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JURISPRUDENCE / «Colloquium-Journal»#16(40),2019 JURISPRUDENCE / «Colloquium-journal»#16(40),2019 UDC 343.3/.7 Serebrennikova A.V. Doctor of law, Professor of criminal law and criminology Moscow state University. M. V. Lomonosov Russia, Moscow Soboleva E.A. Laboratory assistant, Department of criminal law and criminology Moscow state University M. V. Lomonosov, Russia, Moscow lebedev M.V. Postgraduate student, Department of criminal law and criminology Moscow state University M. V. Lomonosov, Russia, Moscow DOI: 10.24411/2520-6990-2019-10525 INTERNATIONAL CRIMINAL LAW: IMPLEMENTATION ISSUES IN THE NATIONAL LEGISLATION OF THE RUSSIAN FEDERATION AND GERMANY Abstract The article deals with issues related to the implementation of the norms of international criminal law con- tained in the Convention on the Prevention and Punishment of the Crime of Genocide of December 9, 1948, into the internal legislation of the Russian Federation and Germany. In this regard, Article 357 of the Criminal Code of the Russian Federation and the Criminal Code of International Crimes of Germany. Keywords: The Russian Federation, Germany, international criminal law, the criminal law, genocide. Crimes against the peace and security of mankind international treaties of the Russian Federation as an in- are without a doubt one of the most cruel and dangerous tegral part of the legal system of the Russian Federa- criminal offenses. Events occurred in the world in the tion. Part 2 of Article 1 of the Criminal Code of the 21st century, for example, the mass slaughter of Ye- Russian Federation contains a prescription that “this zidis in northern Iraq and Christians in Syria, the cruel Code is based on the Constitution of the Russian Fed- murders of Rohingya Muslims in Myanmar, the viola- eration and the generally recognized principles and tion of the rights of Muslim minorities of the Uygurs, norms of international law”. This provision is imple- ethnic Tibetans and Kazakhs in China, the military-po- mented by the inclusion of relevant legal norms after litical situation in Ukraine, in Libya and Afghanistan their entry into force in the criminal legislation of the demonstrate the need for more effective cooperation of Russian Federation through the adoption of the Federal states to combat crime at the international level. Law. Despite the regulation of crimes against the peace An example of this is Article II of the Convention and security of mankind at the international legal level, on the Prevention and Punishment of the Crime of Gen- all states have different criminal law mechanisms to ocide of December 9, 1948 [1, This Convention was counter these types of crimes. adopted and proposed for signature, ratification or ac- The choice of country for comparative legal re- cession by resolution 260 A (III) of the UN General As- search is due to the fact that the Federal Republic of sembly, entered into force 12 January 1961. See: Inter- Germany is a vivid example of a state that changed its national Acts on Human Rights. Collection of docu- national legislation under the influence of the develop- ments. 2nd edition. 2002. p. 518], which contains the ment of international criminal law and adopted a spe- concept of genocide. Based on this provision, “in this cial law of the so-called supplementary criminal law Convention, genocide means the following acts com- (Nebenstrafrecht) that criminalizes crimes against hu- mitted with the intent to destroy, in whole or in part, a manity and war crimes - the Law on the enactment of national, ethnical, racial or religious group, as such: the Criminal Code of International Crimes of the Fed- а) killing members of such a group; eral Republic of Germany of 2002. b) causing serious bodily harm or mental impair- The implementation of international criminal law ment to members of such a group; in the domestic legislation of the state, including the es- c) the deliberate creation for any group of such liv- tablishment of criminal liability for international ing conditions that are intended for its full or partial crimes, including for genocide, is an important task of physical extermination; any modern state. d) measures intended to prevent childbirth in the The basis for the criminal legislation of Russia and environment of such a group; Germany are the Constitution of the Russian Federation e) forced transfer of children from one human of 1993 and the Basic Law of Germany of 1949 and group to another.” [2, ibid] generally recognized principles and norms of interna- The criminal laws of Russia and Germany contain tional law. For example, the 1993 Constitution of the norms that establish criminal liability for genocide. Russian Federation of 1993 contains a provision recog- They represent an example of the implementation of in- nizing the principles and norms of international law and ternational criminal law in the domestic criminal law of the countries under consideration. «Colloquium-journal»#16(40),2019 / JURISPRUDENCE In the Criminal Code of the Russian Federation path, adopting in 1992 an independent federal law that criminal liability for genocide is established in Article includes the Criminal Code of International Crimes, 357. This provision is contained in chapter 34 of section which currently contains the rule on genocide. Consider XII “Crimes against the peace and security of man- this criminal offense in more detail: kind”. Article 357 literally reproduces the concept of “(1) That who with the intent to destroy, in whole genocide, enshrined in Article II of the Convention un- or in part, any national, racial, religious or ethnic group der consideration, and is formulated as follows: “Ac- as such: tions aimed at the complete or partial extermination of 1) kills members of such a group, a national, ethnic, racial or religious group by killing 2) causes members of such a group severe physical members of this group, causing serious harm to their or mental harm, especially indicated in the form of § health, forcibly preventing childbirth, forcibly transfer- 226 of the Criminal Code, ring children, forcibly relocating or otherwise the crea- 3) creates life conditions for any group that are in- tion of living conditions intended for the physical ex- tended for its full or partial physical extermination, termination of members of this group is punishable by 4) takes measures intended to prevent childbirth in imprisonment of from twelve to twenty years or death the environment of such a group, penalty or life imprisonment ". The merit of the Russian 5) forcibly transfers children from one human legislator, in our opinion, is that it does not expand the group to another, concept of genocide contained in Article II of the Con- shall be punished with life imprisonment." Note vention under consideration, testifying to the imple- that in the former § 220a of the German Criminal Code, mentation of the constitutional provision on recognition the corpus delicti of the genocide was formulated in the of the principles and norms of international law and in- same way. ternational treaties of the Russian Federation as an in- Thus, it can be concluded that the dispositions of tegral part of the legal system of the Russian Federa- the examined norms (Article 357 of the Criminal Code tion. of the Russian Federation and § 6 of the German Code German law criminalizes genocide in the Act on of International Crimes) are formulated in a similar the Enactment of the Criminal Code of International way. This can be explained, first of all, by the fact that Crimes dated June 26, 2002 (hereinafter the Criminal they are conventional. Code of International Crimes) [3, BGBl. I S. 2254.], Let us briefly describe the considered rules. The and not in the German Criminal Code, as it was before. object of genocide are the foundations of mankind and This is explained, on the one hand, by the specificity of humanity, i.e. international security of national, ethnic, the German criminal law, which consists in the fact that racial, religious groups. In the sense of these norms, criminal law regulations are contained not only in the victims of genocide are not individuals - members of German Criminal Code of 05.15.1871 [4, RGBl. S. groups, but the group of people themselves, character- 127.] (as amended on November 13, 1998), but also in ized by their national, racial, religious or ethnic homo- the so-called supplementary criminal law (Ne- geneity and specificity, at the extermination of which benstrafrecht), as well as in other federal laws. On the the crime is aimed. Moreover, they cannot be political other hand, this is due to the attempt of the German leg- parties, economic communities or cultural groups. islator to codify international crimes in a separate leg- The objective side of these norms is characterized islative act. by actions aimed at the complete or partial physical ex- Part 2 of the Criminal Code of International termination of a certain group of people in one of the Crimes of Germany contains components on criminal following ways: a) killing members of this group; b) acts against international law and begins with Section causing grievous harm to their health; c) forcibly pre- 1, which includes the rules on genocide and crimes venting their childbirth; d) forced transfer of children; against humanity. Paragraph 6 of the Code criminalizes e) forcible relocation; e) otherwise creating living con- genocide. ditions intended for the physical extermination of mem- Note the fact that that prior to the adoption of the bers of this group. The corpus delicti in both the Crim- Code, criminal liability for this crime was established inal Code of the Russian Federation and the German in § 220a of the Criminal Code of Germany. This pro- Code of International Crimes are formulated as an act vision was introduced in the Criminal Code by the Law of creating the threat of extermination of a certain group of August 9, 1954 [5, BGBl.
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