"Harsher penalties won’t restore discipline in army. It will only lead to more going AWOL"
The Verkhovna Rada’s Committee on Law Enforcement recommends passing at first reading draft bill No. 13452, setting a five-to-ten-year prison term for service members who disobey a commander’s order, with no option for courts to hand down a lesser punishment or grant probation.
The authors of the bill justify its adoption by citing the need to strengthen discipline within the Defense Forces and point to requests from the service members themselves. However, once information about the possible changes spread, the issue immediately sparked broad discussion, with particularly sharp criticism coming from the military. Service members addressed the bill’s authors directly, suggesting they should try storming a tree line themselves, especially when such an assault is not just poorly planned but falls into the "forward, forward" category, where senior commanders ignore the fact that troops are being driven for weeks along a single road already well-targeted by the enemy, that there is no operational plan tailored to the specifics of a given sector, and that soldiers themselves are not properly prepared.
Whether such legislative changes are truly needed now, and what consequences they might bring, was examined by a Censor.NET journalist.
HARSHER PENALTIES ONLY DEMOTIVATE SOLDIERS
The initiators of the draft law are People`s Deputies Maksym Pavliuk, Serhii Ionushas, Vladlen Nekliudov, and several other deputies from the Servant of the People faction. Justifying the need for tougher punishment, one of the authors, Chairman of the Verkhovna Rada Committee on Law Enforcement Serhii Ionushas, stated: "Our committee actively cooperates with the General Staff of the Armed Forces of Ukraine and takes into account proposals received from the military. It was the commanders of combat units of the Armed Forces (around 20 commanders) who insisted on the need to implement these initiatives and improve certain aspects of the legal liability of service members, and who, if not they, know best what changes they need today."
But questions remain as to which commanders, and of which units, insisted on harsher penalties. Commanders from various levels and very different units, from assault regiments to infantry brigades, say that stricter punishments only demotivate soldiers.
"This way we’ll get to the point where soldiers will be executed for disobeying a commander’s order," said a combat officer who rose through the ranks from company commander to brigade commander and still serves in the Armed Forces. "Failure to follow orders is a pressing concern, but there must be an individual approach to each specific case. On the one hand, everyone, from the president to a battalion commander, stresses the value of every soldier’s life. On the other hand, we end up killing that soldier by sending him on poorly planned assaults. Why does this happen? Because sometimes instead of planning, we are just ‘putting out fires’: rushing to urgently regain lost positions… It’s clear that if I were in the soldier’s place, I would also say I’m not going into that tree line. We need to clearly understand the reasons for refusal, what they are tied to," he emphasized.
This commander, incidentally, faces criminal proceedings specifically over lost positions. For that reason, his name is not being disclosed. However, the soldiers who served under his command hold him in high regard for protecting them and refusing to send them on ill-conceived missions.
"It is the brigade commander who pushes back against frontal attack orders from higher command," the colonel explained. "That is why my soldiers did not refuse to carry out the tasks I assigned them. They trusted me and saw that both the brigade commander and the battalion commander made every effort to ensure things were done properly. More than once, when ordered to ‘storm a tree line,’ I responded with questions: using what, with what weapons? It is written in the duties of any commander that he must provide his soldiers with everything they need! There may be a vehicle to take them on the mission, but it has no wheels. Or there is only enough fuel for half the journey. That means I cannot ensure the order is carried out. It has long been calculated and well known: to stop a tank, you need to fire at least two anti-tank guided missiles. If I can give my soldier only one ATGM, then he cannot complete the task, because he is not sufficiently equipped. Any commander in such a situation must report that his soldiers have nothing with which to accomplish the mission. But there are others who simply say ‘Yes, sir’ and send people into the assault. I have personally seen this too many times, soldiers being ordered to storm across open ground in broad daylight, when the enemy immediately sizes up the situation and does not allow anyone even to reach the positions. We lose both soldiers and equipment. Why do this? And the other soldiers of the same unit are not fools. They see that they are being thrown away as expendable… And, of course, they refuse to follow such orders."
It turned out, upon clarification, that there are units where cases of disobedience do not even reach the stage of opening criminal proceedings. First, there is no time for that. Second, the officers responsible for personnel psychological support, who are supposed to handle such matters, "lose" these cases. And third, they try to resolve such issues within the unit itself by reassigning those who refuse orders to other positions.
