Dr. Edward Slavko Yambrusic
RUSSIAN AGGRESSION AGAINST UKRAINE IS A "joint criminal enterprise" OF THE BARBARIC DESTRUCTION OF CITIES AND VILLAGES AND SAVAGE TERRORISM INFLICTED UPON CIVILIAN POPULATION.
The fact is that Russian aggression against Ukraine and the unprecedented brutal strategy of war execution has shocked the conscience of the free civilized world. The leaders of free democracies, beginning with the United States of America and the European Union, with different modalities of the response to the brutal aggression, condemn President Putin and his cohorts for not respecting international law and moral imperatives of the Western civilization, proclaiming them, privately and/or officially, as war criminals.
Recently, we have heard from the International Court of Justice (ICJ), the principal judicial organ of the United Nations. In a 13-2 (Russian and Chinese judges against) decision the Court ordered Russia "to stop military operations connected with the invasion of Ukraine" Joan Donoghue, President of the Court, underscored that the Court is "deeply disturbed for the use of force by the Russian Federation against Ukraine, for this raises serious questions of the international law". Moreover, Associated Press journalists have undertaken a "deep analysis" in order to determine whether President Putin is a war criminal. Still, there are some skeptics regarding this burning question, as well as those who "speak from the heart", horrified by the atrocities and carnage viewed daily on television and other media. General Assembly of the United Nations adopted a Resolution (GA ES 11(1)},with an overwhelming majority. (141 votes). The Resolution "deplores aggression of the Russian Federation against Ukraine, since it violates Article 2(4) of the Charter of the United Nations, The Resolution is not binding, no, in spite of that, it has authority and power as it reflects the juridical conscience of the international community.The Resolution, among others, demand (a) that Russian Federation stops the use of force against Ukraine; (b) allows free, safe, and unhindered access to humanitarian assistance to those in need in Ukraine; (c) protection of civilians and their properties;and (d) respect for international criminal law. The contemporary international criminal law, which deals with war crimes, is a sui generis law reflecting the underlying core values and the fundamental "facts of law" of the international community. This law is a resultant of the tension between the traditional domestic/national criminal law, the law of human rights and the general principles of transitional justice. The unique
Different levels or modalities of personal responsibility characterize and continue to be a systematic feature of international criminal law.Unlike the national system, the weakness of international criminal law is, however, reflected in the lack of a coherent philosophy and policy with which to guide the direction and development of rules and procedures.
From a historical point of view,international crimes at the "macro" level of culpability are violations against peace and security, starting with acts of violence-aggression- "jus ad bellum," and continue with mass violence, that is, crimes against humanity and genocide employed as instruments of war; then "grave "violations of the laws and customs of war- "jus in bello," which are cited as crimes of "serious" and "grave" violations of international criminal law embracing the complete calibration of criminal conduct within certain time and space.
In other words, international crimes on the level of "macro" culpability are crimes of collective violence-aggression- that is, war and similar international conflicts committed by individual perpetrators as part of a joint plan designed to commit a massive scale of violence. Such atrocities must have an integral whole from the beginning- or :"nexus ab initio"- in order for someone to be responsible for an individual act :actus reus", as well as possessing a special state of mind- "mens rea".
Ukrainian President Volodymyr Zelensky reminds and warns the free world that "impunity is the enemy of justice". Others say that Russian aggression against Ukraine has reached the peak of lawlessness today. On the other hand, the progressive development of contemporary international law and world order reflect the humane principle of the responsibility of the international community to protect victims of war from lawlessness and barbarism.
characteristics or attributes of international criminal law are: (a) universal jurisdiction; (b) individual accountability to collective war violence; (c) dual track of enforcement with respect to the content- the gravity of offence, i.e. "macro" and "micro" culpability; (d) direct and indirect levels of criminal conduct and its enforcement; (e) non-applicability of the Statute of Limitations with respect to jus cogens crimes; and (f) international peace, security, and world order as the core values and the fundamental terms of reference.
This was the fundamental philosophy and legal theory of the international criminal law, expressed in the Nuremberg Charter: "Leaders, organizers, and accomplices participating in the formulation or execution of a common plan...are responsible for all acts performed by any person in execution of such plan" Article 6(c), 82 UNTS, 379, 384 (1945).
