The formation of criminal liability for the crime of aggression in international law at the end of the XIX - first half of the XX century

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, Moscow, Znamenka str., 10, room 207 leyla.bagandova@mail.ru Other publications by this author

The origins of the phenomenon of "aggression" date back to antiquity: this concept was known in the time of Cain and Abel. "It is absolutely true that "the natural, primitive and ancient was not peace, but rather war. It seems that war is as old as humanity, but peace is a modern invention" (Collins. Modern Encyclopedia. P. 10.). History shows that recourse to war was commonplace for societies and groups. Even those of them who had reached an advanced level resorted to aggression for various and mostly very minor reasons, and hostilities between nations were considered a normal and necessary state ^[2]. Some authors are of the opinion that "the history of the rise of civilization is at the same time the history of military development, because humanity was not given to live in eternal peace" ^[3]. At the same time, protests against the war and attempts to avoid it in order to establish peace did not stop. The novelty of this study lies in the fact that in order to correctly understand the modern legal development of the concept of aggression, a comprehensive review of the historical evolution of legal restrictions on the use of force by States is carried out using formal legal, systemic, historical methods, methods of analysis and dialectics.

Attempts to normalize aggression have been taking place for many centuries. Initially, the regulation of relations to prevent the conduct of hostilities began to be provided for in bilateral treaties between states ^[4], and later became the subject of provisions of constitutional acts. Thus, in the Declaration of the Rights of Man and Citizen of the National Assembly of France in 1791, the provision was fixed that the French nation refuses to wage wars of conquest and thereby encroach on the freedom of other states (Declaration of the Rights of Man and Citizen of 1791 [Electronic resource] // URL: https://www.hist.msu.ru/ER/Etext/cnst1791.htm (date of application - 30.05.2024). On Throughout the 19th century, steps were taken again to create legislation to protect the peace and security of mankind, in particular, from acts of aggression ^[5].

Along with the creation of normative acts prohibiting aggression, the issue of creating an international court to punish war criminals for acts of aggression committed by them was discussed. The question first arose at the end of the 19th century after the end of the Franco-Prussian war. Thus, Mr. Moigne wrote: "Where are the rules recognized by everyone and everyone that would allow, for example, to determine the nature of aggression and require the parties to go to court before resorting to force..." (L'Institut de droit international. — Journal de Genève, 16 September 1873, and Fondation de l’Institut de droit international. — Bulletin International des sociétés de secours (International Bulletin of Relief Societies), January 1874, pp. 99-103). To implement the idea of creating special norms regulating the conduct of hostilities and a separate international body condemning unlawful acts of aggression, the Institute of International Law was established in 1873, but almost all proposals remained only drafts, since the degree of development of society and national legal systems did not allow to move to such a format.

Until about the beginning of the 20th century, attempts were made to limit the traditional "military law" and the use of force, which was still considered a legal instrument and a legitimate means of defending the legitimate rights of sovereign states ^[6]. In this regard, the Hague Peace Conferences were held in 1899 and 1907, during which a number of agreements were concluded. The provisions of these conventions were binding on the countries that ratified them.

The first peace conference was held on May 18, 1899, at which twenty-six Governments were represented. It was held in the interests of universal and lasting peace and "to limit the progressive development of existing weapons." Although the Conference did not achieve its original goal, as the major Powers were unwilling to agree to arms limitation or reduction, the result was the adoption of the First Convention on the "Peaceful Settlement of International Disputes" in 1899. This showed that representatives of twenty-six States can meet, discuss and develop measures of interest to all mankind.

The value of the Hague Conference of 1899 was that it served as the basis for the next conference. The Second Hague Conference was held on June 15, 1907 and concluded its work on October 18, 1907. The number of States directly involved in the discussion of the issues of the conference increased to 44. As a result of the conference, thirteen conventions, a declaration and a final act were adopted aimed at establishing a peaceful resolution of international conflicts. Article 1 of the Hague Convention on the Peaceful Settlement of International Clashes states that "the Contracting Powers agree to make all their efforts to ensure a peaceful solution to international disagreements" (I Hague Convention on the Peaceful Settlement of International Clashes of 1907 [Electronic resource] // URL: https://docs.cntd.ru/document/901762207 ?ysclid=lwhqx9sldx564146128 (accessed 05/10/2024).

