<<
>>

a political context in crimes against humanity

The corpus delicti against humanity throughout long time is a subject of the sharpest discussion about a role of a political context. Dim frameworks of structure of structure of the given socially dangerous act become the reason of infinite polemic about its substantial aspects.

Whether condemns the international community of a crime against humanity only because they are systematic or large-scale attacks on civilians? And can, only one mass regular character inherent to socially dangerous act, not enough, and for reference to the international crimes in it should be inherent and other specific lines? And if it so, whether is such specific line a political context?

Throughout many years these questions remain without the answer. Though, would be more true to tell, that the doctrine of the international criminal law and a case law of bodies of the international punitive justice give infinite set of answers to the given questions which, however, have so inconsistent character, that development of the uniform approach to the maintenance of the corpus delicti against humanity sees enough challenge.

All doktrinalnye concerning a political context in crimes against humanity can be divided ideas into some theories.

Supporters of the first of them are inclined to narrow frameworks of structure of the analyzed corpus delicti. In particular, existence of a political context as obligatory legal element in crimes against humanity is denied. The attention in bolshej to a measure is accented on facultative character of the given element. Thus nevertheless admits, that the fact of participation of the state or the organisation in criminal action fulfilment is to-statochno a powerful argument for qualification of act as a crime against humanity. Most brightly given approach is traced at all in works of separately taken scientists, and, more likely, in case practice MTBJU.

As bright example the decision on business Kunaratsa (v. Kunarac) [177] can serve. Interestingly, what exactly on the given decision further referred MTR at a substantiation of facultative character of a political context in the corpus delicti against humanity [178]. At the same time arguments on which the given theory is constructed, in our opinion, in modern conditions are not convincing. The political context not only is regulated as an obligatory legal element of a crime against humanity by the Roman statute MUS, but also all in some cases admitted to that the same International criminal tribunals ad hoc, whose case law never differed uniformity.

Within the limits of the second theory existence of a political context in crimes against humanity is not denied, but with the reservation on reference possibility to subjects of a policy of exclusively states.

So, S.Bassioni, recognising the tendency existing during last 50 years to fulfilment of the international crimes not the state actors, nevertheless believes, that the international criminal law will not develop in a recognition direction not the state actors subjects of a policy. The American scientist insists, that modern International criminal tribunals ad hoc and MUS have been created as the answer to unwillingness or inability of the separate states to carry out suit for the crimes made within the limits of a state policy or the plan [179].

However the given theory already cannot be recognised today by axiomatic.

It is enough to recollect, that Roman statute MUS establishes some other, to be exact, more expanded circle of subjects of a policy within the limits of a political context of crimes against humanity. Here again it is necessary to focus attention that in modern conditions the Roman statute MUS is not only base document MUS, but also the basic document in sphere of the international criminal law as a whole. It sets tendencies and lays the foundation for the international criminal justice. After all the given international legal certificate is the unique operating code of the international crimes. Certainly, formal definiteness in the strict sense is not inherent in norms of the given regulatory legal act, however the positions regulated by them carry a binding character. It, in particular, concerns also subjects of a policy within the limits of the corpus delicti against humanity.

In this connection to the most corresponding modern realities the approach proving not only existence of a political context within the limits of a crime against humanity, but also carrying to subjects of a policy as the states, and the organisations is. The base of the given approach are positions of Roman statute MUS.

In particular, the political context of crimes against humanity as it is regulated in subitem and item 2 of item 7 of Roman statute MUS, is stated in a following kind: «« the attack on any civilians »means a line of conduct including repeated fulfilment of certificates, specified in item 1, against any civilians undertaken with a view of carrying out politicians of the state or the organisation, directed on fulfilment of such attack, or with a view of assistance to such policy» [180]. Thus given design, apparently, assumes encouragement, instigation or a tacit consent on behalf of the state or the organisation to fulfilment of large-scale or regular attacks on civilians.

