Modern Problems of Examining Cases of Genocide by the International Criminal Court

Kudryavtsev Vladislav Leonidovich Doctor of Law Professor; Department of Criminal Law and Procedure; St. Petersburg Institute (branch) of the All-Russian State University of Justice (RPA of the Ministry of Justice of Russia) 199178, St. Petersburg, V.O., 10th line, 19, lit. A niipg2055@mail.ru Kulikova Anna Anatol'evna PhD in Law Head of the Department; Department of Labor Law and Social Security Law; Institute of Service Sector and Entrepreneurship of the Don State Technical University Acting Deputy Director for Academic Affairs; Administration; Institute of Service and Entrepreneurship of the Don State Technical University 346500 Rostov region, Shakhty, ul. Shevchenko, 147, building 2, office 2240 natulya_prodanova@mail.ru Other publications by this author     Oparin Vitalii Nikolaevich PhD in Law PhD in law, Associate Professor; Department of State and International Law; Kuban State Agrarian University named after I. T. Trublin Kalinin St., 13, Krasnodar Territory, 350044, Russia gvv20025gvv@mail.ru

Malyutin Aleksandr Danilovich Student; Department of Theory of State and Law; Institute of Service and Entrepreneurship (branch), Don State Technical University in Shakhty 346500, Russia, Rostov region, Shakhty, Shevchenko St., zd 147 niipg2010@mail.ru

Introduction.

Since the emergence of law and the state, crime, as a negative phenomenon of social reality, acts as a factor that destabilizes the development of society and the state. Therefore, the scientific analysis of the activities of public authorities in detecting, suppressing and preventing crimes, as well as the joint efforts of various States in this area within the framework of international cooperation, is always an urgent topic of relevant scientific research.

One of the most serious crimes is genocide, which makes it important to ensure the inevitability of bringing to criminal responsibility those who have committed such a crime.

The problems of international criminal prosecution of persons guilty of crimes against humanity and humanity are studied in detail in the works of A. G. Kibalnik, ^{[1, pp. 147-159]} E. Meze, ^{[2, pp. 54-61]} L. V. Inogamova-Hegai ^{[3, pp. 72-76]} D. V. Svetlichnaya, ^{[4, pp. 31-36]} S. V. Polunin, ^{[5, pp. 3-9]} as well as a number of other authors. An important role among the types of crimes against humanity is occupied by genocide, which is studied by the works of B. R. Valiev, ^{[6, pp. 300-301]} T. G. Daduani, ^{[7, pp. 158-162]} E. D. Smagina, ^{[8, pp. 212-216]} E. A. Malyarova, ^{[9, pp. 78-80]} V. A. Boriskina, ^{[10, pp. 73-77]} as well as some other scientists. In recent decades, the International Criminal Court, functioning on the basis of the Rome Statute, has played a key role in the international criminal prosecution of persons guilty of crimes under international law, whose jurisdiction was analyzed in the works of S. V. Burmistrova, ^{[11, pp. 10-17]} V. N. Belik, ^{[12, pp. 45-47]} as well as a number of other authors. A significant part of the criminal cases considered by this international court is devoted to genocide, which are studied by the works of H. A. H. Hassan, ^{[13, pp. 98-102]} I. V. Kholikov, ^{[14, pp. 231-239]} M. F. Khamidova, ^{[15, pp. 108-110]} S. G. Lysenkov, ^{[16, pp. 96-103]} as well as some other scientists. At the same time, the proportion of works devoted to the analysis of modern problems that hinder the optimization of the organization and activities of this International Criminal Court in cases related to crimes such as genocide remains low, which is why we chose this topic of scientific research, the purpose of which is not only to formalize and study the above-mentioned problems, but also to develop, as well as the justification of ways to resolve them.

Achieving this goal is possible by solving a number of scientific tasks, including the following: a) analyzing the post-war historical stages of the development of international criminal justice in terms of prosecuting those responsible for crimes against humanity; b) studying the legal status, powers, and structure of the International Criminal Court, established on the basis of the Rome the statute; (c) Analysis of the conditions for consideration by the International Criminal Court of criminal cases of crimes against humanity and humanity; (d) study of genocide as a type of international crimes under the jurisdiction of the International Criminal Court; (e) Formalization and analysis of the main problems impeding the optimal organization and operation of the International Criminal Court for the consideration of cases of genocide; (f) development and justification systems of measures to resolve the above-mentioned problems.

