Can civilians not judge military personnel? Will the return of specialized courts effectively address these issues?

One of the major news stories in recent days is the high-profile arrest of three commanders who defended Kharkiv region last spring. The court proceedings have prompted many to consider the principles that should guide justice in relation to military personnel.

A logical question arises: can a civilian judge in a district court truly assess whether the actions of a specific general were the cause of an unsuccessful military operation? Do prosecutors, who are accustomed to handling family disputes, property divisions, or hooliganism, possess sufficient expertise to determine culpability for severe consequences on the front lines? Will this verdict be impartial? And does it matter whether they have ever served in the Armed Forces, held weapons, or understood the nuances of military service?

These questions were posed directly to legal experts by "Telegraph".

Military courts in Ukraine existed but have now been abolished

The first point to understand is that until recently, criminal cases involving military personnel were adjudicated by authorized military courts. However, these institutions cannot be regarded as paragons of justice or effective organization.

Judges, primarily graduates of the military institute of the Ministry of Defense located in Moscow, effectively replicated the Soviet model of justice. Moreover, the command often enjoyed de facto immunity from accountability.

In 2010, a decree by then-President Viktor Yanukovych abolished all military courts. Among the stated reasons were the reduction of the Armed Forces of Ukraine and the intention to align the legal system with European standards.

At that time, the army's personnel had dwindled to 119,000—five times fewer than in the early 1990s.

With the onset of Russian aggression in 2014, this number began to rise rapidly. Just three years later, the consequences of abolishing military courts became evident, as certain court rulings drew complaints even from the highest military command.

Consequently, Petro Poroshenko, who was serving as president at the time, proposed to reinstate the previous practice. He was confident that military court decisions would not be questioned by military personnel.

— The actions of commanders in combat situations should be evaluated by military specialists, military experts, and military judges, not civilians. At least for now, while this terrible cunning hybrid war continues, — the president stated at that time.

Subsequently, several bills on this matter were registered in parliament, but they did not gain support. Ultimately, military crimes continued to be tried in courts of general jurisdiction.

As of 2025, when the Ukrainian Defense Forces number around one million servicemen, some of whom are under criminal investigation, the issue of reinstating military courts remains contentious. Several explanations account for this.

The wave of mobilization has influenced the criminal situation in the army

As prominent lawyer Vitaliy Tytych explains in a conversation with "Telegraph", the army comprises a vast number of individuals, not just military personnel, but the entire Defense Forces.

— The total figure exceeds one and a half million people. Clearly, this is a complex conglomerate functioning under extreme conditions. Therefore, the number of criminal offenses says little, — the lawyer points out.

The reasons for these offenses can vary, ranging from simple alcohol and drug use to corruption crimes involving those managing funds and other resources.

According to Tytych, the wave of mobilization brought individuals from various social strata into the army, many of whom brought their own problems with them.

— Criminal offenses in the army are highly diverse and cannot be categorized under a single definition, — notes Vitaliy Tytych.

It is worth recalling that the scale of criminal proceedings against servicemen in Ukraine reaches tens of thousands. Of these, only 60,000 pertain to unauthorized absence from units (AWOL). Such statistics are provided by the Office of the Prosecutor General.

"We need to look to the root"

— When it comes to whether a civilian court can hear military cases, it is important to note that different countries address this issue differently, and this has been historically established. However, it is incorrect and even harmful to society to believe that creating military justice, not just courts but the entire system, will solve all problems. This is a mistaken view that distracts from real issues, — says Vitaliy Tytych in a conversation with "Telegraph".

He is convinced that even if a new military justice system is established, it will not guarantee fairness and the quality of verdicts. We might simply revert to the so-called endless judicial reform that no one has genuinely implemented. If it had been carried out earlier, there would not be so many questions on this topic today, believes the well-known lawyer.

— The problem lies not only in the absence of specialized courts but also in systemic flaws within the judicial system. Creating new institutions using pseudo-competitions only increases the risk that the same specialists, who are incapable of delivering quality justice, will end up in them. It makes no difference whether it’s a military judge or a civilian—if a person is incompetent or morally and intellectually unfit, the outcome will remain the same, — he explains.

He sees no positive qualities in this scenario. At the same time, according to Vitaliy Tytych, it is essential to adhere to the laws enacted back in 2014, primarily ensuring the right to a fair trial.

— The first law passed in response to the Maidan demands was the provision of the right to a fair trial. The second was restoring trust in the judiciary. These principles must be realized, — the lawyer emphasizes.

In his view, if these goals are achieved, there will be no need for military courts or any other specialized institutions. The system can operate effectively. The question of specialization can be revisited after the war, when someone justifies the need for such changes. Then it will be possible to discuss the establishment of a new military justice system: not only courts but also the legal profession and prosecution.

"War does not wait"

The idea of reforming military justice in the midst of a full-scale war was first voiced by the Kyiv region Bar Council. In 2022, lawyers thoroughly justified the need to restore military courts as an urgent state necessity.

Among the latest to draw attention to this issue was the well-known veteran Yuriy Hudymenko.

— Civilians cannot judge military personnel. War is a separate world. A distinct psychology. Different laws and different responsibilities, — wrote he on his Facebook.

Finally, viewing this through the lens of international justice standards, it becomes clear that military tribunals are a common practice in many democratic countries. Even if the roles and responsibilities of such institutions are relatively modest in peacetime.

This concerns not only the well-known United States military appellate court but also, for example, the Polish military garrison and district courts that adjudicate offenses committed by servicemen on active duty.

Military lawyer Serhiy Dubok emphasizes in a conversation with "Telegraph" that other countries have valid reasons for employing this practice. A civilian might view a particular problem from one angle, while a military individual might see it entirely differently, or more accurately, evaluate it differently.

— The point is that civilian judges may interpret identical offenses in various ways. For instance, in the military, there are minor infractions that hold little significance in the context of military service, but for a civilian, they can have far more serious consequences, — he explains.

This includes loss of minor equipment, failure to follow certain orders, conflicts among servicemen, alcohol consumption, or tardiness to duty.

Moreover, general court judges are under considerable workload. This is why thousands of military cases are often delayed and do not receive the attention they deserve. However, the truth is that war does not wait. And while the speed of adjudication in general criminal cases may not always be critical for the state, for military crimes, especially during wartime, this can affect the combat readiness of units or the morale of soldiers.

— If cases involving military offenses were solely adjudicated by military courts, it would indeed be simpler and more competent, as specialization would already be established, — believes lawyer Serhiy Dubok.

Whether this needs to be done is a question for the state to resolve. However, to form new judges, a specialized training and service period is essential. This is one of the challenges that will arise in the future.

"The creation or return of the previous system will burden the state budget"

As noted by the Honored Lawyer of Ukraine and head of the "InHelp" Bar Association Serhiy Vylkov in a comment for "Telegraph", addressing the issue of military courts necessitates revisiting their historical functioning within the Ukrainian justice system. Specifically, it is crucial to determine what cases they handled