The research is devoted to the substantial and comprehensive international-legal study of conflict-related sexual and gender-based violence (CR SGBV) as well as international criminal tribunal’s and court’s practice of qualification and investigation CR SGBV as international crime. The separate issue of the research is international-legal assessment of SGBV, related to the armed conflict on the territory of Ukraine, and law enforcement and judicial authority’s activities on brining guilty persons to the responsibility.
Thesis is the first attempt of researching theoretical and practical aspects of qualification and investigation CR SGBV as international crime, as well as identifying needed gaps and voids in current responsibility for SGBV, related to the armed conflict on the territory of Ukraine, and developing visionary (conceptual) ways of their settlement.
The novelty of the study includes the following provisions.
- detailed analysis of international-legal CR SGBV prohibition genesis is provided, three forms of prohibition in the IHL and two in the IHRL are proposed;
- investigation patterns of CR SGBV in the international law doctrine are highlighted;
- need of using complex CR SGBV definition rather than its separate parts is substantiated;
- author’s term of CR SGBV is proposed. It is an act of sexual nature and (or) act committed against person because of the gender, if they are committed under coercive circumstances and caused physical, sexual or psychological harm as well as threat of such acts and (or) coercion to engage in them in case they have geographical, temporal and causative nexus with armed conflicts and other situations.
- war crimes, crimes against humanity and acts of genocide are classified in two groups: the first one includes acts that independently on any factors are always CR SGBV; the second one – those acts, that might be CR SGBV dependently on reasons and circumstances they are committed;
- nexus between the classified war crimes groups and forms of CR SGBV prohibition in the IHL is proved;
- periodization of establishment list of crimes against humanity on including CR SGBV acts in it is proposed. Establishment has three stages: 40th of 20 century (first
stage), 90th of 20 century (second stage) and beginning of 21 century (third stage);
- nexus between the classified crimes against humanity groups and forms of CR SGBV prohibition in the IHRL, as well as between the stages of evolution such prohibitions and separated stages of establishment list of crimes against humanity is provided;
- process of qualification CR SGBV as international crime is detailed, two stagesof it, the second one of which includes two phases, are formed;
- practical tools on qualification “classic” CR SGBV acts as international crime are developed according to the formed stages (tables for the first stage and schemes for the second);
- peculiarities of investigation CR SGBV as international crime in the international criminal tribunal’s and court’s practice are highlighted and characterized;
- system of state’s international obligations on investigation CR SGBV as international crime is distinguished. It consists of state’s obligation on criminal prosecution of person, who committed international crimes in general (treaty law, customary law and soft law) and state’s obligation on investigation CR SGBV as international crime (soft law);
- comprehensive analysis of non-state actor’s contribution in the investigation CR SGBV as international crime is made, five main types of it are characterized;
- problem issues (gaps) of responsibility for SGBV, related to the armed conflict on the territory of Ukraine, are identified, main of them are detailed, recommendations on their settlement are proposed;
- gap of complex SGBV definition absence in the national law is proposed to settle by amending a Law of Ukraine “On ensuring equal rights and opportunities for women and men” with the author’s SGBV definition, formed in this thesis;
- gap of absence concept of nexus between the crimes and armed conflict on the territory of Ukraine during their investigation in the national law is proposed to settle by amending Regulation on Unified register of pre-trial investigations, order of its forming and operating, approved by the Office of the General Prosecutor of Ukraine Order № 298 from 30.06.2020, and boarding register interface with the ability of pointing nexus with the armed conflict on the territory of Ukraine on geographical, temporal and causative criteria.
Key words: international law, sexual and gender-based violence, conflict-related, international crime, armed conflict on the territory of Ukraine, international responsibility.
