The present paper discusses notion, contents and corpus delicti of the crime of aggressive war in. Art. 437 of the Criminal Code of Ukraine. Illegal aggression initiated against Ukraine on 24 February 2022 poses unprecedented challenges to courts and law enforcement of Ukraine, and meaning, contents and enforcement of Art. 437 of the Criminal Code seizes to be of purely theoretical significance and acquires immediate practical implications.

Art. 437 of the Criminal Code implements rule of general international law that criminalises aggressive war as an international crime. Crime against peace under international law exists in two forms: crime of aggressive war under customary international law and crime of aggression under the ICC Statute. Therefore, it can be conceptualised as embodied in Nuremberg definition, generated by statutes of International Military Tribunal in Nuremberg, International Military Tribunal for the Far East and Nuremberg trials, and Kampala definition as enshrined in the ICC Statute. This has a direct bearing on Art. 437, which was worded in 2001 long before the Kampala compromise and clearly followed Nuremberg definition of aggressive war crime.

 However, the wording of Art. 437 is broader than the Nuremberg definition as it includes in its scope the crime of “armed conflict” and “waging aggressive warfare”, and also broader than Art. 8bis of the ICC Statute, as it lacks qualifying requirement of manifest violation of the UN Charter due to character, gravity and scale. Art. 437 scope includes such actus rei: (1) planning and preparation of aggressive war; (2) planning and preparation of armed conflict; (3) initiation of aggressive war; (4) initiation of armed conflict; (5) participation in conspiracy for the accomplishment of the referred acts; (6) waging of aggressive war; and (7) waging of aggressive warfare.

The paper discusses the core elements of Art. 437 of the Criminal Code of Ukraine in the light of principles and rules of international law that serve as a basis of the Code as explicitly stated in Art. 3(1) thereof. This justifies the recourse of national courts to the general international law, including Nuremberg trials case law, when interpreting and applying Art. 437.

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