THE INSTITUTION OF COMBAT IMMUNITY IN THE CONTEXT OF FULL-SCALE WAR: BALANCING DEFENSE AND THE PROTECTION OF HUMAN RIGHTS

Abstract

The article provides a thorough analysis of the legal institution of combat immunity, which was officially enshrined in Ukrainian legislation in response to the challenges posed by the full-scale armed aggression of the russian federation in 2022. The institution of combat immunity serves as an important mechanism for protecting military commanders, servicemen, territorial defense volunteers, law enforcement officers, and civilians involved in defense, from legal and criminal liability for actions committed during military operations, provided those actions comply with international humanitarian law standards. The analysis of normative legal acts, particularly the Law of Ukraine No. 2124-IX and provisions of the Law “On the Defense of Ukraine,” demonstrates that the regulation of this institution has begun to develop in line with global practices and standards, including those applied by NATO countries and international judicial bodies. It is emphasized that combat immunity is not absolute—there are strict limitations to its application in cases of serious international crimes such as torture, genocide, and intentional unlawful attacks. Such balance ensures the lawfulness of defenders’ actions while maintaining the inevitability of responsibility for serious violations. The article discusses problematic issues, including the lack of unified terminology, legal inconsistencies between different legislative acts, and the necessity for precise documentation of the circumstances surrounding combat decisions. Both Ukrainian and international research studies are examined, contributing to a deeper understanding and improvement of the institution of combat immunity. Considerable attention is paid to the analysis of precedent-setting practice, including the case of German General Lothar Rendulic, which became a classic example of assessing combat decisions based on information available at the time they were made. A real example from Ukrainian military practice, where a commander received legal protection due to the application of the principles of combat immunity, is also presented. Recommendations are provided for improving legislation and practice, in particular the implementation of educational programs on international humanitarian law, the development of methods for documenting combat events, and the establishment of clear criteria for the application of immunity. It is stressed that only a comprehensive scientific and legal approach will ensure effective protection of defenders and maintain a high level of law enforcement in wartime conditions.