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This criminal offence (inclusion international criminal law and criminal law of the Republic of Serbia) is committed if a person, in violation of the rules of international law, as part of a wider and systematic attack against civilian population murders or commits: murder, inflicting on the group conditions of life calculated to bring about its complete or partial extermination, enslavement, deportation, torture, rape, forcing to prostitution, forcing pregnancy or sterilization aimed at changing the ethnic balance of the population, persecution on political, racial, national, ethical, sexual or other grounds, detention or abduction of persons without disclosing information on such acts in order to deny such person legal protection, oppression of a racial group or establishing domination or one group over another, or other similar inhumane acts that intentionally cause serious suffering or serious endangering of human health.
References
1. Degan, V.B., Pavisic, B. (2005). Medunarodno kazneno pravo. Zagreb. Narodne novine.
2. Jackson, R.H. (1946). The case the nazi war criminals. New York.
3. Jovasevic, D. (2007). Krivicni zakonik Republike Srbije sa uvodnim komentarom. Beograd. Sluzbeni list.
4. Jovasevic, D. (2010). Medunarodna krivicna dela - odgovornost i kaznjivost. Nis. Pravni fakultet.
5. Jovasevic, D. (2011). Leksikon krivicnog prava. Beograd. Sluzbeni glasnik.
6. Jovasevic, D. (2011). Medunarodno krivicno pravo. Nis. Pravni fakultet.
7. Jovasevic, D. (2014). Krivicno pravo. Posebni deo. Beograd.Dosije.
8. Kaseze, A. (2005). Medunarodno krivicno pravo. Beograd. Beogradski centar za ljudska prava.
9. Lazarevic, LJ., Vuckovic, B., Vuckovic, V. (2004). Komentar Krivicnog zakonika Crne Gore. Cetinje.Obod.
10. Official Gazette of the Republic of Serbia No. 85/2005, 88/2005, 107/2005, 72/2009 and 111/2009.
11. Official gazette of the SFR Yougoslavia No. 56/1950.
12. Pavisic, B., Grozdanic, V., Veic, P. (2007). Komentar Kaznenog zakona. Zagreb. Narodne novine.
13. Petrovic, B., Jovasevic, D. (2005). Krivicno (kazneno) pravo II. Posebni dio. Sarajevo. Pravni fakultet.
14. Petrovic, B., Jovasevic, D. (2010). Medunarodno krivicno pravo. Sarajevo. Pravni fakultet.
15. Prljeta, Lj. (1992). Zlocin protiv covecnosti i medunarodnog prava. Beograd. Sluzbeni list.
16. Radulovic, D. (1999). Medunarodno krivicno pravo. Podgorica. Kultura.
17. Simovic, M., Blagojevic, M: (2007). Medunarodno krivicno pravo.Banja Luka. Pravni fakultet.
18. Triffterer, O. (1997). ‘’Acts of violence and international criminal law’’. Hrvatski ljetopis za kazneno pravo i praksu. Zagreb. No. 2.
Jovasevic,D.\ Ilievski,A.2, Aleksic,S.3 Ugrinovska,E.4
'PhD of law, 2Prof. PhD of law, 3Master, 4Master,
'Faculty of law, University of Nis, Republic of Serbia 2ISU “G.R.Derzavin”- Sv.Nikole, R.Macedonia, 3Attorney of Nis, 4National
Examination Center, R.Macedonia
THE CRIME OF GENOCIDE IN THEORY AND PRACTICE OF CRIMINAL LAW OF REPUBLIC OF SERBIA
Abstract
International criminal law, as a system of legal regulations found in acts of the international community and criminal legislations of individual states, establishes criminal liability and punishments for crimes against international law. These acts represent breaches of the laws and customs of war (international humanitarian law) that violate or threaten peace among nations and the security of mankind. Penalties prescribed for these criminal offences stand for the most severe penalties in contemporary criminal legislation. In some cases, international judiciary (supranational) institutions such as The Nurnberg and The Tokyo Tribunal, The Hague Tribunal, The Rome Court etc. have primary jurisdiction over perpetrators of these criminal offences. This criminal offence means the killing of a nation or a tribe. Genocide was proclaimed as "a crime under international law, which is in contradiction with the spirit and the aims of the OUN and condemned by the entire civilized world" by UN General Assembly Resolution 96/I from 11 December 1946. Although it emerged as a "subspecies of crime against humanity", genocide rapidly obtained an autonomous status and contents as one of the most serious crimes of today. As a crime against international law, genocide is determined by three elements: a) the objective component- actus reaus b) the subjective component- Mens rea c) the subject of the act-the group-the victim. The source of this incrimination is found in Convention on the Prevention and Punishment of the Crime of Genocide from 1948, which, in paragraph 2, defines the term and the elements of this crime against international law. In legislation, theory and practice, this term can be interpreted in the broader sense, as well. In this paper the author has analyzed theoretical and practical aspects of genocide in international criminal law and criminal law of Republic of Serbia (former FR Yugoslavia).
