CRIME OF GENOCIDE: LEGAL ASPECT

“Human being is the cruelest creature in world.”

Federico Garcia Lorka

Genocide as a phenomenon has existed since ancient times, but it received

its legal consolidation on December 9, 1948, when the Convention on the
Prevention and Punishment of the Crime of Genocide was signed. We owe this to
Rafal Lemkin, who was the founder of the study of genocide and introduced it as a
legal term. According to Art. 2 of the Convention, genocide means any of the
following acts committed with intent to destroy, in whole or in part (as a whole or
partly), a national, ethnical, racial or religious group, as such:
a) Killing members of the group;
b) Causing serious bodily or mental harm to members of the group;
c) Deliberately inflicting on the group conditions of life calculated to
bring about its physical destruction (as a whole or partly) in whole or
in part;
d) Imposing measures intended to prevent births within the group;
e) Forcibly transferring children of one group to another group.
It is important to remember that genocide is an international crime and the
statute of limitations is not applicable to it, criminal liability comes under the rules
of international or national law, regardless of whether the subject of the crime is an
officer or any other person and whether it applies to the immunity established by a
separate state.
Little attention was paid to the issues of genocide in Ukrainian criminal
legal literature. This corpus delicti was analyzed only within scientific and
practical comments to the Criminal Code of Ukraine. However, these
developments relate only to international liability for the crime, its nature, subject
and content. Its characteristics remain neglected.
 According to the Criminal Code of Ukraine dated on 1 September 2001,
namely Article 442, corresponds to the definition of genocide provisions of 1948
Convention . However, in the second part criminal liability stands for public calls
for genocide and manufacturing materials calling for the genocide of the purpose
of distribution or dissemination of such materials.
The analysis of provisions that involve liability for genocide should begin
with the object. Generic object of genocide is an international order; additional
mandatory objects of crime under Part 1, Art. 442 of the Criminal Code of Ukraine
are: life, health, freedom, honor and dignity of persons belonging to national,
ethnic, racial and religious groups; additional binding object under Part 2, Art. 442
of the Criminal Code of Ukraine is the honor and dignity of these people.
Regarding the objective side this corpus delicti under Part 1, Art. 442 of the
Criminal Code of Ukraine is both formal and material: if it is committed in the
form of killing and causing grievous bodily harm it is completed from the moment
of causing dangerous consequences to one member of a national, ethnical , racial
or religious groups; committed in the form of the creation of life conditions for full
or partial physical destruction of the group, the reduction of fertility or preventing
it or forcible transfer of children from one group to another, it is considered
completed from the moment of committing the act irrespective of socially
dangerous consequences. Offence under Part 2, Art. 442 of the Criminal Code of
Ukraine has a formal structure and is completed from the moment of public appeal
calling for the genocide of many persons, or calling for manufacturing with the aim
of distribution and distribution itself of the materials calling for genocide.
The subject of the offence is general no matter whether the offence was
committed by a representative of the so-called titular nationality or ethnic minority,
European or Afro-American race, believer or atheist, to constitute a crime.
The subjective side of this offence is characterized as a direct intent. Special
feature of genocide in its first five forms mentioned above is a goal that is
complete or partial destruction of any national, ethnical, racial or religious group.
The goal of manufacturing materials calling for genocide is their distribution. For
such forms of crime as public calls for genocide and distribution of materials
calling for genocide, the goal is not a mandatory feature of the corpus delicti.
To sum up, genocide is a crime that affects not only by the number of
innocent victims, but the wrath of its executors, their being cynical and victims of
doom, because civilians are killed, who are not able to protect themselves from
criminals. Specific socio-legal nature of genocide is that this crime is aimed at the
destruction of national, ethnic, racial or religious group as such, groups that are the
most important basic elements of the structure of civilization of mankind.
Destruction of these elements contradicts the principle of diversity in its
civilizational and universal terms, threatens not only individuals and communities,
but humanity as a whole.