Volume 11 - Issue 54
/ June 2022
9
https:// www.amazoniainvestiga.info ISSN 2322- 6307
DOI: https://doi.org/10.34069/AI/2022.54.06.1
How to Cite:
Myroshnychenko, N., Baranenko, D., Murzanovska, A., Dilna, Z., & Suleimanova, S. (2022). Crimes against humanity in the
conditions of military conflicts of the 21st Century: The practice of international courts. Amazonia Investiga, 11(54), 9-17.
https://doi.org/10.34069/AI/2022.54.06.1
Crimes against humanity in the conditions of military conflicts of the
21st Century: The practice of international courts
Злочини проти людства в умовах воєнних конфліктів XXI століття: практика
міжнародних судових інстанцій
Received: June 1, 2022 Accepted: July 2, 2022
Written by:
Nataliia Myroshnychenko1
https://orcid.org/0000-0003-3693-6815
Dmytro Baranenko2
https://orcid.org/0000-0002-9626-9607
Alina Murzanovska3
https://orcid.org/0000-0001-8645-0261
Zoriana Dilna4
https://orcid.org/0000-0002-6066-1279
Susanna Suleimanova5
https://orcid.org/0000-0002-3958-5558
Abstract
Despite the existence of norms of international
public law regulating the conduct of war, during
military conflicts, states completely ignore the
established rules of war and go beyond common
sense, committing crimes against humanity,
organizing terrorist acts, and other illegal acts. In
conditions where violations of the norms and
rules of hostilities become a trend, it is important
to investigate how international humanitarian
law regulates armed conflicts, as well as the
practice of international courts regarding the
consideration of cases of crimes against
humanity in the context of military conflicts of
the 21st century. The purpose of the work is to
study the practice of international judicial
authorities in the investigation of crimes against
humanity in the context of military conflicts of
the 21st century. The research methodology
consists of such methods as historical-legal,
system analysis method, logical-semantic
method, methods of documentary analysis,
critical evaluation, and comparison. As a result
of the conducted research, the peculiarities of
1
Ph.D., Professor of the Department of Criminal Law of National University «Odesa Law Academy» (Ukraine).
2
Doctor of Legal Sciences, Associate Professor, Head of the Department of Theory and History of State and Law of Admiral Makarov
National University of Shipbuilding (Ukraine).
3
Ph.D., Associate Professor, Department of Criminal Procedure, Detective and Investigative Activities, National University "Odesa
Law Academy", Ukraine.
4
Ph.D., Associate Professor оf the Department of Criminal and Legal Disciplines, Lviv State University of Internal Affairs, Ukraine.
5
Ph.D., Associate Professor of the Department of Civil Procedure, National University «Odessa Law Academy» (Ukraine).
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consideration of cases regarding the commission
of crimes against humanity in the conditions of
military conflicts of the XXI century by
international judicial bodies were considered.
Thus, the concept of crime against humanity, and
war crime were formed, signs of such crimes
were identified, and proposals were formed to
improve international legislation in terms of
regulating international crimes and ways to
increase the effectiveness of activities to
prosecute those guilty of war crimes.
Keywords: crimes against humanity, military
conflict, international crime, war crime, armed
conflict.
Introduction
To ensure peace in the world community, states
have concluded a large number of international
treaties aimed at protecting individuals both in
peacetime and in armed conflict. But,
unfortunately, such standardization has not led to
the strengthening of human protection in the face
of military conflicts, terrorist acts and
arbitrariness. Although international instruments
prohibit war, military conflicts continue, taking
the lives of civilians. This necessitates the
prosecution of perpetrators of crimes against
humanity in the context of 21st century military
conflicts and the introduction of appropriate
judicial procedures. Also, in such conditions
there is an interpenetration of international
humanitarian law.
The criminal law of different countries defines
the concept of «crime» differently. Usually, a
crime is understood as an illegal action of a
physically sane person in relation to the existing
norms of law (Piddubna, 2016).
Regarding the concept of «crimes against
humanity», this term is becoming increasingly
popular and has become commonplace and is
characterized by increased danger to society as a
whole, the severity of the intentional act, the
importance of violations and consequences. In
particular, today's realities show that this type of
crime poses an increased danger not only to the
existence of the state, but also to interstate
relations in general (Torosh, 2015).
