The nature and status of crimes committed in the territory of Ukraine between 2014 and 2022

International crimes committed by individuals have a dual nature. On one hand, they are part of national law, and on the other hand, they are an essential component of public international law. Historically, they stem from the international law of armed conflicts, which began to develop dynamically at the turn of the 19th and 20th centuries. One could argue that international crimes of individuals permeated national law precisely from international law.

Efforts made before the Hague Peace Conferences of 1899-1907 to codify on a national level the methods and means of conducting hostilities and establishing criminal responsibility for their violation were rather few. Such efforts can essentially include only the so-called Lieber Code of 1863. Written as instructions for the commanders of the American army, it contained regulations of the law of war, prohibiting any malicious acts of violence committed against persons in occupied territory, any destruction of property, acts of looting and rape, as well as actions violating the physical integrity of residents of conflict-affected areas. The Lieber Code also formulated the first regulations criminalizing acts committed by members of the US armed forces, such as arson, murder, robbery, theft, burglary, and rape. The Code presumed that acts committed by American soldiers in the territory of another country were considered as committed in the territory of the United States.

The thesis of the international origin of international crimes of individuals is significant for determining the character and status of these crimes, as well as for the rules of criminal responsibility for their commission, particularly regarding crimes committed in Ukraine after 2014. The subject of this opinion is not to determine whether and which international crimes were committed during the armed aggression in the territory of Ukraine after 2014, nor who is responsible for them. This is the task of national and international courts, not the doctrine of international law. The opinion aims to help determine the nature of international crimes committed by individuals and their current legal status. This is not an easy task, as the rules defining permissible methods and means of conducting warfare, defining international crimes, or establishing rules of international criminal responsibility for them are scattered across numerous international agreements. To a significant extent, these rules are also established in other than written sources of international law, such as customary international law. This particularly applies to crimes against humanity and crimes against peace (crimes of aggression), which have not yet been regulated in an international treaty obliging states to prosecute and punish them, including international cooperation.

Read more