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Soviet Criminal Legislation in Implementation of the Hague and Geneva Conventions Relating to the Rules of Land Warfare

Published online by Cambridge University Press:  28 March 2017

Bernard A. Ramundo Jagc
Bernard A. Ramundo Jagc*
Affiliation:
Foreign Law Branch, International Affairs Division, Office of the Judge Advocate General of the Army
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Extract

On April 23, 1954, the Supreme Soviet of the Union of Soviet Socialist Republics ratified the Geneva Conventions of 1949 with reservations not here pertinent.

Type
Research Article
Information
American Journal of International Law , Volume 57 , Issue 1 , January 1963 , pp. 73 - 84
Copyright
Copyright © American Society of International Law 1963

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References

1 The Geneva Convention Relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 U. S. Treaties 3316; T.I.A.S., No. 3364 (referred to herein as the Geneva Prisoner of War Convention); the Geneva Convention Eelative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 U. S. Treaties 3516; T.I.A.S., No. 3365(referred to herein as the Geneva Civilian Convention); the Geneva Convention for theAmelioration of the Condition of the Wounded and Sick in Armed Forces in the Field,Aug. 12, 1949, 6 IT. S. Treaties 3114; T.I.A.S., No. 3362 (referred to herein as theGeneva Wounded and Sick Convention); and the Geneva Convention for the Ameliorationof the Condition of the Wounded, Sick, and Shipwrecked Members of Armed Forces atSea, Aug. 12, 1949, 6 V. S. Treaties 3217; T.I.A.S., No. 3363 (referred to herein asthe Geneva Wounded and Sick Convention, Sea).

2 Sbornik Deistvuiushchikh Dogovorov, Soglashenii i Konventsii, Zakliuchennykh SSSRs Inostrannymi Gosudarstvami [Collection of Treaties, Agreements and Conventions ofthe TJ.S.S.E. in Force with Foreign States] 71-280 (16th issue, Moscow, 1957).

3 Arts. 129 and 130 of the Geneva Prisoner of War Convention; Arts. 146 and 147 of the Geneva Civilian Convention; Arts. 49 and 50 of the Geneva Wounded and Sick Convention; and Arts. 50 and 51 of the Geneva Wounded and Sick Convention, Sea.

4 “Grave breaches” are generally defined as “willful killing, torture or inhuman treatment, including biological experiments, willfully causing great suffering or seriousinjury to body or health, and extensive destruction and appropriation of property notjustified by military necessity and carried out unlawfully and wantonly” (Arts. 50and 51 of the Geneva Wounded and Sick Convention and Geneva Wounded and SickConvention, Sea, respectively); “willful killing, torture or inhuman treatment, includingbiological experiments, willfully causing great suffering or serious injury to bodyor health, compelling a prisoner of war to serve in the forces of the hostile power, orwillfully depriving a prisoner of war of the rights of fair and regular trial prescribedin this convention” (Art. 130, Geneva Prisoner of War Convention); and “willfulkilling, torture or inhuman treatment, including biological experiments, willfully causinggreat suffering or serious injury to body or health, unlawful deportation or transferor unlawful confinement of a protected person, compelling a protected person to serve inthe forces of a hostile power, or willfully depriving a protected person of the rights offair and regular trial prescribed in the present Convention, taking of hostages andextensive destruction and appropriation of property not justified by military necessityand carried out unlawfully and wantonly” (Art. 147, Geneva Civilian Convention).

5 See Ugolovnyi Kodeks, RSFSR [Criminal Code, R.S.F.S.R.] (Moscow, 1960).

6 The Law on Criminal Responsibility for Military Crimes (referred to herein as the Law of Dec. 25, 1958). A translation of this law may be found in Highlights of Current Legislation and Activities in Mid-Europe, Library of Congress Mid-EuropeanLaw Project, Vol. VII, Nos. 2 and 3 (February and March, 1959), pp. 58-67.

7 Nauchno-Prakticheskii Kommentarii k Zakonu ob Ugolovnoi Otvetstvennosti za Voinskie Prestupleniia [Scientific and Practical Commentary on the Law of CriminalResponsibility for Military Crimes] 101-108 (Major General of Justice, A. G. Gornyi,Chief Military Procurator, ed., Moscow, 2d ed., 1961). Arts. 29-33, Law of December25, 1958 (translated in Highlights, op. cit. 66-67), read as follows:“

“See. 29. Crimes of servicemen taken prisoners of war.

a) The voluntary participation by a serviceman, held as a prisoner of war by theenemy, in works of war significance or in any project which he knows may result inprejudice to the Soviet Union or its Allies, if it lacks the elements of treason againstone's country, shall be punished by confinement for from three to ten years.

b) Violence to fellow prisoners of war or cruel treatment of them, if committed bya prisoner in the position of a superior, shall be punished by confinement for from three to ten years.

c) The commission by a serviceman who is a prisoner of war of acts intended toharm other prisoners of war, for mercenary motives or in order to secure benevolenttreatment for himself by the enemy, shall be punished by confinement for from one tothree years.

