International Legal Regulation and Prosecution of Crimes of Aggression

Dimitrijević, Duško (2024) International Legal Regulation and Prosecution of Crimes of Aggression. In: Thematic Conference Proceedings of International Significance / XIII International scientific conference “Archibald Reiss Days”, Belgrade, 8-9 November 2023. University of Criminal Investigation and Police Studies, Belgrade, pp. 34-55. ISBN 978-86-7020-512-3; 978-86-7020-190-3

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Abstract

The value of this work for science derives from the historical and comparative legal analysis of the most important international legal acts that determine the meaning of one of the “core crimes” in international and international criminal law. At the Versailles Peace Conference, and then within the League of Nations and at regional conferences devoted to key political issues, attempts were made to legally regulate aggression and to prohibit the waging of an aggressive war. Although these attempts led to limited legal sanctioning of aggressive war, all these attempts “more or less” failed. The cause was the reactionary policy of the great powers that undermined the collective security system established by the League of Nations. All of this resulted in the complete collapse of the system of international relations and the outbreak of the Second World War. The execution of numerous acts of aggression during the Second World War postponed the issue of international legal regulation of aggression for the post-war period. However, the Second World War was a demonstrative example of how interna-tional relations should not develop. The main assumption for that thesis was the protection of inter-national peace and security, which could not go separately without establishing a prohibition on the use of force in international relations. Under the auspices of the United Nations, that prohibition was generally established in its Charter, which was the first step towards realizing the idea of the need for international legal regulation of acts of aggression. International legal acts and resolutions adopted by the United Nations on this matter in the previous period, therefore, have great value for international law. In this sense, the subject analysis indicates that aggression is beyond any doubt one of the “core crimes” that threatens the vital values of states, from sovereignty and territorial integrity to political independence. It causes serious and dangerous consequences for world peace and security, which is why it is contrary to general international law contained in the UN Charter. Unlike the international legal definition of aggression, which concerns determining the responsibility of states for violating ius ad bellum, the international criminal law definition of aggression adopted by the ICC refers to deter-mining the legal responsibility of individuals who are in an effective position to control or direct the political and military actions of the aggressor state. In this sense, this paper has original value because it points to the insufficiently specified delimitation of the functional powers of the Security Council on the one hand and the jurisdiction of the ICC to judge in each individual case the individuals respon-sible for the crime of aggression on the other hand. At the same time, when there is a well-founded suspicion that aggression against the state has been committed, its objective and subjective (material and mental) elements, as a rule, are determined by the ICC, and the political background and legal qualification in terms of the provisions of the Charter are determined by the Security Council, adher-ing to its functional powers prescribed in Chapter VII of the United Nations Charter, which refers to the maintenance of international peace and security. But, for the sake of truth, it should also be men-tioned that the Security Council, as the supreme executive and political body of the United Nations, in its long-term practice did not demonstrate its functional powers in a legally consistent manner, which left room for various voluntaristic interpretations (Gaja, 2002: 124, etc.). In such a situation, defining the conditions for criminal prosecution for the crime of aggression requires delicate work on more precisely harmonizing the competences and methods of action of the Security Council and the ICC (Trahan, 2019: 471–483). This is primarily because, in light of the complexity of modern warfare and the involvement of non-state actors in armed conflicts, the limited nature of responsibility for the crime of aggression requires finding an appropriate balance between the goals of advancing in-ternational criminal justice and protecting peace in the world. (Boas, 2013; Graziani & Mei, 2017: 57; Liakopoulos, 2020: 153).

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