DISOBEDIENCE AS A MILITARY CRIMINAL OFFENSE: PROBLEMS OF QUALIFICATION AND INTERACTION WITH WAR CRIMES

Abstract

The topicality of the topic is due to the need to consider the issue of the specifics of the meaning of disobedience as a criminal offense in the conditions of the legal regime of martial law in Ukraine and outline the specifics of the qualification of this crime. The concepts of war and war crimes are delimited. The limitations on the possibility of prosecution are characterized and the need to take into account all the circumstances of the case in Ukraine under martial law is emphasized. It is noted that by the Law of Ukraine “On Amendments to Certain Legislative Acts of Ukraine Regarding Simplification of Pretrial Investigation of Certain Categories of Criminal Offenses” dated November 22, 2018, the concept of “crime” was replaced by the phrase “criminal offense”. The purpose of the article is to reveal the legal nature of the composition of the criminal offense provided for in Art. 402 of the Criminal Code of Ukraine. Achieving the outlined goal became possible thanks to the use of a complex of methods of scientific knowledge, in particular, philosophical, general scientific and special ones based on synthesis, analysis, induction and deduction. The need to maintain a balance between the needs of an effective investigation and the observance of human rights was emphasized. The situation of a person committing a criminal offense provided for in Article 402 of the Criminal Code of Ukraine from the legitimate defense of his rights by a military serviceman was analyzed and distinguished. A conclusion was made regarding the relevance of combating criminal and illegal manifestations against military discipline for Ukraine in the conditions of martial law and their connection with war crimes. According to the results of the conducted research, in order to avoid any discrepancies in law enforcement approaches in the future, separate proposals were made regarding the proper settlement of the issue of taking into account international principles and standards for reliable qualification, increasing the effectiveness of the investigation and bringing to criminal responsibility.