Instituto de Estudios Políticos y Derecho Público "Dr. Humberto J. La Roche"
de la Facultad de Ciencias Jurídicas y Políticas de la Universidad del Zulia
Maracaibo, Venezuela
Publicación cientíca en formato digital
ISSN-Versión Impresa 0798-1406 / ISSN-Versión on line 2542-3185
Depósito legal pp 197402ZU34
ppi 201502ZU4645
Vol.40 N° 75
2022
ISSN 0798- 1406 ~ De pó si to le gal pp 198502ZU132
Cues tio nes Po lí ti cas
La re vis ta Cues tio nes Po lí ti cas, es una pu bli ca ción aus pi cia da por el Ins ti tu to
de Es tu dios Po lí ti cos y De re cho Pú bli co “Dr. Hum ber to J. La Ro che” (IEPDP) de la Fa-
cul tad de Cien cias Ju rí di cas y Po lí ti cas de la Uni ver si dad del Zu lia.
En tre sus ob je ti vos fi gu ran: con tri buir con el pro gre so cien tí fi co de las Cien cias
Hu ma nas y So cia les, a tra vés de la di vul ga ción de los re sul ta dos lo gra dos por sus in ves-
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ción, dis cu sión y con fron ta ción de las ideas y avan ces cien tí fi cos con com pro mi so so cial.
Cues tio nes Po lí ti cas apa re ce dos ve ces al año y pu bli ca tra ba jos ori gi na les con
avan ces o re sul ta dos de in ves ti ga ción en las áreas de Cien cia Po lí ti ca y De re cho Pú bli-
co, los cua les son so me ti dos a la con si de ra ción de ár bi tros ca li fi ca dos.
ESTA PU BLI CA CIÓN APA RE CE RE SE ÑA DA, EN TRE OTROS ÍN DI CES, EN
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nes Cien tí fi cas y Tec no ló gi cas Ve ne zo la nas del FO NA CIT, La tin dex.
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Vol. 40, Nº 75 (2022), 879-900
IEPDP-Facultad de Ciencias Jurídicas y Políticas - LUZ
Recibido el 03/09/22 Aceptado el 11/12/22
Transformation of the legal system in a
time of war: international, administrative,
and criminal aspects
DOI: https://doi.org/10.46398/cuestpol.4075.53
Svitlana Hretsa *
Denys Tykhomyrov **
Maryna Olashyn ***
Oksana Rudanetska ****
Halyna Bogoniuk *****
Abstract
The authors of the article discuss international humanitarian
law (IHL) as a normative mechanism for the protection and
defense of victims of armed conicts. The problems of IHL due
to the loss of eectiveness of international legal regulation are
pointed out. The aim of the article is a broad theoretical-legal
and international-practical analysis of the transformations of the legal
system under conditions of war. The basis of this scientic search was
a system of methodology, which includes a complex of three levels of
philosophical, general scientic and specically scientic methods and a
group of approaches, conditioned by the subject of the research. As a result
of the analysis, it was shown that the current system of international legal
regulation has signicant drawbacks. The most signicant of them is the
declarative character of the rules, caused by the absence of an eective
system of accountability and the failure to update the doctrine of IHL rules
in the light of new challenges and transformations of the political and social
reality. In addition, the analysis of the organizational and administrative
problems of the regulation of the law of war indicated that the institutional
guarantees in a military conict also need revision.
* Doctor of Juridical Science, Associate Professor of the Department of Constitutional and Comparative
Law Uzhhorod National University, Law Faculty, 88000, 26 Kapitulna st, Uzhhorod, Ukraine. ORCID
ID: https://orcid.org/0000-0002-9174-7454
** Doctor of Juridical Sciences, associated professor of Department of Theory of State and Law
National academy of internal affairs. ORCID ID: https://orcid.org/0000-0001-8366-8564
*** Candidate of legal sciences, Associate Professor Department of State and Law Theory Lviv University of
Trade and Economics 79008, 9, U. Samchuk Str., Lviv, Ukraine. ORCID ID: https://orcid.org/0000-
0002-9077-4805
**** Сandidate of legal sciences, Associate Professor Department of Law Lviv National Environmental
University 80381, 1 V. Velykoho Str., Dublyany, Ukraine. ORCID ID: https://orcid.org/0000-0002-
4773-949X
***** Candidate of legal sciences, Department of State and Law Theory Lviv University of Trade and
Economics 79008, 9, U. Samchuk Str., Lviv, Ukraine. ORCID ID: https://orcid.org/0000-0003-2602-
111X
880
Svitlana Hretsa, Denys Tykhomyrov, Maryna Olashyn, Oksana Rudanetska y Halyna Bogoniuk
Transformation of the legal system in a time of war: international, administrative, and criminal aspects
Keywords: international humanitarian law; wartime hostilities;
international organizations; transformation of the legal
system; war crimes.