Keywords: international law, humanity, crime, genocide, court, responsibility, penalty.
Crimes against international law
1. The notion and characteristics of international crimes
In the legal system of the Republic of Serbia, crimes against international law are enumerated in the Chapter Thirty Four of The Criminal Code69 from 2005., entitled “Criminal Offences against Humanity and Other Rights Guaranteed by International Law”. These criminal offences actually represent acts that constitute violations of international treaties, agreements and conventions and threaten and entrench on peace among nations, the security of mankind and other values protected by the international law or are in breach of the rules of war related to the treatment of war prisoners, wounded, sick and civilians by the parties to the conflict.
The origination of these criminal offences is related to the establishment of international rules organizing relations between states in time of war and relations between the parties to the conflict in view of commencement and conduction of armed conflict. International law of war emerged as the consequence of cruel and inhumane comportment throughout the long history of wars and armed conflicts between nations and states, with the intention to humanize this most inhumane means of resolving international and inter-state disputes70.
Along with the expansion of the international law of war, started the process of gradual limitation of the rights belonging to the parties to the conflict, and of controlling not only the acts committed against non-combatants, but those related to the commencement and conduction of war as well. State’s right of absolute freedom to commence and conduct a war will gradually be reduced by prohibiting certain acts that include unnecessary devastation, killing and torture. Breaches of the laws and customs of war constitute crimes under the laws of war. Having accepted international obligations by signing and ratifying numerous international conventions, certain states included several criminal offences against humanity and other rights guaranteed by international law in their criminal legislation. Such criminal offences are committed by violating rules contained in international conventions. Their source lays in the prohibitions proclaimed in international legal documents (acts)71 72.
Subject of protection under international criminal law consists of humanity and other universally recognized and generally accepted values protected by international law. The protection of humanity pertains to the protection of essential human rights such as: life, physical
69 Official journal of the Republic of Serbia No. : 85/2005, 88/2005, 107/2005, 72/2009 i 111/2009. More : D.Jovasevic, Krivicni zakonik Republike Srbije sa uvodnim komentarom, Beograd, 2007.
70 D.Jovasevic, Krivicno pravo, Posebni deo, Beograd, 2014. pp.305-311.
71 S.Zadnik, Kaznena djela protiv vrijednosti zasticenih medunarodnim pravom i novine u zakonodavstvu u svezi sa tim djelima, Hrvatska pravna revija, Zagreb, No. 12, 2003.pp.83-86.
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integrity, honor, reputation and personal dignity and other fundamental human rights and freedoms. Additional rights belonging to natural persons, individual states and the entire international community are also of general, universal significance and therefore protected and guaranteed by international law.
The majority of crimes against the international law can be committed only in a certain period of time determined by the law: during war, armed conflict or occupation. These criminal offences are most commonly committed in an organized manner with the aim to implement certain governing group’s or party’s politics. Being considered as an aspect of organized, planned criminality, these offences are most frequently committed by the order of superior military or political leaders. Due to that, it is required to determine individual criminal responsibility of organizer, order-giver and offender72. These criminal offences can be committed only by premeditation. Some of the criminal offences contained in this group are not subject to limitations on criminal prosecution and limitations on enforcement of penalty: genocide, crime against humanity, war crimes and other criminal offences that pursuant to ratified international treaties cannot be subject to limitations.
2. The system of international crimes
The theory of international criminal law recognizes several sorts of crimes against international law. They are most commonly divided into two categories: a) crimes against international law in the narrow sense (genuine or pure crimes against international law) and b) crimes against international law in the broader sense, or transnational crimes (counterfeit or mixed). This classification was adopted for the first time at the 14th Congress of The International Criminal Law Association that took part in Vienna in 1989. The criterion of the division is the jurisdiction of international criminal courts, which is established only in the case of crimes against international law in the narrow sense73.
