THE CRIMINAL-LEGAL DIMENSION OF PARTICIPATION IN THE WAR IN UKRAINE: FROM A COMBATANT TO A PRISONER OF WAR

Abstract

The article is devoted to the criminal-legal characteristics of the types of participation in the war in Ukraine. A description and explanation of the legal position of the participants in the international armed conflict on the territory of Ukraine and the resulting problems of criminal law significance have been provided. The shortcomings of the domestic legislation and practice of criminal law regulation of relations involving combatants in the war both on the side of Ukraine and on the side of the aggressor country are identified, and ways of solving them are proposed.

The following changes are proposed:

1) change in investigative practice regarding the treatment of prisoners of war who are suspected of committing criminal offenses and in respect of whom, as evidenced by practice, preventive measures are not applied on the grounds that they are allegedly already in isolation, the threat of evading court and investigation or There seems to be no opposition to the investigation. The selection of a preventive measure and the transfer of such persons to pretrial detention centers is necessary at least for the reasons that this category of prisoners of war has a completely different motivation to escape and, accordingly, their status as detainees gives a wide list of powers to the corresponding category of officials who carry out their protection, in particular in pretrial detention centers;

2) introduction of an addition to the Procedure for Detention of Prisoners of War by establishing the prohibition of prisoners of war to escape, arbitrarily leave the boundaries of the respective camps;

3) addition of Article 438-1 of the Criminal Code of Ukraine "Escape of a prisoner of war", the provision of which can be worded as follows: "Escape of a prisoner of war from a camp or precinct for keeping prisoners of war." The sanction must be proportional to the sanction of Part 1 of Art. 393 of the Criminal Code of Ukraine. However, due to the fact that the object of this de lege ferenda criminal offense is the international legal order (in terms of the norms of international humanitarian law), the corresponding norm should be placed in Chapter XX of the Special Part of the Criminal Code of Ukraine.

Correct and uniform qualification of the actions of the participants in the international armed conflict, which unfolded on February 24, 2022 as a result of the full-scale aggression of the Russian Federation against Ukraine, is a guarantee of compliance with the principles of the rule of law and justice. At the same time, as evidenced by military, investigative and judicial practice, as well as the results of a systematic analysis of domestic legislation and the relevant international legal framework, there are both conflicts and gaps in the legal regulation of the status of combatants, prisoners of war and their treatment. In addition, the inadequacy in the qualification of actions of non-conventional combatants under Art. 258-3 or 260 of the Criminal Code of Ukraine, which obviously needs to be changed. Likewise, the area of ​​criminal-legal response to conventional killings of combatants fighting on the side of Ukraine and cases of their capture remains completely incomplete. The opinion is advocated about the need to qualify similar cases according to Part 2 of Art. 437 of the Criminal Code of Ukraine, as waging an aggressive war. Military servicemen of Ukraine should be recognized as victims of this crime.