Transformación del sistema jurídico en tiempos de
guerra: aspectos internacionales, administrativos y
penales
Resumen
Los autores del artículo discuten el derecho internacional humanitario
DIH como mecanismo normativo de protección y defensa de las víctimas
de los conictos armados. Se señalan los problemas del DIH debido a la
pérdida de ecacia de la regulación jurídica internacional. El objetivo del
artículo es un amplio análisis teórico-jurídico e internacional-práctico de
las transformaciones del sistema jurídico en condiciones de guerra. La base
de esta búsqueda cientíca fue un sistema de metodología, que incluye
un complejo de tres niveles de métodos losócos, cientícos generales y
especícamente cientícos y un grupo de enfoques, condicionados por el
tema de la investigación. Como resultado del análisis, se demostró que el
actual sistema de regulación jurídica internacional presenta importantes
inconvenientes. El más signicativo de ellos es el carácter declarativo de
las normas, provocado por la ausencia de un sistema ecaz de rendición de
cuentas y la falta de actualización de la doctrina de las normas de DIH a la
luz de los nuevos retos y transformaciones de la realidad política y social.
Además, el análisis de los problemas organizativos y administrativos de la
regulación del derecho de la guerra indicó que las garantías institucionales
en un conicto militar también necesitan una revisión.
Palabras clave: derecho internacional humanitario; hostilidades
en tiempos de guerra; organismos internacionales;
transformación del sistema jurídico; crímenes de
guerra.
Introduction
Military conict is a permanent process of human existence for many
centuries of human existence, for “ghting and war are inherent in human
history” (Filipec, 2019: 52–70). The system of collective security and legal
mechanism of democratic states created in the world in the twentieth
century has been for many years an eective form of prevention of major
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armed conicts. Moreover, scholars have stated that the threat of force
is now dominant, “the special strategic conditions created by the nuclear
age have encouraged states to engage in a ritualistic style of warfare in
which demonstration, rather than the physical use of violence, has become
increasingly important” (Chin, 2019: 765–783).
February 24, 2022 is the date of the newest countdown of the current
social reality, where all spheres of life have been transformed, including
the date of the beginning of a new challenge to collective world security.
Russia’s military annexation of Ukraine was the basis for the formation
of a new geopolitical, legal and social system of interaction (Kononenko
et al., 2022). At the same time, the military full-scale attack on sovereign
territories has revealed a number of signicant problems that should have
long been resolved at both the international and national levels.
Many areas of human existence are subject to dramatic change, among
them a signicant reshaping of approaches to natural resources, changes
in the subjects of international market relations, a dramatic crisis in
the nancial sector, and the problem of food supplies. B. Kemmerling,
C. Schetter, and L. Wirkus summarize that war on food security in the
following four ways: a) destruction; b) conict-induced displacement; c)
food control; d) hunger as a “weapon of war” (Kemmerling et al., 2022:
100634; Rekotov et al., 2022: 901–918).
UN Secretary-General A. Guterres has said that grain and fertilizer
shortages caused by war, rising temperatures, and supply problems caused
by the pandemic threaten to “push tens of millions of people toward food
security” (Guardian, 2022: 2). The U.N. Food and Agricultural Price Index
hit an all-time high of nearly 160 points in March (The Food and Agriculture
Organization, 2022), and other types of food are also aected.
There are also demographic changes that are overdue. The number
of refugees from Ukraine who have been forced to leave their homes and
go abroad as a result of the Russian invasion exceeded 5.6 million as of
early June 2022 (UNHCR, 2022). This has caused signicant political
and economic challenges for many countries, especially in Europe, in the
context of accepting these persons.
All of these changes and challenges require a review of the adequacy of
the legal sphere’s response to transformational change. The question that
needs to be answered is “how prepared were the rules of law for military
action in the current context of the development of the collective defense
mechanism and the response of states to military action?” The established
international and national system has a number of positive features, but
signicant shortcomings due to the emergence of new global challenges.
This is the main purpose of the presented research article. To achieve
the goal, the authors set the following tasks: to reveal the debatable aspects
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Svitlana Hretsa, Denys Tykhomyrov, Maryna Olashyn, Oksana Rudanetska y Halyna Bogoniuk
Transformation of the legal system in a time of war: international, administrative, and criminal aspects
of the eectiveness of international humanitarian law and identify the most
signicant gaps in the legal regulation of the protection of victims of war;
to experience organizational and administrative problems of the law of war
regulation; to analyze the correspondence of criminal legal regulation to
the modern challenges of military character on the example of the national
legislation of Ukraine.
