Nusikaltimų žmoniškumui sąvokos raida tarptautinės baudžiamosios teisės šaltiniuose

Abstract

Crimes against Humanity is one of the most dynamic categories in the International Criminal Law since it first appearance in the Charter of Nuremberg Military Tribunal in 1945 as an outgrowth of the war crimes. The concept of crimes against humanity in the Charter of Nuremberg Military Tribunal may be characterised by the following elements: crimes shall be carried out towards any civilian population, crimes can be carried out by the civil or military officers or actual agents of the state (policy element), crimes may be committed during the war or in peace time however such crimes requires conjunction with war crimes or crimes against peace. The concept of the crimes against humanity in later sources has developed steadily towards overall protection of fundamental human rights of civil population. First way of development concerns the elements and qualification criteria. First of all the conjunction between crimes against humanity and war crimes has been eliminated. It made crimes against humanity as an independent criminal category. Said development has been affirmed by the Rome Statute of International Criminal Court and were reflected in the Statute of International Criminal Tribunal for the Rwanda (ICTR) and UN Draft Code of Offences Against Peace and Security of Mankind. The jurisprudence of International Criminal Tribunal for the former Yugoslavia (ICTY) has significantly amended the element of policy. It was established that crimes against humanity may be carried out by the organisation or political group which controls territory and performs civil, military, politic administration de facto as well. The United Nations Draft Code of the Offences Against Peace and Security of Mankind in 1991 has introduced two alternative qualification criteria: requirement of large scale or systematic actions. Large scale (or widespread) criteria has been introduced in order to eliminate an isolated inhumane act committed by a perpetrator acting on his own initiative and directed against a single or couple of victims. According to the said criteria crimes against humanity may be committed only as an massive, frequent, large scale action carried out collectively with considerable seriousness directed against multiplicity of victims. Systematic criteria means that crimes against humanity shall be result of systematic actions as a thoroughly organised and following a regular pattern on the basis of a common policy involving substantial public or private resources. These alternative criteria has been affirmed in all the latter than Nuremberg Charter legal instruments on crimes against humanity with except to Statute of ICTY. The Rome statute has moved towards further extension of said criteria defining the term of the directed attack as an act against population (i.e. multiplicity of victims). This means that some degree of systematisation (direction) and scale (population) is required as an conjunctive elements and only later the alternative criteria of systematisation or wide spread actions shall be applied. The second direction of development of the concept of the crimes against humanity was the list of the specific crimes. The list of specific crimes was growing steadily within any new source defining crimes against humanity. The list of specific crimes has been especially extended in the 1996 edition of UN Code of Offences against Peace and Security of Mankind and Rome statute, including detalisation on sexual violence, crime of apartheid and crime of forced disappearance of persons with the additional comments. An non–exhaustive enumeration of specific crimes has been established in the Rome statute using the term of ¥other in humane acts of similar character“.