The object of the study is social relations related to the organization and functioning of the International Criminal Court (especially in terms of its consideration of criminal cases on such types of international crimes as genocide). The subject of the research is: the norms of international law devoted to the consideration of criminal cases of genocide by the International Criminal Court; materials related to the activities of this international judicial body; materials of international legal doctrine.

A number of scientific methods were used in the work, in particular: formal-logical; historical-legal; comparative-legal; method of analyzing specific legal situations; sociological; statistical.

The present scientific research has significant theoretical and practical significance for a number of reasons:

Firstly, despite the fact that the International Criminal Court was established relatively recently, the time has come to summarize the preliminary results of its activities in order to identify the main problems hindering its optimal organization and functioning, as well as to develop a system of measures to resolve them.

Secondly, the activities of the International Criminal Court are currently perceived ambiguously both by the leaders of individual national States and by representatives of the scientific legal community. Such contradictory opinions and views require a scientific analysis of the causes and grounds for their formation, as well as a system of factors justifying them.

Thirdly, the international political situation is currently unstable, and there are a significant number of local military conflicts and confrontations within individual nation-states in the world (for example, in Ukraine, Israel, and a number of African states). In the course of these conflicts and confrontations, crimes against humanity and humanity are committed daily, including genocide, which we consider to be the gravest crime against humanity. In this regard, conducting scientific research aimed at ensuring the inevitability of bringing to criminal responsibility persons who have committed genocide makes a significant contribution to the fight against this type of crime. Ensuring the inevitability of punishment for genocide for those responsible for its commission will be a factor preventing the commission of genocide in the future.

The main text.

After the end of World War II and the defeat by the victorious countries of Nazi Germany, as well as militaristic Japan and their allies, the system of international law underwent a fundamental change.

The United Nations was established and its Charter was adopted, the preamble of which stated the need to prevent such world wars and human rights violations in the future.

One of the legal guarantees that ensure these goals is the existence of international criminal justice. However, the international community has come a long way towards establishing a permanent international criminal justice body. This was due to the fact that there were numerous disagreements on this issue between the UN member states.

This process took place in several stages.

The first historical stage began after the formation of the United Nations. In particular, in 1948, the UN General Assembly, in its resolution, pointed out the need to create a special legal body that would permanently prosecute those responsible for committing crimes of genocide and other crimes of similar gravity. Work was carried out within the framework of the established International Law Commission and the possibility and desirability of establishing an international criminal court from the point of view of international law was substantiated. However, due to the outbreak of the Cold War and the lack of consensus among the USSR, China and Western countries regarding the concept of aggression, work in this direction was suspended.

During the second historical stage, which lasted for the entire period of the Cold War, the international community reached consensus only on the definition of genocide, crimes against humanity and war crimes, adopting relevant international documents on them. In fact, these definitions were based on an assessment of the results of the Nuremberg and Tokyo trials of persons guilty of war crimes, crimes against peace and against humanity during the Second World War in the 1940s. Some authors quite rightly point out that the very possibility of international criminal justice and the creation of international criminal courts originates from the positive results of the functioning of the above-mentioned Tribunals. ^{[5, pp. 3-9; 7, pp. 158-162; 16, pp. 96-103]} As tensions escalated during the Cold War and a bipolar world was created, the issue of establishing an international criminal court was not raised.

The third historical stage was marked during the destruction of the USSR in the late 1980s and early 1990s after the end of the Cold War. In particular, in 1989, the leadership of Trinidad and Tobago, under the influence of Western countries, appealed to the UN General Assembly with a proposal to create an international criminal court, which should be given powers in relation to crimes of a trans-State nature (for example, drug trafficking). In 1991, a bloody civil war began on the site of the rapidly collapsing Socialist Federal Republic of Yugoslavia, accompanied by acts of genocide against the civilian population. Another round of genocide began in Africa (in particular, during the civil war in Rwanda, hundreds of thousands of people became victims of genocide in 1994).

The UN Security Council established ad hoc tribunals in connection with these events: the International Tribunal for the Former Yugoslavia (ICTY) and the International Tribunal for Rwanda (ICTR). The purpose of the creation of the Tribunals is to bring to criminal responsibility those responsible for unleashing war and genocide. Despite the fact that a number of scientists rightly dispute the legitimacy and (or) effectiveness of these international judicial organizations, ^{[1, pp. 147-159; 2, pp. 54-61; 14, pp. 231-239]} they influenced the very process of the international community's awareness of the necessity and possibility of the functioning of international judicial bodies in the field of criminal justice.

