The application of retroactive force of the criminal law in relation to the crime of genocide: international and national aspects

Bagandova Leila Zakirovna ORCID: 0000-0001-5060-9015 Junior Researcher of the Scientific and Organizational Department of the Institute of State and Law of the Russian Academy of Sciences 119019, Russia, Moscow, Moscow, Znamenka str., 10, room 207 leyla.bagandova@mail.ru Other publications by this author

After the Second World War, a number of acts in international law received the status of international crimes. Jurisdiction over such acts has been extended to each State, even if they do not involve the geographical boundaries of a particular State. At the same time, the issue of the dependence of criminal liability for the commission of international crimes in accordance with national legislation on the time of its commission remains not fully defined.

The effect of criminal law over time is an issue that law enforcement officials are acutely faced with when it comes to life, human health, as well as the peace and security of mankind. The prohibition of retroactive force of the law stems from the era of Roman law, when the principle of nullum crimen sine lege was the basis of legislation. This principle later became the basis for the formation of the Anglo-Saxon legal system, being enshrined first in the Magna Carta of 1215, and then in the Bill of Rights of 1689, although in practice the case law typical of common law countries does not imply strict observance of the principles of non-retroactivity of the law ^{[6, C. 24]}. Thus, in 1991, the UK adopted the War Crimes Act, according to which persons who were not British citizens or residents at that time, but later acquired the appropriate status, can be tried for crimes committed in Nazi Germany or in German-occupied territory during World War II (War Crimes Act 1991 United Kingdom of Great Britain and Northern). One of the types of crimes, the issue of the use of retroactive force, to which remains unresolved, are crimes against the peace and security of mankind, in particular genocide.

According to the norms of Russian criminal law, the criminal law in force at the time of the commission of such a crime applies to the committed crime. As a general rule, the retroactive effect of the application of the criminal law is not allowed, except in cases where the new criminal law decriminalizes the act, mitigates the punishment or otherwise improves the situation of the person who committed the crime. The norm on genocide was introduced into the Criminal Code of the Russian Federation (hereinafter – the Criminal Code of the Russian Federation) in 1996, its content was almost completely identical to the conventional norm ^{[3, pp. 1287-1289]}. The principle of universal jurisdiction applies to this type of crime, which does not exclude the possibility of national courts to consider themselves competent to rule on those responsible for acts of genocide, even if this act was committed not on the territory of the State concerned and not by its citizen. This means that article 357 of the Criminal Code of the Russian Federation can also be applied to acts containing signs of genocide and committed outside the Russian Federation by foreign citizens and stateless persons. Part 5 of Article 77 of the Criminal Code states that the statute of limitations does not apply to the crime of genocide.

The relevance of the consideration of this issue is due to the fact that on the issue of retroactive force of the criminal law in relation to crimes against the peace and security of mankind, which include genocide, criminal legislation does not provide explanations, and the problem itself is reflected in a few scientific papers. Thus, such scientists as A.N. Savenkov, A.A. Tunyan, T.G. Yezhova, N.N. Polyansky, S.M. Kochoi were engaged in highlighting the genocide and making this crime retroactive within the framework of criminal legislation. The courts make decisions defining the massacres and violence against the civilian population during the Great Patriotic War as genocide. Thus, the Smolensk Regional Court recognized the mass killings and forced displacement of civilians and prisoners of war committed in this territory by the fascist invaders in 1941-1943 as a fact of genocide ("The Court recognized the mass killings of the population of the Smolensk region during the Second World War as genocide. URL: https://tass.ru/proisshestviya/18309343»). The Moscow Regional Court recognized crimes against the civilian population of the Moscow region as genocide, where the number of victims during the occupation of 1941-1942 amounted to 26 thousand people ("The court recognized the actions of the Nazis in the Moscow region during the occupation as genocide." URL: https://ria.ru/20230724/genotsid-1885977577.html). The investigative authorities are also working to identify the facts of genocide and initiate criminal cases in connection with the revealed circumstances: a former SS Galicia serviceman was charged in absentia with committing genocide of the civilian population of the Ukrainian SSR ("GSU SK: nationalist Gunko was charged in absentia with genocide." URL: https://rapsi-pravo.ru/incident_news/20231020/309321430.html).

