(en)

mes were perpetrated; (…). TITLE XII Crimes of genocide, crimes against humanity and war crimes CHAPTER I Crimes of genocide and crimes against humanity 37  Article 438 Genocide (1) The act of committing, with the goal of destroying, in whole or in part, a national, ethnic, racial or religious group, one of the following offenses: a) killing members of the group; b) harming the bodily or mental integrity of members of the group; c) subjecting the group to living conditions of a nature that will lead to their physical destruction in whole or in part; d) enacting steps to prevent births within the group; e) forced transfer of children belonging to one group to a different group, shall be punishable by life imprisonment or no less than 15 and no more than 25 years of imprisonment and a ban on the exercise of certain rights. (2) If the acts described in par. (1) are committed in times of war, shall be punishable by life imprisonment. (3) Conspiracy to commit the crime of genocide shall be punishable by no less than 5 and no more than 10 years of imprisonment and a ban on the exercise of certain rights. (4) Incitement to commit the crime of genocide, committed directly, in public, shall be punishable by no less than 2 and no more than 7 years of imprisonment and a ban on the exercise of certain rights. Article 439 Crimes against humanity (1) The act of committing, as part of a generalized or systematic attack on a civilian population, one of the following offenses: a) killing persons; b) subjecting a population or parts of it to living conditions of a nature that will lead to their physical destruction in whole or in part, with the goal of destroying it; c) slavery or trafficking in human beings, especially women or children; d) deportation or forced transfer, in violation of the general rules of international law, of persons legally located on a certain territory, by expelling them to another state or territory or by using other means of constraint; e) torturing persons who are under the perpetrator’s guard or under control in any other form, causing them to sustain physical or psychological harm, or grave physical or psychological suffering, that goes beyond the consequences of penalties accepted by international law; 38  f) rape or sexual assault, compelling to engage in prostitution, forced sterilization or illegal detention of a woman who was forced to become pregnant, with a goal to change a population’s ethnic composition; g) harming certain persons’ physical or psychological integrity; h) causing certain persons to go missing, by force, with a goal to deprive them of the protection of the law, for an extended period, by kidnapping, arresting or detention, on orders or authorization from a state or a political organization, followed by refusal to admit that the person is deprived of freedom or to provide genuine information on the intentions concerning them or on their location, as soon as such information is requested; i) imprisonment or any other form of serious deprivation of freedom, in violation of the general rules of international law; j) persecution of a specific group or community, by deprivation of fundamental human rights or by grave restriction of their exercise of those rights, on political, racial, national, ethnic, cultural, religious, or sexual grounds or based on other criteria recognized as inadmissible under international law; k) other similar inhuman acts that cause grave suffering or physical or psychological harm, shall be punishable by life imprisonment or no less than 15 and no more than 25 years of imprisonment and a ban on the exercise of certain rights. (2) The same penalty applies to acts stipulated in par. (1) and committed as part of an institutionalized regime of systematic oppression and domination of one racial group over another, with the goal of maintaining the existence of that regime. CHAPTER II War crimes Article 440 War crimes against individuals (1) The act of committing, as part of an armed conflict, with or without an international character, against one or several individuals protected by international humanitarian law, one of the following offenses: a) murder; b) taking hostages; c) applying cruel or inhuman treatment, thus causing physical or psychological harm or grave physical or psychological suffering, especially by torture or mutilation; 39  d) rape or sexual assault, compelling to engage in prostitution, forced sterilization or illegal detention of a woman who was forced to become pregnant, with a goal to change a population’s ethnic composition; e) deportation or forced transfer, in violation of the general rules of international law, of persons legally located on a certain territory, by expelling them to another state or territory or by using other means of constraint; f) applying or executing severe punishment, especially the death penalty or a penalty of imprisonment, to a person who has not been tried as part of a legal impartial procedure that provides the guarantees required by international law; g) exposing an individual to danger of death or serious health harm by: 1. performing experiments on them without their voluntary, specific and previous consent, or that are not necessary for their health or are not performed in their best interest; 2. harvesting tissues or organs from them for the purpose of transplant, with the exception of taking blood or skin for therapeutic purposes, in compliance with generally recognized