Instituto de Estudios Políticos y Derecho Público "Dr. Humberto J. La Roche"
de la Facultad de Ciencias Jurídicas y Políticas de la Universidad del Zulia
Maracaibo, Venezuela
Esta publicación cientíca en formato digital es continuidad de la revista impresa
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197402ZU34
ppi 201502ZU4645
Vol.39 N° 71
2021
Recibido el 14/09/2021 Aceptado el 08/11/2021
ISSN 0798- 1406 ~ De pó si to le gal pp 198502ZU132
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ción, dis cu sión y con fron ta ción de las ideas y avan ces cien tí fi cos con com pro mi so so cial.
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avan ces o re sul ta dos de in ves ti ga ción en las áreas de Cien cia Po lí ti ca y De re cho Pú bli-
co, los cua les son so me ti dos a la con si de ra ción de ár bi tros ca li fi ca dos.
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Vol. 39, Nº 71 (2021), 433-457
IEPDP-Facultad de Ciencias Jurídicas y Políticas - LUZ
International Aspects of the Protection
of Victims’ Rights in the Conditions of
Armed Conict in Ukraine
DOI: https://doi.org/10.46398/cuestpol.3971.24
Olha Sosnina *
Oleksandr Mykytiv **
Halyna Mykytiv ***
Tetiana Kolenichenko ****
Andrii Holovach *****
Abstract
Using a comparative methodology based on documentary,
the objective of the research was to analyze the international
aspects involved in the defense of the rights of the victims of the
armed conict in eastern Ukraine. The priority of using military
force to resolve questionable issues, national contradictions of
an ethical, religious, political, territorial, economic, etc. nature that are
in dispute, remains one of the essential characteristics of today’s realities.
Everything allows us to conclude that in almost all regions where there are
armed conicts, laws are violated and prohibited means and methods of
warfare are used, related to the violation of the principles of distinction,
of proportionality admitted in the process of artillery rocket attacks and
air attacks of rockets and bombs, recruitment, training, nancing and/or
use of mercenaries in military activities, destruction of human settlements,
executions in the form of intentional killings for reasons of hatred or
political, ideological, racial, national, religious enmity, torture, among
other inhumane behaviors and appalling atrocities, which by their nature
and degree of brutality cannot go unpunished and constitute war crimes
and crimes against humanity.
* Docent of department of Criminal Law and Procedure, faculty of Law, Lviv University of Trade and
Economics, candidate of Law. ORCID ID: https://orcid.org/0000-0002-0033-4487
** Teacher of the Separate Structural Subdivision «Vocational College of Economics and Law of
Zaporizhzhia National University». ORCID ID: https://orcid.org/0000-0003-2062-7292
*** Senior teacher of department of Publishing and Editing of Zaporizhia National University, Faculty of
Journalism. ORCID ID: https://orcid.org/0000-0001-6195-2994
**** Head of the department of Social Work of the Chernihiv Polytechnic National University, Educational
and Scientic Institute of Law and Social Technologies, faculty of Social Technology, Health and
Rehabilitation. ORCID ID: https://orcid.org/0000-0003-0357-7457
***** Docent of department of Theory and History of State and Law of the State Higher Educational
Institution "Uzhhorod National University", candidate of historical sciences. ORCID ID: https://orcid.
org/0000-0002-8314-6536
434
Olha Sosnina, Oleksandr Mykytiv, Halyna Mykytiv, Tetiana Kolenichenko y Andrii Holovach
International Aspects of the Protection of Victims’ Rights in the Conditions of Armed Conict in Ukraine
Keywords: victims of armed conict; human rights violations; victims’
rights; armed conict in eastern Ukraine; geopolitics in
Eastern Europe.
Aspectos internacionales de la defensa de los derechos
de las víctimas en condiciones del conicto armado en el
este de Ucrania
Resumen
Mediante una metodología comparativa de base documental, el objetivo
de la investigación fue analizar los aspectos internacionales que implica la
defensa de los derechos de las víctimas del conicto armado en el este de
Ucrania. La prioridad de uso de la fuerza militar para solucionar las cuestiones
discutibles, las contradicciones nacionales de tipo ética, religiosas, políticas,
territoriales, económicas, etc. que se hallan en litigio, sigue siendo una de las
esenciales características de las realidades actuales. Todo permite concluir
que en casi todas las regiones donde hay conictos armados se violan las
leyes y se utilizan medios y métodos de guerra prohibidos, relacionados con
la violación de los principios de distinción, de proporcionalidad admitida en
el proceso de los ataques de cohetes de artillería y ataques aéreos de cohetes
y bombas, reclutamiento, entrenamiento, nanciación y/o utilización de
mercenarios en las actividades militares, destrucción de asentamientos
humanos, ejecuciones en forma de asesinatos intencionados por motivos
de odio o enemistad política, ideológica, racial, nacional, religiosa, torturas,
entre otros comportamientos inhumana y atrocidades espantosas, que
por su naturaleza y grado de brutalidad no pueden quedar impunes y se
constituyen en crímenes de guerra y crímenes de lesa humanidad.
Palabras clave: víctimas de conictos armados; violaciones a los
derechos humanos; derechos de las víctimas; conicto
armado en el este de Ucrania; geopolítica en Europa del
este.
Introduction
Armed aggression of the Russian Federation against Ukraine, which
began in February 2014 with the annexation of the Autonomous Republic
of Crimea and continued in April 2014 with the organization and support of
illegal armed groups, who proclaimed the so-called “people’s republics” in
Donetsk and Luhansk regions, among many other problems, posed dicult
tasks and questions to the Ukrainian legal system.
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Vol. 39 Nº 71 (2021): 433-457
The key role in responding to them, no doubt, belongs to lawyers,
investigators, judges. Namely, the by the Ukrainian state’s fulllment of its
obligations to both its citizens and the international community, depends
on their readiness to properly understand the applicability of the provisions
of international humanitarian law to the armed conict in Ukraine,
the adaptation of the relevant provisions of national law to the rules of
international law, their interpretation and direct application.
