Planning and preparation of aggressive war as a crime: objective signs

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 specificity of interstate agreements in the field of domestic criminal law is that they cannot be implemented without the implementation of their provisions in the Criminal Code of the Russian Federation (hereinafter referred to as the Criminal Code of the Russian Federation), since the norms of such agreements do not have sanctions. In this regard, the fulfillment of Russia's international obligations is possible only by including the provisions of international acts in Russian law ^[1]. The Russian Federation has implemented into its national criminal legislation a provision from the Verdict of the Nuremberg Tribunal, which recognized planning, preparation, unleashing and waging an aggressive war as the gravest international crime (Article 353 of the Criminal Code of the Russian Federation). This issue was also studied by R.B. Dzeitova, A.G. Kibalnik, A.Y. Ivanov, A.I. Chuchaev, I.E. Zvecharovsky and other scientists, to whose work we will appeal in our study, however, we analyzed new circumstances and a number of issues that were not the subject of research by these authors.

The object of a crime is defined as something that is harmed as a result of committing a criminal offense ^[2]. In modern criminal law doctrine, the point of view that public relations should be recognized as such has become the most widespread on the issue of determining the object of a crime ^[3]. Speaking about this element of the corpus delicti, A.I. Chuchaev notes: "The crime is aimed at destroying, violating or changing social relations. An act cannot be recognized as a crime if it does not violate public relations and does not put them at risk of violation" ^[4].

353 of the Criminal Code of the Russian Federation is the peace and security of mankind. Section XII "Crimes against the peace and security of mankind" consists of a single chapter of the same name, in connection with which special studies suggest that the specific object in this case coincides with the generic one ^[5], however, this contradicts the logic of constructing a Special part of the Criminal Code of the Russian Federation and it seems advisable to distinguish them.

The concept of peace is multifaceted. From a religious point of view, peace is understood as "full-scale and all-encompassing well-being and well-being", an unambiguous good to strive for ^[6]. From a philosophical point of view, the world is defined as an unchangeable category: peace and eternity ^[7]. In the scientific literature, the state of peace is proposed to be understood as the "state of international peace" ^[8] – "the interests of observing universal peace and the rules of peaceful settlement of interstate disputes protected by international law", the security of individual states ^[9], their peaceful coexistence and cooperation ^[9], as well as the state of security and the absence of actual hostilities between states ^[10].

Currently, it is generally accepted that "peace is a normal order of human relations," while the definition of "peace" has not been developed either in international, foreign, or national regulatory legal acts. The concept of the category "aggression" has been discussed at the level of international organizations and military tribunals in considerable detail, and in this regard, it is possible to deduce the definition of "peace" from the concept of "aggression" enshrined in international documents. Based on the definition developed by the UN General Assembly, aggression is understood as "the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other way inconsistent with the Charter of the United Nations, as established in this definition" (The definition of aggression approved by resolution 3314 (XXIX) of the General Assembly United Nations General Assembly on December 14, 1974 [Electronic resource] // URL: https://www.un.org/ru/documents/decl_conv/conventions/aggression.shtml (date of request: 12/22/2024). The following definition of peace can be proposed: peace is a state of absence of the use of armed forces of States against the sovereignty, territorial integrity or political independence of each other, or armed organized non–State groups against States.

The definition of the term "security" is given in the federal legislation of Russia. According to Article 1 of the Federal Law of the Russian Federation "On Security" dated March 5, 1992, No. 2446-1, "security is a state of protection of vital interests... from internal and external threats" (Federal Law of the Russian Federation of March 5, 1992, No. 2446-1 "On Security" // SPS ConsultantPlus.). Thus, this is a state of protection for an indefinite circle of people from any threats encroaching on their vital interests. The list of "vital interests" of humanity is very wide and can hardly be exhaustively formulated in legislation, but based on a holistic understanding of crimes against the peace and security of mankind defined in international and national law, it is clear that these "vital threats" endanger the physical existence of humanity as a whole. Thus, the use of weapons of mass destruction threatens the existence of an indefinite circle of people, regardless of any of their characteristics.

The state of human security is the security of humans as biological individuals ^[11], and such a state, in our opinion, is broader in scope than the state of international peace, since it is not limited only to war and hostilities. The security of mankind also consists in protecting the "physical existence of an indefinite circle of people" ^[12], which can happen both in the absence of violations of peaceful existence. A. Y. Ivanov defines the security of mankind as an absolute legal good ^[13].

