Criminal liability of militaries for treason committed under martial law

Abstract

With the start of a full-scale invasion, issues of criminal liability of militaries for treason under martial law have become topical. The purpose of the article is to form and argue the author's vision of overcoming theoretical and applied problems of regulating the criminal liability of militaries for treason under martial law.

The scientific novelty lies in clarifying a) the understanding of the direct object of the offence, taking into account the grounds for qualifying the act as a combination of criminal offences; b) the significance of the feature of ‘martial law’ for qualifying treason, as well as in the proposal to supplement the CC of Ukraine with provisions on the liability of certain categories of militaries.

The article examines the provisions of legislative acts in the national security field, professional sources, and judicial practice on the criminal liability of militaries for treason. It is argued that when a military person commits treason, the direct object of the offense is military security and that aspect of Ukraine's national security that is determined by the official activities of the subject. It is shown that militaries commit treason mainly in the form of defecting to the enemy, which determines the qualification of the act as a combination of criminal offenses – treason, desertion, and other military criminal offenses. The individualization of punishment for militaries through the imposition of additional penalties is emphasized. It is argued that “conditions of martial law” are a qualifying, rather than a constitutive, feature of treason. A gap in the regulatory framework governing the liability of certain categories of militaries has been identified.

The practical significance of the study lies in the orientation of law enforcement practice towards taking into account the specifics of the direct object of the offence and the form of the act when a military person commits treason. It is recommended to supplement Section I of the Special Part with a provision on the criminal liability of foreigners and stateless persons serving in the Armed Forces of Ukraine for defecting to the enemy under martial law.