Surrender: A Right or a Crime?
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Russia’s armed aggression against Ukraine has brought to the fore issues that had not attracted widespread public attention in peacetime. One such issue is voluntary surrender. Is this a natural right of every person, or should such actions entail liability, including criminal liability?
Article 430 of the Criminal Code of Ukraine (hereinafter, the CC of Ukraine) establishes criminal liability for voluntary surrender due to cowardice or faint-heartedness, punishable by imprisonment for a term of 7 to 10 years. According to Part 5 of Article 12 of the Criminal Code of Ukraine, it is a serious crime[1].
From 2022 to June 2024, 23 crimes under this article were recorded, according to statistics provided in the Unified Reports on Criminal Offenses. However, information on offenses committed under Article 430 of the Criminal Code of Ukraine in 2025 and early 2026 is missing from the consolidated data[2], as the Prosecutor General’s Office has blocked access to it. Furthermore, the Unified State Register of Court Decisions does not provide a single court decision (either guilty or acquittal) under this article.
The structure of this crime establishes punishability when a service member intentionally ceases resisting the enemy, despite having the physical ability to do so, and surrenders to the enemy’s control. The object of the criminal offense is the procedure for performing military service during combat operations established in the Armed Forces of Ukraine and other military formations established in accordance with the laws of Ukraine, which, from the state’s perspective, constitutes a crime of heightened danger[3].
However, in our opinion, such an interpretation contradicts the letter and spirit of International Humanitarian Law (hereinafter IHL) and International Human Rights Law (hereinafter IHRL), which guarantee the right to surrender and preserve one’s life, and do not call this right into question due to the presence or absence of certain circumstances.
Thus, the criminal offense begins with the cessation of resistance with the intent to surrender[4]. The crime itself is considered complete from the moment the serviceman falls into enemy hands (the moment from which he is considered a prisoner of war according to Article 5 of the Geneva Convention relative to the Treatment of Prisoners of War of 12 August 1949)[5].
Surrendering constitutes a crime only when it is committed “voluntarily.” [6] [7] Another indicator of the objective aspect of the crime is the serviceman’s physical ability to continue resisting.
The criteria for “ability to resist” include:
- physical ability to resist (not being wounded, shell-shocked, or exhausted to the point of unconsciousness);
- possession of ammunition for a personal or group weapon;
- it also follows from one of the principles of international humanitarian law—the “principle of proportionality,” that is, the ability to resist an attacker with proportionate force[8].
The subjective aspect of the crime includes guilt in the form of direct intent, when the perpetrator understands that their actions or inactions will lead to capture and desires this. Furthermore, the subjective aspect of the crime may also include special motives—cowardice or pusillanimity, which are expressly stated in the article’s provisions[9] [10].
If these elements are taken literally, to avoid becoming a criminal who has committed a serious crime, one must resist the enemy even to the point of one’s own death.
International Humanitarian Law and International Human Rights Law
IHL embodies universal moral and humanitarian principles and seeks to balance the tension between military necessity and humanity[11]. In armed conflict, both IHL and national legislation apply simultaneously, and the latter must not conflict with the former. Although the Geneva Conventions do not contain a specific rule prohibiting states from criminalizing surrender in war, we believe that IHL equally imposes the obligation to accept prisoners of war and guarantees individuals the right to surrender. In other words, these are interrelated, since the obligation to accept prisoners corresponds to individuals’ right to surrender. Accordingly, if we assume that individuals do not have the right to surrender, then there would be no obligation to accept prisoners.
On the other hand, criminalizing voluntary surrender objectively limits a person’s right to life. The right to life may be subject to restrictions, but such restrictions must be consistent with international law and be necessary and proportionate. Thus, IHRL influences the proper application of IHL when the balance between military considerations and humanitarian concerns is shifted in favor of the latter. IHL requires that, when alternative means of achieving military objectives exist, States choose the one that least violates the principle of humanity, particularly in the context of protecting human life. Therefore, when assessing a service member’s actions, not only the ability to resist must be evaluated, but also the appropriateness of that resistance in specific combat conditions. In other words, it is more important here whether surrender would have led to worse results than the possible death of the serviceman. According to the Constitution of Ukraine, human life is one of the highest constitutional values, and this must obviously be taken into account when limiting the right to life in the public interest. A serviceman indeed has a duty to his country to defend it, but this does not mean that he is obliged to sacrifice his life, since he is obliged to fight, not to die[12].
A state may be held responsible for a human rights violation not because the violation itself can be attributed to the state or one of its agents, but because the state failed to take the necessary measures to prevent a specific violation[13]. Consequently, the mere possibility of loss of life may impose liability on the state for violating its obligations to respect and ensure a specific right. Of course, a state is not responsible for the loss of life of military personnel by enemy combatants, but for failing to take the necessary measures to prevent these military personnel from being placed in a situation that would inevitably lead to their loss of life[14].
International Experience
Most countries do not stipulate liability for surrender, but disciplinary liability may exist.
