Command Responsibility and the Ukraine Conflict

The news on the conflict in Ukraine is replete with violations of international humanitarian law (IHL), conveying the impression that soldiers have either been ordered to commit these crimes or have been allowed to do so (or a combination thereof). In the latter case, their commanders could be held responsible for their crimes. Commanders are considered particularly empowered to ensure compliance with IHL (Bemba 2016, para. 172). Therefore, they are responsible for crimes committed by their subordinates should they fail to take measures to prevent or punish the commission of such crimes. As van der Wilt and Nybondas explain, “[a] commander within the military organisation is aware that his position carries with it a number of responsibilities, also towards his subordinates, and accepts these responsibilities when embarking upon his duties” (p. 334)

This post examines the responsibility of military commanders in the conflict in Ukraine in light of Article 28(a) of the Statute of the International Criminal Court (ICC).[1] After defining command responsibility, this post categorizes the forces present on the ground. It then delves into and applies the elements of command responsibility to the categories of forces present in Ukraine.

Concept of Command Responsibility

The concept of command responsibility, also known as superior responsibility, stems from IHL (see Amann), being rooted in Article 1(1) of the 1899 Hague Regulations and eventually codified in 1977 in Articles 86(2) and 87 of Additional Protocol I (AP I). It is now deemed a norm of customary nature applicable to all States (see Commentary to Rule 153 of the International Committee of the Red Cross (ICRC) Study on Customary International Humanitarian Law).

While the Allies prosecuted commanders after the Second World War (e.g., Yamashita, von Leeb) one had to await the Statute of the International Criminal Tribunal for the former Yugoslavia (ICTY) (Article 7(3)) and that of the International Criminal Tribunal for Rwanda (Article 6(3)) for a codified and refined definition of command responsibility. The latest international iteration is found in Article 28 of the Statute of the ICC. The Court has clearly stated that command responsibility is a sui generis mode of liability used to hold criminally responsible military superiors for the crimes committed by their subordinates (paras 171, 174).

Both Ukraine and the Russian Federation are States Parties to AP I and are therefore bound by its command responsibility provisions. In March 2021, Ukraine adopted a law entitled “On Amendments to Certain Legislative Acts of Ukraine Concerning the Implementation of Norms of International Criminal and Humanitarian Law.” The amendments introduced a new Article 31-1 whose wording, though slightly different from Article 28(a) of the ICC Statute, provides for criminal liability of military commanders and other persons. It is, however, unclear whether a similar provision exists in Russian law. Although the ICRC Practice Relating to Rule 153 in the Russian Federation refers to the Internal Service Regulations of the Armed Forces of the Russian Federation, the wording does not seem to indicate that command responsibility is a mode of liability. The Criminal Code of the Russian Federation similarly does not include any provision on command responsibility.

While Article 86(2) AP I refers to three conditions to be fulfilled for command responsibility to apply (see also Commentary to Article 86(2) AP I, para. 3543), the ICC developed a six-element test in the Bemba case (para. 170). This post applies the latter test, with the exception of element (a) which is that the crimes be within the ICC jurisdiction, as this post focuses on commanders rather than on the Court’s jurisdictional matters.

Forces Fighting in the Conflict

To determine whether military personnel can be held responsible for acts of their subordinates it is important to develop the concept of subordination. Two caveats must be underlined. First, at trial, the Court would conduct a case-by-case examination of the facts. As this post aims to explore in general terms the possibility of applying command responsibility in Ukraine, a much broader approach will be taken. Second, to quote Professor Gary Corn, “[i]n an extremely fluid and fast-evolving environment, assessing the [existence, composition and structure] of these various resistance fighters [in relation to command responsibility] presents a near Sisyphean task with profound consequences.” To facilitate this task, I will identify and examine six categories of fighting organizations in the conflict.

Category 1 covers members of the armed forces of Ukraine and of the Russian Federation as well as groups and militias that are part of those armed forces. For example, a Belarussian volunteer battalion joined the Ukrainian armed forces and are thus treated as members of the Ukrainian armed forces. This category of fighters is trained in armed conflict, organized in a hierarchical structure, and follows the orders of a military commander.

Category 2 refers to special units such as the Federal Security Service (see here, p. 8) on the Russian side and the Security Service of Ukraine (see here) on the Ukrainian side. They usually do not fight directly but at times carry out combat missions with military units. They are organized, structured and, if engaged in fighting, are likely to follow the orders of a member of the armed forces.

