Abstract
At least forty-two States have enacted legislation for the criminal repression of aggression and other crimes against peace. Useful as they are, these penal provisions are not uniform, though, and the diversity of States’ approaches probably testifies to the absence of customary international law on the subject to date. This chapter examines those provisions in the framework of four main “legislative models”, and extracts from them substantive and mental elements, which are essential for devising an inclusive corpus delicti of the crime of aggression. The “leadership requirement” is dealt with as a key element of the crime, and the propaganda for war is briefly considered as a separate crime against peace. The chapter concludes with an overview of key substantive and procedural matters of inter-State cooperation, if prosecutions for the crime of aggression are ever to take place within national legal systems.
Most of the national criminal law provisions quoted in Chapter 4 were retrieved from: http://legislationline.org/documents/section/criminal-codes (last accessed 15 November 2012). Where no English texts were available, unofficial translations were made by the author.
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- 1.
Notably, E. L. Lutz and C. Reiger suggest that Saddam Hussein “might have been put on trial for waging aggressive wars against Iran and Kuwait”, see Lutz and Reiger 2009, at 1–2.
- 2.
- 3.
On the implementation of international crimes in national legal systems, see Cryer 2005, pp. 117–122.
- 4.
- 5.
By contrast, Gerhard Kemp listed only twelve States, which “provide[d] for the crime of aggression in one way or another as part of their penal codes” (see Kemp 2010, p. 129), and Stefan Barriga took note in his analysis of no more than “some two dozen countries worldwide”, see Barriga 2011, at 330.
- 6.
See an up-to-date overview of States parties to the Rome Statute at: http://www.icc-cpi.int/Menus/ASP/states+parties/ (last accessed 24 April 2013). As of 1 May 2013, the ICC Statute has 122 States Parties.
- 7.
It appears that the very existence of divergent national approaches towards defining the crime of aggression (“legislative models”) examined infra at 4.1 might testify to the absence of customary international law on the matter, if the latter is to be defined as a “unitary, universal and exogenous” combination of State practice and opinio juris, cf. Goldsmith and Posner 2005, pp. 23–26. Contrary to the “traditional paradigm” suggesting that customary international law represents a stable normative framework voluntarily shared by many (or even most) members of the community of States, Jack L. Goldsmith and Eric A. Posner allege that State practices evolve over time (in other words, are subject to change and therefore not stable), depend, first and foremost, on States’ national interests (and much less on external regulatory factors), and materialise in one of four principal models of interaction between States (or in combinations thereof): coincidence of interest, coercion, cooperation, and coordination, see idem 26–35. If we accept this less stringent approach towards customary international law, then inferences infra at 4.3 and 4.5—although comprehensive and systematic—might be regarded not as a restatement of customary international law on the crime of aggression (because there simply might be none de lege lata) but rather as a coherent summary of divergent normative models examined at 4.1, with a view to usefully reducing those models to a reasonable common denominator. On customary international law pertaining specifically to the crime of aggression, see Kemp 2010, pp. 137–148.
- 8.
See ICTY Statute, Articles 1–5, available at: http://www.icty.org/x/file/Legal%20Library/Statute/statute_sept09_en.pdf (last accessed 16 November 2012).
- 9.
Cf. the Criminal Code of Georgia, Article 404 (“Preparations for and waging of aggressive War”):
“1. Planning of or preparing for the war of aggression shall be punishable by prison sentences ranging from seven to fifteen years in length.
2. Unleashing or waging of the war of aggression shall be punishable by imprisonment extending from ten to twenty years in length or by life imprisonment”.
- 10.
Cf. Article 395 of the Criminal Code of Tajikistan (“Aggressive war”):
“1. Planning or preparation of an aggressive war is punishable by imprisonment for 12–20 years with the confiscation of property.
(2) Unleashing or conducting an aggressive war is punishable by imprisonment for 15–20 years with the simultaneous confiscation of property, or by the death penalty”.
- 11.
Cf. the Criminal Code of Latvia, Section 72 (“Crimes against peace”): “For a person who commits crimes against peace, that is, commits planning, preparation or instigation to, or participation in, military aggression, or wages a war of aggression in violation of international agreements binding upon the Republic of Latvia, or commits participation in a conspiracy for the purpose of committing crimes mentioned in this Section, the applicable sentence is life imprisonment or deprivation of liberty for a term of not less than three and not exceeding twenty years”.
- 12.
Cf. the Criminal Code of Poland, Article 117:
“1. Who starts or leads a war of aggression shall be deprived of their liberty for no less than 12 years, for 25 years, or for the duration of their life.
2. Who prepares to commit the crime described in § 1, shall be deprived of their liberty for no less than 3 years.
3. Who publicly calls for starting a war of aggression, shall be deprived of their liberty for a period between 3 months and 5 years”.
- 13.
Cf. the Criminal Code of Montenegro, Article 442 (“Aggressive war”):
“1. Anyone who calls to or instigates aggressive war, shall be punished by imprisonment for a term of two to twelve years.
2. Anyone who orders waging aggressive war, shall be liable to imprisonment for a minimum term of ten years or a prison sentence of thirty years”.
- 14.
Cf. Article 386 of the Criminal Code of Serbia (“War of aggression”): “1. Whoever calls for or instigates a war of aggression, shall be punished by imprisonment of two to twelve years. 2. Whoever orders waging a war of aggression, shall be punished by imprisonment of minimum ten years or imprisonment of thirty to forty years”.
- 15.
Cf. the Criminal Code of Germany, Section 80 (“Preparation of a war of aggression”): “Whoever prepares a war of aggression (Article 26 subsection (1), of the Basic Law) in which the Federal Republic of Germany is supposed to participate and thereby creates a danger of war for the Federal Republic of Germany, shall be punished with imprisonment for life or for not less than ten years”. See also Haumer and Marschner 2010, pp. 188–196; Kress 2004, pp. 245–264; Sayapin 2010b, pp. 169–173.
- 16.
See Zelinskaya 2006, pp. 409–460.
- 17.
Cf. the Criminal Code of Azerbaijan, Article 100 (“Planning, preparation, initiation or conducting an aggressive war”): “1. Planning, preparation or initiation of an aggressive war—shall be punished by imprisonment for a term from eight up to ten years. 2. Conducting an aggressive war—shall be punished by imprisonment for a term from ten up to fifteen years or life imprisonment”.
- 18.
Cf. the Criminal Code of Kazakhstan, Article 156 (“Planning, preparation, starting, or waging an aggressive war”):
“1. Planning, preparation, or starting an aggressive war,—shall be punished by imprisonment for a period from seven to twelve years.
