Commanders will be responsible for the crimes of subordinates, which fall under certain articles of the Criminal Code. The Verkhovna Rada's Committee on Law Enforcement reported that the corresponding draft law is recommended to be adopted in the second reading as a law. The final version is currently unknown.
We will remind you that on September 17, the Verkhovna Rada adopted in the first reading bill 11484 on amendments to the Criminal and Criminal Procedure Code of Ukraine in connection with the ratification of the Rome Statute of the International Criminal Court and its amendments.
Among other things, this draft law introduces a new article 31-1 "Criminal liability of military commanders, other persons who actually act as military commanders, and other chiefs" to the Criminal Code.
According to it, a military commander or another person who actually acts as a military commander is subject to criminal liability for any crime provided for in Articles 437–439, 442, 442-1 of the Criminal Code, committed by a subordinate who, at the time of the crime, was under his command in actual command and control or, as the case may be, under his actual authority and control, as a result of the failure of such military commander or other person effectively acting as military commander to exercise proper control over such subordinate person, if at the same time he reliably knew or ignored information which clearly indicated that the specified subordinate committed or intended to commit such a crime, but did not take actions that he should and could have taken within the limits of his authority to prevent or stop the commission of a crime or to report such a crime to the pretrial investigation body (Part 1 Article 31-1 of the Criminal Code).
It is about the crime of genocide (Article 442 of the Criminal Code), crimes against humanity (new Article 442-1 of the Criminal Code), war crimes (Article 438 of the Criminal Code in the draft version), the crime of aggression (Article 437 of the Criminal Code in the draft version). In parts 1 and 2 of the new Art. 31-1 of the Criminal Code refers to the crime provided for in Art. 439 "Use of weapons of mass destruction" CC.
The head, whose legal status is not provided for in part one of this article, is subject to criminal liability for any crime provided for in articles 437-439, 442, 442-1 of the Criminal Code, if such a crime related to activities that fell under his actual responsibility and control, and was committed by a subordinate person, who at the time of the crime was under his actual authority and control, as a result of the failure of such a superior to exercise proper control over such a subordinate person, if at the same time he reliably knew or deliberately ignored information that clearly indicated that the subordinate person committed or intended to commit such a crime, but did not take measures that he should and could have taken within the limits of his authority to prevent or stop the commission of a crime or to report such a crime to a pretrial investigation body (part 2).
A military commander or another person who actually acts as a military commander, other chief in the cases provided for in parts 1 and 2 of this article is subject to criminal liability in accordance with the relevant part of this article and the article (part of the article) of the Special Part of this Code, which provides for liability for a crime committed by a subordinate.
The note defines that a military commander in this article should be understood as a person who is legally authorized to exercise command and control over one or more subordinates participating in hostilities and belonging to the armed forces of the state.
In this article, another person who actually acts as a military commander means a person under whose authority and control, in connection with the conduct of hostilities, there are one or more subordinate persons who participate in hostilities and do not belong to the armed forces state
The head in this article should be understood as a person, not specified in paragraphs 1 and 2 of the note to this article, who holds a position or is in a position that gives authority (authority) and control over one or more subordinates.
However, as noted by the Main Scientific and Expert Department of the Parliament, the implementation of this type of responsibility provided for in Art. 28 of the Rome Statute, should be based on the principle of the individual nature of responsibility (Part 2 of Article 61 of the Constitution of Ukraine), the main meaning of which is the impossibility of bringing people to criminal responsibility for actions they did not commit.
"We would like to draw attention to the fact that in the new Art. 31-1 of the Criminal Code specifies the criminal liability of military commanders, other persons who actually act as military commanders, and other superiors for any crime provided for in Art. Art. 437–439, 442, 442-1 of this Code, committed by a subordinate person who, at the time of committing the crime, was under his actual command and control or, depending on the circumstances, under his actual power and control.
At the same time, referring to the prescriptions of paragraph "a" of Art. 28 of the Rome Statute states that the responsibility of a military commander or a person who actually acts as a military commander is for crimes within the jurisdiction of the ICC committed by forces under his or her actual command and control or, as the case may be, under his or its actual power and control, as a result of his or her failure to exercise proper control over such forces in the relevant cases.
On the liability in certain cases of a commander who is not a military commander or a person who actually acts as a military commander for crimes falling under the jurisdiction of the ICC, committed by subordinates who are under his or her actual authority and control, as a result of his or her failure to carry out or her proper control over such subordinates, it is also stated in point "b" of Art. 28 of the Rome Statute. The use of these terms in the plural is obviously due to the fact that war crimes occur when they are committed as part of a plan or policy or as part of a large-scale commission of such crimes.
In addition, in Part 1 of the new Art. 31-1 of the Criminal Code indicates that the military commander or another person who actually acts as a military commander reliably knew or ignored information that clearly indicated that the specified subordinate committed or intended to commit the relevant crime, but did not take action , which he had to and could use within his powers to prevent or stop the commission of a crime or to report such a crime to a pretrial investigation body. However, in paragraph "i" of Art. 28 of the Rome Statute indicates that the military commander either knew, or under the existing circumstances at the time should have known, that these forces committed or intended to commit the relevant crimes" — noted the experts of GNEU.
They also added that in Art. 28 of the Rome Statute emphasizes the fact that the responsibility of commanders and other superiors under certain conditions arises for crimes falling under the jurisdiction of the ICC, committed by the relevant forces/subordinates.
Such crimes in accordance with Part 1 of Art. 5 of the Rome Statute includes the crime of genocide (Article 442 of the Criminal Code), crimes against humanity (new Article 442-1 of the Criminal Code), war crimes (Article 438 of the Criminal Code in the draft version), and the crime of aggression (Article 437 of the Criminal Code in the draft version). Instead, in parts 1 and 2 of the new Art. 31-1 of the Criminal Code refers in particular to the crime provided for in Art. 439 "Use of weapons of mass destruction" of the Criminal Code, which is not fully correlated with the provisions of Art. 28 of the Rome Statute.
We will remind that on August 21, the Verkhovna Rada adopted as law No. 3909-IX the draft law 15 on the ratification of the Rome Statute of the International Criminal Court and its amendments introduced by the President of Ukraine on September 0285.
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