Retroactive criminal law in relation to crimes of aggression: historical and international aspects

Bagandova Leila Zakirovna ORCID: 0000-0001-5060-9015 Junior Researcher of the Scientific and Organizational Department; Institute of State and Law of the Russian Academy of Sciences 119019, Russia, Moscow, Znamenka str., 10, room 207 leyla.bagandova@mail.ru Other publications by this author

The effect of criminal law over time is an issue that law enforcement officials are acutely faced with when it comes to human life, health, as well as the peace and security of mankind. The prohibition of retroactive force of the law stems from the era of Roman law, when the principle of nullum crimen sine lege was the basis of legislation. This principle later became the basis for the formation of the Anglo-Saxon legal system, being enshrined first in the Magna Carta of 1215 and then in the Bill of Rights of 1689, although in practice the case law typical of common law countries does not strictly adhere to the principles of non-retroactivity of the law ^[1]. For example, in 1991, the United Kingdom passed the War Crimes Act, according to which persons who were not British citizens or residents at that time, but later acquired the appropriate status, could be tried for crimes committed in Nazi Germany or in German-occupied territory during World War II ^[2]. Crimes against the peace and security of mankind, in particular, the crime of aggression, are one of the types of crimes, the question of the retroactive application of criminal law to which remains unresolved.

The application of the retroactive force of criminal law in relation to crimes of aggression is a complex legal issue that intersects with the principles of international law, in particular with the principle of legality, which prohibits the retrospective application of criminal law. This topic is particularly relevant in the context of the International Criminal Court (ICC) and its jurisdiction over crimes of aggression, as defined in the Rome Statute. The legal nature of the Rome Statute is ambiguous, which makes it difficult to resolve the issue under consideration in relation to the crime of aggression. It is unclear whether the Statute is substantive, directly establishing the crimes it defines, or jurisdictional, simply outlining the ICC's substantive jurisdiction over crimes defined in other sections of customary international law. This ambiguity affects whether defendants can challenge the legality of charges based on their compliance with customary law. The amendments made in Kampala have not eliminated this ambiguity, which further complicates the application of article 8 bis, which defines the crime of aggression ^[3].

The principle of legality requires that criminal legislation be clear and non-retroactive. This principle creates significant difficulties for the prosecution of crimes of aggression within the jurisdiction of the ICC. One of the main problems is the potential retroactive application of the crime of aggression, which may arise if the ICC's jurisdiction over an individual is established only after the alleged crime has been committed. This problem is considered to be more serious than the problems of ambiguity of the definition of aggression or its recognition in accordance with customary international law.

According to the norms of Russian criminal law, the criminal law in force at the time of the commission of such a crime applies to the committed crime. As a general rule, the retroactive effect of the criminal law is not allowed, except in cases where the new criminal law decriminalizes the act, mitigates the punishment or otherwise improves the situation of the person who committed the crime. The norms on crimes against the peace and security of mankind were introduced into the Criminal Code of the Russian Federation (hereinafter referred to as the Criminal Code of the Russian Federation) in 1996, their content was almost completely identical to the content of the Verdict of the Nuremberg Tribunal, as well as some existing convention norms (for example, the norm on genocide). The principle of universal jurisdiction applies to this type of crime, which does not exclude the possibility of national courts considering themselves competent to rule on perpetrators of acts of genocide, even if this act was committed outside the territory of the State concerned and not by its citizen. This means that articles 353-361 of the Criminal Code of the Russian Federation can also be applied to acts committed outside the Russian Federation by foreign citizens and stateless persons. Part 5 of Article 77 of the Criminal Code states that the statute of limitations does not apply to crimes against the peace and security of mankind.

The urgency of considering this issue is due to the fact that criminal legislation does not provide explanations on the issue of the retroactive effect of criminal law in relation to crimes against the peace and security of mankind, which include planning, preparing, unleashing and waging aggressive war, and the problem itself is reflected in a few scientific papers. Thus, this issue was investigated by such scientists as A.N. Savenkov ^[4], A.A. Tunyan, T.G. Yezhova ^[5], N.N. Polyansky, S.M. Kochoi ^[6].