The question of the direct object of the crime under consideration is also debatable. There is a point of view in the literature according to which peace is the direct object of this crime, since all actions of the objective side of the crimes provided for in Article 353 of the Criminal Code of the Russian Federation "lead to the destruction of normal relations between peoples and sovereign states" ^[14]. V.P. Revina believes that the state of peace between states and the security of mankind ^[15]. R.B. Dzeitova defines the main direct object of this crime as social relations that ensure the maintenance of peace and peaceful coexistence of states ^[16]. In our opinion, the latter definition needs to be supplemented. There are partially recognized States in the international arena. In order for the norm to be universal, it is advisable to supplement the above definitions with the phrase "peaceful coexistence of peoples." Thus, the main direct object of the crimes provided for in Part 1 of Article 353 of the Criminal Code of the Russian Federation is public relations to ensure peace and peaceful coexistence of states and peoples. As additional objects, public relations can be considered to ensure the normal functioning of society, the protection of life and health, as well as the territorial integrity of the state.

As already noted, Russian criminal legislation uses the wording from the Verdict of the Nuremberg Tribunal, where planning, preparation, unleashing and waging an aggressive war is recognized as the gravest international crime (art. 353 of the Criminal Code of the Russian Federation). The article includes two separate elements of a crime, fixed in Part 1 and Part 2 of art. 353 of the Criminal Code, respectively. The objective side of the first of them is expressed in the commission of one of the three alternatively indicated acts: planning, preparing or unleashing an aggressive war. In their form, all actions are actions. The normative documents of international bodies and the practice of international tribunals do not provide clear explanations about the content of such actions, although the terms themselves are used in the mentioned texts.

A violation of peaceful coexistence is presumed to be an aggressive war. In the explanatory dictionary, war is interpreted as an armed struggle between states or peoples, between classes within the state (Explanatory Dictionary of Ozhegov S.I. [Electronic resource] // URL: https://gufo.me/dict/ozhegov/война (date of access: 06/25/2024). From a historical point of view, war is "a complex social phenomenon that represents the continuation of the political struggle of states, nations, and classes by means of armed violence" (Soviet Historical Encyclopedia [Electronic resource] // URL: https://gufo.me/dict/history_encyclopedia/ВОЙНА (date of access: 06/25/2024). In all these definitions, war appears as "armed violence" or "armed conflict." We believe that the concept should be considered from the point of view of international humanitarian law, where war is "an armed social conflict, an organized armed struggle between independent sovereign states (their associations, coalitions) as a means of settling interstate political disputes" ^[17].

War is one of the types of armed conflicts and has a number of features not inherent in armed conflicts ^[18]. Firstly, it leads to a qualitative change in the state of society. Many State institutions are beginning to perform specific functions generated by the war. To ensure victory over the enemy, the entire life of society and the country's economy are being rebuilt, its material and spiritual forces are being concentrated, and the centralization of power is increasing. Secondly, when declaring war, the norms of international humanitarian law should immediately come into force in full, while in an armed conflict this does not always happen.

Aggressive war planning is the activity of developing a military and ideological concept of war, drawing up strategies, tactics, mobilization plans, holding meetings and staff events on the structure, composition and tasks of the armed forces involved in unleashing and waging aggressive war. These are intellectual actions aimed at achieving the goals of aggressive warfare. Planning always precedes the beginning of hostilities. If planning activities continue even during the period of waging an aggressive war, then, in our opinion, this will be covered by Part 2 of Article 353 of the Criminal Code of the Russian Federation as an integral part of the crime of waging an aggressive war.

Let's illustrate the elements of war planning using examples of various wars, some of which were not recognized as aggressive, but they detail the actions in question. Planning for the First World War began long before it actually began: in 1871, Field Marshal Helmut Karl Bernhard von Moltke wrote that a simultaneous war on two fronts with Russia and France was dangerous for young Germany, and since such a situation was not excluded, preparations should already begin. Thus, for more than 40 years, the German General Staff has been developing plans for a two-front war, which established the basic ideas of operations against Russia and France, a clear distribution of forces and the nature of the initial military operations ^[19].

War planning, when assessing other circumstances, can also include the conclusion of military alliances with other States. Thus, in 1879, an alliance was concluded with Austria-Hungary, according to which "the chief of the German General Staff established the role of the Austro-Hungarian armed forces in the joint struggle of both allies against France and Russia" ^[19]. When Italy joined the union in 1882, Berlin took into account the use of Italian forces for the military purposes of the Triple Alliance.