Crimes against international law in the narrow sense belong to the first group of these criminal acts. These crimes against international law represent violations of laws and customs of war (meaning the rules of international law of war and international humanitarian law). They are incorporated in the Judgments of the Nurnberg and the Tokyo Tribunal, and are also known as criminal offences under general international law (or crimina iuris gentium).
The following criminal offences can be placed in this category74: 1) crime against peace, 2) war crimes, 3) genocide and 4) crime against humanity.
In legal theory, there are opinions suggesting that these criminal offences should be referred to as international crimes stricto sensu that are prohibited by cogent rules of international law such as The Hague or The Geneva Conventions. The following features of crimes against humanity in the broader sense (core crimes) are pointed out in legal theory75:
1) these international crimes have double-layered nature. Their commission draws the following consequences: a) individual criminal liability either of a perpetrator or of an accomplice, or of a superior (on the grounds of superior liability) on one hand and b) the responsibility of a state under international law, on the other,
2) international crimes violate essential (fundamental) human rights and they are, therefore prohibited as repression against the same crimes committed by the opposite party,
3) international crimes are not subject to limitations on criminal prosecution and limitations on enforcement of penalty and
4) general international law imposes as an erga omnes obligation on the states not to breach the basic rules that prohibit these acts.
The genocide according to the statute of the hague tribunal
Statute of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991. (ICTY) was adopted upon Security Council Resolution S/RES/827 from 25 May 1993. The Statute (known as The Hague Statute) recognizes four types of crimes against international law76. These are: 1) grave breaches of the Geneva Conventions of 1949., 2) violations of the laws or customs of war, 3) genocide and 4) crimes against
humanity77.
Imprisonment is the only penalty that can be imposed by the Tribunal, and in determining the terms of imprisonment, the Trial Chambers shall have recourse to the general practice regarding prison sentences in the courts of the former Yugoslavia, taking at the same time into consideration the gravity of the offence (objective circumstances) and the individual characteristics of the convicted person (subjective circumstances).
In addition to imprisonment, the following sanctions may be also imposed: 1) return of any property to the rightful owners (restitution) and 2) confiscation of any proceeds acquired by criminal acts.
Genocide78, also known as the gravest criminal offence of today or the “crime above all crimes”, is described in paragraph 4.of The Hague Statute. This offence is comprised of intentional destruction, in whole or in part, of a national, ethnical, racial or religious group. The practice of the Hague Tribunal has not accepted the extensive interpretation of genocide, which would include the intention to destroy national, linguistic, religious, cultural or any other identity of a group without its physical extermination.
Completion of this crime against international law requires one of the following alternatively numbered acts to be committed with the abovementioned intention79: 1) killing members of a certain group, 2) causing serious bodily or mental harm to members of the group, 3) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part, 4) imposing measures intended to prevent births within the group and 5) forcibly transferring children from one group to another.
Genocidal intent is the most characteristic feature of genocide as a crime. It has to refer to the destruction of a significantly large part of the group. The so-called significant part should be important enough to be able to influence the entire group. This quantitative criterion has been supplemented by the possibility that the perpetrator of this act was given, which resulted in the need to prove genocidal intent even when it was demonstrated only towards a group located within the borders of a certain geographical area. To conclude, genocidal intent takes into consideration qualitative characteristics of the attacked part of the group, allowing the option to single out the part that represents the symbol of the group or is crucial for its continued existence80.
Apart from direct perpetration (direct perpetrator), the following acts are also considered as genocide81: 1) taking part in a conspiracy to commit genocide, 2) direct and public incitement to commit genocide, 3) attempt to commit genocide and 4) complicity in any form of genocide.
72 D.Jovasevic, Leksikon krivicnog prava, Beograd, 2011. p.345.
73 B.Petrovic, D.Jovasevic, Krivicno (kazneno) pravo II, Posebni dio, Sarajevo, 2005. pp.39-40.
74 D.Jovasevic, Medunarodna krivicna dela - odgovornost i kaznjivost, Nis, 2010. pp.251-255.
75 D.Radulovic, Medunarodno krivicno pravo, Podgorica, 1999.p. 103.
76 D.Jovasevic, Komentar Krivicnog zakona SR Jugoslavije, Beograd, 2002. pp. 11-17.
77 D.Jovasevic, Medunarodno krivicno pravo, Nis, 2011. pp. 89-93.
78 S.Fabijanic Gagro, M.Skoric, Zlocin genocida u praksi medunarodnih ad hoc tribunala, Zbornik Pravnog fakulteta u Zagrebu, Zagreb, No.6, 2008. pp.1387-1419.
