It is known that an international crime is a type of international offence. Any offense, in order to be characterized as such, must have specific features and certain corpus delicti. Regarding the domestic legislation, in particular criminal law, a great importance is attached to the study of corpus delicti of an offense as the minimum aggregate of the main objective and subjective signs sufficient to impose responsibility on the offender. At the same time, most researchers and scholars insist on a four-element formula for corpus delicti: object, objective side, subject, subjective side [1, p. 118]. In soviet science of international law, the correct view was expressed that such a general legal category as corpus delicti also applies to international law, since its study helps to detect both general legal and specific features of the international legal responsibility of a state and criminal responsibility of individuals [17, p. 65].

It is worth to mention that there is no such a thing as an explicit, universally agreed definition of “international crime” concept in treaty law, what in its turn barriers the identification of its true nature. Therefore, in order to assess its definition, we need to look at customary international law, which is formed from both state practice and states’ acting with the conviction that the said practice amounts to an international legal obligation [8, p. 669].

However, the fact that the concept of “international crime” as such has not been codified in treaty law must be clearly distinguished from the fact that certain examples of international crimes can be found in international legal definitions. Examples thereof are war crimes, some of which have been laid down as “grave breaches” in the 1949 Geneva Conventions [10], the crime of genocide, enshrined in article 2 of the 1948 Convention on the Prevention and Punishment of the Crime of Genocide as “any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group” [5] etc.

Herein we can refer to A. Cassese and M. Cherif Bassiouni’s doctrinal views about the definition of “international crime” concept. In Cassese’s view, before being able to qualify a particular act as an international crime, we should identify what values are to be protected by a given legal rule and whether those values are considered important by the whole international community [4, pp. 23-25]. Apparently, once we start speaking about fundamental values, we come close to the notion of “jus cogens” in international law. Nevertheless, considering these values as a necessary precondition of an international crime, we limit the categories of crimes that can be qualified as international crimes. For instance, in accordance with this theory, Cassese indicates that the crime of piracy, as one of the most cited and centuries old examples of an international crime, should not be considered as a crime of an international legal nature because the prohibition of piracy would not protect a real, fundamental value of the international community, even though it is undeniable that it is a specific value that states have an interest in that it be protected. M. Cherif Bassiouni considers international crimes more broadly as “those international criminal law normative proscriptions whose violation is likely to affect the peace and security of humankind or is contrary to fundamental humanitarian values, or which is the product of state action or a state-favoring policy” [2, pp. 118-125]. He also lists the crime of piracy not in this category, but in the category of “international delicts”, i.e. “those international criminal law normative prescriptions that affect an international protected interest, and whose commission involves more than one state or harms victims from more than one state” [2, p. 122].

As we see from the above-mentioned doctrinal considerations of A. Cassese and M. Cherif Bassiouni, the object of an international crime is one of the main preconditions of considering any crime as international crime. It seems that from whatever side we approach the case, it turns out that the object of a crime, precisely because it more than other elements of corpus delicti determines the political content of a crime, is very important for characterizing other elements of the corpus delicti. Therefore, we can conclude that the object of an offense is considered a necessary element of corpus delicti not only in the domestic criminal legislation but also in the international criminal law.

A selection of the category of international crimes from the concept of international offenses, which itself was a consequence of the development of general international law, then led to profound changes in international legal institutions, and above all in the law enforcement institution of international responsibility. If previously law enforcement relations concerned mainly directly affected subjects of international law, it is now recognized in relation to international crimes that this relationship occurs between delinquent state, on the one hand, and virtually the entire international community of states, on the other hand. The obligations of states violated in the course of international crimes are recognized as having legal significance for all subjects of international law [12]. This understanding was expressed by the International Court of Justice in its decision of February 6, 1970 in the case of “Barcelona Traction”.

The specific legal relations that existed between the injured state and the delinquent state and destroyed as a result of the commission of an international crime should be distinguished from the general object of an ordinary international offense. The latter legal relations constitute the direct object of an international offense. As for an international crime, its direct object should obviously be considered some general legal relations connecting all members of the international community. These profound changes in the institution of international responsibility were derived from the fact that international law isolated the category of international crimes from other international offenses as a result of recognizing the existence of obligations of particular importance to the entire international community. It is these obligations that constitute a primary object of international crimes [18, p. 568].

