War crimes vs military offences: what is the difference?

The terms “war crime” and “military offence” are often confused and used interchangeably. However, these are different legal concepts with distinct characteristics, legal bases for liability, and categories of persons who may commit them.

War crimes are serious violations of international humanitarian law committed during and in connection with armed conflict. The list of war crimes falling under the jurisdiction of the International Criminal Court (ICC) is set out in Article 8 of the Rome Statute. These include, among others, intentional attacks against civilians and civilian objects, torture, cruel treatment, unlawful deportation or transfer of civilians, sexual violence, unlawful destruction or appropriation of property, and other serious violations of the laws and customs of war.

Military offences are criminal offences against the established order of military service, as defined in Chapter XIX of the Criminal Code of Ukraine. The relevant definition is set out in Article 401 of the Criminal Code of Ukraine.

At the same time, certain acts may, depending on the circumstances, constitute both a military criminal offence and a war crime. Where such acts meet all the elements of a specific war crime, they may be qualified under Article 438 of the Criminal Code of Ukraine.

The unlawful use of the emblems of the Red Cross, Red Crescent, or Red Crystal is also a criminal offence under Ukrainian law. Depending on the circumstances, liability for such acts is provided under Articles 435 and 445 of the Criminal Code of Ukraine.

Improper use of these emblems may also constitute a war crime. For example, in an international armed conflict, the misuse of protective emblems that results in death or serious injury may amount to a war crime.

Understanding this distinction is essential for the correct legal qualification of acts committed during armed conflict and for determining who may bear criminal responsibility and for what conduct.