"I had a soldier who, before a battle, laid down his weapon and, on camera, refused to carry out a combat order," recalled war veteran and former company commander of the 47th Brigade, Senior Lieutenant Mykola Melnyk, who lost a leg in fighting during the 2023 counteroffensive. "As a result, he was transferred to an air defense unit… He faced no responsibility whatsoever. If you look at the statistics, they show minimal numbers of those actually convicted under this article. Because at any moment, a person who disobeyed an order can say, ‘I’ve changed my mind,’ and return to the front."
In the 1st Separate Assault Regiment, it turns out there is no such notion as "disobeying a commander’s order" at all. Perhaps that’s because, as the name suggests, assaults are their day-to-day work. They are precisely the ones who are regularly sent to sectors from which troops of other units have fled. "Whenever we go to stabilize a section of the front line, our first step is to speak with those who left that area," explained Oleh Lototskyi, chief of staff of the 1st Separate Assault Regiment named after Dmytro Kotsiubailo. "There have been cases where entire battalions refused to return to their own lost positions. We talk with the soldiers and explain that they will go in together with our assault troops, experienced, capable. As a rule, it’s a long conversation that takes a couple of hours. But, as a rule, once we explain what exactly will happen, how it will happen, and who will lead them into the fight, they agree."
"In our regiment, there are no cases of refusing to go on an assault. We work with every soldier already at the training stage, we motivate everyone and explain who they will be going into battle with, that their commanders know what they’re doing. It works. And tougher penalties will only, in my view, lead people to become so resentful toward the country that they’ll think only about how to leave it. At least those who go AWOL have a second chance. Many units are now being staffed precisely with soldiers who had gone AWOL. I think more than 100,000 have already returned, to units where they feel better than the ones they left when they went AWOL. A person can be a good fighter, but where he ended up there is no proper command, he doesn’t like the team, he doesn’t mesh with the other soldiers. In another unit, that soldier has a chance. We have an example: a man who had been fighting since 2014, who had no infractions and had devoted half his life to the brigade. At some point, something changed; he asked to be transferred to us. He wasn’t allowed. So he went AWOL. They wrote him up for ‘disobedience.’ But this soldier knew the law well and explained: ‘No such tasks were ever conveyed to me.’ In the end, he came to us. His motivation didn’t drop; he continues to fight effectively. In strong units, people are motivated through conversation and motivation. And such tougher penalties could backfire on us. People will grow disillusioned and angry. And it will only get worse."
"MOST FIGHTERS DID NOT EVEN KNOW THAT THERE WAS LIABILITY FOR DISOBEDIENCE"
In fact, liability for disobedience has always existed. All the service members we spoke with agree that there must be liability for such an act. The only question is how such cases should be investigated.
"Before these discussions about tougher penalties, most soldiers did not even know that such liability existed," explained Senior Lieutenant Mykola Melnyk, a veteran and former company commander of the 47th Brigade. "Every soldier fills out an acknowledgment form confirming he has been informed of liability for failing to obey an order. But only a few ask what that liability actually is. Because of the media spotlight, a soldier has now learned he can get five to ten years for refusing to carry out an order and he is outraged that in such cases the court would be unable to impose a lighter sentence. Even if the bill is passed, it will not restore order in the army. More people will simply go AWOL. No one will wait for the moment when a commander approaches and a soldier has to say on camera that he refuses to carry out an order…"
"As far as I recall, the current version of Article 402 appeared in 2015. I think a new version was needed then because during the ATO, soldiers began mouthing off to their commanders over certain orders… But, by and large, part 4 of that article was almost never applied. It started to be invoked more frequently after the full-scale invasion began in 2022. And after 2023, when service members had ‘walked the minefields’, it became a staple for our personnel psychological support (PPS) officers. But as for anyone actually being imprisoned under it, I haven’t heard of such a case, even though the whole country has seen that sometimes entire platoons refuse orders."
Regarding the statistics, Olha Reshetylova, the President’s Commissioner for the Protection of Service Members’ Rights, responded to the proposed bill. Her official explanation includes data showing how the law currently operates:
"Since the beginning of 2025, I have been monitoring court proceedings related to so-called military offenses. During this period, I recorded 257 judgments that entered into legal force in cases where defendants were charged with disobedience.
