Crimes of aggression in the practice of the International Criminal Court: current issues and prospects for their resolution

Potapenko Sergei Viktorovich Doctor of Law Professor, Dean of the Faculty of Law of the Federal State Budgetary Educational Institution of Higher Education 'Kuban State University' Krasnodar territory, Krasnodar, Rashpilevskaya str. 43 kvv20242024@mail.ru Other publications by this author     Kudryavtsev Vladislav Leonidovich Doctor of Law Professor; Department of Criminal Law and Procedure of the St. Petersburg Institute (branch) of the Federal State Budgetary Educational Institution of Higher Education 'All-Russian State University of Justice (RPA of the Ministry of Justice of Russia)' 199178, St. Petersburg, V.O., 10th line, 19, letter A niipg2055@mail.ru Petrenko Elena Gennad'evna PhD in Law Associate Professor; Department of State and International Law; I. T. Trublin Kuban State Agrarian University Kalinin St., 13, Krasnodar Territory, 350044, Russia niipgergo2002149@mail.ru Malinovskii Oleg Nikolaevich PhD in Law Head of the Department, Associate Professor; Department of Civil Procedure and International Law; Kuban State University Stavropol str., 149, Krasnodar Territory, 350040, Russia gvv20250gvv@mail.ru Spektor Lyudmila Aleksandrovna PhD in Economics Associate Professor; Dean of the Faculty of Law, Social Technologies and Psychology at the Institute of Service and Entrepreneurship (branch) of the Don State Technical University in Shakhty, Rostov Region 346500, Russia, Rostov region, Shakhty, Shevchenko St., zd 147 niipg2030@mail.ru

Malyutin Aleksandr Danilovich student; Faculty of Law, Social Technologies and Psychology ; Institute of Service and Entrepreneurship (branch) of the Don State Technical University in Shakhty, Rostov Region 147 Shevchenko St., Shakhty, Rostov region, 346500, Russia niipg2035@mail.ru

Introduction.

The issues of criminal responsibility for the crime of aggression in international law are analyzed in detail in the works of L. Z. Bagandova, ^{[1, pp. 51-65]} H. M. Dzhantaev, ^{[2, pp. 64-68]} A. G. Kibalnik, ^{[3, pp. 300-310]} M. L. Prokhorova, ^{[4, pp. 189-187]} Yu. A. Solovieva, ^{[5, pp. 77-84]} by D. S. Nuriev, ^{[6, pp. 244-246]} as well as a number of other authors. In turn, the problems of the organization and activities of the International Criminal Court (hereinafter also referred to as the ICC) are explored in the works of I. Y. Bely, ^{[7, pp. 89-91]} S. V. Glotova, ^{[8, pp. 45-53]} G. I. Bogush, ^{[9, p. 18]} E. Y. Muratova, ^{[10, pp. 44-52]} D. A. Medvedev, ^{[11, pp. 3-42]} as well as some other scientists. At the same time, the proportion of works devoted to modern problems related to the consideration of cases of aggression by the above-mentioned international criminal justice body seems, in our opinion, insufficient, which was the reason for the choice of this topic of scientific research, the purpose of which is not only to formalize and analyze the above-mentioned problems, but also to develop, as well as justification of the system of measures for their resolution. Achieving this goal is possible by solving a number of scientific tasks, including: a) analysis of the main stages of the emergence and development of the Institute of International criminal Justice; b) research of the genesis and stages of development of the legal institute of the international crime of aggression, as well as the practice of considering cases of crimes of aggression in the ICC, functioning on the basis of the Rome the Statute; c) formalization and study of the main problems related to the consideration of cases of aggression by the above-mentioned international criminal justice body; d) development and justification of a system of measures to resolve these problems.

The topic of scientific research under consideration is relevant for a number of reasons.

