Вісник Харківського національного університету внутрішніх справ (Jun 2024)
Criminal liability for the commission of war crimes: analysis of the corpus delicti of unlawful encroachments
Abstract
The need for a criminal law analysis of military-violent crime is substantiated given the ongoing armed conflict in Ukraine, the annexation of some of its territories and the open calls of the russian authorities to destroy the Ukrainian nation and incite hatred towards everything that identifies Ukraine as a sovereign independent state. The classification of war crimes in the context of the armed conflict in Ukraine is proposed depending on the category of victims Military violent crimes in the context of the armed conflict in Ukraine should be divided into two groups of offences depending on the category of victims. The first group of such unlawful encroachments includes war crimes against the civilian population (Article 433; parts 1 and 2 of Article 438 of the CCU – violation of the laws and customs of war regarding rape and sexual violence, enslavement and torture, forced displacement of civilians, intentional killing of civilians; Article 442 of the CCU). The second group of military-violent offences includes military-violent crimes against servicemen (Article 434 of the Criminal Code of Ukraine; Part 1 of Article 438 of the Criminal Code of Ukraine – violation of the laws and customs of war regarding the ill-treatment of POWs, including cases of use of prohibited means and methods of warfare, as a result of which a serviceman was recognised as a victim). The approaches to the interpretation of certain features of the objective and subjective sides of the corpus delicti of the relevant military-violent crimes in the course of law enforcement are analysed and clarified, and recommendations aimed at forming a unified law enforcement practice regarding their criminal law qualification are provided The emphasis is placed on the fact that for the purpose of qualification and distinction from other war crimes of violation of the laws and customs of war in various forms of the objective side of Part 1 of Article 438 of the CC of Ukraine, not only the features of the objective side, the disposition of which is of a blanket nature, are important, but also the features of the subject of this criminal encroachment, which is not limited to the fact that it can be only a combatant. The author offers recommendations on the qualification features of various types of military violent crimes and their distinction from crimes against humanity, taking into account the existing doctrinal positions.
Keywords
