Recently, Ukrainian authorities suspected a platoon commander in Russia’s 76th Air Assault Division of “systematic and coordinated war crimes,” such as murdering civilians in the Kyiv suburb of Bucha between March 7 and April 1, 2022. The suspect’s alleged crimes also involve consent to and failure to prevent and punish violent crimes committed by his subordinates. (Information on the Notice of Suspicion here.)

In addition to ordering the crimes, the suspect is being charged with a principle of international law known as “command or superior responsibility,” whereby individual military commanders, or political leaders, can be held responsible for their failure to exercise proper control over subordinates who commit atrocity crimes. This is one of the same principles under which Russian President Vladimir Putin has been charged by the International Criminal Court for the abduction of Ukrainian children. Let’s explore more about this topic as it relates to military personnel.

Proving a case of command responsibility requires establishing three key elements:

1. The existence of an operational superior-subordinate relationship between the military commander and the individual(s) accused of actually having committed war crimes.
2. The commander either knew or should have known that subordinates were about to commit, or had already committed, war crimes.
3. The commander failed to take all necessary and reasonable measures to prevent the commission of the crimes or, if the crimes had already been committed, failed to punish those responsible.

Central to proving such a case is the ability to demonstrate a military commander exercised effective operational control over subordinates in practice. An organizational chart written on a piece of paper is insufficient. Evidence could include call logs or communication intercepts demonstrating that the commander issued orders that were followed, duty reports submitted to the commander, the ability to enforce discipline, promote or demote soldiers, and other direct or meaningful facts.

It is generally considered a best practice to build these cases from the individual act or the “crime base” up. In other words, starting from the perpetration of the crime and proceeding up the military chain of command. The facts of the case: what occurred, who participated, and other relevant information, should be firmly established. With advances in technology, opensource intelligence, or OSINT, can be extremely valuable in helping to piece together an accurate narrative. OSINT refers to publicly available information, such as photos or videos, satellite imagery, news articles, blogs or social media posts.

Another recommended practice in building a command responsibility case is to look for related patterns of illegal activities across locations and military units rather than focusing on one incident in isolation. Evidence of repeated unlawful behavior by a commander’s subordinates may suggest a superior’s knowledge or approval of these acts, and any failure to take appropriate action to prevent their reoccurrence or punish the perpetrators can strengthen evidence in the case.

Building a case of command responsibility is demanding for investigators and prosecutors. Significant analytical work and information gathering from a wide-range of sources must be employed. There may be enormous amounts of data to process and analyze. Forensic analysis of the crime scene may not be possible if it is located in an area controlled by hostile forces. The chaotic nature of war may raise doubts about who knew relevant details of atrocities. Indeed, direct and conclusive evidence that a commander knew, or should have known, about the unlawful actions of subordinates and failed to take preventative or punitive actions is not often available.

Investigators and prosecutors should focus on gathering what information reached the commander from the battlefield, when, and what action was taken upon receipt of this information. Scrutinizing the flow of information across locations, units and timelines, will help build the factual foundation and establish credible and sufficient evidence of the commander’s operational control over subordinates. Particularly, whether actions taken by the commander were reasonable and appropriate to prevent or punish subordinates.

Comprehensive collection and analysis of available information and evidence is essential in establishing the three key elements of a case of command responsibility. The initial charges against the Russian platoon commander in Bucha create a valid expectation that the Ukrainian authorities will successfully pursue this case through the justice system.

Additional Resource

• ICRC explanation of Customary International Law, Rule 152 and Rule 153.