Features of criminal liability of military commanders, other persons effectively acting as military commanders, and other superiors

The article analyzes a new provision of Ukrainian criminal law – Article 31-1 of the Criminal Code of Ukraine, which establishes the institution of liability of military commanders, persons effectively acting as military commanders, and other superiors (the institution of command responsibility). The author focuses on the practical aspects of qualifying the omission of subjects of command responsibility and the specific features of sentencing them. The article proposes specific approaches to drafting the formulation of criminal law qualifications and charges. In particular, options for drafting the formulation of qualifications are suggested, considering various situations: the nature of the inaction of military commanders, persons effectively acting as military commanders, or other superiors; the commission of a crime by one or more subordinates; the commission of one or more crimes by a subordinate; the omission of one or more military commanders, persons effectively acting as military commanders, or other superiors. The indictment should indicate how, in a specific situation, alternative grounds for criminal liability of military commanders, persons acting as military commanders, and other superiors manifested themselves. The article states that when imposing punishment, the court should be guided by the limits of punishment provided for in the article (part of the article) of the Special Part of the Criminal Code of Ukraine. Specific approaches are proposed regarding the circumstances that should be interpreted as indicators of the severity of the crime and the personality of the guilty person when imposing punishment on military commanders, persons actually acting as military commanders, or other superiors. In particular, the court should take into account the nature of hierarchical relations, the scope of authority, awareness of the intentions of subordinates, and the number and severity of offenses that became possible as a result of omission. The author emphasizes the need to develop established practice in the application of Article 31-1 of the Criminal Code of Ukraine for the effective implementation of the institution of command responsibility in national criminal law.