To achieve this goal, the Contracting Powers have agreed, as far as possible, to use the good offices or mediation of one or more friendly Powers before resorting to force. In international disputes that do not affect honor or vital interests arising from differences of opinion between the parties that could not be resolved by diplomatic means, the Contracting Powers considered it necessary, as far as circumstances permitted, for the parties concerned to establish an international commission of inquiry to investigate the case and facilitate its resolution.

In the II Hague Convention of the Second Peace Conference "On the Limitation of the Use of Force to Collect Debts under Contracts", signed in The Hague on October 18, 1907, new attempts were made to limit the right to war and the use of armed force. In the Convention of the III Second Peace Conference of 1907 "On the outbreak of hostilities. The Contracting Powers have decided that hostilities between them should not be conducted without prior warning. Article I of the Convention provided that the contracting Powers recognize that hostilities between them should not begin without prior and unambiguous warning in the form of either a reasoned declaration of war or an ultimatum with a conditional declaration of war (II Hague Convention on the Limitation of the Use of Force in the Recovery of Contractual Debt Obligations of 1907 [Electronic resource] // URL: https://doc.mil.ru/documents/quick_search/more.htm?id=11911621@egNPA (date of application – 05/10/2024).

A.N. Savenkov rightly notes that the turning point in the formation of international law and criminal justice was the First World War, which ended with the signing of the Versailles Peace Treaty. The provisions of the latter provided for the creation of an international court to convict persons who committed acts contrary to the laws and customs of war. ^{[7, p. 23]}.

One of the accused was the former German Kaiser Wilhelm II Hohenzollern. Attempts to bring him to justice were made to court-martial him and convict him of crimes committed during the First World War. Article 227 of the Versailles Peace Treaty established: "The allied and associated Powers publicly accuse William II of Hohenzollern, the former German Emperor, of a serious crime against international morality and the sanctity of international treaties"^[8]. The Kaiser found refuge in the Netherlands, which was not a party to the Treaty, so the trial never took place (Treaty of Peace between the Allied and Associated Powers and Germany art. 227, June 28, 1919, 225 Consol. T.S. 188.). In article 227 there is no mention of aggression or crimes against peace, since at that time it was not considered a violation of international law, however, this provision can be considered as a prerequisite for attempts to criminalize aggressive war ^[9].

With the advent of the first international bodies, the task of developing a strategy to condemn military aggression began to be assigned to them. The preamble of the League of Nations contained provisions according to which it was declared necessary to accept certain obligations "not to resort to war."

The problem of outlawing aggressive wars was discussed in the League of Nations and at various international conferences, the need to prohibit and criminalize aggression was mentioned in the draft Treaty on Mutual Assistance of August 15, 1923, in the Geneva Protocol on the Peaceful Settlement of Disputes of October 2, 1924 (both did not become binding). On September 24, 1927, the Assembly of the League of Nations adopted a special declaration proclaiming that any aggressive war is and remains prohibited and constitutes an international crime (Declaration on Aggressive Wars adopted by the VIII Assembly on September 24, 1927 [Electronic resource] // URL: https://docs.historyrussia.org/ru/nodes/140598-deklaratsiya-ob-agressivnyh-voynah-prinyataya-viii-sobraniem-24-sentyabrya-1927-g (date of appeal – 30.05.2024). The document noted that "war should never serve as a means of resolving disputes between States" and that "a solemn renunciation of any aggressive war would be able to create an atmosphere of general trust favorable to the success of the work undertaken in the form of weapons."

In our opinion, the practical significance of this declaration was negated by the fact that the Statute of the League of Nations not only did not contain a direct prohibition of aggression, but also allowed (Articles 12, 13 and 15) recourse to war, subject to certain formal requirements. Thus, Part 7 of Article 15 of the Statute establishes: "In the event that the Council fails to achieve acceptance of its report by all its members, except representatives of any party to the dispute, the members of the League reserve the right to act as they deem appropriate for the preservation of law and justice." This freedom of action, granted to the members of the League in the absence of unanimity in the Council, includes the right to turn to war. This conclusion is all the more justified because the cited part of Article 15 mentions the preservation of law and justice, but is silent about the preservation of peace.

