Военные преступления в Уголовном кодексе Российской Федерации: теоретические подходы классификации и ее отражение в уголовном законодательстве

Interconnections between International and National Criminal Law Relevant to Energy Security

International criminal law does not attempt, as such, to attach criminal liability to environmental damage at present. Although the number of areas of international law concerned with environmental issues has grown significantly over the past three to four decades, such an accommodation has yet to be properly made within international criminal law. Indeed, there is still considerable debate as to whether criminal sanctions are an appropriate form of responsibility for environmental damage at all.Nonetheless, the objective of international criminal law is to provide a means of individual accountability for the most serious atrocities that occur on planet earth. There is no doubt that, whether as a result of naturally occurring phenomena or deliberately induced environmental effects, rapidly changing environmental conditions can cause catastrophic consequences for both human and natural life. As a result, it is certainly possible to discern situations where environmental conditions can or ought to give rise to individual criminal liability. However, given the nature of some environmental damage, international criminal law may not always provide an appropriate or adequate means to account for or remedy the harm caused.The first step in ascertaining the potential for international criminal law to prosecute individuals for environmental damage is a detailed examination of the current framework. This chapter will therefore begin by critically investigating the potential of existing international criminal law to give rise to liability for environmental damage. However, as will be seen, there is a distinct absence of environment-specific provisions in international criminal law at present. As such, there is considerable scope for the amendment of existing ‘core’ crimes, not to mention international criminal law as a whole, to include explicit proscriptions on environmental harm. Therefore, the second part of this chapter will examine possible ameliorations that could be made to existing crimes; the specific example of war crimes will be used to illustrate this point. However, there is always the possibility that international criminal law could expand its scope to accommodate environment-only damage. This chapter will therefore conclude with an appraisal of the proposals that call for the establishment of a separate and distinct category of environmental crimes - often called ‘ecocide’ or ‘geocide’ - within the structure of international criminal law.

The article examines the problems associated with the classification of international crimes. It is stated that in the doctrine of international law, international crimes are understood as the most serious and dangerous violations of the principles and norms of international law which encroach on the global interests of humanity and pose a threat to international peace and security. The author analyses the classification of international crimes provided for in the statutes of the Nuremberg and Tokyo International Military Tribunals, the Geneva Conventions, the United Nations documents, the Rome Statute, and case law. It is noted that the list of international crimes is only approximate, since it will constantly change as international law develops. Today, in our opinion, the corpus delicti of international crimes are most fully presented in the Rome Statute of the International Criminal Court of 1998. They include: genocide; crimes against humanity; war crimes; aggression. It is noted that, in addition to inhuman acts (murder, extermination, enslavement, exile and other cruelties committed against civilians before or during war) and persecution of a human group (for political, racial or religious reasons), the list of crimes against humanity also includes torture, sexual crimes, enforced disappearance of persons and apartheid when committed as part of a widespread or systematic attack against any civilians. It is noted that the full-scale russian armed aggression is accompanied by the commission of numerous international crimes on the territory of Ukraine which have no statute of limitations. The author emphasises that the main discrepancy between national legislation and generally recognised corpus delicti of international crimes in international criminal law is the absence of criminalisation of crimes against humanity and the absence of the institution of command responsibility (chief of command). It is concluded that the main legislative step is to bring the national criminal legislation of Ukraine into full compliance with the requirements of the Rome Statute of the International Criminal Court to ensure fair, necessary and inevitable punishment of persons who commit international crimes.

The article conducts a comprehensive study of the legal category of «War Crimes» in the context of the provisions of international criminal law and international regulations. To date, the concept of war crime has not received clear legal regulation in the provisions of international law, but has become widespread and applied in practice a list of acts that are recognized as war crimes under the Rome Statute of the International Criminal Court and the Geneva Convention.A full analysis of the category of «war crime» is impossible without studying the legal features of war crimes based on the provisions of international humanitarian law and the security doctrine of the international community, through the prism of the practice of international law.War crimes are characterized by the significance of those features of a criminal offense that are irrelevant in ordinary crimes and in war crimes allow to correctly classify a socially dangerous act and determine the rules of international law applicable to a person committing a war crime. A special feature of the subject of the crime is the presence of a special subject of war crimes, namely combatants or non-combatants. From a subjective side a military crime is accomplished consciously and with the intentional form of guilt. Marked, that during the estimation of publicly-dangerous act as military crime an important value has research of signs of perfect act through the prism of signs of soldiery crimes, that is certain the norms of Genevan convention and also Roman charter of the International criminal court. It is thus summarized that as a military crime the feasance of international or domestic conflict comes forward a subject or by the persons of act, that consists in gross, mass violation of norms of international humanitarian law and also in gross violation of rights and freedoms of persons, that participate battle actions or are in the district of realization of battle actions, equated with them.

