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an aggression Crime as infringement of human rights and prospect of the international criminal liability for fulfilment of the certificate of aggression

the war Interdiction as way of the permission of state differences has rather short history. Up to the termination of the First World War war was considered as quite legitimate way of the permission of interstate political and economic contradictions.

the Charter of League of the Nations from June, 28th, 1919 the Charter became the first attempt to limit the law of arms provided obligations of member states of League of the Nations to respect and keep territorial integrity and political independence of all members of the League, the certain mechanism of a peaceful settlement of interstate disputes (arbitration or proceeding, representation of dispute for the permission to League Council), and also introduction of sanctions against the state resorting to war, contrary to the League Charter [362] .

the Contract on refusal of war as the tool of a national policy from August, 27th, 1928 became Certain step to a direction delegitimatsii aggressive war (Known as «Pact Briana-Kelloga»). Article 1 of the given international legal certificate proclaimed, that the states participating in it «condemn references to war for settlement of state differences and refuse that in the mutual relations as the tool of a national policy» [363] [364] [365] . However, certainly, given international legal certificates had no direct relation to criminalisation razvjazyvanija aggressive war, i.e. to an establishment of the international criminal liability of physical persons for the given act.

for the first time the criminality of aggressive war (in understanding of the international criminal law) has been recognised in the Charter of the Nuremberg tribunal. The modern concept «an aggression crime» was considered by the given international legal certificate as "crime against peace" and included «planning, preparation, razvjazyvanie or conducting aggressive war or war in infringement of international treaties, agreements or assurances or participation in a general plan or the plot directed to realisation of any of the actions set forth above». During the post-war period the principle peace

permissions of state differences becomes jus cogens the international public law, having received, however, and the written fastening first of all in the United Nations Organization Charter.

the principle of abstention from application of force or force threat became other major international legal principle. As one of main objectives of the United Nations of item 1 of item 1 of the Charter of the Organization provides among other

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acceptance of measures for «suppression of certificates of aggression».

The maintenance of concept of aggression, however, long enough has not been formulated in international law. The given blank has been filled by the Resolution ¹ 3314, accepted XXIX session of General Assembly of the United Nations on December, 14th, 1974 [366] Further this definition has laid down in a basis of the corpus delicti of the aggression fixed in Roman statute MUS.

it is necessary to notice, that the above-stated fastening in the Roman statute has appeared is stretched in time. If in item 5 listing the international crimes (a category of the international crimes), coming within the jurisdiction Vessels, an aggression crime it has been fixed from the very beginning concerning definition of the given crime and a procedure concerning the specified act of jurisdiction of Court of the state-participant of Diplomatic conference in Rome could not come to the general denominator.

Corresponding positions of the Roman statute have been accepted at the first Conference on the review, according to the Statute (Kampala, Uganda, on May, 31st - on June, 11th, 2010) .

the Concept and the maintenance of a crime of aggression have been given in the Conference of the item accepted by the state-participants 8-bis the Statute («an aggression Crime»). Thus the maintenance of the certificate of the aggression, given in specified article and constituting actus reus a considered international crime, has practically repeated the maintenance of the aforementioned Resolution of HECTARES of the United Nations.

article 8-bis the Roman statute proclaims:

«1. For the present Statute“ the aggression crime ”means planning, preparation, initiation or realisation by the person which in a condition to preside or the control over political or military actions of the state, the certificate of aggression, which, owing to the character, gravity and scales, is gross violation of the Charter of the United Nations Organization.

