Justified Combat Risk to Be Distinguished from Criminal Acts

After two years of applying Article 43-1 of the Criminal Code, the Parliament stated that its current wording is used as a formal justification for actions that go beyond what is defined by law and proposed changes. Bill No. 15452 has been submitted to the Verkhovna Rada aiming to change the approaches to assessing the actions of persons defending Ukraine. The main task of the document is to clarify the circumstances that exclude the criminal unlawfulness of an act during the performance of the duty to defend the Fatherland.

Background

Article 43-1, which was added to the Criminal Code in the first days of the full-scale invasion, was an "urgent necessity" to protect soldiers. However, practice has shown that its insufficient legal clarity turned the norm into a "formal justification" of clearly unlawful actions.

References to combat immunity began to be used to avoid responsibility for actions that exceeded military necessity.

Unfortunately, a practice arose of justifying cruel treatment of subordinates and management decisions that led to unjustified personnel losses.

At the same time, the current wording does not distinguish between the necessity of causing harm in battle and causing harm under conditions of justified risk.

What is proposed to change

The bill proposes to completely rewrite Article 43-1 of the Criminal Code of Ukraine, introducing two independent grounds for the lawfulness of actions.

The bill proposes to present Article 43-1 of the Criminal Code in a new edition and effectively distinguish two independent grounds under which causing harm during repelling armed aggression will not be considered a criminal offense:

• necessity in a specific combat situation — if causing harm to the life, health of the enemy, or other legally protected interests was necessary to repel or deter armed aggression;
• justified combat risk — if the harm resulted from actions taken to achieve a lawful military objective under conditions of combat risk.

This introduction is important because it legalizes actions that at the time of commission might have seemed risky but were aimed at achieving a lawful military objective.

Separately, the bill proposes to exclude from the Law "On the Defense of Ukraine" the provision that responsibility for violations of defense legislation occurs "taking into account combat immunity". This means that combat immunity will no longer be considered a general caveat for any liability for violations of defense legislation.

The bill for the first time introduces the concept of a "lawful military objective." This means not any desire of a commander, but exclusively actions aimed at repelling aggression, eliminating armed conflict, or protecting sovereignty, provided that these actions do not contradict the laws and customs of war. This formulation creates a safeguard: if an order contradicts international humanitarian law, it a priori cannot be considered a lawful military objective and therefore does not fall under combat immunity.

The most controversial and at the same time important part of the changes is defining the boundaries beyond which combat risk ceases to be justified. According to the draft text, risk is recognized as justified only if the person reasonably expected success and could not achieve the goal by less harmful means.

However, the legislator sets limitations: risk is not justified if it knowingly created a threat to civilian lives, an environmental disaster, or — which is key — knowingly created a threat of unjustified personnel losses without a real possibility of victory.

This is a direct response to society’s demand for accountability for command errors that cost lives without military expediency.

Exceeding limits

The draft introduces the definition of exceeding the limits of the duty to defend the Fatherland. This is intentional infliction of harm that clearly did not correspond to the combat situation. Such clarification allows investigative bodies to move away from general phrases and focus on the proportionality of actions. At the same time, exceeding limits entails criminal liability on general grounds, making it impossible to use the status of "defender" as justification.

The main consequence will be the creation of legal protection for those soldiers who act within military necessity and reasonable risk. At the same time, the law defines that combat immunity does not cover war crimes, torture (Articles 127, 437-442 of the Criminal Code), and deliberate neglect of subordinates' lives.

The bill also touches on the responsibility of civilians, whose actions are also not subject to criminal liability for the use of weapons, ammunition, or explosives against the aggressor, as well as for related damage or destruction of property.

Once the necessity of using weapons ceases, a civilian is obliged to comply with the law regarding its further storage, transportation, or surrender.

Thus, the concept of "combat immunity" directly extends to civilians participating in the defense of Ukraine in accordance with the Law "On Ensuring the Participation of Civilians in the Defense of Ukraine."

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