During the fourth historical stage (after most of the countries participating in the UN recognized the work of the above-mentioned Tribunals as important and necessary) at the UN General Assembly (52nd session) The issue of establishing a permanent international judicial body for criminal matters was raised. A diplomatic conference was convened in Rome, during which, on 17.07.1998, representatives of 120 States signed the Rome Statute, which became the legal basis for the establishment of the International Criminal Court (which entered into force in 2002 after its ratification by 60 participating States).

For the first time in the history of mankind, this international judicial body has become a permanent international organization in the field of criminal justice, established on the basis of a treaty between States, the purpose of which is to ensure the inevitability of punishment against persons who have committed serious crimes dangerous to the international community.

The International Criminal Court has a specific legal status. On the one hand, it is an independent international organization (and not a structural unit of the United Nations), its financing is carried out directly by the participating states (and voluntary contributions from other subjects of international or national law are also possible). On the other hand, he interacts with the UN structures (in particular, cases may be initiated by the UN Security Council within the framework of his activities).

The structure of the International Criminal Court is quite simple, consisting of: the Assembly of States Parties (a governing, supervisory and legislative body, where each country participating in the Rome Statute is represented by 1 representative); the Office of the Prosecutor (responsible for organizing and conducting investigations and prosecuting suspects of crimes); the Judicial Authority (in particular consisting of 18 judges); the Secretariat (responsible for non-judicial aspects of the activities of this international intergovernmental organization); the Presidium (managing its affairs).

To date, the International Criminal Court has jurisdiction over 4 categories of international crimes: aggression, genocide, war crimes and crimes against humanity.

As a general rule of the Rome Statute, the court has the right to consider crimes that are committed either on the territory of the participating countries or by their citizens. Other countries retain the right to recognize the jurisdiction of the International Criminal Court in relation to a specific crime (group of crimes). The jurisdiction of the court is complementary, that is, if a country carries out criminal prosecution against persons who have committed crimes falling under the jurisdiction of the International Criminal Court independently, then the procedure is not initiated in it. But in cases where the country does not commit these actions, or there is no actual possibility of bringing the offender to justice (for example, he is located in another country party to the Rome Statute, but which does not have an agreement on mutual extradition of criminals with the first country), then criminal prosecution is initiated in this international judicial body.

This circumstance fundamentally distinguishes the International Criminal Court from the previously existing international criminal tribunals, where the priority of international criminal prosecution was assumed.

The Rome Statute makes a reservation that if law enforcement activities undertaken by a State do not comply with international procedural standards or are aimed at protecting a person associated with a crime from the jurisdiction of the International Criminal Court, it has the right to administer justice in this case.

What are the mechanisms for launching the activities of this international judicial body on a specific crime?

First, a State party may refer a specific situation to the Prosecutor of the International Criminal Court for consideration. For example, in 2024, the International Criminal Court began preliminary hearings on a case initiated by the Republic of South Africa recognizing Israel's harsh actions in the Gaza Strip as genocide and demanding that Tel Aviv immediately cease hostilities in the Palestinian enclave. ^[27]

Secondly, the UN Security Council also has this right (including in relation to countries that are not parties to the Rome Statute).

Thirdly, the Prosecutor of the International Criminal Court can initiate procedures on his own initiative, but subject to a number of conditions: his actions must be confirmed by a decision of the Pre-Trial Chamber; it is necessary that the chamber include at least three judges who will be independent and impartial; each warrant or charge issued by the Prosecutor is also They must be approved by a committee of three judges acting on the basis of strictly defined legal principles, taking into account all the evidence provided by the Prosecutor.

What cases are most often considered by the International Criminal Court?

An analysis of his practice for 2002-2025 showed that cases of such a crime as genocide are most often considered.

The Rome Statute defines genocide as any of the following acts committed with the intent to destroy, in whole or in part, any national, ethnic, racial or religious group as such: a) killing members of such a group; b) causing serious bodily injury or mental distress to members of such a group; (c) The deliberate creation of living conditions for a group that are designed to completely or partially destroy it.; (d) Measures designed to prevent childbearing among such a group; (e) Forcible transfer of children from one human group to another.

