On 17 July 2024, the Verkhovna Rada (Ukrainian Parliament) adopted in the first reading of the draft law on the return to service of military personnel after the first absence without leave (AWOL) and desertion.

As noted on the website of the Ministry of Defense of Ukraine, “draft law No. 11322 opens up the possibility of returning to the service of servicemen and women who voluntarily left a unit or who deserted during martial law for the first time. In addition, they may be exempted from criminal liability.”

The draft law, in particular, provides that such servicemen can voluntarily turn to the investigator or prosecutor with the intention of returning to the military unit to continue their service. The serviceman’s intention must be approved by the commander.

Draft Law No. 11322 — “On Amendments to the Criminal Code of Ukraine, the Criminal Procedure Code of Ukraine and other legislative acts of Ukraine regarding the improvement of criminal liability for crimes against the established order of military service during martial law” — causes concern for military human rights defenders. Despite this, the law was adopted in the second reading on August 20, in particular with some amendments proposed by the Військово-безпекова профспілка України – Military and Security Trade Union of Ukraine (UUMS). But there is still a lot of work to be done in this field. In the following paragraphs, we will talk about the specifics of the mentioned draft law, our comments, and the steps that still need to be taken.

AWOL, especially desertion, is usually a complex, multi-layered phenomenon that has its own reasons. Accordingly, countermeasures against this should be comprehensive: it is necessary to overcome not only the consequences but also to eliminate the causes as a matter of priority. Unfortunately, the proposed draft law does not provide for this. Therefore, it does not establish a systematic approach to solving problems, and thus will not be effective.

As practice has shown, increased responsibility in these matters at one time did not give the desired result. Therefore, we do not expect that the relaxation of responsibility will give a quick result.

The following factors can contribute to positive changes:

• awareness of the inevitability of punishment for offenses both on the part of ordinary military personnel and on the part of the command staff and military leadership;
• fair and respectful treatment of those who sacrifice their lives and health for the sake of defeating the aggressor (it is necessary to understand that respect does not arise on an equal footing and cannot exist a priori to a senior in rank – it must be objectively earned.);
• the realisation that it is the human resource that has the highest value, especially in a war of attrition against an enemy that is superior in numbers.

Society cannot demonize military personnel who decided to take such a step or did such an act unintentionally. On the contrary, society should strive to ensure that the investigation into the causes of AWOL and desertion is conducted as honestly and efficiently as possible because such cases are rarely black and white. On the contrary, the deep mechanisms of the human psyche are involved here, on which war and hostilities have the most destructive effect.

Psychological component

In the military community, cases are known when fully motivated, reliable servicemen refused to perform combat tasks, voluntarily left the military unit, and deserted, being in a state of affect. Legislators should pay special attention to this aspect and legislate the provision of psychological assistance to persons who find themselves in such circumstances. This is a significant factor in restoring confidence in the command of servicemen who have lost their bearings and will contribute to their mental health, which is the basis of psychological readiness for combat.

AWOL due to unscrupulous commanders

Thus, some of the military personnel who consider AWOL due to unscrupulous commanders may be irresponsible persons or may not see themselves in the army. There are those who, on the contrary, are too tired physically and morally and in fact, can no longer be responsible for their actions.

However, there are servicemen who, before deciding on the AWOL, were in circumstances of extreme injustice on the part of their commanders, senseless and illegal decisions of the military leadership, etc. Among such servicemen and women, some have been serving in the army for more than one year and have combat awards.

For such soldiers, the concepts of military honour, fraternal shoulder, and mutual aid are part of their conscious choice and being as a whole. In addition, these people have a keen sense of justice. The return of a serviceman is possible to any unit, not only to the one that the serviceman left.

We must understand that when leaving the military unit, such soldiers can be clearly aware of the legal consequences of their actions and be ready for them. Accordingly, they may not be intimidated even by a term of imprisonment of 10 years, as is currently provided by the legislation. It is naive to think that such a person would want to return under the leadership of a commander who lost respect, behaved dishonestly, gave an illegal order, etc.

In this part, the law has a significant gap, because AWOL due to unscrupulous commanders and desertion often have two sides, one of which is, in fact, a military serviceman, and the other is the command, which did not manage to communicate with its subordinates.

In this regard, it would be absolutely reasonable that the return of a serviceman is possible to any unit, not only to the one that the serviceman left. Legislators should ensure that motivated and effective servicemen have the right to choose a military unit, the service in which will not bear additional moral burden, and a person will be able to show his best military qualities — and not only within the limits of the specified draft law, but also within the limits of other legislative acts.

Presumption of innocence and full investigation

The legislation in force in Ukraine is based on the presumption of innocence of a person. According to Article 62 of the Constitution of Ukraine, “a person is considered innocent of committing a crime and cannot be subjected to criminal punishment until his guilt is proven in a legal manner and established by a court verdict.”

Instead, the lawmaker proposed to declare a person guilty even before a court decision. On the one hand, this contradicts the Constitution, on the other hand, it creates a whole series of problems, which is not surprising when it comes to the discrepancy between the norms presented in the draft law and the basic law of the country.

