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THE CONCLUSION

All-round studying of contextual circumstances as a part of the international crime allows the author of dissertational research to draw a conclusion on a binding character of the given structural element as a part of each of the international crimes regulated by the Roman statute MUS.

The thesis that contextual circumstances allow to differentiate the international crimes among themselves is proved. It is established, that the international crimes come within the jurisdiction of the international criminal courts (constant or time) only in case of presence in their structure of contextual circumstances.

Carried out within the limits of chapter 1 of the present dissertational research the scientific analysis has allowed the author of dissertation to consider the discrimination to definition of structure of the international crime, to develop additions to them and to offer own definition. The structure of the international crime is a set established by sources of the international criminal law of the objective, subjective and contextual circumstances characterising act as a crime on the international criminal law.

In a kind of the offered definition each of elements of structure of the international crime is in details analysed. After that the conclusion that approaches existing in the domestic doctrine to structure of structure of the international crime considerably differ from the approach developed in Roman statute MUS and Elements of crime MUS is drawn.

The special attention has been thus given a general characteristic of contextual circumstances as a part of the international crime. The author specifies, that neither the doctrine, nor practice of the international criminal law uniform definition of concept źcontextual circumstances╗ is not developed. According to the author of dissertation, the given situation negatively affects process of qualification of socially dangerous act as the international crime. Absence of the conventional definition of concept źcontextual circumstances╗ has predetermined development of author's definition. In our opinion, contextual circumstances is an independent element of structure of the international crime, containing accompanying fulfilment of socially dangerous act the conditions causing qualification of act as the international crime.

In the course of a writing of the second chapter the author had been analysed the contextual circumstances inherent in each of international crimes regulated by the Roman statute MUS. Thus substantial aspects of an investigated question have been considered, proceeding from positions of various international legal certificates, and also judiciary practice of the international criminal courts (constant and time).

Approaches by the occurrence moment in the corpus delicti against humanity of the given contextual element are critically considered. The conclusion that contextual circumstances have been established already in a sentence of the Nuremberg tribunal is drawn.

According to the author, under shirokomasshtabnostju as the quantitative characteristic, first of all, it is necessary to understand an act orientation on detrimenting to a significant amount of victims. The given concept is estimated and should be established in each concrete case in aggregate with other circumstances of business.

System as the qualitative characteristic of a crime against humanity, in turn, outlines it not as the individual behavioural certificate, and prezjumiruet a regularity along with organisation of such activity.

Within the limits of dissertational research alternative character shirokomasshtabnosti and systems in the corpus delicti against humanity is proved. So, for qualification of criminal action as a crime against humanity it is enough to prove presence of one of the given contextual circumstances. At the same time the author fixs the tendency, testifying that in most cases presence of one of the above-stated contextual circumstances, certainly, involves presence of another.

Besides, it is underlined an admissibility of qualification of individual criminal action as a crime against humanity only in case it is connected with large-scale or systematic attacks on civilians.

It is necessary to notice, that in dissertational research the considerable attention is paid to contextual circumstances of war crime in the form of instructions on a situation of a confrontation of the international or not international character, and also communication of criminal action with the given confrontation. In this question the author finds out paradox which is expressed that without definition of contextual circumstances reference of individual criminal action to that or other structure of the international crime is not obviously possible.

According to the author, the approach to the maintenance of contextual circumstances as a part of the analyzed corpus delicti has undergone the most essential transformations. In particular, war crimes, on belief of the Nuremberg tribunal, the acts made during the international confrontation could be recognised only. The Socially dangerous acts which are taking place during not international confrontation, in turn, could not be qualified as war crimes, possibility of their reference in a plane of the international criminal law was denied.

Thus, the Nuremberg tribunal in the activity has applied narrow enough approach to definition of contextual circumstances, unlike the approach existing for today and supposing qualification of socially dangerous act, connected with not international confrontation as war crime.

Besides, in the dissertation it is specified, that infringements of the international humanitarian law exist only in case of presence of obvious communication between criminal action and a confrontation. It is possible to talk about war crimes, for example, when the corresponding crime has been made during operations or capture of a city during a confrontation.

Finally communication with a confrontation, being, at first sight, obvious and is faster a formal structural element of war crime, actually forms the base of all structure. After all fulfilment of the above-stated criminal action is possible only within the limits of certain environment. Such environment is the international or not international confrontation, which in itself, in strict sense, cannot be recognised by an original cause of fulfilment of a concrete crime. However confrontation presence is a push for decision-making to make illegal act, predetermines an order and a way of its fulfilment and, finally, does possible qualification of this or that criminal action as war crime.

Within the limits of dissertational research the author investigates contextual circumstance of a crime of a genocide źin the form of an obvious line of the similar behaviour directed on full or partial destruction of protected group, or the behaviour, which in itself could lead to such destruction╗.

To one of the most debatable questions, concerning contextual circumstances of a crime of a genocide, in our opinion, is vozmozh - [255] nost committings a crime of a genocide by means of the sporadic certificate of violence. At the same time in the course of dissertational research the conclusion that though at theoretical level the given situation can be assumed has been drawn, in practice by obligatory contextual circumstance of a crime of a genocide is shirokomasshtabnost. The given position is based that the genocide crime is somewhat continuation of a crime against humanity. Obligatory contextual circumstances for a crime against humanity, in turn, are shirokomasshtabnost or an attack system on civilians. In this connection, supposing idea about possibility of qualification of individual certificates of violence as a genocide crime, we actually conflict to genesis of the given international crime.

In the course of a writing of the third chapter the author specifies in the important feature of all international crimes - political contextual circumstances (a political context) as the integral component of the international crimes.

The political context as a part of the international crime carries out a role of criterion of reference of the international crimes to the competence of bodies of the international punitive justice.

