Active defense

Even before the visit of Petro Poroshenko to the US, a number of statements were made about the possibility of ending the anti-terrorist operation (ATO) and introducing at the legislative level a new format of resistance to Russian aggression. These statements coincided with the words of US Secretary of State Rex Tillerson that the Minsk format is not the only possible mechanism of ending the war. Tillerson said that Ukraine and the Russian Federation could find ways to settle the situation around the Donbas by concluding a new agreement that could be different from the Minsk Agreements. Secretary of the National Security and Defense Council (NSDC) Oleksandr Turchynov earlier stated that “the ATO has run its course and it is time for it to be ended.” Turchynov believes that now it is necessary to establish a “new format” that will protect the Ukrainian territory from so-called hybrid warfare.

“The question of changing the format of national defense is extremely important, and judging by the fact that it is being raised at the highest level, it is extremely urgent,” co-director of foreign policy and international security programs of the Razumkov Center Oleksii Melnyk commented for The Day. “This question has also brought us back to the strategic issue of communication between the government and the public. The emergence of information without a detailed explanation of what the government is about to do only confuses the public and provokes the emergence of various kinds of interpretations that are far from reality. These discussions concern the bill which few have seen. In my opinion, it is unlikely that this document will give an answer to the question of how to achieve the de-occupation of the Donbas and Crimea and, ultimately, bring the war to an end. There are two aspects to it, though. The first is the need to establish at the legislative level the fact that Russia is an aggressor regarding Ukraine and the territories of the Donbas and Crimea are occupied. This is an important step in aligning the legal definition with Ukrainian and European legislation.”

“The second worrying point is that the president allegedly needs to be empowered to use force,” the expert continued. “I am convinced that the president has sufficient powers to command the Armed Forces and declare martial law. It makes no sense to invent any legal alternatives, since everything is clearly defined in the legislation. The Constitution requires the president to take appropriate action not only in the event of aggression, but also in the event of a threat of aggression. We have an obvious fact of aggression. Therefore, the need for martial law and a number of other measures was already there in 2014. Article 6 of the Constitution clearly sets out the mechanism of action. If there is a threat of aggression or a fact thereof, then the president must convene the NSDC and submit a draft decree to the Verkhovna Rada, and the parliament passes a decision as a priority item on its agenda. There is another myth that we should not declare a war on Russia. In fact, it is not about declaring a war on Russia, but about declaring that a state of war exists.”

The lack of specifics from the government and periodic releases of dubious information on the de-occupation of the Donbas or the reintegration of the occupied territories, combined with the legal disorientation regarding the presence of a state of war or simply a localized fight against terrorists, have stimulated the emergence of various kinds of interpretations. This fact only underscores the lack of a clear strategy for the national defense and the restoration of Ukrainian control of the border on the part of the government.

“From the very beginning, it was necessary to choose a completely different format of relations with the enemy,” said Volodymyr Vasylenko, an international law expert. “De facto, Ukraine has waged a war of self-defense against aggression, relying on the provisions of Article 51 of the UN Charter. This article gives every nation the right to individual and collective self-defense against invasion. As early as February 2014, Russia’s war against Ukraine had every sign of aggression, as described in the UN General Assembly’s Resolution ‘Definition of Aggression,’ passed in 1974. But on April 14, 2014, Acting President of Ukraine Oleksandr Turchynov issued a decree declaring the so-called ATO on the basis of the Law of Ukraine ‘On the Fight against Terrorism.’ The decree stated that the ATO would involve the Armed Forces. This was a rather awkward wording. In fact, we were already dealing with a Russian armed aggression against Ukraine, and not some kind of isolated terrorist attacks. Therefore, it was necessary to cite not the Law ‘On the Fight against Terrorism,’ but the 1992 Law ‘On the National Defense.’ That latter law’s provisions faithfully reproduced the definition of aggression in accordance with the aforementioned resolution of the UN General Assembly. All Russian actions fell under it. According to Ukrainian law, the situation in 2014 not only allowed, but even obliged the government to declare martial law. This was required, in particular, by Article 4 of the Law ‘On the National Defense.’”

Deputy Minister for Temporarily Occupied Territories and Internally Displaced Persons Heorhii Tuka expressed the following position in a comment for The Day: “Declaring martial law in the fourth year of the war is quite feasible. Deployment of the Armed Forces is not provided for in the Law ‘On the Fight against Terrorism.’ This is a legal inconsistency. The law says nothing at all about declaring martial law. There is a separate law for this. I do not understand why we are seeing a hysteric debate on this issue right now, because martial law could have been declared before. What do we need a special law for, then? The main motive for refraining from declaring martial law was that, according to the legislation currently in force, it would have made holding elections impossible. The new law, which may be adopted now, does declare some elements of martial law. In particular, it provides for the establishment of a joint operational headquarters, with military-civilian administrations, in particular, being subordinated to it. But at the same time, all civil rights will remain in force, including the right to participate in elections. Personally, I do not see any pressing need for declaring martial law right now. I believe that we need to improve the legislation on military-civilian administrations, and that will be enough.”

When asked about his statement at the beginning of the year about the possibility of de-occupation of the Donbas this year, Tuka answered that the situation had changed not in our favor in the meantime. In particular, it has changed due to the imposition of the so-called blockade, which resulted in Ukraine effectively abandoning dozens of its own enterprises in the occupied territory. Tuka thinks that the government has shown its “toothlessness” on this issue.

The NSDC’s support for the “blockade” was not initiated by it, but was rather a delayed response which came after Ukraine already lost control over a portion of its territory, then a number of enterprises, the ruble started circulating in the occupied territory, and so on. Unfortunately, there is an evident lack of a clear strategy to be pursued by the government regarding the occupied territories and counteracting the aggressor, which stimulates the emergence of controversial public initiatives. We may hear more on the government’s specific policies regarding the occupied territories after the meeting between Poroshenko and Donald Trump. Ukrainians want to feel that the government’s words reflect its deeds and moves, even if unpopular ones. It is especially important in conditions of war.