Like any armed conict, the armed conict in the East of Ukraine is
characterized by violations of the rights of civilians, in particular the right
to life, health, personal liberty and security of person. Citizens experience
incredible mental anguish from the experience, torture, loss of loved
ones, and loss of property that was destroyed, damaged, or left in non-
government-controlled territory.
Human rights violations in the conditions of armed conict violate
the basic international principles of human rights and humanitarian law
that are enshrined in international legal documents (Grushko, 2010).
Despite the international community’s ratication of various conventions
on international humanitarian law and the ght against their violations,
as well as their partial implementation and the enshrined at the national
level criminal liability for war crimes, almost all wars and armed conicts
are accompanied by commitment of serious war crimes. However, it
is necessary to admit that a signicant portion of such crimes remain
unpunished, and those responsible are not held to criminal responsibility,
taking advantage of the state’s sovereignty. At the same time, the legal
prospects for punishing criminals are not entirely clear and expectations
for the restoration of violated rights of victims of the armed conict in
eastern Ukraine, compensation for damages, etc. remain uncertain in this
situation (Grygoryan, 2009).
Of course, the responsibility of any state for the fate of its own citizens
and the protection of their rights is extremely high. The issue of protection
of civilians, who have been subjected to torture, inhuman and degrading,
the treatment or punishment under the armed aggression of another state,
as well as the protection of family members in the event of the death or
unknown disappearance of their loved ones and relatives is the issue, which
lies in the plane of legislative and organizational-legal initiatives of Ukraine,
and must correspond to the valid mechanisms of eective investigation of
violations of the Criminal Code of Ukraine and international humanitarian
law that are developed by world practice.
436
Olha Sosnina, Oleksandr Mykytiv, Halyna Mykytiv, Tetiana Kolenichenko y Andrii Holovach
International Aspects of the Protection of Victims’ Rights in the Conditions of Armed Conict in Ukraine
1. Analysis of the recent research
In modern Ukrainian realities, the problems of protecting victims
from various crimes are more relevant than ever. Certain theoretical and
practical aspects of the protection of victims’ rights in the conditions of
armed conict have been the subject of research of such scholars as R.A.
Avramenko, М.М. Gnatovskyi, D.O. Koval, О.V. Senatorova, V.V. and other
authors.
At the same time, many issues remain unresolved that need to be
comprehensively analyzed and covered. In particular, the issues of
clarifying international and national mechanisms of guarantees of
protection of victims’ rights (prisoners of war, women, children, etc.) in
the conditions of armed conict, of delineation of certain organizational
and forensic vectors of protection of the rights of victims in the conditions
of the armed conict in the East of Ukraine, of revision of criminal legal
means of protection of persons from commission of war crimes, etc.
require additional solutions. It is also indisputable that certain tactical and
procedural “tools” of the investigation of war crimes that are committed in
the context of an international armed conict, must be properly disclosed
from the standpoint of forensic science and criminal procedure.
2. Materials and methods
The methodological basis of the scientic article is formed by general
scientic and special methods and techniques of scientic knowledge, that
are aimed at an objective and substantiated study of the international legal
regime of prisoners of war. The basis of the methodological toolkit is the
system analysis, which determined the directions of research of mechanisms
of protection of victims’ rights in the conditions of armed conict on the
territory of Ukraine. The conceptual apparatus has been enriched with the
help of the dialectic method; the essence of such terms as “armed conict”,
“war”, “international humanitarian law”, and the peculiarities of liability
for violation of victims’ rights in the conditions of armed conict have been
claried.
Formal and legal method was used for analysis of the legal meaning of
international and national legal acts in the eld of protection of the rights of
children, women, prisoners of war and wounded. The comparative and legal
method has allowed to clarify the relationship of universal international
treaties with each other, international treaties, and international legal
customs regarding the protection of the rights of victims of armed aggression
of another country and to study the issue of reection of international legal
requirements in national legislation. The scientic and heuristic potential
437
CUESTIONES POLÍTICAS
Vol. 39 Nº 71 (2021): 433-457
of such philosophical research methods as analysis, synthesis, deduction,
induction, abstraction, etc. has been also used.
Thus, the author’s methodology of this study is a set of methods and
techniques that are based on dialectical analysis of legal documents,
empirical data, as well as a critical understanding of the scientic literature
on this issue.
3. Research and results
General characteristics of the sources of international humanitarian law
and national legislation governing legal relations in conditions of the armed
aggression.
The basic Law of our state recognizes human life and health as the highest
social value (the article 3 of the Constitution of Ukraine) (Constitution of
Ukraine, 1996). That is why the state has undertaken to take all measures
to protect human rights and fundamental freedoms, guided by the case law
of the European Court of Human Rights and other sources of law that take
precedence over the norms of national law.
Of course, specic protection mechanisms depend on the nature of
the violations. When it comes to human rights violations in the context of
the European Convention on Human Rights, it regulates property rights
in detail. Not all other international tools allow similarly for the eective
protection of this right. Accordingly, in the event of a violation of property
rights, an eective mechanism may be for individuals or legal entities to
apply to the European Court of Human Rights. If it is a question of violation
of the international humanitarian law, then other legal mechanisms will be
involved here, the protection of victims will be carried out already within
the framework of bringing the perpetrators to justice in national courts.
There is also a procedure for resolving the specied disputes in international
courts.
Given that the subject of the research is to develop eective mechanisms
to protect the rights of victims of the armed conict in the East of Ukraine
and their restoration at the national level given the requirements that have
been developed by world practice, it would be logical to clarify the nature of
the armed conict.
Undoubtedly, armed conict in all its manifestations is a deformation of
social relations, which accompanied by sharp contradictions, widespread
use of weapons, declining value of human life, rising level of violence
and other crime, which is the root cause of committing war crimes. An
international armed conict occurs when an attack on the territory of a
state is carried out by another state, or by non-governmental formations
438
Olha Sosnina, Oleksandr Mykytiv, Halyna Mykytiv, Tetiana Kolenichenko y Andrii Holovach
International Aspects of the Protection of Victims’ Rights in the Conditions of Armed Conict in Ukraine
that are under the control of another state. In this case, it begins to be used
after the rst shot against the territory of the state or crossing the border
by the armed forces of another state. The conict will also be considered as
international if the third country exercises at least general control under
non-governmental armed formations. An occupation of the territory of
another state is equated to an armed conict of an international character,
even if such an occupation does not meet with armed resistance (Koval and
Avramenko, 2019).