At the same time the place of a political context in the corpus delicti against humanity is till now an Achilles' heel of all structure. As a whole natural enough tendency is traced, that the international Tribunals ad hoc in bolshej to a measure focused attention to individual criminal actions so, personal motives convicted and actually ignored the general political grounds, including a political context though the given concepts - in a broad sense - exist in close interrelation with each other and, as a rule, coincide. However it is impossible to exclude situations in which individual criminal actions within the limits of a crime against humanity are made, for example, for quite personal reasons. Thereupon professor N.A.Zelinsky notices, that «real motives of the individual behaviour treated as political crime, can essentially disperse from the purposes of organizational structures, to be a consequence of their weakness» [181]. At the same time the personal motives, whatever they were, in itself do not exclude a political context as an obligatory legal element of the considered corpus delicti. After all any individual criminal action within the limits of a crime against humanity, in strict sense, is made at support and in the tideway of the corresponding policy. The political situation allows the potential criminal to form own judgements about criminal and permitted. The policy as a whole inspires to the person making criminal action, confidence of the impunity.

For presentation it is possible to result the following example. In the decision on business Kunaratsa (v. Kunarac) the Judicial chamber has come to conclusion, that the individual denunciation to the authorities of nazi Germany on the neighbour-Jew, nevertheless, should be regarded as a crime against humanity as it has been made against widespread prosecution of Jews [182]. And in this sense it is necessary to focus attention that such act is made not only against widespread prosecution of Jews, but also within the limits of the incentive policy of the state. The informer realised, that not only will not incur responsibility for made, but will operate within the limits of a state policy. Moreover, motives of the person who have committed a crime, can be both political, and personal (aversions, revenge etc.).

The Nuremberg tribunal in the decision was guided enough inconsistent maksimoj if to consider it in narrow sense. So, it has been enacted: «Crimes against international law are made by people, instead of abstract categories, and only by punishment of the separate persons committing such crimes, international law establishments» [183] can be observed. A number of authors, being based on the given position, come to conclusion, that the political context was denied by the Nuremberg tribunal as idea as a whole.

However the given position sees enough a disputable preamble in a context to item 6 of the Charter of the Nuremberg tribunal. The given norm, in particular, limits the subject competence of Tribunal to persons who, «operating in interests of the European countries of an axis individually or as members of the organisation, have made any of the crimes regulated by the Charter» [184]. At the heart of the given norm the idea about an attraction admissibility to the individual criminal liability only those persons who operated in interests of the states of the nazi block lays, that in itself assumes presence of a political context in actions of the above-stated persons.

However, that is even more important, in frameworks all is defined by the same item 6, that «heads, organizers, instigators and the helpers participating in drawing up or in realisation of a general plan or plot, directed to fulfilment of any of aforementioned crimes, bear responsibility for all actions made by any persons with a view of realisation of such plan» [185].

Absence in the Charter of the concrete requirement concerning necessity of an establishment of a political context speaks that the state policy of the European countries of an axis in itself was inseparably linked with each of crimes pursued by the Nuremberg tribunal. A political context actually prezjumirovalsja composers of the Charter.

Really, crimes are made by concrete people, instead of abstract categories, and in it maksima, put in pawn in the decision of the Nuremberg tribunal, is conclusive. However the concrete crimes made in a separation from those abstract categories, hardly are of interest for bodies of the international punitive justice and can be quite considered within the limits of the national judiciary.

Later the created International criminal tribunals ad hoc did not differ sequence in a question of necessity of inclusion in the corpus delicti against humanity of a political context.

Charter MTBJU in effect ignored the requirement of a political context, not providing any even indirect indication on it. At the same time the Tribunal case law has gone a little bit other by. Actually in each of decisions MTBJU faced necessity of consideration of questions of a policy. In the light of it interesting enough law is traced. Each of the taken out decisions actually has not something in common with other decisions, concerning a case in point. Differently, during the activity the Tribunal and has not developed the uniform approach to a role of a political context in the corpus delicti against humanity.

Certainly, if to take for a basis maksimu, denying necessity of an establishment of a political context for qualification of socially dangerous act as a crime against the humanity, the given tendency is not surprising. At the same time that fact, that MTBJU has been forced to come back, anyhow, each time to questions of a policy, testifies to the importance of a case in point. In this connection the analysis of the most significant decisions of the given body of the international punitive justice, mentioning various aspects of a political context sees necessary.

In the decision on business Kunaratsa (v. Kunarac) Appeal chamber MTBJU has paid considerable attention to a case in point, however has not found the bases for inclusion of a political context in the corpus delicti against humanity. According to Tribunal, neither attack, nor actions convicted should not prove to be true any forms of "policy" or the "plan", existing at the moment of fulfilment of incriminated act. The court leant against absence of such requirement in Charter MTBJU, and also the international common law, thus focusing attention to that circumstance, that legal elements of structure of the given act are exclusively shirokomasshtabnost or an act system, and also its orientation on civilians. At the same time, according to Tribunal, definition of a political context is the auxiliary mechanism at an establishment of an orientation of an attack, and also they be shtabnos or systems (especially the last), however the in itself politiches context is not an obligatory element of structure [186].

