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§ 1. Influence of the international criminal law on definition of criminality of aggression in national criminal law

The international criminal law renders rather suyoshchestvennuju a role on definition in internal zakonodayotelstve to criminality of the acts which are considered as displays of aggression.

Therefore it is obviously necessary to study a question on limits and ways of influence of the international criminal law on national criminal law in the plan opredeleyonija aggression criminality.

In a question of a parity international and vnutrigosuyodarstvennogo the rights the science has developed three cores on -

78 boards: one dualisticheskoe and two monisticheskih. [69]

Supporters of the first monisticheskoj give concepts a primacy to the internal law. This theory poluchiyola development in the German legal literature on ruyobezhe XIX-XX also considered centuries international law as the sum vneshnegosudarstvennyh the rights, as «external gosudaryostvennoe the right».

The essence of this idea was reduced to that «the state reserves freedom to solve, observe mezhdunayorodnoe the right or not, depending on that, dictated
Whether it its interests ».79 Supporters of the given doctrine in essence deny international law in advantage gosudaryostvennogo the sovereignty. Position about a priority vnutriyogosudarstvennogo the rights over the international dominated in a domestic science during the Stalin period that was widely used for the justification of actions of the USSR on the world

80

To arena.

Other monist doctrine - the concept of a primacy of international law over vnutrigosuyodarstvennym is more extended. An ideological substantiation it has received in works of the western schools of law, where a parity between mezhdunayorodnym and interstate laws and orders as rasyosmatrivalos by analogy as a parity of the national law and order and internal norms of legal bodies (korpoyoratsy).

Now in an international law science voyozobladal dualistichesky the approach in understanding of a parity interstate and international права.81

The dualism essence consists that international and the internal law are considered not simply as various branches of law, and «represent otyodelnye laws and orders».82 Thus interaction between these two laws and orders for also the international law can send to is not excluded at all vnutrigosudarst -

79Курс the international The rights in seven volumes. T. 2. - WITH. 273
274.
80См.: Vyshinskij A.J. The international The right And The international
The organisation//Questions The international The rights And The international
Politicians. - M, 1949. - WITH. 481.
81

Brounli.

T.
1. - M. , 1977. - WITH.

67.

82Анцилотти D.Kurs of international law. T. 1. - M, 1961.

- WITH. 66.

vennomu, also the return situation is possible. However gosudaryostva create international law, rather the reverse. VstuYOpaja in the international obligations, the state uchityvayoet the national rules of law, possibility in sluyochae necessities of their change with a view of the adaptation to international obligations accepted by the state.

From these parcels in a science of the middle of the XX-th century obosnovayona a presumption according to which if for performance meyozhdunarodnyh obligations it is necessary to carry out opredeyolennye legislative actions they should be

83

Are carried out. [70]

This theory in practice is reduced to the following. If it is possible to name influence of norms of the domestic law primary (as the state proceeds at creation of norms mezhdunayorodnogo the rights from positions own zakonodatelstyova) in the presence of already operating rules of law mezhyodunarodnogo character it should recognise their primary value over norms internal prayova.

Such state of affairs is reflected in basic documents of international law.

So, item 27 of the Viennese Convention on the right mezhdunarodyonyh contracts from May, 23rd, 1963 [71] specifies that the contract state-participant «cannot refer to positions of the domestic law in quality opravdayonija defaults of the contract by it».

The priority of norms of international law means, that the state common right consists of two legal systems: interstate legal system and meyozhdunarodnoj legal system of the state; and in case of the conflict advantage is given to international law.

Hence, norms of the internal law not only cannot contradict norms of international law, but should specify and provide realiyozatsiju requirements of international legal norms more likely.

Now the majority domestic avtoyorov considers international treaties of Russia as sources

85

Its criminal law, [72] and it means, that definition of a crime of aggression in international law should rasyotsenivatsja as a corresponding crime on natsioyonalnomu to the criminal law.