It should be noted that the term “armed conict” is broader in scope
than the term “war”. This is conrmed by the art. 2 that is general for the
Geneva Convention, according to which the norms of these documents are
applied not only in the event of a declaration of war, but also in relation
to any other armed conict. According to classical international law,
“war” requires availability of several international legal criteria: it must be
proclaimed, which usually results in the severance of diplomatic relations
and the termination of bilateral international agreements between the
belligerents. The fact is that states are at war without declaring war and
even they are maintaining diplomatic and contractual relations in recent
decades, after the ban on the use of force and the threat of force in the
art. 2 of the Charter of the United Nations. No one wants to declare war
than to declare to the whole world that you are an aggressor and to bear
international legal responsibility for it (Grygoryan, 2009).
Even when a state defends itself against invasion, it often does not even
recognize the state of war between it and the aggressor. Undoubtedly, this
resulted in the enshrinement of the term “armed conict” in the Geneva
Convention and the gradual departure from the application of the term
“war” in the documents of international humanitarian law, leaving it as just
ad bellum (Senatorova, 2018).
International humanitarian law is the general name for a set of rules of
international law, which are sometimes referred to as the international law
of armed conicts, or the law of war. It regulates the protection of persons
who do not participate in or have withdrawn from an armed conict, as
well as regulates the means and methods of armed conict (Koval and
Avramenko, 2019). International humanitarian law or the law of armed
conicts is a branch of international law whose rules and principles limit
the application of violence in the time of armed conicts by making such
demands: a) to spare those who do not or have ceased to take a direct part
in hostilities; b) to limit violence to the extent that is necessary to achieve
the goal of the conict, which may result (regardless of the causes through
which the conict began) only in weakening the military potential of the
opposing side.
The main sources of international humanitarian law, as well as
international law in general, are international treaties and international
439
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Vol. 39 Nº 71 (2021): 433-457
customs. Beginning in the third quarter of the nineteenth century, when
the process of codication of the laws and customs of war began, the
international treaty became the main source of international humanitarian
law. Today, international humanitarian law is one of the most conventionally
secured branches of international law. In doing so, it is important to
note the extremely high level of commitment of states under multilateral
agreements. This also applies to the settlement of relations in the eld of
protection of the rights of victims in the conditions of armed conict in the
East of Ukraine.
Despite the legal uncertainty of the place of international customs in
the legal system of Ukraine due to the lack of references to international
customs in the art. 9 of the Constitution of Ukraine, there is no doubt that
Ukraine is bound by the customary norms of international humanitarian
law, which create a system of international legal obligations of Ukraine
in the treatment and protection of victims of armed conicts next to the
provisions of the Geneva Convention (Geneva Convention, 1949). This is
conrmed by the provisions of the Law of Ukraine “On the bases of domestic
and foreign policy”, according to which the basis of domestic and foreign
policy are based on generally accepted principles and norms of international
law (paragraph 1 of the article 2), and foreign policy is based on the
following principles: respect for human rights and fundamental freedoms;
conscientious fulllment of the undertaken international obligations;
priority of generally recognized norms and principles of international law
over norms and principles of national law (paragraph 3 of the article 2).
Undoubtedly, the generally accepted norms and principles of
international law include customary norms of international humanitarian
law. General provisions regarding the binding nature of obligations under
international treaties, approved by the Verkhovna Rada of Ukraine, are
contained in the Law of Ukraine “On defense of Ukraine” (parts 2, 5 of the
article 2), the Military Doctrine of Ukraine (paragraph 2).
The Constitution of Ukraine in the national legislation provides the
basic guarantees of the person on protection, namely: everyone, under all
circumstances, has the right to life and inviolability, to personal respect, to
respect for his honor, their religious beliefs, the right to the family and other
fundamental human rights, the protection of which is enshrined in other
regulations, in particular, but not limited to: the Criminal Code of Ukraine,
the Code of Civil Protection, the Law of Ukraine “On the armed forces of
Ukraine”, Law of Ukraine “On ensuring the rights and freedoms of citizens
and the legal regime in the temporarily occupied territory of Ukraine”, Law
of Ukraine “On ensuring the rights and freedoms of internally displaced
persons”, Therefore, it is incorrect to say that the state of Ukraine is not
doing anything for the protection of its citizens at the legislative level in
connection with the armed conict in the East (Executed in Donbass, 2021).
440
Olha Sosnina, Oleksandr Mykytiv, Halyna Mykytiv, Tetiana Kolenichenko y Andrii Holovach
International Aspects of the Protection of Victims’ Rights in the Conditions of Armed Conict in Ukraine
In our opinion, the main problem is not only the lack of a sucient number
of relevant regulations or the imperfection of their provisions regarding the
protection of fundamental rights and freedoms of the population during an
armed conict (although there is enough work in this direction regarding
the improvement of the current legislation), but also in the absence of an
eective mechanism of their application. We will carry out the scientic
analysis of the international and national provisions, which regulate public
relations in this sphere, in substantiation of the stated considerations.
International and national mechanisms of guaranteeing the protection
of the rights of victims in the conditions of armed conict.
The protection of civilians, the wounded and the sick, as well as prisoners
of war and children, is conrmed by the provisions of the rst Additional
protocol to the Geneva Conventions. They extend the scope of such
protection to any person under the authority of a party, which is involved
in the conict and do not enjoy a more favorable treatment under the
Geneva Conventions in the context of an international armed conict. The
commission of a number of acts is prohibited and will remain prohibited
at any time and in any place, regardless of whether they are committed by
representatives of civil or military bodies (violence against life, health and
physical and mental condition of persons; outrage to human dignity; taking
hostages; collective punishment; coercion into prostitution or indecent
assault in any form (Additional Protocol to the Geneva Convention, 1977).