Category 3 includes the Territorial Defence Forces (TDF) of Ukraine. Originally, the TDF were a paramilitary group trained and meant to train the local population to fight against a potential aggressor. When the conflict started, the TDF recruited civilians fighting under their loose command (see here and here). Yet, it was reported that “[b]efore receiving their guns, they were asked to form ad hoc units of about 10 men each and choose a commander.” Later, Ukrainian President Zelensky referred to the “Territorial Defense Forces of the Armed Forced [sic] of Ukraine.” The TDF were described as “an organized, civilian volunteer corps that apparently forms part of the Ukrainian Armed Forces.” If these members follow orders from the Ukrainian military command hierarchy or form part of the armed forces, they fall within category 1. Whether all TDF do is, however, unclear.

Category 4 covers foreign fighters. Following a call by President Zelensky, non-Ukrainian nationals have volunteered to join the armed forces of Ukraine as part of the UKR Legion (see here, here, and here). The UKR is a separate subdivision in the TDF. It has been reported that “[t]he international units are a component of the country’s regular armed forces and report to its general staff. Foreigners serve under Ukrainian officers.” On the Russian side it appears that some foreign professional fighters have been paid to fight and it seems that they have been integrated into the armed forces.

Category 5 includes independent groups that seemingly have no links to armed forces. For example, the troops of Ramzan Kadyrov, a Russian and Chechen politician, “highlight that they are under the command of Kadyrov, not the Russian military hierarchy.” They are hierarchically structured and obey local commanders. The private military group Wagner might also be present on the ground, but little is known about them but for the fact that they are organized similarly to armed forces but are not part of the Russian Federation’s armed forces.

Finally, category 6 refers to individuals who took part in the levée en masse at the inception of the conflict. Under Article 4(A)(6) of Geneva Convention III, they are not yet organized, nor do they necessarily take orders from a commander as the very idea of levée en masse is that, as Alcala and Szymanski emphasize, the “participants … must not have had time to form themselves into regular armed units.” This category is thus dismissed for the purpose of an examination on command responsibility.

Military Commander or a Person Effectively Acting as a Military Commander

Turning to the elements of command responsibility, first it must be demonstrated that the accused is either a military commander or a person effectively acting as a military commander.

Military commanders are persons formally or legally appointed to a military commanding function and have been referred to as de jure commanders (para. 176; see also ICC Commentary). Commanders of groups in categories 1-4 are likely to be de jure commanders (for de jure commanders of foreign fighters, see Delić 2008, paras 364-368). The term also applies to those appointed in non-governmental irregular forces (Bemba 2016, para. 176) and could be relevant to category 5. Their specific ranks are not relevant to the question of command; command at either a high or low level of leadership is sufficient (Bemba 2009, para. 408).  

Yet, the “[f]ormal designation as a commander should not be considered to be a necessary prerequisite for command responsibility to attach, as such responsibility may be imposed by virtue of a person’s de facto, as well as de jure, position as a commander” (Delalić et al 1998, para. 370). The reality on the ground means that often individuals assume command over units; command in a formal sense arises from factual circumstances (Limaj 2005, para. 522).

Even de facto commanders, who have not assumed formal command designation, qualify as “persons effectively acting as a military commanders” since they exercise effective control over subordinates through a chain of command (Bemba 2009, para. 409). This broad category covers persons responsible for paramilitary units not incorporated into the armed forces (see ICC Commentary) and individuals not performing exclusively military functions (Bemba 2016, para. 177). It would thus include commanders of category 2 (depending on their powers), category 3 (in cases where individuals have assumed such a role while deployed) and category 5. 

In conclusion, while the majority of those in command are likely to be de jure commanders, many may qualify as de facto commanders. 

In Effective Command and Control or Effective Authority and Control over the Forces

Second, the accused must be in “effective command and control” or in the case of the person effectively acting as a military commander in “effective authority and control.” It has been observed that effective authority and control  “encapsulates the ‘qualitative test’ as to the nature of the superior-subordinate relationship as such” (ICC Commentary). While “command and control” relates to issuing orders and conveys the idea of a chain of command and “authority and control” appears to cover a broader range of situations, the ICC explained in Bemba (2009, para. 412) that “‘command’ and ‘authority’ under the two expressions has no substantial effect on the required level or standard of ‘control’”.

What matters is whether the control is effective and whether a superior-subordinate relationship can be established. Effective control refers to the material ability or power to control subordinates. In the case of de jure military commanders, a formal capacity to control is assumed as the command position authorizes the commander to issue binding orders (Delalić et al 2001, para. 197).