Introduction: Today, a new concept of understanding international criminal law as an independent branch establishing the substantive legal grounds for recognising a particular act as criminal is being developed. Such acts certainly include war crimes (criminal violations of the laws and customs of warfare). Meanwhile, there is an urgent need to develop a categorical concept of “war crime” in international criminal law, to determine the place of such crimes in the system of crimes against peace and security of mankind, and to resolve several theoretical problems of the substantive legal basis for establishing international criminal liability for war crimes. In addition, despite the constitutional provisions on the primacy of international law over domestic law, the issue of the degree of compliance of national criminal law with the provisions of international law in the area of regulation of liability for war crimes remains unresolved. Objective: The study aims to find opportunities to develop effective mechanisms for classifying war crimes in the current war in Ukraine and to bring perpetrators to justice. The rules of international law are highly developed, primarily reflected in the availability of a broad and detailed list of acts recognised as international crimes. According to the amendments to the Rome Statute that added war crimes to the International Criminal Court (ICC) jurisdiction, a state must confirm the ICC’s jurisdiction over aggression for its citizens to be tried for the crime. Results: However, Russia has not done so. Due to this limitation, there are frequent calls for establishing a separate tribunal to prosecute Russian officials for aggression. However, implementing these calls still faces problems due to insufficient precedents. At the same time, the list of actions that can be considered violations of the laws and customs of war does not necessarily have to coincide with the list in Article 8 of the Rome Statute or the list of severe violations of international humanitarian law under the Geneva Convention or the First Additional Protocol.

Since the beginning of the nineties Germany has taken part in UN military missions. The Afghanistan mission since 2001 is the largest and most visible German engagement at present. Foreign assignments of German soldiers do not only pose questions with regard to constitutional law but might also have legal bearings on criminal law. When soldiers cause death of enemy combatants or civilians the question of individual criminal responsibility of the operating soldier and commander in charge arises. The wider context of international law in which military missions take place brings the relation between national criminal law and international law into focus.In its first part this article deals with criminal responsibility under the Völkerstrafgesetzbuch of 2006. It has been included into German law in the aftermath of issuing the Rome Statute of the International Criminal Code and comprehends the statutory offence of genocide, crimes against humanity and war crimes. War crimes may only be committed during an armed conflict, requiring an examination of the conditions under which a conflict might be qualified as an international or non-international armed conflict. In the following, the authors focus on the highly relevant war crime of disproportionally causing death of civilians. Especially with regard to the more complicated situation of a non-international armed conflict a careful determination of who falls in the category of a civilian is undertaken.The second part analyses a parallel application of the German Criminal Code and the Völkerstrafgesetzbuch. As this question is answered in the affirmative, causing loss of life of a person during a military mission fulfills the actus reus of homicide. However, the fact that the act takes place within a military mission is to be taken into account also within the German Criminal Code. While compliance with internal Bundeswehr or NATO rules may not exculpate the soldier, compliance with international humanitarian law leads to exemption from punishment. The rules of international humanitarian law apply to international and non-international armed conflicts and are congruent with regard to the basic principles. An act of a soldier may not be punishable to the extent that the soldier acted in conformity with the applicable rules of international humanitarian law. In the view of the authors this is especially important with regard to the rules of procedure as a violation thereof is not reflected as a crime in the Völkerstrafgesetzbuch.In cases in which soldiers act outside the context of an armed conflict, international humanitarian law is not applicable. It is argued that in these situations the human rights laws general prohibition to use deadly force outside the narrow boundaries of self-defense persists. A UN mandate, even in conjunction with a mandate of the German Bundestag, by itself cannot be construed as to exculpate an individual soldier as the mandate concerns the aspect of ius ad bellum and not ius in bello and has no bearing on the individual.With regard to the mens rea a soldier might act without intent, leading to a conviction for negligence.In sum, the authors illustrate that international law presents precise standards for legitimate and illegitimate operations in armed conflicts. From this it follows whether a soldier who causes the death of another person has committed a crime and is to be tried in a German Court proceeding or not.

The article analyses the technique of regulating war crimes in the Criminal Code of the RSFSR of 1960. The author notes the need for a retrospective analysis of the legislative technique of war crimes in order to consider this type of crime most holistically. Despite the existence of discussions in the theory of criminal law about the concept of legislative technique and the elements included in it, the author interprets legislative technique as a set of means and techniques used to give the content of legislative norms an appropriate form. This article also notes the need to distinguish the category of «war crimes» in the criminal legislation of the Russian Federation, as this term is widespread in international criminal law. The author attributes the following provisions of the Criminal Code to war crimes: Article 356 («Application of prohibited means and methods of warfare»), Article 357 («Genocide») and Article 359 («Menary»). The author conducts a comparative analysis of the legislative technique of the norms on criminal liability for war crimes of the current criminal legislation and criminal legislation of the Soviet period. From the analysis, some features of the technique of regulating war crimes of the Soviet period are revealed, namely: a) most of the elements of war crimes were designed using the casual reception of legislative equipment; b) the Soviet legislator used a direct way of presenting the norms without applying references; c) the note was used to build some formulations of war crimes, but did not This paper also examines a number of imperfections in the technique of regulating war crimes in the 1960 Criminal Code.