At the same time, as a number of authors rightly point out ^{[3, pp. 72-76; 9, pp. 78-80]}, it is necessary to distinguish the composition of the international crime "genocide" from the composition of the international crime "crimes against humanity". Crimes against humanity are defined by the Rome Statute as "any of the following acts when they are committed as part of a widespread or systematic attack on any civilian, and if such an attack is committed knowingly: murder; extermination; enslavement; deportation or forced displacement of populations; imprisonment or other severe deprivation of physical liberty in violation of fundamental norms of international law." human rights; torture; rape, sexual slavery, forced prostitution, forced pregnancy, forced sterilization, or any other form of sexual violence of comparable severity; persecution of any identifiable group or community on political, racial, national, ethnic, cultural, religious, gender, or other grounds that are universally recognized as unacceptable under international law in connection with any acts referred to in this paragraph or any crimes falling under the jurisdiction of the International Criminal Court; enforced disappearance of persons; the crime of apartheid; other inhumane acts of a similar nature, intentionally causing severe suffering or serious bodily injury or serious damage to mental or physical health."

We believe that genocide is one of the most serious crimes against humanity. Indeed, it should be distinguished from crimes against humanity. What do we base our opinion on?

The Statute of the International Military Tribunal of 08.08.1945 (Article 6) identified crimes against humanity (along with crimes against peace and war crimes). The Nuremberg Tribunal in 1946 found 16 Nazi criminals of the 3rd Reich guilty of crimes against humanity.

The term "genocide" became established in international legal terminology a little later. In particular, the Convention on the Prevention and Punishment of the Crime of Genocide was adopted by resolution 260 (III) by the UN General Assembly only on 12/09/1948. This Convention entered into force on 12.01.1951, it established the international legal status of the concept of "genocide" as the gravest crime against humanity and gave its legal definition.

In this regard, genocide was already separated from another type of crime, crimes against humanity, in the Rome Statute.

Thus, crimes against humanity and crimes against humanity are different categories of crimes. Although some researchers still consider these concepts to be equivalent. ^{[25, pp. 1011-1019]} The same point of view is also imposed by the largest public information sites (for example, Wikipedia). ^[26]

However, the consideration of cases in the International Criminal Court, as rightly noted by the majority of scholars dealing with international criminal justice ^{[8, pp. 212-216; 10, pp. 73-77; 11, pp. 10-17; 12, pp. 45-47]} is associated with numerous problems, including the following:

Firstly, an important problem is, in our opinion, the insufficient number of criminal law structures under which this court can conduct legal proceedings. In fact, in addition to genocide, this court, as we noted earlier, considers only 3 types of crimes (crimes against humanity, war crimes and crimes of aggression). War crimes are violations of the laws and customs of warfare governing the behavior of armed groups during the war and protecting civilians, prisoners of war, cultural property, etc. Crimes of aggression have generally been considered only since 2010. And after the events in Ukraine, this criminal legal structure is politically biased. For example, the International Criminal Court has issued subpoenas against a number of Russian government and political figures in connection with the events in Ukraine (although the Russian Federation is not a party to the Rome Statute today). The solution to this problem is seen in the revision of the list of criminal law structures that fall under the jurisdiction of the International Criminal Court (in the direction of increasing their number).

Secondly, the extremely inefficient nature of the activities of the International Criminal Court is a definite problem. We conducted a statistical analysis of the amount of money spent on the International Criminal Court by the countries participating in the Rome Statute (based on article 117 of this international document). It turned out that in 2024 alone, the budget of the International Criminal Court exceeded 220 million US dollars. These data correlate with statistical and sociological studies of a number of other analysts, in particular, T. Aliyev. ^[19] Thus, according to our estimates, 3.92 billion dollars have been spent on the activities of this international judicial body over the past 23 years. Such a significant amount is due to the fact that for several years significant amounts of contributions have been paid to the budget of the International Criminal Court of the United States (their amount, according to the Rome Statute, is determined taking into account the GDP of the participating country). Our statistical analysis showed that only 33 cases had been considered by the International Criminal Court at the end of last year. ^[20] This number is less than the intensity of the consideration of cases in the national courts of states, for example, Russia. ^[21]

Moreover, according to our statistical research, 57% of criminal cases "crumbled" in court (including as a result of incorrectly executed documents), or were not brought to a logical conclusion. The solution to the problem is to improve the qualifications of judges, eliminating bias in their activities (for example, by electing judges in the participating countries on an alternative basis by the population).

