Circumstances to be proved in the investigation of violations of the laws or customs of war

Philosophical methods guided the research in general. The dialectical method allowed the development of a general idea of the structure, functions, connections, and development of the legal phenomena and processes under study. Thus, the author identifies the connections of national law with international law and other social, political, and economic phenomena, and the impact on the areas, forms, and results of its development. The hermeneutic method is applied to clarify the essence and interpretation of the content of IHL provisions containing vague, ambiguous wording and their interpretation, considering the legal positions of international courts and scientific research.

General scientific methods, as the foundation of any scientific knowledge, include: a systematic method used to determine the individual elements of the object of proof in its general system (internal connection), their connection with other components of this system and the tasks of criminal proceedings in general (external connection). The historical method allowed for clarifying the preconditions for the emergence, causes and areas of development of IHL. The functional method is used to develop an idea of the relationship, interaction and development of different systems of law in the context of the subject of the research.

Specialised scientific methods are designed to understand the specifics of the phenomena and processes under study. The method of comparative jurisprudence (comparativistics) is used to explore the system and provisions of IHL to identify its general characteristics and features; the technical and legal method and the method of interpretation of legal provisions are designed to define specific concepts (combatant, legitimate aim, military necessity, etc.) and their content, and to determine the legal significance for law enforcement, including evidence.

Results and Discussion

Evidence, as the foundation of any investigation, always involves consideration of the specifics of a criminal offence, the circumstances of its commission, and, in the case of violation of the laws and customs of war, the application of IHL, which affects the development of all components of the object of proof. From this standpoint, some circumstances to be proved in criminal proceedings on violation of the laws and customs of war are defined. In addition to the above, the circumstances to be proved during the investigation of the laws and customs of war are covered in other publications of the author [22].

The proposed recommendations can be applied in the practice of investigating violations of the laws and customs of war and other criminal offences, in the investigation of which they can have evidentiary value. The list of circumstances to be proved is not exhaustive; it can be supplemented with other circumstances according to the specifics of a particular proceeding.

Lawful combatants. Combatant immunity

IHL defines rules and restrictions for parties to an armed conflict, including the protection of civilians (general prohibition of attack, avoidance and prevention of excessive impact of hostilities, and taking security measures, etc.), restrictions on means and methods of warfare, rules for the treatment of prisoners of war, the legal status of combatants, etc.

A legitimate purpose. Military necessity

An analysis of the provisions of IHL demonstrated that attacks on objects that are not legitimate targets are generally prohibited. The author believes that a legitimate purpose - is a category that can undergo transformations considering various factors of a particular situation, and, above all, the connection with military actions, operations, and requirements.

A correct understanding of these concepts is important for establishing the circumstances of the offence and whether it contains signs of violation of the laws and customs of war. As the author has already noted, IHL contains several prohibitions, restrictions, and obligations relating to various actions and measures related to military conflict. These include the distinction between civilians and combatants, military objectives, objects related to military operations and civilian objects as possible targets of attack. The distinction between civilian and military objects is based on the principle that civilian objects are all objects that are not military. Doubt as to whether an object belonging to the military is interpreted in favor of that object, i.e. it is considered civilian.

Part 2 of Article 52 of Protocol I [24] states that attacks must be strictly limited to objects. Evidently, this refers to material items (objects). The characteristics of military objectives include their nature, location, purpose or use, which constitute an effective contribution to military operations. Therewith, when determining whether they are the object of attack, it matters whether there will be a clear military advantage if the attack results in partial or complete destruction, capture or neutralization of a military objective (Article 52 of Protocol I) [24].

Thus, a military facility must comply with these criteria in aggregate and at a specific point in time. Effective contribution to military operations and military superiority should be determined specifically by the current situation. It corresponds to the regulatory statements, namely: “under the circumstances as they currently exist”, “make an effective contribution” “provide a clear military advantage”, and “object in use”, i.e., referring to the present, not to events and circumstances in the future.