The article examines the norms of current international criminal law, from the standpoint of the lack of a conceptual definition of the concept of "war crimes", which, in turn, is a gap in international law. Considering war crimes from the current point of view, given the accumulated positive scientific achievements and law enforcement practice, it is reasonable to define them as gross violations of international humanitarian law committed during armed conflicts (international and non-international), entailing individual criminal responsibility for international right. It is clarified that war crimes are a type of crime against the peace and security of mankind, in connection with which they have common features for these crimes: increased degree of public danger; the orientation of such criminal acts on the interests protected by international law; their criminalization and punishment are carried out in accordance with international law. It is proved that war crimes are characterized by special (peculiar only to them) features: it can be committed only during an armed conflict; the object of encroachment is the procedure of armed conflict established by international law and the security interests of persons (individuals) protected by international law; gross nature of the violation; the consequences for the rights and interests protected by international humanitarian law; peculiarities of the subjective side - along with the features inherent in all crimes against peace and security of mankind, it is necessary for the perpetrator to be aware of the fact of armed conflict; the perpetrator of a war crime must be aware of the factual circumstances that indicate the protected status of persons - victims of the crime. Given these special features of war crimes, their detailed definition is proposed: socially dangerous, criminal acts committed during armed conflicts (international or non-international) that encroach on the established by international humanitarian law, the interests and security of defenders, and entail individual criminal liability in accordance with the rules of international criminal law.

A great deal was written about international criminal law in the years following the Second World War, and over the last two decades. Indeed, it is only being mildly facetious to say that the primary interaction between international criminal law and environmental law is not the possibility of creating a crime of ecocide,1 but the extent to which the collective efforts of international criminal lawyers have served to contribute to deforestation. The literature on the Nuremberg trials alone must have consumed countless forests, and once the literature on the ad hoc international tribunals and International Criminal Court (ICC) are also taken into account, the indictment is a grave one indeed. It is not the intention of this chapter to add to those charges by providing another linear chronological history of inter- national criminal law, or a history of the post-Second World War (hereafter referred to as post-War) trials. Many such studies have already been undertaken, and need not be repeated here.2 Rather, this chapter will look into some of the links between the post-War cases and more modern aspects of international criminal law. It is emphatically not the author’s intention to make the case that all aspects of those trials are instructive. Indeed, the disjunctures between then and now will be investigated. There are important similarities but also differences, which affect the way we need to look back at those trials. To treat like cases alike may be one form of justice, but to treat unlike cases as like may not be.

It has become apparent that problem areas and challenges for international criminal law go far beyond armed conflict (and their coverage, such as in the Statute of the International Criminal Court). The risks and dangers for humanity in the most diverse areas are capable of massively impairing people’s quality of life or even depriving them of their livelihood; thereby endangering peace, security, and global well-being. Of particular concern are serious economic (systematic and large-scale corruption) as well as environmental crimes. The development of a global regulatory framework in which criminal law is embedded to cover the most serious violations is therefore indispensable. This chapter, after recognising the shift in global politics, presents the viewpoint on how international, transnational, EU, and national criminal law should be reshaped and connected. Furthermore, the chapter proposes enforcement mechanisms to efficiently tackle the existing challenges. Prior to undertaking this project, the chapter provides an analysis of the existing norms.

At first, the regulation of the concept of rechterlijk pardon in the provisions of Indonesian criminal law was inspired by a similar arrangement in the provisions of criminal law in the Netherlands. Where the purpose of the inclusion of the concept is to avoid the rigidity that has long occurred in the practice of administering criminal law there. Such reasons are also the reasons behind the inclusion of the concept of rechterlijk pardon in the provisions of Indonesian criminal law. Although it has been more than thirty years since the concept was first discussed, until now the concept of rechterlijk pardon has only been regulated in the provisions of article 54 paragraph (2) of the Draft Criminal Code and article 70 of the Juvenile Criminal Justice System Law. However, in the practice of examining ordinary criminal cases, it turns out that there have been several district court decisions that apply the concept of rechterlijk pardon in the consideration of their decisions, including the verdict of criminal case number 1038/Pid.B/LH/ 2019/PN Pbr, criminal case verdict number 52/Pid.B/2020/PN LBB, criminal case record number 1/Pid.C/2021/PN Ttn, and criminal case verdict number 8/Pid.B/2022/PN Rtg. Even though it is known that the criminal law Indonesia adheres to a non-retroactive principle that prohibits the enactment of a statutory provision before the provision is passed. Therefore, in this article, we will discuss further about the implementation of the concept of rechterlijk pardon in each criminal case decision, which is connected with the non-retroactive principle that applies in the provisions of Indonesian criminal law.