A vivid manifestation of the planning of certain stages of the aggressive war is the activity of fascist Germany in developing plans for the "Eastern Question" and "Barbarossa" to occupy and capture the USSR, "Weserubung" against Norway, "Gelb" against Belgium, "Roth" against France. The fact that A. Hitler and the Nazi leadership as a whole had a special commitment to the idea of seizing Soviet lands was also evidenced by his first meeting with the Reichswehr high command after assuming the post of Reich Chancellor. At this meeting, held on February 3, 1933, Hitler stated that his government considered one of the highest priorities in the field of foreign policy to be "the seizure of a new living space in the East and its ruthless Germanization" ^[20]. By "Germanization" of the territory, the Nazis meant its settlement by Germans and other members of the German race related to them by blood, the extermination or transformation of the indigenous population into slaves of German masters. Later, in 1940, the General Staff of the German Land Forces instructed the Chief of Staff of the 18th Army (in reserve), Major General Erich Marx, to develop a general concept of a military campaign against the Soviet Union. E. Marx proposed the idea of launching a strike group on the southern flank; invade from Romania, in a short time to seize a bridgehead on Ukraine, break through to Donbass and from here turn sharply north to Moscow. Apparently, it was supposed to use the available transport lines to quickly advance and bypass the Soviet troops on the front from the Baltic to the upper Dnieper. The strategic plan was to cut off the Soviet army from the rear, to impose battles on the "inverted front" of the Soviet troops, preventing the withdrawal of combat-ready units to the east. The plan, officially submitted to the OKH (the Supreme Command of the Ground Forces), proposed a strike by two groups along the Rostov-on-Don–Gorky (Nizhny Novgorod) line. Already in the summer of 1940, this idea was the subject of discussion with the participation of Hitler, Brauchitsch, Halder. The variant of the invasion in the "North" direction was called the "Lossberg Study" ^[21].

During the development of the plan of war against the Soviet Union, the Hitlerite leadership prepared a program of economic exploitation of the occupied territories in the interests of Germany. The Oldenburg Plan contained instructions that the treatment of individual parts of the country should be differentiated, and the restoration and further development of the economy should be carried out only in those areas where Germany can extract significant reserves of agricultural products and oil ^[22]. In other territories, it was proposed to limit the use of discovered reserves.

When considering the issue of planning aggression, the Nuremberg Trials Tribunal attached particular importance to four high-level secret meetings held on November 5, 1937 and May 23, August 22 and November 23, 1939, at which Hitler outlined his aggressive plans for the future and analyzed the progress made in implementing aggressive policy at that time. The Tribunal took into account whether the defendants were present at any of these meetings when subsequently determining their individual criminal responsibility ^[23].

Of particular interest is the qualification of the actions of sabotage and reconnaissance groups (hereinafter referred to as the DRG) on the territory of another state. In our opinion, there is a competition between two actions here – planning and preparing for aggressive war. Thus, according to the Ministry of Defense of the Russian Federation, in 2021, the first armed clash took place with the DRG of Ukraine, which tried to penetrate deep into the territory of the Russian Federation (the Ministry of Defense announced the suppression of the attempt of the Ukrainian DRG to enter the territory of the Russian Federation [Electronic resource] // URL: https://iz.ru/1667470/2024-03-18/mo-soobshchilo-o-presechenii-popytki-ukrainskoi-drg-proniknut-na-territoriiu-rf (date of request: 14.10.2024). In our opinion, this is a manifestation of planning an aggressive war in order to further prepare for it, since in the event of a breakthrough of the DRG, information could be obtained about the defense capability of Russia's border borders and the potential use of military force in certain areas, data collection on movement, deployment, armament and number of troops, military and economic potential., industrial facilities of military importance, transport and communications communications, and so on. In our opinion, the actions of the Democratic Republic of the Congo already during the conduct of an aggressive war do not require additional qualifications under Part 1 of Article 353 of the Criminal Code of the Russian Federation.

The preparation of an aggressive war represents the next stage of the realization of intent and implies the commission of specific actions to fulfill the plans of aggression.: the search for allies, the accumulation of funds, mobilization, logistical training, as well as the placement of military orders ^[24]. Thus, the actions of fascist Germany in signing agreements with Japan and Italy against the Comintern and the USSR, the development of the provisions of the Tripartite (German-Italian-Japanese) Treaty. The Soviet Union is an example of preparation for further military expansion into European countries (England, France, Austria, Poland), and subsequently into the USSR.

The Nuremberg Tribunal regarded A. Hitler's book Mein Kampf, which outlines his political views and goals and which became the source of Nazi doctrine, as Germany's preparation for aggression. The book outlines the ideologems of A. Hitler, expressed in the conviction of the need to use force as a means of solving international problems, extolling force as an instrument of foreign policy and outlining the exact goals of this power policy, including territorial expansion. The dissemination of ideological theories containing signs of aggression by the leadership of the state is a preparation for waging aggressive war, as it is aimed at rooting out a criminal pattern in society, perceiving criminal intent as correct and normal, and also, we believe, it is aimed at finding accomplices and other persons capable of assisting in the commission of a crime.

