Public calls for the aggressive war as a crime under Russian law: discussion aspects

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

Ensuring international peace and security is one of the key tasks of both national and international law. The historical events of the 20th century have clearly demonstrated the need to develop global legal mechanisms capable of preventing military conflicts. Modern international law condemns aggressive war as the gravest crime against the peace and security of mankind. This position was first consolidated in the Verdict of the Nuremberg Tribunal (hereinafter referred to as the Verdict), and later found its way into a number of other international treaties. Based on these documents, Russian criminal law provides for criminal liability for crimes of aggression, namely planning, preparing, unleashing, and waging aggressive war (art. 353 of the Criminal Code) and public calls for unleashing aggressive war (art. 354 of the Criminal Code). As a separate crime, the legislator singled out public calls for unleashing an aggressive war precisely in order to criminalize not only acts directly leading to war, but also those actions that ideologically incite the population and the state to commit the gravest crimes against the peace and security of mankind.

The scientific novelty of this study lies in a comprehensive examination of the issues of this corpus delicti, taking into account the competition of the General and Special parts of the Criminal Code of the Russian Federation, the active processes of digitalization and informatization, which may lead to changes in the forms of public calls for unleashing aggressive war, as well as a comparative legal and linguistic analysis of the synonymous terms "propaganda" and "public appeals" for the correct qualification of certain actions under art. 354 of the Criminal Code of the Russian Federation. This topic was also studied by E.L. Sidorenko, A.G. Kibalnik, A.I. Chuchaev and others.

During the Second World War and the Great Patriotic War, the fascist government conducted active propaganda activities to spread the Nazi ideology and convince them of its exceptional correctness. The Verdict noted that "A number of official agencies were established in Germany, whose responsibilities included monitoring and influencing the press, radio, cinema, publishing houses, etc., and overseeing entertainment, art, and culture. All these official agencies were subordinated to the Ministry of Public Education and Propaganda, headed by Goebbels, which, together with the relevant organization in the NSDAP and the Imperial Chamber of Culture, bore full responsibility for the implementation of this supervision" (Verdict of the International Military Tribunal [Electronic resource] // URL: https://www.baikproc.ru/nurnberg/4_prigovor.PDF (date of request: 03/10/2025).

For the first time, the act of ideologically supporting the outbreak of an aggressive war was criminalized immediately after the Great Patriotic War. In March 1951, the Supreme Soviet of the USSR adopted the Law on the Protection of Peace, which declared war propaganda a grave crime. Criminal liability was later established by the 1958 Law on Criminal Liability for State Crimes and the Criminal Codes of the Union Republics. For the first time, criminal liability for propaganda (i.e. calls for war) was enshrined in the Criminal Code of the RSFSR of 1960 (hereinafter referred to as the Criminal Code of the RSFSR). The objective side of this crime was expressed in the dissemination of views on the need to unleash war, calls for war against both the USSR and other states verbally, in writing, through visual media, radio or in any other form.

Later, the legislator retained this corpus delicti in the Criminal Code of the Russian Federation, but allowed a number of its changes. The main direct object of the crime under consideration is social relations that ensure peace and security between States. Additional objects may include public relations in respect of the foundations of the constitutional order of the Russian Federation and international law and order.

The objective side is characterized by public calls for an aggressive war. There is no specific definition of the concept in question in relation to this article, however, Resolution No. 11 of the Plenum of the Supreme Court of the Russian Federation on June 28, 2011 "On judicial practice in criminal cases of extremist crimes" contains a definition of "public calls to carry out extremist activities" – these are expressed in any form (for example, orally, in writing, using technical means) appeals to other persons in order to encourage them to carry out extremist activities (paragraph 4) (Resolution of the Plenum of the Supreme Court of the Russian Federation of June 28, 2011 No. 11 "On Judicial Practice in criminal Cases of extremist crimes" (as amended dated October 28, 2021) // SPS "ConsultantPlus"). We believe that in this case it is possible to interpret public appeals for the purpose of applying Article 354 of the Criminal Code of the Russian Federation in the same way, with an amendment to the direction of appeals: in the situation under consideration, these are appeals aimed at encouraging other persons to unleash an aggressive war.

