War Crimes in the Criminal Code of Lithuania: Conformity with International Treaties
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Abstract
Lithuania is a party to major international treaties regulating war crimes, including Four Geneva Conventions of 1949 and its Two Additional Protocols of 1977 as well as Rome Statute of International Criminal Court. Chapter XV of Lithuanian Criminal Code (LCC) lists twelve definitions of war crimes, including those that correspond to the grave breaches of Geneva Conventions as well as other customary law offences. However, there are certain problems regarding the definitions of crimes in LCC and its conformity with international law and especially Rome Statute.
First of all, LCC does not include any war crime committed during non-international armed conflict. It is a major gap in Lithuanian criminal law system because of three reasons: first, the article 8 of the Rome Statute clearly points out for certain crimes committed during non-international armed conflict; second, a number of Lithuanian military personnel is serving in international missions where the situation sometimes might be very close to an armed conflicts of non-international character; third, it might pose problems regarding principle nullum crimen sine lege in the case of cooperation with International Criminal Court. This gap shall be removed as soon as possible.
Secondly, LCC lacks the implementation of the command responsibility doctrine. It is unclear whether the military officer or commander could be held criminally responsible for the crimes defined in LCC according to command responsibility doctrine. Only in some articles of LCC an order to commit a crime as a form of actus reus is established and there are not enough arguments whether it is possible to treat such an order as a form of complicity in the definitions where the order as a form of actus reus is missing. Omission in prevention or repression of war crimes is missed as well.
Thirdly, a number of definitions, provided in LCC are not in conformity with the same definitions provided in international sources, e.g. the definitions of „shipwrecked”, „rape”, „protected emblem (sign)“ is much more narrow or simply ill-defined in comparison with international sources. Special problems concern „annexation”, because this definition is included as precondition to the commitment of the war crime („during occupation or annexation“ (emph. added)) due to historical reasons. However, International Court of Justice in the advisory opinion „Legal Consequences Of The Construction Of A Wall In The Occupied Palestinian Territory“ stated that the annexation does not changes situation of occupied territory so there is no need in LCC to stress annexation as an independent element of corpus delicti.
The author comes with motivated proposals how the definitions of war crimes in LCC shall be altered and amended.
First of all, LCC does not include any war crime committed during non-international armed conflict. It is a major gap in Lithuanian criminal law system because of three reasons: first, the article 8 of the Rome Statute clearly points out for certain crimes committed during non-international armed conflict; second, a number of Lithuanian military personnel is serving in international missions where the situation sometimes might be very close to an armed conflicts of non-international character; third, it might pose problems regarding principle nullum crimen sine lege in the case of cooperation with International Criminal Court. This gap shall be removed as soon as possible.
Secondly, LCC lacks the implementation of the command responsibility doctrine. It is unclear whether the military officer or commander could be held criminally responsible for the crimes defined in LCC according to command responsibility doctrine. Only in some articles of LCC an order to commit a crime as a form of actus reus is established and there are not enough arguments whether it is possible to treat such an order as a form of complicity in the definitions where the order as a form of actus reus is missing. Omission in prevention or repression of war crimes is missed as well.
Thirdly, a number of definitions, provided in LCC are not in conformity with the same definitions provided in international sources, e.g. the definitions of „shipwrecked”, „rape”, „protected emblem (sign)“ is much more narrow or simply ill-defined in comparison with international sources. Special problems concern „annexation”, because this definition is included as precondition to the commitment of the war crime („during occupation or annexation“ (emph. added)) due to historical reasons. However, International Court of Justice in the advisory opinion „Legal Consequences Of The Construction Of A Wall In The Occupied Palestinian Territory“ stated that the annexation does not changes situation of occupied territory so there is no need in LCC to stress annexation as an independent element of corpus delicti.
The author comes with motivated proposals how the definitions of war crimes in LCC shall be altered and amended.
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