“Sec. 31. Violence against the population of a combat area. Robbery, illegal destructionof property, violence, or any illegal seizure of property under pretext ofmilitary emergency committed against the population in a combat area shall be punishedby confinement for from three to ten years or by death.”

“Sec. 32. III-treatment of prisoners of war.

a) III-treatment of prisoners of war, if it is repeated or coupled with particularcruelty or directed against the sick or wounded, as well as negligence in the executionof duties with respect to the sick and wounded by persons responsible for their medicalcare and treatment, in the absence of elements of a more severe crime, shall be punishedby confinement for from one to three years.

b) III-treatment of prisoners of war, if it is committed without such aggravatingcircumstances, shall entail application of rules of the Disciplinary Code of the USSRArmed Forces.

“Sec. 33. Illegal wear or abuse of emblems of the Red Cross or Bed Crescent. Thewearing in a combat area of any emblem of the Red Cross or Red Crescent by unauthorizedpersons, the abuse of flags or emblems of the Red Cross or Red Crescent,or the misuse of paint reserved for painting transport facilities used in medical evacuationshall be punished by confinement for from three months to one year.”

8 Translated in Berman,, Harold J. and Kerner, Miroslav , Documents on Soviet Military Law and Administration 85-95 (>Cambridge, 1955).Cambridge,+1955).>Google Scholar

Arts. 28-31, Statute on Military Crimes,1927 (translated in Berman and Kerner,Documents,op. cit.94-94) read:

“193(28). Robbery, theft, illegal destruction of property, violence, or any illegaltaking of property under pretext of military necessity, if committed with respect to thepopulation in a combat area, shall entail deprivation of freedom for not less than threeyears with or without confiscation of property, or where there are aggravating circumstancesthe highest measure of social defense with confiscation of property.

”193(29). (a) III-treatment of prisoners of war, if repeated or accompanied byparticular cruelty or directed against the sick or wounded, or negligent execution ofduties with respect to such sick or wounded on the part of persons responsible for theirmedical care and treatment, shall entail deprivation of freedom up to three years.

(b) III-treatment of prisoners of war, if committed without such aggravating circumstances,shall entail application of the rules of the disciplinary Code of the Worker-Peasant Bed Army.

”193(30). The wearing in a combat area of any emblem of the Eed Cross or BedCrescent by any person not having the right to wear it, or the issuance by a commanderof regulations for the wearing thereof by such persons, shall entail deprivation offreedom up to one year.

“193(31). Abuse in wartime of any Eed Cross or Eed Crescent flag or emblem, orof a color reserved for means of transport for evacuation of sick or wounded, shallentail deprivation of freedom up to one year.”

9 A. N. Chuvatin, M. N. Nikitchenko, and S. P. Cherkasov, Polozhenie o Voinskikh Prestupleniiakh, Postateinyi Kommentarii [Sectional Commentary on the Statute on Military Crimes] 80 (Moscow, 1929).

10 The Geneva Convention and Protocol for the Amelioration of the Condition of the Wounded in Time of War, July 6, 1906, 35 Stat. 1885; Treaty Series, No. 464 (referred to herein as the Geneva Convention of 1906).

11 The Hague Convention for the Adaptation to Maritime Warfare of the Principles of the Geneva Convention, Oct. 18, 1907, 36 Stat, 2326; Treaty Series, No. 543 (referred to herein as the related Hague Convention of 1907).

12 E.g., see Art. 258 of the Voinskii Ustav o Nakazaniiakh [Military Eegulations on Punishment] 302-316 (D. F . Ognev, ed., Saint Petersburg, 4th ed., 1912).

13 A. N. Trainin, Zashchita Mira i Bor'ba s Prestupleniiami protiv Chelovechestva[Defense of Peace and the Struggle against Crimes against Mankind] 182-194 (Moscow,1956); E. P. Meleshko, “ K Istorii Voprosa ob Otvetstvennosti za Narushenie Zakonovi Obychaev Voiny [A Historical Approach to the Question of Eesponsibility for Violationsof the Laws and Customs of War ] , ” Sovetskii Ezhegodnik Mezhdunarodnovo Prava, 1960 [Soviet Yearbook of International Law, 1960] 218-230 at 230 (Moscow,1961).

