Regulation of self-defence in slovenian and international criminal law - Статья

По-перше, обговорюються елементи самооборони в міжнародному кримінальному праві. Стаття завершується розглядом регулювання самооборони у Словенії з точки зору міжнародного кримінального права. Ключові слова: самооборона, правова цінність, пропорційність, Кримінальний кодекс Словенії, Римський статут, міжнародне кримінальне право. Во-первых, обсуждаются элементы самообороны в международном уголовном праве. Problem statement. Self-defence is a typical criminal law defence. It represents diversion of an unlawful attack on the perpetrator or another person towards the source of the attack. Self-defence is regulated also in international criminal law and has also been a subject of the case law of many international and hybrid tribunals, despite the lack of its formal regulation in the statutes of tribunals until the Rome Statute of the International Criminal Court [1, art. 31]. Due to a very strong interaction between international criminal and international public law the distinction between individual self-defence of an individual and collective self-defence of a state according to the United Nations Charter should firstly be made [2, p. 65, 75]. Already the case law of the Nuremberg Tribunal concluded that this differentiation should be carefully drawn [3, p. 121]. The International Tribunal for Former Yugoslavia (ICTY) on the other side simply referred to the clear regulation of the Rome Statute, which was already drafted at the time, but not yet enforced. Accordingly, the ICTY concluded that the fact that the person was involved in a defensive operation conducted by forces shall not in itself constitute a ground for excluding criminal responsibility [3, p. 452]. Identical rule could be found in the Rome Statute [4, p. 13]. Individual self-defence and collective selfdefence are therefore two different defences with different conditions, elements and also consequences. Individual self-defence is a typical ground for justification in case of potential individual criminal responsibility. On the other hand, collective selfdefence is a defence, which could only be applied to a state and which could (according to international public law) exclude responsibility of a state for its violation of international public law, especially of article 51 of the United Nations Charter. A state could be responsible, if the perpetrator’s act could be attributed to the state according to the Draft articles on Responsibility of States for Internationally Wrongful Acts [5, chapter 2]. Individual could still invoke collective self-defence to exclude his or her criminal responsibility, however in such case this defence does not constitute an individual self-defence. In such case the collective selfdefence would represent a ground for justification, originating from other legal branches. As mentioned before, fulfilment of all conditions of collective self-defence does not mean that conditions of individual self-defence are automatically fulfilled as well and vice versa. These two defences are different and their factual cases should rarely overlap. It is not rare that a case of individual self-defence has no connection to collective selfdefence, for example, when a prisoner of war attacks his guard with a weapon, the guard defends himself and executes the prisoner of war. Opposite case could be possible as well; conditions of collective, but not also of individual self-defence could be fulfilled, such as in the case of humanitarian intervention for protection of ethnic minority. The difference between these two defences lies also in legal values, protected by them. The collective selfdefence is possible for protection of public legal values or legal values, belonging to the state, whereas the individual self-defence deals with individual legal values. Analysis of recent research and publications. For now, various aspects of regulation of selfdefence in Slovenian and especially internationally criminal law are presented, as considered in fundamental works in the field of international criminal law. The purpose of the paper. The puporpose of this paper is to analyse the elements of self-defence in international criminal law, the influence of selfdefence on the general definition of a criminal act, to draw distinction between similar defences; selfdefence and putative self-defence on one hand and self-defence and necessity on the other; and to assess Slovenian regulation of self-defence from the viewpoint of international criminal law. Statement of the base material. The definition of self-defence in international criminal law does not differ much from its typical definition in national legal systems; it represents the defence against unlawful attack, directed at the perpetrator or a third person, whereas the defence itself is directed towards the source of attack or his legal value [2, p. 137]. The attack on the perpetrator or a third person must be unlawful. This has been recognised by the case law of the Nuremberg Tribunal [6, р.