The legal nature of command responsibility

The article examines the concept of command responsibility, new to the criminal law of Ukraine, which was introduced as a result of the ratification of the Rome Statute of the International Criminal Court and is reflected in Article 31-1 of the Criminal Code of Ukraine. This provision establishes the conditions under which a military commander, a person effectively acting as a military commander, or another superior bears criminal liability for the commission of any of the crimes stipulated in Articles 437–439, 442, and 442-1 of the Criminal Code of Ukraine, if such crimes are committed by a subordinate. The article emphasizes the specific nature of this provision, as command responsibility does not fall within the traditional institutions of Ukrainian criminal law such as complicity, accessory liability, or indirect perpetration. A comparative analysis of this provision with analogous norms in foreign criminal legislation is conducted. Three approaches to implementing command responsibility into criminal law are identified, which predominantly determine the legal nature of this phenomenon. It has been established that the chosen method of implementation expands the grounds for recognizing persons endowed with certain powers as subjects of relevant criminal offenses against peace, security of mankind and international law, despite the fact that the specified persons do not commit the objective aspect of such a criminal offense. In light of this, it is proposed that the article regulating the criminal liability of military commanders, persons effectively acting as military commanders, and other superiors be relocated to Section IV of the General Part of the Criminal Code of Ukraine, titled « Сriminally liable person (Сriminal offender).» The article also examines the possibility of differentiating command responsibility by formulating separate offenses for: failure by military commanders or other superiors to report a criminal offense committed by a subordinate, and cases in which a commander or other superior negligently allows a subordinate to commit a criminal offense. Punishment for such offenses should be less severe than for the commission of the crimes under Articles 437–439, 442, and 442-1 of the Criminal Code of Ukraine. However, the necessity for such differentiation should be based on enforcement practice in applying command responsibility norms.