Crimes against humanity, or crimes against the
peace and security of mankind as defined in the
Rome Statute of the International Criminal
Court, are also part of a large-scale and
systematic practice of committing premeditated
serious crimes against society, such as murder,
enslavement, deportation or forcible
displacement, unlawful imprisonment or other
cruel deprivation of liberty, torture, rape, sexual
offenses (sexual slavery, forced prostitution,
forced pregnancy, forced sterilization or any
other form of sexual violence), harassment of any
groups or communities on political, racial,
national, ethnic, cultural, religious, gender or
other grounds declared inadmissible under
international law (Rome Statute of the
International Criminal Court: Signature,
Approval (AA), Acceptance (A), Accession (a),
Succession (d), Ratification (UNTC, 1998). In
particular, these crimes pose a threat not only to
the individual, but also to the environment and
the entire human community, because they
violate the rules of coexistence. Prosecution of
crimes against humanity is a difficult issue for
international law, especially in the case of armed
confrontation with a complex nature of
qualifications. That is why it is important to
analyze the mechanism of international legal
responsibility of states and individuals for war
crimes, as well as the peculiarities of the process
of bringing these people to justice.
Therefore, in modern conditions, when the
distinction between international and non-
international conflicts is increasingly manifested
in armed confrontations, and when violations of
the norms and rules of warfare become a trend, it
is important to study the judicial practice of
international instances in cases of crimes against
humanity in the conditions of military conflicts
of the XXI century.
Myroshnychenko, N., Baranenko, D., Murzanovska, A., Dilna, Z., Suleimanova, S. / Volume 11 - Issue 54: 9-17 / June, 2022
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Theoretical Framework or Literature Review
Crimes against humanity in the conditions of
military conflicts of the 21st century were studied
by many scientists.
The main problems of the qualification of crimes
committed under martial law were researched in
their work by Baida and Sklez (2019). The
authors considered the legal regime of martial
law as a feature that affects the qualification of a
crime and, accordingly, the imposition of
punishment. The peculiarities of the legislative
regulation of the circumstances under which it is
possible to talk about the onset of a special legal
regime have also been clarified. Among other
things, to achieve this goal, the concepts of
«martial law» and «combat situation» were
studied in detail, and attention was also paid to
the importance of martial law conditions as a
circumstance that aggravates punishment and is
applied to judicial discretion.
Legal mechanisms for combating crimes of an
international nature in the era of global electronic
communication were investigated by Bilenchuk,
Maliy and Kravchuk (2022). According to the
authors, illegal encroachments that violate
international public order, as well as threaten or
pose a danger to international public security,
constitute an international public threat. This
conclusion is justified by the content of
international treaties on establishing and
guaranteeing human rights, in particular the
Universal Declaration of Human Rights, the
Convention for the Protection of Human Rights
and Fundamental Freedoms, the International
Covenant on Civil and Political Rights, the
International Covenant on Economic, Social and
Cultural Rights, etc.
Issues related to respect for human rights in
conditions of armed conflict were covered by
Hnatovsky (2017) in his work.
Koval and Avramenko (2019) considered the
peculiarities of the investigation of international
crimes committed in the context of the armed
conflict in Donbas. The authors drew attention to
the fact that the existence of an armed conflict is
not enough for it to be possible to talk about the
fulfillment of the requirements of the contextual
element of a war crime. In their opinion, a
relationship between the specific act
incriminated against the accused and the armed
conflict is necessary. Proving the connection
between a specific act that contains the signs of a
crime and an armed conflict is more difficult in
the case of an armed conflict of a non-
international nature and practically does not
cause problems in the case of an international
armed conflict. The basis for proving the
connection between the conflict and a specific act
is two factors: the targeting of attacks against
persons who do not participate in the armed
conflict; the action must be aimed at the
fulfillment of certain goals of the armed
formation in the conflict, or in some way help the
fulfillment of such goals, or, at a minimum, take
place simultaneously with the armed conflict.
The current state and prospects for improving
criminal proceedings regarding crimes related to
the occupation of Crimea and the conflict in
Donbas under the in absentia procedure were
considered by Mazur (2020). The judge
emphasizes that the application of the procedure
in absentia not only allows justice to be carried
out in absentia but thanks to the application of
this procedure, important evidence is preserved,
and the state ensures the official conviction of
criminals who have committed serious crimes
within the framework of the court procedure.