A broad interpretation of these circumstances will establish artificial and unlimited grounds for determining virtually any object as a military and therefore legitimate target, which will negate the protection of IHL as such. Thus, if the ultimate purpose of armed aggression - gaining political advantage - is applied to any military action, then from this perspective, almost all such actions will be justified.

As stated by the author, the distinction between civilians and combatants is made according to the definition of these persons contained in IHL, the main criterion being participation in hostilities (use of weapons, attacks (but not self-defence), destruction of property related to hostilities), and the principle that if there is doubt as to whether a person is a civilian or a combatant, such person is considered a civilian.

The possibility of an attack on legitimate targets does not preclude the obligation to take security measures to reduce the consequences of the attack or prevent it (Article 57 of Protocol 1) [24].

Thus, the necessity of gaining military advantage as the purpose of an attack does not justify unnecessary, excessive risks, losses, and destruction, especially those not related to neutralizing or weakening the enemy. Military necessity cannot justify a violation of the principle of proportionality.

Proportionality is assessed on a case-by-case basis, in particular, considering the following circumstances: what measures were taken to determine whether the target was legitimate; whether there was a military necessity for the attack; the location of the target; whether the weapons used comply with the requirements of selective action and are proportionate to the characteristics of the target; and whether sufficient measures were taken to prevent excessive impact.

Thus, destruction, extermination, killing as an end in itself, without military necessity and not for legitimate purposes, constitutes a violation of the laws and customs of war or another crime, depending on the circumstances and the connection of these actions with the military conflict.

The party under attack has the obligation to protect civilians and limit the consequences of the attack - to ensure, as far as possible, that military objectives are located away from densely populated areas, to prohibit using civilian participation in military operations and related activities, etc.

Military necessity should not be considered as a generally permissible derogation from the obligation to comply with IHL, but rather should be determined on a case-by-case basis, based on objective circumstances, and tested against the requirements and indicia established by IHL. The essence and purpose of IHL, which is to reduce the consequences of armed conflict, determine its content, which mainly consists of restrictions and prohibitions and some provisions relating to specific rights. Thus, in proving the presence/ absence of military necessity, it is necessary to proceed from the general prohibition of undue influence and then determine whether particular actions comply with the signs of military necessity as defined in IHL.

The conducted research, which had the purpose of identifying some circumstances to be proved during the investigation of violations of the laws and customs of war, in addition to its main purpose for use in law enforcement practice, contributes to the expansion and deepening of scientific and practical knowledge about the content of IHL [2; 4; 10], the specific features of their interpretation, interpretation and application in modern conditions, namely, during the tasks of investigating violations of the laws and customs of war and/or other crimes connected with military conflict (if the law enforcement officer sees such a necessity).

Development of the circumstances to be proved in the course of investigation of violations of the laws and customs of war is based on the scientific works [12-14] associated with the subject of research and reflecting the current situation of military conflict, its impact on various legal relations and procedural situations in criminal proceedings which arise, develop and terminate during and in connection with military conflict. This ensures the comprehensiveness and completeness of the research and its connection with doctrine and practice at various levels.

Thus, the criminal legal qualification and concept of war crimes, in particular violations of the laws and customs of war, determine the area and applied tasks of pre-trial investigation in relevant criminal proceedings and provide the foundation for the list of circumstances to be proved. As noted by A.I. Melnychuk & S.M. Melnychuk, war crimes are serious violations of international humanitarian law (principles, provisions, rules, laws and customs of war in force during hostilities and applicable to the parties to the conflict); violation of prohibitions contained both in the treaty and customary law, which does not assess the legitimacy of armed conflict, can be equally applied to both the aggressor and the victim. As their main vocation is to limit the warring parties to violence that exceeds the amount necessary to weaken the enemy's military power and against those who are not involved or have ceased to participate in the conflict [13, p. 72]. This definition mentions all the main elements that are relevant to evidence in criminal proceedings for violations of the laws or customs of war and to which special attention is paid, primarily the content and purpose of IHL, its impact on qualification and investigation, and the subjects to whom IHL applies. In addition, the author separately defines the temporal and territorial limits of IHL as part of the object of proof.

