Looting and theft under martial law conditions: distinguishing characteristics

With the beginning of full-scale military aggression of the Russian Federation against Ukraine, new notions earlier pertinent only to the professional domain came into everyday use. One of those is looting. Daily, mass media and law enforcement agencies publish news headlined like "A looter caught."

For example, the General Directorate of National Police in the Vinnytska region has released the news about a looter detained on suspicion of committing a crime under Article 185 of the Criminal Code of Ukraine (theft) on March 9, 2022. The General Directorate of National Police in Kyiv made a similar story public on April 12, 2022: two detained looters were reported to have robbed apartments of Kyiv residents. 

It is especially noteworthy that such persons were detained for committing a criminal offense under Art.185 of the Criminal Code of Ukraine (theft), not Art.432 of the Criminal Code of Ukraine (looting) in both cases. Much the same instances can be found throughout Ukraine in vast numbers.

Would it be correct to refer to such persons as 'looters'? What is "looting" anyway, and how is it different from theft under martial law conditions?

1. Looting under Art.432 of the CCU
Chapter XIX of the Criminal Code of Ukraine defines war criminal offenses, including but not limited to looting. According to Art.432 of CCU, it is "stealing things off the killed or wounded persons at a battlefield."

A mandatory element of looting is a place of committing a crime, i.e., a battlefield (land, sea, or air space) where the military action occurred or is occurring. More often than not, land plots, forests, city areas, villages, individual enterprises, military and civilian infrastructure facilities, etc., become the battlefield. In addition, a section of the rear subjected to hostile fire is also considered to be the battlefield.

The subject of looting is things that may be found on the dead or wounded. Looters usually steal personal belongings, watches, jewelry, cash, and the items of uniforms of the deceased or injured.

At the same time, the theft of items from healthy service members cannot be qualified under Art.432 of the CCU. Moreover, weapons, ammunition, and documents of military or other content do not apply to looting.

Looting is committed with direct intent (dolus directus) and is marked by a lucrative impulse. Stealing practices may vary from the secret to open or under duress.

Therefore, Art.432 of the CCU criminalizes looting as a war crime to which the service members engaged in active combat are subject.

Disposition of Art.432 of CCU indicates the notion of looting in its narrow meaning that has nothing to do with numerous thefts done during the martial law on the territory of Ukraine.

2. Theft under martial law pursuant to Art.185 Part 4 of the CCU
Law "On Amending the Criminal Code of Ukraine to Strengthen Liability for Looting" has come into force on March 7, 2022. The latter has amended Art.185 Part 4 of the CCU by adding a qualifying factor of a crime against property "committed during martial law or a state of emergency."

Hence, criminal liability for looting has been introduced in Ukraine in a broader meaning, as follows directly from the law's title.

Such legislative change aims to enhance the responsibility for thefts during the war. Breach of the Art.185 Part 4 of the CCU is a grave offense and carries a punishment of up to 5-8 years' imprisonment.

As a legal regime of martial law continues to be effective, thefts committed on the territory of Ukraine are being investigated under Art.185 Part 4 of the CCU. In such circumstances, the stolen item may not be of great value. During peacetime, such lawbreakers' actions could even be qualified as a misdemeanor under Art.185 Part 1 of the CCU.

When classifying the theft committed under martial law, all the objective and subjective features of theft done in a secret manner of someone else's property (meaning classic theft) are inherent.
To my mind, debatable here is the matter of classifying the actions of persons according to Part 4 Article 185 of the CCU who have committed a theft in the regions of Ukraine unaffected by active military actions. Case in point, territories that have not been shelled by the enemy and where the malefactor in no way uses war-time conditions for property theft.

The addition made to the component part of an offense of Art.185 of the CCU, namely, the qualifying factor "committed under martial law," is an entirely proper response of the state to the challenges associated with the Russian Federation's armed aggression.

Given the changes in the criminal legislation of Ukraine, today, two types of looting may be distinguished:

1) war crime, defined as stealing items off the wounded or dead on the battlefield
2) crime against property, defined as secretly stealing the property of another under the martial law

It is precisely the second type of looters that mass media covers while publishing the rough justice videos of evil-doers tied to poles with their pants pulled down.

Written by ADVANQ lawyer Ivan Kostiuk