At the same time, I saw only one (!) acquittal. The overwhelming majority of judgments are convictions. Some court decisions approve plea agreements, which allow a service member to return to duty. If the proposed bill is adopted, this procedure will be impossible. The service member will serve a sentence of five to ten years."
Amendments were made to this law in 2022, specifically to increase penalties. At that time, courts had already been prohibited from handing down lenient punishments, as the majority of cases under this article resulted in a fine or service restriction. And, as Olha Reshetylova notes: "In 2022, 9,037 such offenses were recorded, and in 2023 (after the law entered into force) the figure was 15,013. Therefore, the argument that stricter criminal liability can raise the level of discipline appears dubious."
Legal experts also question the proposal. "In wartime, there must, of course, be liability for refusing to carry out a commander’s order," said Oleh Tkachuk, Doctor of Law, Associate Professor, Judge of the Grand Chamber of the Supreme Court, and Academic Secretary of the Supreme Court’s Scientific Advisory Council. "But increasing punishment or the conditions of serving it, imposing by law on the court the duty to sentence someone to mandatory long-term imprisonment, is not the path that, by itself, will ensure law and order in the Armed Forces. An important role in guaranteeing compliance with the law, and thus order and discipline in the army, is the investigation of cases that led to the commission of crimes, in order to determine the causes that created the preconditions for the offense. In each case of disobedience to a commander’s order, it must be established not only whether the order was deliberately disobeyed, but also why it was not carried out. Not only in court proceedings, but also within military command structures, it must be determined whether the commander’s actions were consistent with the combat situation, statutory requirements, and the orders of higher command.
In the absence in Ukraine of military justice bodies, military police, a military prosecutor’s office, and military courts, this is extremely difficult to achieve. Clearly, this situation directly affects the very level of discipline that the authors of the bill claim to be concerned about."
To prevent offenses in the military and ensure an adequate level of discipline, the answer is not to toughen penalties but to identify why such offenses occur. If their number continues to grow, it suggests that not every instance of disobedience is being properly investigated and assessed. The underlying causes are likely not being addressed. Merely increasing the punishment or tightening the conditions of its execution, without removing the causes that lead to refusal to obey orders, AWOL, or other offenses, will achieve nothing and will not reduce breaches of military discipline.
"In my view, discipline in the Armed Forces of Ukraine, and the degree to which it is observed, largely depends on how law-enforcement bodies operate. And within the military, we have no such law-enforcement bodies at all. Even after eleven years of war, no military justice institutions have been established. That means no one is dealing with military offenses in a comprehensive manner, and simply toughening or lifting penalties will solve nothing. I already mentioned AWOL. The legislature has tweaked the wording several times, passed one law, then another, added several new rules to that law, yet the situation is not improving. Why? Because, in my opinion, there is no strategy for ensuring law and order in the Armed Forces. At the same time, discipline and law and order in the army are crucial, for combat effectiveness and morale; for preventing non-combat losses among personnel; and for guaranteeing service members’ rights, their lives and their health."
"IN FACT, A RETURN TO SOVIET-STYLE REPRESSION IS BEING PROPOSED"
The bill was also commented on by Oleksandr Fediienko, a People`s Deputy from Servant of the People and a member of the Verkhovna Rada Committee on National Security, Defense and Intelligence. He emphasized the potential for abuse by commanders, the very concern raised by combat officers: "Overly harsh punishments without regard to circumstances can be demotivating, especially if the military justice system is not fair; abuses by commanders or the Military Law Enforcement Service are possible."
"This law will give commanders additional power," agreed Oleh Lototskyi. "And it will only get worse. Our unit will not change the way we operate. We will not trump up ‘disobedience’ charges, because that breaks a person. Such a soldier will look for a chance to leave the country. We still believe that instead of punishing a person, you need to motivate them."
"Ninety percent of the refuseniks who served under my command were formally documented, but the cases were never brought to court," added active-duty Ukrainian Army officer Oleksandr Shyrshyn. "I support holding people accountable, but deliberately, with respect for rights and obligations, the Constitution, and other norms. Not in situations where only the commander is deemed right and it’s impossible to avoid punishment even without an objective review of the case, relying solely on a commander’s say-so.