The last part of Article 13 of the Statute of the League of Nations opens up another possibility of legal war: "The members of the League," says this part of Article 13, "undertake to carry out decisions made in good faith and not resort to war against a member of the League who will conform to them." Although Article 13 further indicates that "in case of non-compliance with the decision, the Council proposes measures that should ensure the validity of the decision," however, a direct indication that war is unacceptable only in relation to the party that obeyed the decision of the arbitral tribunal, reserves in other cases the right of war for the party or parties in whose favor the remaining unfulfilled decision took place the arbitration court. The correctness of this understanding is fully supported in Part 1 of Article 12, which establishes the obligation for the parties not to resort to war "before the expiration of a three-month period after the decision of the arbitrators or the report of the Council." The Statute says that the High Contracting Parties assume only some obligations not to resort to war, and do not fully abandon the military resolution of conflicts. Thus, the Statute essentially legalized the war. Aggression was recognized only as an attack committed in violation of it.

We believe that the first real step towards prohibiting aggression and outlawing it was the Paris Pact of August 27, 1928, which for the first time established a multilateral obligation of States to renounce the use of armed force, indicated that its participants "...condemn the method of resorting to war to resolve international conflicts" and "abandon their relationship from war as an instrument of national policy" and commit themselves henceforth to resolve all their differences only by peaceful means (the Treaty of Paris (the Kellogg Pact, the Briand-Kellogg Pact). August 27, 1928) [Electronic resource] // URL: https://docs.historyrussia.org/ru/nodes/111854-parizhskiy-dogovor-pakt-kelloga-pakt-briana-kelloga-27-avgusta-1928-g (date of appeal – 05/10/2024). Thus, the Paris Pact undoubtedly went further than the Statute of the League of Nations in this matter, but the practical significance of the pact was reduced by the fact that its rulings were not supported by an effective system of sanctions in case of violation. In addition, the Pact contained reservations that made it possible to evade the obligations assumed. K. Wright noted that from a hermeneutical point of view, violation of the provisions of this treaty necessarily leads to legal consequences ^[10]. We adhere to the point of view of R.B. Dzeitova, who believes that non-compliance with the Briand-Kellogg Pact did not lead to the emergence of any sanctions measures ^[11].

In an effort to give a universal character to the principle of the prohibition of aggressive wars, the USSR was the first to ratify the Paris Pact and achieved its early entry into force by concluding a special protocol with Poland, Romania, Estonia and Latvia on February 9, 1929 (Turkey, Iran and Lithuania joined the Moscow Protocol in the same year).

The boundaries of aggression were formulated more definitely in the Convention on the Definition of Aggression, adopted in 1933 on the initiative of the USSR. This document is directly based on the above-mentioned Briand-Kellogg Pact, indicating that the States participating in this convention consider that "the Briand-Kellogg Pact, to which they are parties, prohibits all aggression", consider it "necessary, in the interests of universal security, to define the concept of aggression as precisely as possible in order to prevent any the reason for its justification", and consider it "useful, in the interests of universal peace, to put into effect between their countries precise rules defining aggression, until these latter become generally recognized" (Collection of existing treaties, agreements and conventions concluded by the USSR with foreign states. Issue VIII. M., 1935. pp. 27-28). According to the document under consideration, the attacking party is the State that is the first to declare war on another State; the invasion of armed forces into the territory of another State, although without declaring war; an attack by its own land, sea or air forces, although without declaring war, on the territory, ships or aircraft of another State; a naval blockade of the coast or ports of another State; Support provided to armed gangs that, being formed on its territory, will invade the territory of another State, or refusal, despite the demand of the invaded State, to take, on its own territory, all measures depending on it to deprive the said gangs of all assistance or patronage. The importance of the Briand-Kellogg Pact and the Convention on the Definition of Aggression in 1928 is great not only from a legal point of view, but also from an ethical point of view: We believe that these documents have become the starting point for the transition from militaristic ideology to pacifism.