79 I.Zvonarek, Krsenje medunarodnog ratnog i humanitarnog prava od strane agresora tijekom domovinskog rata, Pravni vjesnik, Osijek, No. 3-4, 1997. pp. 151-169.
80 V.B.Degan, Zlocin genocida pred medunarodnim krivicnim sudistima, Zbornik Pravnog fakulteta u Zagrebu, Zagreb, No.1-2, 2008.pp.77-95.
81 D.Jovasevic, Medunarodna krivicna dela - odgovornost i kaznjivost, Nis, 2010.pp.229-231.
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However, the Hague Statute is familiar with another grave criminal offence whose characteristics and attributes make it similar to the crime of genocide. It is crime against humanity82. This criminal offence is found in paragraph 5.of the Hague Statute. The description of this crime against international law clearly states that it can be committed only within an armed conflict (either international or internal in character) and directed only against civilian population, if including83: 1) murder, 2) extermination, 3) enslavement, 4) deportation, 5) imprisonment, 6) torture, 7) rape, 8) persecutions on political, racial and religious grounds and 9) committing other inhumane acts.
The abovementioned acts ought to be committed under the following circumstances in order to constitute crime against humanity84:
1) an attack has to be committed-an attack can take place even when armed force has not been used, as long as it includes maltreatment of the civilian population or preparations for such acts,
2) criminal offences committed by the accused have to be a part of that attack,
3) the attack has to be directed against any category of the civilian population,
4) the attack has to be either extensive or systematic. An attack is considered as extensive when being of a wide-spread nature or when being directed against a large number of persons. An attack is described as systematic if the violent acts are committed in an organized manner or with slight probability of being committed accidentally and
5) the perpetrator has to be familiar with (aware of) the fact that his acts are committed within an extensive or systematic attack against civilian population.
The genocide according the criminal law of the republic of Serbia
1. System of international crimes
Chapter 34 of the Criminal Code of The Republic of Serbia contains the following “genuine” crimes against international law85: 1) genocide (paragraph 373), 2) crime against humanity (paragraph 371), 3) war crime against civilian population (paragraph 372), 4) war crime against the wounded and sick (paragraph 373), 5) war crime against prisoners of war (paragraph 374) and 6) organizing and incitement to Genocide and War Crimes (paragraph 375).
2. The notion and basic characteristics of the genocide
The crime of genocide86, from paragraph 370. of The Criminal Code of The Republic of Serbia, consists of ordering or committing the following acts: killing or causing serious bodily or mental harm to members of the group, deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part, imposing measures intended to prevent births within the group, forcibly transferring children of the group to another group, with intent to destroy, in whole or in part, a national, ethnical, racial or religious group of people.
The word “genocide” is a compound, created from a Greek word genos, meaning nation or tribe, and a Latin word caedes, which means killing or slaughter (massacre). When translated literally this word stands for the extermination of an entire nation or tribe. Genocide was proclaimed as “a crime against international law, which is in contradiction with the spirit and the aims of the OUN and condemned by the entire civilized world” by OUN General Assembly Resolution 96/1 from 11 December 1946.
In spite of the fact that it initially emerged as a "subspecies of crime against humanity'', genocide rapidly obtained autonomous status and contents as one of the most serious crimes of today. Nowadays, it is also called “the crime above all crimes”. As a crime against international law, genocide is determined by three elements87: 1) the objective component - actus reaus, 2) the subjective component - Mens rea and 3) the subject of the act - the victim (the group). The source of this incrimination is found in Convention on the Prevention and Punishment of the Crime of Genocide88 from 1948, which defines the contents and the elements of this crime against international law.
In legislation, theory and practice this term has a more extensive interpretation. Namely, this expression includes not only killing but also extermination, committed in any other way, of a particular group that forms a consistent entity based upon national, ethnical, racial or religious foundation. The subject of protection includes humanity and international law.
The subject of attack is a national, ethnical, racial or religious group89. A national group is comprised of people who have the feeling of sharing the legal bond of the same citizenship accompanied by reciprocal rights and obligations. An ethnical group consists of the members who are bound by the same language and culture, whereas a racial group is a group based upon hereditary physical characteristics, which is often associated to a particular geographical area regardless of linguistic, cultural, national, or religious factors. A religious group includes members who share the same religious convictions, the same name of the confession or the same means of conducting religious ceremonies. In fact, the terms such as national, ethnical, racial or religious group are still being studied widely and precise definitions that would be universally and internationally accepted have not been found yet. Thus, each of these terms has to be assessed in the light of an actual political, social and cultural milieu.