medical principles and with the person’s voluntary, specific and previous consent; 3. subjecting them to methods of treatment that are not recognized by medicine, without them being necessary for the individual’s health and without their voluntary, specific and previous consent; h) subjecting an individual to a degrading treatment, shall be punishable by life imprisonment or no less than 15 and no more than 25 years of imprisonment and a ban on the exercise of certain rights. (2) The same penalty shall apply to recruiting or drafting juveniles who have not turned 15 years of age to the armed forces or armed groups, as well as making them, by any methods, to take active part in hostilities. (3) Inflicting injury, as part of an armed conflict, with or without an international character, to a member of the enemy armed forces or a combatant thereof, after such person has surrendered unconditionally or who has been taken out of the fighting in any manner, shall be punishable by no less than 5 and no more than 12 years of imprisonment and a ban on the exercise of certain rights. (4) Commission, as part of an armed conflict with an international character, of one of the following offenses: a) illegally keeping in detention or unjustified delay of repatriation of one or several individuals of those described at par. (5) letter a); b) direct or indirect transfer, by an agent of the occupying power, of a part of the civilian population to whom he belongs, in the occupied territory; 40  c) compelling, by violence or threat, of one or several individuals of those described at par. (5) letter a) to serve in the enemy’s armed forces; d) compelling the citizens of the enemy power to take part in war operations against their own country shall be punishable by no less than 3 and no more than 10 years of imprisonment and a ban on the exercise of certain rights. (5) The persons protected by international humanitarian law are: a) in an armed conflict with an international character: persons protected under the Geneva Conventions of 12 August 1949 and the Additional Protocol I of 8 June 1977, especially the wounded, the sick, the shipwrecked, the war prisoners and civilians; b) in an armed conflict without an international character: the wounded, the sick, the shipwrecked and the persons who are not directly involved in the hostilities and are under the power of the enemy side; c) in an armed conflict with or without an international character: members of the armed forces and combatants of the enemy side, who have laid down their arms or who, for any reason, can no longer defend themselves and are not under the power of the enemy side. Article 441 War crimes against property and other rights (1) The act of a person who, as part of an armed conflict, with or without an international character, robs or, in violation of international law and without it being justified by military necessity, destroys, appropriates or commandeers assets belonging to the enemy side which are under the power of the side the perpetrator is a member of, shall be punishable by no less than 3 and no more than 10 years of imprisonment and a ban on the exercise of certain rights. (2) Declaring, as part of an armed conflict with an international character, the rights and actions of all citizens of the enemy side or a significant part of them as nullified, suspended or inadmissible in a court of law shall be punishable by no less than 3 and no more than 10 years of imprisonment and a ban on the exercise of certain rights. Article 442 War crimes against humanitarian operations and emblems (1) The act of a person who, as part of an armed conflict, with or without an international character: a) launches an attack against the personnel, facilities, goods, units or vehicles that are involved in a humanitarian aid mission or a peace-keeping mission under the 41  Charter of the United Nations and which enjoy the protection guaranteed by the international humanitarian law to civilians or civilian assets; b) launches an attack against the personnel, facilities, medical units or medical transportation vehicles that are using the distinctive insignia stipulated in the Geneva Conventions, according to the provisions of international humanitarian law, shall be punishable by no less than 7 and no more than 15 years of imprisonment and a ban on the exercise of certain rights. (2) The act of a person who, as part of an armed conflict with or without an international character, unlawfully uses the distinctive emblems stipulated in the Geneva Conventions, the parley flag, the enemy’s or the United Nations Organization’s flag, military emblems or uniform, thus causing the death or injury of one or more individuals, shall be punishable by no less than 7 and no more than 15 years of imprisonment and a ban on the exercise of certain rights. Article 443 Use of forbidden methods in combat operations (1) The act of a person who, as part of an armed conflict with or without an international character: a) launches an attack by military means against a civilian population or civilians who are not directly involved in hostilities; b) launches an attack by military means against civilian assets that are protected as such by the international humanitarian law, especially buildings devoted to religious worship, education, art, science, charities, historic monuments, hospitals, locations for the sick or the wounded, as well as against towns, villages, houses or buildings that