The international legal doctrine of both Western lawyers and scholars of socialist countries recognizes the criterion of different social significance of certain obligations of subjects of international law, which may be the objects of encroachment in case of international offenses [20, p. 148]. This social danger of international offenses is considered as a fundamental element of their characteristic and the basis for the classification of the most serious of them as international crimes. A great contribution to the development of the concept of social danger of international crimes was made by the Soviet international lawyer A.N. Trainin. So, A.N. Trainin, classifying any international offence as an international crime, proceeded from the degree of threat to international peace and security [17, pp. 61-65].

Let`s consider the principle of social danger in relation to the direct objects of international crimes. As it was noted above, even ordinary international offences are detrimental to the international legal order. However, such damage is relatively small and can be largely corrected in the course of law enforcement relations directly between the delinquent and the injured state. In the course of such relations, the norms of responsibility are implemented, and this fact itself can be viewed as ultimately meeting the requirements of the principle of faithful fulfillment of international legal obligations. The situation is different with international crimes. The damage arising for international law from committing international crimes is incommensurable with damage as a result of ordinary international offenses, and it has a fundamentally different character, connected with conscious and causing unwillingness to obey the prescriptions of international law, which makes lawful application of more serious forms of responsibility.

However, it should be mentioned that legal regulation covers not all social phenomena in the sphere of international life, as a result of which not every violation of the interests of one or another state and damage to them can be considered an international offense entailing corresponding legal responsibility.

There is still a tendency to consider as an international offense any actions directed against the interests of the respective states, and in case of international crimes – against the interests of the entire international community of states. This point of view was subjected to reasonable criticism in the Soviet literature. So, G.I. Tunkin is absolutely right in this regard indicating that state actions can be absolutely legitimate and still harm the interests of other states, especially if these interests are understood broadly [21, p. 118]. Obviously, what is not protected by law cannot be the basis for legal claims and for the emergence of law enforcement relations.

Analysis of sources containing normative materials on international crimes suggests what in the law-making activities of states and is considered as the direct objects of international crimes. These sources primarily include acts adopted by the International Law Commission (ILC), UN Charter and the Statutes of the international military tribunals, namely Nuremberg and other tribunals.

The idea of preventing violations of international peace and security as the most dangerous offenses from the point of view of the international community of states is the basis of the UN Charter and this understanding essentially passes through it. According to paragraph 1 of article 1 of the UN Charter, the primary goal of the United Nations is to “maintain international peace and security and, to that end, take effective collective measures to prevent and eliminate threats to peace and to suppress acts of aggression or other breaches of peace” [6].

According to article 6 of the Charter of the Nuremberg Tribunal, it divides international crimes into crimes against peace, war crimes and crimes against humanity. It is these crimes against the peace and security of mankind that it defines as truly international [14].

The International Law Commission (ILC) has contributed to the development of the concept of international crimes. First of all, the general definition of international crimes, given by the Commission, refers to such crimes delicts arising from the violation of international law obligations, so important to the vital interests of the international community, that their violation is considered as a crime by the international community as a whole [3, pp.125-130]. In 1950, the ILC adopted the Principles of International Law recognized by the Statute of the Nuremberg Tribunal and expressed in its judgment. Thus, it confirmed the classification of international crimes developed by the tribunal.

In 1954, the ILC adopted a draft Code of Offences against the Peace and Security of Mankind. In our opinion, this document is of a particular importance, as it clearly states that international crimes are crimes against the peace and security of mankind. In addition, it essentially preserves the classification of these crimes as crimes against peace, against humanity and war crimes [9].

In its turn, the position of the international community regarding international crimes was most consistently expressed in the Statute of the Nuremberg Tribunal and some other documents developed under the direct influence of the principles enshrined in its Charter. From the above-mentioned provisions we can conclude that these sources confirmed that international crimes` direct object is a universal peace and international security.

As we see, in the international documents of the postwar period the direct object of international crimes is generally defined correctly. Nevertheless, in the legal literature there are still different points of view in this respect, which cannot contribute to strengthening the fight against international crimes. This especially applies to Western literature, such as “A Treatise on International Criminal Law”, edited by American lawyers M. Cherif Bassiouni and Ved P. Nanda where piracy, slavery, including even the so-called white slave trade, drug trafficking were referred to international crimes [13, p. 720].

