Article 359 of the Criminal Code. Mercenary. Responsibility for mercenarism
Combating mercenarismbegan in the last century. In 1977, an additional protocol was adopted to the Conventions of 1949. In 1989, the International Act was ratified in New York, reinforcing the responsibility for mercenarism, implying the active contribution of each state to the elimination of this phenomenon in the world, including by applying to the guilty criminal punishment.
ByArt. 359 of the Criminal Code of RF mercenarism, training, financing, other tangiblethe provision of persons, as well as their use in armed conflicts or hostilities, is punishable by imprisonment for 4-8 years. If these acts are committed by a person who has used his official position, or in relation to a minor, imprisonment for 7-15 years is imposed. Additionally, depending on the circumstances, a fine of up to 500 thousand rubles may be imputed. or equal to income for 3 years with restriction of freedom for 1-2 years.Military mercenaries, participating in conflicts or hostilities, are punished with three to seven years in prison. In addition, the restriction of freedom can be imputed for 1-2 years.
As a mercenary is the subject whoseeks to receive material rewards. However, he is not a citizen of a country involved in an armed conflict / military operation, does not reside permanently on its territory. A person sent to the state for performing official duties is not considered a mercenary.
Comments on art. 359 of the Criminal Code
Mercenaryinvolves the involvement of individuals:
- Who will fight to receive personalbenefits, and they are really promised by the party to the conflict or on its behalf material compensation, the amount of which is much higher than that promised or paid to combatants of similar rank, included in the personnel of the armed forces of this state.
- Non-citizens of the country participating in hostilities that do not reside on its territory permanently.
- Not included in the Armed Forces of the state, which is a party to the fighting.
- Not directed by a country that does not act as a participant in an armed confrontation, for the implementation of official tasks as a subject included in its armed forces.
- Especially recruited locally or abroad for subsequent participation in armed confrontation. Thus, in particular, there appearedmercenaries in Syriaon the side of IGIL (the organization is banned in Russia).
Punishment under Art.359 of the Criminal Codeis imputed to a person if it is in any situation,different from the above cases, is specifically recruited on the spot or outside the territory of the conflict for the implementation of joint violent actions that are aimed at:
- Overthrow of the current government or undermining the constitutional foundations of the country.
- Infringement on the territorial integrity of the state.
Such objectives, in particular, pursuemercenaries in Syriafrom the banned in many countries, including in Russia, the terrorist organization IGIL.
Punishment under this article applies topersons who are guided primarily by the desire to obtain substantial personal benefits during participation in the conflict. In this case, the person is encouraged to join theforeign Legiondirect payment of a large sum orpromise of such a reward. The penalty will be applied at the commented rate to any person recruiting, using, financing or training persons that meet the above criteria.Art. 359 of the Criminal Codeapplies also to citizens who commitor attempt to commit any offense set forth in the above-mentioned Conventions. However, nothing can limit the scope of this provision.
Key provisions relating to this issue,are defined by the Declaration on international legal principles related to friendly relations and cooperation between states. According to the document, each Power must refrain from creating or encouraging the organization of armed gangs or irregular forces to invade other territories. In this way,foreign Legion, consisting of enlisted citizens, will be considered a violation of the Declaration adopted in accordance with the UN Charter. It should be noted that Russia does not participate in the 1989 Convention.Art. 359 of the Criminal Codeis formulated on the basis of the provisions of the Additional Protocol of 1977
Under the material compensation specified inArt. 359 of the Criminal Code,should be understood as a person for hisactivity or work of money or other values, property benefits. The subject who is not permanently resident in the country participating in the conflict is a citizen of another state or a person who does not have citizenship.
Differentiation of definitions
It is necessary to distinguish mercenaries from employeesnon-belligerent countries, sent on a business trip for the performance of official tasks determined by bilateral agreements. They can be advisers, instructors, consultants, other entities that provide the necessary assistance in the course of training military personnel and training them in military affairs. In accordance with the Federal Law "On Military Duty", for example, the passage of service is also carried out by foreigners under a contract. These subjects are endowed with the status established by Federal Law No. 76.
Under it should be understood actions thatare aimed at hiring for the service, reaching a written or oral agreement with a citizen of a third-party state about his participation in the conflict for material remuneration. Recruitment can be expressed in campaigning, compiling lists of volunteers, registration, sending them to the sabotage school, base, and so on. Training is the activity of psychological and physical training, the process of obtaining mercenaries special knowledge in the military sphere, training skills, methods of using weapons, equipment, ammunition, explosives, and so on. Financing a person involved in an armed conflict involves any material support. This includes, among other things, the direct transfer of money to a subject, the opening of a bank account in his name, the purchase of appropriate uniforms, weapons, and so on.
The use of mercenaries in conflicts onTerritories of other states call their involvement in direct participation in battles. The latter, in turn, should be understood not only to commit actions during battles, but also their preparation and planning. As a mandatory feature for the application of Art. 359 of the Criminal Code advocates the presence of armed conflict or hostilities in the territory of another state. The crime is considered completed from the beginning of the actions defined in the legislation as recruitment, training, material, including financial support, the use of persons trained in special training grounds and other facilities, as well as the beginning of participation of the person himself.
The subjective part
Punishment under art. 359 of the Criminal Code can be applied to sane citizens from the age of sixteen. In part 2 of the commented standard, the subject is special. He is the person who commits a crime using his official status. It can be any official, including a civil servant. In addition, in the second part of the article, a qualifying sign is specified - the commission of a crime against minors. We are talking about persons who have not reached 18 years of age. The use of official status is called such actions that are committed contrary to official interests. Under Part 2, to the responsibility of including those involved entities implementing managerial functions in a non-state company, serving in the structures of local government.