Although the act is committed by destroying individuals, it is not intended to eliminate those individuals as separate persons, but as the members of the group. Depending on the actual subject, genocide can appear as national or ethnical genocide or ethnocide if the subject is a national or an ethnical group. In the case of racial genocide, the criminal act is directed against a particular racial group or against several groups of that kind. Religious genocide is directed against the members of one or more religious groups. The group is not to be determined in accordance with an objective or static criterion. Instead, the way the perpetrator perceives the members of the group is of fundamental importance for the definition of this term, which is also the standpoint of the ad hoc tribunals90.
The lack of definitions of genocide that would include cultural genocide comprised of destroying the language or the culture of a particular group is often stressed in legal theory.
Therefore, the aim of the act is to destroy a group, in whole or in part, whereas the elimination of an individual simply represents a means of its accomplishment. The size of the group is of no significance for the completion of the criminal offence. It is essential that the group is present as an entity carrying specific characteristics, and that it is intended to be destroyed as such. The objective of the incrimination is to guarantee the right to life, i.e. existence and development for each group carrying specific national, ethnical, racial or religious features, regardless of the spatial cohesion of its members91.
The act consists of several acts that can be classified in a number of groups. These are the following acts92: 1) killing or causing serious bodily or mental harm to members of a specific national ethnical, racial or religious group, 2) inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part, 3) imposing measures intended to prevent births within the group (the so-called biological genocide) and 4) forcible transfer of children from one group to another intended to cause the loss of their group identity.
82 Dz.Dzouns, S.Pauls, Medunarodna sudska praksa, Beograd, 2005.pp. 143-147.
83 D. Jovasevic, Krivicno pravo, Posebni deo, Beograd, 2014.pp.317-318.
84 B.Ivanisevic, G.IliC, T.Visnjic, V.Janjic, Vodic kroz Haski tribunal, Beograd, 2007.pp.83-108.
85 D.Jovasevic, Krivicno pravo, Posebni deo, Beograd, 2014. pp.322-325.
86 D.Jovasevic, Karakteristike krivicnog dela genocida, Vojno delo, Beograd, No.2-3, 2002.pp.80-92.
87 B.Petrovic, D.Jovasevic, Krivicno (kazneno) pravo II, Posebni dio, Sarajevo, 2005. pp.39-41.
88 Official journal SFR Yougoslavia No.56/1950.
89 B.Luksic, Genocide and the command responsibility, Zbornik Pravnog fakulteta u Splitu, Split, No. 4, 2001. pp.283-291.
90 B.Pavisic, V.Grozdanic, P.Veic, Komentar Kaznenog zakona, Zagreb, 2007.p.419.
91 A.Kaseze, Medunarodno krivicno pravo, Beograd, 2005.pp.115-117.
92 B.Petrovic, D.Jovasevic, Medunarodno krivicno pravo, Sarajevo, 2010. pp.259-265.
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All these acts contribute to physical and biological completion of genocide. To complete this act, it is enough to commit any of the acts precisely pointed out in the law, with the intent to exterminate (destroy), in whole or in part, a group as a social entity. Genocide represents a typical example of criminal offences that rest upon the „depersonalization of the victim“, which means that the victim does not represent the objective (aim) of the act due its individual qualities or features, but solemnly for being a member of a certain group93.
The perpetration can be completed in two ways: 1) by ordering and 2) by directly conducting certain acts94. Giving orders to commit the abovementioned acts represents a special and autonomous act of genocide. In fact, ordering is a form of incitement. However, in this case ordering is not characterized as complicity, but as a special way to perpetrate this criminal offence. The crime of genocide is usually committed in an organized manner and in accordance with a previously arranged plan giving particular authority to the order of a superior, which causes the autonomous nature of his responsibility. Therefore, the superior will be responsible only for having given the order to commit genocide, even if the subordinate refuses to obey or in any other way manages to avoid executing such order.
The consequence of the act is manifested as threatening the survival of a certain national, ethnical, racial or religious group. It can be accomplished through causing a smaller or a larger number of individual consequences comprised of injuries (of life, of physical integrity, of a fetus) and threats (by inflicting on the group unbearable living conditions). The number of individual acts committed is of no significance for the completion of this criminal offence. This means that only one act of genocide will be committed when one, as well as when several relevant acts have been conducted. The fact that a larger number of acts causing various individual consequences were committed has an impact on the determination of sentence. This indicates that planned and systematic extermination of human groups constitutes the essence of the crime of genocide95.