2. For the item 1 “the aggression certificate” means application of the armed force of the state against the sovereignty, the territorial integrity or political independence of other state or otherwise, not compatible to the United Nations Organization Charter. Any of following actions, irrespective of declaration of war, will be qualified according to the Resolution ¹ 3314 (XXIX) General Assemblies of the United Nations Organization from December, 14th, 1974:

a) on territory of other state or any military occupation, what temporality it would not carry intrusion or an attack of armed forces of the state, growing out of such intrusion or an attack, or any annexation with force application in territory of other state or its part;

b) bombardment by armed forces of the state of territory of other state or application of any weapon by the state against territory of other state;

c) blockade of ports or coast of the state armed forces of other state;

d) an attack state armed forces on overland, sea either air forces or sea and air fleet of other state;

e) application of armed forces of one state which is in territory of other state under the agreement with the accepting state, in infringement of the conditions provided in the agreement, or any continuation of their stay in such territory after agreement cancellation;

f) the action of the state allowing that its territory which it has put at disposal of other state, was used by this other state for fulfilment of the certificate of aggression against the third state;

g) zasylka the state or on behalf of the state of the armed gangs,

groups, irreguljarnyh forces or mercenaries who carry out certificates of application of the armed force against other state, having so serious character that is to certificates equivalently listed above or its considerable participation in them ». [367]

the approved amendments to Elements of crimes detail the objective party of a considered crime. So, item 1 of Introduction of the item 8-bis Elements of crimes proclaims, that any of the certificates mentioned in item 2 of the item 8-bis of the Statute, is qualified as the aggression certificate [368] . Point 3 of the given Introduction specifies, that the term"rough"(concerning infringement by the perpetrator of aggression of the Charter of the United Nations) is objective [369] . Directly basic part of the item 8-bis Elements of crimes in the item 1 lists various forms of the criminal actions constituting actus reus crimes of aggression: «the Infringer planned, prepared, initiated or carried out the aggression certificate» [370] [371] . At the same time item 3 of Elements of crimes supplements and specifies the description of the objective party of a considered crime: « The aggression certificate has been made: application of the armed force by the state against the sovereignty, the territorial integrity or political independence of other state or otherwise, not compatible to the United Nations Organization Charter ». Thus, the Roman statute considers aggression as a crime with the material structure, demanding approach of socially dangerous consequences in the form of the perfect certificate of aggression. Only in this case kriminalizujutsja planning, preparation and initiation of the specified criminal action. Thus specificity of a considered crime consists that the come true certificate of aggression represents not simply criminal act, but also come (upon) socially dangerous consequence in the form of criminal infringement of the sovereignty of the corresponding state and the basic rights of its citizens.

the Objective party of a crime of aggression provides aggression committing a crime only in the form of criminal acts (criminal inaction owing to specificity of the given criminal action is excluded). It is necessary to notice, that the international law theory discriminates two kinds of aggression - direct and indirect. Direct aggression is made directly by armed forces of this or that state. Indirect aggression is carried out by the armed gangs, groups, irreguljarnymi forces or the mercenaries who formally are not a part of armed forces of any state (or hiding the accessory to them), but thus organizuemymi the certain state or operating from his name or under its commission. However both in case of a straight line, and in case of indirect aggression that fact is obvious, that «the start mechanism» considered crime realises the certain state headed and supervised by certain physical persons (that assumes execution by the given persons of the international criminal liability for the specified criminal action).

the Concrete criminal acts constituting the objective party of a crime of aggression, depend on a stage (or forms) realisations of the given crime (planning, preparation, initiation or realisation). In particular, planning of the specified crime can include working out of the ideological and political and military concept of planned criminal action, drawing up of plans of military actions, mobilisation plans, working out of offers on structure, structure, a disposition and problems of armed forces, the organisation of prospecting activity, a supply with information and other actions. I.I.Karpets writes in the given occasion: « Planning of aggressive war is a work of staffs by definition of terms of war, forces and means, objects of the first blows second etc., directions of these blows » [372] [373] . Differently, aggression planning represents the actions of intellectual character which are setting as the purpose achievement of the purposes of aggression.

in turn, preparation of a crime of aggression includes practical realisation of the preparatory measures directed on the subsequent realisation of the conceived and developed certificate of aggression. Similar measures can include a re-deployment of army connections, carrying out of full or partial mobilisation, transfer of economy of the state into« military rails », etc. Differently, unlike aggression planning, preparation of the given certificate represents the measures of organizational-military and material character directed on maintenance of readiness for conducting of aggressive war.

