The Problem of International Recognition of International Crimes and Crimes Committed under USSR Occupation
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Abstract
Definition of international crime is still a question of serious considerations. First of all, there is no unified source of international law that provides for such a definition. The only source where such an attempt was made was an intermediate edition (1996) of Draft Articles on State Responsibility prepared by UN International Law Commission. This source in Article 19 provides for three basic features of International crime: First, an internationally wrongful act which results from the breach by a State of an international obligation; second, international obligation is so essential for the protection of fundamental interests of the international community that its breach (third) is recognised as a crime by that community as a whole.
The most problematic is the third feature, i.e. how this recognition shall be verified? Could we apply the analogy of jus cogens or should we recognise only explicit recognition by the states or international institutions (UN Security Council, International Court of Justice, etc.?).
After review of the state practice it becomes clear that the recognition of international crime is more political than le- gal issue. It is peculiarly clear while comparing the international condemnation of two major totalitarian regimes: nazi Germany and communist Soviet Union. Nuremberg Tribunal universally condemned the crimes committed by Nazis in 1945, however crimes of Soviet Union have received only limited, episodic international recognition.
On the other hand, different sources of international law dealing with individual criminal responsibility for international crimes never provides for recognition criteria. State practice, particularly Pinochet case clearly shows that such a recognition is not necessary. Therefore, international recognition is useful, but not obligatory instrument in order to prosecute person responsible for international crime.
Nevertheless, the failures of Lithuanian law enforcement institutions to bring to justice persons, responsible for the crimes, committed under USSR occupation (Nacham Dušanski, Piotr Raslan cases) clearly show that insufficient recognition is a serious obstacle for international cooperation. Moreover, additional obstacles are caused by inadequacies of Lithuanian legal system, particularly, extended definition of genocide in Lithuanian criminal code, political decision to treat most of the crimes committed by soviet repression structures as genocide.
The most problematic is the third feature, i.e. how this recognition shall be verified? Could we apply the analogy of jus cogens or should we recognise only explicit recognition by the states or international institutions (UN Security Council, International Court of Justice, etc.?).
After review of the state practice it becomes clear that the recognition of international crime is more political than le- gal issue. It is peculiarly clear while comparing the international condemnation of two major totalitarian regimes: nazi Germany and communist Soviet Union. Nuremberg Tribunal universally condemned the crimes committed by Nazis in 1945, however crimes of Soviet Union have received only limited, episodic international recognition.
On the other hand, different sources of international law dealing with individual criminal responsibility for international crimes never provides for recognition criteria. State practice, particularly Pinochet case clearly shows that such a recognition is not necessary. Therefore, international recognition is useful, but not obligatory instrument in order to prosecute person responsible for international crime.
Nevertheless, the failures of Lithuanian law enforcement institutions to bring to justice persons, responsible for the crimes, committed under USSR occupation (Nacham Dušanski, Piotr Raslan cases) clearly show that insufficient recognition is a serious obstacle for international cooperation. Moreover, additional obstacles are caused by inadequacies of Lithuanian legal system, particularly, extended definition of genocide in Lithuanian criminal code, political decision to treat most of the crimes committed by soviet repression structures as genocide.
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Please see Copyright and Licence Agreement for further details.