Refugee status determination is difficult by its very nature but it becomes even more complex when the issue of exclusion under article 1F(a) is raised and it is alleged that there are ‘serious reasons for considering’ that the applicant is ‘guilty of having committed a crime against peace, a war crime or a crime against humanity, as defined in the international instruments that have been drawn to make provision for such crimes’. The ‘War Crimes and Refugee Status’ Research Project’s Canadian jurisprudence dataset, consisting of 98 article 1F(a) cases, reveals that more than 91 per cent of these cases cite international humanitarian law (IHL) or international criminal law (ICL), but only 13 per cent of the cases cite UNHCR guidelines or directives. Interestingly, nearly two-thirds, 65.8 per cent, of these appeal cases are denied. Five of the most frequently cited judgments in this sample of cases were Ramirez , Moreno , Sivakumar , Harb , and Pushpanathan , in that order. After analyzing these five appeal court judgments in depth, seven legal principles were identified respecting the application and interpretation of IHL and ICL in Canada: (1) violations of international law can be committed by private individuals as well as states, or public officials acting on behalf of states; (2) the standard of proof for ‘serious reasons for considering’ under article 1F is lower than a balance of probabilities, the civil law standard; (3) two fundamental tenets on which complicity and culpability are established in international crimes are: (i) no one can commit an international crime without personal and knowing participation; (ii) complicity rests on the existence of a shared common purpose and the knowledge of all the parties involved; (4) Mere membership or passive acquiescence in a group or organization that commits international crimes can never be sufficient to exclude a refugee applicant under article 1F(a); (5) ‘Voluntary, significant and knowing contribution’ does not require formal membership in a group or organization that is engaged in crimes against peace, war crimes or crimes against humanity. An accomplice contributes knowingly to those activities of a group or organization that makes them possible. (6) the offence of ‘aiding and abetting’ cannot be made out by mere presence on the scene where an international crime has taken place. What is required is voluntary, significant and knowing contribution in persecutory acts. (7) there is a close affinity between article 1F(a), which deals with those activities that take place in situations of armed conflict, and article 1F(c), which deals with activities irrespective of whether or not they take place in a situation of armed conflict. Article 1F(a) and (c) can overlap in various ways, such as where the sales of illicit narcotics are used to finance the purchase of weapons that are used in armed conflicts and/or for terrorist activities. The new test for exclusion under article 1F(a) in Canada, ‘voluntary, significant and knowing contribution,’ leaves a broad area of discretion for refugee law decision makers. This will cause, undoubtedly, legal contention in the appellate courts as the article 1F(a) cases make their way through the judicial process in Canada. The application and interpretation of international refugee law under article 1F(a) in Canada will continue to evolve with national court judgments as well as the development of international humanitarian and criminal law.

Punishment Without a Sovereign? The Ius Puniendi Issue of International Criminal Law: A First Contribution Towards a Consistent Theory of International Criminal Law

The principle of the "responsibility to protect" (R2P) has achieved, within a remarkably short span of time, a rhetorical presence in international politics and international law that has invited both praise and skepticism.' In its simplest and most widely accepted formulation, R2P represents the responsibility of governments and the international community to protect populations from genocide, war crimes, ethnic cleansing, and crimes against humanity—all of which are categories of significant crimes that should be designated as atrocity crimes, both for purposes of accuracy when describing the basket of relevant crimes and for simplicity as a means of communicating with the global populace. In this chapter I will examine what is meant by each of these categories of crimes and by the unifying term, atrocity crimes. An understanding of the legal basis for R2P must underpin efforts to activate the principles of R2P on the world stage. In reality, not all atrocity crimes, particularly some categories of crimes against humanity and war crimes, necessarily justify military intervention as the most extreme application of R2P. Drawing the line between atrocity crimes that would merit and those that would lack justification for military intervention when all else fails under R2P could become an extremely difficult task in world affairs.

The system of international criminal law has for sometime been codified by the rules and provisions of positive international criminal law, recognizing certain activities against internationally protected persons as constituting international crimes. This chapter demonstrates that the provisions of the 1973 Convention on the criminalization of certain acts as constituting international crimes in the system of international criminal law have long been recognised in Islamic international criminal law. In Islamic international criminal law to attempt, have complicity in and/or participate in the violation of the privileges of protected persons may constitute a crime against an internationally protected person(s). Obviously, if a violation has occurred, reparation and restoration must be made, where possible, to the state of the protected persons. This includes damages to the property of the protected persons and also their companies.Keywords: international criminal law; internationally protected persons; Islamic international criminal law