Firstly, the ICC is the first permanent body of international criminal justice, as opposed to the International Military Tribunal (hereinafter referred to as the ICC). and the International Military Tribunal for the Far East (hereinafter referred to as the ICTY), which were formed by the victorious countries in World War II and temporarily operated international criminal justice bodies with jurisdictional priority over national legislation, as well as from the International Criminal Tribunal for the Former Yugoslavia (hereinafter referred to as the ICTY) and the International Tribunal for Rwanda (hereinafter referred to as the ICTR) which were international criminal justice bodies formed by the United Nations to prosecute those responsible for international crimes in Rwanda and in the countries of the former Yugoslavia (which also had jurisdictional priority over the national legislation of these countries). Due to the fact that the last two courts are no longer in operation, and the first two ceased their activities immediately after the Nuremberg and Tokyo trials back in the 40s of the last century, the analysis of the organization and activities of the ICC is especially important for determining the outcome of its activities and the degree of necessity of its existence and development in the future.

Secondly, this international criminal justice body is the only international intergovernmental organization authorized to consider criminal cases of crimes of aggression against individuals who are citizens of countries participating in the Rome Statute. Therefore, the analysis of the ICC's activities is important from the point of view of its use as a measure to prevent international crimes of aggression and a mechanism for bringing individuals responsible for these crimes to international criminal responsibility.

Thirdly, in recent years, the international law system has been subjected to unprecedented pressure from individual States, as well as representatives of the international bureaucracy, which consists in ignoring the norms of international law by the latter and introducing a policy of "double standards" regarding the possibility of their application, during which, as Deputy Chairman of the Security Council of the Russian Federation Dmitry Medvedev rightly noted, A number of international intergovernmental organizations are turning into "legal nullity" ^{[11, p. 3]} when these organizations begin to carry a dependent, fake character, covering up the imposition of the interests and needs of a number of developed countries of the planet on all other states (under the pretext of allegedly protecting human rights and freedoms). Of course, one can criticize the respected Dmitry Anatolyevich for being overly emotional in assessing the activities of these international intergovernmental organizations, but he surprisingly accurately noticed a tendency to reduce their political influence in the international arena. In this regard, an analysis of the actual results of the ICC's activities (especially in relation to the investigation of crimes such as crimes of aggression) is important for determining the prospects for the development of the modern system of international law as a whole and the development of mechanisms for its international legal guarantees, an important element of which are the international criminal justice authorities.

This work uses a number of scientific methods, in particular: formal-logical; comparative-legal; formal-legal; historical-legal; elements of institutional analysis, etc.

The subject of the study is the international judicial practice of criminal prosecution for crimes of aggression.

The scientific novelty of this work consists, in particular, in the development of a system of proposals for: a) improving the international regulatory framework on the formation and functioning of the ICC; b) optimizing and developing the Rome Statute; c) resolving the system of conflicts in the provisions of articles of the Rome Statute.

The main text.

War as a phenomenon of social reality is characteristic of mankind in all epochs of its existence. It is accompanied by the death of not only those involved in the fighting, but also the civilian population. At the same time, various material values are destroyed. Humanity has made repeated attempts to create conditions to prevent wars in the future and to reduce the negative consequences of wars, to humanize them, so to speak. In this regard, national and international legal doctrines have attempted to classify the actions of belligerent States, their coalitions, and individuals who directly carry out certain military operations into permissible and unacceptable during the war.

Back in the Middle Ages, the warring countries tried to resolve this contradiction (between achieving the goal of war, which is victory and the unconditional defeat of the enemy, and its maximum possible devastating consequences for the peoples of the warring states) by consolidating unwritten chivalric codes of honor of war (codes of chivalry), which provided for certain rules of warfare and rules for the treatment of prisoners, peaceful civilian population , etc. In the capitalist era, repeated attempts were also made to "humanize" both the fighting and the attitude of combatants towards the civilian population (which resulted in the adoption, for example, of the Geneva Convention of 1864). At the beginning of the 20th century, attempts were made in scientific doctrine and international documents to substantiate the concept of the crime of aggression, which is committed during military operations. ^{[1, pp. 51-65]}

Any war is inherently aggressive. Aggression, by all accounts, is motivated destructive behavior aimed at harming another person or object. Therefore, the attempt to classify the behavior of combatants and belligerent countries into constructive and destructive can be regarded as a kind of legal fiction.