2. Waging an aggressive war shall be punished by imprisonment for a period from ten up to twenty years, or by capital punishment, or by life-time imprisonment”.
- 19.
Cf. the Criminal Code of Moldova, Article 139 (“Planning, preparing, unleashing or waging a war”): “1. Planning, preparing, unleashing a war—shall be punished with deprivation of liberty for a term between 12 and 20 years.
2. Waging a war—shall be punished with deprivation of liberty for a term between 16 and 25 years or imprisonment for life”.
- 20.
Cf. the Criminal Code of the Russian Federation, Article 353 (“Planning, preparing, unleashing, or waging an aggressive war”):
“1. Planning, preparing or unleashing an aggressive war—shall be punishable by deprivation of liberty for a term of seven to fifteen years.
2. Waging an aggressive war—shall be punishable by deprivation of liberty for a term of 10 to 20 years”.
- 21.
Cf. the Criminal Code of Ukraine, Article 437 (“Planning, preparation and waging of an aggressive war”):
“1. Planning, preparation or unleashing an aggressive war or armed conflict, or conspiring for any such purposes—shall be punishable by imprisonment for a term of seven to twelve years
2. Waging an aggressive war or aggressive military operations—shall be punishable by imprisonment for a term of ten to fifteen years”.
- 22.
Cf. the Criminal Code of Armenia, Article 384 (“Aggressive war”):
“1. Planning or preparing an aggressive war is punished with imprisonment for the term from 5 to 10 years.
2. Starting or conducting an aggressive war is punished with imprisonment for the term from 8 to 15 years”.
- 23.
Cf. the Criminal Code of Belarus, Article 122 (“Preparation for or waging and aggressive war”):
“1. Planning or preparing for an aggressive war—shall be punished with deprivation of liberty for a term between five and fifteen years.
2. Unleashing or waging an aggressive war – shall be punished with deprivation of liberty for a term between seven and twenty-five years, or with imprisonment for life, or with death penalty with a confiscation of property or without confiscation”.
- 24.
Cf. the Criminal Code of Uzbekistan, Article 151 (“Aggression”):
“Planning or preparing for an aggressive war or engagement in conspiracy in order to execute the said actions –
shall be punished with imprisonment from ten to fifteen years.
Initiating or waging of aggressive war – shall be punished with imprisonment from fifteen to twenty years”.
- 25.
A leading Russian criminal law textbook explains this interrelation in the following manner: “Planning is, essentially, an element in the preparation for war. Besides, preparation for war includes building up volumes of offensive weapons and munitions, relocation and concentration of troops for attack, the mobilisation of economic capacities for the war, establishing economic reserves, carrying out propaganda campaigns, etc. Unleashing a war means starting hostilities, be these a large-scale attack or a local operation, which grows into an armed conflict. The waging of a war is its continuation until the end of hostilities”. See Kudryavtsev et al. 2005b, p. 535. In this writer’s view, the substance of and relationship between these consecutive stages of an aggressive enterprise are somewhat different and will be discussed below in this chapter, at 4.3.
- 26.
Cf. the Criminal Code of Argentina, Article 214: “Any Argentinean or person obliged to serve the Nation by virtue of [his or her] public function who directs weapons against [the Nation], joins efforts with its enemies or provides them with any assistance shall be punished with deprivation of liberty for a term between ten and twenty-five years, or with a lifelong imprisonment, and, in any event, with a lifelong disqualification, unless other provisions of the present Code provide otherwise”.
- 27.
Cf. the Criminal Code of Argentina, Article 215: “A person who commits the crime provided for the in preceding Article shall be punished with a lifelong imprisonment in the following cases:
1) when [he or she] commits an act aimed at a full or partial subjugation of the Nation to foreign domination or [an act] creating a danger to its independence or inviolability;
2) when [he or she] enables a foreign Power to wage a war against the Republic”.
- 28.
Cf. the Criminal Code of Bosnia and Herzegovina, Article 150 (“Endangering the territorial integrity of the Federation”): “Whoever, by use of force or by threat of force, attempts to detach a part of the territory of the Federation, or to conjoin a part of its territory with another Entity, shall be punished by imprisonment for a term not less than five years”.
- 29.
Cf. the Criminal Code of Bosnia and Herzegovina, Article 151 (“Getting the Federation in the Position of Subjugation or Dependency”): “A citizen of the Federation, who attempts to get the Federation in the position of subjugation or dependency in relation to another country, shall be punished by imprisonment for a term not less than five years”.
- 30.
Cf. the Criminal Code of Finland, chapter 12 (“Treasonable offences”), Section 1 (“Compromising the sovereignty of Finland”):
A person who by violence or the threat of violence or the military or economic pressure or support by a foreign state, for the purpose of:
(1) rendering Finland or a part of Finland subject to the authority of a foreign state;
(2) separating a part of Finland from the rest of the territory; or
(3) otherwise restricting the sovereignty of Finland in a comparably serious manner,
commits an act which causes the danger of said purpose being attained shall be sentenced for compromising the sovereignty of Finland to imprisonment for at least one and at most ten years.
- 31.
See Levin 2003, p. 91.
- 32.
Cf. the Criminal Code of Norway, para 83: “Any person who unlawfully attempts to cause or to be accessory to causing Norway or any part of the realm to be brought under foreign rule or incorporated into another State, or any part of the realm to be detached, shall be liable to detention for a term of not less than eight years or to imprisonment for a term of not less than eight years and not exceeding 21 years”.
- 33.
Cf. the Criminal Code of Switzerland, Article 266(1): “Whoever undertakes an action aimed at encroaching upon or endangering the independence of the Confederation, [or at] bringing about a foreign Power’s interference in the affairs of the Confederation—shall be punished with a deprivation of liberty of at least one year”.
- 34.
Cf. the Criminal Code of Switzerland, Article 266(2): “Whoever enters in a relationship with the government of a foreign State or its agents, in order to bring about a war against the Confederation—shall be punished with a deprivation of liberty of at least three years. In grave cases, a lifelong deprivation of liberty may be assigned”. See also Sayapin 2010b, pp. 175–178.
- 35.
Cf. the Criminal Code of Ethiopia, Article 246 (“Attacks on the independence of the State”): “Whoever commits an act intended to:
(a) jeopardise or destroy the independence of the State; or
(b) provoke intervention by a foreign State in the national affair, calculated to endanger its in dependence; or
(c) initiate hostile acts by a foreign State against the Nation, or to involve it in a foreign war, hostilities, a blockade or occupation,
is punishable with rigorous imprisonment from five years to twenty-five years, or, in cases of exceptional gravity, with life imprisonment or death”.
