral part of the legal system of the Russian Federation. Part 2 of Article 1 of the Criminal Code of the Russian Federation contains a prescription that "this Code is based on the Constitution of the Russian Federation and the generally recognized principles and norms of international law". This provision is implemented by the inclusion of relevant legal norms after their entry into force in the criminal legislation of the Russian Federation through the adoption of the Federal Law.
An example of this is Article II of the Convention on the Prevention and Punishment of the Crime of Genocide of December 9, 1948 [1, This Convention was adopted and proposed for signature, ratification or accession by resolution 260 A (III) of the UN General Assembly, entered into force 12 January 1961. See: International Acts on Human Rights. Collection of documents. 2nd edition. 2002. p. 518], which contains the concept of genocide. Based on this provision, "in this Convention, genocide means the following acts committed with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
a) killing members of such a group;
b) causing serious bodily harm or mental impairment to members of such a group;
c) the deliberate creation for any group of such living conditions that are intended for its full or partial physical extermination;
d) measures intended to prevent childbirth in the environment of such a group;
e) forced transfer of children from one human group to another." [2, ibid]
The criminal laws of Russia and Germany contain norms that establish criminal liability for genocide. They represent an example of the implementation of international criminal law in the domestic criminal law of the countries under consideration.
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In the Criminal Code of the Russian Federation criminal liability for genocide is established in Article 357. This provision is contained in chapter 34 of section XII "Crimes against the peace and security of mankind". Article 357 literally reproduces the concept of genocide, enshrined in Article II of the Convention under consideration, and is formulated as follows: "Actions aimed at the complete or partial extermination of a national, ethnic, racial or religious group by killing members of this group, causing serious harm to their health, forcibly preventing childbirth, forcibly transferring children, forcibly relocating or otherwise the creation of living conditions intended for the physical extermination of members of this group is punishable by imprisonment of from twelve to twenty years or death penalty or life imprisonment ". The merit of the Russian legislator, in our opinion, is that it does not expand the concept of genocide contained in Article II of the Convention under consideration, testifying to the implementation of the constitutional provision on recognition of the principles and norms of international law and international treaties of the Russian Federation as an integral part of the legal system of the Russian Federation.
German law criminalizes genocide in the Act on the Enactment of the Criminal Code of International Crimes dated June 26, 2002 (hereinafter the Criminal Code of International Crimes) [3, BGBl. I S. 2254.], and not in the German Criminal Code, as it was before. This is explained, on the one hand, by the specificity of the German criminal law, which consists in the fact that criminal law regulations are contained not only in the German Criminal Code of 05.15.1871 [4, RGBl. S. 127.] (as amended on November 13, 1998), but also in the so-called supplementary criminal law (Ne-benstrafrecht), as well as in other federal laws. On the other hand, this is due to the attempt of the German legislator to codify international crimes in a separate legislative act.
Part 2 of the Criminal Code of International Crimes of Germany contains components on criminal acts against international law and begins with Section 1, which includes the rules on genocide and crimes against humanity. Paragraph 6 of the Code criminalizes genocide.
Note the fact that that prior to the adoption of the Code, criminal liability for this crime was established in § 220a of the Criminal Code of Germany. This provision was introduced in the Criminal Code by the Law of August 9, 1954 [5, BGBl. 1954 II, S.729.] and entered into force on February 22, 1955, testifying to the implementation of the norms of the UN Convention on the Prevention and Punishment of the Crime of Genocide in the domestic criminal law of Germany.
Subsequent changes to this provision were purely editorial in nature. The norm on genocide was put in section 16 of the Special Part of the Criminal Code "Criminal Acts Against Life". This was explained by the fact that in certain cases the legal good protected by this norm may be a person's life. There was no independent section in the Special Section on crimes against the peace and security of mankind in the German Criminal Code. The German legislator chose a different
path, adopting in 1992 an independent federal law that includes the Criminal Code of International Crimes, which currently contains the rule on genocide. Consider this criminal offense in more detail:
"(1) That who with the intent to destroy, in whole or in part, any national, racial, religious or ethnic group as such:
1) kills members of such a group,
2) causes members of such a group severe physical or mental harm, especially indicated in the form of § 226 of the Criminal Code,
3) creates life conditions for any group that are intended for its full or partial physical extermination,
4) takes measures intended to prevent childbirth in the environment of such a group,
5) forcibly transfers children from one human group to another,
shall be punished with life imprisonment." Note that in the former § 220a of the German Criminal Code, the corpus delicti of the genocide was formulated in the same way.
