HISTORICAL AND LEGAL FOUNDATIONS OF THE CRIMINALIZATION OF WAR CRIMES

Abstract

The article provides a comprehensive historical
and legal analysis of the formation and evolution of
the institution of the criminalization of war crimes in
international and national law through the prism of
contemporary challenges caused by the full-scale
armed aggression of the Russian Federation against
Ukraine. Based on a review of customary sources
(from the 1863 Lieber Code and the Hague
Conventions to the grave breaches provisions of the
1949 Geneva Conventions and the 1977 Additional
Protocols) and codified instruments (the Rome Statute
of the ICC), the study clarifies the concept of «war
crime» as a set of intentional and serious violations of
the laws and customs of war entailing individual
criminal responsibility. The role of the Nuremberg
Trials in establishing the principle of personal
accountability is demonstrated, as well as the
subsequent development of international
jurisprudence by the ICTY and ICTR, which refined
the elements of war crimes - particularly in the context
of non-international conflicts, sexual violence, and
command responsibility. The significance of universal
jurisdiction as a mechanism for combating impunity is
substantiated, accompanied by comparative examples
of its implementation. The article outlines the state
and challenges of Ukrainian legislation (Articles 437
and 438 of the Criminal Code of Ukraine), including
the absence of a statutory definition of «war crime»,
terminological inconsistencies regarding «armed
conflict» and «martial law», and the need to
systematize crime elements and procedural
mechanisms. Drawing on the recent case law of the
Supreme Court of Ukraine, it is shown that, for
qualification under Article 438, the decisive factor is
the establishment of a connection between the act and
an actual armed conflict. The author formulates
proposals for improvement: introducing a legal
definition of «war crime» and harmonizing
terminology with international humanitarian law;
ensuring full implementation of the Convention on the
Non-Applicability of Statutory Limitations to War
Crimes and Crimes against Humanity; extending
effective universal jurisdiction; establishing
specialized investigative and judicial institutions; and
strengthening the protection of victims and witnesses.
The practical significance of the study lies in
developing a coherent model for combating impunity
that integrates international standards, comparative
experience, and the specific needs of Ukrainian legal
practice.
Keywords: armed conflict, armed law, criminal
liability, ECHR, implementation, international
humanitarian law, Nuremberg Principles, Rome
Statute of the ICC, universal jurisdiction, Article 438
of the Criminal Code of Ukraine.