There are many examples of genocide in history. The definition itself was introduced into legislation in 1933. Then it meant committing an act of aggression against persons belonging to a specific ethnic, racial, religious group, as well as its historical and cultural values.
However, this was officially recognized as a crime only after World War II. The relevant legislative acts were signed by the UN.
The Criminal Code considers genocide a criminal offense in Article 357.
The definition of genocide under this article is as follows: actions that are aimed at the total or partial destruction of a national, ethnic, racial or religious group.
Among the methods of exterminating a people are not only murder and causing serious harm to health. Genocide will also be considered any action that is aimed at reducing the number of people: taking away children, any means of reducing the birth rate, creating unbearable living conditions.
Since 1946, genocide has been recognized as an international criminal crime. It refers to crimes of a special category of gravity, for which capital punishment is provided. And since most countries have abolished the death penalty, the maximum that a criminal faces is life imprisonment.
Composition of the crime, subject and object
Since there are several ways to commit such a crime, its composition may also vary. Thus, murder will have a material element of a crime, and coercion to give away one’s child somewhere will have a formal element.
The following are considered to be the general elements of a crime:
- Killing or causing serious harm to a group of people.
- Violent obstruction of the birth of children. These may be sets of laws that prohibit people from having more than one child, or from getting married; compulsory medical procedures that lead to termination of pregnancy and inability to conceive a baby.
- Forcing the transfer of children to other families who belong to a different ethnic, national, racial or religious group.
- Forced relocation, the creation of unbearable living conditions in places where a group of people have settled.
The object of the crime will be:
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- Race.
- Ethnic group.
- Nationality.
- Religion.
The objective side of the crime will include the commission of a crime against a national, ethnic, racial, or religious group.
An important point: a criminal act even against one person can be recognized as genocide if during the investigation it is established that such actions were intended against a group of people.
The subject of a crime can be any individual with legal capacity who has reached the age of 16. If a state is held responsible for such a crime, the case will be considered by the International Court of Justice.
Commentary to Art. 357 Criminal Code
1. The objective side of genocide is characterized by the commission of actions aimed at the complete or partial destruction of a national, ethnic, racial or religious group as such, by means specified in the law, adopted from the Convention on the Prevention and Punishment of the Crime of Genocide of December 9, 1948.
2. A national group is a historical community of people that takes shape during the formation of a common territory, economic ties, literary language, and some cultural and character features that constitute its characteristics.
An ethnic group is a historically emerged stable social group of people united by long-term cohabitation in a certain territory, a common language, culture and identity. Additional conditions may include common religion and racial proximity.
A racial group is recognized as a historically established group of people connected by a unity of origin, which is expressed in common hereditary morphological and physiological characteristics, varying within certain limits: the color of the skin, eyes and hair, the shape of the eyes, the structure of the eyelids, the outline of the head, etc.
A religious group is a group of people professing a common religion, i.e. belonging to the same religion.
3. The concept of murder is disclosed in Article 105 of the Criminal Code of the Russian Federation, the concept of causing grievous bodily harm - in Art. 111 of the Criminal Code.
Forcible prevention of childbearing consists of taking measures that can limit or completely stop the process of having children among members of the above groups (for example, forced sterilization or castration of people, forced termination of pregnancy, etc.).
Forced transfer of children is characterized by their illegal removal from their parents or persons replacing them, against their will, and transfer to other persons or placement in special children's institutions.
Forced relocation is the forced (against their will) movement of representatives of these groups from their place of permanent residence to another place.
Other creation of living conditions designed for the physical destruction of members of these groups may consist, for example, of contaminating the area, water supplies, prohibiting activities that are the main source of existence of the specified group of people, etc.
4. Genocide is recognized as a completed crime from the moment of committing actions aimed at the complete or partial destruction of a specified group of people, regardless of the consequences.
Judicial practice under the article
In modern judicial practice, there are very few cases specifically under the article of genocide. If there are cases where a detainee is accused of committing criminal acts against people united by a racial or religious component, he is charged with extremism
Among the latest known cases that exist in open judicial practice, in 2001, a mass murder of non-indigenous people was committed in the Chechen Republic.
Why does the court choose the article “extremism” and not “genocide”, even when there are signs of a second crime? This is also due to political reasons: recognition that such actions were committed on the territory of a state can lead to international conflicts, sanctions and even military action.
Genocide (Article 357 of the Criminal Code)
This rule directly follows from international law. The UN General Assembly declared back in 1946 in its Resolution 96 (I) that genocide is a crime that violates international law and is contrary to the spirit and purposes of the UN. The Convention on the Prevention and Punishment of the Crime of Genocide was adopted in 1948 and came into force in 1951.
