Offences against Internationally Protected Persons: Problems of International Legal Qualification

Abstract

INTRODUCTION.The article examines various aspects of the international legal qualification of offences committed against internationally protected persons. The analysis of different elements of corpus delicti was laid at the heart of the study: namely, those of actus reus (whether the offence was perpetrate in the situation of an armed conflict), mens rea (whether the perpetrator was moved by a special intent, particularly the terrorist dolus specialis), and the legal status of a perpetrator (whether he or she was a state agent).MATERIALS AND METHODS. The materials of the study encompass international conventions, rules and principles of customary international law, case law of international courts and tribunals and international legal doctrine. The paper uses the comparative method and those of analysis and synthesis.  RESEARCH RESULTS. The key result of the study consists in the assumption that offences against internationally protected persons can be considered as either a conventional crime within the meaning of the 1973 Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents (including, if a terrorist dolus specialis is established, as a crime of terrorism), or (in case of armed conflict) a violation of laws and customs of war, for this category of persons falls within the definition of protected persons by implication of Article 4 of the 1949 IV Geneva Convention, which gives grounds for the application of Article 146 of the 1949 IV Geneva Convention for purposes of the their criminal prosecution.DISCUSSION AND CONCLUSIONS.Given the result of the study, it is states that the following test can be applied for purposes of international legal qualification of offences against internationally protected persons: first, it is necessary to establish whether the offence of committed in a situation of armed conflict; second, it is highly important to enquire about the intent of the delinquent. If there is a terrorist dolus specialis, the offence can be qualified as terrorism-related. Moreover, it is necessary to establish the status of the delinquent and whether the one is a state agent or a private person, or, even if the person is a state agent, whether the one is a person acting sua sponte; additionally, the status of a delinquent and its relation with the belligerent state in regard to the situation of armed conflict is also significant for the qualification of respective offences in light of international law