War crimes: problems of definition and qualification

The definition of the concept of war crimes is studied in a transdisciplinary course in the close connection of criminal and international law. The author’s position regarding the legal definition of the terms «war», «military conflict», «armed «conflict», «laws and customs of war», «aggression» and their combination is formulated and substantiated. It has been confirmed that the Rome Statute of the International Criminal Court provides for the definition of war crimes, taking into account Art. 6 of the Statute of the International Military Tribunal in Nuremberg, and recognizes war crimes as gross, serious violations of the laws and customs of war with a significantly expanded list of such violations. And this, taking into account the national interests of Ukraine, is enshrined in Art. 438 of the Criminal Code of Ukraine. It is proven that wars and armed conflicts: 1) are not identical concepts and it is incorrect to combine them in terms of content, apparently partially; 2) war is a type of military conflict, which is characterized by bilateral use of military force and 3) war can be a military conflict of a non-international character only in the case of civil war, which in the civilized world should be cut off forever through diplomatic efforts and peaceful resolution of conflict problems with respect for rights people and nations. Focused attention on the need for further terminological improvement of the edition of a number of international documents and Art. 438 of the Criminal Code of Ukraine from the point of view of the further implementation of the principle of the rule of law and its key element - the legal certainty of the norms that determine criminal responsibility for the committed act. The author considers it expedient and offers a way to solve the problem of the correctness of the use of the legal construct «laws and customs of war» in the specified article and in international norms (primarily the so-called «Hague laws» and «Geneva laws»). Opinions are expressed regarding the adoption of a decision at the international level to ban wars as military conflicts of an international nature and any armed conflicts as phenomena unacceptable for humanity, and to criminalize violations of the ban on wars at the national level. The term «aggression» is presented as having a defining psychological component, which calls into question the validity of its use to characterize military conflicts as a type of war.