The civilian population as an object of attack during an international armed conflict: a criminal-legal assessment under the national legislation of Ukraine

Abstract

The criminal law assessment of each violation of the rules and customs of war under Article 438 of the Criminal Code of Ukraine (hereinafter referred to as the Criminal Code of Ukraine) requires reference to international treaties establishing such rules. This is indicated by the disposition of this article. In turn, international treaties have a list of provisions that contain instructions on prohibitions for parties to international armed conflicts and on specific violations of the rules and customs of war. This list is quite wide, due to which problems arise during the practical application of Article 438 of the Criminal Code of Ukraine, in particular, when formulating an indictment. Serious violations of the rules and customs of war include, in particular, turning the civilian population or individual civilians into targets of attack. Establishing objective and subjective signs of this act is of scientific interest. In the norms of international humanitarian law, this violation is formulated atypically for domestic criminal legislation. In addition, there are issues of differentiation with other serious violations of the rules and customs of war, correlation with prohibitions and requirements established in the norms of international humanitarian law. In order to clarify the essence of this violation, the norms of international treaties, which are part of international humanitarian law, as well as their interrelationship, were analyzed. This made it possible to draw conclusions about the objective features by which it is possible to distinguish the analyzed violation from other homogeneous violations, for example, from committing attacks of an indiscriminate nature. Possible variants of a subjective attitude to the commission of such a violation as the transformation of the civilian population or individual civilians into an object of attack are also defined. In addition, examples from judicial practice were considered with an emphasis on ways of formulating charges under Art. 438 of the Criminal Code of Ukraine. The importance of instructions for the commission of a serious violation of an international agreement during the formulation of charges in such proceedings is emphasized and substantiated. Prospects for further research on issues related to the criminal-legal assessment of attacks on the civilian population in the context of an international armed conflict are outlined.