Thus, it can be concluded that the dispositions of the examined norms (Article 357 of the Criminal Code of the Russian Federation and § 6 of the German Code of International Crimes) are formulated in a similar way. This can be explained, first of all, by the fact that they are conventional.
Let us briefly describe the considered rules. The object of genocide are the foundations of mankind and humanity, i.e. international security of national, ethnic, racial, religious groups. In the sense of these norms, victims of genocide are not individuals - members of groups, but the group of people themselves, characterized by their national, racial, religious or ethnic homogeneity and specificity, at the extermination of which the crime is aimed. Moreover, they cannot be political parties, economic communities or cultural groups.
The objective side of these norms is characterized by actions aimed at the complete or partial physical extermination of a certain group of people in one of the following ways: a) killing members of this group; b) causing grievous harm to their health; c) forcibly preventing their childbirth; d) forced transfer of children; e) forcible relocation; e) otherwise creating living conditions intended for the physical extermination of members of this group. The corpus delicti in both the Criminal Code of the Russian Federation and the German Code of International Crimes are formulated as an act of creating the threat of extermination of a certain group of people, therefore, the actual achievement of the aim is not required. Similarities of Article 357 of the Criminal Code of the Russian Federation and § 6 of the German Code are also in the subjective side, which is characterized by direct intent and purpose as an indispensable element of the corpus delicti (complete or partial physical extermination of the national, ethnic, racial or religious group as such), and the subject of the crime (common).
The differences between Article 357 of the Criminal Code of the Russian Federation and § 6 of the German Code of International Crimes are as follows. First, the sanctions differ: by para. 1 § 6 of the German Code punishment is an absolute sanction - life imprisonment.
The sanction of Article 357 of the Criminal Code of the Russian Federation is alternative and, in addition to life imprisonment, provides for punishments in the form of imprisonment for a term of twelve to twenty years. Secondly, in § 6 of the German Code of International Crimes there is a par. 2. This provision does not contain a qualified type of genocide, but establishes criminal liability for a less serious case of genocide, i.e. is a rule containing rules for determining the amount of punishment (Strafzumessungsregeln). In the cases stipulated by par. 1, No. 2-5, punishment of imprisonment for at least five years may be imposed. In practice, in our opinion, this provision should be applied, first of all, in relation to genocide, which did not result in the death of people. A similar rule was contained in the former § 220a of the German Criminal Code.
It is common to the laws of Russia and Germany that the existence of a norm containing an important criminal law prescription that the statute of limitations does not apply to genocide (Article 78 of the Criminal Code of the Russian Federation, § 5 of the Criminal Code of International Crimes). Such a norm is implemented in the criminal law of most modern states that
do not apply the statute of limitations to crimes against humanity and to war crimes. The legal basis for this is the Convention on the inapplicability of the statute of limitations to war crimes and crimes against humanity of November 26, 1968 [6, International Acts on Human Rights. Decree. edition p. 522].
Thus, the implementation of the norms of international criminal law in the internal national legislation of the Russian Federation and Germany, Article 357 of the Criminal Code of the Russian Federation and § 6 of the German Criminal Code of International Crimes, which establish criminal liability for genocide, can be taken as an example.
Bibliography
1. Basic Law of the Federal Republic of Germany. Bonn, 1996.
2. Constitution of the Russian Federation. M., 1993.
3. Criminal Code of Germany. Hamburg, 2006.
4. Criminal Code of the Russian Federation. M., 1993.
5. International acts of human rights. Collection of documents. 2nd edition. M., 2002.