Speaking of modern examples, international exercises of the armed forces of Ukraine with the United Kingdom, the United States, Poland and a number of other foreign countries can be qualified as an act of preparation for an aggressive war. According to the Ministry of Defense of the Russian Federation, during the exercises, foreign weapons could be delivered to the territory of Ukraine for further expansion to the Donetsk and Lugansk People's Republics, and later to the Russian Federation. The aggressive nature of the exercises is confirmed by the fact that the legends of the training programs did not correspond to the real situation in the Black Sea region, and therefore they supported the militaristic sentiments already present in Ukraine (How the NATO Sea Breeze exercises in the Black Sea went [Electronic resource] // URL: https://www.rbc.ru/photoreport/10/07/2021/60e424099a79470d0df77f4e (date of request: 04.01.2025).

In our opinion, by their legal nature, actions to plan and prepare an aggressive war are preparations for its outbreak and conduct, as they meet the characteristics of Part 1 of Article 30 of the Criminal Code of the Russian Federation. Of course, criminalizing individual stages of a crime as independent criminal acts only complicates the criminal law system, but in this case, the legislator used the appropriate technique, firstly, in order to fully reflect the provisions of the Nuremberg Tribunal Verdict, and secondly, to reflect the increased degree of public danger of the acts in question. Planning and preparation of an aggressive war belong to a variety of truncated crimes and are considered completed from the moment the preparatory actions for waging an aggressive war are carried out.

According to international documents regulating certain provisions concerning crimes of aggression (the UN Charter, the UN General Assembly Resolution on the Definition of Aggression, the Rome Statute of the ICC, and others), the definition of an act as an act of aggression is carried out by the UN Security Council. Without an appropriate decision, a State cannot be held internationally criminally responsible for acts of aggression. This raises the question of the right to initiate criminal proceedings on planning, preparing, unleashing and waging aggressive wars against individuals within the framework of national legislation. A number of authors believe that "the initiation of legal proceedings against individuals for aggression is possible only on condition that the Security Council pre-determines that the State has committed an act of aggression" ^{[25, 26]}. In our opinion, these statements are not relevant. According to Article 2 of the Criminal Code of the Russian Federation, the only source of criminal law in the Russian Federation is the Criminal Code of the Russian Federation. This regulatory legal act does not contain any references to the mandatory existence of a decision of the UN Security Council to impute acts provided for in Article 353 of the Criminal Code of the Russian Federation to a person. The Code of Criminal Procedure of the Russian Federation also does not contain provisions on the procedure for initiating criminal proceedings in this category of crimes, and therefore it seems to us that the existence of common grounds and grounds for initiating criminal proceedings, as well as the corpus delicti itself, is sufficient to initiate criminal proceedings and bring persons to justice under Article 353 of the Criminal Code.

The norms on the need for a decision by the UN Security Council are provided for by the Rome Statute of the ICC and the 1974 UN General Assembly Resolution on the definition of aggression, and we believe that they are mandatory only if a person is brought to international criminal responsibility for crimes of aggression, but they have nothing to do with the powers of national courts. Also, for the purposes of applying Article 353 of the Criminal Code of the Russian Federation, it should be noted that the Russian Federation is not a party to the Rome Statute of the ICC, and the said Resolution of the UN General Assembly is not an international treaty by its legal nature, and therefore its provisions for signatory countries are not binding, but recommendatory.

Thus, the analysis of a number of objective signs of the elements of crimes stipulated in Part 1 of Article 353 of the Criminal Code of the Russian Federation led to the conclusion that the content of the acts provided for by the norm is not established in normative acts, and has only doctrinal justifications. Planning and preparation for aggressive war is essentially a stage of preparation for the commission of a crime and includes the commission of such actions as the development of plans, tactical materials, meetings and meetings. Preparation for an act of aggression is an action to implement the developed plans. In our opinion, it is advisable to initiate criminal proceedings within the jurisdiction of national courts in the absence of decisions of the UN Security Council on the recognition of an armed conflict as an act of aggression, aggression or aggressive war, as this meets the goals, principles and objectives of the criminal legislation of the Russian Federation. We have also proposed a new definition of the concept of "peace", reflecting its essence for the purposes of applying the norms of Chapter 34 of the Criminal Code of the Russian Federation. In this regard, the problem of studying and improving the norms on criminal liability for planning and preparing an aggressive war is a particularly urgent task, the solution of which is an important prerequisite for preserving the peace and security of mankind.