Historically, the issue of convicting war criminals after they had committed previously non-criminalized acts dates back to the Middle Ages. Thus, in 1268, King Conradin of Jerusalem and Sicily was executed for unleashing an unjust war, "which became the first known precedent of criminal sanctions" ^{[9, C. 23]}. Later, the issue of creating an international court to condemn war crimes was raised more than once, for example, in 1872 after the Franco-Prussian war, but this proposal at that time turned out to be clearly inconsistent with the historical and legal development of society, and therefore it remained exclusively doctrinal. The turning point in the formation of international law and international criminal justice was the First World War, which ended with the signing of the Versailles Peace Treaty. Its provisions provided for the creation of an international court to convict persons who committed acts contrary to the laws and customs of war ^{[2, C. 1098-1106]}. The process, however, was delayed and did not bring results due to the decision of the Netherlands not to extradite the German Kaiser.

In the future, hopes for the development of legislation on war crimes were pinned on the League of Nations, while the Geneva Protocol, developed by its participants, prohibiting conflict resolution by waging war, did not enter into force due to a number of political events taking place in European countries. The next serious attempt to create an international court of justice was the First International congress on criminal law, whose issues would include "cases of crimes of the international order and universal/universal rights of nations" ^{[9, C. 30]}. In this draft, almost no attention was paid to the characteristics of the powers of the court, a clearer regulation of the range of acts that may be the subject of consideration, as well as procedural issues and guarantees, and therefore it also did not receive its practical implementation.

Discussing the possibility of retroactive application of norms on international crimes, it seems necessary to refer to the process where the idea of individual criminal liability for war crimes within the framework of international law was first implemented – the Nuremberg Tribunal. The fact of its creation, the grounds for its functioning, and the text of the Charter have given rise to many discussions that this is a kind of precedent for the retroactive effect of criminal law. As a result, the following position was developed: giving retroactive effect to international legal and criminal law norms in relation to Nazi criminals for their crimes committed during World War II is justified and does not constitute a deviation from the norms of international law. The description of the genocide was also considered during the Nuremberg trials, but the term "genocide" itself is missing from the verdict of the International Military Tribunal for the European Axis countries. Y.G. Barsegov adheres to the point of view that the documents following the results of the Tribunal meant exactly the crime that later became called genocide, and this cannot be questioned ^[4]. N.N. Polyansky wrote that "the provision that the criminal law cannot be retroactive does not have absolute significance at all. It ceases to be valid when the legislator finds it necessary, for one or another exceptional reason, to cancel it. In the field of international relations, where the law gives way to a treaty, a treaty or agreement can do this" ^{[8, C. 12]}. I.I. Lukashuk, on the contrary, wrote that the functioning of the Nuremberg Tribunal is a violation of the principles of "nullum crimen sine lege" "at least with regard to the responsibility of individuals for crimes against peace The powers that signed the London Agreement created new ones rather than applied existing norms of law" ^{[7, pp. 258-259]}.

The crimes of which the Nazis were accused were certainly violations of international humanitarian law, in particular, these acts were crimes under the national legislation of a number of States. Thus, by decree of the Presidium of the Supreme Soviet of the USSR, it was established that murders and tortures of the civilian Soviet population are crimes for which "fascist villains" will be punished with the death penalty (Decree of the Presidium of the Supreme Soviet of the USSR dated 04/19/1943 No. 39 "On punishments for Nazi villains guilty of murders and tortures of the Soviet civilian population and captured Red Army soldiers, for spies, traitors to the motherland from among Soviet citizens and for their accomplices").  Such acts were committed within the framework of the aggressive war unleashed by Germany. The fact of the criminality of these acts was realized by the Nazis. In this regard, the retroactive force of the law in this case is a mechanism for bringing perpetrators to justice and applying specific criminal sanctions. Given the gravity of what the Nazis did, this deviation from the principle of prohibition of retroactive force of law is justified.

For the first time in legal practice, the term "genocide" was enshrined in the 1948 UN Convention on the Prevention and Punishment of the Crime of Genocide (hereinafter referred to as the 1948 Convention), which states that genocide refers to actions committed with the intention to destroy in whole or in part any national, ethnic, racial or religious group as such, namely:

? killing members of such a group, causing serious bodily injury or mental distress to members of such a group;

? the deliberate creation of such living conditions for any group that are designed to completely or partially physically destroy it; measures designed to prevent childbearing in the environment of such a group;

? Forcible transfer of children from one human group to another (Convention on the Prevention and Punishment of the Crime of Genocide, preamble, Jan. 12, 1951, 78 U.N.T.S. 277.).