1. Literature Review
International humanitarian law is an established branch of international
law, which is why many modern scholars have drawn attention in their
works to the peculiarities of the legal protection of victims and participants
in hostilities and the regulation of means and methods of warfare. Among
them are the works of Solis (2021), Fillol Mazo (2020), Fleck (2021). Most
of them are of a general doctrinal descriptive nature.
A whole school of scholars has devoted attention to the right of war in
the context of the implementation of a policy of preventive actions (Stengel,
2020) or to the mechanism of the threat of force as a means of achieving a
political result without military aggression (Chin, 2019). The activation of
hybrid means of warfare has given rise to additional research in this area,
in particular Gore et al. (2022), Filipec (2019), Kovalchuk et al. (2022) and
others.
However, today we should speak about the necessity of renewed
perception of legal needs in the context of additional, synergetic challenges
in the sphere of military actions. The specied is connected both with
certain controversial eectiveness of separate bodies and institutions of
an international character and with the declarative nature of norms of
international humanitarian law, therefore, requires additional motivation
and strengthening of the legal doctrine of the military policy of civilized
nations and the legislation of nation-states.
2. Materials and Methods
For the analysis of the subject of research was used humanistic approach
as the primary determinant of the individual value of human rights, which is
subordinated to the basic construct of social being of the twentieth century,
even in the conditions of full-scale war. The basis of the author’s scientic
search is the system of methodology, including a three-level complex of
philosophical, general scientic, and specically scientic methods and a
group of approaches, conditioned by the subject of research.
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Among the philosophical methods, the metaphysical one is used to
highlight the external factors inuencing the hybrid form of warfare and
the changing legal regulation of this sphere, and the synergetic one, which
allows to address the issue of the need to update the legal system in light of
the bifurcation factors of the impact of the new military reality.
The middle level of the methodology includes general scientic methods,
among which special attention should be paid to: analysis and synthesis are
applied to study the norms of international humanitarian law as a part of
the integral concept of the international system of human rights, which in
turn can be viewed as separate parts of inuence on the national Ukrainian
military situation; the method of induction reects elementary components
of national and international legal regulation of military activity; abstraction
helps delimit the object of study
The last level of methodology is represented by special-scientic
methods, in particular, the formal-legal method, which became one of
the most used in the study, since it allows a dogmatic analysis of clear
legal phenomena, helped in describing, classifying, and generalizing legal
notions; legal-statistical - to study indicators of changes in social reality
in Ukraine and the world and the functioning of international and public
institutions in the studied area (among others UN, UNHCR, International
Committee of the Red Cross, The Food and Agriculture Organization).
The method of individual observation is essential, since the authors
directly have the opportunity of personal scientic research of objects
and phenomena of military reality, as witnesses of the military and social
situation in Ukraine.
According to the authors’ questionnaires, the authors surveyed the
population to determine the impact of disinformation on civil society.
The survey was conducted in Lviv, but it can be considered representative
of the entire territory since the subject included persons in centers for
temporarily displaced persons. The focus group consisted of 102 adults who
were residents of Kyiv, Lviv, Donetsk, Kharkiv, Zhytomyr, Odesa, and the
Mykolaiv regions. The margin of error of the obtained results, taking into
account the number of respondents, is 2-3.5%. Questionnaires are designed
for anonymous and quick completion. The survey was conducted on March
7, 2022, following ten days of Russia’s full-scale invasion of Ukraine.
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Svitlana Hretsa, Denys Tykhomyrov, Maryna Olashyn, Oksana Rudanetska y Halyna Bogoniuk
Transformation of the legal system in a time of war: international, administrative, and criminal aspects
3. Results
3.1 Debatable Aspects of International Humanitarian Law
The problem of ensuring and protecting human rights during armed
conicts has a long history. Civilized nations have developed an entire
complex area of international law, international humanitarian law, whose
task is to protect and alleviate the plight of the victims of war, who include
both combatants and civilians. As Professor Turns (2018: 27), “rooted in
customary law, often very ancient, since the late nineteenth century it has
become one of the most intensely codied areas of international law”.
The role of these rules is signicant because it points to a legal “obligation
of result to achieve humanity’s ends” Longobardo (2019: 50) and “reects
the collective transnational view of the international community that
unilateral tactics, coercion, and sheer force will no longer be tolerated to
compel submission to individual ambition and desire” (Gore et al., 2022).
