Section 1 deals with the issues of violation of the laws and customs of war as a
war crime under international humanitarian law. It is stated that the concept of «war
crime» in international legal documents, sources of international humanitarian law,
and in case law has evolved from an elementary to a detailed form in the Rome
Statute, and the concept of ‘violation of the laws and customs of war’ used in Article
438 of the Criminal Code of Ukraine to refer to the relevant criminal offence is
identical to the concept of «war crimes». The war crimes themselves, taking into
account their objective side and direct objects, are divided into crimes against the
human right to life, health, as well as biological and spiritual well-being (including
the human right to a safe environment); crimes against the human right to liberty and
security of person; crimes against the human right to property; crimes against the
human right to honor and dignity; crimes of a sexual nature; crimes against the
human right to a fair trial. The author characterizes the mixed (national and
international legal) blanket of the disposition of Article 438 of the Criminal Code of
Ukraine and analyses the final court decisions in the relevant criminal proceedings
with regard to the references to the relevant documents of international humanitarian
law. It is noted that after Ukraine's ratification of the Rome Statute, reference to this
founding document is desirable but not mandatory, given that its provisions are
mainly procedural and procedural in nature, and the list of crimes itself repeats, and
in some respects is narrower than in the Geneva Conventions of 1949 and other
sources of international humanitarian law. At the same time, if the Rome Statute is
referred to in the formulation of the charge under Art. 438 of the Criminal Code of
Ukraine, it is necessary to refer to the Elements as a consolidated legal act that
supplements the Statute and defines the legal structures of each of the war crimes
defined by the Rome Statute.
Section 2 is devoted to the description of the objective elements of violations
of the laws and customs of war.
The concept of ill-treatment as a form of war crimes under Art. 438 of the
Criminal Code of Ukraine may include any physical or mental impact on the victim
aimed at causing physical or mental suffering. Ill-treatment during an armed conflict
of an international or non-international nature may not reach the minimum level of
cruelty in the sense of the ECHR. In cases where ill-treatment is combined with other
forms of war crimes, such as the theft of property belonging to the civilian
population, not justified by military necessity, the accused should be charged with
both ill-treatment of civilians and other violations of the laws and customs of war.
Causing the death of one person in the sense of international humanitarian law is an
independent form of war crimes, unlike national criminal law. The following wording
of Part 2 of Art. 438 of the Criminal Code of Ukraine is proposed: ‘Violation of the
laws and customs of war in the form of killing a prisoner of war or a member of the
civilian population’. The unnecessary criminalization in Art. 433 and 434 of the
Criminal Code of Ukraine is established, taking into account the fact that the forms of
crimes defined in them actually duplicate war crimes (Art. 438 of the Criminal Code
of Ukraine). In view of the above, it is proposed to exclude these articles from this
Code.
The author characterizes the robbery/stealing of civilian property, as well as
destruction of such property not justified by military necessity, as a form of war
crimes. Robbery as a war crime may occur in the presence of various forms of seizure
of another's property in the sense of national criminal law. According to the case law
of international tribunals, robbery as a war crime can be manifested as a direct seizure
of property from the owner against his will, combined with a «demonstration of
military force», as a fraudulent seizure of property directly related to an armed
conflict and not falling under the concept of military necessity, which consisted of
extortion from the population of the occupied territories and the use of the proceeds
to equip the enemy army, and the prohibition on misappropriation of property applies
to the actions of individual servicemen committed for personal reasons, as well as to
property seized for the purpose of «systematic economic exploitation» of the
occupied territory. Usually, destruction of property as a war crime took place with the
use of generally dangerous objects (for example, ammunition from certain
installations or military equipment).