Any person can be the perpetrator of this act, and, when guilt is concerned, direct premeditation (dolus coloratus), including genocidal intent, is required. Instead of applying the theory of intent, the assessment of such intent is based upon experience. The punishment prescribed for this act is minimum five years’ imprisonment or thirty to forty years’ imprisonment. The Criminal Code explicitly points out that this criminal act cannot be subject to limitation for criminal prosecution and enforcement of penalty.
3. The genocide and other related criminal offences
The definition of this term, under international as well as under national criminal law, has generated a request to draw distinction in legal theory between the crime of genocide and other similar (related) criminal acts, primarily acts such as96: 1) persecution, 2) extermination, 3) ethnical cleansing and 4) crime against humanity.
3.1. The persecution
Resemblance between genocide and persecution is based on the presence of discriminatory intent of the perpetrator in the moment of perpetration. Namely, both of these punishable acts are committed against members of other national, racial, religious or ethnical group97. There are two major differences between these criminal acts. These are: 1) persecution covers persecution based upon political racial or religious grounds and 2) the ultimate victim of genocide is the entire group-national, racial, religious and ethnical, whereas the victims of prosecution are individuals themselves, as members of certain “prosecuted” groups.
3.2. The extermination
Similarity between genocide and extermination consists of the fact that in both cases the criminal act is intended to cause massive killing. The differences between these two punishable acts consist of the following:
1) the act of genocide is committed with the intent to destroy, in whole or in part, the group itself, whereas the same intent (giving the quality of dolus coloratus to perpetrator’s premeditation) is not present in case of extermination,
2) in case of genocide, members of the target group share the same national, racial, religious or ethnical characteristics, whereas the victims of extermination are identified by political preferences, physical characteristics or by the very fact that they found themselves on a particular geographical area,
3) the act of extermination is committed within an expansive or a systematic attack, which the perpetrator is aware of, whereas in case of genocide such attack is not required and
4) only civilians can appear as victims of extermination, while genocide can be committed against the non-civilian population as well (such as captured combatants who have the status of the prisoners of war).
3.3. The ethnical cleansing
Although The UN General Assembly Resolution on the Situation in Bosnia and Herzegovina from 1992 treats genocide and ethnical cleansing as two equal terms, a qualitative distinction can be drawn between these two criminal offences. Namely, forced displacement itself does not represent a genocidal act, but, together with killing a larger number of certain group’s members, it can result in ethnical cleansing of the pointed group of people. That is when persecution, in the sense of “cleansing”, can be considered as a proof (an indicator) of the presence of the intention to exterminate the entire group.
3.4. The crime against humanity
At last, genocide and crime against humanity (that are often treated as equal by legal theory as well as by certain international legal acts such as the Statute of the International Military Tribunal in Nurnberg) have several similar features including the following98: 1) in both cases, the acts are aimed to cause massive killing of other persons, 2) both acts include severe violations that insult humanity and 3) neither of the acts represents an isolated case, but is usually a part of a broader conception.
However, one can perceive evident dissimilarities between them, including the following99: 1) genocide contains genocidal intent, whereas crime against humanity does not, 2) the target population of genocide is a group that has to possess shared group characteristics, while the victims of crime against humanity are determined by political preferences, physical characteristics or by the very fact that they found themselves on a certain area in a certain period of time, 3) crime against humanity represents a broader term since it is committed within an extensive and systematic attack the perpetrator is aware of, which is not requested as an essential and constitutive element of the crime of genocide and 4) crime against humanity can be committed by conducting a wider range of diverse acts, not all of which are covered by the term of genocide.
Conclusion
International criminal law, as a system of legal regulations found in acts of the international community and criminal legislations of individual states, establishes criminal liability and punishments for crimes against international law. These acts represent breaches of the laws and customs of war (international humanitarian law) that violate or threaten peace among nations and the security of mankind. Penalties prescribed for these criminal offences stand for the most severe penalties in contemporary criminal legislation. In some cases, international judiciary (supranational) institutions such as The Nurnberg and The Tokyo Tribunal, The Hague Tribunal, The Rome Court etc. have primary jurisdiction over perpetrators of these criminal offences.