Thirdly, the fact that the International Criminal Court is a politically dependent structure is a major problem. Many researchers have noted this problem. ^{[12, pp. 45-47; 22, pp. 48-52]} In our opinion, it was created at one time as an element of pressure on nation-states from the core countries of the world capitalist system. Currently, judges in this international judicial body are under pressure from the international bureaucracy (in particular, the United Nations), on the one hand, and from the national bureaucracy of the countries of which they are citizens, on the other hand. The solution to the problem may be, on the one hand, a multi-stage system for electing judges to positions, and on the other hand, they can be invited from countries that are not parties to the Rome Statute (for example, citizens of the Russian Federation, the United States).

Fourth, a major problem is the definition of the jurisdiction of the court. As we noted earlier, there are attempts to initiate cases by the International Criminal Court against persons who are citizens of States that are not parties to the Rome Statute (in particular, citizens of the Russian Federation). This is unacceptable and requires amendments to the Rome Statute, which will explicitly prohibit such actions.

To date, the Court's jurisdiction includes only crimes that were committed either on the territory of the participating State or by a national of the participating State. If neither the personal nor the territorial principle is respected, then the jurisdiction of the International Criminal Court is not possible. This provision guarantees national State sovereignty, according to which the right to decide whether or not to subject its citizens or its territory to the jurisdiction of this international judicial body falls within the exclusive competence of the national Governments of countries that do not participate in the Rome Statute. However, the situation with the jurisdiction of cases of genocide, as noted by a number of researchers ^{[6, pp. 300-301; 13, pp. 98-102]} is complicated by the fact that there are two exceptions to this principle in the existing version of the Rome Statute. On the one hand, the UN Security Council may, through a resolution adopted under Chapter VII of the UN Charter, refer to Court a certain situation affecting crimes that were not committed either on the territory of a participating State or by citizens of a participating State (it used this authority when it referred to Court the situation in Darfur, a city in Sudan, - which is not a party to the Rome Statute). On the other hand, in accordance with paragraph 3 of Article 12 of the Rome Statute, a State that is not a party to the Statute may, through a statement submitted to the Registrar of the Court, recognize the exercise of jurisdiction by the Court in respect of a specific crime.

However, an analysis of the practice of the International Criminal Court showed that these two exceptions were distorted, in particular, without a decision of the UN Security Council (as well as without a decision of the Russian leadership), subpoenas were issued to the International Criminal Court against Sergei Shoigu and a number of other government and political figures of the Russian Federation. In fact, these documents are not. These documents violate the state sovereignty of the Russian Federation (a country that is a permanent member of the UN Security Council and which did not consent to such actions by the International Criminal Court).

Fifth, the number (and, most importantly, the qualitative composition) of States parties to the Rome Statute also looks questionable. On the one hand, there are more than a hundred of them (this international document has been ratified by more than 125 countries over the years). On the other hand, 2 States that are permanent members of the UN Security Council are not parties to the International Criminal Court (the Russian Federation and the United States). A number of huge countries (for example, India) are also not parties to the Rome Statute. Many States that play a significant role in the global political arena are also not members of the International Criminal Court (for example, Israel, the Islamic Republic of Iran, etc.). The solution to this problem is seen either in involving the aforementioned countries in the Rome Statute, or in reducing the legal status of the International Criminal Court (in particular, by losing the mechanism initiation of its activities by decision of the UN Security Council).

Sixth, a huge problem in recent years is the fact that a number of States have complaints about the work of the International Criminal Court. The main claims against this international judicial body are related to its powers, which, according to a number of States, threaten their State sovereignty. These claims are also confirmed by sociological studies, according to which, for example, in the United States, more than 74% of 1,000 adult citizens surveyed opposed the country's participation in the International Criminal Court in 2024. ^{[23, pp. 70-71]} In this regard, US President Donald Trump signed a decree on financial sanctions against the International Criminal Court on 02/06/2025. which this international judicial body was accused of illegal actions against Israel, an ally of the United States.^[17] The sanctions imposed by the US President on the International Criminal Court have significantly complicated its work. This international court has partially lost access to banking and payment systems (accounts in banking organizations converted into US dollars have been blocked), as well as to the IT infrastructure. The staff of the International Criminal Court, who insisted on the preference of the jurisdiction of this international judicial body over the national jurisdiction of Israel (which posed a threat to the implementation of the international principle of State sovereignty), resigned. ^[18] Thus, these sanctions have strengthened the above-mentioned international principle.

