Practice Relating to Rule 158. Prosecution of War Crimes
Hungary’s Criminal Code (1978), as amended in 1998, under the title “Crimes against humanity”, provides for the punishment of a list of certain acts including genocide and war crimes, some of them when committed “in an operational or occupied area” or “violating the rules of the international law of warfare”. These acts include: “Violence against the civilian population” (Article 158); “War-time looting” (Article 159); “Wanton warfare” (Article 160); “Use of weapons prohibited by international treaty” (Article 160/A); “Battlefield looting” (Article 161); “Violence against a war emissary” (Article 163); and “Misuse of the red cross” (Article 164).
In Decision No. 53/1993, the Constitutional Court of Hungary stated:
The international community prosecutes and punishes war crimes and crimes against humanity; it does so by international trials and, second, by insisting that those states which desire to be members of the international community prosecute such offenders.
The Court further stated:
[T]he State which prosecutes and punishes crimes against humanity and war crimes, acts upon the mandate given to it by the community of nations, according to the conditions imposed by international law. The community of nations occasionally may also demand, through the action of international organizations, to review and reject that domestic legal practice which does not comply with international law.
In addition, the Court stated:
The definition of and conditions for the punishment of war crimes and crimes against humanity are provided by international law; these crimes – directly or indirectly through the obligations assumed by the States – are prosecuted and punished by the community of nations. The regulations on the punishment of war crimes and crimes against humanity – since these crimes threaten the foundations of humanity and international coexistence – form the peremptory norms of general international law (jus cogens). Those States which refuse to assume these obligations cannot participate in the community of nations.
The regulations on war crimes and crimes against humanity are undoubtedly part of customary international law; they are general principles recognized by the community of nations or, in the parlance of the Hungarian Constitution, they are among “the rules generally recognized by international law”. The Hungarian legal system “accepts” these rules, to use the Constitution’s terminology in article 7 § (1); and accordingly, without separate transformation or incorporation they fall within those “assumed international legal obligations” whose harmonization with domestic law is mandated by the second clause of the aforementioned article of the Constitution.
The international obligation to punish perpetrators of war crimes and crimes against humanity applies to the whole of the international substantive law. Thus, it cannot be assumed without Hungarian law’s acceptance of the international law conditions and requirements for the imposition of punishment as well. If any rule unequivocally comprising part of the international customary law on war crimes and crimes against humanity were to be interpreted differently by Hungarian law, then the activities prosecuted by domestic law on the basis of these offences would cease to be war crimes or crimes against humanity according to international law. Such a procedure by the Hungarian State would not, however, alter the international legal command, nor would it modify the State’s obligation, nor would it change the international law imposing criminal liability on the perpetrators of such acts.