93 S.Horovic, Genocid, ratni zlocini i zlocin protiv covecnosti, Zbornik Pravnog fakulteta u Mostaru, Mostar, 2004.pp.99-113.
94 A.Schonke, H.Schroder, Strafgezetsbuch, Kommentar, Munchen, 1997.pp.1597-1601.
95 Lj. Lazarevic, B.Vuckovic, V.Vuckovic, Komentar Krivicnog zakonika Crne Gore, Cetinje, 2004. pp.1021-1024.
96 D.Jovasevic, Medunarodna krivicna dela - odgovornost i kaznjivost, Nis, 2010. pp.260-262.
97 M.Markovic, Medunarodna krivicna dela, Jugoslovenska revija za medunarodno pravo, Beograd, No. 1, 1965. pp.39-44.
98 Z.Pajic, Tumacenje zlocina protiv covecnosti u nirnberskom procesu, Godisnjak Pravnog fakulteta u Sarajevu, 1991, pp.123-133.
99 M.Simovic, M.Blagojevic, Medunarodno krivicno pravo, Banja Luka, 2007. pp.130-135.
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Due to its significance, nature and character, the crime above all crimes stands out among all the crimes against international law. It is the crime of genocide. The act of genocide consists of ordering or committing: killing, causing serious bodily or mental harm to members of a human group or deliberately inflicting on the group conditions of life calculated to bring about its extinction in whole or in part or imposing measures intended to prevent births within the group or forcibly transferring children to another group, with the intent to destroy, in whole or in part, a national, ethnical, racial or religious group of people. This criminal offence means the killing of a nation or a tribe. Genocide was proclaimed as “a crime under international law, which is in contradiction with the spirit and the aims of the OUN and condemned by the entire civilized world” by UN General Assembly Resolution 96/I from 11 December 1946. Although it emerged as a “subspecies of crime against humanity”, genocide rapidly obtained an autonomous status and contents as one of the most serious crimes of today.
As a crime against international law, genocide is determined by three elements: a) the objective component- айш reaus b) the subjective component- Mens rea c) the subject of the act-the group-the victim. The source of this incrimination is found in Convention on the Prevention and Punishment of the Crime of Genocide from 1948, which, in paragraph 2, defines the term and the elements of this crime against international law. In legislation, theory and practice, this term can be interpreted in the broader sense, as well. Namely, this term does not include only killing but also destruction, committed in any other way, of a particular group that forms a consistent entity on national, ethnical, racial or religious grounds.
References
1. Degan, V.B. (2008). "Zlocin genocida pred medunarodnim krivicnim sudistima’’. Zbornik Pravnog fakulteta u Zagrebu. Zagreb. No.1-2.
2. Dzouns, Dz., Pauls, S. (2005). Medunarodna sudska praksa. Beograd. Fond za humanitarno pravo.
3. Fabijanic Gagro, S., Skoric, M. (2008). ‘’Zlocin genocida u praksi medunarodnih ad hoc tribunala’’, Zbornik Pravnog fakulteta u Zagrebu. Zagreb. No.6.
4. Horovic, S. (2004). ‘’Genocid, ratni zlocini i zlocin protiv covecnosti’’, Zbornik Pravnog fakulteta u Mostaru. Mostar.
