The increase in the number of war crimes due to the russia’s large-scale invasion and Ukraine NATO integration raises the issue of regulation criminal liability for such crimes. In this context, in order to understand the Ukrainian legislation development prospects, it seems appropriate to turn to the experience of the United States of America as the leading NATO member. Despite the large number of works devoted to war crimes liability, it should be noted that the domestic Criminal Code draft working out has actualized comparative legal studies of liability for acts with international criminalization. It is especially important because Ukraine, like the United States, has not acceded to the Rome Statute of the International Criminal Court.        This article purpose is to examine the conceptual approaches to the regulation of war crimes in the USA and Ukraine, particularly taking the context of the draft Criminal Code of Ukraine into account. It also presents the authors’ vision of the national legislation development prospects in this context.

It is found that the United States is characterized by the differentiation of tort-capable persons, each category of which falls under the different regulations jurisdiction.

The peculiarities of the American concept are that US military personnel and civilians involved in the activities of the armed forces are not prosecuted for war crimes. Their actions are qualified as general criminal offenses, although formally there are normative grounds for qualifying their actions as war crimes. However, enemy armed groups (formations/troops) participants are subjected to criminal liability for war crimes. This approach is criticized by US experts. Their aim is to increase the legitimacy of the US armed forces taking part in foreign military operations.

It is established that the peculiarity of war crimes regulation under the Criminal Code of Ukraine is that the list of crimes includes both war crimes (Chapter XX, Criminal Code of Ukraine) and a number of military criminal offenses. This approach is not optimal one. It determines the expediency of formulating a single general rule on criminal liability for violation of the law of war. Such rule could absorb a number of norms on military criminal offenses liability.

The authors have identified the controversial aspects of the draft Criminal Code of Ukraine on the war crimes regulation which may lead to significant difficulties in law enforcement or even the inability to qualify an act as a war crime.

Bibliography

Authored books

1. Archibugi D, Pease A, Crime and Global Justice: The Dynamics of International Punishment (Polity Press 2018) (in English).

2. Drumbl M A, Atrocity, Punishment and International Law (Cambridge University Press 2007) (in English).

Journal articles

3. Bufacchi, V, ‘War crimes in Ukraine: is Putin responsible?’ [2023] 16 (1) Journal of Political Power 1-6. DOI: 10.1080/2158379X.2022.2105495 (in English).

4. Corn, G S, VanLandingham R E, ‘Strengthening American War Crimes Accountability’ (2020) 70 American University Law Review 309–86 (in English).

5. Mayans-Hermida B E, Hola´ B, ‘Balancing “the International” and “the Domestic” Sanctions under the ICC Principle of Complementarity’ [2020] 18 (5) Journal of International Criminal Justice 1103–1130. DOI: https://doi.org/10.1093/jicj/mqab003 (in English).

6. Piddubna M, ‘Voienni zlochyny v kryminalnomu pravi Ukrainy’ (2016) 40 Naukovyi visnyk Uzhhorodskoho natsionalnoho universytetu, Seriia Pravo 2 (in Ukrainian).

Theses

7. Bazov V, ‘Kryminalna vidpovidalnist za porushennia zakoniv ta zvychaiv viiny (analiz skladu zlochynu)’ (avtoref kand yuryd nauk, 2009) (in Ukrainian).

8. Myronova V, ‘Kryminalna vidpovidalnist za porushennia zakoniv ta zvychaiv viiny’ (avtoref kand yuryd nauk, 2008) (in Ukrainian).

Websites

9. ‘An Introduction to the Uniform Code of Military Justice’ (accessed: 17.03.2023) (in English).

10. ‘Proiekt Kryminalnoho kodeksu Ukrainy (stanom na 30.01.2023)’ (accessed: 17.03.2023) (in Ukrainian).

11. ‘Vysnovok na proiekt Kryminalnoho kodeksu Ukrainy (kontrolnyi tekst stanom na 30.01.2023)’ (accessed: 17.03.2023) (in Ukrainian).