Criminal responsibility of military commanders, persons effectively acting as commanders, and other superiors under national and international criminal law

The article presents a comprehensive analysis of the criminal liability of military commanders, individuals effectively exercising command authority, and other superiors for offenses committed by subordinates, under both international and national criminal law. The study is driven by the protracted armed conflict initiated by the Russian Federation against Ukraine, which underscores the necessity of not only prosecuting direct perpetrators but also leaders and superiors who failed to implement proper control over their subordinates. Using a comparative legal framework, the paper evaluates Article 28 of the Rome Statute of the International Criminal Court and the newly enacted Article 31–1 of the Criminal Code of Ukraine (amended on 24 October 2024). It addresses the legal nature of command responsibility as a unique mode of individual criminal liability arising from omission—rather than co–perpetration. The work outlines the criteria for establishing effective command and control, evaluates the standards of awareness concerning subordinate misconduct (knowledge, constructive knowledge, potential knowledge, or conscious disregard), and investigates obligations to prevent, halt, or report crimes to competent authorities. Notably, it highlights divergences in phrasing between the national and international provisions–especially with regards to the scope of a commander’s duty, standards of proof for knowledge, ability to act, and consideration of objective situational factors. The analysis demonstrates that the Rome Statute adopts a more stringent approach, particularly concerning the definition and assessment of effective control. Moreover, the article explores practical and legal challenges in holding command figures accountable within irregular military structures, including volunteer battalions and private military enterprises. It also draws on jurisprudence from international tribunals (such as ICTY and ICTR) in interpreting and establishing command liability. Ultimately, while the Ukrainian legislative framework exhibits broad alignment with international standards, the article concludes that clearer definitions of effective and proper control and stronger evidentiary requirements are essential for the practical enforcement of command accountability in contemporary armed conflict settings.