This article is the only opportunity to qualify war crimes in Ukraine.
The ongoing war in Ukraine for nine years, pointed out that the provisions of the Criminal Code of our country were not ready for the challenges faced by the justice system. Experts Alina Pavlyuk and Daria Sviridova write about this in their column on the website of the AZONES Bar Association.
“The category of the most serious international crimes has a rather peculiar anchoring in the national criminal legislation, since their provisions do not correspond to the norms of international law, and crimes against humanity as a legal category are generally absent from the list of criminalized acts,” the authors note. as proposed in Article 8 of the Rome Statute of the International Criminal Court. Instead, the only possibility to qualify such acts is Article 438 of the Criminal Code of Ukraine, which very broadly criminalizes “violations of the laws and customs of war”.
The authors note that five definitions of crimes fall under the qualification of this article:
- cruel treatment of prisoners of war or civilians;
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- expulsion of the civilian population for forced labor;
- plundering of national values in the occupied territory;
- use of means of warfare prohibited by international law;
- issuing an order to commit such actions.
Moreover, “other violations of the laws and customs of war provided for by international treaties, consent to the binding nature of which has been granted by the Supreme Court” can also be qualified under this article.
“Working in practice with a similar wording of the article requires law enforcement officers to have knowledge in the field of international humanitarian law in order to determine which actions will constitute a violation of the laws and customs of war and in which international documents these prohibitions are enshrined,” the authors note.
Read also: Ukraine accused the lieutenant colonel of the Russian Federation of violating the laws and customs of war
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