5. Ivanisevic, B., Ilic, G., Visnjic, T., Janjic, V. (2007). Vodic kroz Haski tribunal. Beograd. Savet Evrope.
6. Jovasevic, D. (2002). ‘’Karakteristike krivicnog dela genocida’’. Vojno delo. Beograd. No.2-3.
7. Jovasevic, D. (2002). Komentar Krivicnog zakona SR Jugoslavije. Beograd. Sluzbeni glasnik.
8. Jovasevic, D. (2007). Krivicni zakonik Republike Srbije sa uvodnim komentarom. Beograd. Sluzbeni list.
9. Jovasevic, D. (2010). Medunarodna krivicna dela - odgovornost i kaznjivost. Nis. Pravni fakultet.
10. Jovasevic, D. (2011). Leksikon krivicnog prava. Beograd. Sluzbeni glasnik.
11. Jovasevic, D. (2011). Medunarodno krivicno pravo. Nis. Pravni fakultet.
12. Jovasevic, D. (2014). Krivicno pravo. Posebni deo. Beograd. Dosije.
13. Kaseze, A. (2005). Medunarodno krivicno pravo. Beograd. Beogradski centar za ljudska prava.
14. Lazarevic, Lj., Vuckovic, B., Vuckovic, V. (2004). Komentar Krivicnog zakonika Crne Gore. Cetinje. Obod.
15. Luksic, B. (2001). ‘’Genocide and the command responsibility’’, Zbornik Pravnog fakulteta u Splitu. Split. No. 4.
16. Markovic, M. (1965). ‘’Medunarodna krivicna dela’’. Jugoslovenska revija za medunarodno pravo. Beograd. No.1.
17. Official journal of the Republic of Serbia No. : 85/2005, 88/2005, 107/2005, 72/2009 i 111/2009.
18. Official journal SFR Yougoslavia No.56/1950.
19. Pajic, Z. (1991). ‘’Tumacenje zlocina protiv covecnosti u nirnberskom procesu’’, Godisnjak Pravnog fakulteta u Sarajevu. Sarajevo.
20. Pavisic, B., Grozdanic, V., Veic, P. (2007). Komentar Kaznenog zakona. Zagreb. Narodne novine.
21. Petrovic, B., Jovasevic, D. (2005). Krivicno (kazneno) pravo II. Posebni dio. Sarajevo. Pravni fakultet.
22. Petrovic, B., Jovasevic, D. (2010). Medunarodno krivicno pravo. Sarajevo. Pravni fakultet.
23. Radulovic, D. (1999). Medunarodno krivicno pravo. Podgorica. Kultura.
24. Schonke, A., Schroder, H. (1997). Strafgezetsbuch. Kommentar. Munchen.Beck.
25. Simovic, M., Blagojevic, M (2007). Medunarodno krivicno pravo. Banja Luka. Pravni fakultet.
26. Zadnik, S. (2003). ‘’Kaznena djela protiv vrijednosti zasticenih medunarodnim pravom i novine u zakonodavstvu u svezi sa tim djelima’’. Hrvatska pravna revija. Zagreb, No.12.
27. Zvonarek, I. (1997). ‘’Krsenje medunarodnog ratnog i humanitarnog prava od strane agresora tijekom domovinskog rata’’, Pravni vjesnik. Osijek. No. 3-4.
Надараиа З.Г.
Ст. преподаватель кафедры уголовного права Юридического института Красноярского государственного аграрного
университета.
ПРОЦЕСС ВИКТИМИЗАЦИИ В РАМКАХ КРИМИНОЛОГИЧЕСКОЙ ТЕОРИИ РЕЛИГИОЗНОЙ ГИГИЕНЫ
НАСЕЛЕНИЯ
Аннотация
В данной работе рассмотрены основные процессы, способствующие превращению среднестатистической личности в жертву антисоциальных культов в следствие низкого уровня религиозной гигиены у населения, по мнению автора.
Ключевые слова: Виктимология, Религия, Культ, Антисоциальное, Жертва, Преступление.
Nadaraia Z.G.
Senior Lecturer, Department of Criminal Law Institute Krasnoyarsk State Agricultural University THE PROCESS OF BECOMING A VICTIM OF CULTS WITHIN CRIMINOLOGICAL THEORY OF RELIGIOUS
HYGIENE
Abstract
This work describes the main processes contributing to the transformation of the average person to the victim of anti-social cults in consequence of the low level of religious hygiene among the population.
Keywords: Victimology, Religion, Cult, Antisocial, Victim, Crime.
Криминология, как уголовная философия, всегда интересовалась процессом становления среднестатистической личности жертвой преступлений разного вида, делая их особую классификацию в зависимости от насилия, прилагаемой противоположенной личностью для материализации своей мысленной модели. В данной классификации особое и весьма почетное место занимает личность жертвы, пострадавшей от деятельности нетрадиционных религиозных объединений антисоциальной направленности (антисоциальных культов).
Несмотря на пугающее число антисоциальных культов в постсоветской России, их основатели ограничены в проповедуемой идеологии из-за относительно небольшого количества религиозных учений в мире. Многочисленность подобных объединений можно объяснить только возможностью различных интерпретаций традиционных религиозных учений.
Основатели и лидеры подобных культов также ограничены в используемых методах воздействия в зависимости от преследуемой цели. И общество, по крайней мере, отдельные его представители точно также ограничены в вариантах своего поведения в отношении предлагаемого учения и методов приобщения к последнему. Прежде всего, их положительная, отрицательная или нейтральная реакция зависит от психоэмоционального, социального, материального состояния и эмоционально- 76
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