Unfair trial and loss of soldiers. Why the law on toughening military punishment is dangerous for the army

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On December 13, 2022, the Verkhovna Rada (Ukrainian Parliament) adopted Law No. 8271, which significantly increases criminal liability for Ukrainian soldiers.

According to this law, the military will be punished more severely for unauthorized abandonment of a military unit, place of service and battlefield, desertion, refusal to use weapons, disobedience, and failure to perform combat missions.

For these violations, soldiers are subject to non-alternative criminal penalty – imprisonment for a term of 3 to 12 years (for most of these articles – from 5 to 10 years). At the same time, the law deprives the military of the right to early release or probation.

Valeriy Zaluzhnyi (the Commander-in-Chief of the Armed Forces of Ukraine) supported the law and called on Volodymyr Zelenskyy to sign it. However, human rights activists are concerned about the harsh innovations, and a petition to the President asking for a veto has already gained more than 34,000 signatures.

What is wrong with the scandalous law and how does it threaten the Ukrainian military?

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In the podcast “Damn Questions” of the Ukrainian news website “European Pravda” we talked to experts on this topic:

-Olga Reshetylova, co-founder of the Media Initiative for Human Rights;

-Yevhen Dykyi, a civil-military expert, former commander of an assault company in the “Aidar” battalion and director of the National Antarctic Research Center of Ukraine.

What does the new law on penalty for the military provide for?

The law amends articles 69 and 75 of the Criminal Code of Ukraine and eliminates the possibility of imposing a lenient sentence and exemption from probation.

This applies to the following criminal offenses:

Article 402 of the Criminal Code of Ukraine “Disobedience, i.e. open refusal to execute an order of a commander, as well as another intentional failure to execute an order”;

Article 403 “Failure to execute an order”;

Article 405 “Threat or violence against a commander”;

Article 407 “Unauthorized abandonment of a military unit or place of service”

Article 408 “Desertion”;

Article 429 “Unauthorized abandonment of the battlefield or refusal to use weapons”.

Military personnel accused of these crimes face from 3 to 12 years in prison. Moreover, under most of these articles, the military faces from 5 to 10 years in prison.

The law also increases fines for certain administrative offenses in the military sphere, and allows the Military Law-Enforcement Service to test soldiers for alcohol or drug intoxication, both at the front and in public places.

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What’s wrong with Law No. 8271

The law does not take into account any mitigating circumstances. In fact, it deprives servicemen of the right to a fair trial, says Olga Reshetylova.

“And this is not only a violation of the rights of specific servicemen, but in principle a violation of the constitutional rights of Ukrainian citizens because everyone has the right to a fair trial and defense,” the human rights activist explains.

The law specifies 6 articles on war crimes, under which lesser sentencing than these articles provide is impossible. This means that the court will not be able to consider mitigating circumstances, the expert explains.

“Now it doesn’t matter under what circumstances the offense occurred. What matters is the fact that someone did not fulfill the order. The judge has no right to consider the circumstances, and the judge has no right not to imprison the person immediately, if we are talking about failure to comply with the order, it is up to 7 years,” says Yevhen Dykyi.

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At the same time, it should be understood that the new law does not establish new criminal acts – all of these crimes provided penalties before.

“No one denies that it is true that you cannot disobey orders, you cannot run away from your position, and so on. But what does this law change? It changes the court practice.  We’ve been in a major war for 10 months, so, of course, these offenses could not but occur, and I think there is already a fairly progressive judicial practice on them,” says the former company commander.

Previously, the court determined the specific circumstances in which a soldier failed to comply with an order or fled from his position, and depending on these circumstances, would determine whether to punish him “to the fullest extent” or give him a lenient sentence.

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Such a soldier could be given a suspended sentence and sent back to fight instead of going to prison, so to speak, to atone for his actions in battle.

“As a person who has directly commanded soldiers in a trench, I can tell you that a serviceman who once made a mistake, got scared, but then returned ashamed, is fighting for three because he is ashamed in front of his comrades. And this motivation to restore one’s dignity, to restore self-respect, works much more powerfully than the fear of doing time. And this new law excludes all these options,” emphasizes Yevhen Dykyi.

The second danger the expert sees is the excessive powers of the Military Law- Enforcement Service of Ukraine.

“The Military Law-Enforcement Service is not even a kind of independent investigative body – it is still an internal structure of the Armed Forces of Ukraine,” Reshetylova says.