The Russian Federation introduced similar criminal liability for surrender (352-1)[15] only in the fall of 2022. However, even there, there is the possibility of an exemption from punishment if the crime is committed for the first time, making the state’s approach more lenient than Ukraine’s.
In the United States, issues related to captivity are more fully addressed in the Code of Conduct for U.S. Military Personnel [16], an ethical document whose Article 6 establishes the need to investigate the circumstances of surrender. However, U.S. criminal law (Title 18 — Crimes and Criminal Procedure[17]) does not explicitly provide for criminal liability for voluntary surrender[18].
In Israel, the issue of surrender is regulated by a purely ethical document, namely, The Spirit of the IDF[19], which does not provide for criminal liability for such actions.
Conclusion
The right to life is inalienable, and the right to surrender is derived from this right. This right is recognized by international law and guaranteed by the Constitution of Ukraine. On the other hand, international humanitarian law requires states to take all feasible measures to preserve human life.
Criminal liability for voluntary surrender prohibits, under normal circumstances, surrendering to save one’s life. The crime establishes complex requirements for the objective circumstances under which a service member may surrender without becoming subject to criminal prosecution. This may often not be required by the objective circumstances of military action. International law, however, permits a state to restrict a person’s right to life to protect other vital interests.
Based on this, we recommend either abolishing criminal liability for voluntary surrender or substantially revising it, establishing liability based on the severity of the immediate consequences (e.g., the death of other service members) resulting from the surrender.
Authors: V. M. Yavorsky, Program Director, Center for Civil Liberties; V. M. Serdyuk, Legal Analyst, Center for Civil Liberties, and Postgraduate Student, Department of International Law, Yaroslav Mudryi National Law University.
[1]Article 430, Part 5, Article 12 of the Criminal Code of Ukraine: Law of Ukraine dated 05.04.2001. No. 2341-III. Bulletin of the Verkhovna Rada of Ukraine. 2001.
[2] On registered criminal offenses and the results of their pre-trial investigation. Office of the Prosecutor General.
[3] International Humanitarian Law in the Protection of Prisoners of War: Questions from Brothers in Armed Forces — Answers from Lawyers: A Textbook. Electronic textbook / Yu. B. Kurylyuk et al.; edited by Doctor of Law, Associate Professor, Honored Lawyer of Ukraine V. S. Nikiforenko. Khmelnytskyi: NADPSU Publishing House, 2024. p. 41.
[4] For example, if a service member lays down his arms in front of the enemy, does not use them, gives the enemy signs indicating his intention to surrender (raises a white flag, raises his hands, makes verbal statements about surrendering, etc.), leaves his place of deployment with or without weapons military troops and moves to enemy troop deployment areas, remains at the scene of battle disguised as wounded or killed, awaiting capture while his unit moves to new positions.
[5] International Humanitarian Law in the Protection of Prisoners of War: Questions from Brothers in Armed Forces — Answers from Lawyers: A Textbook. Electronic textbook / Yu. B. Kurylyuk et al.; edited by Doctor of Law, Associate Professor, Honored Lawyer of Ukraine V. S. Nikiforenko. Khmelnytskyi: NADPSU Publishing House, 2024. p. 42.
[6] Voluntariness means that the person who surrendered did so of his own free will, provided that he had the opportunity to avoid capture by continuing to resist the enemy, even at the cost of his own life.
[7] International Humanitarian Law in the Protection of Prisoners of War: Questions from Brothers in Armed Forces — Answers from Lawyers: A Textbook. Electronic textbook. Textbook. ed. / Yu. B. Kurylyuk et al.; edited by Doctor of Law, Associate Professor, Honored Lawyer of Ukraine V. S. Nikiforenko. Khmelnytskyi: NADPSU Publishing House, 2024. p. 42.
[9]Cowardice is a feeling of anxiety, fear, or panic in the face of the enemy; it results from a serviceman’s fear for his life in a dangerous situation. Faint-heartedness is a lack of fortitude, determination, and courage; it characterizes the weakness of the spirit and will of a serviceman, and the low level of his moral and psychological qualities.
[10] International Humanitarian Law in the Protection of Prisoners of War: Questions from Brothers in Armed Forces — Answers from Lawyers: Textbook. Electronic textbook. ed. / Yu. B. Kurylyuk et al.; edited by Doctor of Law. Doctor of Sciences, Associate Professor, Honored Lawyer of Ukraine, V. S. Nikiforenko. Khmelnytskyi: NADPSU Publishing House, 2024. p. 43.
[11] Russell Buchan. (March, 2018). The Rule of Surrender in International Humanitarian Law. Israel Law Review. Vol. 51. Issue 1. P. 8.
[12] Solomon S. Targeted Killings and the Soldiers’ Right to Life. ILSA Journal of International & Comparative Law. -Vol. 14:1. 2007. P. 107-109
[15] Criminal Code of the Russian Federation. Wikisource. (Accessed February 27, 2026) [source in Russian].
[16] Code of Conduct. Jackson State University.
[17] Title 18 — Crimes and Criminal Procedure.
[18] Sections 2387 and 2388 of the act contain the most similar definitions of socially dangerous acts that could potentially fall under “Voluntary Surrender."