The paradox of this part of the decision consists that at a statement of the position the Tribunal leant, in particular, on positions of the Charter of the Nuremberg tribunal. In turn, composers of constituent instruments of the Nuremberg tribunal as it has been specified above, in our opinion, did not exclude a political context from structure of the corpus delicti against chelovech - nosti.

At the same time, addressing to business Blashkicha (v. Blaskic), it is necessary to notice, that on arguments of protection the Appeal chamber has answered, that Charter MTBJU, usual norms do not contain the requirement of proving of presence of a general plan or a policy as obligatory sign of a contextual element in crimes against humanity. Presence of a contextual element is proved by Tribunal by means of an establishment of one of alternative (a system or shirokomasshtabnost) and one obligatory (an attack on civilians) signs [187]. Thereby Tribunal actually produbliroval positions taken out by two years before the decision on business Kunaratsa (v. Kunarac) [188].

Thus, MTBJU in the decisions stated inconsistent enough judgements, however it is obvious, that the tribunal denied a political context more likely as the structural element of the corpus delicti against humanity, rather than recognised it.

Moreover, in decisions MTBJU a red thread there passes idea about an admissibility of qualification of singular certificates as the international crimes, that, certainly, should be reflected in a role of a political context in the Tribunal case law. To it the facultative role, accordingly, has been taken away.

Other not less known body of the international punitive justice is MTR. The Tribunal charter, as well as Charter MTBJU, does not contain express indications for a role of a political context in the corpus delicti against humanity.

However MTR in the decisions has paid considerable attention to questions of a policy. Interestingly, however, that in most cases recognising necessity of an establishment of a political context for crimes against humanity, MTR nevertheless did not take away to it a role of a structural element of the given corpus delicti.

In particular, in the decision on business Kajshema and Ruzindana (Kayishema and Ruzindana) Judicial chamber MTR has come to conclusion, that certificates of mass prosecution, such as crimes against humanity, should include an element of a policy. Besides, according to MTR, the requirement that the attack should be made against "civilians", inevitably demands existence of any plan, and discrimination character of an attack is a consequence of existence of any policy [189].

At the same time the Judicial chamber, in our opinion, did not recognise a political context as a structural element of the corpus delicti, and is faster prezjumirovala impossibility of committing a crime against humanity out of the above-stated context. After all, according to MTR, shirokomasshtabnost or an attack system in itself are the proof of existence of any policy. Thus establishments of one of these requirements it is enough to exclude the criminal actions made not in frameworks politicians or the plan [190] from jurisdiction of court. Thus, it is possible to draw a conclusion, that, according to MTR, presence of a political context as that should not be proved Tribunal. To proving come under exclusively shirokomasshtabnost or the attack system, and an element of a policy is meant as an obligatory sign of each of these requirements. The judicial chamber focused on it attention, having specified, that the concept means «systematic attacks», that the attack is carried out on the basis of developed a policy or the plan [191]. Similar position MTR has occupied and in the decision on business Bagilishema (v. Bagilishema) [192].

Later in the decision on business Semanza (v. Semanza) MTR was even more categorical, specifying, that the system predetermines the organised character of an attack. However, referring to case practice MTBJU, the Judicial chamber has come to conclusion, that existence of the plan or a policy can serve as the powerful proof at an establishment of an orientation of an attack on civilians, and also it shirokomasshtabnosti or systems, however presence of such plan or a policy is not an independent legal element of a crime [193].

At the same time in one of the first decisions the Judicial chamber used some other approach. Considering case Akaezu (v. Akay - esu), MTR has come to conclusion, that the concept "system" can be defined as carefully organised on the basis of the general policy and by means of attraction of considerable state or private resources of an attack. Thus, according to MTR, there is no requirement that this policy should be formally accepted in quality of a policy of the state [194]. Further MTR confirmed fidelity of the given position in decisions on affairs Rutagandy (v. Rutaganda) [195] and Musemy (v. Musema) [196].

The question on subjects of a policy within the limits of a crime against humanity will be considered more low, however it is necessary to notice, that business Akaezu (v. Akayesu) did not become unique on sense of judgements taken out by Tribunal, in particular, concerning subjects of a policy. As it has been noted above, in case in point MTR has come to conclusion, that the policy as the precondition of systematic attacks on civilians not necessarily should be state.