Some of these actions are considered serious violations of international
humanitarian law, such as: murder, torture, mutilation, and hostage-taking
(serious violations of the Geneva Conventions and the Additional protocol);
abuse of human dignity, collective punishment and committing sexual
violence, including coercion into prostitution (war crimes in accordance
with customary international humanitarian law), for the commission of
which the criminal liability must be provided.
As it is noted in the scientic literature with reference to specic
facts, most cases of sexual violence, that are related to the armed conict
in eastern Ukraine took place in the context of the deprivation of liberty
by illegal armed formations. In such cases, sexual violence was directed
against both men and women. Beating and electric shock to the genital area,
rape, threats of rape, and forced exposure were used as methods of torture
and cruel treatment to punish, humiliate, or confess. Facts of detentions,
abductions, rapes, injuries, or killings of victims’ relatives, including their
children and women, are known. In most cases, sexual violence was also
used to force detainees to give up their property or perform other acts that
were required by perpetrators as an obvious condition of their safety and
release, in areas, which had been controlled by illegal armed formations
(CIVIIM, 2019).
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Vol. 39 Nº 71 (2021): 433-457
At the national level, the Constitution of Ukraine enshrines the
fundamental principles of non-discrimination and humane treatment
and provides that everyone has the right to respect for his or her dignity,
religious beliefs and practices in all situations (Constitution of Ukraine,
1996). About the establishment of criminal liability for serious violations
of international humanitarian law, it should be noted that the content of
the provisions of the art. 438 (Violation of laws and customs of war) of the
Criminal code of Ukraine is generalized enough, for covering the full range
of serious oenses, such as murder, torture, hostage-taking, pimping or
Involvement of a person in prostitution, etc.
First, let’s turn to the basic guarantees that are provided to women
internationally and nationally during an international armed conict.
Under the rst Additional protocol, women are given special protection
when their freedom is restricted for reasons that are related to the armed
conict. For example, they are kept in rooms that are separate from those
for men (or if women are part of families, such women are kept in the same
room with their families), in addition, they are under the direct supervision
of women. Cases of pregnant women and mothers of young children on
whom such children depend, who are arrested, detained, or interned for
reasons that are related to the armed conict, are considered as a matter of
priority (Additional Protocol I to the Geneva Conventions, 1977).
It should be noted that the Criminal Executive Code of Ukraine and the
Criminal Procedure Code of Ukraine dene specic mechanisms for the
protection of women and families in peacetime. However, these provisions
were not intended to be applied in time of armed conict but remain
relevant today as they can be applied for the implementation of international
humanitarian law and be an informative source of recommendations for
an appropriate approach. In particular, the Penal Code provides for the
separate detention of women and men during detention (Law of Ukraine,
2003).
In addition, the Criminal Procedure Code of Ukraine stipulates in the
art. 535 that imprisonment may be postponed in the case of pregnancy of
a convicted person or in the availability of a child under the age of three.
Also, this article stipulates not only that during the execution of sentences
the court in criminal cases should consider women’s cases as a matter of
priority (in accordance with the international standard), but also that the
judge should consider releasing pregnant women and women with children
under the age of three from liability (Law of Ukraine, 2012).
The guide to the application of norms of international humanitarian law
in the Armed Forces of Ukraine contains a similar provision that provides for
the separation of men and women during captivity (Order of the Minister of
Defense of Ukraine, 2004). However, the Guide to the application of norms
442
Olha Sosnina, Oleksandr Mykytiv, Halyna Mykytiv, Tetiana Kolenichenko y Andrii Holovach
International Aspects of the Protection of Victims’ Rights in the Conditions of Armed Conict in Ukraine
of international humanitarian law in the Armed Forces of Ukraine do not
contain provisions regarding most international requirements, namely:
families should be kept in family blocks; women should be under the direct
supervision of women; the cases of pregnant women and mothers of young
children on whom such children depend, who are arrested, detained or
interned for reasons that are related to armed conict, are considered as a
matter of priority.
Special additional guarantees are provided to pregnant women and
mothers of young children (Denysov and Belousov, 1978). Thus, in the
case of an international armed conict, the cases of pregnant women
and mothers of young children on whom such children depend, who are
arrested, detained, or interned for reasons that are related to armed conict,
are considered as a matter of priority. The authors of Additional protocol I
sought to provide a legal basis for the early opportunity of release of pregnant
women and mothers with young children by this provision. However, the
authors of the Additional protocol failed to impose an absolute ban on the
death penalty for pregnant women and mothers of young children in cases
of international armed conict. Such a ban contradicted some provisions
of the national legislations of a number of countries (Yatsetiuk, 2007).
However, international humanitarian law recommends that such sentences
be avoided as far as possible for both women, who are prisoners of war and
civilian women.
International humanitarian law places considerable emphasis in its
provisions on providing the protection of women, in particular protection
against rape, coercion into prostitution or any other form of encroachment
on their morality (Geneva Convention, 1949). Thus, committing sexual
violence, in particular rape (the article 152 of the Criminal Code of
Ukraine) and pimping or involving a person in prostitution (the article
303 of the Criminal Code of Ukraine), constitutes a serious violation of the
international humanitarian law in accordance with its customary norms
(Order of the Minister of Defense of Ukraine, 2004).
At the same time, in our opinion, the level of detail of the art. 438 of
the Criminal Code of Ukraine is insucient. There is a high probability
that in such an edition, it does not provide the accuracy and specicity
that underlies eective bring to justice for appropriate forms of prohibited
conduct.
It should be emphasized that the Guide to the application of norms
of international humanitarian law in the Armed Forces of Ukraine do
not provide that rape, coercion into prostitution or any other form of
encroachment on a person’s morality constitutes a serious violation of
international humanitarian law (Order of the Minister of Defense of Ukraine,
2004). Such actions must be described as serious violations of international
humanitarian law for ensuring the eectiveness of bringing the perpetrators
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to justice under the art. 438 of the Criminal code of Ukraine, such actions
should be characterized as serious violations of international humanitarian
law, and the art. 438 of the Criminal Code should be interpreted in view of
their new qualication.
