• 21.
• maj
• 2019

The criminal law of genocide

THE CRIMINAL LAW OF GENOCIDE

The Slovenian perspective

1.       From the point of View of a Slovenian Lawyer

Allow me to start with a few words on Slovenia and a short overwiev of the relevant legislation in the Republic of Slovenia.

From the times of the Second World War on, the Republic of Slovenia had formed part of the Socialist Federal Republic of Yugoslavia (SFRY). It was situated in the northernmost part of the former SFRY, then and today surrounded by Italy (West), Austria (North), Hungary (East) and Croatia (South).

The Republic of Slovenia has already had, as a part of the SFRY, the status of a sovereign state. Like all other republics of former SFRY (Croatia, Bosnia and Herzegovina, Serbia, Montenegro and Macedonia) Slovenia exercised only part of its sovereign rights within the SFRY.

In December 1990 the Slovenian people and citizens expressed their will in a plebisicite and soon after that the Parliament of the Republic of Slovenia enacted The Basic Constitutional Charter on the Independence and Sovereignty of The Republic of Slovenia. That was the basic ground for Slovenia, by that time one of the federal units of SFRY, to declare its independence.

One of the reasons for that decision was the fact that the SFRY was at that time found to be a state which did not observe the rule of law, and where human rights, minority rights and the rights of constituent republics and autonomus provinces (within the Republic of Serbia, Kosovo and Vojvodina existed as autonomous provinces) were grossly violated. The people of Slovenia and its administration also felt that the existing federal system in the SFRY did not provide for the resolution of the current political and economic crisis. The constituent republics of the SFRY had also been unable to reach an agreement that would have enabled them to achieve independence concurrently with the restructuring of the Yugoslav federation into an alliance of sovereign states. Slovenia's way to independence was not without bloodshed – a short armed conflict between the federal army and Slovenian troops took place in 1991.

After taking all the required steps to become an independent state within the international community and also being recognised as an independent state, the Slovenian people decided to put all their efforts into reaching one of their most important future goals – membership in the European Union. In reaching this goal Slovenia has been quite successful. During the last decade we succeeded to meet all required EU-standards and Slovenia became a full member of the EU on May 1st, 2004.

As far as the creation of its own legislation is concerned, Slovenia, in the process of reaching independence, assumed all rights and obligations, which, by the Constitution of the Republic of Slovenia and by the Constitution of the SFRY had been transferred to federal authorities of the SFRY. In accordance with the Constitution of the Republic of Slovenia and with international agreements binfing upon it, Slovenia guarantees the protection of the human rights and fundamental freedoms of all perons within the territory of Slovenia, irrespective of nationality and without any discrimination whatsoever.

2.      Slovenian Legislation, Regardins the Issue of Genocide

As i have already explained, former Yugoslav legislation in fields that were in the former SFRY regulated by federal authorities remained in use in Slovenia until our parliament (the National Assembly) enacted its own statues. This was also the case in the field of legislation that pertains to criminal justice. Before enacting the Penal Code and the Law on Criminal Procedure (in the following text referred to as PC and LCP, both entered into force on January 1st, 1995), the former Yugoslav PC and LCP remained in use.

In accordance with the Federal Constitution of the former Yugoslavia, all rules of criminal procedure (LCP) were rules under federal jurisdiction. It was the same case with general principles and general provisions of the Penal Code. In addition, it should be mentioned that in the former Yugoslavia each of its republics also had its own penal code which mainly contained the formulations of criminal offences which were under the jurisdiction of republics as constituent parts of the Yugoslav federation. But some of the criminal offences, for example all the criminal offences against humanity and international law (including Genocide, Article 141 of the former federal PC) were under federal jurisdiction.

The Slovenian penal code, which, as mentioned before, entered into force at the beginning of the year 1995, described genocide as a criminal offence in its Article 373, Paragraph 1, in a way similar to that of Article 141 of the former Yugoslav PC. The text reads as follows:

 

            ¨Genocide

            Article 373

(1)   Whoever, with the intention of destroying, in whole or in part, a national, ethnic, racial or religious group, gives orders to kill members of the group or inflict severe injury upon them, to cause serious bodily or mental harm to members of the group, to forcibly displace the population, to inflict on the group conditions of life calculates to bring about its physical destruction in whole or in part, to impose measures to prevent births within the group, or to forcibly transfer children of the group to another group, or whoever, with the same intention, commits any of the above acts, shall be sentenced to imprisonment for not less than ten years or to twenty years' imprisonment.¨

 

The only difference between the descriptionof genocide under the Slovenian PC and the one under Article 141 of the PC of the former Yugoslavia concerned the sentence. Under the PC of former Yugoslavia the sentence for criminal offences of genocide was at least five years imprisonment or even capital punishment. In this aspect PC of former Yugoslavia was, in comparison to the Slovenian PC, stricter.