- 36.
Cf. the Criminal Code of Iraq, para 156: “Any person who wilfully commits an act with intent to violate the independence of the country or its unity or the security of its territory and that act, by its nature, leads to such violation is punishable by death”. It should be noted that, in accordance with Section 3(1) of the Coalition Provisional Authority Order No. 7 of 9 June 2003, the death penalty was suspended: “Capital punishment is suspended. In each case where the death penalty is the only available penalty prescribed for an offence, the court may substitute the lesser penalty of life imprisonment, or such other lesser penalty as provided for in the Penal Code”.
- 37.
Cf. the Criminal Code of Turkey, Article 300 (“Breach of national unity and territorial integrity”):
“1. Any person who causes partition of the country by allowing another country to rule part or whole of territorial land, or breaches National Unity, or shows consent to separation of certain portion of the territory under the sovereignty and administration of the State and executes acts aimed to weaken the independence of the State, is punished with heavy life imprisonment.
2. In case of commission of another office along with this offence, the offender is additionally punished according to the provisions relating to this offence.
3. Security precautions specific to legal entities are imposed in case of commission of the offences defined in this article by corporation”.
- 38.
See Dinstein 2001, p. 9.
- 39.
See Eagleton 1938, pp. 19–35.
- 40.
In accordance with Article 2 common to the 1949 Geneva Conventions, they apply “to all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognised by one of them” (emphasis added) as well as “to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance”.
- 41.
According to the commentary to the First Geneva Convention of 1949, ‘[a]ny difference arising between two states and leading to the intervention of armed forces is an armed conflict […] even if one of the Parties denies the existence of a state of war […]’. See Pictet 1952, p. 32.
- 42.
Cf. the Criminal Code of Albania, Article 211 (“Provocation of war”): “Committing acts with the intent to provoke a war or make the Republic of Albania face the danger of a [military] intervention by foreign powers, is punishable by no less than fifteen years of imprisonment”.
- 43.
Cf. the Criminal Code of Albania, Article 212 (“Agreement for armed intervention”): “An agreement settled with foreign powers or states to cause an armed intervention against the territory of the Republic of Albania, is punishable by ten to fifteen years of imprisonment”.
- 44.
Cf. the Criminal Code of Norway, para 84: “Any person who unlawfully causes or is accessory to causing an outbreak of war or hostilities against Norway or any State allied with Norway in time of war shall be liable to detention for a term of not less than five years or to imprisonment for a term of not less than five years and not exceeding 21 years”.
- 45.
Cf. the Criminal Code of Bulgaria, Article 98: “1. Who abets a foreign country or a public group abroad in a war or other hostile act against the republic shall be punished by imprisonment from five to fifteen years.
2. The same punishment shall be imposed to those who commits an act with the purpose of instigating war or other hostile act against the republic”.
- 46.
Cf. the Criminal Code of Guinea, Article 80: “He shall be punished with criminal detention [for a term] between ten and twenty years, who:
1) exposes the Republic of Guinea to a declaration of war by hostile acts not authorised by the Government […]”.
- 47.
Cf. the Criminal Code of Niger, Article 72: “He shall be punished with imprisonment [for a term] between ten and twenty years, who:
1) exposes Niger to a declaration of war by hostile acts not authorised by the Government […]”.
- 48.
Cf. the Criminal Code of Senegal, Article 66: “He shall be punished with criminal detention [for a term] between ten and twenty years, who:
1) exposes Senegal to a declaration of war by hostile acts not authorised by the Government […]”.
- 49.
- 50.
Cf. the Criminal Code of Romania, Article 279 (“Hostile acts against a foreign State”): “1. The commission on Romanian territory of hostile acts against one of the Member States of the North Atlantic Treaty Organisation, or of the European Union or of the Council of Europe shall be punished by strict imprisonment from 7 to 10 years and the prohibition of certain rights.
2. The same penalty shall also sanction hostile acts against the security of States, others than those in paragraph 1, and which are not at war with Romania.
3. Penal action is initiated upon request expressed by the foreign State”. See also Sayapin 2010b, pp. 178–181.
- 51.
Cf. the Criminal Code of India, Section 121 (“Waging, or attempting to wage war, or abetting waging of war, against the Government of India”): “Whoever wages war against the Government of India, or attempts to wage such war, or abets the waging of such war, shall be punished with death, or imprisonment for life, and shall also be liable to fine”.
- 52.
Cf. the Criminal Code of India, Section 121A (“Conspiracy to commit offences punishable by section 121”): “Whoever within or without India conspires to commit any of the offences punishable by section 121, or conspires to overawe, by means of criminal force or the show of criminal force, the Central Government or any State Government, shall be punished with imprisonment for life, or with imprisonment of either description which may extend to ten years, and shall also be liable to fine”.
- 53.
Cf. the Criminal Code of India, Section 122 (“Collecting arms, etc., with intention of waging war against the Government of India”): “Whoever collects men, arms or ammunition or otherwise prepares to wage war with the intention of either waging or being prepared to wage war against the Government of India, shall be punished with imprisonment for life or imprisonment of either description for a term not exceeding ten years, and shall also be liable to fine”.
- 54.
Cf. the Criminal Code of India, Section 123 (“Concealing with intent to facilitate design to wage war”): “Whoever by any act, or by any illegal omission, conceals the existence of a design to wage war against the Government of India, intending by such concealment to facilitate, or knowing it to be likely that such concealment will facilitate, the waging of such war, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine”.
- 55.
Cf. the Criminal Code of Pakistan, Section 121 (“Waging or attempting to wage war or abetting waging of war against Pakistan”): “Whoever wages war against Pakistan, or attempts to wage such war, or abets the waging of such war, shall be punished with death, or imprisonment for life and shall also be liable to fine”.
- 56.
Cf. the Criminal Code of Pakistan, Section 121A (“Conspiracy to commit offences punishable by Section 121”): “Whoever within or without Pakistan conspires to commit any of the offences punishable by Section 121, or to deprive Pakistan of the sovereignty of her territories or of any part thereof, or conspires to overawe, by means of criminal force or the show of criminal force, the Federal Government or any Provincial Government, shall be punished with imprisonment for life, or with imprisonment of either description which may extend to ten years, and shall also be liable to fine”.
