crimes committed by totalitarian regimes - Ministrstvo za pravosodje

Crimes committed by totalitarian regimes
– War crimes against the injured and the ill, in accordance with Article 375;
– War crimes against prisoners of war, in accordance with Article 376;
– War crimes committed with prohibited means of combat, in accordance with Article 377;
– Associating and incitement to genocide and war crimes, in accordance with Article 378 of the Penal
Code.
Regarding the following criminal offences:
– War crimes against civil population, in accordance with Article 374;
– War crimes against the injured and the ill, in accordance with Article 375;
– War crimes committed with prohibited means of combat, in accordance with Article 377 of the
Penal Code; it is important to note that these criminal offences may only pertain to the period
during the war or the armed conflict. Due to the fact that the killings under investigation were
executed after the war ended and also after the end of armed combat, it was not possible to
prosecute perpetrators for these criminal offences, although all other legal indications for these
offences were present.
Those who ordered, executed or were involved in post-war killings in any other way, committed
the following criminal offences:
– Genocide, in accordance with Article 373 of the Penal Code;
– War crimes against prisoners of war, in accordance with Article 376 of the Penal Code;
– Associating and incitement to genocide and war crimes, in accordance with Article 378 of the
Penal Code. It is also clear that the prosecution pertaining to all the criminal offences (for example,
murder) which were not defined by the Penal Code as offences that do not fall under the statute of
limitations, became obsolete.
The most important of all the criminal offences committed by the perpetrators of post-war killings
is genocide from Article 373 (1) and (2) 373 of the Penal Code. This criminal offence is based on the
Convention on the Prevention and Punishment of the Crime of Genocide, dated 9 December 1948.
The Convention was therefore adopted after the post-war killings. However, the Martens Clause was
valid in that time; it was included already in the Hague Convention IV of 1907. The Martens Clause is
a universal rule of international regular war legislation according to which members of the combatants
and the civilian population shall at all times remain under the protection and authority of the principles
of international law, derived from established custom, from the principles of humanity and from the
dictates of public conscience, even in cases when the handling with these categories of persons is not
specifically regulated by international war legislation. Therefore, this provision can serve as a basis
on which to build in proving the fact that, with post-war killing of all categories of enemies, some
perpetrators committed the criminal offence of genocide from Article 373 (2) and (1) 373 of the Penal
Code. Victims of these killings were members of those social and political groups which joined the
opponents of the partisan movement or the opponents of the newly established communist regime.
Some groups of victims should, in view of their status, be defined as prisoners of war. The postwar
killings or the post-armed conflict killings of prisoners of war are regulated by Article 376 of the
Penal Code, namely as war crimes against prisoners of war. Included in this category are the members
of the German army. However, there are different views regarding the question of whether members of
the Home-guard who were captured and returned in Vetrinje can be categorised as prisoners of war, for
the international case-law offers no answer in this regard. When we started to investigate the post-war
killings, we did not pay attention to this question. It is irrelevant for the prosecution due to the fact that,
in executing these people, the perpetrators committed a criminal offence that does not fall under the
statute of limitations.
This is the framework that is provided by the Penal Code for the detection of elements of crimes
against humanity and international law. The procedures pertaining to persons that are allegedly familiar
with post-war killings are regulated by the Criminal Procedure Act and the Police Act.
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