Nonetheless, authority is not in itself sufficient. Actual ability to exercise control is required to establish command responsibility (Bemba 2016, paras 183, 189). “[S]ubstantial influence as a means of control” is not enough either (Bemba 2016, para. 183). The material ability is tested on a case-by-case basis, using concrete evidence (Blaškić 2004, para. 69). The ICC has listed indicators to assess the actual possession of powers of control (Bemba 2016, para. 188). application of these factors to foreign fighters in Delić 2008, paras 364-368), as well as the lack of effective control (Bemba 2016, para. 190) over the actions of subordinates.

Without further information on the structure of each of the above-mentioned categories, it is difficult to determine whether commanders are in actual, effective control over the forces. However, if there are instances of disobedience or non-compliance by subordinates (Bemba 2016, para. 190; Hadžihasanović 2008, para. 230) such as the report that a Russian brigade commander was attacked by his own troops, then it appears that the commander does not exercise effective control. The fact that some groups work as specialized units (see Categories 2 and 5 to some extent), hold a special position, or enjoy autonomy does not mean that commanders do not wield effective control. The opportunity to set out operational goals, explain how to achieve them, and coordinate units while leaving discretion to the units to carry out operations on the ground independently may nonetheless amount to effective control (Delić 2008, para. 465).

Although Article 28(a) of the ICC Statute refers to “forces”, thereby conveying the impression that it might be limited to armed forces, case law establishes a broad range of “fighters” (ICC Commentary) who qualify as forces. In fact, the Court use forces and subordinates as synonyms (Bemba 2009, para. 428). The word “forces” would then cover all five categories considered in this post.

Thus, commanders of “forces” in the five categories could potentially be deemed to be in effective command and control or effective authority and control.

Knew or Should Have Known

Third, the accused must know or should have known that their forces were committing or were about to commit crimes. These two situations are referred to as actual and constructive knowledge (see Commentary on Rule 153, ICRC Study on Customary IHL).

Actual knowledge that a crime was about to be committed or was committed cannot be assumed (Bemba 2016, para. 191) though “actual knowledge may be proven if, ‘a priori, [a military commander] is part of an organised structure with established reporting and monitoring systems’” (Bemba 2009, para. 431). Following this latter view, it may be assumed that commanders of armed forces such as those mentioned under categories 1, 3 and 4 have such actual knowledge. Recent radio communications between Russian troops certainly show that commanders are aware of crimes being committed (e.g., attack on a residential neighbourhood). Only a total lack of communication between military commanders and armed forces could absolve commanders of their responsibility based on actual knowledge.

The ICC has emphasized that it is the knowledge of the accused that must  be established; the fact that the public or other organisations are aware of the crimes does not necessarily attribute knowledge to the commander (Bemba 2016, para. 193). Either direct or circumstantial evidence of knowledge must be adduced (Bemba 2016, para. 191). The ICC has listed a number of relevant factors for evaluating knowledge (Bemba 2016, para. 193; see also Mucić 1998, para. 386). Such knowledge could be difficult to prove in category 3 as it is unclear how civilian elements of the group report to military commanders and therefore how commanders know that crimes are about to be committed or were committed. It would, however, be less difficult for the other categories that appear to have established reporting mechanisms.

Commanders may also be held responsible based on constructive knowledge of their subordinates’ offenses. While the ICTY used the “reason to know” standard (see e.g., Delalić et al 2001, para. 241), the ICC Statute refers to cases in which the accused “should have known”, which “requires more of an active duty on the part of the superior to take the necessary measures to secure knowledge of the conduct of his troops and to inquire, regardless of the availability of information” (Bemba 2009, para. 433, emphasis added). Accordingly, commanders can be held responsible if they fail to apprise themselves of the conduct of their subordinates (Bemba 2009, para. 432). Many of the cases in categories 1-5 are likely to involve analysis under the constructive knowledge standard as even if monitoring and reporting procedures are in place.

Failure to Take All Necessary and Reasonable Measures

Fourth, when commanders know or should have known of crimes by their subordinates, they are obliged to take all necessary and reasonable measures: 1) to prevent the commission of the crimes; 2) to repress the commission of the crimes; or 3) to submit the matter to the competent authorities for investigation and prosecution. While this ICC formulation is slightly different from other statutes, the duties upon the commander are the same (see ICC Commentary) and their obligations are considered along a time continuum: before; during; and after the unlawful act.   