The rst and second Geneva Conventions require governments of
the countries to protect and respect members of personnel of the armed
forces who are wounded or ill during the armed conict (Verkhovna
Rada of Ukraine, 1949). It should be noted that the art. 12 of the specied
conventions are applied both to sick and wounded persons of the Ukrainian
military, and to the wounded, sick and shipwrecked people, who are part of
the enemy forces (for example, prisoners of war). It undertakes to ensure
humane treatment and care without any discrimination on grounds of
sex, race, nationality, religion, political opinion, or other similar criteria
(Verkhovna Rada of Ukraine, 1949). Ukraine is obliged to prohibit any
attempt on the life of the sick and wounded persons, or any violence against
them, i.e., to kill, destroy, torture, or conduct biological experiments. It is
forbidden to intentionally leave such persons without medical care and
services, to intentionally create conditions for their infection (Verkhovna
Rada of Ukraine, 1949).
We believe that it is necessary to apply the provisions of namely criminal
law for the commission of the specied acts that are committed against sick
and injured persons, as these acts are tantamount to serious violations
of international humanitarian law (e.g., murder, torture, and biological
experiments).
It must be noted that the fundamental principles of non-discrimination
and humane treatment are enshrined in the Constitution of Ukraine, and
therefore are applied at any time, including to the wounded and the sick
persons from among the personnel of the armed forces.
With regard to acts that equate to serious violations of international
humanitarian law, the art. 434 of the Criminal code of Ukraine
unambiguously establishes criminal liability for cruel treatment of wounded
and sick prisoners of war as for a war crime, as well as for negligent
performance of duties to the wounded and sick persons by those, who are
obligated to provide them with medical assistance and care. The procedure
of prosecuting for committing such acts often depends on law enforcement
practice.
In conditions of armed conict, one of the common categories of victims
of war is prisoners of war. The Third Geneva Convention stipulates that
prisoner of war always have the right to humane treatment. International
humanitarian law prohibits subjecting them to physical injury or any
medical/scientic experiments, which are not justied by the need of
committing medical, dental, or inpatient treatment of a prisoner of war,
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International Aspects of the Protection of Victims’ Rights in the Conditions of Armed Conict in Ukraine
as well as requires establishing responsibility for committing such acts
(Additional Protocol I to the Geneva Conventions, 1977).
States have obligations to stop other violations of international
humanitarian law, which do not amount to serious violations, but require,
at a minimum, the adoption of disciplinary sanctions. In particular,
protection of prisoners of war should be provided in situations where they
are particularly vulnerable, such as intimidation, insults, and when they are
the object of “public interest”. The application of repression by the state,
which keeps in captivity, is also not considered a serious violation and
should be subject to disciplinary sanctions. In addition, the Government of
Ukraine should provide special protection to women prisoners of war (for
example, early repatriation for the pregnant women with all due respect,
which corresponds to their gender, and in all cases, they must be treated as
favorably as the men (ICRC, 1958; Geneva Convention, 1949)).
International humanitarian law legally enshrines the basic principle of
equality between men and women, developing it in paragraphs that prohibit
discrimination. Namely, the art. 16 III of the Geneva Convention and the
art. 75 of Additional protocol I, as well as the art. 4 of Additional protocol
II provide the treatment without any adverse dierence that is based on
the signs of gender (Geneva Convention, 1949; Additional Protocol to the
Geneva Convention, 1977). It is also noted that women should be treated
in all cases no worse than men. This means that women use all the rights
and freedoms that are provided by the Convention on the treatment of
prisoners of war. Accordingly, any discriminatory measures resulting from
the application of the Convention are prohibited. That is, women, who are
prisoners of war have the right to protection of rights and freedoms, as well
as men, who are prisoners of war.
The article 434 of the Criminal Code of Ukraine directly denes the cruel
treatment of prisoners of war as a war crime. However, such actions may
not predict the application of appropriate sanctions (the punishment of up
to three years imprisonment). Alternatively, the art. 438 of the Criminal
code of Ukraine (which is applied to civilians and to servicemen) can also
be applied, because it establishes that the cruel treatment of prisoners
of war, contrary to the provisions of the conventions, is punishable by
eight to twelve years imprisonment. because it establishes that the cruel
treatment of prisoners of war, contrary to the provisions of the conventions,
is punishable by eight to twelve years imprisonment. Depending on how
this provision is applied in practice and the actual circumstances of the
alleged violations, this may or may not be sucient to eectively stop these
violations by bringing the perpetrators to justice.
At the same time, it should be noted that in addition to these provisions,
Ukrainian legal means do not reect many requirements of international
humanitarian law, including: procedures regarding detention in awaiting
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trial; rights of the defense, such as the right to call witnesses and have an
interpreter; the preconditions for the execution of the sentence and the
necessary guarantees, such as the impossibility of depriving the privileges
that are enshrined in his rank, or the right to do physical exercises and be in
the fresh air during at least two hours.
At the same time, the Constitution of Ukraine contains the basic judicial
guarantees, which are applied to prisoners of war (for example, the right to
be immediately informed about the reasons why measures have been taken,
the presumption of innocence, the right to consultation) (Constitution of
Ukraine, 1996). The specic requirements that are related to the status of
prisoners of war are not regulated at the constitutional level.
The Criminal Code of Ukraine provides for criminal liability of a prisoner
of war in three cases in the part of determining the penalties for committing
crimes: voluntary participation of a prisoner of war in any work of military
signicance or other measures that may knowingly cause harm to Ukraine
or allied states, in the absence of signs of treason; violence against or ill-
treatment of other prisoners of war by another prisoner of war, who is in the
position of a senior; the commission by a serviceman, who is in captivity of
actions that are aimed at harming other prisoners of war, for selsh motives
or in order to ensure a lenient attitude on the part of the enemy (Law of
Ukraine, 2001).
Although the basic judicial guarantees are provided by the Constitution
of Ukraine, the Criminal Code and the Code of Criminal Procedure, these
legal acts do not take into account the special requirements that are related
to the status of prisoners of war. Other measures of implementation are
inadequately dened, making it impossible to ensure a comprehensive
implementation regime for the use of criminal penalties for prisoners of war
(for example, notication of the case, the rights of the person and means of
its protection, the conditions of action of the sentence, the right to appeal,
execution of punishment, etc.).