An attempt is being made to classify as unacceptable (unlawful, destructive, criminal) behavior such acts that contradict the norms of international law, or interstate treaties, agreements (of the belligerents). If these acts do not contradict the above-mentioned international legal norms (which is actually an extremely rare phenomenon), then they cannot be considered crimes.

At the same time, crimes of aggression committed by States and individuals should be distinguished. The crime of aggression committed by a State (or a group of them) must be characterized by the use of illegal force, the form of its use must pose a serious danger to humanity, and the nature and scale of its use must be a gross violation of the UN Charter. Individuals may be considered committing a crime of aggression if they had actual authority to direct or control the political or military actions of the aggressor State, and they themselves directly planned, prepared, initiated or carried out this act of aggression.

The first stage of attempts to define the crime of aggression at the international level can be attributed to the period before World War II, when in the documents of the League of Nations (for example, in its Declaration on Aggressive Wars of 1927), as well as in various interstate treaties, agreements, conventions (in particular, in the Briand-Kellogg Pact of 1928, The London Conventions on the Definition of Aggression of 1933, etc.), attempts were made to consolidate the term "aggressive war", "aggressor state", etc. So, in 1928, many states ratified the above-mentioned Pact, which declared war an exceptional measure, prohibiting countries from using it as an instrument of foreign policy. But these attempts have not received worldwide recognition.

The second stage was marked by an assessment of the consequences of the Second World War, when the Ministry of Internal Affairs and the Ministry of Internal Affairs were established, and charters defining their activities were adopted. And then, for the first time, the possibility of bringing to justice and punishing the main war criminals of the European Axis countries (and then the war criminals of the defeated Japanese Empire) was secured. In particular, the illegality of aggressive war as a crime against peace was recognized in the Statute of the Ministry of Internal Affairs of 08.08.1945. In 1946, the International Military Tribunal ruled that aggression is "the highest international crime" because "it contains accumulated evil. Judicial practice on the crime of aggression is modest - it is limited only to trials following the results of the Second World War. Since the Tokyo and Nuremberg Tribunals, no international court has yet convicted a single person of the crime of aggression.

The next stage in consolidating the concept of State aggression as an international crime was marked by the adoption of the Definition of Aggression (by approving it on 12/14/1974 at the 29th session of the UN General Assembly), which for the first time formulated a list of specific acts regarded as manifestations of aggression (aggressive war). Aggression is the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations, as set out in this definition (Article 1 of the Convention). However, it calls aggression an international offense of a State (group of States) against another State (group of States) as the most serious and dangerous form of the illegal use of force. But there is nothing said about the possibility of bringing individuals to international criminal responsibility for the crime of aggression.

The next stage became possible after the defeat of the USSR and its allies in the Cold War. The Rome Statute was developed and adopted, which provided for the creation of the ICC, which began its activities after the approval of the Rome Statute by the majority of the participating countries.

We have been counting the current stage in the development of international criminal justice with the possibility of prosecuting persons who have committed crimes of aggression since the Kampala Review Conference of 2010, at which the ICC member countries adopted definitions and conditions for the exercise of the court's jurisdiction over this crime. In particular, the Rome Statute provided for the possibility of criminal prosecution of individuals who have actual powers in terms of military or political leadership of a country for actions to plan, prepare, initiate and carry out aggression by a given state against other countries in such forms when, due to the nature, severity and scale of the aggression, it is a gross violation of the UN Charter..

At the same time, the process of creating an international criminal justice body that would be authorized to handle cases of crimes of aggression has also gone through a number of stages. The first period was associated with the decision of the victorious countries in World War II to bring individuals, the leaders of the Axis countries, to international criminal responsibility. The Ministry of Internal Affairs and the Ministry of Internal Affairs were created, which had exclusive jurisdiction independent of the national jurisdiction of the defeated countries. Some of the war criminals were executed by the decision of the tribunals. However, the outbreak of the Cold War slowed down the process of creating a unified and permanent international criminal justice body. Various configurations of such a court were actively discussed within the framework of the United Nations, its structural divisions, and organizations. The third stage became possible with the collapse of the USSR. The legal framework for international criminal justice authorities has begun to take shape. The fourth stage was related to the creation of the provisional Bodies of International Criminal justice (ICTY and ICTR), which existed until 2017. The fifth stage is directly related to the activities of the ICC (2002-present).

