Sergei Krivenko: Must a soldier carry out a criminal order known to be illegal?
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26 February 2022

by Sergei Krivenko, member of the Moscow Helsinki Group and director of the human rihgts group Citizen. Army. Law*

Source: Realnaya Armiya

In reply to questions that have come in as to whether a Russian soldier must carry out a (criminal) order known to be illegal, I feel it is essential to clarify the following.

The military actions initiated on 24 February 2022 by V.V. Putin on the territory of Ukraine are a gross violation of the principles of the United Nations Charter as formulated in Article 2, specifically:

3. All Members shall settle their international disputes by peaceful means in such a manner that international peace and security, and justice, are not endangered;

4. All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations;

The Russian Federation Criminal Code criminalizes the planning, preparation, and deployment or waging of aggressive war under Article 353, including crimes against peace and the security of humanity.

Modern international law unambiguously prohibits war as a means of conducting foreign policy. However, if an international armed conflict has begun, the conflict’s victims fall under the protection of the provisions of international humanitarian law (IHL) specified in the Geneva Conventions and the Hague Convention on the laws and customs of land war, which all the countries of the world have joined (as well as of other conventions and agreements). According to these and other provisions of IHL, the following acts are recognized as war crimes and crimes against humanity (this is an incomplete list):

  • killing, torture, and outrages upon the personal dignity of individuals not taking active part in military actions;
  • rape and other forms of sexual violence;
  • intentional strikes against civilian objects, the civilian population, and objects used for purposes of religion and culture;
  • destruction and seizure of enemy property not justified by military necessity;
  • use of banned weapons or munitions;
  • compelling citizens from the opposing side to take part in military actions against their own country;
  • declaring null or inadmissible in court the rights and claims of citizens of the opposing side;
  • launching an attack in the knowledge that such attack will cause incidental loss of civilian life, injury to civilians, or damage to civilian objects.

The 1968 UN “Convention on the non-applicability of statutory limitations to war crimes and crimes against humanity” established the principle of the nonapplicability of statutory limitations to war crimes and crimes against humanity. This principle means that the prosecution of a specific person for war crimes and crimes against humanity may be initiated at any time, even many years after the commission of these crimes.

According to Russian laws, a soldier of the Russian Federation is obligated to carry out the order of their commander (superior). The exception is the necessity of carrying out a (criminal) order known to be illegal. In accordance with Article 42, part 2, of the Russian Federation Criminal Code, “A person who has committed an intentional offense in execution of order or instruction known to be illegal shall be liable under usual terms. Failure to execute an order or instruction known to be illegal shall preclude criminal liability.”

Under the provisions of international law, orders to carry out an act of genocide, war crimes, or crimes against humanity are considered manifestly illegal. Subordinates must assess the legality of an order given by a superior, and they bear responsibility for carrying out orders that are clearly illegal for them (at the same time, the superior who gave the clearly illegal order bears responsibility in any case). Thus, the Nuremberg trial principles formulated by the UN Commission on International Law, indicate that “The fact that a person acted pursuant to order of his Government or of a superior does not relieve him from responsibility . . . provided a moral choice was in fact possible to him.”

* On 3 December 2021, by order of the Russian Federation Ministry of Justice, the Association to aid the defense of the rights of conscripts, conscientious objectors, and soldiers, “human rights group ‘Citizen. Army. Law,” has been added to the register of nongovernmental organizations carrying out the functions of a foreign agent

Translated by Marian Schwartz

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