Combat immunity

The concept of combat immunity implies the exemption of military personnel from criminal liability for actions carried out during combat assignments, as long as these actions were legal and in accordance with orders from the command and military regulations.
Fedir Venislavskyy, a member of the Verkhovna Rada's National Security and Defense Committee, stated that "the Supreme Commander-in-Chief Volodymyr Zelenskyy and the military command have immunity from liability for decisions made on the battlefield."

This statement primarily referred to the consequences of the introduction and withdrawal of Ukrainian units from the Kursk region.

Who was at fault and who wasn’t will be determined by competent authorities later.

However, as this statement (backed by an informational attack by Bankova’s bots on social media) sparked heated debates, particularly about whether such protection as combat immunity can apply to a civilian, such as Zelenskyy, we will examine this interesting topic.

In essence, the concept of combat immunity implies the exemption of military personnel from criminal liability for actions carried out during combat tasks, provided these actions were legal and complied with the orders from the command and military statutes.

However, this immunity is not absolute and does not apply to war crimes or illegal use of force.

In Ukraine, the concept of combat immunity was codified at the legislative level in March 2022 when a new article 43-1 was added to the Criminal Code, "Execution of the duty to defend the Homeland, independence, and territorial integrity of Ukraine." At that time, law No. 2124-IX was adopted, which clarified the grounds that exclude criminal responsibility in combat conditions and made changes to the Law of Ukraine on Defense.

According to the current legislation, combat immunity applies not only to soldiers but also to the command. The law specifies that military command includes, among others, the Supreme Commander of the Ukrainian Armed Forces, commanders of joint forces, leaders of various branches of the military, and unit commanders.

Thus, Zelenskyy, as Supreme Commander-in-Chief, formally falls under this immunity. The same applies to former President of Ukraine Petro Poroshenko.

However, the greatest concern in society is the double approach to the application of this principle.

The question arises: why does combat immunity not apply to the military generals who were arrested in January 2025 on charges of inadequate defense of the Kharkiv region during the Russian offensive in May 2024? These include former commander of the Kharkiv operational tactical group Yuriy Halushkin, former commander of the 125th Brigade of the Territorial Defense Forces Artur Horbenko, and former commander of the 415th battalion of the 23rd Mechanized Brigade Illia Lapin – and many others.

Similarly, the question arises as to why combat immunity is not taken into account in cases against Petro Poroshenko when assessing his orders as Supreme Commander-in-Chief?

These cases were beneficial to Russia at the time and can be seen as part of efforts to destabilize Ukraine.

In particular, this relates to the criminal case opened against Poroshenko for his order regarding the counteroffensive in June 2014 when Ukrainian forces liberated two-thirds of the occupied Donbas. The complaint was filed by Nestor Shufrych on behalf of the banned pro-Russian party "Opposition Platform – For Life." The accusations were about "bloodshed."

Another case concerns the decision to send military ships for rotation to the Azov coast of Mariupol in November 2018. A case was opened based on a statement by Andriy Portnov, who accused Poroshenko of attempting to escalate the conflict with Russia and "usurping power."

These cases were not only directed at Poroshenko personally but also opened access for Russian agents to critically important information.

For example, in November 2019, the Pechersk Court allowed the State Bureau of Investigation to seize documents from the General Staff of the Armed Forces of Ukraine, including the Strategic Plan for the deployment of Ukrainian forces.

The prosecution of the former Supreme Commander-in-Chief for decisions made as part of defending the country points to selective justice. This raises questions about the political motivation behind the cases and the potential use of legal mechanisms to settle scores.

Combat immunity was created to protect those who make difficult decisions during wartime.

Its selective application, especially against military commanders and former state leaders, undermines the very essence of this legal tool and opens the door to abuses.

Source

About the author: Rostyslav Pavlenko, Ukrainian politician, political scientist, political technologist, lecturer. Member of the Verkhovna Rada of Ukraine, 9th convocation.

The editorial team does not always share the opinions expressed by the authors of the blogs.