At the same time, the courts are making decisions defining the massacres and violence against the civilian population during the Great Patriotic War as genocide almost a century after these events took place. Thus, the Smolensk Regional Court recognized the mass killings and forced displacement of civilians and prisoners of war committed in this territory by the fascist invaders in 1941-1943 as a fact of genocide (the Court recognized the mass killings of the population of the Smolensk region during the Second World War as genocide [Electronic resource] // URL: https://tass.ru/proisshestviya/18309343 (date of appeal - 20.12.2024). Moscow Regional Court recognized crimes against the peaceful population of the Moscow region as genocide, where the number of victims during the occupation of 1941-1942 amounted to 26 thousand people (The court recognized the actions of the Nazis in the Moscow region during the occupation as genocide [Electronic resource] // URL: https://ria.ru/20230724/genotsid-1885977577.html (date of application - 12/20/2024). The investigative authorities are also working to identify the facts of the genocide and initiate criminal proceedings. cases in connection with the circumstances revealed: a former soldier of the SS Galicia was charged in absentia with committing genocide of the civilian population of the Ukrainian SSR (GSU UK: nationalist Gunko was charged in absentia with genocide [Electronic resource] // URL: https://rapsi-pravo.ru/incident_news/20231020/309321430.html (date of application - 05/02/2024).

When discussing the possibility of retroactive application of the norms on crimes against the peace and security of mankind, it seems necessary to refer to the process where the idea of individual criminal responsibility for war crimes was first implemented within the framework of international law - the Nuremberg Tribunal. The fact of its creation, the grounds for its functioning, and the text of the Charter have given rise to many discussions that this is a kind of precedent for the retroactive effect of criminal law. At the beginning of the trial, the defense challenged the Tribunal due to the lack of jurisdiction of the latter to administer justice to German citizens, as well as due to the fact that the law applied by the Tribunal was ex post facto. The defense argued that before the outbreak of World War II, aggressive warfare was not considered a crime in international law, and ensuring peaceful coexistence of States and peoples until 1939 was based on a system of collective security against the aggressor. At the same time, the international legislation in force at that time did not contain provisions on the criminal responsibility of the state as a corporate body and individual state bodies, such as the head of state, members of the government, military command, etc. ^[7] Rejecting the application, the Tribunal determined that the arguments of the defense are untenable due to the contradiction of Article 3 of the Statute of the Tribunal. The Chief Prosecutor of the United Kingdom argued in his speech that aggressive war has long been recognized as a crime, and therefore the question of retroactive effect of the law is not raised.

During the work of the Tokyo Tribunal, the issue of retroactive laws was also raised acutely. Agreeing with the majority opinion, Judge A. Bernard argued that aggressive war is criminal according to the postulates of natural law, such a war has always been and is a crime in the eyes of reason and universal conscience ^[7]. Judge B. Rawling denied that aggressive war was recognized as a crime in the Briand-Kellogg Pact, however, he did not express doubts about the need to convict criminals: "There is no doubt that the powers that won the "just war" and as such are responsible for peace and order in the future, have, according to international law, the right to counteract elements that pose a threat to this newly established order, and have the right, as a means of preventing the recurrence of serious conflicts, to seek the detention of relevant persons" ^[8].

As a result, the following position was developed: giving retroactive effect to international and criminal law norms in relation to Nazi criminals for their crimes committed during World War II is justified and is not a departure from international law. N.N. Polyansky wrote: "the provisions that criminal law cannot be retroactive at all. it has no absolute meaning. It ceases to be valid when the legislator finds it necessary, for one exceptional reason or another, to repeal it. In the field of international relations, where law gives way to a treaty, a treaty or an agreement can do this." I.I. Lukashuk, on the contrary, wrote that the functioning of the Nuremberg Tribunal is a violation of the principles of "nullum crimen sine lege" "at least with regard to the responsibility of individuals for crimes against peace, the powers that signed the London Agreement rather, they created new ones, rather than applying existing legal norms" ^[9].

The crimes of which the Nazis were accused were certainly violations of international humanitarian law, in particular, these acts were crimes under the national legislation of a number of States. Thus, by decree of the Presidium of the Supreme Soviet of the USSR, it was established that murders and tortures of the Soviet civilian population are crimes for which "fascist villains" will be punished with the death penalty (Decree of the Presidium of the Supreme Soviet of the USSR dated 04/19/1943 No. 39 "On punishments for German Fascist villains guilty of murders and tortures of the Soviet civilian population and captured Red Army soldiers, for spies, traitors to the motherland from among Soviet citizens and for their accomplices"). Such acts were committed as part of the aggressive war unleashed by Germany. The fact of criminality of these acts was recognized by the Nazis. In this regard, the retroactive effect of the law in this case is a mechanism for bringing perpetrators to justice and applying specific criminal sanctions. Given the gravity of what the Nazis had done, this deviation from the principle of prohibition of retroactive force of the law is justified.

