Judges must take into account the provisions of the Rome Statute, the elements of crimes set out in its annex, as well as the practice of the ICC, which determines the criteria for qualifying an act as a war crime.
Herman Anisimov , secretary of the third judicial chamber of the Criminal Court of Cassation, drew attention to this, informs " Law and Business ".
He reminded that Ukraine is not a party that signed and ratified the Rome Statute. At the same time, the jurisdiction of the International Criminal Court extends to the territory of Ukraine in accordance with the statements of the Verkhovna Rada to the ICC. Therefore, Ukrainian judges should take into account the provisions of the Rome Statute, which are a reflection of international humanitarian law.
During the second online conference "Features of conducting criminal proceedings under martial law: material and procedural aspects", he focused on the analysis of ch. XX of the special part of the Criminal Code "Criminal offenses against peace, human security and international legal order".
Yes, Article 438 of the Criminal Code, which is contained in ch. XX of the Criminal Code, provides for responsibility for violations of the laws and customs of war. At the same time, the concept of "cruel treatment", "prisoner of war", "civilian population" in the aspect of application of Article 438 of the Criminal Code, "expulsion of the civilian population for forced labor",
"looting national values in the occupied territory" and other terms require recourse to international humanitarian law (both customary and treaty). In view of this, it is possible to state the international legal blanket nature of this norm.
G. Anisimov explained that customary norms are norms that are generalized and formalized by the International Committee of the Red Cross (there are 161 of these norms, they were formed as norms of customary international humanitarian law). The content and basis of customary norms are the Geneva Conventions, the Hague Conventions, the relevant normative material of individual countries, in particular Europe, the practice of using established approaches to the conduct of war, which do not exclude the use of violence, but are aimed at limiting this violence, so to speak, within reasonable limits.
Thus, Article 50 of the Geneva Convention on the Amelioration of the Fate of the Wounded and Sick in Active Armies dated August 12, 1949 defines significant violations of international humanitarian law, which qualify as war crimes. Also, Article 147 of the Geneva Convention on the Protection of the Civilian Population in Time of War dated August 12, 1949 refers to serious violations of the convention norms.
Articles 11, 85 of Additional Protocol I to the Geneva Conventions, which concerns the protection of victims of international armed conflicts, dated June 8, 1977, and Article 130 of the Geneva Convention on the Treatment of Prisoners of War define significant violations of international humanitarian law.
"The prosecutor in the indictment and the court in
sentencing must reveal the content of the committed act, referring to the relevant norms of customary international humanitarian law and formalized rules of treaty international humanitarian law, taking into account the provisions of this or that convention," the speaker explained.