are undefended or located in demilitarized areas, or against facilities or equipments that contain hazardous substances, insofar as those are not used for military operations; c) carries an attack by military means, knowing it will cause loss of human lives among the civilian population, destruction of civilian assets, that would be visibly disproportionate to the overall specific and anticipated military advantage; d) uses a person protected by the provisions of international humanitarian law to avoid that certain locations, areas or military forces become a target for military operations by the enemy side; e) uses, as a method to wage war, deliberate starvation of civilians, depriving them of goods indispensable to survival or preventing them, in violation of international humanitarian law, from receiving aid intended for them; f) declares or orders that there shall be no mercy for the defeated; 42  g) kills or wounds a member of the enemy armed forces or a combatant of the enemy forces by using deceit; h) makes use of cultural assets protected as such by the international humanitarian law, especially historic monuments, buildings devoted to religious worship, education, art or science, to launch an attack on the enemy side by military means, shall be punishable by no less than 7 and no more than 15 years of imprisonment and a ban on the exercise of certain rights. (2) The carrying of an attack by military means, as part of an armed conflict with an international character, knowing that it will cause extended, lasting and grave damage to the environment, which is visibly disproportionate to the overall specific and anticipated military advantage, shall be punishable by no less than 3 and no more than 10 years of imprisonment and a ban on the exercise of certain rights. Article 444 Use of forbidden means in combat operations The act of a person who, as part of an armed conflict with or without an international character: a) uses poison or weapons carrying poisonous substances; b) uses asphyxiating, toxic or similar gas and any similar liquids, materials or procedures; c) uses weapons that cause unwarranted physical suffering shall be punishable by no less than 7 and no more than 15 years of imprisonment and a ban on the exercise of certain rights. Article 445 Punishment for attempt The attempt to commit the offenses stipulated in this Title shall be punishable. 43  ANNEX Relevant criminal investigations regarding international humanitarian III law and human rights violations 1. The identification of the first mass grave near the Popricani village in the Iași County In October 2010, the “Elie Wiesel” National Institute for Studying the Holocaust in Romania notified the Public Ministry with regard to the identification of three human skeletons in the Vulturi woods near the village of Popricani (Iasi county). The case was under investigation by the Iași Military Prosecutor’s Office. The investigation led to the discovery of a mass grave with 36 victims: men, women and children. It was found that the victims were Jewish civilians originating from the Republic of Moldova, murdered by the Romanian Armed Forces and, possibly, by the German Armed Forces during the first days of the Barbarossa Operation, in June 1941. Consequently, the case was placed under the competence of the Military Prosecutor’s Office attached to the Military Court of Appeal in Bucharest, which has the responsibility to investigate the crime of genocide. The case was closed on the grounds of res judicata, as the persons responsible for the perpetration of such crimes (civilians, military staff within the Army, Gendarmerie and Police) had been investigated, prosecuted and convicted by the Romanian judicial authorities after the conclusion of the Second World War, during the communist regime. 2. The identification of the second mass grave near the Popricani village in the Iași County In June 2019, the “Elie Wiesel” National Institute for Studying the Holocaust in Romania notified the Iasi Military Prosecutor’s Office with regard to the identification of other human bones in an area nearby the first mass grave. The Military Prosecutor’s Office opened the investigation, identifying another mass grave out of which 25 more victims, as well as fragments of human bones were extracted. The investigations have been extended to a larger area in the Vulturi Woods, under the suspicion that more mass graves with remains of the Jewish people executed by the Romanian and German armies involved in the Barbarossa Operation, could be found in that proximity. The investigations are still ongoing. 44  Photos from the archives ANnEX of the National Commission on IV International Humanitarian Law International Humanitarian Law Day event (“Carol I” National Defence University, Bucharest, 14 May 2017) International Humanitarian Law Day event (“Carol I” National Defence University, Bucharest, 14 May 2018) 45  International Humanitarian Law Day event (“Carol I” National Defence University, Bucharest, 14 May 2019) International Humanitarian Law Day poster – 14 May 2020 46 Ordinary session of the National Commission on International Humanitarian Law (The Ministry of Justice, Bucharest, 16 June 2016) (Sursa: https://dpap.mapn.ro/app/webroot/fileslib/upload/images/evenimente/aac.jpg) Ordinary session of the National Commission on International Humanitarian Law (The Ministry of National Defense, Bucharest, 19 December 2019) Ordinary session of the National