Appeals can be expressed in various forms: oral, written, and audiovisual (for example, slogans, articles, and videos). The question of the possibility of expressing appeals exclusively in the form of emoji symbols is debatable. E.L. Sidorenko adheres to the point of view that "emoji, especially in its modern - animated expression, without being a speech symbol, can nevertheless encourage certain actions" ^[1]. At the same time, the author highlights the characteristics for emoji symbols, the presence of which allows the use of emojis to be qualified as a call to commit criminal acts: unambiguity of understanding and the presence of appeal markers.

In our opinion, in order to solve this issue, it is necessary to turn to the linguistic nature of the concept of "emoji". The Cambridge Dictionary defines this concept as "a digital image added to a message in electronic format to express a specific thought or idea." Emoji [Electronic resource] // URL: https://dictionary.cambridge.org/dictionary/english/emoji (date of reference: 02/19/2025). B. Zimmer stressed that even with the broadest interpretation of the concept of "emoji" it is impossible to equate it with the word (Emoji [Electronic resource] // URL: https://dictionary.cambridge.org/dictionary/english/emoji (date of request: 02/19/2025). We also hold the view that emojis and pictographs of a different kind (emoticons) do not replace words in written speech, they are created to give dry writing an emotional coloring. Understanding the emoji message depends on the type of technology platform used. Despite the existence of unicode encoding, which is a standard that allows computers and mobile phones to use the same graphics, some applications and platforms translate emojis in different ways. Each platform has its own set of emojis, which differ in meaning, design, and purpose. The ach platform develops emojis that are visually similar but differ in meaning, making the icon look different to different users ^[2].

The legal significance of emojis has not been unequivocally recognized in judicial practice either. Thus, the Arbitration Court of Appeal ruled that "the emoji of approval in the generally accepted and widespread understanding when communicating via electronic correspondence means "good"" (Decision of the Fifteenth Arbitration Court of Appeal dated June 29, 2023 No. 15AP-8889/2023 in case No. A32-36944/2022 // SPS ConsultantPlus). In another case, the court did not recognize the emoji as a legally significant action, explaining that "sending only a photo by the supplier to the buyer and receiving a Thumbs-up emoji in response cannot be recognized as the established practice between the parties to the contract of notifying the readiness of the goods for shipment" (Decision of the Second Arbitration Court of Appeal of October 30, 2023 N 02AP-5712/2023 on case no. A28-2634/2023 // SPS "ConsultantPlus").

In our opinion, the use of only certain emojis in comments on the network or group chats without text accompaniment before or after cannot be regarded as a call to commit criminal acts, in particular, to unleash an aggressive war. Appeals should be specific and aimed at unleashing an aggressive war, and from the content of emoji correspondence it is impossible to conclude that the intentions of the author of the messages or comments are unambiguous. At the same time, using emojis in public chats or groups will allow law enforcement agencies to determine a person's attitude to what is happening, thereby establishing intent to commit a crime.

Thus, the forms of expression of public calls for unleashing an aggressive war are oral or written speech, expressed in the form of words or phrases that express an unambiguous desire of a person to arouse the desire of others to unleash an aggressive war.

Calls for an aggressive war must be made publicly. Publicity involves addressing a wide range of people through the "absence of a private character" ^[3], that is, outside the framework of a personal conversation or correspondence. We share the point of view of A.G. Kibalnik and A.Y. Ivanov, who do not consider the "personification" of persons among whom the act is committed in relation to the subject of the crime to be fundamental in determining publicity ^{[4, p. 60]}. This means that for the qualification of an act as publicly committed, it is not important that the subject of the crime knows these persons, as well as that he knows the number of people among whom he carries out his criminal activities. The correct interpretation of this feature is necessary to establish the correct qualification of the crime as completed. The issue of the publicity of appeals should be resolved by the courts, taking into account the place, method, situation and other circumstances of the case (appeals to a group of people in public places, at meetings, rallies, demonstrations, distribution of leaflets, posters, distribution of appeals by mass mailing messages to mobile subscribers, etc.).

The composition of the crime in question is structured according to the formal type: the crime is completed from the moment the appeal is expressed publicly, regardless of the consequences.

