Expert Opinion (#3 March 2020)

International Crimes and Domestic Criminal Law

by Sergiy Smirnov

International crime is a negative social phenomenon detrimental to the development and national security of individual states. It has overstepped the borders of states and turned into a serious international threat that requires cooperation between states globally.

What are International Crimes?

International crimes include especially dangerous acts violating the fundamental principles and norms of international law, which are of essence to the international community and adversely affect the system of international relations overall, especially during armed conflicts.

To minimize the number of victims, international law regulates the conduct of parties to an armed conflict. It defines the actions qualifying as violations of the laws and customs of war. Serious violations of the laws and customs of war also qualify as war crimes.

On 8 August 1945, the Charter of the International Military Tribunal Annex to the Agreement for the prosecution and punishment of the major war criminals of the European Axis was adopted in London. This Charter was the first document that classified international crimes; at a later stage, such classification became the basis for other international acts.

According to the Charter, international crimes include the following:

crimes against peace: namely, planning, preparation, initiation or waging of a war of aggression, or a war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy for the accomplishment of any of the foregoing;

war crimes: namely, violations of the laws or customs of war. Such violations include, but are not limited to, murder, ill-treatment or deportation to slave labour or for any other purposes of civilian population of or in occupied territory; murder or ill-treatment of prisoners of war or persons on the seas; killing of hostages; plunder of public or private property; wanton destruction of cities, towns or villages, or devastation not justified by military necessity;

crimes against humanity: namely, murder, extermination, enslavement; deportation, and other inhumane acts committed against any civilian population, before or during the war; or persecutions on political, racial or religious grounds in execution of or in connection with any crime within the jurisdiction of the Tribunal, whether or not in violation of the domestic law of the country where perpetrated.

Other international documents that also define the types of international crimes are the four Geneva Conventions of 1949 and their Additional Protocols, which were ratified by most countries, including Ukraine (in 1954).

Article 3 which is common to the said four Geneva Conventions establishes the provisions addressing the conflicts that are not of an international character. There are various types of such conflicts. In particular, they include traditional civil wars, internal armed conflicts covering the territory of other states, or internal conflicts involving, in addition to the government of a relevant jurisdiction, third states or multinational forces.

The said Article 3 establishes fundamental non-derogable rules. It encapsulates the key provisions of the Geneva Conventions and makes them applicable to non-international conflicts.

Under the said Conventions and their Additional Protocols, war crimes and crimes against humanity include the following:

willful killing; deliberate murder and extermination of non-combatants (including the deprivation of access to food and medicine, calculated to bring about the destruction of part of a population);

enslavement, which means the exercise of any or all of the powers attached to the right of ownership over a person (including trafficking in persons, particularly women and children);

deportation or forcible transfer of population, which means forced displacement from the area in which they are lawfully present, without grounds permitted under international law;

torture, which means the infliction of physical or mental suffering upon a person in custody or under control;

sexual slavery, or any other actions of a similar nature, which cause great suffering, serious damage to physical or mental health.

The principle of non-application of the statute of limitations, as set out in the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity of 1968, applies to the said crimes.

International crimes also include the following:

the crime of apartheid (separation, isolation) the policy of racial segregation, discrimination and oppression of ethnic groups;

genocide actions committed by persons exercising or directing state powers with the intent to destroy, in whole or in part, any national, ethnic, racial or religious group;

racism(racial discrimination) differentiating in any manner, excluding, limiting or giving preference based on the recognition of a race, color, descent, national or ethnic origin.

International Criminal Court and International Crime

International crimes are prosecuted by multiple international and domestic courts; in particular, by the International Criminal Court, which is seated in The Hague.

The International Criminal Court is a standing judicial body that is authorized to exercise jurisdiction over persons for the gravest crimes of international concern and is complementary to the national systems of criminal justice. The International Criminal Court was established pursuant to the Rome Statute (the Rome Statute) adopted in 1998. Formally, the International Criminal Court began functioning on 1 July 2002.

In addition to war crimes, modern international law defines three more groups of actions as international crimes: aggression, genocide and crimes against humanity. The essential elements of such crimes are set out in multiple conventions, including but not limited to the Rome Statute of the International Criminal Court.

In particular, under Article 5 of the Rome Statute, its jurisdiction is limited to the most serious crimes of concern to the international community, specifically:

the crime of genocide;

crimes against humanity;

war crimes;

the crime of aggression.

Crime of genocide

For the purpose of the Rome Statute (Article 6), genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnic, racial or religious group, such as: killing the members of a group; causing serious bodily or mental harm to the members of a group; deliberately creating for a group living conditions intended to destroy it in full or in part; imposing measures intended to prevent births within a group; forcibly transferring children of one group to another group.

Crimes against humanity

Article 7 of the Rome Charter defines crimes against humanity as any of the following acts when committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack: murder; extermination; enslavement; deportation or forcible transfer of population; imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law; torture; rape, sexual slavery, forced prostitution, forced pregnancy, forced sterilization, or any other form of sexual violence of comparable gravity; persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender or other grounds that are universally recognized as impermissible under international law, in connection with any act within the jurisdiction of the Court; forced disappearance of persons; the crime of apartheid; other inhuman acts of a similar character intentionally causing great suffering or serious injury to body or to mental or physical health.