However, the ICC's activities in investigating crimes of aggression are associated with numerous problems.

Firstly, the ICC's activities are politicized. As noted by a number of authors, it is dependent on public authorities in a number of Western countries and on representatives of the international bureaucracy. ^{[12, pp. 54-61]} The ICC uses so-called "double standards" in relation to citizens of various states. Thus, the ICC stubbornly ignores the numerous crimes committed by the Ukrainian military (in particular, the military aggression in the Kursk region of the Russian Federation, accompanied by the killing of civilians, numerous rapes, robberies), which was confirmed by the Russian investigative authorities and courts that worked after the liberation of the country from invaders. The solution to this problem seems to be comprehensive. Thus, the mechanism for the formation of the ICC judiciary should be changed (judges should be elected by the population according to their place of citizenship). It is also necessary to adopt the ICC Code of Judicial Ethics, which should specify the grounds for bringing ICC judges to criminal responsibility for corruption, bribery, etc.

Secondly, an important problem is the fact that the main giant countries have withdrawn from the Rome Statute (USA, China, India, Russian Federation). Two of these countries are permanent members of the UN Security Council. Therefore, the status of the ICC is high today, but it is not supported by the real participation of States. This is confirmed by the data of opinion polls conducted, for example, in the United States, according to which the majority of the population does not support the activities of the ICC, or treats it with distrust. ^{[13, p. 40]} The solution to the problem will be to exclude the provision that the ICC can initiate proceedings by decision of the UN Security Council.

Thirdly, the fact that the ICC's jurisdiction covers a narrow number of crimes is also a significant problem. In addition to crimes of aggression, the jurisdiction of this international criminal justice body includes acts of genocide, war crimes, and crimes against humanity. It seems that the list of formulations is clearly politicized and needs to be supplemented (for example, with the composition "ecocide", which is really relevant and topical).

Fourthly, an important problem is the low efficiency of the ICC (for more than 20 years of its activity, it has considered only a few dozen criminal cases, although thousands of war crimes have been committed in Africa alone, resulting in millions of victims). The solution to the problem is seen in a more active position of the civil society of the participating countries of the ICC, which should encourage the ICC to be active, to really fight crimes of international importance.

Fifth, the issue of the ICC's jurisdiction is also a significant problem. The Rome Statute does not provide for the possibility of bringing cases against individuals who are not citizens of the participating countries of the ICC (and who did not consent to the ICC's work on a specific criminal case). However, in 2024-2025, the ICC issued a number of subpoenas against heads of state not participating in the Rome Statute (in particular, Russian President Vladimir Putin, Israeli Prime Minister Benjamin Netanyahu). This is a violation of the State sovereignty of these countries and the relevant principle of international law. The solution to this problem is seen in the consolidation of a direct ban on such actions in the Rome Statute.

Sixth, a major problem of the ICC is the fact that the majority of cases are devoted to crimes of genocide and war crimes. There are no criminal cases on the crime of aggression brought to the final today. It seems that there is no solution to this problem due to the fact that, as we noted earlier, the international status of the ICC is constantly declining. And the ICC does not have a real mechanism for bringing individuals to justice for these crimes.

Seventh, an important problem is the issue of determining the statute of limitations for criminal prosecution for the crime of aggression. The Rome Statute notes that the terms of reference for these criminal cases are not provided in principle, but all acts that were committed before the start of the ICC's work do not fall under the Rome Statute. The solution to this problem is seen in the agreement by the participating countries of the Rome Statute on the possibility of extending its effect to crimes committed before the entry into force of this international document.