The forensic approach [14] provides scientific and practical recommendations for determining the elements of the forensic characterisation of violations of the laws and customs of war, the purpose of which, among other things, can be seen as detailing, and specifying the circumstances to be proved in such criminal proceedings, and the specifics of investigative (search) and other procedural actions. According to the author, determining the circumstances to be proved in the course of investigating violations of the laws and customs of war requires a combination of forensic and criminal procedure approaches, which was performed in the framework of the research.

Notably, the problems of investigating violations of the laws and customs of war that have arisen since the beginning of the armed aggression against Ukraine in February 2022 have sparked a wide discussion among scholars and practitioners on various issues [15; 16]. It appears that it was conditioned upon the lack of experience in such activities, the specifics of the situation and legal regulation during the military conflict. One such controversial issue of particular interest according to the research subject is the contextual element in the object of proof in war crimes proceedings [16]. In the author's opinion, one should agree with the position of I.V. Glowyuk & H.K. Teteryatnik on the existence of a special object of proof in the categories of war crimes proceedings, the specificity of which is conditioned, firstly, upon the features of qualification which is non-standard, considering the construction of Article 438 of the CC of Ukraine, which refers to the provisions of international treaties and includes a wide range of acts which may be attributed to war crimes only upon proof of contextual circumstances. Secondly, the necessity of establishing the contextual circumstances of a criminal offence, which are in a causal relationship with other elements of the object of proof, affects the specifics of the proof itself [16, p. 394]. In addition, the author identifies the connection of a criminal offence (actions of a person) with a military conflict among the circumstances to be proved and covers the content of such connection [22]. Proof of this circumstance ensures that violations of the laws and customs of war are distinguished from other crimes that can be committed in a military conflict since not every crime committed during a military conflict is a war crime, a prerequisite is the connection of a person's actions with a military conflict and the compliance of their actions with the signs of violation of the laws and customs of war. Such a connection is directly or indirectly correlated with other components of the object of proof.

It is necessary to emphasize the importance of the development of national law and international law in the establishment and application of effective mechanisms of liability for war crimes [18]. Thus, to determine the circumstances to be proved during the investigation of violations of the laws and customs of war, the author analyzed in detail and considered the provisions of IHL, which will determine the legal foundation for the activities of international courts concerning crimes involving armed aggression against Ukraine. Attention is emphasized on the quality of evidence collected in criminal proceedings under national law to ensure that it can be accepted by international courts without additional verification, which will become more difficult over time. In addition, the author believes that the development and improvement of IHL in the future requires considering the circumstances and specifics of the beginning, course and consequences of the military conflict in Ukraine, which identified both violations of the laws and customs of war defined in IHL and other forms of violations not reflected/not clearly reflected in the rules of IHL, which was mainly determined by the impact of the aftermath of the Second World War, which is evidently different from the current situation. As it appears, the specific feature of the wording of most IHL provisions is their general, non-specific nature, which can be explained by the desire to introduce a universal approach that allows for the application of IHL by different countries whose national laws can vary significantly. However, Ukraine's experience in countering armed aggression, and the implementation of international accountability mechanisms should serve as a foundation for the specification and improvement of IHL in general.

The effectiveness of criminal proceedings is not possible without the proper functioning of the advocacy [19] and judicial authorities [20]. The activities of the judiciary, the advocacy and other subjects of criminal proceedings have undergone some changes and transformations under martial law, including evidentiary activities. Therewith, it remains unchanged that the problems of proof are relevant to other subjects of criminal proceedings, and pre-trial investigation bodies investigating violations of the laws and customs of war. In addition to these, the circumstances to be proved are defined and disclosed in another work of the author [22]. The collection and evaluation of evidence, while ensuring and respecting the rights of persons held criminally liable for violations of the laws and customs of war, should be conducted in strict accordance with the requirements of the law and considering the prospect of cases being heard by international courts.

