Issue: № 7, 2023
Doi: https://doi.org/10.37634/efp.2023.7.17
Introduction. Distinction between corpus delicti of criminal offenses is a necessary condition for the correct classification of the crimes. The purpose of the paper is elucidation of the signs by which distinction between the criminal offenses of ecocide (art. 441 of the Criminal Code of Ukraine) and violations of the laws and customs of war as causing damage to the natural environment (art. 438 of the Criminal Code of Ukraine) is made. Results. Since the norm of art. 438 Criminal Code of Ukraine is blanket the provisions of multilateral international agreements and customs on the prohibition of harming the natural environment within military actions are analyzed for elucidation of the signs the corpus delicti of violations of the laws and customs of war as causing damage to the natural environment. The signs of ecocide are devoted in pursuant to the provisions of art. 441 of the Criminal Code of Ukraine. Joint signs of ecocide and violations of the laws and customs of war as causing damage to the natural environment: 1) subject of the crime – natural environment; 2) amount of damage to the natural environment as result of actions what are qualified under the art. 438 or art. 441 of the Criminal Code of Ukraine; 3) subjective («mens rea») – intentially action; 4) perpetrator – a person who has reached 16 years of age (except military officials). Dissenting signs of ecocide and violations of the laws and customs of war as causing damage to the natural environment: 1) object of the crime (security of mankind (ecological security) – for ecocide and peace – for violations of the laws and customs of war as causing damage to the natural environment); 2) substantive («actus reus»): violations of the laws and customs of war as causing damage to the natural environment are committed as way of waging war or consequence of waging war and only in the context of armed conflict. Conclusion. The signs for distinction between ecocide and violations of the laws and customs of war as causing damage to the natural environment are signs of object of the crime and peculiarities of substantive («actus reus») and contextual signs (armed conflict).
Keywords : damage to the natural environment as violations of the laws and customs of war, ecocide, methods or means of warfare, mass destruction, widespread, long-term and severe damage
References:
1. Anisimov H.M., Volodina O.O., Zinchenko I.O. Qualification of crimes / ed. M.I. Panov. Kharkiv, 2017. 360 p. (in Ukranian).
2. Brych L.P. The theory of destinction between crimes: monohraphy. Lviv, 2013. 712 p. (in Ukranian).
3. Kutsevych M.P. Criminal responsibility for ecocide: international and national aspects: dіs. … PhD in legal scinces: 12.00.08 / Kyiv national university n.a. Taras Shevchenko. Kyiv. 2007. 290 p.(in Ukranian).
4. Khokhlova I.V., Shemiakov O.P. Criminal law of Ukraine (Special part). Kyiv, 2006. 688 p. (in Ukranian).
5. Andreitsev V.I. Law of ecological security: scholar-practical manual. Kyiv, 2002. 332 p. (in Ukranian).
6. Brynzanska O.V. Damage to the natural environment as violations of the laws and customs of war under international humanitarian law. Journal of Kyiv university of law. 2022. № 2-4. pp. 134-139. URL: https://chasprava.com.ua/index.php/journal/issue/view/88/110 (in Ukranian).
7. Semenov V.S. Laws and customs of war. Law encyclopedy. Kyiv, 1998. Vol. 2. 491 p. (in Ukranian).
8. Repetskyi V.M., Dmytriiev A.I. International humanitarian law. Law encyclopedy. Kyiv, 1998. Vol. 3. 148 p. (in Ukranian).
9. Hand book of judge: manual for trial of war crimes: referential edition. Kyiv, 2023. 840 p. URL: http://surl.li/itbce (in Ukranian).
10. Additional Protocol (I) to the Geneva Conventions, 1977 about Protection of Victims of International Armed Conflicts, 8 June 1977: international document. URL: https://zakon.rada.gov.ua/laws/show/995_199#Text (in Ukranian).
11. Customary IHL, Causing Serious Damage to the Natural Environment. International Humanitarian Law Databases. URL: https://ihl-databases.icrc.org/en/customary-ihl/v1/rule43
12. About environment: Law of Ukraine, 25.06.1991 № 1264-XII. URL: https://zakon.rada.gov.ua/laws/show/1264-12#Text (in Ukranian).
13. Customs of International humanitarian law: scholar-practical manual / T.R. Korotkyi, Ye.V. Lukianchenko. Odesa, 2017. 40 p. (in Ukranian).
14. Navrotskyi V.O. Grounds of criminal qualification: tutorial manual. Kyiv. 2009. 409 p. (in Ukranian).