Soviet lawyers are closer than their Western colleagues to the correct and uniform definition of the direct object of international crimes. L.N. Galenskaya rightly points out that crimes against peace, humanity and war crimes “have a single object of encroachment – universal peace; they are acts that directly violate peaceful relations between individual states or that may pose a threat to international security” [19, p. 10].

In our opinion, the reduction of individual elements, which in legal literature are often characterized as objects of international crimes, to a single public relation protected by international law, as a direct object of international crimes would be of great normative importance for strengthening the fight against international crimes. From this point of view, that part of the definition of international crimes, which refers to their direct object, could be reduced to the fact that these internationally wrongful acts damage or threaten international peace and international security, which are of vital interest of the whole international community. Such a definition would distinguish precisely those interests of the entire international community protected by international law, the attempts on which inflict paramount damage to it and without the protection of which its existence and normal functioning become problematic. At this point, mention should be made to a statement that the essence of the matter is in the correct definition of the object of international crimes. The genuine international crimes are crimes aimed at undermining peace, provoking aggressive wars and accompanying war crimes and crimes against humanity [11, pp. 129-131].

A clear definition of the direct object of international crimes would make it possible to exclude attribution to such crimes of certain acts that are undoubtedly dangerous in nature and contain international elements, but nonetheless are not such crimes as, for example, international terrorism. Attempts to present acts of terrorism as a threat to peace and security of international community are made in the UN bodies relatively rarely, and they mainly come from representatives of the Western powers who would like to use the fight against international terrorism against national liberation movements. In this regard, L.N. Galenskaya considers that terrorist acts can be international crimes, if they are organized by foreign states and are an instrument of provocation of war and a dangerous type of intervention by one state in the affairs of another. Therefore, their corpus delicti should be distinguished from the corpus delicti of a similar domestic crime [19, p. 18].

Thus, crimes with an international element cause, like international crimes, significant damage to the international legal order and ultimately affect all states. However, their danger to the entire international community is still considerably less than the threat to international peace and security, which is a feature of international crimes. Therefore, it is understandable that supporters of unlawful interference in the affairs of other states are attempting to expand the range of international crimes by including in its object such public relations which are within the internal competence of sovereign states. Such attempts are expressed primarily in attributing to the category of international crimes any violations of human rights.

According to Russian scholar S.V. Chernichenko, the primary subject of international criminal law should be the fight not only against the crimes violating peace and international security, but also against violations of human rights [22, p. 72]. It should be noted that authors who hold similar views often refer to criminal human rights violations as threatening international peace and security. At the same time, their concept leaves no doubt that they refer almost all violations of human rights to international crimes. They explicitly state that the main objective of modern international criminal law, along with the preservation of international peace, must be the protection of human rights.

Thus, there are obvious attempts not only to declare the whole complex of human rights as not included in the internal competence of states in accordance with the principle of “non-intervention” formulated in paragraph 7 of article 2 of the UN Charter [6], but also to proclaim any violation of human rights as international crimes. Such attempts are in complete contradiction with the modern international law. The UN Charter, like the conventions adopted in the post-war years in the field of human rights, refers directly to ensuring human rights exclusively to the internal competence of states. In fact, despite its importance as one of the basic principles of international law, the principle of respect for human rights and fundamental freedoms does not occupy any special place among them and cannot be absolutized. There is no provision in modern international law that allows for the consideration of violations of human rights as international crimes. Conventional human rights violations that do not escalate into international crimes such as genocide or apartheid do not pose a threat to international peace and security and they are the sphere of regulation of the respective states, which must provide domestic remedies for their restoration. Thus, human rights, as such, cannot be the object of international crimes.

The issue of the subjects of international crimes, that is, those who commit such crimes and who, according to the general principle of law, are responsible for them is of great theoretical and practical importance. International crimes are usually understood as the acts of individuals “directly connected with the international crimes of states”. At the same time, the distinction between international crimes of states and individuals occurs according to their subjects. In the first case, states as such appear in this capacity, in the second case – individuals, i.e. persons who direct and implement state policy, which is expressed in the international crime of the relevant state.

The question of the possibility of bringing state to responsibility is controversial. It first appeared after the First World War, when the idea of criminality of aggressive war began to strengthen in international relations. The first attempts to establish it are associated with the creation after the First World War of the League of Nations. The Covenant of the League of Nations noted the obligation of members of the League to “respect and preserve as against any external aggression the territorial integrity and the existing political independence of all Members of the League” [7].

