In the second year of the full-scale armed aggression of the Russian Federation against Ukraine, the question of bringing the perpetrators to criminal responsibility for committing war crimes is urgent. At the same time, the criminal law qualification of actions within the scope of the provisions of Article 438 of the Criminal Code of Ukraine stays debatable. The purpose of this study was to investigate the content of some verdicts in proceedings on violations of the laws and customs of war, which were passed after February 24, 2022 in Ukraine, to identify the problems of law enforcement and the performance of procedural requirements regarding their content, since they acquired not only social significance and resonance, but also international ones, and the requirements for their quality can be defined as increased. The study used various methods of scientific research, the most effective and active among which were as follows: systemic-structural, comparative, analysis, and terminological. According to the results of processing the verdicts of the courts of first instance in the proceedings under Article 438 of the Criminal Code of Ukraine, some issues were identified regarding the procedural order of special court proceedings. A causal connection between the violation of the laws and customs of war and the particular situation of a military conflict was established. The circumstances subject to proof for the commission of the specified criminal offence were substantiated and investigated, and the need to specify particular circumstances was argued. Emphasis was placed on the need to consider the particular war situation, the difference and the nature of the connection between these violations and the crime of aggression when proving a violation of the laws and customs of war, with the assumption of the possibility of their influence on political, legal, and other processes, even after its end. The practical significance of this study lies in the need to reflect the results of the application of legal norms related to the implementation of in absentia proceedings in verdicts, primarily regarding the procedure for informing the suspect, the accused about criminal proceedings, ensuring the right to defence and the effectiveness of its implementation
Investigating violations of the laws and customs of war is a relatively new area of activity for law enforcement agencies in Ukraine. Although some experience of such investigations has existed since 2014, the international armed conflict that began on February 24, 2022, identified almost all forms (methods) of violation of the laws and customs of war, which requires a comprehensive analysis and correct understanding of the rules of international humanitarian law that define the rules for participants in armed conflict. The purpose of the research is to define some circumstances to be proved in the course of the investigation of violations of the laws and customs of war and to disclose their content with due regard for the rules of international humanitarian law which determine the specifics of the object of proof in such criminal proceedings. The research employs philosophical (dialectical and hermeneutical), general scientific (systemic, historical, functional), and special scientific (comparative jurisprudence, technical-legal, and interpretation of legal provisions) methods of cognition. The work is based on the provisions of the treaty and customary law of armed conflict, the practice of its application at the national and international level, national law providing for liability for violation of the laws and customs of war, the procedural procedure for investigating criminal offences, and forensic recommendations for investigating particular types of crimes. Based on the results of the research, the author develops several circumstances to be proved in the course of investigation of the laws and customs of war as separate but related to other elements of the object of proof, namely: lawful combatants, combatant's immunity; territorial and time limits of international humanitarian law; legitimate purpose, military necessity. Their content, evidentiary value, and relationship are covered
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