In general, international humanitarian law (IHL) has the unique
function of establishing rules of humanity in a totally inhumane situation,
that is, in warfare. The laws of war are intended to act as a factor for the
harmonization and international recognition of certain limits to violence
during armed conicts. The original of the most fundamental principles
of IHL concerns the protection of victims of armed conicts, including
civilians and prisoners.
The 1949 Geneva Conventions and the subsequent 1977 Additional
Protocols dene many of the guarantees aorded to protected groups in
time of war, along with the corresponding responsibilities of combatants.
Article 27 of the Fourth Convention, governing the treatment of civilians,
states: “They shall at all times be treated humanely and shall be protected,
especially against all acts of violence or threats thereof, and against insults
and public curiosity”.
Similarly, Article 13 of the Third Convention, concerning prisoners of
war, declares: “Prisoners of war must always be treated humanely. Any
unlawful act or omission by a State which holds a prisoner of war which
results in death or seriously endangers the health of the prisoner of war
under its custody shall be prohibited.” All four Conventions detail the rights
and obligations of belligerents.
As Hrushko (2016) reasonably states, the objective factors of the
low eectiveness of IHL include the ineectiveness of the legal system
of the state, the imperfection of the mechanisms of implementation of
international legal norms, the insuciency of its actions on organizational
and legal issues of implementation of international humanitarian law, the
low level of implementation of international humanitarian law norms in
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national legislation, the ineectiveness of the legal system of the state during
an armed conict and the mechanisms of accountability for violations of
international humanitarian law. Indeed, the current system has signicant
disadvantages, let us point out only two major ones.
Declarative norms, due to the lack of an eective system of responsibility.
Harm to civilian actors and the environment always accompanies military
action. The principle of proportionality protects civilians and civilian
objects from expected incidental harm from an attack, excessive to the
military superiority expected from an attack (Henderson and Reece, 2018).
The problem, however, is that the harm they inict is often not proportional
or incidental, but objectively targeted at nonmilitary targets.
In a full-scale war in Ukraine, as of June 9, 2022, 4,302 people have been
killed and 5,217 wounded, according to the UN (Оce of high commissioner
for human right, 2022). However, the gures are far from the actual gure,
in the occupied territories the count is complicated and not included in
international reports.
According to local authorities, in Mariupol alone, there are bodies of
about 23,000 civilians under the rubble of houses. Russia is actively using
indiscriminate means of warfare in this war. According to the Oce of
the UN High Commissioner for Human Rights, “The majority of civilian
deaths or injuries were caused by the use of large-area explosive devices,
including heavy artillery and multiple rocket launchers, as well as missile
and air strikes” (UN Security Council, 2022). This signicant number of
casualties is due to the fact that civilian infrastructure - cities and villages,
including Mariupol, Kharkiv, Zaporizhzhia, and Severodonetsk - are being
systematically shelled and destroyed.
This happens despite the existence of more than seventy years of norms
that clearly prohibit such terrible actions. Therefore, we can talk about the
declarative nature of the regulations and the lack of an eective system of
accountability. This is the biggest and most signicant, but unresolved,
problem of IHL. The responsibility in IHL is imposed on states, it arises
if the state has clearly failed to take all measures[...] that were within its
“power” to prevent events (International Court of Justice, 2007, Feb. 26).
These measures require the belligerent State to continuously monitor
compliance with international obligations of conduct. As the International
Court of Justice arms, the obligation of due diligence “entails not only
the adoption of appropriate rules and measures but also a certain level of
vigilance in their observance and the exercise of administrative control over
the public and private operators” (International Court of Justice, 2010,
Apr. 20).
Lack of clear legal regulation of a number of fundamental issues of
protection of war veterans. “International humanitarian law has failed to
886 Svitlana Hretsa, Denys Tykhomyrov, Maryna Olashyn, Oksana Rudanetska y Halyna Bogoniuk
Transformation of the legal system in a time of war: international, administrative, and criminal aspects
adequately address and protect important basic civilian infrastructure,
especially water resources and managed water systems because the laws
themselves are insucient or improperly enforced” (Gilder, 2019: 62).
But it is quite dicult to bring to justice. Such a procedure is ad hoc
and requires signicant procedural, economic, and political decisions. In
addition, the period of real functioning of the competent judicial body is long
in time, which can lead to the avoidance of responsibility of representatives
of the public authorities of the aggressor state.
