Judge of the Grand Chamber of the Supreme Court analyses approaches to the interpretation of the crime of aggression in international and national law

Approaches to the interpretation of the crime of aggression in international and national law, in particular through the prism of the Rome Statute, the Nuremberg Tribunal and national legislation, were discussed in detail by Judge of the Grand Chamber of the Supreme Court Mykola Mazur at the scientific and practical conference "Modern Criminal Law of Ukraine: Constitutional, International and Comparative Legal Dimensions" as part of the V Yatsenko's Readings.

The judge analysed the historical basis for the definition of a crime against peace, drawing attention to Article 6 of the Nuremberg Tribunal's Statute. It provided for liability for planning, preparing, starting or waging an aggressive war or participating in a conspiracy to commit such acts. Mykola Mazur emphasised that this definition does not specify the subject of the crime, but the tribunal's practice shows a focus on high-ranking officials of the Third Reich.

Mykola Mazur cited examples of subsequent trials in which lower-ranking officials who contributed to the aggression were put on trial. However, according to the judge, the main obstacle to bringing them to justice was proving their knowledge of the plans of the higher-ups.

Special attention was paid to Article 8 bis of the Rome Statute. It defines the crime of aggression as the planning, preparation, initiation or commission of an act of aggression by a person having effective control over the political or military action of a State. This definition, the judge noted, is fixed for the purposes of the Statute and may differ in national or international law.

The speaker also compared the provisions of Art. 437 of the Criminal Code of Ukraine (the crime of aggression) with the criminal codes of other countries, including Poland, Lithuania and Germany. He drew attention to the fact that the national definition of the subject of the crime is broader and allows taking into account the peculiarities of the official powers or social position of persons who contribute to aggression. As for Ukraine, Mykola Mazur said, the Grand Chamber of the Supreme Court recognised that Article 437 of the Criminal Code of Ukraine does not contain a definition of the subject of the crime. Accordingly, the provisions of this article can be interpreted with a certain level of autonomy.

In addition, the speaker recalled that on 28 February 2024, the Grand Chamber of the Supreme Court in case No. 415/2182/20 considered the objective side of the crime of aggression under Art. 437 of the Criminal Code of Ukraine and determined who could be its subject. The court stressed that planning aggression involves the development of a concept, strategy, mobilisation and economic measures. Preparation includes concentration of forces, propaganda, economic reformatting, diplomatic actions, etc. Unleashing aggression involves creating a pretext for war, provocations, and giving orders. Conducting aggression involves leading military operations. The Grand Chamber of the Supreme Court determined that the perpetrator of the crime may be persons with official authority or social position that enables them to effectively control political or military actions.

Summing up, the judge noted that the approach of the SC Grand Chamber to defining the subject of the crime of aggression is broader than the provisions of the Rome Statute.

The event was organised by the Taras Shevchenko National University of Kyiv.