- 57.
Cf. the Criminal Code of Pakistan, Section 123 (“Concealing with intent to facilitate design to wage war”): “Whoever, by any act, or by any illegal omission, conceals the existence of a design to wage war against Pakistan, intending by such concealment to facilitate or knowing it to be likely that such concealment will facilitate the waging of such war, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine”.
- 58.
Cf. the Criminal Code of the Republic of Korea, Article 92 (“Inducement of foreign aggression”): “A person who, in conspiracy with a foreign country, causes to commence hostilities against the Republic of Korea, or who, in conspiracy with foreigners, fight against the Republic of Korea, shall be punished by death or imprisonment for life”.
- 59.
Cf. the Criminal Code of the Republic of Korea, Article 100 (“Attempts”): “Attempts of the crimes provided in the preceding eight Articles shall be punished”.
- 60.
Cf. the Criminal Code of the Republic of Korea, Article 101 (“Preparations, conspiracies, agitation or propaganda”):
“1. A person who prepares or conspires with intent to commit any of the crimes of Articles 92 through 99 shall be sentenced to imprisonment for a limited term of not less than two years; provided that he denounces himself before carrying out the commission of the intended crimes, the punishment shall be mitigated or remitted.
2. The preceding paragraph shall apply to a person who agitates or propagates any of the crimes specified in Articles 92 through 99”.
- 61.
Cf. the Criminal Code of the Republic of Korea, Article 104 (“Allied power”): “The provisions of this chapter shall apply to the act committed against an allied power”.
- 62.
Cf. the Criminal Code of Iraq, para 158: “Any person who, in a foreign country or in association with it or with a person who is working on its behalf, attempts to commit hostile acts against Iraq that may lead to the outbreak of war or the severing of diplomatic relations or who provides it with the means to that end is punishable by death or life imprisonment”. Please note the legal abolition of the death penalty in Iraq in accordance with the Coalition Provisional Authority Order No. 7 of 9 June 2003, see supra note 36.
- 63.
Cf. the Criminal Code of Iraq, para 159: “Any person who, in a hostile foreign country or in association with it or with a person who is working on its behalf, attempts to assist it in its hostile operations against Iraq or impede the military operations of the Republic of Iraq and any person who provides that country with the means to that end or assists it in any way to succeed in its hostile operations is punishable by death”. Please note the legal abolition of the death penalty in Iraq in accordance with the Coalition Provisional Authority Order No. 7 of 9 June 2003, see supra note 36.
- 64.
Cf. the Criminal Code of the Philippines, Article 118 (“Inciting to war or giving motives for reprisals”): “The penalty of reclusion temporal shall be imposed upon any public officer or employee, and that of prison mayor upon any private individual, who, by unlawful or unauthorised acts provokes or gives occasion for a war involving or liable to involve the Philippine Islands or exposes Filipino citizens to reprisals on their persons or property”.
- 65.
Cf. the Criminal Code of Tunisia, Article 61: “Any Tunisian or any foreigner shall be guilty of an attempt against the external security of the State and punished with sanctions indicated in article 62:
1) [if he or she] exposes Tunisia to a declaration of war by acts not authorised by the government;
2) [if he or she] exposes Tunisians to reprisals, by acts not authorised by the government;
3) [if he or she] enrols soldiers, in time of peace, in the Tunisian territory on the account of a foreign Power;
4) [if he or she] maintains, in time of war, without an authorisation from the government, correspondence or relations with subjects or agents of an enemy Power;
5) [if he or she] carries out, in time of war, in contravention of enacted prohibitions, directly or through an intermediary, acts of commerce with subjects or agents of an enemy Power”.
- 66.
Cf. the Criminal Code of Turkey, Article 302 (“Provocation of war against the State”):
“1. Any person who provokes authorities of a foreign country to start war or to take hostile action against Turkish Republic, or cooperates with the authorities of a foreign country to serve this purpose, is punished with imprisonment from ten years to twenty years. The punishment to be imposed is increased by one-third in case of execution of provocation act through press or broadcast organs.
2. In practice of this article, direct and indirect encouragement or support of the organisations that are formed to commit crime against the security of Turkish Republic, is considered as a hostile action.
3. Precautions specific to legal entities are imposed in case of commission of the offences defined in this article by corporation”.
- 67.
- 68.
The text of the law is available at the website of Brazil’s Presidency: http://www.planalto.gov.br/ccivil/LEIS/L7170.htm#art35 (last visited on 15 May 2012).
- 69.
Cf. the Criminal Code of Sweden, Chapter 19 (“On Crimes against the Security of the Realm”): “Section 1: A person who with the intent that the Realm or a part thereof, by violent or otherwise illegal means or with foreign aid, be placed under foreign domination or made dependent on a foreign power, or that a part of the Realm be thus torn loose, takes action which involves danger that such intent be realised, shall be sentenced for high treason to imprisonment for ten years or for life or, if the danger was slight, for at least four and at most ten years…
Section 2: A person who by violent means or foreign aid causes a danger of the Realm being involved in war or other hostilities, shall, unless it is high treason, be sentenced for instigating war to imprisonment for at least two and at most eight years”.
- 70.
Cf. the Criminal Code of Romania, Article 271 (“Treason”): “The act of a Romanian citizen, of a person with no citizenship domiciling in Romania or of a foreigner working for the Romanian State of establishing connections with a foreign power or organisation or with its agents, in order to suppress or undermine the State unity, indivisibility, sovereignty or independence, by actions instigating a war against the country or facilitating foreign military occupation, or economic or political undermining, or undermining the State’s capacity for defence, or submission to a foreign power, shall be punished by life detention or severe detention from 15 to 25 years and the prohibition of certain rights”.
- 71.
Cf. the Criminal Code of France, Article 411(4): “Intelligence with a foreign power, a foreign undertaking or organisation or an enterprise or organisation under foreign control, or their agents, with a view to fomenting hostilities or acts of aggression against France, is punished by thirty years” criminal detention and a fine of € 450,000.
The same penalties apply to furnishing a foreign power, a foreign undertaking or organisation, or an undertaking or organisation under foreign control, or their agents, with the means to start hostilities or commit acts of aggression against France”.
- 72.
Cf. the Criminal Code of Japan, Article 81 (“Instigation of Foreign Aggression”): “A person who agrees with a foreign state and thereby causes the state to exercise armed force against Japan shall be punished by the death penalty”.
- 73.