Initiation of the certificate of aggression assumes acceptance of the political decision on inclusion of "the start mechanism» given international criminal action. In the Charter of the Nuremberg tribunal similar act was designated as razvjazyvanie aggressive war. However razvjazyvanie aggressive war assumes wider set of actions, including actions on a direct management of corresponding military operations (i.e. on direct realisation of the certificate of aggression). The decision on initiation of the certificate of aggression can be accepted by exclusively person (or a group of persons), any state carrying out a real political management.

realisation of the certificate of aggression assumes a direct management (first of all military) the concrete actions listed in item 2 of the item 8-bis of the Statute. With reference to formulations of the Charter of the Nuremberg tribunal fixed in positions of the Statute concept «realisation of the certificate of aggression» is comparable as to concept «conducting aggressive war», and, partially, with concept «razvjazyvanie aggressive war». At the same time some concrete actions provided by item 2 of the item 8-bis of the Statute (in particular, the actions provided by subitem « f "and" g »), are not covered above-stated [374] by formulations of" the Nuremberg right », showing more modern and full sight on actus reus aggression crimes.

it is necessary to notice, that a significant element of the objective party of a crime of aggression is gravity of the illegal measures of power pressure undertaken by the certain state on other state. The criterion of gravity of perfect criminal actions is one of the basic conditions for realisation concerning the given acts of jurisdiction MUS. Positions about understanding concerning amendments to the Roman statute of the International criminal court, concerning aggression crimes (the Appendix III to Resolution RC/Res.5 accepted by the first Conference under the review on June, 10th, 2010) (Further - Positions), establish, that «aggression represents the most serious and dangerous form of illegal application of force» (but not

any specified application). Besides, Positions mark, «that definition of fulfilment of the certificate of aggression demands consideration of all circumstances of each concrete case, including weight of corresponding certificates and their consequence, according to the United Nations Organization Charter» [375] [376] (item 6 of Positions). Point 7 of Positions says, that «for that establishment, whether is the aggression fact obvious infringement of the Charter of the United Nations Organization of three components - character, weight and scale - should be enough to support infringement definition as“ obvious ”. Any component in itself is not significant enough to correspond to the standard of obvious infringement» [377] .

the aggression Crime, being tjagchajshim the international criminal action, has set of objects of the criminal trespass. Most obvious of the specified objects are the state sovereignty and territorial integrity of the state, podvergshegosja to the aggression certificate. However in a context of the given dissertational research it is necessary to recognise as object of a crime of aggression practically all set of human rights. To similar opinion adheres, in particular, and V.A.Kartashkin, naming aggression most gross infringement practically all fundamental laws and freedom of the person [378] [379] . In particular an aggression crime «collective human rights» break so-called, «the rights of the third generation». It is necessary to add, that the crime of aggression not only breaks basic human rights in itself, but also creates favorable conditions for fulfilment of other international crimes: a genocide, crimes against humanity and war crimes.

the person possessing the real political and-or military power in the state, carrying out the aggression certificate can be the perpetrator of aggression only. It is necessary to notice, that the possession the guilty person actual, instead of the legallistic power is meant. As underlines the item 8-bis Elements of crimes, the subject of considered criminal action should be «the person whom in a condition actually to preside or the control for political or military dej -

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stvijami the state which have made the certificate of aggression».

the Subjective party of a crime of aggression can be expressed exclusively in the form of the express intent. Necessity of presence of the express intent for quality mens rea considered criminal action proves to be true specificity of a legal status of subjects of the specified crime. Besides, it is necessary to consider the lasting character of the specified crime assuming comprehension of the purposes of the certificate of aggression. G.Verle, in particular, writes the following: «If the subject operates, despite comprehension of the purposes of war, it assotsiiruet itself(himself) with them and operates with animus aggressions» [380] [381] [382] . Thus, comprehension by the subject of the considered criminal Acts specifies in presence at the given person of aggressive intent, i.e. special intention on fulfilment of the certificate of aggression, that (in aggregate with features of the objective party of the specified criminal action and presence of the special subject) unequivocally specifies in the express intent as the unique form of fault of a crime of aggression.