Under this legal precedent, individuals are personally liable as active participants or perpetrators of collective violence that has shaken the conscience of the civilized world, whether they participated in a joint criminal enterprise in their official (military) duty or as senior civil servants. In order to determine the various modalities of responsibility and guilt, it is necessary to prove a continuous "nexus" from "jus as bellum" to "jus in bello," that is, from war crime and crimes committed in war. International crimes against peace and security rarely constitute individual offences. They, more often, contain the integral part of crimes and violence on a larger scale jus cogens atrocities and violence within the overall framework of the initial crime of aggression.Indeed, there is an organic culpable link among them. The Nurnberg Charter laid down the principles of individual personal responsibility for crimes against peace and security- "jus ad bellum," and war crimes and crimes against humanity in relation to "jus in bello"The Charter defined the concept of individual responsibility-on the international level-to extend to all individuals irrespective of their position under the state hierarchy, that is, both the planners and executioners are guilty of the same "actus reus" , the common criminal purpose or plan reflected in the general intent -"mens rea::. Indeed, the planners of the criminal enterprise are deemed the major war criminals exacting retribution and punishment Here, it is important to bear in mind, that only in the context of "macro" culpability, the "piercing" of the national sovereignty is justified to reach individual citizens who have actively participated in the perpetration of such grievous crimes and who bear individual responsibility for "actus reus: and "mens rea" of those. crimes. The International Military Tribunal (IMT), Nuremberg 1947) has emphasized (a) individual responsibility and guilt for evil they do, in spite of the collective nature of the offences and (b) that mass punishment should be avoided.
reconciliation, the perpetrators must be punished and the victims satisfied. The latter is the greatest value and the fundamental understanding of the law that reflects the judicial conscience and solidarity of the international community. In this regard, I would like to emphasize and warn national, transnational, and international actors that "Hague Justice" in the jurisprudence of "political mechanism" of the International Criminal Tribunal for the former Yugoslavia (ICTY) is a complete failure because it operates in "virtual reality"outside the established framework, and the precedents of international criminal law structured on the principles of the Nurnberg Charter. An ad hoc tribunal created on triple illegality, that is, in its conception, structure, and practice mocks justice and violates the dignity of legal defenders and innocent victims. (For a more detailed legal analysis, see Yambrusic, Peace at the Price of Justice and Human Dignity, Croatian Cultural Council, 2010).
Luckily, the process of the progressive development of international criminal law attempts to correct the gross errors and aberrations of the Hague ad hoc tribunals. Specifically, International Criminal Court (ICC) is returning to the precedents. which follow and respect the principles enunciated in the Nuremberg Charter. The Court has expanded its jurisdiction to the jus cogens crime of aggression., that is, the crime against peace and international security. This is a significant progress in the development of international criminal law, because it facilitates prosecutions of war criminals. The very act-"actus reus"- of aggression is the '"supreme" jus cogens crime-"jus ad bellum". The very act of aggression is the "best evidence".to convict and bring to justice war criminals. The breach of peace and illegal crossings of sovereign, national borders is the "proximate cause" to all the other "serious" and "grave" crimes committed in war.Indeed, it's "res ipsa loquitur"par excellence.
Aggression of the Russian Federation against Ukraine is a sad, tragic, but serious, alarming example of the arrogance of force wielded by agents of evil. This is the real challenge and,indeed, a "wake up" call.to all freedom-loving men, and free institutions built on the rule of law, moral imperatives, and the core values of the Western civilization. Solidarity among civilized nations must decisively confront and eradicate this insidious evil from the international community. Heroism, and the exemplary, ultimate sacrifices of the Ukrainian people are reassuring and emboldening the free world that this can be achieved.
Dr. Edward Slavko Yambrusic
The culpability paradigm of international criminal law reveals the extent to which that law constitutes an extension of the application of national (domestic) criminal law to an international forum. However, international criminal law differs in its essence, as it extends individual criminal responsibility to omissions to prevent, suppress and punish perpetrators of crimes. Moreover, in the international legal system, the main purpose of punishment is the satisfaction of the victim and the preservation of peace and international security. Another important policy consideration of international criminal law system-in addition to deterrence- is the establishment of truth and justice. In order to lay the foundations for eventual healing and
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