Command Responsibility and the War in Ukraine: Can Customary International Law Hold Russian Commanders Accountable for War Crimes?

Currently, neither Ukraine’s Constitution nor its criminal code establish the principle of command responsibility as a mode of criminal liability within the country. Key international statutes like Article 28 of the International Criminal Court and international case law, like the recently decided Case of Milanković v. Croatia, have firmly established the doctrine of command responsibility as a fundamental principle of customary international law applicable in the context of an armed conflict. Furthermore, the Milanković court affirmed a conviction based on command responsibility even in the absence of a clear domestic governing statute at the time the crime was committed, surviving an ex post facto law challenge.\nThis Comment posits that Ukraine should pass legislation to amend their criminal code to provide for command responsibility as a new mode of criminal liability. Ukraine should then use the doctrine of command responsibility to hold Russian commanders accountable for their war crimes committed after the bill’s passage.\nFurthermore, despite its constitutional ban on ex post facto laws, Ukraine can, and should, rely confidently on Milanković and other international precedent to begin prosecuting Russian military commanders under the theory of command responsibility for crimes perpetrated by their subordinates before the new legislation’s passage. Case law suggests command responsibility has been tempore criminis an essential component of customary international law for the entire span of the War in Ukraine, meaning Ukraine can retroactively hold Russian commanders liable for their subordinates’ war crimes even when there was no law on the books.\nAdoption of this principle will provide Ukrainian prosecutors with yet another (and arguably a more appropriate) mode of criminal responsibility to aid them in their pursuit of justice against even the most senior Russian military commanders and mercenary fighters alike for their subordinates’ war crimes committed in the ongoing War in Ukraine.