The theoretical basis for the study of crimes
against humanity in the conditions of military
conflicts of the 21st century was formulated in
Matsko's (2005) book, which contains definitions
of key concepts in the research topic.
Besides, Panasytska (2022) analyzed the
difference between war crimes and military
crimes. The author noted that an important
difference between military and war crimes is
that war crimes can be committed exclusively in
the context of an armed conflict and are related
to it. Instead, military criminal offenses can occur
both during an armed conflict and during military
service in peacetime.
The place of war crimes in the criminal law of
Ukraine was investigated by Piddubna (2016).
The question of the relationship between human
rights and their provision in the conditions of
armed conflicts was considered by Senatorova
(2018). Suprun (2022) considered the
peculiarities of the investigation of war crimes in
Ukraine during the war.
Moreover, Timofeeva (2022) chose the issue of
combating crimes against humanity in the 21st
century as the topic of her work. The author drew
attention to the differences between the concepts
of international and non-international armed
conflict and the peculiarities of assigning states
to the behavior of private individuals – the
concept of general and effective control.
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In his work, Torosh (2015) considered the
historical and theoretical aspects of the
regulatory and legal mechanism for solving
crimes against humanity. The author concludes
that interstate obligations and relations, based on
the historical achievements of the theory and
practice of legal relations, are a guarantor of
ensuring stable development in society and a
deterrent factor in the behavior of politicians and
leaders of countries to prevent armed conflicts
and crimes against humanity.
Additionally, Chervyakova (2020) considered
the responsibility for war crimes in her work.
Thus, according to the author, it is appropriate to
characterize international crimes through their
material, mental and contextual elements.
Material and mental elements are things that to a
certain extent correlate with a general criminal
offense. The contextual element makes it
possible to distinguish international crimes from
ordinary crimes. For crimes against humanity,
the contextual element is the large-scale and
systematic nature.
That is more, Adil Ahmad Haque (2022)
summarized the key conclusions of the OSCE
report on war crimes in Ukraine. Thus, the author
notes that the OSCE report is mostly devoted to
overt war crimes committed by Russian troops,
and the report also properly records several
possible violations of international humanitarian
law by Ukrainian forces, in particular, one overt
war crime against Russian prisoners of war,
which the Ukrainian authorities have promised to
investigate. Although the report repeatedly notes
that Russia's violations are «significantly greater
in scale and nature», it is legally, morally, and
strategically necessary for Ukraine to strictly
adhere to international law. The author also notes
that international humanitarian law applies to
both the aggressor and the defender.
The problematic issues of transnational justice in
Syria were considered by Jazairi (2015). The
work of Beresford and Wand (2020) examines
the concept of bricolage to offer a new
understanding of the development of norms and
contradictions in international relations,
including the role of African countries.
The trial of Thomas Kwoyelo, the only national
prosecution for war crimes in Uganda at the time
of writing, is discussed in the article by
Macdonald and Porter (2016). Mills and
Bloomfield (2018) considered the issue of
jurisdiction of international courts for justice in
African countries. The authors note that the
establishment of the International Criminal Court
in 1998 marked significant progress in efforts to
ensure that all perpetrators of mass atrocities are
brought to justice. However, there has been
considerable resistance in Africa to the norm
against impunity and the International Criminal
Court as an institution enforcing it.
Further, Daly, Paler, and Cyrus (2020) theorize
how wartime social ties, namely vertical ties to
former commanders and horizontal ties to fellow
ex-combatants, influence ex-combatants'
delinquency both by themselves and through
their connection with economic opportunities.
The relationship between religion and
transnational crime is examined in the work of
Murphy (2020). The author draws attention to the
fact that transitional justice refers to the process
of combating human rights violations committed
during an ongoing conflict or repression, when
such processes are established because society
seeks to move towards a better state, and where
democracy is a constitutive element of this better
state. Examining the relationship between
religion and democracy from a transitional
justice perspective is theoretically fruitful
because it sheds more light on additional
dimensions of the question of power than liberal
democracy scholars have traditionally
considered.
Despite a large number of studies in the field of
war crimes, the judicial practice of international
authorities regarding the consideration of cases
of crimes in the conditions of military conflicts
of the 21st century remains insufficiently studied
and requires deeper research.