A military serviceman could refuse to carry out a criminal order or face extreme manifestations of injustice, corruption, and abuse of official duties on the part of the commander. As it seems, under such conditions, the full picture that led to the voluntary leaving of the unit or desertion will never be investigated, and the guilty will not be punished, and servicemen who left the military unit with impunity will be able to return, and then do it several times. A full investigation must be carried out in every case of AWOL or desertion to establish all the causes and culprits, if any. And this should be prescribed in the law.

From experience, firstly, a serviceman may suddenly have a good reason that the commander could not take into account. Secondly, a psychological crisis could occur, during which a person is incapacitated and needed, and most likely still needs psychological help. Thirdly, a serviceman could refuse to carry out a criminal order or face extreme manifestations of injustice, corruption, and abuse of official duties on the part of the commander. And then the actions of the commander should be investigated, and the guilty should be punished.

According to Article 58 of the Statute of the Internal Service of the Armed Forces of Ukraine, “the commander (chief) is the sole commander and is personally responsible to the state for the combat and mobilization readiness of the military unit, ship (unit) entrusted to him; for ensuring the protection of state secrets; for combat training, education, military discipline, moral and psychological condition, preservation of life and strengthening of health of personnel; for internal order, condition and preservation of weapons, ammunition, military and other equipment, fuel and material resources; for comprehensive support of a military unit, ship (unit); for observing the principles of social justice“.

Accordingly, if the failure to fulfil these duties was the cause of the AWOL or desertion committed by the personnel, a transparent, honest, and impartial investigation should be initiated against such a commander. Legislators must necessarily take this factor into account when forming a legislative framework that would facilitate the return of servicemen to military service and the elimination of the phenomena of AWOL and desertion as such. There may be an amnesty for servicemen who have committed a felony or desertion for the first time (in contrast to the mechanism proposed by the draft law).

On the other hand, the court may find guilty a serviceman who, at the same time, seeks to return to military service. In such a case, according to the draft law No. 11322, a soldier should have the right to be exempt from punishment if he committed the crime for the first time. However, for this, as stated above, according to the law, such a person must be found guilty (and this is the only model in the country where the presumption of innocence operates — that is, no one can and cannot call him guilty of the AWOL), condemn and immediately amnesty.

In addition to complying with the current legislation, this way we will be able to avoid a situation where unscrupulous servicemen will repeatedly leave their military units, using the right to avoid responsibility for a crime committed “for the first time” as a legal loophole. At the same time, it is important that the legislators pay attention to several points that have not yet been taken into account. Ignorance of the serviceman about who exactly is investigating the criminal proceedings against him, and who is the prosecutor in these proceedings.

The position of a serviceman regarding further military service in that military unit, the commander through whom he went to the AWOL, deserted — even if such a serviceman was found guilty, and no illegal actions on the part of the commander were detected. The exclusive right of the commander to dispose of the fate of a serviceman (as proposed by the current version of the specified draft law), which will clearly give rise to well-founded mistrust on the part of servicemen, corruption risks, and in some cases the impossibility of obtaining exemption from punishment because the commander so simply decided.

Improve before the second reading

Ukrainian Union of Military and Security sent a letter to the Verkhovna Rada of Ukraine with relevant comments, noting that Ukrainian military personnel would like to see the law on exemption from responsibility for AWOL or desertion more balanced.

We emphasized that discipline in the army is not about fear, but about mutual respect. There is an explanation for the negative phenomena that exist in the army — and they lie not only in the behaviour of the rank-and-file but also often in the actions of commanders and military leadership.

People are the most valuable resource of the country and the army in particular. Those servicemen who left military units because of conflicts and injustice on the part of commanders want to return to service, but not to those commanders who forced them to leave their duties. The way out of this situation and the prevention of similar cases is the possibility of transferring such servicemen to other military units, under the leadership of other commanders.

On the other hand, the actions of dishonest and negligent commanders should be investigated fairly. Solving this problem is an urgent task for legislators, both within the framework of the discussed draft law and within the framework of the development of other legislative acts. The Verkhovna Rada took into account many comments from UUMS, but so far the question of an honest investigation of the actions of the commanders remains open. 

We are ready to cooperate with the Defence Forces and act as mediators between persons who committed AWOL and the military leadership. We are also ready to facilitate the creation of new military units where such servicemen could transfer. But we insist that the investigation be carried out in particular in those units where such phenomena are of a mass nature. After all, servicemen have the right to stay in their unit if everything suits them there, instead, the commander who commits an offense against the personnel must leave, making a place for a new adequate leader. We cannot allow a situation when new units will be created at the expense of the devastation of problematic ones without punishment and elimination of the guilty persons. After all, in such a case, people will continue to come to such problematic units, and later they will have another issue, so this situation will be endless. UUMS is currently planning the next steps to protect Ukrainian servicemen and women, whose exploits and struggles deserve the full support and respect of both society and their leadership.