PUBLIC INCITEMENT TO GENOCIDE: FEATURES OF THE NORMATIVE CONSTRUCTION IN INTERNATIONAL CRIMINAL LAW AND THE CRIMINAL LEGISLATION OF UKRAINE

In: Bulletin of Taras Shevchenko National University of Kyiv. Legal Studies, Heft 125, S. 74-80

Abstract

Background. The purpose of the article is to investigate the objective and subjective characteristics of public calls for genocide as a criminal offense (crime) provided for in Part 2 of Art. 442 of the Criminal Code of Ukraine, and in international criminal law. Methods. To achieve the set goal and defined tasks, the logical-normative method and the system analysis method formed the basis of the research. Results. The article highlights the problem of the ratio of normative compositions of public calls to genocide in the criminal legislation of Ukraine and in international criminal law. Сonclusion. The conclusion was drawn that the existence of national, ethnic, racial and religious groups, as a social value, is the object of criminal protection of public calls for genocide, and, accordingly, the direct object of this crime. It was concluded that public calls for genocide can be made in different forms and by means of any means of information transmission, the main feature of such a call is publicity, that is, expressed before or given to an indefinite number of persons, and not to a set of individualized persons. The conclusion was formulated that, unlike the criminal legislation of Ukraine, in accordance with Art. 3 of the Convention criminalizes not just public calls for genocide, but direct and public calls for genocide. Therefore, in international criminal law, calls for genocide are "not limited" to publicity, but they (calls) must be direct. It has also been investigated that the distribution of material calling for genocide consists in bringing its content to the knowledge of an unspecified number of persons and can exist in various forms (including paper, digital, globally available multi-platform encrypted freemium cloud messengers, on film or any other media built on the technology of recording, processing, transmission, storage and reproduction of textual, visual or audiovisual material) and spread in different ways depending, first of all, on the form of their "existence". Forms of actions regulated in Part 2 of Art. 442 of the Criminal Code of Ukraine, are broader than in international criminal law and do not exclude each other, and in a relevant life situation, the subject can commit two or three acts at once within the limits of one actual criminal offense (crime). The subject of public calls for genocide can be not only a public or well-known person (for example, so-called "opinion makers" or "media faces"), but in general, any person who meets (possess) the characteristics necessary and sufficient for its recognition as the subject of a crime in accordance with criminal legislation. In the national criminal legislation of Ukraine, the presence of the purpose of further committing genocide in the case of public appeals and distribution of materials is not a mandatory element of the composition of the criminal offense provided for in part 2 of Article 442 of the Criminal Code of Ukraine; in international criminal law and the practice of its application, a different approach has been developed: a special goal – the further commission of genocide – is a mandatory characteristic of direct and public calls for genocide.