To qualify an act as a public call for the outbreak of an aggressive war, it is necessary to simultaneously have the signs that were discussed above, as well as the focus of the calls specifically on the outbreak of an aggressive war. The outbreak of an aggressive war means the beginning of concrete actions to wage it, the beginning of an act of aggression. At the same time, the person committing such an act must have the goal of further waging an aggressive war. Modern law enforcement practice testifies to the careful use of this rule – according to the Judicial Department of the Supreme Court of the Russian Federation, over the past 7 years, not a single person has been convicted under the relevant rule. At the same time, in 2014, a criminal case was initiated against a foreign citizen in connection with statements about the need to unleash an aggressive war with Russia by conducting sabotage and guerrilla actions on the territory of the Russian Federation, including in the Republic of Crimea (Decision of the Supreme Court of the Russian Federation dated 11/17/2014 in case no. AKPI14-1292C). Thus, when deciding on qualifications, a law enforcement officer needs to properly analyze the essence of a public appeal, taking into account the characteristics of the corpus delicti provided for in Part 1 of Article 353 of the Criminal Code of the Russian Federation.

As mentioned above, the Criminal Code of the RSFSR established a similar rule prohibiting propaganda of war in any form. In this regard, the doctrine discusses the identity of the concepts of "propaganda of war" and "public calls for war". N. A. Lopashenko equates these concepts ^[5]. D.V. Lobach, on the contrary, believes that at the present stage, hidden forms of psychological influence on human consciousness are increasingly being carried out, rather than only direct appeals that are covered by public appeals ^[6]. R.V. Dzeitova, discussing the differences between propaganda and public appeals, comes to the conclusion that propaganda can be carried out not only publicly, but covertly influence people's psychological and mental consciousness, instilling in them the views and beliefs necessary for propaganda purposes ^[7].

War propaganda is the systematic dissemination of information, ideas, and beliefs aimed at supporting military action and mobilizing public opinion in favor of war. The main purpose of propaganda is to create a positive image of war, justify its necessity, and strengthen the morale of the population and the armed forces of the state. Various media are used in propaganda, such as newspapers, radio, television, the Internet, as well as fiction, cinema and art. Propaganda can include manipulation, distortion of facts, and emotional appeals. Propaganda, as a rule, has a wide reach and is aimed at a mass audience.

Public calls for war, in turn, are specific appeals or statements that call for the outbreak of hostilities or support for the war. The purpose of public appeals may be to mobilize people to participate in a war, to support specific military actions, or to change public opinion in favor of war. Public appeals can be made through speeches, rallies, media publications, social media, and other forms of communication. With public appeals, it is possible to address both a large crowd of people and targeted, influencing certain groups of people.

In our opinion, the definitions under consideration are not identical. Propaganda does not represent actions that encourage you to unleash something. This only affects the formation of ideological ideas about the state of war: the addressees of propaganda form a different opinion about the phenomenon of war, it appears as an acceptable and correct form for resolving the existing conflict. Public calls for unleashing an aggressive war, on the contrary, are based on an incentive for concrete action. Thus, although war propaganda and public calls for war may overlap and complement each other, they have their own unique characteristics and functions in the context of military conflicts. In this regard, it seems correct to conclude that propaganda aimed at arousing a desire to unleash or wage an aggressive war is part of the act of "preparing an aggressive war." Thus, the Verdict defines A. Hitler's work "Mein Kampf" as preparation for aggressive war, since "Rather, one can say that the contents of this book were announced from the rooftops. This book was used in schools and universities, among Hitler's youth, in the SS and SA, and among the German people in general, to the point that one copy of this edition was given as a gift to all newlyweds. ... Over and over again, Hitler preached in it his conviction of the need to use force as a means of solving international problems" (Verdict of the International Military Tribunal [Electronic resource] // URL: https://www.baikproc.ru/nurnberg/4_prigovor.PDF (date of request: 03/10/2025).

The subject of the crime is a sane individual who has reached the age of 16. On the subjective side, the composition is intentional: only direct intent is allowed: the person is aware of the social danger of his actions and wants to commit them.

Part 2 of the article in question contains a qualified corpus delicti. Criminal liability increases if the appeals are committed using the media or by a person holding a public position. Of the Russian Federation or a subject of the Russian Federation. According to Article 2 of the Law of the Russian Federation of December 27, 1991 (as amended dated November 23, 2024) "On Mass Media and Information" No. 2124-1 "a mass media means a periodical, an online publication, a television channel, a radio channel, a television program, a radio program, a video program, a newsreel program, or another form of periodic dissemination of mass information under a permanent name (title)" (Law of the Russian Federation of 27 December 1991 (as amended dated November 23, 2024) "On Mass Media and Information" No. 2124-1 // Rossiyskaya Gazeta. 1992. No. 32.). A number of researchers believe that public appeals made on the Internet can also be qualified for this part ^{[8, 9]}.