The direct object of genocide is social relations that provide safe living conditions for national, ethnic, racial or religious groups. A national group of people is understood as a group of people associated with belonging to a particular nation, regardless of the territory of its residence. A nation is a historically established group of people, characterized by a common language, mental make-up and culture, territory of residence and other features of life and traditions. An ethnic group is a historically emerged type of stable social group of people, represented by a tribe, nationality, or nation. A racial group is a group of people characterized by a certain set of external characteristics (skin color, hair, eyes, etc.) and other historically established characteristics. A religious group is a community of people professing a corresponding religion that is different from the dominant one in a given society.
The objective side of the crime is characterized by actions aimed at the complete or partial destruction of a national, ethnic, racial or religious group in one of the forms provided for by law:
a) killing members of such a group;
b) causing serious harm to their health;
c) forcible obstruction of childbearing, i.e. taking measures that can limit or completely stop the birth of children among members of a national, ethnic, racial or religious group (for example, forced sterilization, castration, forced abortion, forced use of contraceptives, etc.);
d) forced transfer of children, i.e. forced removal from parents and transfer to members of another national, ethnic, racial or religious group;
e) forced relocation, i.e. forced movement of all or part of a group outside the territory of their residence;
f) other creation of living conditions calculated to lead to the physical destruction of group members.
The elements of the crime in question are formal
. It is considered completed at the moment of taking actions aimed at achieving the goals specified in the law, even if these goals were not achieved and the consequences are in the form of the destruction of a given group of people, the cessation of childbearing in their midst, etc. didn't come.
The subjective side of the crime is characterized by direct intent. The perpetrator realizes that he is committing actions aimed at destroying, in one of the forms listed by the legislator, an ethnic, national, racial or religious group of people, and wants to commit such actions. As part of the subjective side of genocide, the legislator included as a mandatory feature a special goal - the complete or partial destruction of a national, ethnic, racial or religious group. In the absence of such a goal, actions that objectively correspond to the elements of genocide cannot be qualified under Art. 357 CC. The presence of a goal of complete or partial destruction of a human group distinguishes genocide from some forms of the use of prohibited means and methods of warfare (Article 356 of the Criminal Code), as well as from some ordinary crimes (murder, intentional infliction of grievous bodily harm, etc.). However, it should be borne in mind that genocide also differs from the use of prohibited means and methods of warfare in that its commission is not related to the existence of a military conflict.
The subject of a crime can be any person over 16 years of age.
No deadline for forgiveness
Criminal cases under Article 357 of the Criminal Code of the Russian Federation “Genocide” have also been initiated regarding the murder of pupils of the Yeisk orphanage, the massacre of civilians in Karelia, Rostov, Oryol, Volgograd and Pskov regions. This is the result of the work of investigators, military doctors, historians, archivists and search engines. “For me personally, although I am a military historian, it was a discovery that our people were being traded,” said Elena Tsunaeva. — The facts of child trafficking are striking. We discovered that our citizens were driven to the territory of what is now the Kaliningrad region, where a whole network of labor concentration camps was organized, and bargaining took place there.”
There were many facts of genocide. There are still cases in the archives that have not been brought to trial: either the accused fled the territory of our country, or there is not enough evidence. During the search work they were collected.
However, the head of the search engines admits, this work did not end successfully everywhere. The fact is that archival materials, as a rule, are not localized. The terrain has changed, some concentration camps and execution sites are located in already built-up areas. But especially large burials were identified. And it became clear that the Investigative Committee and the Forensic Medical Examination should work in burial places of civilians. “Search engines, of course, are accustomed to their work and defend themselves psychologically, but all these barriers crumble when you see the remains of children,” Elena Tsunaeva lowers her voice. “In Zhestyanaya Gorka there were mothers with children in their arms, and if the mothers were shot, they simply finished off the children with rifle butts, without even wasting bullets. Yeisk orphanage. These children were unhealthy, but they were killed anyway. No search work was carried out here, but the investigation studied the materials and considered it possible to initiate a criminal case.”
“It was a discovery for me that our people were being trafficked”
Why is it so important to try and pass sentence 75 years after the Victory over Nazism? “A legal assessment of the actions of the occupiers, regardless of the statute of limitations, must be given,” Elena is convinced. — Yes, it’s not easy for lawyers to collect evidence, the accused are not in the dock, and those who could have acted as plaintiffs died. But there was genocide. And not only Jews and communists: he was without ethnic, ideological or age characteristics. People were killed simply because they were citizens of the USSR. Both the international community and our young people need to be reminded of this.”
