Criminal liability of commanders for giving criminal orders on violation of laws and customs of war in the context of Russia's war against Ukraine

Abstract

The article examines the issue of criminal liability for commanders' orders to violate the laws and customs of war in the context of Russia's war against Ukraine. The author establishes that criminal liability in this case is based on the command responsibility concept of the sources of international humanitarian law. It is proposed that Article 438 (1) of the Criminal Code of Ukraine should provide for liability not only for giving an order or instruction to violate the laws or customs of war, but also for the failure of a superior who became aware of such violations by his subordinates to take measures to stop them and to notify the competent authorities of the crime. Courts in their verdicts against commanders of the armed forces of the Russian Federation, when qualifying under Article 438 of the Criminal Code of Ukraine, usually do not incriminate such an act as giving an order, but rather impute a specific violation of the laws and customs of war committed by his subordinates. When qualifying the actions of commanders and subordinates, the qualification formula usually refers to Article 28 (2) of the of the Criminal Code of Ukraine. However, many verdicts do not contain such a reference. The proposal to recognize the state-political and military entities of the Russian Federation as criminal organizations was supported. The author notes the formation of a legal axiom in judicial practice of unconditional criminal liability for all military personnel of the armed forces of the Russian Federation who, as part of a criminal organization, commit violations of the laws and customs of war on the territory of Ukraine. Within this axiom, an irrefutable legal presumption is distinguished: all military personnel of the armed forces of the Russian Federation are aware and familiar with the laws and customs of war, which they violated on the territory of Ukraine, executing criminal orders of the military and political leadership of the aggressor state, and therefore, consideration of the actions of these military personnel through the prism of the existence of a factual circumstance that excludes the criminal unlawfulness of an act, such as the execution of an order or instruction, is inadmissible, which is in line with the standards of international humanitarian law. Key words: execution of an order or instruction, circumstance excluding criminal unlawfulness of an act, violation of the laws and customs of war, complicity, criminal organization, crime, criminal liability, qualification, court practice.