the purpose and motive of committing a crime of aggression have no essential value for qualification of the given criminal action.

unlike other kinds of the international crimes which are coming within the jurisdiction MUS, the aggression crime does not require available a contextual element (a crime of a genocide necessary for qualification, crimes against humanity and war crimes). The aggression Essense of a crime directly and unequivocally delimits it both from other international criminal actions, and from criminal offences. Thereupon it is possible to establish, that the aggression crime creates «possibility for occurrence of a contextual element», i.e. certain external conditions for potential fulfilment of other international crimes (in particular it concerns the war crimes made during a confrontation, generated by the aggression certificate). I.I.Karpets, in particular, connected concept occurrence «the international crime» with reaction on deja -

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nija, become possible in connection with aggressive, aggressive wars.

the procedure the International criminal court of jurisdiction concerning an aggression crime is defined the item 15-bis (defining such order in case of transfer to Court of a situation the state-participant of the Statute or the beginning of investigation of a situation Public prosecutor Sudaproprio mutu) and the item 15-ter

the Statute (defining the specified order in case of transfer of a situation to Court the UN Security Council).

According to above-stated articles of the Roman statute, jurisdiction MUS ra - tione temporis concerning an aggression crime extends on the given criminal action, made one year later from the moment of ratification or acceptance of amendments to the Statute, 30 state-participants concerning a considered crime or, «according to the decision accepted after January, 1st, 2017, the same majority of the state-participants which is required for amendment acceptance to the Statute» [383] [384] . Thus concerning an aggression crime, according to the Appendix III accepted Conference on the review of Resolution RC/Res.5, it is necessary to consider as "reference point" of the beginning of jurisdiction MUS later date [385] [386] . Thus, at least till 2017 jurisdiction of Court concerning an aggression crime will be in the "freezed" condition.

Certain features of realisation by the International criminal court of jurisdiction concerning an aggression crime (except for cases of transfer to Court of a corresponding situation the UN Security Council) formulates item item 4 15-bis the Statute. The given point says: « The court can, according to item 12, exercise jurisdiction concerning the crime of aggression resulting from the certificate of aggression, made by the state-uchast - anybody if only the state-participant has not declared earlier non-recognition of such jurisdiction by a direction of the corresponding statement to the Secretary. The response of the similar declaration can be carried out at any time and should be considered the state-participant within 3 years ».

Besides, at realisation of jurisdiction MUS concerning an aggression crime (except for cases of referral to Court the UN Security Council), according to item positions 15-bis the Statute, certain procedure should be observed. The given procedure includes following stages:

- finding-out by the Public prosecutor of Court (at presence at it reasonable causes to start investigation concerning an aggression crime) the fact of presence of the definition taken out by the UN Security Council concerning the certificate of aggression made by the certain state;

- the notice (including a direction of the corresponding information and documents) the Public prosecutor of the Secretary general of the United Nations Organization about a situation which are on consideration Vessels;

- possibility for the Public prosecutor to begin investigation of a crime of aggression in case of removal of corresponding definition by the UN Security Council;

- possibility for the Public prosecutor to begin crime investigation agres

these in a case nevynesenija corresponding definition by the UN Security Council within 6 months from the date of the above-stated notice «provided that the pleading Chamber authorised the beginning of investigation concerning an aggression crime according to the procedure stated in item 15, and the Security council has not taken out the decision on other, according to item 16».