The question of the possibility of giving retroactive effect to the Convention first arose when discussing the atrocities committed against the Armenian population in the Ottoman Empire in 1915. The British government then expressed the view that "the 1948 UN Genocide Convention, which in any case has no retrospective application, was developed in response to the Holocaust, and although the term can be applied to tragedies that occurred after the Holocaust, such as Rwanda, it cannot be applied retrospectively."" (Parliamentary Question Background Document relating to a written question from Lord Buffen tabled on 23 January 2001 - Draft response for Baroness Scotland, cited in Geoffrey Robertson, was there an Armenian genocide?). The British government supported the same position in 2007, stating: "It is not customary in jurisprudence to apply judicial decisions retrospectively" (HMG's position on the Armenian Genocide Claims, Memorandum from the Russia, South Caucasus and Central Asia Directorate, FCO to Mr. Murphy, (July 2, 2007), cited in ROBERTSON, supra note 5, at 35).

In our opinion, we should refer to the 1969 Vienna Convention on the Law of Treaties (hereinafter referred to as the 1969 Convention), according to which the provisions of the treaty are not binding on its parties in respect of events that occurred before the date of entry into force of such a treaty, unless otherwise provided by the international treaty itself (Article 28 of the Vienna Convention on Law The text of the Convention itself contains a direct prohibition on making it retroactive and specifically states that its provisions apply only to those treaties concluded by States after its entry into force (art. 4). Based on this, it can be concluded that the prohibition on retroactive force of conventions and other international acts adopted before 1969 do not apply. Consequently, the prohibition on retroactive application of the Convention against Genocide at the international level is not fixed anywhere, and there is also nothing in the text of the Convention itself that would indicate that it cannot be applied retrospectively.

The Genocide Convention is a widely ratified multilateral treaty that, at least in some respects, is recognized as either confirming, codifying, or declaring the norms and principles of customary international law. In its advisory opinion on reservations to the Genocide Convention, issued in 1951, the International Court of Justice stated that the purpose of the United Nations was to condemn genocide and punish it as a "crime under international law", which shocks the conscience of mankind and leads to great losses and which contradicts the moral law and the spirit and goals of the Organization The United Nations." The preamble of the Convention also states that "in all periods of history, genocide has caused great losses to humanity." Obviously, these words are intended to apply to the events preceding January 11, 1951. The preamble to a treaty is considered to be part of its context for the purposes of interpreting the treaty in accordance with the article.

The European Court of Human Rights has repeatedly spoken out about the retroactive effect of acts containing signs of genocide. In the Vasiliauskas v. Lithuania case, where Lithuania requested that the extermination of Lithuanian partisans in 1951-1953 be recognized as a fact of genocide, the ECHR found that at the time of the crime, Lithuanian legislation did not contain a norm prohibiting genocide. International legislation (the 1948 Convention) already existed, and only because of the fact that there was no term "political group", to which Lithuania counted partisans, among the victims of the crime of genocide under the Convention, Vasiliauskas was wrongfully convicted, which is a violation of Part 2 of Article 7 of the European Convention on Human Rights (hereinafter ? ECHR) (ECHR Ruling of 10/20/2015 "The case of Vasiliauskas v. Lithuania" (complaint No. 35343/05)). Otherwise, the appeal to the norms of the 1948 Convention of the ECHR was not recognized as incorrect.

In the Kononov v. Latvia case, the European Court assessed the burning of a pregnant woman committed by citizen Kononov in 1944 as a war crime under the provisions of the Geneva Convention of 1949, a document that appeared much later than the committed act (the Decision of the Grand Chamber in the Kononov v. Latvia case of May 17, 2010, Complaint No. 36376/04). At the time of the commission of the act in question, there were no norms in international humanitarian law on individual responsibility for such actions, respectively, there were no norms on criminal liability for their commission. In this regard, the Latvian courts, qualifying Kononov's actions, used the Geneva Conventions of 1949, the Additional Protocols thereto of 1977 and the Convention on the Non-Applicability of Limitation Periods to War Crimes and Crimes against Humanity of 1968. The courts justified the possibility of retrospective application of these conventions by Latvian legislation adopted in 1993. A. I. Kovler, analyzing the controversial decision, does not support the position of the ECHR, calls it a biased interpretation, arguing with the prescriptions of Article 7 of the ECHR ("Judge from the Russian Federation: review of the Kononov case in the Strasbourg Court is impossible." URL: https://rapsinews.ru/international_news/20110415/252249923.html).