And according to the new law, representatives of the Military Law-Enforcement Service can, at their own discretion, assess whether a person is under the influence of drugs or alcohol without any forensic medical examinations or a medical examination.

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“This is a very dangerous story because we have repeatedly seen that over the years, the Military Law-Enforcement Service settled scores with some military personnel, when they worked for indicators rather than identifying real circumstances when representatives of the Military Law-Enforcement Service demonstrated their incompetence and low professional qualities. Without a qualified military police, it is not a good idea to give any additional powers to the Military Law-Enforcement Service,” Olga Reshetylova adds.

The expert also believes that the law shifts responsibility from commanders to rank and file.

“We know a huge number of ambiguous cases when soldiers leave the contact line for various reasons. Some were afraid, some could not withstand the onslaught of the opponent’s artillery and aircraft, and some lost contact with the command.  And when these soldiers withdraw, they are accused of cowardice, threatened with criminal proceedings, but the proceedings are often not opened,” the human rights activist says.

Sometimes military prosecutors or investigators who go to the scene begin to look into the situation and indeed come to the conclusion that this was the operational situation and that there was no other way to act.

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Sometimes cases are not opened because the investigation will lead to the conclusion that not only rank and file are to blame for the situation but also their commanders and higher command.

In some cases, it is indeed the fault of specific servicemen who simply did not want to follow orders. But for the most part, this is still the fault of higher commanders, because the army is a vertical responsibility, Reshetylova believes.

“The rank and file are practically not responsible for anything according to the structure of the army, the statutes, and our legislation. And if the soldiers do not have the appropriate weapons or communication with their commander, if they do not know what to do, it is all the responsibility of their commanders. It is a very bad idea to shift responsibility to rank and file,” the expert says.

Why is the new law harmful and what will be the consequences?

A split in society and the Armed Forces of Ukraine

“When we talk about this draft law, it is a fight against the consequences, not the causes because the reasons are much deeper,” believes Olga Reshetylova, co-founder of the Media Initiative for Human Rights.

Leadership qualities of commanders, moral and psychological support, work on motivating soldiers, establishing communication with neighboring units and explaining the tasks, in general, would help to avoid retreat from the positions.

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Instead, the new rules could create internal conflict in the units, burden the judicial and law enforcement systems, and cause social riots.

“In places where families of units that have suffered huge losses on the contact line live densely, we see very negative social attitudes. And we are doing our best to keep the families of missing persons and prisoners of war from going to the protests,” says Olga Reshetylova.

But if the pressure on the military and their families increases, mass protests may still occur.

“This initiative is actually playing into the hands of the enemy because it splits society, creates an internal conflict in the Armed Forces, and a split between the rank and file, officers and commanders. Instead of creating an atmosphere of trust, the law strengthens the claims of servicemen against their commanders. This is a very dangerous thing, we are undermining the motivation of the Ukrainian army in this way. And the consequences can be catastrophic,” Olga Reshetylova emphasizes.

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According to the human rights activist, the law is also unacceptable from the point of view of the Convention on Human Rights and international legal standards.

Some of the decisions which will be made as a result of this law may then end up in the European Court of Human Rights, and taxpayers will provide compensation to the military, Reshetylova said.

“I’m not talking about our moral obligation to the people who went to defend us voluntarily. Instead of thanking them, and providing them with normal conditions of service and respect for their dignity, we are turning them into criminals a priori. That is, not even evaluating their actions, but before they do it. We do not give them the opportunity to prove any other circumstances which forced them to act in one way or another,” says Olga Reshetylova.

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From a moral and ethical point of view, this law, according to Yevhen Dykyi, is shameful and insults the military.

“In fact, this law is based on the presumption that our soldier is not motivated, went to war only because he was caught by the draft board and handed a draft notice, and now he needs a kind of “barrier troops” from behind, thank God, at least not in the form of a shot in the back, but in the form of a ten-year term. I would understand if this law was passed out in fright on the first day of the war. But to propose such a law in the tenth month of a fairly victorious war is illogical, unethical, and a basic disrespect for all those who have endured these 10 months,” the former military says.

Loss of soldiers

Yevhen Dykyi, a former commander of an assault company in the “Aidar” battalion, believes that the new law also threatens to “cancel out” physically healthy soldiers who have made a mistake.

“Soldiers who really made a mistake once, but would have fought well and corrected their mistake, are instead taken from the frontline with full strength, still ready to fight,” adds Dykyi.

