Юрисдикція Міжнародного кримінального суду щодо злочину агресії

Abstract

У статті проаналізовано юрисдикцію Міжнародного кримінального суду щодо злочину агресії, яку Суд отримав на підставі Кампальських додатків 2010 р. до Римського Статуту. Розглянуто умови і шляхи набуття Судом юрисдикції щодо злочину агресії та можливі варіанти здійснення такої юрисдикції на практиці.

The article deals with analysis of the jurisdiction of the International Criminal Court over the crime of aggression which the Court received under the 2010 Kampala amendments to the Rome Statute. The author examines the definition of the crime of aggression given in article 8 bis which comprises an individual clause (the planning, preparation, initiation or execution, by a person in a leadership position of an act of aggression which, by its character, gravity and scale, constitutes a manifest violation of the Charter of the United Nations) and a general clause. The position of the USA concerning the prosecution of an individual for the crime of aggression is analyzed under which the Security Council would first need to determine that a state had committed an act of aggression. The author stresses that despite the non-declaration of war, the acts of aggression may include numerous actions starting with the invasion or attack by the armed forces of a State of the territory of another State, or any military occupation, however temporary, resulting from such invasion or attack, and up to the sending by or on behalf of a State of armed bands, groups, irregulars or mercenaries, as defined in the UN GA Resolution 3314 (ХХІХ) of 14 December 1974. The annexation of the Crimea and invasion by the armed forces of the Russian Federation, both regular and irregular, in the East of Ukraine since March 2014 meets this definition of aggression. The author analyses conditions and mechanisms of acquiring jurisdiction over the crime of aggression by the International Criminal Court and possible ways of exercising such jurisdiction. It is accentuated that the Court may, in accordance with article 12, exercise jurisdiction over a crime of aggression, arising from an act of aggression committed by a State Party, unless that State Party has previously declared that it does not accept such jurisdiction by lodging a declaration with the Registrar. The sui generis jurisdiction over the crime of aggression is based upon states’ consent. However where the Prosecutor concludes that there is a reasonable basis to proceed with an investigation in respect of a crime of aggression, he or she shall first ascertain whether the Security Council has made a determination of an act of aggression committed by the State concerned. The author draws to the conclusion that as it is not likely that aggressor states will recognize the Court’s jurisdiction over the crime of aggression, the main responsibility still rests with the UN Security Council which has the authority to address the International Criminal Court in such cases.