War crimes in the International Criminal and Humanitarian Law and in the Criminal Law of Ukraine: theoretical and practical aspects

S. V.  Shcherbak

doi:10.32631/v.2023.3.45

S. V. Shcherbak Sumy National Agrarian University https://orcid.org/0000-0002-9969-3817

DOI: https://doi.org/10.32631/v.2023.3.45

Keywords: war crimes, international crimes, elements of crime, contextual element, International Criminal Law, International Humanitarian Law, violation of the laws and customs of war.

Abstract

The article reveals the criminal law characteristics of war crimes in the International Criminal Law, International Humanitarian Law and under the National Criminal Law. The category of “war crimes” is analysed and its Criminal Law description is made in terms of substantive, international and national components in the context of combining theoretical and applied aspects of war crimes research. A comparative analysis of war crimes in both International Criminal Law and National Criminal Law has been made, with the examples of application of Article 438 of the CC of Ukraine from judicial practice provided, and the legislative regulation of the term “war crimes” in the CC of Ukraine has been proposed, given the trend of clear separation of the category of war crimes which has been observed since the beginning of the armed conflict in Ukraine in the National Criminal Law science and in law application which remains doctrinal.

The range of problematic issues of interpretation and enforcement of Art. 438 of the Criminal Code of Ukraine arising in court practice in the course of implementation of this provision has been outlined, such as the “international legal” blanket nature of the disposition of Art. 438 of the CC of Ukraine, the need for ratification of the Rome Statute and implementation of its provisions into national legislation, low sanctions for war crimes, distinguishing war crimes from other international crimes, as well as war crimes from “general criminal” offences provided for in other articles of the Special Part of the CC of Ukraine. It has been proved that courts in criminal proceedings should establish a contextual element when qualifying violations of the laws and customs of war under Article 438 of the CC of Ukraine as an independent element of war crimes, which makes it possible to distinguish them from "general criminal" offences provided for in other sections of the CC of Ukraine. The low sanction of Part 1 of Art. 438 of the CC of Ukraine has been stated and proposals have been made to strengthen it in order to establish in the Criminal Law a relevant punishment for persons who committed war crimes during the armed conflict in Ukraine, which is a requirement of today.

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Author Biography

S. V. Shcherbak, Sumy National Agrarian University

Candidate of Law, Associate Professor.
Department of Administrative and Information Law (associate professor).

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