The brutal atrocities committed by the Nazis in the war of 1939-1945 made it urgent to resolve the issue of convicting Nazi criminals for planning, preparing, unleashing and waging an aggressive war by them. To do this, an International Military Tribunal was established on the initiative of the winning countries. The Soviet government made a great contribution to the process. Thus, V.M. Molotov, in a 1942 note, declared the need to bring to justice "any of the leaders of Fascist Germany" for the extermination of the Soviet population, the elimination of national culture, slave-serf labor and bondage, the seizure of Soviet lands, as well as general robbery (Note by the People's Commissar of Foreign Affairs V.M. Molotov "On monstrous atrocities, atrocities and the violence of the Nazi invaders in the occupied Soviet areas and the responsibility of the German government and command for these crimes [Electronic resource] // Access mode: https://www.booksite.ru/fulltext/nota1/text.pdf . - Date of access – 05/10/2024). All these actions, according to the 1933 Convention on the Definition of Aggression adopted in London, were recognized as signs of aggressive war (the Convention on the Definition of Aggression. London. July 4, 1933 // Unpublished in the Council of Laws of 1934, Ed. II, No. 6, Article 46.). Later, N.N. Polyansky developed and presented a plan to bring to justice the leadership of Nazi Germany through the International criminal Court, punishment for encroachments on the foundations of international peace, which led to to the shock of the foundations of civilization ^{[16, p. 32]}. Not all countries accepted this proposal: the United Kingdom held the view that Nazi criminals should be punished by a political decision, outside the legal procedure, as it is fast and severe, which is proportionate to what they have done ^{[12, p. 18]}.

The defeat of the Nazi invaders made it possible to organize the first War Crimes Tribunal in world history. The Nuremberg Trials began on November 20, 1945 and became the first trial in history aimed at bringing perpetrators to justice for international crimes ^{[13, p. 7]}. We share the opinion of A.N. Trainin, who considered the Nuremberg Tribunal as the starting point for the development of international and national law of individual States and, in our opinion, it seems appropriate to outline the importance of the Tribunal in terms of the formation of responsibility for the crime of aggression. This was expressed, in particular, in the fact that:

1) Article 6 of the Statute of the Nuremberg Tribunal provides for the first time in the history of international law a list of international crimes. These norms are exclusively imperative.

All international crimes were divided into three groups. Crimes against peace were put in the first place, which included planning, preparing, unleashing and waging an aggressive war, war in violation of international treaties, agreements or assurances, or participation in a common plan or conspiracy aimed at carrying out any of the above actions. War crimes included violations of the laws and customs of warfare, expressed in the killing, torture or enslavement or for other purposes of the civilian population of the occupied territories; in the killing or torture of prisoners of war, wounded, sick and members of the armed forces, shipwrecked at sea; in the killing of hostages, robbery of public or private property (property); in the senseless destruction of towns and villages, devastation not justified by military necessity. Crimes against humanity included murder, extermination, enslavement, exile and other atrocities committed against the civilian population before or during the war, or persecution on political, racial or religious grounds for the purpose of carrying out, or any crimes subject to the jurisdiction of the tribunal, regardless of whether these actions were a violation of domestic law the countries where they were committed, or not;

2) in the Statute and Verdict of the Tribunal, it was mentioned for the first time that "the outbreak of an aggressive war is not just an international crime – it is the gravest crime", which contains the concentrated evil of all other war crimes (The verdict of the International Military Tribunal. Nuremberg, October 1, 1946 // State Archive of the Russian Federation. F. 7445. Op. 1. d. 1648. LL. 1-361);

3) On the basis of the definitions of aggressive war given in the Verdict and the Statute of the Tribunal, UN General Assembly Resolution No. 3314 (XXIX) of December 14, 1974, consolidating the definition of aggression, was developed. According to the document, aggression is understood as the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State;

4) it was not the act of aggression itself that was recognized as criminal, but the planning, preparation and unleashing of an aggressive war, which was subsequently implemented as independent elements of crimes in a number of national criminal legislations (the Russian Federation, Serbia, Georgia, etc.);