Cf. the Criminal Code of Nigeria, Chap. 6 (“Treason and certain other offences”): “37. (1) Any person who levies war against the State, in order to intimidate or overawe the President or the Governor of a State, is guilty of treason, and is liable to the punishment of death.
(2) Any person conspiring with any person, either within or without Nigeria, to levy war against the State with intent to cause such levying of war as would be treason if committed by a citizen of Nigeria, is guilty of treason and is liable to the punishment of death:
(3) Provided that nothing in this section shall prevent any act from being treason which is so by the law of England as in form in Nigeria.
38. Any person who instigates any foreigner to invade Nigeria with an armed force is guilty of treason, and is liable to the punishment of death […]
42. Any person who, without lawful authority, carries on, or makes preparation for carrying on, or aids in or advises the carrying on of, or preparation for, any war or warlike undertaking with, for, by, or against, any traditional chief, or with, for, by, or against any band of citizens, is guilty of a felony, and is liable to imprisonment for life.
43. A person cannot be tried for treason, or for any of the felonies defined in the three last preceding sections, unless the prosecution is commenced within two years after the offence is committed”. See also Sayapin 2010b, pp. 182–185.
- 74.
Cf. the Criminal Code of China, Article 102: “Whoever colludes with foreign states in plotting to harm the motherlan’s sovereignty, territorial integrity and security is to be sentenced to life imprisonment or not less than ten years of fixed-term imprisonment.
Whoever commits the crimes in the preceding paragraph in collusion with institutions, organisations, or individuals outside the country shall be punished according to the stipulations in the preceding paragraph”.
- 75.
Cf. the Criminal Code of Ethiopia, Article 248 (“High treason”): “Whoever, enjoying Ethiopian nationality or being officially entrusted with the protection of Ethiopian national interests:
(a) takes up arms or engages in hostile acts against Ethiopia; or
(b) has dealings with or keeps up a secret correspondence with a power at war with Ethiopia, or with a person or body acting on behalf of such power, for the purpose of ensuring or promoting the enemy’s success in any manner whatsoever; or
(c) delivers to the enemy, whether directly or indirectly, an object, armament, plan, document or resources of any kind used for the national defence, or aids the enemy by rendering services or delivering supplies to him, is punishable with rigorous imprisonment from five to twenty-five years, or, in cases of exceptional gravity, with life imprisonment or death”.
- 76.
Cf. the Criminal Code of the Philippines, Article 114 (“Treason”): “Any person who, owing allegiance to (the United States or) the Government of the Philippine Islands, not being a foreigner, levies war against them or adheres to their enemies, giving them aid or comfort within the Philippine Islands or elsewhere, shall be punished by reclusion temporal to death and shall pay a fine not to exceed P20,000 pesos.
No person shall be convicted of treason unless on the testimony of two witnesses at least to the same overt act or on confession of the accused in open court.
Likewise, an alien, residing in the Philippine Islands, who commits acts of treason as defined in paragraph 1 of this Article shall be punished by prision mayor to death and shall pay a fine not to exceed P20,000 pesos”.
- 77.
Cf. the Criminal Code of Togo, Article 222: “Any national of Togo shall be punished by death for treason:
1) [if he or she] delivers to a foreign Power or its agents the territories, places, installations, supplies, vessels, aircraft or war material, which belong to Togo;
2) [if he or she] delivers intelligence to a foreign Power with a view to preparing hostilities against Togo, or facilitating the success of military operations orchestrated against Togo;
3) [if he or she] takes arms against Togo;
4) [if he or she] provokes [members of] Togo’s military or Togo’s allies to disobedience and treason in favour of a foreign Power;
5) [if he or she] voluntarily destroys a vessel, aircraft, weapon, war material or any other installation employed for national defence;
6) [if he or she] delivers a secret [related to] national defence to a foreign Power or assures [himself or herself] of the possession of such a secret with a view to delivering it to a foreign Power”.
- 78.
On distinctive features of criminality among political and ruling élites, see Luneev 2005, pp. 661–705. In V. Luneev’s opinion, the most dangerous forms of élites’ criminality are “political corruption” and “political terrorism”, which possess the following common features: (1) political leaders’ crimes are intrinsically related to their status; (2) as a rule, there are no direct witnesses to such crimes who would be interested in having them prosecuted; (3) these crimes are committed through “highly intellectual” means; and (4) by virtue of their status, the subjects of these crimes are relatively better equipped for evading criminal liability and punishment than are ordinary citizens, see ibid., pp. 664–665. See also Dubber 2007, pp. 977–1001.
- 79.
See Marchenko 2003, p. 67.
- 80.
Cf., for example, Article 12 of the Constitution of the Republic of Uzbekistan: “In the Republic of Uzbekistan, public life shall develop on the basis of a diversity of political institutions, ideologies, and opinions.
No ideology shall be granted the status of state ideology”.
- 81.
It must be noted that, for our purpose, the expression “military leaders” is used in its generic sense so as to include officials in charge of a State’s armed and security forces, such as the army, police, security services and other units, which may be called upon to perform military functions in an international armed conflict.
- 82.
Cf. Werle 2009b, p. 414.
- 83.
See Sapronova 2007, p. 5.
- 84.
For an overview of such sources’ influence upon legal and political processes in some theocratic Islamic States, see ibid., pp. 130–206.
- 85.
Cf., for example, Article 110 of the Constitution of the Islamic Republic of Iran, which regulates, inter alia, the functional relations between the country’s spiritual Leader and President: “Following are the duties and powers of the Leadership:
1. Delineation of the general policies of the Islamic Republic of Iran after consultation with the Nation’s Exigency Council;
2. Supervision over the proper execution of the general policies of the system;
3. Issuing decrees for national referenda;
4. Assuming supreme command of the armed forces;
5. Declaration of war and peace, and the mobilisation of the armed forces;
6. Appointment, dismissal, and acceptance of resignation of:
1. the fuqaha’ on the Guardian Council;
2. the supreme judicial authority of the country;
3. the head of the radio and television network of the Islamic Republic of Iran;
4. the chief of the joint staff;
5. the chief commander of the Islamic Revolution Guards Corps;
6. the supreme commanders of the armed forces.