14 Mezhdunarodnoe Pravo v Izbrannykh Dokumentakh [Selected Documents of International Law], Vol. II, Doc. No. 203, note 1, p. 247 (Moscow, 1957).The 1912 edition of the Military Regulations on Punishment (the militarycriminal code) contained Article 258, the three paragraphs of which clearlyimplemented the provisions of the Geneva Convention of 1906.15 Article

15 Voinskii TTstav, op. cit. note 12, pp. 302-303. Article 258 reads:

(1) “One who knowingly wears the brassard of the Red Cross when not entitledthereto under the Geneva Convention is subject to . . .”

“The same penalty is applicable to a commander who orders the wearing of thearm band of the Eed Cross by persons not entitled thereto.”

(2) “One who knowingly raises or orders the raising of the flag of the Red Cross overinstitutions not enjoying protection under the Geneva Convention is subject to. . . .”

(3) “Persons to whom is entrusted, even if only temporarily, the supervision, treatmentand care of the sick and wounded, are subject to . . . for the mistreatment ofsuch persons or the careless discharge of their duties towards them.”

16 Ibid.

17 Chkhikvadze, Voenno-Ugolovnoe Pravo, Chast'II-Osobennaia [Military Criminal Law, Part II—special Part] 241-243 (I. T. Goliakov, ed., Moscow, 1947).

18 A. Myshnikov, Russkie Voenno-Ugolovnye Zakony v Sviazi s Zakonami Obshche-Ugolovnymi [Russian Military Criminal Law as it Relates to General Criminal Law]117 (Saint Peterburg, 3rd rev. ed., 1902); see also Voinskii Ustav, op. cit. note 12,p. 316.

“Art. 279 reads: “Persons guilty of wartime murder, rape, robbery, theft and the destruction of another's property by fire or water shall be sentenced to . . .”

19 Art. 267, Voinskii Ustav o Hakazaniiakh [Military Regulations on Punishment]contained in Prodolzhenie 1907 Goda Svoda Voennykh Postanovlenii [Compilation of Military Laws, 1907 Supplement] 255 (Saint Petersburg, 1908). It reads: “Seizureof stores, clothing and other things, as well as unlawful requisitions, from the inhabitantsof a region occupied by the Army subject the guilty persons to . . .”

“ If the crime contemplated by this Article is committed by an entire unit, by aconspiratorial group or by a single person employing a weapon or violence against thepopulation, the crime is treated as one of the forms of robbery or theft and is punished . . . ”

20 Ibid.

21 Myshnikov, op. cit. 116.

22 Decree on the Acknowledgment of all International Conventions on the Eed Cross,contained in Sbornik Deistvuiushchikh Dogovorov, Soglashenii i Konventsii, Zakliuchennykhs Inostrannymi Gosudarstvami I-II [Collection of Treaties, Agreements, and Conventions in Effect with Foreign States] 359 (Moscow, 2nd rev. and enlarged ed.,1928).

23 Chuvatin et al., op. cit. 81.

24 Sbornik Deistvuiushchikh Dogovorov, Soglashenii i Konventsii, Zakliuchennykh s Inostrannymi Gosudarstvami [Collection of Treaties, Agreements and Conventions inEffect with Foreign States] 197 (A. V. Sabanin and V. F. Orlov-Ermak, editors,Moscow, 1931); see also T. A. Taracouzio, The Soviet Union and International Law264-269 (New York, 1935); and Eobert M. Slusser and Jan F. Triska, A Calendar ofSoviet Treaties, 1917-1957, p. 51 (Stanford, California, 1959). The adherence of theSoviet Union without reservation has been said to constitute “convincing proof thatat least formally the Soviets wishfed] to be considered as sharing the views of otherstates in this matter . . . [as] political necessity [was] . . . an important, if not decisive,factor in Soviet adherence to these conventions.” Taracouzio, op. cit. 327.

25 Chuvatin et al., op. cit. 80.

26 Berman ,, Harold J. and Miroslav Kerner, Soviet Military Law and Administration 189 (Cambridge, 1955).Google Scholar

27 Chuvatin et al., op. cit. 78.

28 Ibid, at 76-77, 81.

29 Berman and Kerner, Documents, op. cit. 94-95; Nauchno-Prakticheskii Kommentarii,op. cit. 5.

30 Chuvatin et al., op. cit. 77; V. M. Chkhikvadze, Sovetskoe Voenno-TJgolovnoe Pravo

31 Ibid.

32 Chuvatin et al., op. cit. 77. Emphasis supplied.

33 K . I . Solntsev, Ugolovnoe Pravo, Osobennaia Chast ' , Voinskie Prestuplenia [Criminal Law, Special Part , Military Crimes] 67 (Moscow, 1938 ) ; Chkhikvadze, op. cit. 437.