The Internet can also be considered as a mass media under certain conditions. Thus, the Resolution of the Plenum of the Supreme Court of the Russian Federation dated February 24, 2005 No. 3 "On judicial practice in cases of protecting the honor and dignity of citizens, as well as the business reputation of citizens and legal entities" established that if untrue defamatory information was posted on the Internet on an information resource registered in accordance with the established procedure. In accordance with the established procedure as a mass media, when considering a claim for the protection of honor, dignity and business reputation, it is necessary to be guided by the norms related to mass media (BVS. 2005. No. 4.). At the same time, "the Internet resources used are most often not, from the point of view of the law, mass media" (Explanatory Note to the draft Federal Law "On Amendments to Article 354.1 of the Criminal Code of the Russian Federation" [Electronic resource] // URL: https://sozd.duma.gov.ru/bill/1050812-7 (date of access: 02/19/2024), as they do not meet the criteria of periodicity and are not registered as mass media. In particular, crimes related to public appeals or propaganda are often committed on social networks, which, in turn, also do not relate to the media. In this regard, in our opinion, it is necessary to make changes to the disposition of this article in terms of fixing in it the sign of making public calls for unleashing an aggressive war on the Internet.

The relationship between calls to commit criminal acts and the institution of complicity, in particular, the actions of the instigator, is a debatable issue. The works of F.G. Burchak ^[10], A.V. Shesler ^[11], A.Y. Reshetnikov contain the position that "appeals can be considered as one of the ways of incitement to crime" ^[12]. Y. E. Pudovochkin notes that the essence of appeals, as in the case when they are carried out by the instigator to in the case of a specific person, and in the case when appeals constitute the objective side of a certain crime, it lies in the fact that this is a mental effect on the will of another person ^[13]. A.I. Chuchaev holds a different position. He believes that arousing the determination to commit a crime is possible only for a specific person. This is how incitement differs from certain types of crimes devoted to public calls to commit criminal acts (Articles 280, 354) ^[14]. We adhere to the latter point of view. Indeed, the essence of incitement is to incite a particular person to commit a criminal act, as evidenced by the legislative wording.: "An instigator is a person who has persuaded another person to commit a crime by persuasion, bribery, threats or other means" (Part 4 of Article 33 of the Criminal Code of the Russian Federation). Incitement does not have signs of mass character and uncertainty of the circle of addressees. Public appeals, in turn, have a different legal nature and characteristic features. The degree of concretization of the actions to which the perpetrator incites is lower in public appeals than in incitement, but this does not mean that such concretization may be absent altogether: it should follow from the appeal what kind of acts are being induced.

Thus, public calls for unleashing an aggressive war are understood as statements expressed in any form aimed at arousing the intention of unleashing an aggressive war among an indefinite circle of people. At the same time, appeals must be specific: the actions called for by the perpetrator must be clearly understood from their form. In this regard, emoji characters without text accompaniment cannot constitute a call to commit something due to the lack of a proper degree of concretization of the sender's will. The author concluded that the absence of references to the Internet in Part 2 of Article 354 of the Criminal Code leads to an inaccurate qualification of such acts under Part 1 of Article 354 of the Criminal Code, although the nature and degree of public danger of public calls for unleashing aggressive war on the Internet is much higher. As a result of the analysis of the doctrine and regulations, we also came to the conclusion that the institution of complicity is not applicable in this context, since it has its own complex structure and purpose, where actions on public appeals do not apply. The terms "propaganda" and "public appeals" are not identical, and therefore, in our opinion, when promoting the outbreak of an aggressive war, the act will be qualified as preparation for an aggressive war (Part 1 of Article 353 of the Criminal Code of the Russian Federation). The composition of the crime is formal – the crime is over from the moment of the public appeal, regardless of the result. Thus, further study of this norm is important for the formation of correct and uniform law enforcement practice to fulfill the task of ensuring peace and security of mankind.