In the decision on business Kajshema and Ruzindana (Kayishema and Ruzindana) the Judicial chamber also insisted on necessity of reference to jurisdiction of Tribunal of the criminal actions made in frameworks politicians of not state subjects. MTR specified, that Ruzindana, were one of defendants, had considerable influence and as the representative of the government, being the prefect, and as not state subject, being business - menom [197].

And in this sense interest represents activity KMP which has developed recommendations about the given question in the Project of the code of crimes against peace and safety. Proceeding their text of the given document, crimes against humanity represent the brutal certificates made or directed by the government, the organisation or group.

Position KMP has been caused by desire to exclude a situation in which the person makes the brutal certificate, operating on own initiative on the basis of own criminal plan in absence of any encouragement or the help from any government, group or the organisation. Such interpretation of concept of a crime against humanity allows to avoid charge in relation to especially private persons. Besides, such approach to definition of a crime against humanity to the full corresponds to the purposes and problems of the international criminal justice, called to carry out suit concerning the most serious crimes causing concern of all international community.

Coming back to a case law of bodies of the international punitive justice, it is necessary to pay attention to a case law of the mixed (hybrid) criminal courts. In particular, in decisions of Extreme chambers in Vessels of Cambodia for prosecution for the crimes made in Democratic Kampuchea, questions of a policy were mentioned often enough. It is necessary to notice, that the specialised body created as a result of the agreement between the government of Cambodia and the United Nations for criminal prosecution of leaders of red khmers, certainly, could not disregard a political component of evil deeds of red khmers, after all the in itself state policy was criminal.

On April, 17th, 1975 army of Communist party of Kampuchea and Narodnoosvoboditelnye Armed forces of Kampuchea have entered into Pnom-Penh and have seized power. After the termination of civil war against Bosoms Nola in Khmer Republic the Communist party of Kampuchea has established a policy according to whom the following stage of formation of a socialist revolution has been proclaimed. Within 3 years, 8 months and 20 days the Communist party of Kampuchea carried out the to the policy which was realised by means of a number of means in which number there was a deportation and violent moving of the population of Pnom-Penh and other regions of the former Khmer Republic in a countryside. Politically motivirovannye extrajudicial executions were made, first of all, by military divisions [198].

The communist party of Kampuchea has founded the Central Committee for realisation of party "line" (or politicians) on all country [199].

Analyzing each of decisions of Extreme chambers in Vessels of Cambodia for prosecution for the crimes made in Democratic Kampuchea, it is possible to say with confidence, that the political component became the base question considered by court.

At the same time the doctrine of the international criminal law in the given question as it has been specified above, is even more ambiguous. Moreover, within the limits of discussion concerning a place of a political context in the corpus delicti against humanity it is possible to meet radical enough pozi - tsii.

So, S.Bassioni is categorical enough not only in a question of a circle of subjects of a policy, but also in a question of a place of a political context within the limits of a crime against humanity as a whole. The American scientist writes, that «shirokomasshtabnost or an attack system it is necessary to consider, more likely as the means, allowing to prove presence of the state plan or a policy, and, hence, a legal element of crimes against humanity is communication of an attack with the state plan or a policy, instead of it shirokomasshtabnost or a system» [200].

The political context has received for the first time a place of an independent legal element in the corpus delicti against humanity only within the limits of Roman statute MUS. At the same time standard fastening of the above-stated element has not resolved, and has only revived with new force discussion concerning a place of a political context in the corpus delicti against humanity, and also a circle of subjects of a policy within the limits of the considered corpus delicti.

It is necessary to notice, that from the moment of establishment MUS the case in point not once appeared on the agenda during consideration of those or other affairs. At the same time the decision of Chamber of the pleading II about authorisation, according to item 15 of the Roman statute of investigation of a situation in Republic Kenya, is in own way critical for the international criminal law as a whole. The court has in details considered questions which in practice of bodies of the international punitive justice were considered before only fragmentary.

In particular, the considerable attention has been given the analysis of substantial aspects of a political context of a crime against humanity. In this sense it is necessary to notice, that the decision contains debatable enough positions concerning the organisations as subjects of the policy, however in more details the given question will be considered in following section. We will address only to the general remarks.