34 Nauchno-Prakticheskii Kommentarii, op. cit. 106.

35 Ibid.

36 ibid.

37 Translated in Berman and Kerner, Documents, op. cit. 85-95.

38 Hague Convention IV Eespecting the Laws and Customs of War on Land and the Annex thereto embodying the Eegulations Eespecting the Laws and Customs of War on Land, Oct. 18, 1907, 36 Stat. 2277, Treaty Series, No. 539 (referred to herein as the Hague Eegulations on Land Warfare).

39 Chuvatin et al., op. cit. 77-78.

40 Solntsev, op. cit. 67.

41 Chkhikvadze,op. cit. 444.

42 Ibid.

43 Nauehno-Prakticheskii Kommentarii, op. cit. 107.

44 F . I. Kozhevnikov, TJchebnoe Posobie po Mezhdunarodnomu Publichnomu Pravu[Textbook on Public International Law] 230-232, 234-236, 239-240 (Moscow, 1947);E. A. Korovin, Sovremennoe Mezhdunarodnoe Publichnoe Pravo [Contemporary Public International Law] 147-159 (Moscow, Leningrad, 1926).

45 Mezhdunarodnoe Pravo, Dokumentakh, op. cit., Vol. II , p. 247.

46 ibid. Russia did not ratify the 8th (Convention Relative to the Laying of Automatic Submarine Contact Mines), 11th (Convention Relative to the Right of Capture in Naval Warfare), and 12th (Convention Relative to the Creation of an International Prize Court) Hague Conventions. Ibid.

47 Trainin, op. cit. 194; Sbornik Deistvuiushchikh Dogovorov, op. cit. note 2, pp. 71-280.

48 Chuvatin et al., op. cit. 79.

49 Confinement from one to ten years.

50 Nauchno-Prakticheskii Kommentarii, op. cit. 101-102.

51 Ibid, at 102. The quoted requirement of Soviet regulations is analogous to the Code of Conduct promulgated by Exec. Order 10631, Aug. 17, 1955, to govern the conduct of TT. S. military personnel who become prisoners of war (See Dept. of Defense Pamphlet 8-1, “The TJ. S. Fighting Man's Code,” November, 1955).

52 Ibid

53 Ibid, at 103-104.

54 Ibid, at 104.

55 Art. 50, Geneva Prisoner of War Convention.

56 Art. 4, Geneva Prisoner of War Convention.

57 Trainin, op. cit. 182-194; Meleshko, loc. cit. 230.

58 Trainin, op. cit. 191.

59 Trainin, op. cit. 191. 59 Ibid, at 192.

60 The Geneva Convention for the Amelioration of the Condition of the Wounded and Sick of Armies in the Pield, July 27, 1929, 47 Stat. 2074; Treaty Series, No. 847 (referred to herein as the Geneva Convention of 1929).

61 Art. 34, Geneva Convention of 1929.

62 See Trainin, op. cit. 186.

63 The unauthorized use of the emblem or name of the Red Cross or Bed Crescent is also punished by the general criminal codes (e.g., Art. 202, Criminal Code, B.S.F.S.E., note 5 above, p. 97).

64 Art. 53 prohibits the unauthorized use of the emblem of the Eed Cross, and Art. 54 contains an undertaking “if . . . legislation is not already adequate, [to] take measures necessary for the prevention and repression, at all times, of the abuses referred to under Article 5 3 .”

65 Art. 59, Geneva Wounded and Sick Convention,

66 “Ezhegodnoe Sobranie Mezhdunarodnoi Assotsiatsii Iuridicheskikh Nauk [Annual Meeting of the International Association of Juridical Sciences],” Sovetskoe Gosudarstvoi Pravo [Soviet State and Law], No. 1 (1962), p. 117.

67 For example, Chkhikvadze states:

“The military criminal legislation of the USA does not contain any provisions which protect the rights and interests of the local population against violence and other crimes perpetrated by military personnel even though the experience of the American Army indicates that such crimes have been committed frequently.” (p. 440.)

68 See Taracouzio, op. cit. 264-269, 327.

69 Chkhikvadze, op. cit. 447.