It is advisable to provide a brief overview of the basic safeguards regarding
children during an armed conict of international nature. Thus, the main
international legal instrument, which denes the rights of children, is the
Convention on the rights of the child, which denes that all states-parties
are obliged to take all possible measures to ensure the protection and care
of children, who are aected by the armed conict (Verkhovna Rada of
Ukraine, 1989).
The issue of protection of children in the time of the armed conict is
governed by the Geneva Convention about the protection of civilian persons
in the time of war and the Additional protocols I and II. In particular, the
Convention emphasizes that children have the right, under all circumstances,
to personal respect, respect for their honor, the right to a family, their
446
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religious beliefs and rites, habits, and customs. They should always be
treated humanely and protected, from any act of violence or intimidation,
from the insults and curiosity of the crowd (Geneva Convention, 1949).
A child, who has suered because of hostilities and armed conicts,
is a category that is dened in the Law of Ukraine “On child protection”
(Verkhovna Rada of Ukraine, 2001). The law provides for the possibility of
obtaining the status of a child, who has suered because of hostilities and
armed conicts (Cabinet of Ministers, 2017). The right to receive this status
have children and persons who at the time of the war were not 18 years of
age (adult) and who as a result of hostilities and armed conicts: received
injuries, contusions, mutilation; experienced physical and sexual violence;
were abducted or illegally taken out from Ukraine; were involved to the
participation in actions of paramilitary or armed formations; were illegally
detained, including in captivity; suered psychological violence.
If we talk about criminal legal mechanisms of protection of children,
who are victims of crimes, that had been committed in the conditions of
an armed conict, we believe that the article 438 of the Criminal Code of
Ukraine is suciently voluminous for ensuring the prosecution of persons,
who are responsible for conscription and the use of children during the
armed conicts as violators of laws and customs of war (Law of Ukraine,
2001). Such approach to criminalization is general and does not detail this
process, which is the basis for eective prosecution for the committing of
crimes that were committed in the armed conict.
There are several regulations (Law of Ukraine “On child protection”
and the Law of Ukraine “On military duty and military service”) in
Ukraine, aimed at regulating issues regarding the use of children during
the armed conicts. Their provisions seem to additional detail the art.
438 of the Criminal Code of Ukraine. However, when viewed in general
terms, Ukrainian legal means do not contain suciently detailed provisions
regarding the prohibited acts and the nature of criminal punishment.
Although, certain provisions indicate that the use of child-soldiers and
their compulsory conscription are prohibited, the provisions do not explain
the essence of a serious violation of the international humanitarian law,
which becomes the result of conscription of children for military service
and their use (without coercion or obligation), for the commission of which
it is necessary to apply the criminal punishment.
As for the special protection of children during an armed conict, the
Law of Ukraine “On child protection” provides general protection of the
child during an armed conict. The amendments enshrine specic measures
of protection of children, who are aected by hostilities or armed conict,
such as specic obligations of social services (Verkhovna Rada of Ukraine,
2001).
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In this segment of activity, Ukraine is taking all necessary and possible
measures for searching and returning children to Ukraine, who have been
illegally taken abroad, including in connection with circumstances that
are related to hostilities and armed conicts (Verkhovna Rada of Ukraine,
2001). In particular, the protection of children who are in the zone of
hostilities and armed conicts, and children who have suered as a result
of hostilities and armed conicts.
At the same time, it is necessary to emphasize that the legal means of
Ukraine do not take into account the following: if, in exceptional cases,
children under the age of 15 are directly involved in hostilities and are
taken prisoner by the enemy, they continue using special protection due
to the status of the child, regardless of whether they are prisoners of war;
in the case of arrest, detention or internment for reasons of armed conict,
children must be kept in rooms that are separate from those for adults.
It should be noted that the above-mentioned obligations arising from the
Convention on the rights of the child, the Optional Protocol thereto, as well
as customary international law, are also applied during non-international
armed conict. In particular, the hiring or recruitment of children under
the age of 15 into the armed forces, or their use for active participation
in hostilities, are also considered as a serious violation of international
humanitarian law during a non-international armed conict in accordance
with customary international humanitarian law and the article 8 of the
Rome Statute of the International criminal court (Rome Statute, 2002).
Progressive ones, given the prospects of the specied by us problem
regarding developing legal mechanisms of restoring the rights of victims,
which are violated as a result of armed aggression in the East of Ukraine, are
the provisions of the draft Law of Ukraine “On protection of property rights
and other real rights of persons, who are aected by the armed aggression”,
that was registered under № 5177 from 01.03.2021, the purpose of which is
the protection of property rights of persons that are violated as a result of
armed aggression through the introduction of mechanisms of restitution,
as well as the compensation for property damage that has been caused
to victims of the armed aggression in accordance with international
and European human rights standards, in particular the practice of the
European Court of Human Rights.
One of the main advantages of the specied bill is that in the case of its
adoption of the condition of receipt, the grounds for refusal in providing, the
amount of compensation, etc. will be introduced by law, the rules of which
will have a higher legal force compared to the resolutions of the Cabinet
of Ministers of Ukraine. At the same time, the development of relevant
implementing regulations for fullment of the provisions of the law will
allow to create a full-edged, comprehensive compensatory mechanism.
In addition to the above, the availability of a legislative mechanism
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will contribute to the proper implementation of the international legal
obligations of Ukraine that have been undertaken in accordance with
international treaties (Law of Ukraine, 2021).
Regarding the compliance of the doctrine of criminal law with the
requirements of international humanitarian law in terms of criminalization
of crimes that were committed in conditions of the armed conict.
The issue of criminalization of certain illegal acts, which are recognized
by the international community as war crimes but classied as “ordinary”
criminal oenses at the national level, needs increased attention.