Mykola Melnyk also speaks about supporting and protecting the soldier: "Instead of helping our defenders, better funding them, providing benefits and incentives, the state is ‘tightening the screws.’ Instead of supporting the family, helping a soldier’s wife find a psychologist so she doesn’t heap additional pressure on him, ensuring their children have kindergarten and school places, the state threatens him with prison on top of that. Who would be happy about that?"
The same draft law also contains elements of common sense, as Olha Reshetylova emphasized: "...the bill also provides for other changes, including tougher administrative liability for military administrative offenses (such as drinking alcohol), clarifying the rules for intoxication testing, granting the Military Law Enforcement Service the authority to check the documents of military drivers, and establishing administrative liability for abuse of power by military officials during martial law. These are sound and necessary proposals that should be supported."
"I will hardly be revealing a secret by saying that abuse of various alcoholic drinks by soldiers, especially in rear units or the deliberate damaging of equipment to avoid missions does occur. Each such case needs to be investigated objectively," added People`s Deputy Oleksandr Fediienko.
It is precisely in this area of accountability that commanders of different levels and units are in agreement. Perhaps this is what the authors of the bill had in mind when they referred to the support of 20 commanders? Perhaps their approval was given specifically for these amendments?
Those we spoke with stressed that each case must be examined in detail and on its own merits, not generalized. And here it is hard not to recall the historical example cited by Oleh Tkachuk: "Let us remember Ukraine’s history. There was a Hetman named Polubotok. One of his key reforms was a military judicial reform in 1722–1724. Even then, he introduced a rule that any service member had the right to file a complaint against a commander with a military court! The point is not that everyone today should be able to take their commander to court, but that a service member has the right to his rights and to their protection. Does a soldier have such an opportunity now? Formally, yes. Informally, with no military courts, it is unlikely."
Long before the full-scale invasion, service members had already noted that civilian courts should not be hearing cases involving the military, that this was wrong. Oleh Tkachuk also addressed the issue: "Right now, the Armed Forces of Ukraine comprise about one million service members. Such a large organization requires its own institutions to maintain order and oversee discipline. There is no example anywhere in the world of a country at war whose army does not have its own law-enforcement bodies. Ukraine has a unique experience: despite facing one of the largest conflicts in recent years, our army has no military justice system. It simply does not exist. This is a unique historical experience. Never and nowhere in the world has there been a case where, in wartime, the army has neither police, nor prosecutors, nor courts. A sad experience. The absence of military justice institutions undoubtedly affects the situation in the Armed Forces, first and foremost, the protection of the rights of service members and war veterans."
Perhaps it is from this point that the situation should begin to change, rather than with harsher punishments, because, as already noted, tougher penalties will only make things worse. "Will the absence of parole in this article of the Criminal Code affect the situation at the front? In no way. What can you do with a person who refuses to storm a tree line? For him, prison will be a blessing, at least there he will stay alive. Moreover, this is only a draft law; it has not yet been adopted. Why has it triggered such a strong reaction? Because it is already hard for soldiers. It has been hard for a long time. They are physically and mentally unable to withstand the pace of the current war. And now they are told they might also be sent to prison," said Mykola Melnyk.
"What is effectively being proposed is a return to Soviet-style repression, where individual circumstances are not taken into account and a soldier can get ten years in prison even in situations where an order was clearly flawed or criminal," noted the InformNapalm community. "Draft law No. 13452 in its current form is a step backward that will not improve discipline but will create preconditions for abuse of authority and serious internal consequences within the Armed Forces. The initiators of the bill either fail to understand this or are deliberately paving the way for such conditions which could be regarded as the actions of ‘useful idiots’ serving the aggressor."
Many service members share this view. References to Soviet-style methods came up repeatedly in comments on the draft law.
"The Ukrainian army must differ from the enemy’s army in that discipline and cohesion are achieved not through force and pressure, but through brotherhood, commanders’ leadership qualities, and a sense of justice," Olha Reshetylova said. One can only hope lawmakers will hear these words and remove the harsher punishment provisions from the bill. We must honor our defenders, not intimidate them.
Violetta Kirtoka, Censor.NET