The Russian Federation also has a number of complaints about the work of the International Criminal Court. In particular, in May 2024, the conclusion of the International Legal Council under the Ministry of Foreign Affairs of Russia "Problems of the legality of the International Criminal Court" was published on the website of the Ministry of Foreign Affairs of the Russian Federation, where, on behalf of the Russian Federation, it is noted that "this international judicial body has departed both from its original goals laid down by the Rome Statute, and in general The norms and principles of international law ... show signs of its politicization and bias ... the totality of violations of international law, procedural omissions, and interference by extraneous political factors committed by the ICC and its prosecutor raises the question of the Court's loss of credibility in the eyes of a significant part of the international community and, as a result, its legitimacy." ^[28]

The solution to the above-mentioned problem, in our opinion, may be, on the one hand, lowering the legal status of this international judicial instance (by excluding the possibility of initiating judicial proceedings by decision of the UN Security Council), and on the other hand, the inclusion in the Rome Statute of a direct ban on the initiation of judicial proceedings against states that are not members of the Rome Statute..

Seventh, a significant problem is the fact that the International Criminal Court, as noted by a number of authors,^[24] does not have its own law enforcement agencies that it can rely on when conducting international criminal prosecution of persons accused of crimes under the Rome Statute. In fact, he is forced to use the help of the law enforcement agencies of the participating countries. However, this problem cannot be solved by increasing the staff of this international court (supplementing it with detectives, etc.), as this will create threats of violation of state sovereignty for the countries participating in the Rome Statute. Part of the solution to this problem may be: closer cooperation of the International Criminal Court with the law enforcement agencies of the participating States; elaboration of the Rome Statute in the field of this cooperation, etc.

Eighth, in our opinion, the issue of determining the statute of limitations for crimes criminalized for genocide is also a significant problem. Thus, on the one hand, acts committed before the entry into force of the Rome Statute do not fall under the jurisdiction of the International Criminal Court. But at the same time, according to article 29, no statute of limitations is established for crimes falling under the jurisdiction of the Court. The solution to the problem may be to extend the statute of limitations for bringing persons to justice for genocide (if the crimes were committed earlier than the Rome Statute came into force).

Ninth, in our opinion, the list of punishments for genocide established by the Rome Statute is questionable. In particular, the death penalty is not applied. However, in some national States that are parties to the International Criminal Court, the death penalty may be applied for genocide. This conflict should be eliminated.

Tenth, a certain problem, in our opinion, is the fact that the composition of crimes provided for in the Rome Statute (including genocide) is "floating", since article 9 of this international document (Elements of crimes) provides for the possibility of interpretation in the application of the article of the Rome Statute. Amendments shall be adopted by a two-thirds majority vote of the members of the Assembly of States Parties on a proposal from the States Parties, the judges (by a majority vote), or the Prosecutor.

Eleventh, we believe that the Rome Statute includes rules of both substantive and procedural criminal law, which partially contradict the relevant legal norms of national legislation. The solution to the problem is seen in bringing the legislation of the member countries of the International Criminal Court into line with the Rome Statute.

Twelfth, in our opinion, some provisions of the Rome Statute are of a conflict-of-laws nature. Thus, the conflict-of-laws nature is inherent in article 12 of this international instrument, which allows the International Criminal Court to apply, in addition to the norms set out in the Rome Statute, Elements of Crimes, Rules of Procedure and Evidence, as appropriate.: a) international treaties, principles and norms of international law, including the generally recognized principles of international law of armed conflict; b) general principles of law taken from national laws of the legal systems of the world. However, the practical activities of the International Criminal Court, as we noted earlier, show that the court violates both the norms of international law (in particular, the UN Charter) by sending subpoenas to officials of the Russian Federation without a decision of the UN Security Council, and the norms of Russia's national legislation (given that it is not a party to the Rome Statute).

Thirteenth, we believe that a certain problem is also the problem of judicial precedent (article 12 of the Rome Statute), according to which the International Criminal Court can apply the principles and norms of law in accordance with how they were interpreted in its previous decisions. However, not all countries participating in the Rome Statute recognize judicial precedent as a source of law. The solution to the problem is seen in the revision of the text of the said article of the Rome Statute.

Fourteenth, a significant problem, in our opinion, is the age of criminal responsibility stipulated in article 26 of the Rome Statute, which states that the International Criminal Court has no jurisdiction over any person under the age of 18 at the time of the alleged commission of a crime. However, in the vast majority of countries, responsibility for genocide begins at a younger age (for example, in Russia – from the age of 16). This conflict needs to be resolved by lowering the age of criminal responsibility in article 26 to 16 or 14 years. An argument can be made by the fact that minors are actively used to carry out genocide in a number of countries. For example, ISIS, banned in Russia, used underage fighters to kill citizens of Syria and Iraq.