7. Resolving differences between the three wings of the armed forces and regulation of their relations;
8. Resolving the problems, which cannot be solved by conventional methods, through the Nation’s Exigency Council;
9. Signing the decree formalising the election of the President of the Republic by the people. The suitability of candidates for the Presidency of the Republic, with respect to the qualifications specified in the Constitution, must be confirmed before elections take place by the Guardian Council; and, in the case of the first term [of the Presidency], by the Leadership;
10. Dismissal of the “President of the Republic, with due regard for the interests of the country, after the Supreme Court holds him guilty of the violation of his constitutional duties, or after a vote of the Islamic Consultative Assembly testifying to his incompetence on the basis of Article 89 of the Constitution;
11. Pardoning or reducing the sentences of convicts, within the framework of Islamic criteria, on a recommendation [to that effect] from the Head of judicial power. The Leader may delegate part of his duties and powers to another person”. See http://www.iranonline.com/iran/iran-info/government/constitution-8.html (last accessed 15 November 2012).
- 86.
- 87.
According to Mike T. Molan, the material elements of an offence (actus reus) is “a term referring to the external elements of an offence, that is, those elements of the offence that have to be established by the prosecution, other than those that relate to the defendant’s state of mind”, see Molan 2008, p. 55. For a theoretical overview of the notion of actus reus, see idem., 54–71. Matthew R. Lippman’s definition of actus reus is more detailed and involves three structural elements: “Actus reus generally involves three elements or components: (1) a voluntary act or failure to perform an act (2) that causes (3) a social harm condemned under a criminal statute”, see analysis in Lippman 2010, pp. 84–112.
- 88.
See Kudryavtsev et al. 2005b, p. 98.
- 89.
Ibid.
- 90.
Ibid., p. 102.
- 91.
Ibid.
- 92.
See Kudryavtsev et al. 2005a, pp. 186–231.
- 93.
According to Antonio Cassese, the crime of aggression can also be committed with indirect intent: “[I]t must be shown that the perpetrator intended to participate in aggression and was aware of the scope, significance, and consequences of the action taken or, at the least, knowingly took the risk of bringing about the consequences of that action (recklessness)”, quoted in Murphy 2006, p. 419. For a more detailed reflection, see infra 4.5.
- 94.
There is some disagreement in the criminal law theory with regard to whether the formation of a criminal intent itself constitutes a stage in a criminal enterprise. According to some authors, “unlike the preparation [for a crime], the formation of intent does not establish […] preconditions for the commission of a crime; therefore, it cannot be regarded as a first stage in the commission of the crime”. See Kurs sovetskogo ugolovnogo prava 1968, p. 545. While the formation of intent does not indeed constitute any objective preconditions for the commission of a crime, which are put in place at the subsequent stage of preparation, it does establish—in conjunction with planning, which follows, if the intent is generally endorsed—a mental framework, a conceptual model of the future act. It may therefore be suggested that whereas the formation of intent does not indeed constitute a separate stage in a criminal enterprise, it does establish a mental framework for the planning and is itself part of that first stage, i.e. of a truncated corpus delicti of the crime of aggression.
- 95.
See Radzinowicz 1966, p. 52.
- 96.
See Kudryavtsev et al. 2005b, p. 237.
- 97.
Ibid., p. 535.
- 98.
Ibid., p. 102.
- 99.
- 100.
See Eagleton 1941, pp. 321–326.
- 101.
Cf., for example, para 11 of Section 8 of the Constitution for the United States of America: “The Congress shall have Power […t]o declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water […]”. On the relationship between the war powers of US Congress and president, see Murphy 2006, pp. 213–214.
- 102.
See Kudryavtsev et al. 2005b, p. 102.
- 103.
Cf. supra 4.1.3.
- 104.
- 105.
Whitton 1974, at 239.
- 106.
Lumley FE (1933) The Propaganda Menace. New York, D. Appleton—Century Company, 56, quoted in Kearney 2007, p. 3.
- 107.
In this regard, Michael G. Kearney notes, rightly, as follows: “Neither is the word war itself frequently used in the context of international law, with aggression being the relevant term for the purposes of international criminal law and “armed conflict” or “use of force” employed by humanitarian lawyers”. See Kearney 2007, p. 4.
- 108.
Again, according to Michael G. Kearney, the travaux préparatoires of Article 20(1) of the International Covenant on Civil and Political Rights, which requires that “propaganda for war” must be proscribed by law, suggest that penal sanctions for such propaganda would be more suitable than other forms of responsibility and perhaps the only effective means of giving effect to the obligation. See Kearney 2007, p. 134.
- 109.
Cf. the Criminal Code of Estonia, para 92 (“Propaganda for war”): “(1) Any incitement to war or other use of arms in violation of the generally recognised principles of international law is punishable by a pecuniary punishment or up to 3 years’ imprisonment.
(2) The same act, if committed by a legal person, is punishable by a pecuniary punishment”.
- 110.
Cf. the Criminal Code of Finland, Chapter 2(“Treasonable offences”), Section 2 (“Warmongering”): “If a person in Finland or a Finnish citizen outside of Finland, during an ongoing or imminent military crisis or international political crisis, for the purpose of causing Finland to be at war or the target of a military operation
(1) publicly exhorts a foreign state to carry out an offensive against Finland or Finland to carry out an offensive against a foreign state;
(2) publicly disseminates statements or other propaganda intended to turn the public opinion in favour of the carrying out of offensives;
(3) systematically disseminates manifestly unfounded or misleading information on the Finnish defence or the military or security policy of Finland; or
(4) unlawfully commits a violent act against a foreign state or the representative, territory or property of a foreign state so that the act evidently increases the danger of Finland being at war or the target of a military operation, that person shall be sentenced for warmongering to imprisonment for at least one and at most ten years”.
- 111.
Cf. the Criminal Code of Georgia, Article 405 (“Calling for unleashing aggressive war”): “1. Calling the country for unleashing the war of aggression –
shall be punishable by fine or by imprisonment for up to three years in length.
2. The same action perpetrated via media or by a person holding a State or political office –
shall carry legal consequences of fine or imprisonment ranging from two to five years in length, be deprivation of the right to occupy a position or pursue a particular activity for the term not in excess of three years”.
- 112.
Cf. the Criminal Code of Germany, Section 80a (“Incitement to a war of aggression”): “Whoever publicly incites to a war of aggression (Section 80) in a meeting or through the dissemination of writings (Section 11 subsection (3)) in the territorial area of application of this law shall be punished with imprisonment from three months to five years”.
- 113.
Cf. the Criminal Code of Hungary, Section 153 (“Incitement to war”): “(1) The person who incites for war or otherwise displays war propaganda, commits a felony and shall be punishable with imprisonment from two years to eight years.
(2) The punishment shall be imprisonment from five years to fifteen years, if the crime is committed before a great publicity.