Eighth, a major problem is the existence of many contradictions between the Rome Statute and the national criminal legislation of the ICC member countries (this, by the way, was the basis for the withdrawal of the United States and a number of other countries from it). Thus, the minimum age of criminal responsibility under the Rome Statute is 18 years. The national legislation of a number of countries (including Ukraine, a member of the ICC) provides for a lower age of criminal responsibility for similar crimes.

Ninth, an important problem is the fact that there is no consensus (approach) in international law and international legal doctrine regarding the definition of the crime of aggression of individuals, the constructive elements of the composition of this crime, as well as an exhaustive list of acts on this crime. As a number of authors rightly point out in this regard, the "crime of aggression" is solely "for a number of reasons ... firstly, there is no definition of it ... secondly, there is an exhaustive list of acts that fall under the signs of this crime, ... thirdly, a list of constructive elements of the composition." However, it should be noted that the solution to this problem is seen not only in the elaboration of the Rome Statute on these issues, but also in the harmonization of the national criminal legislation of the participating countries on similar offences.

Tenth, the conflict-of-laws nature of a number of articles of the Rome Statute (in particular, Article 12) is a significant problem. In particular, in the context of military operations and a change of government in defeated countries, it is possible that they will "voluntarily" agree to the extension of the Rome Statute to their citizens (as if "retroactively"), which, in our opinion, is very dangerous (since this moment can be used to persecute individuals objectionable to the winners).

Eleventh, the establishment of a judicial precedent in the Rome Statute (for example, in article 12), which is peculiar to only a part of the countries participating in the ICC, is also a somewhat problematic issue. We believe that this issue should be further discussed at the Review Conferences of these ICC member States.

Twelfth, the issue of the possibility of exemption from criminal liability of persons accused of committing crimes of aggression under the Rome Statute (in article 31) is also extremely controversial. These grounds are broad and very general in nature and can be used to evade criminal liability for these individuals, which requires more detail and clarification.

Conclusion.

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

1. International criminal justice after the end of the Second World War went through a number of successive stages in its development: a) the stage of formation and operation of temporary international military tribunals (IMT and IMTDV) with priority jurisdiction (relative to the national jurisdiction of the countries defeated in the war) in the 40s of the 20th century; b) the stage of discussion the basic principles of the organization and activities of the possible creation of a permanent international criminal justice body in the future (40-80-ies of the 20th century); c) the stage of formation of the legal framework for the creation of the ICC (1989-2002); d) the stage of the creation of temporary international criminal tribunals (ICTY and ICTR) (from 1993 to termination of their activities); e) the stage of the ICC's activities (from 2002 to the present).

2. It is necessary to distinguish the crime of aggression, which is an international offense of a State (group of States) against another State (group of States) in the form of the most serious and dangerous form of illegal use of force, from the crime of aggression of individuals (actually leading or controlling political or military actions of the State), expressed in planning, preparation, initiation or implementation an act of aggression, which by its nature, severity and scale is a gross violation of the UN Charter.

Attempts to consolidate the international crime of aggression of States and the international crime of aggression of individuals can be classified into a number of stages: a) the stage before the Second World War (for example, in the Declaration of the League of Nations on Aggressive Wars of 1927, in the Briand-Kellogg Pact of 1928, the London Conventions on the Definition of Aggression of 1933, etc.); b) the stage after During the Second World War during the organization and activities of the Ministry of Internal Affairs and the Ministry of Internal Affairs (in particular, in the Statute of the International Military Tribunal for the Trial and Punishment of the Main War Criminals of the European Axis Countries dated 08.08.1945); c) the stage of consolidating the concept of defining State aggression as an international crime (in particular, in the Definition of Aggression approved on 12/14/1974 at the 29th session of the General Assembly The United Nations); d) the stage of fixing the crime of aggression of individuals in the Rome Statute governing the organization and activities of the ICC; e) the stage of determining the jurisdiction of the court and the conditions for its implementation in relation to the above-mentioned crime (at the Kampala Review Conference of 2010).