The lack of an updated doctrine of IHL norms in light of additional
challenges and transformations of political and social reality. The eld
of law under study formed its main ideology after World War II on the
paradigm of social relations there. Modern methods and ways of warfare
have an updated, far from the classical form. Now we should talk about
hybrid wars, which, unfortunately, do not nd proper regulation in the
system of IHL. Hybrid war includes both classical forms of warfare and
others, aimed at social destabilization of the enemy’s side.
The following features of hybrid warfare are appropriately singled out
by modern scientists: there are no classical approaches to military actions,
the state of the “gray” zone between peace and war; the war is undeclared,
using the rules of conspiracy and disguise their actions as humanitarian,
protective actions; both classical forms of warfare and others aimed at social
destabilization of the enemy side are used; transformation of participants
of military actions by attracting hybrid actors (illegal combatants); the state
of confrontation is ongoing; the means of hybrid warfare are applied not
only to the individual state as an enemy, but also to other international
entities and states that support the enemy side in the international arena
(Kovalchuk et al., 2022).
The following features of hybrid warfare can be singled out:
• there are no classical approaches to hostilities in the State of the
“gray” zone between peace and war;
• the war is undeclared, and their actions are disguised as
humanitarian/protective actions; hybrid warfare includes both
classic forms of hostilities and those aimed at social destabilization
of the target enemy;
• the transformation of belligerents through the hybridization of
dierent actors; (unlawful combatants);
• the state of confrontation is ongoing;
• hybrid warfare is not focus only on an individual State as a target
enemy.
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It includes other international entities and States that support this State
in the international arena as well.
Among other things, information warfare plays an essential role in
hybrid warfare. Types of information fakes and hybrid methodologies
disseminated in the media and social networks to sow misinformation,
panic, and fear. An analysis of the rst ten days of the war in Ukraine
allowed the authors, including as eyewitnesses to the events, to analyze the
signicance of fake information and its eectiveness. In our opinion, all
information attacks can be divided into the following groups.
1. The information is focused on discrediting the public authorities.
It is divided into two groups: a) about the capitulation of state
authorities and representatives of local government; b) and that
Ukraine is run by a “junta” and neo-Nazis who are destroying
Russian-speaking citizens. The most massive fake is the report about
Ukrainian President Zelensky eeing with his family on the rst or
second day of the war. To debunk this information, the President
promptly recorded two posts from his real location against the
background of the Oce of the President and the sights of the center
of the Ukrainian capital, along with other senior members of the
state’s public authorities. This method of warfare is eective because
it distracts the enemy from debunking disinformation and pacifying
the civilian population.
Subsequently, misinformation spread to capitulate local authorities. For
example, on March 4, 2022, there were attempts on the part of the Russian
Federation to provide humanitarian aid in Kherson to demonstrate the joy
of residents regarding the creation of a “Kherson People’s Republic,” similar
to the “Donetsk People’s Republic” and “Lugansk People’s Republic,” which
were able to form in 2014. However, such a propaganda review failed, as an
estimated 5,000 residents gathered for a spontaneous unarmed rally with
national Ukrainian ags, demanding that they leave their native land.
A survey conducted among the respondents demonstrated insignicant
eectiveness of the information ows to discredit the authorities. Only 12%
of the respondents believed in such information. The results are shown in
Fig. 1
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Svitlana Hretsa, Denys Tykhomyrov, Maryna Olashyn, Oksana Rudanetska y Halyna Bogoniuk
Transformation of the legal system in a time of war: international, administrative, and criminal aspects
Figure. No. 01: Did you believe the information that Ukraine / President
capitulated?
Source: authors.
2. Information about economic harassment by the authorities. In
particular, SMS messages are circulating throughout the state about
threats to disconnect mobile communications for non-payment,
raise the prices of such services, charge nes for loans or utilities
through non-payment, and stop payments of pensions and other
social benets. Perhaps such information would have had panic
consequences at other times, but in the rst days of the war the
population is incredibly united, consolidated, helping each other
and the army, and engaged in volunteer activities, so the vector of
public attention is concentrated not on material factors, but on the
aspects of security. The ineectiveness of such information fakes is
conrmed by the survey, the results of which are shown in Fig. 2
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Figure No. 02: How worried you are today considering the information about
non-payment of pensions or other economic harassment?
Source: authors.
3. Information aimed at inciting enmity and hatred within the country.
They are concerned seemingly inappropriate behavior of internally
displaced persons. To create clashes, information is spread in local
telegram channels that the displaced abuse alcohol, organize feasts
during the war, demand special attention, expensive food, new
clothes, etc. Rumors of looting prices for housing and other services
for this group of people are spread to negatively perceive displaced
persons from the Eastern regions.