War crimes

The International Criminal Court also has, as already mentioned, jurisdiction over war crimes, in particular when they are committed as part of a plan or policy, or when such crimes are committed on a large scale. A key feature of war crimes is that they are committed in the context of an armed conflict. Crimes against humanity similar in their attributes are committed in the context of organized violence, namely when there is a plan or policy of a large-scale attack on a civilian population.

Article 8 of the Rome Statute enshrines actions that may constitute war crimes. In particular, war crimes include:

grave breaches of the Geneva Conventions of 12 August 1949, namely any of the acts against persons or property protected under the provisions of the relevant Geneva Convention;

other serious violations of laws and customs applicable in an international armed conflict within the established framework of international law;

in the case of an armed conflict not of an international character, serious violations of Article 3 common to the four Geneva Conventions of 12 August 1949;

paragraph (c) applies to armed conflicts not of an international nature and, therefore, does not apply to situations of internal disturbances and tensions such as riots, isolated and sporadic acts of violence, or other acts of a similar nature;

other serious violations of the laws and customs applicable to armed conflicts of non-international character within the established international law framework.

It should be noted that Article 8 of the Rome Statute contains about 50 essential elements of a war crime.

International crime and issues of Ukrainian legislation

At present, the Criminal Code of Ukraine (the CCU) does not clearly provide for any criminal liability for crimes against humanity and for war crimes which constitute a violation of customary rather than conventional international humanitarian law. This is a highly sensitive problem in view of Ukraines desire for European integration and the obligations undertaken by the State of Ukraine.

The Parliamentary Assembly of the Council of Europe has addressed the issue of Ukrainian legislation on at least two occasions (2016 and 2018). In particular, it called on the Ukrainian authorities to bring the Criminal Code and the Criminal Procedure Code of Ukraine into line with the provisions of international humanitarian law and criminal law.

As an example, we would suggest looking into Article 438 of the Criminal Code of Ukraine, which contains only a few specific references to war crimes: cruel treatment of prisoners of war or civilians; forced labour for civilians; plunder of national resources in an occupied territory, and application of war methods prohibited by international law. The said Article suggests investigators search for other offences in international treaties approved by the Ukrainian Parliament as binding.

Also, the Criminal Code of Ukraine lacks an article addressing forced labour as a type of war crime. Another area of concern is the normative regulation of criminal liability for sexual violence during military actions. For example, during the armed conflict in Donbas, human rights defenders observed such forms of sexual violence as rape, threats of rape, forced prostitution, sterilization, genital mutilation, forced nudity, demonstration of nudity in public, etc.

It is important to note that, pursuant to the Decree of the Cabinet of Ministers of Ukraine No.1393-, the Action Plan on implementing the National Human Rights Strategy for the period until 2020 (the National Strategy) was approved on 23 November 2015. The National Strategy, in particular, provides for actions (including those related to amendments to current legislation) aimed at:

complying with the provisions of international law to protect the lives of civilians in temporarily occupied territory of Ukraine;

establishing an effective system to investigate crimes related to torture, cruel, inhuman or degrading treatment or punishment, including forced disappearance of persons.

Within implementation of the National Strategy and to fill in the gaps in Ukrainian legislation, human rights organizations and the Ministry of Justice of Ukraine worked together to produce the Draft Law of Ukraine On Amending Certain Legislative Acts to Ensure the Harmonization of Criminal Law with International Law.

The provisions of the Draft Law are intended to ensure that so-called substantive offences (genocide, aggression, crimes against humanity and war crimes) are criminalized under international law; to ensure compliance with international obligations on preventing the impunity of such crimes; and to improve the legal regime providing for the maximum criminal liability for torture, as may be established by modern international law.

The provisions of the Draft Law as a whole form several conceptual blocks:

provisions addressing the autonomous regime of criminal liability for the crimes of aggression, genocide, crimes against humanity, and war crimes: Article 81 of the CCU, amendments to Articles 8, 44, 49, 68, 75, 80, 963 of the CCU, amendments to section XX of the Special Part of the CCU, amendments to the Law of Ukraine On Application of Amnesty in Ukraine;

provisions providing for structural changes in the legislation of Ukraine on criminal liability which arise from the previous group proposed Articles 2361, 2951 of the CCU, proposed Section XX of the Special Part of the CCU;

provisions aimed at improving the legal regime of criminal liability for torture amendments to Articles 44, 49, 68, 75, 80, 963, 127 of the CCU.

At present, the said Draft Law has already been passed in the first reading and has been approved as a basis for future legislation. At the same time, on 27 December 2019 one more Draft Law of Ukraine On Amending Certain Legislative Acts on the Implementation of International, Criminal and Humanitarian Law was also registered in the Verkhovna Rada of Ukraine. However, it is important to note that the said Drafts Law of Ukraine will not resolve the international crime problems that have accumulated, given the current political situation and developments in eastern Ukraine, as well as the agreements (the Minsk Agreements) reached within ongoing negotiations. Nevertheless, creating an efficient investigation system for crimes involving torture and cruel, inhuman or degrading treatment is one of Ukraines priorities in the current situation.

Sergiy Smirnov is a partner at Sayenko Kharenko

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