Methodology
When writing this article, all phenomena were
investigated using the historical-legal method,
the method of systematic analysis, the logical-
semantic method, the methods of documentary
analysis, critical evaluation and comparison.
Thanks to the historical-legal method, the
practice of international judicial authorities
regarding the consideration of cases of crimes
against humanity in the conditions of military
conflicts of the 21st century was analyzed, and
the regularities of the functioning and
development of such international authorities in
different conditions were revealed. During the
conducted research, such techniques of the
historical and legal method were used as:
collection and analysis of data on the
consideration of cases in the field of crimes
against humanity in the conditions of military
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conflicts, criticism of sources (which included
the analysis of documents, interpretation of their
content and description), generalization of the
received information, universal hypotheses,
inductive, evolutionary, theological methods,
methods of reconstruction. The use of these
techniques made it possible to formulate clear
ideas about the retrospective development of
legislation and judicial practice in the researched
topic.
The current state of problems in the research
topic was analyzed using the method of system
analysis. Considering that the method of system
analysis is a method of scientific knowledge,
which is a sequence of actions to establish
structural relationships between variable
elements of the studied system, its use made it
possible to create a basis for a logical and
consistent approach to the problem of decision-
making during the consideration of cases of
crimes against humanity in the conditions of
military conflicts of the XXI century.
The logical-semantic method was used to
formulate the definitions of the concepts «crimes
against humanity», «military conflict»,
«international conflict». Thus, this method
contributed to the definition of concepts through
the analysis of its features, the relationship
between language expressions and reality.
The methods of documentary analysis, critical
evaluation and comparison of the provisions of
the Rome Statute of the International Criminal
Court, verdicts of military tribunals and other
normative legal acts were used to determine the
modern foundations of legal regulation of
responsibility for crimes against humanity, as
well as to analyze the provisions of decisions of
international courts. Thus, a retrospective study
of the design and content of decisions of
international courts with the aim of identifying
specific features and inconsistencies was carried
out using the method of documentary analysis.
Critical assessment made it possible to
comprehensively analyze the researched topics
and weigh the conditions and decisions in which
they were made. Using the comparison method,
individual social phenomena and processes were
compared in order to highlight their similarities
and differences. In particular, the decisions of
international courts regarding crimes against
humanity in the context of a number of military
conflicts of the 21st century were compared.
Based on the identified similarities and
differences, a conclusion was made about the
common and distinctive features of such
decisions and the general direction of the practice
of international courts. In addition, the use of the
comparison method made it possible to obtain
new information not only about the properties of
the compared phenomena and processes, but also
about their direct and indirect relationships and
about the general trends of their functioning and
development.
Results and Discussion
The historical and theoretical aspect of
consideration of cases of crimes against
humanity by international courts
The formation and development of social
relations led to the need for the emergence of a
system and mechanism for peaceful coexistence
of people of different races, religions, linguistic
and ethnic affiliations. The basis for the
functioning of such a system should be
international standards for assessing and solving
problems arising in each state and at the
international level, including such crimes as
crimes against humanity.
Ways to prevent and combat crimes against
humanity originate from the development of
social relations in stable democratic countries,
such as Great Britain, Belgium, the Netherlands,
France, Germany, Italy, the USA, and others.
Thus, in the 19th century, Abraham Lincoln,
running for president, defined the African slave
trade as a crime against humanity. An equally
interesting historical fact is that during the First
World War, the members of the Alliance (Great
Britain, France and the Russian Empire) issued a
joint statement in which they declared the
Armenian genocide «crimes against humanity»
and warned the leadership of the Ottoman
Empire about personal responsibility (Torosh,
2015).
The first attempts to settle armed conflicts were
made after the First World War. Thus, the
League of Nations was created, the main purpose
of which was to develop cooperation between
peoples, maintain peaceful coexistence of the
world, ensure the rights of national minorities
and resolve territorial disputes in the event of
their violation.
Subsequently, the statutes of military tribunals
were adopted to investigate crimes against
humanity: Nuremberg (1945), Tokyo (1946), the
statute of the International Criminal Tribunal for
Yugoslavia (1993) and Rwanda (1994), as well
as the Rome Statute of the International Criminal
Court (1998) (Torosh, 2015). For example, the
Nuremberg Tribunal, through a civilized
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procedure, was used to bring criminal
responsibility for crimes against humanity.