A survey conducted exclusively among local residents demonstrated the
signicant eects of such fake information. See Fig. 3.
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Svitlana Hretsa, Denys Tykhomyrov, Maryna Olashyn, Oksana Rudanetska y Halyna Bogoniuk
Transformation of the legal system in a time of war: international, administrative, and criminal aspects
Figure No. 03: Do you agree with the statement that displaced persons often
behave immorally / deantly?
Source: authors.
4. Information on requesting assistance from the war arena. As of the
tenth day of the war, there were at least eight hot spots of resistance,
among them cities with signicant numbers of residents, including
Sumy - 250,000, Mariupol - 460,000, Zaporizhzhia - 710,000,
Kharkiv - 1 million 400,000, where civilian infrastructure, including
homes of civilians, is shelled. Therefore, the public’s particularly
destructive behavior, panic, and outrage are caused by reports
that the armed forces of Ukraine and the central authorities have
abandoned the inhabitants of these regions to their fate. Bots of the
aggressor country in social networks spread messages “Everything is
gone!”, “Help us here we are dying!”, “Everyone has abandoned us,
we are without food, water, and light, freezing in basements”. At the
same time, the accounts have a patriotic design but do not contain
personal information. The eectiveness of the fake information is
81%. The results are shown in Fig. 4.
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Figure No. 04: Do you believe the information from social networks that
contains requests for help?
Source: authors.
Therefore, information warfare is proving to be very eective, but there
is a lack of international and national legal regulation of it.
4. Organizational and administrative problems of the law of war
regulation
Institutional safeguards in a military conict also need to be reconsidered.
The functioning of certain bodies and international institutions designed
to address the problem of countering armed aggression proved to be
ineective and passive in the context of supporting the Ukrainian people
and protecting them from aggression. Such institutions include, rst of all,
the UN Security Council. As Gilder, A. points out, “the current debate in
academic and political circles reects the need to reassess UN peacekeeping
doctrine in order to assess the impact of these doctrinal shifts in recent
years” (Gilder, 2019: 47–73).
Scholars are not inclined to praise the UN’s eectiveness, pointing out
that Although there are a number of measures focused on peacekeeping,
with notable successes, the UN still faces problems and challenges that
negatively aect the eectiveness, eciency, and success of its peacekeeping
operations. Ineciency is initially inherent in the very structure of the
institution.
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Transformation of the legal system in a time of war: international, administrative, and criminal aspects
The UN Security Council consists of 15 members (among them 5
permanent members) and has the specic task of ensuring global peace
and security. According to Article 1 of the UN Charter, the purpose of this
organization is to promote international peace and security and, to this end,
to take eective measures to eliminate threats to peace and suppress acts
of aggression or other breaches of the peace. UN performance has faced
well-deserved criticism for inaction since the invasion began in February,
especially the UN Security Council. “Let me be as clear as possible: [the
Security Council] has failed to do everything in its power to prevent and end
this war”, – even the UN secretary-general stated (Ukraine war: Rockets hit
Kyiv as UN chief admits failings, 2022).
In this case, a paradoxical, illogical situation emerges for a right that
upholds the values of equality. It manifests itself in the fact that to quote
Charles Michel, President of the European Council, “this is a barbaric war
started by a permanent member of the UN” (UN Security Council, 2022).
Russia, as a permanent member of the UN, vetoes resolutions concerning its
own actions. On February 26, 2022, Russia used its powers as a permanent
member of the UN Security Council to veto a draft resolution to respond to
Russia’s act of armed aggression against Ukraine and to hold its governing
bodies accountable.
The role of the permanent member is special and dominant in the system
of these institutions, “permanent members are given greater inuence in
drafting, agenda setting and their ability to veto informally, even though
this inuence is uncodied and informal” (Albaret and Brun, 2022: 16).
The problem of inequality has a general international character but is
particularly signicant in the issue of countering a bloody armed conict.
There is also a discussion of the activities of the International
Committee of the Red Cross. In the system of implementation of the
provisions of international humanitarian law, a specic role is played
by this organization. The ICRC is an international non-governmental
organization, but it occupies a special place determined by the provisions
of Article 9 common to the First, Second, and Third Geneva Conventions of
1949 and Article 10 of the Fourth Geneva Convention on the right to engage
in humanitarian activities. The International Committee of the Red Cross is
an independent humanitarian organization that played a leading role in the
creation of the Red Cross Movement and in the formation and development
of international humanitarian law.
