Responsibility of Commanders Under Russian Criminal Law in the Context of De Lege Lata

Abstract

The article deals with the issue of current reflection of the specific concept of international humanitarian law, i.e. command responsibility, in THE Russian Criminal Law. The emergence of such a specific penal construction is necessitated by the need to bring to justice commanders (or superiors regardless of their civil or military status) for condoning the commission of a crime. The latter, by virtue of their superior position over their subordinates, obviously have the possibility of preventing them from committing crimes. Accordingly, the failure to take appropriate measures to prevent subordinates from committing war crimes, which, directly or indirectly, may even encourage subordinates to violate international humanitarian law rules, should be punishable. The author refers to the history of this construction in international humanitarian law and examines the permissibility of the direct operation of the rules of international humanitarian law in this part. It is concluded that the commanding officer can be held liable under the Russian Criminal Law is only possible after the rule in question is established (or identified) in the Russian Criminal Law, and this rule completely meets a relevant obligation assumed by the Russian Federation, i.e. criminalizing the failure of a commander on the scale envisaged by international humanitarian law. The author goes on to the implementation of the relevant provisions in Russian and Soviet legislations and then refers to the 1996 Russian Criminal Code. The author concludes that the full scheme of such responsibility does not exist under the existing Criminal Code, since neither the General Part with regard to complicity nor the Special Part with regard to certain crimes provide for criminal responsibility of commanders. It is impossible to justify the commander's responsibility through the institution of complicity. Article 42 of the Criminal Code of the Russian Federation concerning execution of an order as a defense to criminal responsibility is not applicable. Articles 286, 293, 316 and 356 of the Criminal Code also do not cover the whole range of situations involving responsibility of the commander. However, there are complex criminal cases in which criminal responsibility could be properly justified only if the doctrine of command responsibility is applied.