Fifthly, in our opinion, some grounds for exemption from criminal liability (article 31 of the Rome Statute) for crimes committed (including genocide) are questionable.

In particular, this international document makes it possible to withdraw from criminal prosecution persons who were in a state of intoxication. But it is known that these drugs have been used in the armies of a number of Western countries since the time of Hitler. Further in the same article, it is allowed to remove persons from criminal liability under the pretext of using them to "reasonably protect themselves or others", as well as if "an act that allegedly constitutes a crime falling under the jurisdiction of the Court is a forced response to the threat of imminent death or imminent infliction of serious bodily injury or continuation of causing such damage to himself or to another person, and that person takes the necessary and reasonable measures to eliminate this threat, provided that this person does not intend to cause more harm than the one he sought to prevent." In our opinion, these grounds for exemption from criminal liability should not be applied to such a variety as genocide. These provisions require an exception from the Rome Statute.

Conclusion.

In the course of our research, we have drawn a number of conclusions, including the following:

1. The process of development of international criminal justice in terms of the prosecution of those responsible for crimes against humanity went through several historical stages after the Second World War: a) the stage of consolidating in international law the need to create a special legal body that would be engaged on an ongoing basis in the criminal prosecution of those responsible for the commission of crimes of genocide and others crimes of similar gravity (40-50 years of the 20th century); b) the stage of the Cold War, when the above-mentioned issues were removed from the international legal doctrinal discourse (50-80 years of the 20th century); c) the stage of initiation and creation of international criminal tribunals (in particular, the ICTY and the ICTR) at the initiative of the UN Security Council (1989-1997) d) the stage of initiation and creation of the International Criminal Court, operating on the basis of the Rome Statute (1998 - present).

2. The above-mentioned International Criminal Court, unlike the previously existing international criminal tribunals (for example, Nuremberg, Tokyo, ICTY, ICTR), is guided in its activities by the principle of complementary jurisdiction, implying, on the one hand, the priority of national criminal jurisdiction over international (in terms of criminal prosecution of persons who have committed crimes mentioned in the Rome Statute) on the other hand, the possibility of initiating international criminal prosecution of the above-mentioned persons in cases where the State in whose territory the crime was committed or of which the offender is a national is unwilling or actually unable to investigate and bring charges against him.

3. Our statistical analysis of all criminal cases reviewed by the International Criminal Court revealed that genocide cases account for the largest percentage of cases (among all four categories of crimes under consideration). ^[20] More than thirty persons were charged with genocide (some of them were acquitted, several charges were dropped, some persons were sentenced to imprisonment, cases against a number of persons were terminated due to their deaths, a number of cases are in the pre-trial stage, in the process of consideration, in relation to some people's sentences were overturned, and a number of people were subpoenaed). ^[20]

4. Despite the fact that the definition of genocide in the Rome Statute basically coincides with the definitions of this crime in the national criminal legislation of the countries participating in the Rome Statute, in most countries the definition of its concept is more detailed. In particular, in the Russian Federation (which signed the Rome Statute but later withdrew from it), the definition of genocide contains a number of clarifying details (for example, regarding the recognition as genocide of the forced resettlement of any national, ethnic, racial or religious groups, the purpose of which is their complete or partial destruction). At the same time, the Rome Statute provides for the possibility of a "floating nature" of crimes (including genocide), in which the composition of the crime can be supplemented with new elements (which, in turn, can be proposed by any State party, judges making a decision by an absolute majority, the Prosecutor, and subsequently adopted by a majority of two a third of the votes of the members of the Assembly of the Participating States).

