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Martial law – is one of the concerns of Ukrainians in the past nearly three years. However, many ordinary Ukrainians, who demand from the President to declare martial law, don’t know what the martial law regime really is. The main parameters of the regime defines the law "On legal regime of martial law", adopted on June 6, 2000 under President Leonid Kuchma. Translated from the legal to the human language, the martial law is:
- An emergency situation caused by military intervention or the threat of such an attack on Ukraine;
- Granting the military departments and public bodies special rights - in the first place in violation of the law on private property;
- Infringement of the rights of the civilian population and business, obliged on demand of the military command to go to public works or provide their property for the army.
“Martial law is a special legal regime, which is introduced in Ukraine or in its particular areas in case of armed aggression or a threat of attack, danger to the state independence of Ukraine and its territorial integrity. Martial law envisages providing relevant state bodies, military command and bodies of local self-government with authorities necessary to remove the threat and ensure national security.
The goal of introducing martial law is to establish conditions for enabling state bodies, military command, bodies of local self-government, enterprises, institutions and organizations to fulfill the authorities allocated to them in case of armed aggression or a threat of attack, danger to the state independence of Ukraine and its territorial integrity.” (article 1 of the Law" On legal regime of martial law ").
The essence of martial law as a special legal regime – is an empowerment of primarily military command (and then central and local authorities) with extraordinary competencies. And, as a backlash, the limitation of enshrined in the Constitution rights and freedoms of ordinary Ukrainians, as well as the rights and legitimate interests of commercial companies, government agencies, utility companies, and so on.
Speaking of martial law, we should specify what "the military command" is. According to the law, it consists of:
- The General Staff of the Armed Forces of Ukraine. It should be emphasized that since the matter concerns national security and defense, the General Staff will be guided by the president and secretary of the National Security and Defense Council;
- Armed Forces Command: (Commanders of Land Forces, Navy, Air Force);
- Joint Operations Command ( Commanders of regiments, divisions and factions, uniting different forces in the form of artillery, aviation, combat engineers, infantry, etc).
Ukrainian law notes that a decree on the introduction of martial law should contain specific dates of the end of particular regime on Ukraine’s territory (Article 1 of the law "On legal regime of martial law").At present, the law on the military situation must be considered in the first place in conjunction with the new version of the National Security Council Law. Let us remind, at the end of December 2014 Verkhovna Rada voted for the new edition of the Law "On the Council of National Security and Defense", which gives the Secretary of the NSDC Oleksandr Turchynov extensive powers.
The procedure of declaring martial law has four steps. First, the National Security and Defense Council shall prepare and submit to the President Petro Poroshenko a proposal to impose martial law in Ukraine or on part of its territory. For example, in the Donetsk and Luhansk regions. The second step - when the presidential administration prepares a solution in the form of a decree, and the president signs this regulation. Step number 3: the deputies of Verkhovna Rada for two days at its meeting approve presidential decree (this requires a standard amount of a minimum 226 votes). Finally, immediately after the approval of parliament, the media announce the decree of the president, and then martial law officially starts.
Article 24 of the Act requires that the ruling Administration of Ukraine immediately after the introduction of martial law, should report to UN Secretary-General to inform all UN member countries. Since Ukraine is a party to the International Covenant on Civil and Political Rights, the Ukrainian authorities should specify in this report, which rights of Ukrainians will be limited and for how long.
Canceling of martial law similarly requires a corresponding presidential decree. Both National Security Council and Parliament can initiate the cancellation of the law, addressing to the president with such a proposal. The presidential decree abolishing martial law does not require separate approval in Parliament.
Although according to Constitution, President Poroshenko is the Supreme Commander of the Armed Forces of Ukraine, in fact, his authority is largely ceremonial, which further emphasized the new edition of the National Security Council Law.
Thus, the key body in a state of war becomes the Supreme Commander in Chief, and according to the Law "On the Council of National Security and Defense", namely Secretary of the National Security Council "organizes the work of the General Headquarters in the case of its creation" (paragraph 9 of Art. 13 of the National Security Council Law).
As for the leadership of the armed forces, the law leaves the president the right only to carry out "management of strategic planning of the Armed Forces of Ukraine". That is, in practice, the head of state has the task to put his signature to the decisions of a particular military operation, and all the daily issues of martial law will solve the NSDC Secretary, although the people of Ukraine never gave him such powers.
Between desire and reality
For an ordinary citizen it is important to know that the Ukrainian Constitution enshrines the rights and freedoms that are prohibited to restrict, even in wartime. We are talking about equality of all citizens before the law, the right to life, the right to dignity, the right to housing. Although there is a conflict: it is difficult to understand how the right to liberty and security of person (Article 29 of the Constitution) is linked to all mentioned above.
Evaluating from the perspective of the government, the imposition of martial law will allow legitimizing mass mobilization, as well as helping the officials to use the property and premises of citizens, enterprises and local communities. In addition, a number of Ukrainian politicians advocated the imposition of martial law, not least because such a move will provide a possibility to blamed the war for all the mistakes of officials and domestic "troubles" - from the non-payment of wages and poor performance of police, courts, public services and hospitals to increase of taxes and a rise in prices and tariffs for housing and communal services. The lack of progress in combating corruption and reform could be also successfully directed to war in the country.
However, there are also opponents of martial law. Ukrainian media repeatedly broadcasted statements of politicians that the imposition of martial law - it is an end to Ukraine's chances of getting a new tranche of credit from the International Monetary Fund (IMF). But this is not the case. Articles of Agreement of the International Monetary Fund, which serve as the Charter of the organization, do not contain such provisions. Even the representatives of the IMF in Ukraine denied this version.
PhD in Political Science and Director of the Kyiv Institute of Peace Initiatives Andriy Mishin believes that the Ukrainian government has not yet introduced martial law not just because of the threat connected with IMF loan, but primarily due to the reasons of international law. "If the authorities of any country declare martial law, they must specify the external or internal reasons for the decision. The President, Prime Minister and other senior officials and politicians constantly repeat that the war in Donbas - this is a war between Ukraine and Russia, - says Andriy Mishin - that is, if the President still decides to impose martial law, he will be obliged to name the country, in response to which actions martial law is introduced, which in the language of diplomacy is equivalent to a declaration of war. Moreover, the country which was the first announced the beginning of war would be considered the aggressor.”