Finally, on October 1, 1946, the judgment of the International Military Tribunal was passed, which in December of the same year was recognized in the United Nations. The UN Resolution (177) on this occasion confirmed that the UN General Assembly reaffirmed the principles of international law, developed by the Charter of the Nuremberg Tribunal and reflected them in its judgment and now these principles have universal significance. Thus, the first precedent for bringing states that committed an international crime to international legal responsibility was established.

At the same time, the Azerbaijani science of international law rejects the criminal responsibility of a state as the subject of international law and the very possibility of applying the rules of criminal law to it. International legal responsibility applicable to the state is material and political [16, pp. 125-128]. Material responsibility is expressed in the obligation to compensate for material damage, which can be realized in the form of restitution or reparation. Political responsibility is expressed in retaliatory violent actions carried out by the injured state, which can be in the form of sanctions. The sanctions, expressed in the limitation of sovereignty, were applied after the Second World War against Germany and Japan (occupation regime, restriction of the right to have armed forces, etc.).

International crimes as crimes of individuals received the modern name as crimes against the peace and security of mankind. At the same time, until the Second World War, the concept of individual criminal responsibility for truly international crimes did not develop due to the fact that the documents of the League of Nations period and the Kellogg-Briand Pact dealt with the international crime of aggression as a state offense.

During the trials of the main war criminals after the Second World War, the defense tried in every way to use the doctrine of the “state act”, which excludes responsibility for international crimes or crimes against humanity of individuals – their executors. The rejection of this doctrine and the affirmation of the principle of individual responsibility for international crimes were the most important outcomes of the Nuremberg processes.

There is no doubt that, although for the Nuremberg Tribunal in that particular political and legal environment the main thing was to confirm the individual criminal responsibility of individuals for commission of international crimes, it considered the actions of individuals and their responsibility as inseparable from international legal responsibility of the state. Thus, in Nuremberg, not only the principle of inevitability of punishment for international crimes against individuals – subjects of international crimes was developed, but also it was confirmed that this principle is inseparable from the international legal responsibility of the state itself.

So, the primary source of the norms on individual responsibility for commission of international crimes is the Charter of the International Military Tribunal (Nuremberg), created for the trial of the main military (German) criminals guilty for unleashing the Second World War. It formulated both the grounds for criminal responsibility for crimes against peace and humanity and war crimes, as well as the specific content of the three types of criminal law prohibitions in article 6 of its Charter: crimes against peace, war crimes and crimes against humanity [14]. This classification was also reproduced in the Statute of the Tokyo International Military Tribunal in 1946. The list of war crimes and crimes against humanity was substantially supplemented by the Geneva Conventions on the Protection of Victims of War of 1949.

After the Nuremberg and Tokyo processes, the UN continued to develop the normative framework necessary to combat crimes against peace and humanity. To this end, in 1947 (Resolution 177) the UN General Assembly instructed the International Law Commission (ILC) to formulate the principles of international law recognized in the Charter of the Nuremberg Tribunal (as well as in its judgement) and draft Code of Offences against the Peace and Security of Mankind. On the issue of the work on this project the General Assembly returned several times and in 1991, at its XLIII session, the ILC tentatively adopted on first reading a draft version of this Code. However, taking into account the discussion on this project and the work of the ILC on its revision, adoption of this Code is not a matter of the near future.

The outcome of rapid development in the international criminal law sphere occurred on July 17, 1998, in the Rome Diplomatic Conference of the United Nations on the establishment of the International Criminal Court where the Statute of the International Criminal Court as a permanent judicial body designed to administer justice in relation to such crimes against the peace and security of mankind as genocide, crimes against humanity, war crimes and the crime of aggression (article 5 of the Statute) was adopted [15]. Therefore, nearly all international criminal law scholars agree that certain crimes are intrinsically contrary to international law so limit the category of “true” international crimes to war crimes, crimes against humanity, genocide, and aggression.

Considering all the above-mentioned provisions and scientific opinions, the following definition can be given to international crimes: international crimes are particularly dangerous acts that violate the fundamental principles and norms of international law, which are vital for the entire international community and negatively affect the entire system of international relations.

 

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