Objective principles of determining the grounds for the application
(criminalization) or refusing the application (decriminalization) of criminal
legal inuence should be recognized as a constant problem of criminal law
(Kozachenko et al., 2021). We have to state that the perpetrators of most
war crimes today, unfortunately, manage to avoid criminal prosecution.
Accordingly, the possibility of compensation by such persons for the damage
that has been caused to the victims is minimized. It is well known that the
war crimes, by their nature, are one of the heaviest and most serious crimes
that have been known to humanity. Under international law, the state on
whose territory war crimes is committed must actively investigate and bring
the perpetrators to justice (Nazarchuk, 2020).
However, Ukraine is not always able to adequately respond to hostilities
in the temporarily occupied and adjacent territories at present. For example,
there are no dened in detail norms that determine the illegality of certain
actions in an armed conict in the Criminal Code of Ukraine, in addition
to the art. 438. Also, there is no clarication of what war crimes are, which
among them are light, medium, heavy, which is a gradation of degrees of
responsibility. The specied problem needs a comprehensive solution.
Some lawyers rightly consider the adoption of the law on transitional justice
to be a way out of this situation (Bida, 2021).
The realities of today in the East of Ukraine indicate the imperfection
of certain norms of the Criminal Code of Ukraine, in particular, the lack of
legal norms in it that would correspond to socially dangerous acts, which
have been committed in the zone of holding the Joint Forces Operation in
the conditions of the armed conict. Currently, there is an urgent need to
revise of sections XIX-XX of the Criminal Code in order to include in their
norms, which would provide for the criminal liability for all actions against
the interests of the people of Ukraine.
In our opinion, for the eective work of the institutions of executive
power in Ukraine in the direction of protection of the rights of victims in the
conditions of the armed conict in the East of Ukraine there are not enough
legislative instruments, which would promote more constructive work
and increase responsibility and accountability regarding the actions and
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measures that have been committed, which would be both: the expected
signals for citizens of the country who are under occupation or have been
forced to leave the occupied territory; the signals for collaborationists and
violators of the regime of sanctions about the inevitability of liability for the
actions that have been committed; the leadership of other countries and
international organizations, as a conrmation of the sequence of actions of
the authorities of Ukraine, in its pursuit to deoccupation and reintegration
of temporarily lost territories.
I. Nazarchuk rightly recognizes the imperfection of the legislation and
its inconsistency with international norms as one of the reasons. Current
art. 438 of the Criminal code of Ukraine (“Violation of laws and customs of
war”) is enough generalized, therefore, there is an obvious need to specify
the elements of war oences in national law, dening all serious violations
of International humanitarian law as war crimes. Thus, there is an obvious
need to specify the elements of the war oences in the national legislation
(Nazarchuk I. Military) (Nazarchuk, 2020).
Undoubtedly, we believe that it is necessary to be guided by practice
of the international criminal courts, the doctrine, authoritative comments
of the international economic law and provisions of the international
agreements in the application of art. 438 of the Criminal code of Ukraine.
In doing so, the list of actions that may be considered as violations of the
laws and customs of war, is not necessarily to be coincided with the list
from the art. 8 of the Rome Statute, or with a list of serious violations of
international economic law. It can be expanded, but not arbitrarily. In any
case, the expansion of the list of the specied actions should nd support
in the international practice. Otherwise, Ukraine will almost certainly face
cases against itself in the European Court of Human Rights.
Considering this, we suggest focusing on the list of acts that can be
classied as violations of the laws and customs of war that has been
suggested in the draft law “On amendments to certain legislative acts of
Ukraine to ensure harmonization of criminal legislation with the provisions
of international law” № 9438.
This is, in particular, the art. 437 “Aggression”, the art. 437 “Crimes
against humanity”, the art. 438 “War crimes against persons”, the art. 438
“War crimes against justice”, the art. 438 “War crimes against property”,
the art. 438 “War crimes against humanitarian operations and the use of
symbols”, the art. 438 “War crimes, which consist in the application of
prohibited methods of warfare”, the art. 438 “War crimes, which consist
in the application of prohibited means of warfare”, the art. 438 “War
crimes against the movable and immovable property, buildings and
centers that are protected under international humanitarian law”, the art.
436 “Peculiarities of criminal liability for crimes against the foundations
of international law”, the section XXI “Crimes against the international
450
Olha Sosnina, Oleksandr Mykytiv, Halyna Mykytiv, Tetiana Kolenichenko y Andrii Holovach
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law and order”(Vakhrushev, 1999; Grushko, 2010; Grygoryan, 2009;
Constitution of Ukraine, 1996; Koval and Avramenko, 2019; Gnatovskyi,
2017).
The specied list of actions is at least conceptually in line with international
standards and obligations of Ukraine under international treaties regarding
criminalization of violations of international humanitarian law. In our
opinion, the introduction of appropriate amendments to the Criminal
Code will undoubtedly assist the victims of armed aggression in the East
of Ukraine in gaining the status of a victim in criminal proceedings, and,
consequently, will make it possible to use the determined by the criminal
procedure law mechanism of compensation for damage that has been
caused by a criminal oense.
Features of detection and collection of evidence during the investigation
of crimes that were committed during the armed conict in the East of
Ukraine.
Given the problem that is outlined in the introductory part of the article,
we consider it appropriate to identify other directions of protection of
the rights of victims in the conditions of the armed conict in the East of
Ukraine. In particular, the research of the peculiarities of detecting and
gathering evidence during the investigation of the identied crimes deserves
attention. After all, in our opinion, as opposed to the criminal process as
it is commonly understood, realization of the procedure of investigation
in cases of war crimes, namely, such crimes that were committed in the
conditions of the armed conict in the East of Ukraine, need to be revised
and improved.
The complexity and diversity of the problem of determining the
procedural order of investigation of war crimes is due to the following
features: a high degree of interference in the internal aairs of the state,
which signicantly aects the national interests of the other side of the
armed conict; the prosecution of persons who have committed war crimes
in the territory of another country party to the armed conict and fall under
its jurisdiction in particular; one of the parties in whose territory the crime
was committed, for some reason, does not provide an objective and qualied
investigation, and in the list of cases opposes the investigation; limited
opportunities to gather evidences in the opponent’s country, when there
are some witnesses, suspects, etc.; lack of legal regulation of the grounds
and procedure for conducting investigative and other procedural actions
on the territory of the other party of the conict; the inevitable conict of
constitutional, procedural and substantive norms that act in the territory of
the parties to the conict; non-fulllment of requests for the international
legal assistance by the parties, etc.