It is necessary to notice, that inclusion in the Roman statute of the above-stated positions providing corresponding «the start mechanism» realisation by the International criminal court of the jurisdiction concerning an aggression crime proprio mutu, became possible as a result of so-called «the Kampalsky compromise», to certain degree smoothed [387] contradictions in sights at formation of the given mechanism of some state-participants of the Statute. So, a number of delegations of the state-participants during preliminary work on preparation of Kampalsky conference and during the conference insisted on possibility of investigation by the Public prosecutor of Court of a crime of aggression without preliminary definition by the UN Security Council about existence of the certificate of aggression. Other delegations insisted that the UN Security Council is the unique legitimate body, authorised to define presence of the certificate of aggression. The compromise variant of realisation by Court of jurisdiction concerning a considered crime to some extent has smoothed the given contradictions in sights of the state-participants of the Roman statute though has not removed them completely [388] .

it is necessary to mention various variants of application by the state of military force concerning territory of other state, beyond an international legal field, but thus not quite entered in classical understanding of the certificate of aggression. Among similar possible variants it is expedient to allocate the following:

- drawing by the corresponding state of dot blows on bases and other objects of an infrastructure of the terrorist organisations, located in territory of other state. The specified actions of the corresponding state can be in certain degree are justified (more likely, in political, instead of in international legal aspect) in case the given state is exposed to attacks from the terrorist organisations located in territory of another the state, not capable (or the interested person) to bar their activity;

- application of the armed forces by the corresponding state against armed forces of other state as preventive defence. The majority of modern international lawyers agree in opinion about inadmissibility and illegality of preventive defence, i.e. the blows anticipating preparing certificate of aggression. So, M. Boat writes, that as the basis for realisation of the right to self-defence the attack which is really taking place, instead of attack threat serves only. Preventive self-defence nedopus -

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tima »;

- use by the corresponding state of the armed forces in territory of other state as humanitarian intervention. Legal definition of concept« humanitarian intervention »is absent. In an international law science to the specified concept were given similar enough (though and differing in nuances) definitions. So, Century And. Kartashkin sees essence of humanitarian intervention in application of the armed force by the state (group of the states) «for rescue of the citizens who are in foreign territory, or with a view of suppression mass and gross violations of the human rights occurring somewhere on political, racial, religious and other bases» [389] [390] [391] [392] . The former deputy minister of foreign affairs of the Russian Federation F.V.Shelov-Kovedjaev defines humanitarian intervention as «application of force or threat by the force, carried out the state or group of the states outside of the borders without the country consent, to which territories apply force, and directed on prevention or suppression scale and gross violations of fundamental laws of the people who are not citizens of the states, carrying out humanitarian intervention». M. Boat understands as humanitarian intervention application voen

ache forces «for the purpose of protection of certain groups of the population against bloody oppression and gross violations of human rights». The majority known juris - tov-foreign affairs specialists (in particular Russian) denies legitimacy of humanitarian intervention, as well as any military intervention made bypassing the UN Security Council.

despite the fact that what the above-stated cases represent infringement of norms of international law (first of all the United Nations Charter), remains opened a question, whether they can be qualified as the aggression certificate (with the subsequent legal effects in the form of the international criminal liability of concrete physical persons). So, some foreign authors mark: « Military interventions with the good-quality purposes represent difficulty for definition as an aggression crime: be they lawful or illegal, such actions have not been made with

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the aggressive purpose ».

it is obviously necessary to notice, that at definition of degree of fault and, accordingly, sanction definition for committing a crime of aggression the Court (being guided by the Rule of 145 Rules of procedure and proving [393] [394] [395] ) will be obliged to consider, among other, all set of the socially dangerous consequences which were a consequence of fulfilment of the considered international crime. Certainly, criminal infringements of human rights will concern number of the specified consequences (first of all war crimes), the aggressions made during the corresponding certificate. Presence or absence of the given infringements in itself cannot influence qualification of corresponding act as an aggression crime. As marks known scientific authority in the field of the international humanitarian law E.David, «illegal application of force by one state against other state remains illegal even in case of observance of all rules of law of war». However observance or non-observance by the party-aggressor during realisation of the certificate of aggression of laws and customs of war, and also basic human rights should influence definition by severity level Court sodejannogo and, accordingly, the concrete punitive measure.

briefing the above-stated, it is obviously possible to allocate following basic lines of a crime of aggression and the international criminal liability for fulfilment of the given criminal action.