Such understanding of a parity of two legal systems - international and interstate - has found zakonodayotelnoe registration in constitutions of the majority of the developed states, [73] including in ch. 4 items 15 of Constitution RosYOsii.

Let's consider the most widespread points of view about ways of influence of international law on vnutriyogosudarstvennoe.

D.B.Levin believed, that three ways of actuating of norms of international law in ramyokah the interstate law and order take place: sending to mezhyo
dunarodnomu to the certificate; the reception and transformation of the last

87

In the internal law. [74]

The given position has received criticism on the basis of that direct action of norm of international law at otyosylke to last can undermine the sovereignty gosudaryostva. Further the science went on a recognition way transyoformatsii as core «a way of realisation mezhdunayorodnogo the rights by the edition the state of internal normative acts... In maintenance of execution of the international obligation with it». [75]

A number of authors carries to transformation all the ways long and forms of realisation of international law by means of the right interstate, including a straight line retsepyotsiju the international norm in the internal law or otyosylku the internal law to the international norm. [76]

Others allocate sending in an independent way of interaction, as at it applied inside goyosudarstva the instruction of the international norm not priobretayoet character of the interstate instruction; and noryomy the ratified contract can be considered transforyomirovannymi (retsepirovannymi) in internal zakonodayotelstvo only in case there are law instructions that the international treaty is a part vnutrenyonego the country rights. [77]

A number of authors notices, that the ratified contract becomes operative the internal law, and about it "transforyomatsii" in state legal system cannot be and speeches.

It is represented, that more universal way of application of the international criminal law is the perception norms of the Criminal law of instructions mezhduyonarodnogo the rights. Such perception can be spent in essence three ways:

1) by textual inclusion of norm mezhdunarodyonogo the rights in the criminal legislation to execute the international treaty;

2) by inclusion of norm of international law in the criminal legislation, and the instruction mezhdunayorodnogo the contract does not establish the rigid form vospriyojatija its instruction in the internal law;

3) by change of already existing norms ugolovnoyogo legislations to execute international dogoyovora.

On the basis of the given parcels in the theory it was offered, along with direct sending, to define next ways of influence of international law on national ugoyolovnoe the legislation:

- "Reception" - the international law certificate as istochyonik criminal law completely joins in the Criminal law without any changes, vvodityosja the new norm thus can or change the existing;

- "implementatsija" - already existing ugolovnoyopravovaja norm or more often) entered new norm Ugolov -

91 See, for example, Talalaev A.N.legal nature mezhduna -
nogo the law adapts the internal legislator in

92

International treaty execution.

Now it is represented pertinent to consider protseyoduru, according to which international-right the certificate vozdejyostvuet on the Russian Criminal law.

In the Constitution of the Russian Federation it is specified, that the Organic law strayony and federal acts have leadership on all teryoritorii the Russian Federation (ch. 1 item 3), and itself KonYOstitutsija Russia carries to exclusive conducting fedeyoralnogo the centre acceptance and change criminal zakonoyodatelstva (the item "about" item 71).

At the same time the conventional principles and norms mezhyodunarodnogo the rights and international treaties of the Russian Federation are a part of its legal system, and in sluyochae if «the international treaty of the Russian Federation establishes other rules, than statutory international treaty rules» (ch are applied. 4 items 15).

The constitution of Russia, speaking about «the conventional principles and norms of international law» as parts svoyoej legal system, directly supposes possibility kolliyozii between them and the federal act. And it protiyovorechie is authorised only according to mezhdunarodyonym the contract of the Russian Federation, that is that normayotivnym the certificate of international legal character which stands good in law for Russia.

The native contract. - M, 1963. - With. 252.

92 See: Kibalnik A.G. Introduction in the international criminal law. - Stavropol, 2001. - With. 192-193; Kibalnik A.G., Solomonenko I.G., Shibkov O. N. Principles and norms mezhdunarodyonogo the rights as criminal law sources. - Stavropol, 2000. - With. 21-24.

