Definition of a war crime under public international law and criminal law of Ukraine

Abstract

The article deals with the issues of defining the category of «war crimes» in the science of public international law and in the doctrine of criminal law of Ukraine. The author examines the epistemological aspects of the formation and development of this concept in the historical and legal historical monuments of mankind. It is stated that since ancient times there have been restrictions and prohibitions on taking the lives of helpless enemies and those who surrendered, as well as protection from any possible damage to classical works of art, libraries, scientific collections, high-precision instruments, as well as hospitals. The development of international humanitarian law in this area is associated with the end of the Second World War. The article analyzes the corpus delicti of criminal offenses against the established order of military service (military criminal offenses), the commission of which is associated with a violation of the principles of international humanitarian law, as well as the act provided for in Article 438 of the Criminal Code of Ukraine “Violation of the Laws and Customs of War”. The author concludes that the above criminal offenses differ from each other both in terms of the range of acts characterized by them, and in terms of the object of the offense and the range of persons who may commit them. Based on this, the author concludes that some of the military criminal offenses correlate with the elements of the crime provided for in Article 438 of the Criminal Code of Ukraine as special and general norms. Agreeing with the definition of “war crime” in the science of public international law, the article offers the author’s own definition of this category in the criminal law of Ukraine as a socially dangerous act provided for by the law on criminal liability which is intentionally committed by a combatant and persons equated to them or by a civilian in relation to them during an armed conflict and which consists in violation of international humanitarian law. On this basis, it is argued that war crimes, based on the specifics of their object, are currently provided for exclusively in Chapter XX of the Special Part of the Criminal Code of Ukraine “Criminal Offenses against Peace, Human Security and International Law and Order”.