The first duty is to prevent subordinates from planning and preparing a prospective crime. This can be done by, for example, ensuring that the forces are aware of IHL rules, securing reports that the law is being complied with, effectively addressing criminal conduct, postponing military operations, suspending, or excluding subordinates so that they do not have the opportunity to commit crimes, and taking disciplinary measures to prevent the perpetration of crimes (Bemba 2009, para. 438).

The duty to repress obliges commanders not only to stop the ongoing commission of the crime but also to appropriately address offenders after the commission of crimes (Bemba 2009, para. 439). This obligation includes imposing appropriate sanctions, conducting an investigation, securing a follow up to that investigation, as well as fostering an environment of discipline and respect for IHL (Orić 2006, para. 336).

After the commission of the crime, the duty to submit the matter to competent authorities requires the commander to take active steps to ensure that the perpetrators are brought to justice. This is viewed as an alternative to punishment meted out by commanders, thereby remedying a situation where commanders do not have the ability or authority to sanction their forces or where the measures are inadequate (Bemba 2009, paras 440, 442).

Necessary and reasonable measures within the power of the commander must be evaluated in conjunction with the concept of effective control. Indeed, corrective measures will depend on the position of the commander and thus “[w]hat constitutes such measures is not a matter of substantive law but of evidence” (Blaškić 2004, para. 72). It boils down to: what would have any commander objectively done in concreto in these circumstances and which measures were “within his material possibility” (Bemba 2009, para. 443)?

Whether the measures are necessary and reasonable must be evaluated against inter alia the number of crimes, the reliability and probative value of the evidence, the limitations faced by a commander located some distance from where the crimes occur, and, most importantly whether the measures were within the commander’s authority (Bemba 2018, paras 181, 183, 189). While it is generally agreed that “[s]ince a superior is duty bound only to undertake what appears appropriate under the given conditions, he or she is not obliged to do the impossible” (Orić 2006, para. 329), the Bemba Appeals judgment has been criticized (see e.g., Amann 130-131; Murphy 118) for setting too low the bar of what is expected of commanders, allowing them “to make a cost/benefit analysis when deciding which measures to take, bearing in mind their overall responsibility to prevent and repress crimes committed by their subordinates” (Bemba 2018, para. 170).

In relation to the conflict in Ukraine, this can only be evaluated on a case-by-case basis. For categories 1, 2, and 4, military commanders of armed/special forces have (usually) the powers to prevent and repress the crimes as well as submit the matter to the relevant authorities. Examples include providing instruction in IHL, supervising the monitoring system, imposing disciplinary and penal measures, redeploying the troops in an area where they are less likely to commit such crimes, etc. In contrast, commanders of other categories might be more limited in the type of actions that they can take, especially those commanding “civilian” elements in category 3. Also, commanders of Category 5 may find it difficult to report crimes to the competent authorities though they would be able to prevent or repress the crime.

Causal Link

Last, the ICC Statute stipulates that the crimes committed by the forces must have been a result of the failure of the commander to exercise control properly over them, a provision that stands in contrast to the case-law of the ad hoc tribunals which only required a relation to be established between the commander’s failure to exercise control and the crime. The ICC has clarified that “[t]here is no direct causal link that needs to be established between the superior’s omission and the crime committed by his subordinates. Therefore, the Chamber considers that it is only necessary to prove that the commander’s omission increased the risk of the commission of the crimes charged” (Bemba 2009, para. 425).

The fact that crimes committed by Russian armed forces go unpunished gives the wrong signal to members of the armed forces who are then emboldened into committing further crimes. Yet, again, this assessment needs to be carried out on a case-by-case basis and requires a much better knowledge of the situation on the ground.

Conclusion

In summary, although it is possible to some extent to argue that military commanders of the five categories (armed forces, special forces, TDF of Ukraine, foreign fighters and independent groups) can be held responsible for the war crimes committed by their subordinates, one needs to remember that any such legal assessment must be carried out on established facts. In the absence of such reliable and credible evidence, this examination and application of the law can only touch the surface and provide an overview of the potential issues. 

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Noëlle Quénivet is Professor of International Law at the Bristol Law School of the University of the West of England (United Kingdom).

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Footnotes

[1] The Rome Statute of the ICC addresses superior responsibility for civilian leaders separately in Article 28(b). This post restricts analysis to military commanders under Article 28(a).

Photo credit: Ministry of Defense of Ukraine via Flickr