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A principled feature of the procedural order of investigation of war
crimes is that the perpetrators belong to the parties to the conict, and for
the establishment of the involvement of specic service members (pilots,
artillerymen, snipers, etc.) of the other party, who gave and carried out
orders about air strikes, shelling and destruction of civilians, other war
crimes, proof of their guilt, etc., it is necessary to conduct investigative (in
particular, such specic ones as interrogation of prisoners of war, research
of places of mass burials, analysis of radio talks, etc.) and procedural actions
on the territory and with the participation of the party of conict. We
believe that national investigative bodies, guided solely by the provisions
of the Criminal Procedure Code of Ukraine without regard to international
legal norms and mechanisms of investigating such crimes, without
holding investigative and procedural actions on the territory and with the
participation of the other party to the armed conict or the absence of a
truce, will not be able to eectively use the potential of criminal procedure
means and to ensure the investigation and opportunity of prosecution
of representatives of the other party to the conict, who are responsible
for war crimes, except, of course, of military-violent scenarios of purely
hypothetical nature.
At the same time, national law enforcement agencies face the problem
of limiting their powers under the national Code of Criminal Procedure
after initiating criminal cases of the specied category on the principle
of extraterritorial criminal jurisdiction, at the stage of investigation and
presentation of the evidence to the representatives of the other party of
conict. At the same time, namely the fact of initiating a criminal case
regarding representatives of the other side of the conict has not yet
indicated that any of them will be prosecuted. The specied problem is
beyond the scope of the opportunities of national criminal procedure
legislation or giving the legal force within the legal system of Ukraine to the
international treaties.
Thus, it can be argued that there are specic patterns of detection,
documentation and investigation of crimes that were committed in the
conditions of the armed conict. Knowledge of such features, prompt,
skillful and coordinated cooperation in the specied area is extremely
important from the standpoint of ensuring the rights and legal interests of
victims, both military and civilian.
One of the signicant steps that are aimed at improving the eectiveness
of investigations of the war crimes, including those committed in the
conditions of an international armed conict, is a signing on October 21,
2019 of the order on creation in the Prosecutor General’s Oce of Ukraine
of the Department of supervision in criminal proceedings concerning
crimes, that are committed in an armed conict, whose activity will focus on
overseeing the investigation of crimes that are committed in the temporarily
452
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occupied territory of the Autonomous Republic of Crimea and the city of
Sevastopol, in the temporarily occupied districts of Donetsk and Luhansk
regions and in the conditions of armed conict (Ministry for Reintegration
of the Temporary Occupied Territories, 2021). All this creates a vertical for
coordinating the eorts of all law enforcement agencies in the investigation
of war crimes and crimes against humanity, will promote the systematic
xation and systematization of evidence of guilt of specic persons in
committing illegal acts, in search for logical connection between the harm
that has been caused to a person and the relevant criminal acts and, as a
result, to create appropriate conditions for the restoration of the rights of
victims of the armed conict in the East of Ukraine.
Conclusions
Based on the results of the problems that are covered in the scientic
article, we can make certain conclusions, which are aimed at determining
the prospects of the protection of the rights of victims in the conditions
of the armed conict in eastern Ukraine, given the requirements of the
international community.
1. Full fulllment by Ukraine of its obligations in the ght against
impunity for the heaviest crimes against international law, that have
been committed in the conditions of an armed conict, should be
ensured by applying the Criminal Code of Ukraine (including the
Section XX of the Special Part, but also a list of provisions of the
General Part) in accordance with the current state of development of
international criminal law. In particular, we see the need to expand
and specify the compositions of war crimes in the national law. After
all, in accordance with only the provisions of the national Criminal
and Criminal Procedure Code, without regard to international legal
norms and mechanisms for the investigation of war crimes, without
conducting investigative and procedural actions on the territory and
with the participation of the other party to the armed conict or the
absence of a truce, investigative bodies will not be able to eectively
use the potential of criminal procedural means in achieving the goals
of criminal proceedings, to ensure the restoration of the rights of
victims of the armed conict and compensation for the damage that
has been caused to them.
2. Arguments in favor of creating a legislative mechanism of
compensation to victims of the armed aggression in the south and
east of Ukraine are provided, which would cover various issues of
protection of property rights of persons that have been violated by the
armed conict, by introducing mechanisms of restitution, as well as
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compensation for property damage, in accordance with international
and European standards of human rights, in particular the practice
of the European Court of Human Rights.
3. The expediency in: a) introduction of the National center of
information and documentation on victims of the armed aggression
(dead, wounded, persons that lost property, prisoners of war,
children, etc.), which will unite all existing state registers with
the provision of access to the relevant state bodies and local
governments; b) the creation of the State Register of property that
has been destroyed, damaged and lost as a result of the armed
aggression, as a single state information and telecommunication
system, that is intended for the accumulation of information about
property, which has been destroyed, damaged or lost as a result of
the armed aggression, registration of persons, who have a right to
compensation for such property or the restitution, as well as the
accrued amounts of compensation, the committed restitutions, etc.
The specied data can be used for forming a consolidated claim of
Ukraine to the aggressor state regarding the implementation of its
international legal responsibility for the armed aggression against
Ukraine.
Finally, it should be noted that the requirements for the scope of the
article did not allow outlining all aspects of such a multifaceted problem,
as a protection of the rights of the victim in the conditions of the armed
aggression in the East of Ukraine, and encouraged to the separation of only
individual problems and the development on the basis of their scientic
analysis of the relevant recommendations of an organizational and legal
nature, which are governed by national law and are complied with the
provisions of international humanitarian law.
Bibliographic References
ADDITIONAL PROTOCOL I TO THE GENEVA CONVENTION. 1977.
Additional Protocol I to the Geneva Convention of 12 August 1949 on
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