3. Consideration of the crime of aggression, ICC is associated with several challenges, among which are the following: a) the politicization of the ICC, its dependence on the public authorities of a number of Western countries, as well as representatives of international bureaucracy, the use of them in "double standards" against citizens of different States; b) the absence to date, the number of participating countries to the Rome Statute of some of the largest and most developed Nations of the world (particularly the U.S., Russia, China, India, Israel, the Islamic Republic of Iran), the management of which has a claim to the ICC in respect of violation of the international principle of state sovereignty; C) a small number of offences in respect of which the ICC has jurisdiction (war crimes, genocide, crimes against humanity, crimes of aggression); g) low efficiency and effectiveness of the ICC for more than twenty years of work; d) problems with the jurisdiction of the ICC (in particular, when made attempts to prosecute individuals who are citizens of countries not participating in the Rome Statute); e) the lack of practice of the ICC completed criminal cases on the crime of aggression; g) the existence of problems with the period of limitation for bringing to criminal responsibility for the crime of aggression (article 29 of the Rome Statute does not set for this crime with no Statute of limitations, but under the jurisdiction of the International criminal court are not subject to acts committed prior to 01.07.2002); h) the existence of contradictions between the Rome Statute and the provisions of national criminal law on the crime of aggression (e.g., in terms of the minimum age of attracting persons to criminal responsibility, choice of measures of criminal responsibility, etc.); and) the lack of a common understanding in the international legal doctrine regarding the definition of the crime of aggression individuals; K) the lack of understanding about the structural elements of the crime due to the fact that the Rome Statute establishes a "floating" nature of the offences; l) a lack of understanding as to what acts constitute a comprehensive list of this crime; m) the conflicting nature of a number of articles of the Rome Statute (for example, article 12); h) the stipulation in article 12 of the Rome Statute of the Institute of judicial precedent, which is not typical of a large part of States parties to the Rome Statute; o) the presence of the controversial nature of some of the grounds for exemption from criminal liability of persons accused of crimes of aggression under the Rome Statute (article 31).

4. The resolution of these problems requires the development and implementation of measures, which includes, in particular: a) exclusion of politicization, corruption component in the work of the ICC by changing the order of formation of its judges, for example, through the election of judges of the ICC population, the adoption of a Code of judicial ethics of the ICC, fixing the Rome Statute of the ability to attract workers to the ICC accused of corruption, to the international criminal accountability and the implementation of international public control over the processes of formation and activities of the ICC, etc.; b) the exception mechanism of initiation of the ICC at the initiative of the UN Security Council (in connection with the participation of a number of the States permanent members of the UN Security Council in the Rome Statute); C) extension and detail of the offences in respect of which the ICC may have jurisdiction; d) increase in the intensity of the ICC, for example, by active participation in the involvement of international criminal liability of officials and servicemen of Ukraine (which is a party to the Rome Statute), which carried out genocide of the population of Donetsk and Lugansk region in the period 2014-2022 years declared their independence from Ukraine and the creation of independent States (DND and LNR); d) securing the Rome Statute of the ICC ban to initiate criminal proceedings against natural persons who are nationals of countries not participating in the work; e) the distribution of the Statute of limitations to international criminal responsibility for crimes of aggression committed before the entry into force of the Rome Statute; g) the toughening mechanism of the amendments to the Rome Statute in the definition of the criminal law of the trains (especially the crime of aggression), to exclude the possibility of political manipulation with them; h) enshrined in the Rome Statute of the minimum age of criminal responsibility for the crime of aggression with 16 years (since the legislation of several member countries of the Rome Statute provides for the possibility of military service persons until they reach 18 years of age); C) detail of the Rome Statute definition of crimes of aggression, securing structural elements of the composition of the crime, but also an exhaustive list of acts thereon; K) range resolution of conflicts in the provisions of the articles of the Rome Statute (for example, article 12); l) the elimination of the Institute of judicial precedent from the text of the Rome Statute; m) the reduction in the Rome Statute of the number of grounds for exemption from criminal liability of persons accused of crimes of aggression under the Rome Statute (for example, article 31).

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