THE IMPACT OF MARTIAL LAW ON THE QUALIFICATION OF CRIMES AGAINST PEACE, HUMAN SECURITY AND INTERNATIONAL LAW AND ORDER: THE ROLE OF QUALIFYING AND PRIVILEGING FEATURES

Abstract

The article is devoted to the study of the peculiarities of qualification of crimes against peace, human security and international legal order under martial law imposed in Ukraine in connection with the armed aggression of the Russian Federation. The authors focus on the problem of taking into account the qualifying and privileging features when applying the provisions of Chapter XX of the Criminal Code of Ukraine. The author reveals the peculiarities of qualification of war propaganda, planning and conduct of aggressive war, violation of the laws and customs of war, use of weapons of mass destruction, genocide in the context of a large-scale armed conflict. The author analyses the impact of such circumstances as the commission of a crime against the civilian population, particular cruelty, scale and systematic nature of criminal acts, grave consequences, and the use of official position by military personnel or representatives of the aggressor state authorities on the social danger of the act. The article examines the role of privileging features, in particular, voluntary refusal, coercion, and a state of great emotional distress, in sentencing for crimes against peace and security of mankind. It is noted that the correct consideration of qualifying and privileging features is the key to the implementation of the principle of fairness of criminal proceedings, differentiation of liability and individualisation of punishment for war crimes. The author substantiates the need for a comprehensive approach to qualification which would ensure the inevitability of liability for the most serious crimes and at the same time guarantee fairness and proportionality of punishment. The authors formulate proposals for improving the criminal law mechanism for combating war crimes with due regard to the challenges of martial law.