(3) The person who commits preparation for incitement for war, shall be punishable for a felony with imprisonment of up to three years”.
- 114.
Cf. the Criminal Code of Latvia, Section 77 (“Incitement to a war of aggression”): “For a person who commits public incitement to a war of aggression or instigation to an armed conflict, the applicable sentence is deprivation of liberty for a term not exceeding eight years”.
- 115.
Cf. the Criminal Code of Tajikistan, Article 396 (“Public appeals to unleashing an aggressive war”): “(1) Public appeals to unleashing an aggressive war is punishable by a fine of 500–1000 times the minimum monthly wage or imprisonment for a period of 2–5 years.
(2) The same actions committed using mass media or by persons who hold state positions of the Republic of Tajikistan are punishable by imprisonment for a period of 7–10 years with deprivation of the right to hold certain positions or be engaged in certain activities for up to 5 years.
Note: The list of persons who hold state positions is determined by the legislation of the Republic of Tajikistan”.
- 116.
See Kearney 2007, p. 134.
- 117.
Cf. the Criminal Code of Armenia, Article 385 (“Public calls for aggressive war”):
“1. Public calls for starting an aggressive war are punished with a fine of 100–200 minimal salaries, or with imprisonment for the term of up to 3 years.
2. The same actions which were implemented by mass media or by the highest state authority, are punished with a fine of 300–500 minimal salaries, or with imprisonment for the term of 2–5 years, by deprivation of the right to hold certain posts or practice certain activities for up to 3 years.
3. By the highest state authority referred to in this Article, we mean the President of the Republic of Armenia, the members of the Government of the Republic of Armenia, the members of the National Assembly of the Republic of Armenia”.
- 118.
Cf. the Criminal Code of Azerbaijan, Article 101 (“Public appeals to implementation of aggressive war”):
“1. Public appeals to implementation of aggressive war –
shall be punished by restriction of freedom for the term up to three years or imprisonment on the same term.
2. The same acts accomplished with the use of mass media or official means –
shall be punished by imprisonment for the term from two up to five years with deprivation of a right to hold a certain posts or to engage in the certain activities for the term up to three years or without it”.
- 119.
Cf. the Criminal Code of Belarus, Article 123 (“Propaganda for war”):
“1. The dissemination in any form of views, ideas or calls for the purpose of inspiring one country’s aggression against another (propaganda for war)—shall be punished by a fine or by deprivation of liberty for a term not exceeding three years.
2. Propaganda for war by individuals occupying supreme official posts—shall be punished by deprivation of liberty for a term between two and five years with the deprivation of the right to occupy certain posts or to engage in certain activities without such a deprivation”.
- 120.
Cf. the Criminal Code of Kazakhstan, Article 157 “(“Propaganda and public calls for unleashing an aggressive war”):
“1. Propaganda and public exhortations to unleash an aggressive war—shall be punished by a fine in an amount up to three thousand monthly assessment indices, or in an amount of wages of other income of a given convict for a period from three to nine months, or by imprisonment for a period up to three years.
2. The same acts committed with the use of the mass information media, or by an official holding a responsible position –
shall be punished by a fine in an amount up to five thousand monthly assessment indices, or in an amount of wages of other income of a given convict for a period from six months up to one year, or by imprisonment for a period from two to five years with deprivation of the right to hold certain positions or to engage in certain types of activity for a period up to three years”.
- 121.
Cf. the Criminal Code of Moldova, Article 140 (“War propaganda”):
“1. War propaganda, spreading of tendentious or invented news, of a nature to instigate to war, or any other activities oriented to unleashing a war, committed through speech, writing, radio, television, cinema or any other means,-
Shall be punished by a fine in the amount of up to 500 conventional units or by imprisonment for a period of 3 to 8 years, in both cases with forfeiture of the right to hold certain positions or to engage in certain activities for an up to 5 year period.
2. Committing the acts set forth in paragraph (1) by a high official of public authority,
Shall be punished by a fine in the amount of 500 to 1000 conventional units or by jail sentence of between 8 and 12 years, in both cases with forfeiture of the right to hold certain positions or to engage in certain activities for an up to 5 year period”.
- 122.
Cf. the Criminal Code of the Russian Federation, Article 354 (“Public appeals to unleash an aggressive war”):
“1. Public appeals to unleash an aggressive war—shall be punishable by a fine in the amount up to 300 thousand roubles, or in the amount of the wage or salary, or any other income of the convicted person for a period up to two years, or by deprivation of liberty for a term of up to three years.
2. The same acts, committed with the use of the mass media or by a person who holds a state post of the Russian Federation or a state post of a subject of the Russian Federation—shall be punishable by a fine in the amount of 100 thousand to 500 thousand roubles, or in the amount of the wage or salary, or any other income of the convicted person for a period of one to three years, or by deprivation of liberty for a term up to five years, with disqualification to hold specified offices or to engage in specified activities for a term of up to three years”.
- 123.
Cf. the Criminal Code of the Ukraine, Article 436 (“Propaganda of war”):
“Public calls to an aggressive war or an armed conflict, and also making of materials with calls to any such actions for distribution purposes or distribution of such materials—shall be punishable by correctional labour for a term up to two years, or arrest for a term up to six months, or imprisonment for a term up to three years”.
- 124.
Cf. the Criminal Code of Uzbekistan, Article 150 (“Propaganda of war”):
“Propaganda of war, that is, any form of dissemination of views, ideas or calls with the purpose of making aggression of one country against another one—shall be punished with imprisonment from five to ten years”.
- 125.
Cf. the Criminal Code of Turkmenistan, Article 167 (“Propaganda for war”):
“Propaganda for war, that is, the dissemination through the mass media or otherwise of calls for waging and aggressive war shall be punished with correctional labour for a term not exceeding two years or with deprivation of liberty for a term not exceeding five years”.
- 126.
See Kudryavtsev et al. 2005a, pp. 72–144, where the mental element (mens rea) of an offence is defined (at 72) as “the state of mind of the accused at the time of the commission of the actus reus of an offence. The traditional maxim is “actus not facit reum nisi mens sit rea”: the act is not guilty unless the mind is also guilty”. In turn, M. Lippman defines mens rea as “the ”mental part” of crimes”, see Lippman 2010, p. 114.
- 127.
