MILITARY JUSTICE AND CRIMINAL CODES OF THE PRINCIPALITY/KINGDOM OF SERBIA FROM 1876 AND 1885 (Damnatio memoriae?)
Authors:
Nenad Ž. Petrović
During the war years of 1876 and 1885, completely new codes, which dealt with the organization of military justice and criminal sanctions, were passed. Both codes have been of great importance for the development of legal concepts. However, already at the time of their creation and implementation, they sank into complete “oblivion”, which has continued to these days. In professional discussions, which were led about the projects of the new Military Penal Code, jurists passed over these two laws as if they did not exist. Through the comparative analysis, the author shows the similarities and differences between these two laws and the previous law from 1864 and the latter which was passed in 1901. He draws attention to the paragraphs related to respect for the international law of war and punishment for war crimes.
The law, which was passed because of the war with Bulgaria in 1885, was up-to-date in terms of the adoption of contemporary legal concepts about the implementation of international law in state conflicts. It particularly sanctions war crimes committed against captured wounded enemies, soldiers and civilians. In principle, it abolished the punishment of a subordinate for carrying out an illegal order of a superior, but left the possibility of punishing the subordinate if he carried out an illegal order and was aware of its illegality. A free interpretation could lead to the conclusion that this could also be applied to a superior’s order violating the international law, specifically the “Geneva Convention”, which was in force at the time of its adoption and implementation.
However, in the law, which was passed in 1901, these crimes were not specifically regulated, although in 1899, at the first Hague Conference, the “Rule of Warfare on Land” was passed and it obliged the signatories, including Serbia. Although it could be interpreted that in case of illegal
The law, which was passed because of the war with Bulgaria in 1885, was up-to-date in terms of the adoption of contemporary legal concepts about the implementation of international law in state conflicts. It particularly sanctions war crimes committed against captured wounded enemies, soldiers and civilians. In principle, it abolished the punishment of a subordinate for carrying out an illegal order of a superior, but left the possibility of punishing the subordinate if he carried out an illegal order and was aware of its illegality. A free interpretation could lead to the conclusion that this could also be applied to a superior’s order violating the international law, specifically the “Geneva Convention”, which was in force at the time of its adoption and implementation.
However, in the law, which was passed in 1901, these crimes were not specifically regulated, although in 1899, at the first Hague Conference, the “Rule of Warfare on Land” was passed and it obliged the signatories, including Serbia. Although it could be interpreted that in case of illegal
murders in war (which were not committed while fighting but against soldiers who surrendered and civilians in general), the provisions of the general criminal code of Serbia, which prescribed the death penalty or imprisonment for murder, are valid, it can still be concluded that the law from 1901 was a step back in legal consciousness and practice.