It is noteworthy that before the European Court took a different position and in the Ruling in the case "Korbey v. Hungary" noted that "the case did not show the possibility of foreseeing that the applicant's actions constitute a crime against humanity under international law. As a result, the authorities of the respondent State violated the requirement of article 7 of the Convention in the case," while the actions attributed to Corbey took place in 1956, after the adoption of the Geneva Convention, the Convention on the Prevention of the Crime of Genocide and Other International Acts.

The claim that the Convention can be applied retrospectively is still controversial in doctrine. Thus, A. A. Tunyan and T. G. Yezhova believe that the norms of the Convention are retroactive, and this follows from the Convention on the Inapplicability of the Statute of Limitations to War Crimes and Crimes against Humanity, which states that the crimes of genocide must be punished regardless of the moment of commission ^{[10, pp. 18-19]}. It seems, however, that the authors have changed the subject of the discussion. Indeed, the inapplicability of the statute of limitations to crimes against the peace and security of mankind was established in the UN Convention on the Inapplicability of the Statute of Limitations to War Crimes and Crimes against Humanity of 1968 (United Nations Convention on the Inapplicability of the Statute of Limitations to War Crimes and Crimes against Humanity of 11/26/1968) and in the European Convention on the Inapplicability of the Statute of Limitations crimes against humanity and War Crimes of 1974 (European Convention on the Inapplicability of the Statute of Limitations to Crimes against Humanity and War Crimes of 1974), while we believe that the concepts of "no statute of limitations" and "retroactive effect" are not identical. The absence of a statute of limitations for a crime means that a person can be prosecuted regardless of the time that has elapsed since its commission. It is important to note that such a crime is a single simple one, criminalized within the framework of current criminal legislation. The retroactive force of a criminal law is understood to mean a different situation when the possibility of the operation of this criminal law in relation to events that occurred before the entry into force of this criminal law is considered.  Therefore, the argument in favor of the possibility of using retroactive force with reference to the non-proliferation of limitation periods would be valid if these crimes were of a continuing nature, since in this case there would be a continuous implementation of the corpus delicti.

The opposite position is taken by S.M. Kochoi. He believes that "attempts to classify the extermination of national or religious groups as genocide today, which took place long before its adoption, before the very concept of "genocide" appeared in international law ... are unlawful (especially since the Convention has no retroactive effect). These facts must be qualified according to the laws in force at the time of their commission, and, undoubtedly, condemned by the world community" ^{[5, pp. 95-96]}.

In our opinion, the problem of making the criminal law retroactive in relation to international crimes, in particular genocide, arises primarily because of the competition of the principles of criminal law: justice and legality. The prohibition of retroactive force directly follows from the principle of legality, it is one of the corpuscles of the core principle of the rule of law ^{[1, C. 7-13]}. From the point of view of this principle, the law cannot be violated if, at the time of its commission, the act was considered inviolable. In this case, the doctrine of Kelsen seems interesting, who expressed a position on the correctness of applying a retroactive approach to crimes that threaten the peace and security of mankind. In his opinion, there are several types of retroactive norms: the new norm criminalizes an act that was not previously condemned and was considered unapproachable, and the new norm, on the contrary, establishes responsibility for committing an act contrary to morality and stricter higher norms. In the case of international crimes, for which senior German officials were convicted, the second type of retroactive norm is objectively applied ^{[11, pp. 541-544]}. Therefore, the principle of legality in this case may be limited by the principle of justice.

Based on the considered provisions of international acts concerning both general issues of their application and special ones – specifically on aspects of international crimes and genocide, in particular, it can be concluded that the application of the Genocide Convention is not retrospectively prohibited, this is not hindered by international legal instruments. At the same time, however, it seems correct to normalize the relevant provision in national criminal legislation, in particular, in article 10 of the Criminal Code of the Russian Federation, which would indicate the possibility of applying the retroactive force of criminal law in relation to crimes against the peace and security of mankind. Expanding the definition of this rule would also simplify criminal procedural activities in the context of initiating criminal cases on these circumstances and their investigation. The establishment of the fact of genocide is not just a formal legal requirement, but also a requirement of justice and duty of remembrance towards the defenders of the Fatherland, as well as future generations. In the context of a difficult international political situation, manipulating public opinion, the recognition of the genocide will contribute to the protection of historical truth, which is the most important heritage of mankind.