In accordance with the psychological theory of criminal guilt, every socially dangerous act committed by a sane person is considered to be conscious and volitional—and hence, guilt is considered to include intellectual and volitional elements. Different forms of the mens rea (direct or indirect intent, negligence or dolus eventualis) result from various combinations of these elements. For the purpose of this research, the direct and indirect forms of intent are essential. The direct intent embraces three interrelated features: (1) a perpetrator’s conscious attitude towards the social danger of his or her act (or omission, which is immaterial in the context of aggression); (2) prevision of the unavoidability or possibility of the act’s socially dangerous consequences; and (3) desire for their onset. In turn, indirect intent too consists of three elements: (1) a perpetrator’s conscious attitude towards the social danger of his or her act; (2) prevision of the possibility of the act’s socially dangerous consequences; and (3) conscious allowance for their onset. See Kudryavtsev et al. 2005a, p. 193.
- 128.
See the 1907 Hague Regulations, Article 43.
- 129.
- 130.
See the 1907 Hague Regulations, Article 42.
- 131.
In this context, Articles 31 (“General rule of interpretation”) and 32 (“Supplementary means of interpretation”) of the 1969 Vienna Convention on the Law of Treaties are particularly relevant.
- 132.
Another useful source for the interpretation of the military occupation regime is Section III of the Fourth Geneva Convention (“Occupied territories”).
- 133.
- 134.
Cf. the first sentence of the 10th paragraph interpreting the prohibition of the threat or use of force in the 1970 Friendly Relations Declaration: “The territory of a State shall not be the object of military occupation resulting from the use of force in contravention of the provisions of the Charter”.
- 135.
Cf. the second and third sentences of the 10th paragraph interpreting the prohibition of the threat or use of force in the 1970 Friendly Relations Declaration: “The territory of a State shall not be the object of acquisition by another State resulting from the threat or use of force. No territorial acquisition resulting from the threat or use of force shall be recognised as legal”.
- 136.
See Lukashuk 2008, p. 25.
- 137.
Antonio Cassese notes that this form of liability originates from common law systems and is either unknown to, or accepted of a very limited extent by, civil law systems. See Cassese 2008, p. 227.
- 138.
Ibid.
- 139.
Ibid.
- 140.
May 2008, p. 251 and ff.
- 141.
- 142.
See Draft Code of Crimes against the Peace and Security of Mankind with commentaries 1996, p. 30.
- 143.
See Reisinger Coracini 2009, p. 731.
- 144.
Ibid.
- 145.
According to the Permanent Mission of the Principality of Liechtenstein, “government or parliamentary officials in at least the following States Parties are currently actively working on the ratification of the amendments on the crime of aggression: Argentina, Australia, Austria, Belgium, Brazil, Botswana, Chile, Costa Rica, Croatia, Cyprus, Dominican Republic, Ecuador, Estonia, Georgia, Germany, Italy, Latvia, Luxembourg, the Netherlands, Peru, Portugal, Romania, Slovenia, Switzerland, Trinidad and Tobago, and Uruguay. In the Czech Republic, Finland, Guatemala, Japan and Venezuela, the process is in its early stages” see document: “Status of Ratification and Implementation of the Kampala Amendments on the Crime of Aggression (information as of 9 October 2012)”, 1 (document on file with the author). Further, “the following States Parties made concrete commitments to ratify the amendments on the crime of aggression: Austria, Argentina, Bolivia, Botswana, Estonia, Germany, Peru, South Africa, Spain, Switzerland, Trinidad and Tobago. In addition, the following countries made positive references to the amendments: Brazil, Burkina Faso, Canada, Croatia, Democratic Republic of the Congo, Denmark, Fiji, Finland, Ghana, Hungary, Japan, Jordan, Kenya, Lesotho, Mexico, Nigeria, Norway, Poland, Republic of Korea, Senegal, Serbia, Slovakia, Spain and the United Kingdom”, see ibid., p. 2.
- 146.
See David 2009, p. 13.
- 147.
Ibid., pp. 188–203.
- 148.
Ibid., pp. 14–149.
- 149.
Ibid., pp. 203–217.
- 150.
Ibid., pp. 236–242.
- 151.
On this issue, cf. also infra 5.2.6.
- 152.
The ICTY Appeals Chamber held in para 41 of its decision in Prosecutor v. Blaškić (29 October 1997) as follows: “The general rule under discussion [that the individual organ may not be held accountable for acts or transactions performed in its official capacity] is well established in international law […] The few exceptions […] arise from the norms of international criminal law prohibiting war crimes, crimes against humanity and genocide. Under these norms, those responsible for such crimes cannot invoke immunity from national or international jurisdiction even if they perpetrated such crimes while acting in their official capacity”. For a similar opinion, see Cassese 2008, p. 305. It is submitted that the ICTY did not mention the crime of aggression among crimes under international law whose perpetrators may not invoke immunity because the ICTY had no jurisdiction with respect to crimes against peace, and not because it did not consider the rule in question to be inapplicable to such crimes. The practice of the Nuremberg and Tokyo tribunals discussed earlier in this chapter confirmed the opinio juris in this respect. See also Kemp 2010, pp. 179–181.
- 153.
Cf. Robertson 2002, p. 405.
- 154.
Ibid., p. 408.
- 155.
- 156.
It is presumed that the general conditions essential to an extradition procedure shall be complied with:
-
existence of an appropriate jurisdictional link between the requesting (victim) State and a specific crime of aggression;
-
compatibility of the national definitions of the crime (of aggression);
-
rule of specialty. See Nesterenko 2011, pp. 49–107.
-
- 157.
See Boytsov 2004, pp. 47–112.
- 158.
Ibid., pp. 357–399.
- 159.
See Boytsov 2004, pp. 767–777.
- 160.
See Sayapin 2004, pp. 158–159.
- 161.
Cf. ICCPR, Articles 14 and 15.
- 162.
Cf. Article 6 (“Right to a fair trial”) of the ECHR, Article 8 (“Right to a fair trial”) of the ACHR, Article 7 of the ACHPR.
- 163.
For a detailed analysis of procedural rules for such possible future trials, see Safferling 2012, pp. 58–63 (regarding the relevance of human rights for the fair trial concept), 179–192 (regarding the right of defence), 286–291 (regarding the rights of the suspect), 378–419 (regarding the principles of the trial), 436–462 (regarding the structure of the trial), 463–515 (regarding evidence), 515–521 (regarding witnesses and victims protection), 522–527 (regarding rules for rendering judgments), 531–559 (regarding appeal and revision), 560–573 (regarding the contempt of Court).
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Sayapin, S. (2014). The Principal Approaches Towards the Criminalisation of Aggression at the National Level. In: The Crime of Aggression in International Criminal Law. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-90-6704-927-6_4
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