Criminal liability of military personnel during martial law: why general norms no longer work
- Chernenko Vladislav Vasilyevich
- Apr 12
- 3 min read
This question concerns everyone who is in uniform.
In my legal practice, I regularly encounter the same problem: a person in uniform falls under criminal proceedings - and the system applies the same approaches to it as to an ordinary civil crime.
But a serviceman is not an ordinary legal subject. He acts in extreme conditions, bears responsibility not only for himself but also for his unit, carries out orders in situations where a mistake costs his life. Standard criminal law tools are simply not adapted for this.
This is precisely what my new scientific article, published in the "Southern Ukrainian Legal Journal" (No. 3/2025) , is devoted to. I want to talk about the main thing - without being too academic.
The problem: the law is the same, but the situations are different
The current Criminal Code of Ukraine contains a separate section on war crimes — Articles 402–435. But the very logic of applying these norms is based on the general principles of criminal law: whoever committed the crime must answer for it.
This logic does not take into account the main thing: the conditions in which a serviceman finds himself during martial law are radically different from any other. Constant stress, combat losses, psychological exhaustion, the need to make instant decisions under the threat of death - all these are objective factors that influence human behavior.
Applying unified sanctions to such a situation is like treating different diseases with one pill.
What I propose: five key concepts
In my research, I have substantiated several interrelated doctrinal ideas.
1. Autonomy of the institute
Criminal liability of military personnel is an independent institution of criminal law with its own subject matter, principles, and mechanisms. It is not just a "part" of general criminal law - it has its own logic, which must be enshrined in law.
2. The plurality of objects of war crimes
Traditionally, it is believed that a military crime encroaches on one object - the established order of service. In reality, everything is more complicated. A serviceman is simultaneously a subject of general social, special military and defense legal relations. His unlawful behavior can violate all three levels simultaneously. This must be taken into account when qualifying.
3. Proportionate criminal repression
The same violation of discipline in a barracks and in a trench under artillery fire are fundamentally different situations. The sanction must be proportional not only to the gravity of the act, but also to the real conditions of service. Equality before the law does not mean ignoring objective differences in a person's position.
4. Preventive criminal law protection
The consequences of war crimes can be irreversible — loss of life, failure of a combat mission, breach of defense. The traditional model of “punish afterwards” is insufficient here. An institution of preventive protection is needed that operates before a crime is committed — through legal education, psychological monitoring, and early correction of behavior.
5. Technological transformation of military criminal law
Drones, artificial intelligence, autonomous weapons systems — all of this is already a reality of modern warfare. But criminal law still does not have an answer to the question: who is responsible for the actions of autonomous weapons? How to qualify cybercrimes in the military sphere? These issues require legislative regulation now.
What does this mean for a real military person?
Practically speaking, all of these concepts have one practical dimension: justice.
A person who breaks down psychologically after months on the front line and voluntarily leaves his position — and a person who deliberately evades service for personal gain — cannot receive the same punishment. The law must distinguish between the two.
A commander who made a decision in combat conditions with incomplete information — and a commander who abused his power behind the scenes — are different legal situations with different degrees of culpability.
Until the legislation enshrines these differences systematically, lawyers are forced to prove them in each individual case. This can be done. But it is much more effective if it is enshrined in law.
Where to read the full study
The article was published in the professional publication "Southern Ukrainian Legal Journal" (No. 3/2025), which is included in the list of scientific publications of Ukraine.
If you or your loved ones are involved in criminal proceedings against a military serviceman, seek advice. We know the specifics of these cases from the inside.