Besides, it is necessary to focus attention that for today the concept of a policy is interpreted widely enough. Not only the state is the subject of political activity within the limits of the international criminal law, by such subject can be recognised and the organisation. At the same time neither in the doctrine of the international criminal law, nor in judiciary practice of the international criminal courts (constant and time) does not contain organisation signs as subject of political activity. So, the given concept can be interpreted as rasshirenno, and is too narrow, that, certainly, is not admissible, when it is a question of a true establishment in affairs about the most serious crimes against peace and safety of mankind.

Moreover, it is impossible to deny that fact, that in most cases the most serious crimes against peace and safety of mankind are made or the state in the name of its officials, or at a tacit consent of those officials, or in conditions when the state any more in a condition to counteract such criminal actions because faces force which actually is similarity of the state. And in this sense inability or unwillingness of the state to carry out criminal prosecution within the limits of the national judiciary predetermines necessity and an admissibility of the introduction into action of norms of the international criminal law. Moreover, subject structure and conditions of fulfilment of similar criminal actions visually show impossibility of existence of the international crimes out of a political context.

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.

Besides, in the doctrine of the international criminal law there is an opinion that the political context is an obligatory element of the corpus delicti against humanity, however only in cases when the subject of political activity 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 political activity within the limits of a political context of crimes against humanity.

In connection with the aforesaid most corresponding to 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 political activity 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.

For today does not cause doubts that fact, that the political context is an obligatory element of a crime of a genocide. To it testify both constitutional instruments, and case law MUS.

About it the ancestor of the term R.Lemkin's "genocide" in fundamental work źthe Key rule in the occupied Europe╗ wrote also.

In our opinion, the genocide crime concerns political phenomena because is always directed on destruction of identified group completely or partially. Moreover, genocide committing a crime is actually impossible without at least indirect participation of the state or the organisation having considerable influence in given territory and capable to offer resistance the operating government.

At the same time each concrete executor making individual criminal action, qualified further as a genocide, should be not necessarily informed on all details of a policy, however should know about it at least in general.

In the course of dissertational research the conclusion that the political context is obligatory contextual circumstance of structure of war crime becomes. It is connected with the political nature of war crimes. Character of a confrontation does not influence a contextual element of war crime. The political component is inherent both international, and to not international confrontations.

According to positions of Roman statute MUS jurisdiction MUS concerning war crimes is limited to the criminal actions made within the limits of the plan or politicians or at large-scale fulfilment of such crimes.

In our opinion, the similar positions focusing attention on inadmissibility of qualification as war crimes of separate sporadic unorganized criminal actions, visually show the importance of a political context in war crimes.

The considerable attention in work is given the organisations as to subjects of political activity within the limits of a crime against humanity. Within an investigated question the author allocates two basic theories.

The theory considering the organisations as subjects of political activity in a broad sense and carrying to subjects of political activity within the limits of a crime against humanity any organisation, is given reason enough, however washes away frameworks of the international criminal justice and actually contradicts the purposes, problems and the standard principles of the international criminal law. The second theory equating to subjects of political activity only the organisations in narrow sense, is rational enough and, in our opinion, is proved.

For a true establishment of a circle of subjects of a policy within the limits of a crime against humanity necessary sees to address to the legal nature of the given socially dangerous acts. From developed in the doctrine of the international criminal law of criteria of reference of an offence to political crimes it is possible to draw a conclusion, that crimes against humanity are political crimes.

Because in the theory of the international criminal law źthere is a conditional division of all file of international legal political crimes onź state "and" not state ╗where guilty of fulfilmentź not state ╗crimes not only do not represent the legitimate power, but also operate in a context politically oppositional to it organiza - tsii╗ [256], it is possible to draw a conclusion that one of the basic signs inherent in "organisation" in a context of the international criminal law, oppositional activity in relation to the operating power is.

It is represented, that the organisation can be considered as the subject of political activity within the limits of a crime against humanity only in that case when it possesses sufficient force for counteraction of the existing power.

The political context in crimes against humanity, apparently, exists when or the government carries out suppression, submission of own people or its part, or, in a counterbalance to it, the people or its part, consolidated in the organisation, use the methods similar state, for achievement of own political ends.

At the same time neither the doctrine of the international criminal law, nor judiciary practice of the international criminal courts (constant and time), even the international certificates in sphere of the international criminal law for today do not contain definition, and also accurate signs of the organisations as subjects of political activity within the limits of a political context of crimes against humanity. The given fact negatively affects efficiency of the international criminal justice and involves absence of uniform judiciary practice.

In our opinion, the organisation as the subject of political activity within the limits of the corpus delicti against humanity is structured, ierarhichnoe the association supervising certain territory in which limits is capable to carry out and impose the political power, along with it carrying out counteraction of the existing power reaching of the political ends by large-scale or regular attacks on civilians and possessing sufficient means and resources for achievement of the given purposes, irrespective of presence or absence of a confrontation.

Thus, the organisation which is coming within the purview of subitem and item 2 of item 7 of Roman statute MUS, in strict sense, should be gosudarstvopodobnoj. Examples of such organisations insurgent groupings, as nobody the recognised states etc. can serve.

Moreover, in our opinion, not truly to carry the organisations to subjects of political activity only within the limits of a political context of crimes against humanity. Both genocide crimes, and war crimes like crimes against humanity can be made in frameworks of a policy of the organisation. In a case with war crimes the given tendency can be tracked visually within the limits of confrontations of not international character.

By results of the carried out dissertational research it is necessary to draw a conclusion that the question concerning contextual circumstances as an independent element of structure of the international crime is many-sided and maloizuchennym that predetermines necessity of the further scientific researches for the given sphere.

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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

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