In today's realities, the organization that aims to
ensure peace is the United Nations (UN Charter,
1941). Over the years of its existence, the UN has
examples of effective use of force, methods and
measures of influence to prevent, stop and
resolve bloody conflicts. But it is worth pointing
out that the grounds for international intervention
are: the request of the authorities of one or
another country; coercion to peace; protection of
its citizens abroad; preventing a humanitarian
disaster. For example, the intervention of the
USSR in Hungary in 1956, the intervention of the
USSR in Czechoslovakia in 1968, the use of
military force by Great Britain against Argentina
in 1983, the use of US military force against Iraq
in 1991, the use of US military force against
Somalia in 1993. In 1995, the United States and
the troops of the NATO bloc took an anti-Serbian
position and conducted a large-scale military
action on the territory of the former Yugoslavia.
After that, in 1999, NATO forces led by the
United States carried out a military strike against
the forces of the Yugoslav army and civilian
objects. The military operation was positioned as
a «humanitarian intervention» in connection with
the events in the province of Kosovo. We can
also recall the recent events of the military
intervention of the Russian Federation on the
territory of Ukraine, Abkhazia, South Ossetia,
and many other similar examples (Torosh, 2015).
Thus, as historical retrospect shows, international
methods of influence are insufficient to resolve
military conflicts, but combined with economic
sanctions (embargoes, different financial
restrictions) can have a positive effect.
Characteristic features of the practice of
international courts regarding crimes against
humanity in the conditions of military conflicts
of the XXI century
As already mentioned, international courts and
transitional justice function in order to ensure
peace and bring those guilty of crimes against
humanity to justice.
The concept of transitional justice showed its
suitability in the settlement of armed conflicts in
Africa, Syria, Bosnia and Herzegovina and other
countries that faced the need to find mechanisms
and processes to overcome the consequences of
the conflict and restore peace.
Let's consider the international judicial practice
in more detail.
While international humanitarian law provides
for the obligations of states in the text of
conventions, in European human rights law the
obligation to prosecute persons guilty of the most
serious violations of human rights is formulated
in the practice of the European Court of Human
Rights (ECtHR) as a «procedural obligations»
(Council of Europe, 1950. Date of ratification by
Ukraine: July 17, 1997. Date of entry into force
for Ukraine: September 11, 1997).
Hnatovskyi (2017), analyzing the practice of the
ECtHR, noted the following.
1) The requirements for investigations of
violations of Articles 2 and 3 in the context
of an armed conflict were first indicated by
the Grand Chamber of the ECtHR in the case
of Varnava and others v. Turkey, which
related to the disappearance of people in
1974 during the Turkish invasion of Cyprus.
The Grand Chamber emphasized that an
investigation must not only be independent,
accessible to the victim's family, conducted
with reasonable speed and efficiency, and
include elements of public scrutiny of the
investigation itself and its results, but also be
effective in the sense that it must be capable
of leading to determining whether the death
was wrongfully caused and, if so, identifying
those responsible and punishing them.
2) The ECtHR does not distinguish crimes
committed in the context of mass violence.
In particular, in the case of MC v. Bulgaria,
it was established that the state violated its
obligations regarding the effective
investigation of the rape case due to outdated
norms of national legislation.
3) A state that is simultaneously a party to the
ECHR and the Rome Statute [Rome Statute
of the International Criminal Court (Rome,
17 July 1998)] of the ICC (or at least
recognized the jurisdiction of the latter ad
hoc) can be considered as fulfilling its
international obligations, only if it carries
out effective investigations of international
crimes and prosecutes those guilty of them
both in accordance with the positive
procedural obligations formulated by the
ECHR in relation to Articles 2 and 3 of the
ECHR, and in accordance with the doctrine
of «active complementarity» formulated by
the Prosecutor of the ICC, which states that
states have primary responsibility for
preventing and punishing atrocities on their
own territory. Also, double requirements are
put forward to any amnesty laws, which
must meet both the requirements of the
ECHR and international criminal law.
