Genocide in Ukraine: problems of proof

Olena Garsymiv, S. Marko, Olena Ryashko
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Abstract

The article emphasizes that genocide was first criminalized immediately after the Second World War, precisely in 1948 when the UN General Assembly unanimously adopted the Convention on the Prevention of Genocide. In terms of severity, it is undoubtedly the most serious crime for both peacetime and wartime, and it is also the most difficult to prove. First of all, it is argued that in order to establish the very fact of genocide, it is necessary to have the intention to destroy, in whole or in part, any national, ethnic, racial or religious group, as well as for this destruction to be carried out by killing, inflicting grievous injuries, creating intolerable conditions life, prevention of childbirth or forced transfer of children to another group. The main focus of the article is on the fact that crimes against humanity most often occur during war. In order for the underlying crimes—such as murder, torture, extermination, sexual violence, and other acts—to qualify as crimes against humanity, they must be part of a widespread or systematic attack on civilians. Unfortunately, trials for genocide and crimes against humanity take forever. An example is the events in Srebrenica, proceedings in several genocide cases are still ongoing. Genocide, as well as crimes against humanity, are most clearly defined in legal terms in the Rome Statute of 1998, which became the foundational document of the International Criminal Court. Both crimes were also included in the criminal codes of many countries, the Criminal Code of Ukraine (Articles 442, 437) was not an exception. However, until now, there is no responsibility for crimes against humanity in national legislation. Therefore, currently the criminal actions of the combatants can only be qualified as war crimes. Many states have integrated the crime of genocide into national legislation, but not all have used the UN definition. Many states have also included crimes against humanity in their criminal codes. It is quite clear that both genocide and crimes against humanity are systematic crimes, to prove which it is not enough to confirm with evidence the commission of individual acts. Both crimes are committed within a system, often wide-ranging, and both contain elements that require proof of relevant intent or awareness on the part of the perpetrators, for example, in the case of genocide, by proving that the perpetrators knew of an express or implied plan.
乌克兰的种族灭绝:证据问题
文章强调,灭绝种族罪是在第二次世界大战后立即首次被定为刑事犯罪的,确切地说,是在 1948 年联合国大会一致通过《防止灭绝种族罪公约》时。就严重程度而言,种族灭绝无疑是和平时期和战争时期最严重的罪行,也是最难证明的罪行。首先,为了确定种族灭绝的事实本身,必须有全部或部分消灭任何民族、族裔、种族或宗教团体的意图,以及通过杀戮、造成严重伤害、创造无法忍受的生活条件、阻止生育或强迫将儿童转移到另一团体的方式实施这种消灭。这篇文章的重点在于危害人类罪通常发生在战争期间。为了使谋杀、酷刑、灭绝、性暴力和其他行为等基本罪行符合危害人类罪的定义,这些罪行必须是广泛或有系统地攻击平民的一部分。遗憾的是,对种族灭绝罪和反人类罪的审判需要耗费很长时间。斯雷布雷尼察事件就是一个例子,几起种族灭绝案件的诉讼程序仍在进行中。1998 年的《罗马规约》对种族灭绝罪和反人类罪做出了最明确的法律定义,该规约成为国际刑事法院的基础文件。这两种罪行也被纳入了许多国家的刑法,乌克兰刑法(第 442 条和第 437 条)也不例外。然而,直到现在,国家立法中还没有危害人类罪的责任。因此,目前只能将战斗人员的犯罪行为定性为战争罪。许多国家已将种族灭绝罪纳入国家立法,但并非所有国家都采用了联合国的定义。许多国家还将危害人类罪纳入刑法。很明显,种族灭绝罪和危害人类罪都是系统性犯罪,要证明这一点,仅凭证据证实实施了个别行为是不够的。这两种罪行都是在一个系统内实施的,往往涉及面很广,而且这两种罪行都包含需要证明行为人有相关意图或意识的要素,例如,在灭绝种族罪中,需要证明行为人知道一个明示或暗示的计划。
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