According to the Federal act of the Russian Federation «About mezhduyonarodnyh contracts of the Russian Federation» from July, 15th, 1995, [78] international treaty of the Russian Federation is an integral part of legal system of Russia (item 5).

International treaty coming into force can be made in several ways - joining to the contract, contract ratification, the statement of the contract or the fact of the conclusion the parties of the contract. [79]

If the international treaty does not demand the edition of the interstate certificate for its application, it dejyostvuet in territory of Russia is direct (item 3 of item 5 of the Federal act «About international treaties of the Russian Federation»).

The criminal code is the federal act, and only in it the bases and limits of the criminal liability for the committed crime, and the novels establishing criminal otvetstvenyonost can be defined, «come under to inclusion in the present Code» (ch. 1 items 1 UK the Russian Federation).

Hence, change of conditions criminal otvetyostvennosti for this or that act provided mezhyodunarodnym by the contract of the Russian Federation, demands their direct inclusion in text UK.

Such situation should be resolved according to the item "and" ch. 1 item 15 of the Federal act «About international treaties of the Russian Federation», defining, that any international treaty, which execution demands «change dejstyo

vujushchih or acceptances of new federal acts, and also establishing other rules, than are provided zakoyonom », comes under to obligatory ratification.

Literal comparison of positions of the item of item 353, 354 UK the Russian Federations and international legal documents allow utyoverzhdat, that norms of the Russian criminal law, opreyodeljajushchie an aggression crime are implementiroyovannymi from corresponding positions of the international criminal law.

We not without reason speak about "norms" Russian ugolovyonogo legislations. Really, in the item of item 353 and 354 UK the Russian Federation is established criminality accordingly: playonirovanija, preparations, razvjazyvanija or conducting agresyosivnoj war and public appeals to razvjazyvaniju agresyosivnoj wars.

Thus, UK the Russian Federation includes a little sayomostojatelnyh the structures which are displays agresyosii under the national law: result implementatsii became adaptirovanie international law positions, usyotanavlivajushchih aggression criminality, in the norms of the Russian criminal legislation which do not have straight lines corresponding to them (perhaps, "literal") analogues in international law.

Also owing to international law express indication (the Convention on inapplicability of a limitation period to war crimes and crimes against humanity from November, 26th, 1968 [80]) in item 78 item, 83 UK the Russian Federation produblirovano position about neischislenii limitation periods criminal otyo
vetstvennosti and a verdict of guilty for the committing a crime, provided by item 353 UK the Russian Federation.

Influence of the international criminal law on nayotsionalnoe in a kind implementatsii norms about an aggression crime is characteristic for the criminal legislation zayorubezhnyh the countries.

In modern constitutional and criminal zakonoyodatelstve the foreign states conventional be a priority of norms of international law over internal legislation; in many countries inclusion of norms of international law in vnutyorennjuju legal system is legislatively issued.

Hence, norms of international law as a whole, and about an aggression crime - in particular, it is possible rastseniyovat as sources of internal criminal law of the foreign states.

In the countries of system of the continental law the usual legal rule considers inclusion in internal legal system entered for these states owing to international treaties and obligations.

For example, article 25 of the Constitution Federal ResYOpubliki establishes Germany, that «the conventional norms of international law are a component of the federal right», and also «they have advantage before laws and generate the rights and duties nepoyosredstvenno for the persons living in territory Federa -

96

tsii ». [81]

Similar instructions contain in item 96 KonstituYOtsii of Spain: «lawfully concluded and officially opubliyo
The international treaties forged in Spain constitute

97 part of its internal legislation ».96 [82]

The most accurate regulation of application of norms mezhyodunarodnogo the rights as sources internal zakonodayotelstva is characteristic for 55 Constitutions of France (item 55): «Dogovory or agreements, properly ratifiyo

tsirovannye and approved are valid, exceeding force of internal laws, from the moment of publication under condition of application of each agreement or the contract another hundred -

98

ronoj ». [83]

So, as a rule, norms of international law become internal law sources in the countries of continental system under following conditions:

Observance of a certain order of the introduction meyozhdunarodnogo contracts in force for this or that state (ratification, official opublikovayonie and so forth);

Reciprocity of application of norms of international law contracting parties.