5. Optimal organization and the International criminal court for cases of genocide prevents a number of problems, among which are the following: a) narrow the number of criminal legal formulations, for which the international criminal court can exercise judicial proceedings (genocide, crimes against humanity, war crimes, crime of aggression); b) the very low efficiency of the international judicial body, reflected in the fact that for more than 20 years his work was considered a small number of cases, most of which were not brought to its logical conclusion, and the number of persons brought to criminal responsibility in the form of imprisonment is less than a fifth of the total number of persons were indicted; C) political dependence and involvement of the International criminal court, on the one hand, from the international bureaucracy (particularly the UN), and on the other hand, from the public and the political elites of countries, citizens of which are judges and other officials of the international judicial body (expressed, for example, in the form of frequent corruption scandals with the participation of the aforementioned persons); g) there are problems with the jurisdiction of the International criminal court (in particular, there are cases where the court initiated proceedings against States that have not ratified the Rome Statute, for example in relation to officials of the authorities of the Russian Federation), which has a disputed legal status (on one hand, it is not included in the official structures of the UN and on the other hand, is mandated by the Rome Statute to prosecute the representation of the UN Security Council); d) parties to the International criminal court are not all of the States of the world (in particular, the Rome Statute has not signed or out of it, USA, China, India, Israel, the Islamic Republic of Iran and several other countries), and among the countries of the former republics within the Soviet Union signed and ratified the Rome Statute, only Estonia, Latvia, Lithuania, Moldova, Georgia, Tajikistan, Armenia, and Ukraine; e) in a number of countries have claims to the work of this international judicial institution-related, in particular, with his powers that threaten state sovereignty; g) the International criminal court is no legal enforcement mechanism to enforce the decisions (for example, no own power structures); h) the existence of problems with the period of limitation for bringing to criminal responsibility for genocide (on the one hand, article 29 of the Rome Statute does not set for this crime with no Statute of limitations, and on the other hand, under the jurisdiction of the International criminal court are not subject to acts committed prior to 01.07.2002); C) there is a conflict between international and national legislation of individual countries in terms of criminal penalties for genocide (especially before the international court authority may prescribe the death penalty as a criminal sanction); K) the problems can be attributed to the previously mentioned "floating" nature of the crimes under the Rome Statute (including genocide); l) a particular problem is the fact that the Rome Statute embodies the substantive and procedural international criminal law; m) the number of articles of the Rome Statute is a conflict (for example, article 12); h) the problem is fixed and the Institute of judicial precedent (in particular, article 12), which is not characteristic of a large part of States parties to the Rome Statute; o) a particular problem is the age of criminal responsibility (for example, article 26 speaks of 18 years of age at the time of the alleged Commission of a crime), while the national criminal legislation establishes lower age (in Russia, for example, under article 357 of the "Genocide" of criminal responsibility from 16 years of age); p), a controversial nature of some of the grounds for exemption from criminal responsibility of individuals accused of committing genocide under the Rome Statute (article 31).

6. Their solution will require the consolidation and implementation of a number of events, among which are the following: a) expand the number of criminal legal formulations, for which the international criminal court can exercise judicial proceedings (in particular, the compositions can be attributed to the rehabilitation of Nazism, ecocide, international terrorism, etc.); b) increase the efficiency of the international judicial body by, for example, active participation in the involvement of international criminal liability of officials and servicemen of Ukraine, carried out the genocide of the population of Donetsk and Lugansk region in the period 2014-2022 years (as there is irrefutable evidence, video evidence, etc.); C) the exclusion of any political dependence and engagement in the activities of the International criminal court (this can be achieved, for example, by conducting a multi-stage election of candidates for judges, Prosecutor, etc. in the States parties to the Rome Statute, as well as by securing the international Institute of social control in relation to the activities of the international judicial organ); d) elimination of the initiation of the International criminal court of justice against States (citizens), not ratified the Rome Statute (by fixing the corresponding amendments to the text of the Rome Statute); d) elimination of the initiation of proceedings in the International criminal court in the presence of veto at least one permanent member of the UN Security Council (or if a representative of the state abstained), as two States that are permanent members of the UN Security Council (USA and Russia), are not signatories to the Rome Statute); e) the elimination of the violation of state sovereignty of nation-States (especially countries that are not parties to the Rome Statute) in the process of the International criminal court; g) spread the Statute of limitations to international criminal responsibility under the genocide for crimes committed before the entry into force of the Rome Statute; h) the harmonization of the national legislations of the countries that are signatories to the Rome Statute, in accordance with the Rome Statute in the determination of criminal penalties for genocide; C) the toughening mechanism of the amendments to the Rome Statute in the definition of the criminal law of the trains (especially the genocide), to exclude the possibility of political manipulation with it; K) range resolution of conflicts in the provisions of the articles of the Rome Statute (for example, article 12); l) the exclusion of the Institute of judicial precedent from the text of the Rome Statute; m) lowering the age of criminal responsibility under the genocide in the Rome Statute to 16 years (especially in light of the fact that military service in the countries participating in the Rome Statute, drafted, or are planned to be exempted persons under 18 years of age); h) reduction in the Rome Statute of the number of grounds for exemption from criminal liability of persons accused of committing genocide under the Rome Statute (for example, article 31).

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