Гуманитарные и юридические исследования (Sep 2021)
EXECUTION OF AN ORDER IN THE COMMISSION OF WAR CRIMES: ON THE USE OF INTERNATIONAL EXPERIENCE IN RUSSIAN CRIMINAL LAW
Abstract
The authors underline that the greatest difficulties in understanding and applying the rule on the execution of an order arise when establishing the fact that the executor of the order understood the illegal nature of the latter. As we know the execution of orders is important for the functioning of state institutions and organizations, originally built on the principle of one-man management (army, navy, other legitimate armed groups, police and other law enforcement agencies). According to article 42 of the Russian Criminal Code the performer who refused to execute the illegal order is exempted from criminal liability. The legal «roots» of the execution of the order as a circumstance that excludes the crime of an act under national law are «rooted» in the provisions of international law -first of all, in the materials of the «Nuremberg Legacy». The Statute of the Nuremberg Tribunal and its Verdict for the irst time formulated a generally binding rule that the exe- cution of a criminal order does not exempt the performer from criminal liability, although it can be regarded as a mitigation sentence. This imperative order was later duplicated in many key documents of international law and national criminal law. The authors note that among such acts of international law, the Charter of the International Tribunal for the Former Yugoslavia and the Charter of the International Tribunal for Rwanda are valid for Russia. During the functioning of the international tribunals for the former Yugoslavia and Rwanda, their decisions formulated special rules for establishing limits on criminal liability for crimes committed pursuant to an order. And this experience should be used in the application of the relevant norms of national criminal law, in particular - in the application of article 356 of the Russian Criminal Code on prohibited methods and means of warfare. This circumstance is very important due to the fact that the Investigative Committee of Russia initiated a number of criminal cases on the commission of war crimes during the civil armed conflict in Eastern Ukraine. Based on the decisions of international tribunals for the former Yugoslavia and Rwanda, which are valid for Russia, the article deines a list of acts considered war crimes and falling within the scope of article 356 of the Russian Criminal Code, in respect of which a reference to the execution of an order cannot be recognized as acceptable. The crime of such acts is always recognized as obvious to the performer. Accordingly the provisions of article 42 of the Russian Criminal Code in the situation of committing any of these acts cannot be applied initially.