5) Two months after the sentencing of the Nazi criminals, the Allied Powers adopted the Law of the Control Council No. 10 (Law No. 10), authorizing each country to establish military tribunals in their respective zones of occupation "for the prosecution of war criminals and other similar offenders other than those dealt with by the Ministry of Internal Affairs" (Allied Control Council Law No. 10, 20 Dec. 1945, 15 Trials of War Criminals Before the Nuremberg Military Tribunals Under Control Council Law No. 10 (1951) (hereafter Law No. 10), Preamble). Codifying the fundamental principles of the Nuremberg Tribunal's decision, paragraph 2 (f) of Law No. 10 specifically provides that both private economic entities and officials of third States involved in them can be convicted of crimes against peace: "Any person, regardless of the nationality or status in which he acted, is considered to have committed a crime... if he was the perpetrator or accomplice in the commission of any such crime, or ordered the commission of such a crime, or instigated it, or took a conscious part in it, or was associated with plans or enterprises related to its commission... held a high political, civil or military post (including the General Staff) in Germany or in one of its allies, belligerents or satellites, or held a high position in the financial, industrial or economic life of any such country" ^[14];

6) The provisions formulated in the Tribunal's verdict were transformed into the principles of international criminal law and were reflected in UN General Assembly Resolution No. 95 (1) of December 11, 1946 (UN General Assembly Resolution No. 95 (1) of December 11, 1946 "Confirmation of the principles of international law recognized by the Statute of the Nuremberg Tribunal". [electronic resource]. – Access mode: https://undocs.org/ru/A/RES/95%28I%29 . – Access date: 05/10/2024) and were developed in UN General Assembly Resolution No. A/RES/177 (II) of November 21, 1947 (UN General Assembly Resolution No. A/RES/177 (II) of November 21, 1947 "Plans for the formulation of principles recognized by the statute of the Nuremberg Tribunal and expressed in its decision" [Electronic resource]. – Access mode: https://undocs.org/ru/A/RES/177%28II %29. – Access date: 05/10/2024). First of all, it is the inevitability of responsibility and punishment for the commission of international crimes, the incoherence of national and international legislation regarding the punishability of an act established by international law as a crime, as well as the principle of the absence of grounds for exemption from liability in connection with the execution of an order or order of the government, since the opportunity to make a conscious choice was preserved for individuals;

7) According to the approved norms, the Nuremberg Principles relate to the criminal responsibility of individuals: "Crimes against international law are committed by people, not by abstract categories, and only by punishing individuals who commit such crimes can the provisions of international law be respected." These principles have become recognized as peremptory norms of international law (jus cogens) to the extent that we should talk about genocide, crimes against humanity and war crimes;

8) The activities of the Nuremberg Tribunal served as the basis for the creation and organization of the International Criminal Court.

The role of the Nuremberg trials in the development of international humanitarian and criminal law is quite significant. We believe that the verdict of the International Military Tribunal for the Trial and Punishment of War Criminals of the European Axis Countries is not only a fact of condemnation of the Nazis, but also a vivid evidence of the increased strength of the peoples in the fight against aggression.

Thus, as a result of the conducted research, it can be concluded that the formulation of responsibility for acts of aggression has come a long way: the period of the late XIX-first half of the XX centuries is key and fundamental in this process. Despite repeated attempts to adopt normative legal acts enshrining the concept of aggression or aggressive war, as well as to consolidate international responsibility for the commission of an act of aggression, by 1950 this had not been done: all the treaties under discussion had their drawbacks, mainly concerning sanctions measures for violation of the established prohibition. At the same time, however, it is impossible not to note the value of the Convention on the Definition of Aggression of 1933, which most commonly and precisely defined the framework of the concept of "aggressive war". It is impossible not to note the role of the Nuremberg Tribunal, since, in fact, it was his Verdict that became the first official document recognizing an act of aggression as the gravest international crime. In modern conditions of escalation of military-political conflicts and falsification of historical facts, consideration of the factors of the emergence of criminal liability for acts of aggression is a necessary tool for further development of legislative regulation in the field of ensuring peace and security of mankind. In this regard, the study and improvement of the norms on criminal liability for planning, preparing, unleashing and waging an aggressive war is a particularly urgent task, the solution of which is an important prerequisite for the preservation of peace and security of mankind.