The concept of modern criminal law bolshinstyova the countries of continental system is based on ideas of a primacy of universal values (actually - mezhduyonarodnyh) over national, and, hence, podchineyonie national legal systems to the right world soobshcheyostva. Legal gosuyodarstva the western politicians and lawyers carry To number of discriminating signs not only

Leadership of the law,

But also its conformity mezhdunarod -

99 nomu to the right. [84]

In new criminally-legal certificates of the European countries these positions have received direct fastening.

So, conceptual idea new UK France javljayoetsja realisation of a principle of a primacy of international law over the interstate. [85] despite lacking in UK France of 1992 of direct legislative instructions on advantage of the international norm over norm natsioyonalnogo the rights, this principle are consistently realised in the Special part.

Favourable feature German Criminal zakoyona is express indication in its text that «the international Conventions» have primary force before the national legislation - that is konstiyotutsionnoe the instruction about a priority of norms of international law in essence produblirovano in the most criminal zayokonodatelstve. The Germany which has become by the initiator two miyorovyh of wars, has fixed in criminal zakonodatelstyove criminality as preparations of aggressive war, and instigation for aggressive war (§§ 80-80а). [86]

Let's especially underline, that in German UK preparation agresyosivnoj wars is a crime if Germany as this act «creates danger of war» for the Germany participate in such war «».

Similar position contains in UK Sweden: chapter 19 item 2 establishes punishability of actions of the person, koyotoroe violent means or with foreign poyomoshchju «creates danger of involving of Kingdom in war or other military actions».102 we Will notice, that express indication on criminality of aggressive war in Swedish UK is absent, that, probably, speaks poyostojannym a neutrality of the Sweden.

The International legal certificate can be regarded and as a direct source of criminal law in respect of a regulation of responsibility for aggression.

Item 5 UK of Poland of 1997 also testifies to it, in particular, speaking about limits of action of the Polish Criminal law - last is not applied, when «the international treaty which party javljayoetsja Republic Poland, establishes other». The aggression criminality in Polish UK is defined too independently («who unties and wages aggressive war - nakazyvayoetsja...» - § 1 items 117). It is interesting, that UK Poland analoyogichno Russian considers as independent crime against peace «public appeals to razvjazyvaniju agressivyonoj wars» (§ 3 items 117).103

At last, rather curious position contains in UK the Netherlands: in the item 107а a number of restrictions on a recognition criminal variety of acts against safety of the state if they are made in case of a confrontation which «cannot mean vojyonu and in which the Netherlands is involved for individual or collective self-defence or for restoration mezhyodunarodnogo the world and safety» contains. [87]

102

The criminal code

The criminal code

Sweden. - M, 2000.

Republics Poland.

WITH. 81.

Minsk, 1998.

WITH.

A little bit other situation is observed at the analysis of international legal norms as sources ugolovnoyopravovogo an interdiction for aggression in the countries of system of the general (Anglo-Saxon) right.

So, the English legal doctrine usually starts with a recognition «existence of a consensus that... The international law is a part of the right of England». [88] Moreover, «all rights, powers, obligations, otyovetstvennost and restrictions which are established by Contracts or arise from them... Should be applied in the United Kingdom without the subsequent acts and to be included in its right». [89]

It would seem, that the criminal legislation of the countries of a general law in general recognises norm of the international certificate as the direct source and not treyobuet respective alteration. Such mezhdunarodnoyopravovoj the document in the English legal doctrine poluyochil the name «samoispolnimogo contracts».

However, application in internal criminal jurisyodiktsii England and other countries of a general law «samoispolni - mogo contracts» in practice occurs a little in another way.

