Problematic issues of commanders' responsibility for war crimes

This article examines the issue of criminal liability of enemy commanders for war crimes. Two possible instances of commanders' participation in the commission of war crimes are identified: 1) direct commission of a war crime; 2) omission of the commander who did not directly commit a war crime, did not give orders to his subordinates to perform certain actions. The second instance is covered by the term «command responsibility», which extends to the commander's responsibility for omission. Under command responsibility a commander must be held responsible for failure to exercise proper control over subordinate forces, provided that he knew or should have known of the commission of criminal acts by his subordinates and did not take all necessary and reasonable measures within his authority to prevent or stop them committing. It is argued that the inaction of the commanders, who do not stop serious violations of the laws and customs of war provided for by international humanitarian law, is in itself a «violation of the laws and customs of war provided for by international treaties, ratified by the Verkhovna Rada of Ukraine», in the context of Art. 438 of the Criminal Code of Ukraine. Key words: criminal law, war crimes, commanders’ responsibility, command responsibility.