Conclusions

The development of some circumstances to be proved in the investigation of violations of the laws and customs of war, as the purpose of this research, has necessitated a systematic study of IHL, determining the limits and conditions of its application, considering the requirements of proof under national law. Based on the results of this work, the circumstances to be proved include the following:

1) whether a person belongs to the category of “lawful combatant”, determining the conditions and limits of combatant immunity;

2) territorial and temporal limits of IHL;

3) the content and relationship of the categories of “legitimate purpose” and “military necessity”.

The proposed provisions include specific circumstances that are relevant in the investigation of the laws and customs of war, and they can be supplemented and detailed in specific proceedings.

The circumstances to be proved in criminal proceedings for violations of the laws and customs of war should not be considered in isolation, but in conjunction with and supplemented by others, which are determined by the specifics of each investigation. Thus, a model of evidence is developed that can ensure the achievement of the objectives of criminal proceedings.

Proving in compliance with the requirements of national law, considering the experience of applying IHL, its correct and systematic understanding will influence the establishment of an evidence base in international courts, and the development of interpretation and application of IHL in general, since the relevant provisions and processes are constructed and developed through and as a result of a legal and moral (from the standpoint of humanity, mercy, tolerance) assessment of the actions of participants in armed conflicts.

In addition, it should be noted that along with the importance of IHL, whose provisions have not lost their relevance for the most part, the problems that arise during the international armed conflict in Ukraine cannot always be effectively resolved by available legal means, including the practice of applying IHL, but require new approaches to understanding and interpreting some provisions of IHL. This further emphasizes the importance of national law enforcement practices that respond promptly to ongoing events, with evidence collected as part of a formal investigation and in compliance with the regulatory requirements of proof.

Further research on solving the problems of investigating violations of the laws and customs of war can be devoted to improving national legislation, considering and generalizing law enforcement practice (as it is developed), exploring the possibilities of using the experience of IHL application by international courts, and establishing a methodology for investigating violations of the laws and customs of war.

References

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2. Tecott, R., & Halterman, A. (2021). The case for campaign analysis: A method for studying military operations. International Security, 45(4), 44-83.

3. Sagan, S.D., & Weiner, A.S. (2021). The rule of law and the role of strategy in the U.S. nucleardoctrine. International Security, 45(4), 126-166.

4. Mehmetaj, J., & Megaj, S. (2022). Dispute between Albania and Greece over the delimitation of maritime zones. Lex Portus, 8(3), 7-29.

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7. Boryslavska, O. (2021). Judicial reforms in eastern Europe: Ensuring the right to a fair trial or an attack on the independence of the judiciary? Access to Justice in Eastern Europe, 1(9), 122-142.

8. Kaplina, O., & Tumanyants, A. (2021). ECtHR decisions that influenced the criminal procedure of Ukraine. Access to Justice in Eastern Europe, 1(9), 102-121.

9. Mykhailichenko, T., Zabuha, Yu., Babanina, V., & Syiploki, M. (2022). Protection of the right to health during the period of armed conflict: The experience of Ukraine. Access to Justice in Eastern Europe, 4(16),1-18.

10. Sokurenko, V.V., & Zahumenna, Yu.O. (2022). Discourse on public security in some European political and legal teachings of the Middle Ages. Journal of the National Academy of Legal Sciences of Ukraine, 29(2), 82-104.

11. Mernyk, A.M., & Zinchenko, O.V. (2022). Theoretical and legal aspect of restriction of human rights in the conditions of special legal regimes. Journal of the National Academy of Legal Sciences of Ukraine, 29(2), 105-118.