In this context, it should be pointed out that there is no capital punishment in Slovenia. Under Article 17 of Constitution of the Republic of Slovenia, human life is inviolable and there shall be no capital punishment in this Republic.

Apart from that, a slight but by all means quite relevant difference between former Yugoslav and later Slovenian legislation, pertaining to genocide, does exist. Under Paragraph 2 of the Article 373 of the Slovenian PC, the possible victims on whom actions of genocide can be performed were now expanded to cover social or political groups as well. The text of Paragraph 2 of Article 373 reads as follows:

 

¨(2) The same punishment shall be imposed on whoever commits any of the acts under the previous paragraph against a social or political group.¨

 

The definition of genocide can be found in various documents of the international law, such as the United Nations' Convention on Prevention and Sentencing the Crime of Genocide (which was adopted in New York on September 9th, 1948), the Rome Statue of the International Criminal Court (from July 17, 1998), which has been ratified by Slovenian parliament on November 22, 2001. For instance, under Article 6 of the Rome Statue, actions of genocide can be taken against:

- national;

- ethnical;

- racial;

- religious

 

goups of people. Social and political groups are (in Rome Statue and, I think, also in other international documents pertaining to genocide) not mentioned as possible victims of genocide. When looking for reasons, one encounters the explanation that mentioning various social and political groups as possible victims of genocide in international documents and treaties would prevent some countries from adopting and joining those treaties. But in national legislations, like the Slovenian, legislative authority certainly can, in my opinion, expand the list of possible victims of genocide. There are other opinions as well: the radical ones pose the question whether mentioning social and political groups among potential victims of genocide and giving them the protection of Article 373 of the Slovenian Penal Code would be still in compliance with our constitution.

Since 1995, when Slovenian PC came into force (on January 1st) Article 373 on genocide was amended twice. Fort he first time in the year 1999 (PC-A), when the maximum sentence was extended from twenty to thirty years imprisonment, which is the longest duration of imprisonment under the Slovenian PC. And fort he second time in this year, when a new 3rd paragraph was added to the Article 373, which reads as follows:

 

¨(3) Whoever incites or calls fort he direct commission of criminal offences under this article shall be subject to the same penalty.¨

 

The whole text of amended Article 373 on genocide of Slovenian PC that entered into force on May 5, 2004 now reads as follows:

 

            ¨Genocide

            Article 373

(1)       Whoever, with the intention of destroying, in whole or in part, a national, ethnic, racial or religious group, gives orders to kill members of the group or inflict severe injury upon them, to cause serious bodily or mental harm to members of the group, to forcibly displace the population, to inflict on the group conditions of life calculates to bring about its physical destruction in whole or in part, to impose measures to prevent births within the group, or to forcibly transfer children of the group to another group, or whoever, with the same intention, commits any of the above acts, shall be sentenced to imprisonment for not less than ten years or to thirty years' imprisonment.

(2) The same punishment shall be imposed on whoever commits any of the acts under the previous paragraph against a social or political group.

(3) Whoever incites or calls fort he direct commision of criminal offences under this article shall be subject to the same penalty.¨

 

Article 6 of the Rome Statute (Genocide) reads as follows:

¨Article 6

Genocide

Fort he purpose of this Statute 'genocide' means any of the following acts commited with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:

 

a)      Killing members of the group;

b)     Causing serious bodily or mental harm to members of the group;

c)      Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part;

d)     Imposing measures intend to prevent births within the group;

e)      Forcibly transferring children of the group to another group.¨

When comparing the text of the Article 373 to the Slovenian Penal Code with the text of the Article of the Rome Statue one finds that the formulation of genocide bunder the Slovenian PC is practically in compliance with the definition given in the Rome Statue. Furthermore, the formulation of genocide in the Slovenian PC is enev wider; at least in view of possible victims of genocide where the Slovenian PC also includes social and political groups.

Before I conclude I would like to make just a few additional remarks on issues that I find important.

Statutes of limitation: pursuant to the Article 116 of Slovenian Penal Code statutes of limitation do not apply to criminal offences such as genocide and other criminal offences against humanity and international law. The kinds of offences that are listed in Article 116 of the present PC are the following:

- Genocide (Art. 373);

- Crime Against the Civilian Population (Art. 374);

- Crimes Against the Wounded And Sick (Art 375);

- War Crimes Against Prisoners of War (Art. 376);

- War Crimes of Use of Unlawful Weapons (Art. 377);

- Conscripting Persons Under 18 Years of Age (Art. 378).