Inability to refuse inadequate orders

“A normal combat commander does not need this law. He understands that he needs to motivate his soldiers differently, in particular, by personal example.

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Commanders who go to combat with their soldiers will not tell them “follow me or you will get 10 years”. And soldiers will not follow them very rarely, under the unique circumstance,” believes Yevhen Dykyi.

In some cases, soldiers do refuse to follow orders, but the new law makes it absolutely impossible to consider a situation where an order was impossible to fulfill or simply inadequate.

“In addition to heroic commanders, the Armed Forces of Ukraine also have  so-called “boots” – graduates of that Soviet, “Surovikin” (named after Sergey Surovikin, the commander of all Russian forces in the Russian invasion of Ukraine since February 2022 ) school, for whom a soldier is a meat, and consumable, ‘I am the boss, you are a fool,” says Yevhen.

In his opinion, some commanders do not assess whether it is realistic to execute an order and what consequences it will lead to. However, there is now a balance in the Ukrainian Armed Forces where the shortcomings of the command staff are to some extent compensated for by the fact that experienced soldiers and commanders allow themselves a certain level of independence and ignore the most inadequate orders if necessary.

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“A conflict often appears when there is a “naphthalene miracle” from the above, that was pulled out of the reserve, and a sergeant from the below who has been fighting in the ATO (Anti-terrorist Operation Zone to identify Ukrainian territory of the Donetsk and Luhansk regions) for 8 years. And when this sergeant hears an absolutely inadequate order which actually forces him to lead his unit to certain death without any real result, what does he do? He screws a colonel like that,” says the former soldier.

Yevhen Dykyi talked to commanders who drew his attention to another problem. In particular, the concept of “failure to execute an order” includes a situation where the commander knows what his platoon is capable of and what it is not, but the higher leadership do not take this into account.

“Roughly speaking, an anti-tank platoon is used as miners, and radio operators platoon is used as assault infantry.

This is not disobedience to an order – there are units that are trained for different things, and they know what they can and cannot do. Adequate commanders understand this, and for inadequate ones, there is just a list of personnel,” explains Yevhen Dykyi.

The danger for commanders themselves

“You know, I didn’t want to raise this topic, but then I saw that other colleagues had raised it, so let’s speak frankly. This law creates a new danger. When you have a dilemma, when you are given a deliberately inadequate, crazy, stupid order and you have to either kill your people or go to jail, you have a third alternative,” says Yevhen Dykyi.

In his opinion, such pressure on servicemen can endanger those who give orders.

“A commander who gives an inadequate order and insists that “otherwise I’ll put you in jail” may accidentally get shot in the back.

We don’t have such a practice now, but the new law creates such a threat. It’s better not to put people in front of an inadequate choice,” emphasizes the former military officer.

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The overload of the judicial and penitentiary system

If the new law comes into force, the number of criminal proceedings will overwhelm the investigative bodies and the judicial system so much that it will simply not be able to withstand it, Olga Reshetylova believes.

“If we look into these proceedings, it is not clear what results can be achieved. If you want criminal proceedings and increased liability, then we will have to defend military personnel in order to prove who is really responsible,” the expert says.

Yevhen Dykyi also says that the new law threatens to overload the penitentiary system.

How the government can help the military

Legally, there is only one mechanism left to prevent the failed law from working  –  a presidential veto.

A petition to Volodymyr Zelenskyy asking for this on the first day gained 25,000 signatures.

“We are talking about a clumsy, erroneous law from a group of generals. And this draft law, unfortunately, was adopted by the Ukrainian Parliament in a hurry, without following the proper procedure. There was no gap between the first and second reading,” explains Yevhen Dykyi.

If the president vetoes the law, it can be revised in the relevant committees and subsequently adopted, but with certain amendments and taking into account a different point of view.

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“Maybe the generals will prove that some of these norms are extremely necessary. But at least some of them are definitely unacceptable,” emphasizes the former assault company commander.

“The question is, why do we need this draft law at all? It includes pressure and intimidation of servicemen, which will not work at all. What needed to be done was to create a normal, effective, full-fledged military justice system.

And if we are already talking about strengthening the role of the Military Law-Enforcement Service, then it should be transformed into a military police and this body should be created according to completely different principles,” the expert adds.

She advises starting with the establishment of a military ombudsman institute, which will oversee the investigation and administration of justice against military personnel.

Originally posted on the Ukrainska Pravda. Translated and edited by the UaPosition – Ukrainian news and analytics website

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