1. The Roman statute of the International criminal court at level of contractual international criminal law codified for the first time concept «an aggression crime».

2. The statute provides possibility of realisation by Court of jurisdiction concerning an aggression crime (concerning the state-participants of the Roman statute) in the absence of the corresponding decision of the UN Security Council. The given circumstance allocates MUS with wide discretionary powers by definition of presence of signs of the certificate of aggression (and, accordingly, aggression crimes) in actions of the corresponding state and its officials (especially it concerns cases of realisation of jurisdiction of Court concerning considered ïðåñòóïëåíèÿproprio mutu).

3. Weight of fault of the person guilty of a crime of aggression, will objectively depend on observance during realisation of the certificate of aggression of principles and norms of the international humanitarian law and international law of human rights.

Bringing the general result of the second chapter of dissertational research, it is represented expedient to note the following. For today the Roman statute MUS represents the international legal certificate most full codifying norms of the international criminal law, providing responsibility for criminal infringements of human rights. Thus the major element of qualification of criminal infringements of human rights as the international crimes which are attracting responsibility on the international criminal law and coming within the jurisdiction MUS, is the contextual element, or communication of the given criminal actions with certain circumstances: an obvious line of similar behaviour (a genocide crime), a large-scale or regular attack on any civilians (a crime against humanity), confrontations (war crimes).

As a whole it is possible to establish, that codification by the Statute of concrete structures of the international crimes is essential step to a defragmentation of the international criminal law and creation of a universal legal mechanism of protection of basic human rights from criminal trespasses.

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A source: Ljamin Nikolay Mihajlovich. the International criminal court and responsibility for criminal infringements of human rights. The dissertation on competition of a scientific degree of the master of laws. Moscow - 2017. 2017

More on topic an aggression Crime as infringement of human rights and prospect of the international criminal liability for fulfilment of the certificate of aggression:

  1. § 2. A problem of understanding of a crime of aggression in modern international criminal law
  2. THE CHAPTER I. AGGRESSION AS THE CRIME ON THE INTERNATIONAL CRIMINAL LAW
  3. § 4. Kinds of a crime of aggression in the Russian criminal law
  4. the Chapter II. AGGRESSION AS the CRIME ON the RUSSIAN CRIMINAL LAW
  5. MALAKHOV 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
  6. the Roman statute of the International criminal court and the general principles of the criminal liability for criminal infringements of human rights
  7. § 1. Influence of the international criminal law on definition of criminality of aggression in national criminal law
  8. § 3. General provisions on aggression criminality in the Russian criminal law
  9. § 1. Doctrine Historical development about criminality of the international aggression
  10. § 2. The Criminal liability kombatantov for infringement of norms of the international humanitarian law
  11. the Chapter of the third Prospect of development of the international system of protection of human rights
  12. Chapter 3. Problems of qualification of the crime provided by item 258.1 UK the Russian Federation, and perfection of sanctions for its fulfilment with a view of differentiation of the criminal liability
  13. Chapter 3. ACTIVITY MUS And the CRIMINAL LIABILITY FOR CRIMINAL INFRINGEMENTS of HUMAN RIGHTS
  14. § 2.2. The contribution of the Soviet state and the Soviet legal science to international legal qualification of acts as aggression certificates
  15. § 3.4. An international law science about an international legal liability of infringement of installations of the Charter of the United Nations about force non-use in the international relations
  16. Chapter 2. The INTERNATIONAL CRIMINAL COURT And RESPONSIBILITY FOR the INTERNATIONAL CRIMES ENCROACHING ON HUMAN RIGHTS
  17. intention presence - bringing to criminal liability compulsory condition for fulfilment of tax crimes.