 

For those kinds of criminal offences that are listed in Article 116 of the present PC and for others that might be stated as such within international law, criminal prosecution and the imposition of a sentence is possible regardless of statutes of limitations.

Conflicts with the Slovenian Constitution: The view has been expressed in the literature that the ¨ne bis in idem¨ principle of the Rome Statute (prohibition against double jeopardy) might be in conflict with the Constitution of the Republic of Slovenia. As a matter of fact however, the Rome Statute has already been adopted by Slovenian parliament (in December 2001) and through this act became part of our legislation. The problem is that Article 31 of Slovenian Constitution (Prohibition against Double Jeopardy) allows for no exceptions whatsoever. On the other hand, under Article 20 of the Rome Statute there are two exceptions to the ¨ne bis in idem¨ princile (paragraph3 (a) and (b)):

 

¨Article 20 (3)

No person who has been tried by another court for conduct also proscribed under Article 6,7 or 8 shall be tried by the Court with respect to the same conduct unless the proceedings in the other court:

a)      Were for the purpose of shielding the person concerned from criminal responsibility for crimes within the jurisdiction of the Court

b)     Otherwise were not conducted independently or impartially in accordance with the norms of due process recognized by international law and were conducted in a manner which, in the circumstances, was inconsistent with an intent to bring the person concerned to justice.¨

 

This provision might also be in conflict with Article 153 of the Constitution (an article on the Conformity of Legislative Measures), because Article 153 states that statutes, regulations and all other legislative measures must conform to the provisions of this Constitution.

Another issues that might not be in compliance with Article 27 of the Rome Statute are Articles 83, 100, 134 and 167 of The Constitution of the Republic of Slovenia.

Article 27 of the Rome Statute (Irrelevance of official capacity) states:

¨This Statute shall apply equally to all persons without any distinction based on official capacity. In particular, official capacity as a Head of State or Government, a member of a Government or parliament, an elected representative or a Government official shall in no case exempt a person from criminal responsibility under this Statute, nor shall it, in and of itself, constitute a ground for reduction of sentence. Immunities or special procedural rules, which may attach to the official capacity of a person, whether under national or international law, shall not bar the Court from exercising its jurisdiction over such a person.¨

Whereas the Constitution of the Republic of Slovenia provides exceptions regarding the immunity of Deputies of the National Assemby[1], Councillors of the National Council[2], Judges [3]and Judges of the Constitutional Court[4].

Let me conclude with the thought that inspite of the 10 day war in 1991, the people of Slovenia were lucky to have had no practical experience of genocide on their territory, unlike other parts of former Yugoslavia, for instance Kosovo, Croatia and especially Bosnia and Herzegovina. However, I do hope that our examination of the crime of genocide will contribute to the effort of constituting statutes that will provide equal rights and possibilities for all people regardless of colour, religion, gender, nationality, political opinion, and so forth.

 

TATJANA MARKELJ PEČEČNIK

[1] Article 83: ¨A Deputy of the National Assembly shall not be held liable under the criminal law for any opinion expressed or for any vote cast at any sitting of the National Assembly or of any of its Committees or duly constituted organs. A Deputy relying on such parliamentary immunity may not be arrested or detained, nor have aney criminal proceedings instituted against him, without the consent of the National Assembly, except where he has been found commiting a criminal offence for which a penalty of over five years goal is prescribed. The National Assembly may grant immunity to a Deputy notwithstanding that such immunity has not been claimed by him or notwithstanding that he has been found commiting criminal offence of the sort referred to in the last preceding paragraph.¨
[2] Article 100: ¨A Councillor of the National Council may not be simultaneously a Deputy of the National Assembly. Councillors of the National Council shall enjoy the same immunities as do Deputies of the National Assembly. The National Council shall determine Questions relating to the immunity of its Councillors.¨
[3]Article 134: ¨No person who takes part in the making of any judicial decision may be called to account for any opinion he has expressed in court in the course of reaching that decision. Where a judge is suspected of criminal activity in the discharge of his judicial duties and functions, he may not be detained, nor may any proceeding be instituted against him, save with permission of the National Assembly.¨
[4] Article 167: ¨Judges of the Constitutional Court shall enjoy the same immunities as are enjoyed by the Deputies of the National Assembly. Issues relating to such immunities shall be determined by the National Assembly.¨

Published:

Markelj T. 2005. The Criminal Law of Genocide. V Bohlander, M, ur. International Criminal Law Review 5, Volume 5, Issue 3. Koninklijke Brill NV, printed in the Netherlands. Str 343-350.