The issue of the reverse application of criminal law was first raised in the cases of Kolk and Kislyiy v. Estonia (dec.), ECHR, nos. 23052/04 and 24018/04, 2006-I.) and Penart v. Estonia (decision (unacceptable) of 24.1.2006, ECHR, application No. 14685/04.). Both cases concerned the retroactive application of criminal law to crimes against humanity. In the first case, the applicants were involved in the trial. The Court considered whether the applicants should have been aware that their actions constituted crimes against humanity and concluded that, as stated in the Nuremberg Trials, the Statute did not set time limits for crimes against humanity. In particular, the Nuremberg Trials illustrated the retroactive application of criminal law in relation to international crimes.

Despite the fact that the Nuremberg Tribunal was established to try individuals who had committed heinous crimes during World War II, the Statute explicitly stated that the Tribunal had jurisdiction over crimes against humanity that had been committed long before 1939. Moreover, the universal importance of the principles relating to crimes against humanity was subsequently confirmed, in particular, by resolution No. 95 of the United Nations General Assembly. Adopted in 1946. As a result, it does not matter whether these actions were committed in accordance with Soviet or Estonian law, as they constitute crimes against humanity under international law.

Thus, the cases were declared inadmissible because there was no clear violation of article 7 of the ECHR, and the complaints were unfounded. In addition, Estonia ratified the Convention on the Non-Applicability of the Statute of Limitations to War Crimes and Crimes against Humanity and, therefore, was obliged to implement its principles.

In the case of Maktouf and Damjanovic v. Bosnia and Herzegovina (ECHR, Maktouf and Damjanovic v. Bosnia and Herzegovina [GC], Nos. 2312/08 and 34179/08, 18 July 2013.), the applicants were convicted of war crimes against the civilian population committed during the 1992-1995 war. They did not dispute the legality of their war crimes sentences, but contested their sentences, arguing that the 2003 Penal Code had been applied to them retroactively, resulting in harsher sentences than if the 1976 Penal Code had been applied. The Court noted that, since there was a real possibility of the 2003 Code being applied to the applicants in reverse, the disadvantage from the point of view of sentencing was that the applicants had not been provided with effective guarantees against the imposition of a more severe punishment. Accordingly, there had been a violation of article 7 of the ECHR in the specific circumstances of the applicants' cases; the Court stressed that its opinion had not indicated that more severe penalties should have been imposed, but simply that the provisions of the 1976 Penal Code on sentencing should have been applied.

In our opinion, the problem of making criminal law retroactive in relation to international crimes arises primarily because of the competition of the principles of criminal law: justice and legality. The prohibition of retroactive force directly follows from the principle of legality, it is one of the corpuscles of the core principle of the rule of law. From the point of view of this principle, the law cannot be violated if, at the time of its commission, the act was considered inviolable. In this case, Kelsen's doctrine is interesting, as he expressed his position on the correctness of applying a retroactive approach to crimes that threaten the peace and security of mankind. In his opinion, there are several types of retroactive norms: the new norm criminalizes an act that was not previously condemned and was considered unapproachable, and the new norm, on the contrary, establishes responsibility for committing an act contrary to morality and stricter higher norms. In the case of international crimes, for which senior German officials were convicted, the second type of retroactive rule is objectively applied. Therefore, the principle of legality in this case may be limited by the principle of justice.

Based on the considered provisions of the practice of international courts, doctrinal positions specifically on aspects of international crimes and crimes of aggression, in particular, it can be concluded that it seems appropriate to normalize the relevant provision in national criminal legislation, in particular, in Article 10 of the Criminal Code of the Russian Federation, which would indicate the possibility of applying retroactive force of criminal law in relation to crimes against the peace and security of mankind. Expanding the definition of this norm would also simplify criminal procedural activities in the context of the initiation of criminal cases in these circumstances and their investigation ^[10].