According to the most widespread doktrinalnoj positions, according a right to define, whether is

The international norm by a part of the right of England it is given angly -

107

skomu to court. [90]

Such position causes censures from the English lawyers considering, that national pravoyoprimenitel cannot solve any way, whether the international treaty is obligatory for England or not - only in this case «the Great Britain will be included again into a circle of the states following the international standards of freedom and justice». [91]

However, existing practice of application mezhdunayorodnogo the rights in the national criminal jurisdiction hayorakterna now not only for VelikobritaYOnii, but also for other countries of a general law, including the USA and Canada.

So, «the Canadian courts, in essence, have accepted the such

The approach to the international conventional law, as English courts ». [92] It is remarkable, that such approach to the international certificates of criminally-legal character neredyoko conflicts with constitutional zakonodayotelstvom the named states.

For example, according to section 2 of item 6 of the Constitution

The USA, «dogovory which are concluded or will be concluded

The United States, are the Supreme right stra - ny ». [93] it would Seem, declaration of a priority of norms mezhyo
dunarodnogo the rights the Organic law of the United States assumes their direct or implementirovannoe action in territory of the USA. And the first variant otnoyositsja just to action "samoispolnimogo" the contract which are not requiring "statement" by the internal legislator.

But pravoprimenitel almost all countries of a general law does not recognise action practice samoispolnimogo the contract and demands incorporation of the last in the state national law.

So, L.Henkin (L. Henckin) directly approves, that «many, there can be a majority international objazayotelstv the USA. Are considered as"nesamoispolnimye"and should join in the domestic law through zakonodayotelstvo or the certificate of executive powers, that is why. It any more the contract, and implementirujushchy the certificate which shows -

111

sja the country right ». [94]

Now in the USA it is considered almost an axiom, that «only the Congresses, instead of those authorities which conclude international treaties, can create criminal zako -

112 nodatelstvo ». [95]

So, in the general law countries there are cases prjamoyogo infringements by internal legislation obshchepriznanyonogo a priority of international legal norms. Such spoyosob actions of the international certificate criminally-legal hayoraktera (including about aggression) as it neposredstyovennoe application in territory of these states in prinyotsipe is excluded. The norm of international law can javyo
ljatsja a criminal law source only at it inkoryoporatsii (receptions or implementatsii) in the national criminal legislation of the countries of a general law. Thus big (if not bolshee) value incorporation of the international legal instruction not so much in statutyonoe has the right, how many in the judicial precedent.

Not looking at a recognition generality for mezhdunarodnoyopravovymi norms (including establishing otvetstvenyonost for an aggression crime) the status of sources ugoyolovnogo the rights of the developed states as a whole, certain distinction in ways of such recognition between the countries continental and a general law remains.

On the other hand, the fact of a recognition of aggression preyostupleniem in the international criminal law, and also about a priority of norms mezhdunarodyonogo the rights over the national allow to approve the constitutional positions, that the international criminal law promotes unification of definition of criminality of aggression in national zakoyonodatelstve the countries of various legal systems. This chayostnyj the conclusion confirms fundamental position that the international law is effective fakyotorom rapprochements of criminally-legal systems various go -

113

sudarstv.

112 Henkin L. U.S. Ratification of Human Rights Conventions//American Journal of International Law. - 1995. - № 2. - P. 347.

113 See: Naumov A.V. Rapprochement of legal systems as a result razyovitija criminal law HH century and its prospect in XXI century//the State and the right. - 1998. - № 6. - with. 56-57; Naumov A.V.influence of norms and international law principles on rapprochement of criminal law of various systems//Criminal law in the XXI-st century. - M, 2002. - With. 18-23.

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A source: MALAKHOVA OLGA VALEREVNA. AGGRESSION AS the CRIME ON the INTERNATIONAL And NATIONAL CRIMINAL LAW. The dissertation on competition of a scientific degree of the master of laws. Stavropol - 2003. 2003

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