“The ICRC promotes and monitors the application of international
humanitarian law, provides legal protection and material assistance to
military and civilian victims of wars and helps people aected by natural
disasters in conict zones and vulnerable migrants” (Canton, 2021:630).
The ICRC may not only provide its good oces to facilitate the establishment
and recognition of hospitals and safe zones and human settlements (Article
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14 of the Geneva Convention IV) but may also take any humanitarian
initiative it deems necessary.
Its importance and potential are often overestimated, even pointing out
that the ICRC should become the kind of organization it was, mobilizing
public opinion against their reluctant governments and cooperating with
civil society (Sasso`li, 2019). (ICRC must become the advocacy organization
it once was by mobilizing public opinion against their reluctant governments
and cooperating with civil society.) Therefore, its relevance in the area of
armed conicts is particularly striking.
The signicance for the Ukrainian-Russian war is manifested in the
need for assistance in the following: full-scale support of green corridors
from zones of occupation and hostilities, territories with humanitarian
disasters; assistance in the logistics of humanitarian aid; stopping the
forced deportation of people from Mariupol, Donetsk, and other territories
temporarily or potentially under Russian control to Russia without their
freely given consent and documents, especially given that the ICRC mission
is collecting the bodies of Russian soldiers and sending them back to Russia
(Public Appeal to ICRC, 2022).
However, none of these actions have been implemented, so criticism
of this organization’s inaction in hot spots is well-deserved. On March 17,
2022, the ICRC left Mariupol, where there were still hundreds of thousands
of civilians in need of assistance. The war in Ukraine demonstrated that
the Red Cross turned out to be completely unable to work in conditions
of full-scale military conict, although this is what is spelled out in the
organization’s objectives.
5. Discussion
5.1 The Transformation of Criminal Law in the Context of
warfare
The open phase of the armed aggression of the Russian Federation
against Ukraine, which began on February 24, 2022, needed urgent and
immediate changes in the legal regulation of a signicant array of important
issues in the state. That’s why the President of Ukraine has adopted the
Decree “On the imposition of martial law in Ukraine” (President of Ukraine,
2022), by which martial law was introduced from February 24, 2022, for 30
days, and then continued, as the military actions did not stop.
The readiness of the national Ukrainian legislation for such events can
be assessed at an average level. We cannot say that the national law was
ready for legal regulation in wartime. We note that Ukraine had already
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Transformation of the legal system in a time of war: international, administrative, and criminal aspects
been at war for eight years prior to that since the Crimea peninsula and
parts of the Donetsk and Luhansk regions were annexed back in 2014. On
the one hand, the state had specialized legislation since 2015, in particular,
the Law of Ukraine “On the Legal Regime of Martial Law”.
It denes the content of the legal regime of martial law, the procedure
for its introduction and cancellation, and the legal basis for the activities
of public authorities, military command, military administrations, local
self-government bodies, enterprises, institutions, and organizations under
martial law, guarantees of human and civil rights and freedoms and the
rights and legitimate interests of legal entities (Verkhovna Rada of Ukraine,
2015).
In addition, the present hostilities necessitated signicant additions
and congurations to the well-established legislation. They took place in
all areas, from nancial to administrative. But most of all they aected
the criminal and criminal-procedural norms. This was due to the need
to strengthen liability for oenses committed under martial law (Laws of
Ukraine “On Amendments to the Criminal Code of Ukraine on strengthening
liability for crimes against the foundations of national security of Ukraine
under martial law” № 2113-IX, “On Amendments to the Criminal Code
of Ukraine on strengthening liability for looting” № 2117-IX of March 3,
2022) (Verkhovna Rada of Ukraine, 2022a) and the inclusion of additional
oenses to the list of criminal and punishable.
To preserve the state of law and order and the rule of law in wartime,
the legislator amended the Criminal Code of Ukraine by increasing liability
for property crimes committed under martial law (theft, robbery, extortion,
as well as embezzlement, and seizure of property through abuse of ocial
position). Certain of them during the war were transferred from the
theoretical classication of criminal oenses to full-edged criminal acts, for
example, Art. 185 (theft) provides an additional aggravating circumstance,
and the sanction is strengthened, requiring special qualication, thus
moving from a simple sanction - a ne (under normal conditions) to a
penalty of imprisonment of 5 to 8 years (under martial law).