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16. Glowyuk, I.V., & Teteryatnik, H.K. (2022). Contextual elements in war crimes proceedings: The subject of sui generis evidence. Legal Scientific Electronic Journal, 6, 394-398.

17. Kaplina, O., Kravtsov, S., & Leyba, O. (2022). Military justice in Ukraine: Renaissance during wartime. Access to Justice in Eastern Europe, 3(15), 120-136.

18. Kaluzhna, O., & Shunevych, K. (2022). Liability mechanisms for war crimes committed as a result of russia's invasion of Ukraine in february 2022: Types, chronicle of the first steps, and problems. Access to Justice in Eastern Europe, 3(15), 178-193.

19. Khotynska-Nor, O., & Bakaianova, N. (2022). Transformation of bar in wartime in Ukraine: On the way to sustainable development of justice (on the example of Odesa region). Access to Justice in Eastern Europe, 3(15), 146-154.

20. Uhrynovska, O., & Vitskar, A. (2022). Administration of justice during military aggression against Ukraine: The “Judicial Front”. Access to Justice in Eastern Europe, 3(15), 194-202.

21. Antonyuk, A. (2022). Criminal and legal assessment of collaborationism: A change of views in connection with russia's military aggression against Ukraine. Access to Justice in Eastern Europe, 3(15), 137-145.

22. Taran, O.V. (2022). Circumstances that must be proven during the investigation of violations of the laws and customs of war. Legal Scientific Electronic Journal, 7, 413-416.

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Список використаних джерел

1. Lobo de Souza I. M. Nuremberg's enduring legacy to international justice. Journal of International Humanitarian Legal Studies. 2022. Vol. 13. Issue 2. P. 222-250.

2. Tecott R., Halterman A. The case for campaign analysis: A method for studying military operations. International Security. 2021. No. 45 (4). P. 44-83.

3. Sagan S.D., Weiner A.S. The rule of law and the role of strategy in U.S. nucleardoctrine. International Security. 2021. No. 45 (4). P. 126-166.

4. Mehmetaj J., Megaj S. Dispute between Albania and Greece over the delimitation of maritime zones. Lex Portus. 2022. No. 8 (3). P. 7-29.

5. Crenshaw E.M., Robison K.K. Making war on the fabric of society: A cross-national analysis of terrorism, urban public space and generalized social trust in Europe. Terrorism and Political Violence.

6. Blumenau B. From punishment to preemption: The changing nature of regional organizations' legal responses to terrorism, 1990-2010, studies in conflict and terrorism. Studies in Conflict and Terrorism.

7. Boryslavska O. Judicial reforms in eastern Europe: Ensuring the right to a fair trial or an attack on the independence of the judiciary? Access to Justice in Eastern Europe. 2021. No. 1 (9). P. 122-142.

8. Kaplina O., Tumanyants A. ECtHR decisions that influenced the criminal procedure of Ukraine. Access to Justice in Eastern Europe. 2021. No. 1 (9). P. 102-121.

9. Mykhailichenko T., Zabuha Yu., Babanina V., Syiploki M. Protection of the right to health during the period of armed conflict: The experience of Ukraine. Access to Justice in Eastern Europe. 2022. No. 4 (16). P. 66-81.

10. Sokurenko V.V., Zahumenna Yu.O. Discourse on public security in some european political and legal teachings of the Middle Ages. Journal of the National Academy of Legal Sciences of Ukraine. 2022. No. 29 (2). P.82-104.

11. Mernyk A.M., Zinchenko O.V. Theoretical and legal aspect of restriction of human rights in the conditions of special legal regimes. Journal of the National Academy of Legal Sciences of Ukraine. 2022. No. 29 (2). P. 105-118.

12. Mrasori F. The role of the unilateral harmonization to the EU integration. Lex Portus. 2022. No. 8 (2). P. 54-77. doi: 10.26886/2524-101X.8.2.2022.3.

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