So, K.Kress writes: «the Political element has been initially entered into a design of the corpus delicti against humanity for the purpose of differentiation of a crime against humanity as result of activity of machinery of state and other organised crimes, as that acts of terrorism of not state actors according to their political or religious ideas. Interpretation by Court of the political requirement erases a narrow side between crimes against humanity and other kinds of the organised crimes, whether - made by the private

201

tsami. [201]

Besides it the Court has considered necessary in detail to stop on features of realisation of a policy within the limits of a crime against humanity on behalf of the state as subject of a policy. In particular, in the decision it has been specified, that a state policy directed on fulfilment of an attack, «should be not necessarily generated at the highest level. Hence, the policy generated regional or even by local authorities, also corresponds to requirements of a political context in pre -

202

stuplenii against humanity ».

Proceeding from all aforesaid, it is necessary to draw a conclusion that the political context in the corpus delicti against humanity is one of the most debatable in a science and practice of the international criminal law.

All existing approaches to a place of a political context in the corpus delicti against humanity can be divided into three groups.

Within the limits of the first of them existence of such obligatory element of the corpus delicti against humanity, as a political context is denied. Supporters of the given approach recognise powerful value of a political context for qualification of criminal action as a crime against humanity, however specify in facultative character of the given element. In our opinion, arguments on which the given theory is constructed, in modern conditions are not convincing. The political context not only is regulated as an obligatory legal element of a crime against humanity by the Roman statute MUS, but also all in some cases admitted to that the same International criminal tribunals ad hoc, whose case law never differed uniformity.

Besides, in the doctrine of the international criminal law there is an opinion that the political context in crimes against chelovechnos - [202] ti is an obligatory element of the corpus delicti against humanity, however only in cases when the subject of a policy is the state. In our opinion, the given theory already cannot be recognised today by axiomatic because Roman statute MUS establishes some other, to be exact, more expanded circle of subjects of a policy within the limits of a political context of crimes against humanity.

In this connection to the most corresponding modern realities the approach proving not only existence of a political context within the limits of a crime against humanity, but also carrying to subjects of a policy as the states, and the organisations is. The base of the given approach are positions of Roman statute MUS. Fundamental value of the given element in the corpus delicti against humanity is proved by what the political situation allows the potential criminal to form own judgements about criminal and permitted. The policy as a whole inspires to the person making criminal action, confidence of the impunity.

3.3.

<< | >>
A source: Maljarova Ekaterina Aleksandrovna. CONTEXTUAL CIRCUMSTANCES AS the CORPUS DELICTI ELEMENT ON the INTERNATIONAL CRIMINAL LAW. The DISSERTATION on competition of a scientific degree of the master of laws. Moscow -. 2017

More on topic a political context in crimes against humanity:

  1. a political context in genocide crimes
  2. a political context in war crimes
  3. Responsibility for crimes against humanity
  4. Activity MOUSSE on bringing to criminal liability for crimes against humanity
  5. the Prototype of the ideal political leader as an element of a political context of election campaign 2012г.
  6. 3.1. Compulsory marriage as a separate kind of crimes against humanity: teoretiko-legal aspects
  7. 3.1. A place of a political context as a part of the international crime
  8. Chapter 3. The POLITICAL CONTEXT AS INDEPENDENT CONTEXTUAL CIRCUMSTANCE
  9. the organisation as the subject of a policy within the limits of the corpus delicti against humanity
  10. § 1. The mechanism of realisation of legal responsibility for military crimes in a context of evolution of system of the criminal legislation of Republic Kazakhstan
  11. §3. The Legal regime of the Arctic region in a context of military-political measurement of the Arctic strategy of Russia and Canada
  12. Chapter 2. PROBLEMS of ESSENCE And the MAINTENANCE of MILITARY CRIMES In the CONTEXT of the MODERN CONDITION of the KRIMINOLOGICHESKY SCIENCE
  13. Chapter 3. THEORETICAL And APPLIED PROBLEMS of the DOCTRINE About PLURALITY of CRIMES In the CONTEXT of APPOINTMENT And PUNISHMENT EXECUTION
  14. Chapter 2. THEORETICAL And APPLIED PROBLEMS of the DOCTRINE About PLURALITY of CRIMES In the CONTEXT of QUALIFICATION of SOCIALLY DANGEROUS ACTS
  15. Contextual circumstances in the corpus delicti against humanity
  16. 2.2. Mechanisms and factors of political socialisation in the Russian political space
  17. 2.1 Phenomenon «speech influence» in the modern humanity