New corpus delicti of crimes appeared. The Criminal Code of Ukraine
was supplemented with Article 111, which denes collaboration activity
(Verkhovna Rada of Ukraine, 2022b), which includes the following acts:
public opposition by a citizen of Ukraine to the implementation of armed
aggression against Ukraine, establishment and approval of temporary
occupation of part of the territory of Ukraine or public calls to support
the decisions and/or actions of the aggressor state, armed formations;
propaganda of the aggressor state in educational institutions; transfer
of material resources to illegal armed or paramilitary formations of the
aggressor state; carrying out economic activities in cooperation with
the aggressor State and illegal authorities; organization and conduct of
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events of a political nature/information activities in cooperation with the
aggressor State; voluntary occupation by a citizen of Ukraine of a position
in illegal authorities; participation in the organization and conduct of illegal
elections; provision of assistance to illegal armed or paramilitary formations
of the aggressor State in conducting combat operations against the Armed
Forces of Ukraine and other military formations of Ukraine. This crime
must be committed only in the form of an active act and voluntarily.
Such an article is especially necessary in times of war because subversion
within the country is just as harmful to national interests and territorial
integrity as the occupation of territories. As for the latter, as of June 11,
2022, about 20 percent of Ukraine’s territory is occupied, so collaboration
with an aggressor country and voluntary occupation of positions in the so-
called “authorities” is a criminal oense.
We cannot indicate the number of court decisions in these cases because
access to the Unied State Register of Court Decisions is temporarily
suspended during martial law to prevent threats to the lives and health
of judges and participants in the judicial process. According to the State
Bureau of Investigation, up to 200 criminal cases were initiated under this
article in one month alone (State Bureau of Investigation, 2022).
The latest amendments concerned the emergence of another crime –
“aiding and abetting the aggressor state” (Art. 1112 of the Criminal Code of
Ukraine). Such actions are dened as intentional actions aimed at assisting
the aggressor state (aiding and abetting), armed groups, and/or occupation
administration of the aggressor state, committed by a citizen of Ukraine, a
foreigner, or a stateless person, except for citizens of the aggressor state,
in order to cause damage to Ukraine (Verkhovna Rada of Ukraine, 2022c).
Changes were also made in other areas, in particular, additional
regulation was implemented in the context of countering the unauthorized
dissemination of information about the direction, movement of weapons,
weapons and ammunition to Ukraine, the movement, movement, or
deployment of the Armed Forces of Ukraine or other military formations
formed in accordance with the laws of Ukraine, committed under martial
law or a state of emergency, increasing responsibility for cybercrime and
crimes in the eld of volunteerism, as well as in the eld of the state of
emergency.
Also, procedural activity in the context of improvement of the procedure
of criminal proceedings under martial law has been formatted extensively.
So, we can state the update of the criminal law of Ukraine in wartime
conditions in the following: strengthening of criminal liability for crimes
during wartime; the appearance of new corpus delicti of crimes of particular
relevance in wartime.
896 Svitlana Hretsa, Denys Tykhomyrov, Maryna Olashyn, Oksana Rudanetska y Halyna Bogoniuk
Transformation of the legal system in a time of war: international, administrative, and criminal aspects
Conclusions
IHL, as a rule of law designed to regulate relations during a military
conict, creates a collective security mechanism and is the legal form of
prevention of major armed conicts. Russia’s aggression against Ukraine,
which started on February 24, 2022, demonstrated a number of signicant
legal gaps, both at the international and national levels.
It is stated that the current system of international legal regulation
has signicant drawbacks, the most signicant of which are recognized
declarative norms, due to the lack of an eective system of accountability
and the lack of updated doctrine of IHL norms in the light of additional
challenges and transformations of political and social reality.
Based on the author’s survey, it was demonstrated that disinformation
is an essential, eective means of warfare, especially information aimed
at discrediting public authorities; information aimed at inciting enmity
and hatred within the country; information about inappropriate policies
to protect civilians and help combatants, which came as a kind of arena
of warfare. Information about economic harassment by the authorities did
not have a signicant impact on undermining public stability.
An analysis of the organizational and administrative problems of the
law of war regulation indicated that institutional safeguards in a military
conict also need to be reviewed. The eectiveness of the UN in this fault
has been criticized and it has been argued that this policy is primarily
embedded in the very structure of the UN Security Council, as there are
permanent members with the right of unquestioning veto. There is no
mechanism for changing these provisions when a permanent member is
an aggressor state. It is also stated that the International Committee of the
Red Cross has not used all available mechanisms dened in the mandate of
this institution and has demonstrated its inability to work in conditions of
full-scale military conict.
Military actions demonstrated the need to improve the norms of various
branches, especially criminal law at the national level. The state of war
demonstrated the need to strengthen criminal responsibility for material
crimes in wartime, as well as the regulation of new elements of crimes of
particular relevance during the war (collaborative activities, aiding and
abetting the aggressor state).
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