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According to Alexander Beresford and Daniel
Wand (2020), this is due to the need to
distinguish means of assessing the viability of
norms of international criminal law. Anna
Macdonald and Holly Porter (2016), in their
work on the trial of Thomas Kwoyelo as the first
prosecution in Uganda of a war criminal – a
former fighter of the Resistance Army, conclude
on the importance of the practice of «transitional
justice» on the African continent.
The United Nations is also increasing attention to
issues of transitional justice and the rule of law in
conflict and post-conflict societies, which are
responses to human rights violations during
armed conflicts, when the relevant processes are
recognized and decisions are made to move
towards a better state, when, in the opinion of
Murphy (2020), the constituent element of this
better state is democracy.
At the same time, analyzing the foreign
experience of the transition to a post-conflict
society, it is worth understanding that the
components of transitional justice in each state
differ in content, taking into account the type of
conflict (international or non-international),
cultural identity, temporal dimension and other
factors.
For example, the experience of Syria, which was
analyzed in detail by Rania Al Jazairi (2015), is
important for Ukraine in the implementation of
transitional justice. The author singled out such
components of transitional justice as:
1) responsibility;
2) reparations;
3) the nature of the transition period
management system;
4) the importance of ensuring the rights of
minorities and women, the priorities of
reconstruction and development,
demilitarization, demobilization,
reintegration and amnesty during
transitional justice.
Regarding crimes against humanity in the
context of the military conflict in Ukraine, on
March 2, 2022, on the basis of referrals received
from several states, the prosecutor of the
International Criminal Court announced the
opening of an investigation into the situation in
Ukraine, and on March 4, the UN Human Rights
Committee established the International
Commission of Inquiry in Ukraine. On March 25,
Eurojust created a Joint Investigation Group on
Crimes Committed in Ukraine, consisting of
representatives of law enforcement agencies
from Lithuania, Poland, and Ukraine, which was
joined by the Prosecutor of the International
Criminal Court on April 25. It is assumed that
similar commissions will be created in the future.
But the specificity of the situation in Ukraine is
that active international investigations have
already begun at the stage of an ongoing armed
conflict. Although it is currently difficult to
predict the further development and duration of
this conflict, it can be predicted that the first legal
proceedings may begin soon, at least against the
perpetrators of middle-level crimes (Suprun,
2022). However, the effectiveness of such bodies
and procedures remains questionable.
Therefore, effective functioning of judicial
institutions aimed at achieving international
peace and security and bringing to justice for
international crimes against humanity is
important for effective prevention,
countermeasures and investigation of crimes of
an international nature. In the case of the creation
of new bodies, the positive experience of the UN
International Court of Justice and the
International Criminal Court should be taken into
account.
Conclusions
As a result of the study of the practice of
international judicial authorities regarding
crimes against humanity in the conditions of
military conflicts of the 21st century, the
following conclusions were drawn.
1) The legal basis for prosecution is obligations
under contractual and customary
international humanitarian law. The
European Convention on Human Rights also
stipulates requirements for the state to
respect human rights.
2) Prosecution for war crimes is a component
of transitional justice, which includes:
establishing the truth; reparations;
prosecution; institutional restructuring, and
formation of judicial and extrajudicial
mechanisms of a national, international, and
hybrid nature.
3) In the current state of the development of
society, all theoretical and practical assets of
any state in this field of law are closely
intertwined with world experience, which
indicates that, through the efforts of the
world community, a mechanism has been
created for the prevention, regulation, and
prosecution of the investigated type of
crimes, which basically combines the public
assets of the state with guarantees of citizens'
rights, and combines the advanced
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achievements of the international
community in this field, manifested in
international legal assistance, political and
economic influence, activities of
international organizations and courts. If the
guarantees of the international community
are insufficient to resolve the conflict, this
indicates a lack of balance and the need to
make changes and implement effective
mechanisms of international protection to
ensure peace, because inaction in matters of
preventing crimes against humanity and
bringing guilty persons to justice is
unacceptable.
4) Currently, the practice of bringing to justice
shows the insufficient effectiveness of
criminal punishments for crimes against
humanity and other serious violations of
international law and requires improvement
of the mechanism of both the investigation
of crimes and the execution of decisions.
As for further scientific research, it is important
to analyze the specifics of bringing individuals to
justice and executing decisions for committing
crimes against humanity in the context of
military conflicts.
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