n end to ATO and a start of “temporary occupation” (legislatively speaking)?

June 21, 2017

The misnomer that was and remains the Anti-Terrorist Operation (ATO) in eastern Ukraine, sealed in Ukrainian statute in April 2014, may very soon be about to end.  Ukraine after all is not fighting against terrorists.   It was, is and will continue to fight against an assortment of pro-Kremlin (or Soviet nostalgic) locals, mercenaries, PMCs and the Russian military – along with more Russian armour in that small occupied enclave than many European nations possess.

However April 2014 was what it was – a structural mess with a political class struggling on many fronts, a military, it was suddenly discovered, that was entirely hollowed out, infiltrated, and poorly equipped.  So too the SBU, the police, and every other institution of State holding responsibilities toward national security and rule of law.   Then, as is always the case, Ukrainians and Ukrainian civil society rallied and filled the void where governance, military, and command and control was effectively neutered.

The choice in 2014 was to either impose Martial Law which would have prevented much needed presidential, Verhovna Rada and local elections following the fleeing of the former regime, or to come up with something statutory that would allow both State and ad hoc volunteer mobilisation to temporarily fill the gaps.

Thus the ATO legislation was created at a time when the Russian military presence was far more covert than it later became after the legislation came into legal effect, and Ukrainian structures, processes and command and control were ramshackle.  What consideration was given regarding an alternative word to “terrorist”, and why other words were eventually rejected matters not – suffice to say that international and domestic legal definitions will have played a part, as will the perceptions such words will have projected among the Ukrainian constituency.

During the ensuing 3 years Ukraine with the assistance of external and internal actors has managed to improve it military capabilities and understanding of those capabilities.  It is also abundantly clear to all that the kinetic war it fights in eastern Ukraine is not one with terrorists.

Having now held the line, it is perhaps time to revisit the ATO legislation, the provisions within that provide for certain actions but not for others, and craft a legislative platform suitable for where the conflict is now, and also to provide for the likely (and less likely) scenarios in the future.

Lo, the National Security and Defence Council (NSDC) is set to address this very issue.

The term “ATO” and “ATO zone” may soon be historical and no longer statutory.  Instead a reader may see wording similar to “temporarily occupied territories”.  Such wording will possibly have legal repercussions  both within and without Ukraine – though it is unlikely to change the attitudes of those that support Ukraine.

Quite how, for example, it would affect the Minsk understandings, or veteran statuses,  or more mundane issues such as press passes, or other existing decrees, statute, resolutions and orders, that may mention ATO is unclear.

With regard to the goals of the new legislation, the current draft states – “The goals of the state policy on the restoration of state sovereignty over the temporarily occupied territories of the Donetsk and Luhansk provinces are: liberating the occupied territories and restoring the constitutional system in all of Ukraine’s territories; protecting the rights, freedoms and legal interests of Ukrainian citizens who are suffering as a result of Russian aggression; reinforcing the independence, state sovereignty and integrity of the independent, sovereign, democratic, legal and social Ukrainian state.”

It is also apparent that this proposed legislation aims to set up an operational headquarters for personnel (as appointed by the President) directly involved in supervising national security.  Thus Olexandr Turchynov, Secretary of the National Security and Defense Council of Ukraine, may get his own Bat Cave or mini-Pentagon – or perhaps considering financial constraints, a dank and musty bunker from which to run his national security empire (or “the Ukrainian Deep State” for the conspiratorially minded).

If finally recognising in legal statute that the areas beyond government control are indeed “temporarily occupied territories” then it makes sense to prohibit all activities that are subject to State regulation or the use of State resources within the territories.  Whilst it is fair to say that those within the management of the occupied territories are not going to pay any adherence to Ukrainian legislation, the legislation prohibiting such matters must still exist or order that it can be broken.  (The principle that everything that is not forbidden is allowed.)

The draft statute also makes clear that Ukrainians have the right to free and unobstructed entry into the occupied territory, and to exit the territory through entry-exit control points provided they present proper identity documents which confirm their Ukrainian citizenship.

However, also muted is the granting of the operational headquarters the right to determine the list of goods which are prohibited and permitted to pass between the territories of Ukraine and the temporarily occupied territories.  (Currently the movement of such goods is prohibited by the NSDC’s decision from 15th March 2017.)  As the proposed draft law looks toward the years ahead that will almost certainly witness parts of Luhansk and Donetsk remain “temporarily occupied territories” – and without a ceasefire where the fire ceases – it is perhaps reasonable to ponder this proposal further (although not to the point where rightfully updating the ATO statute grinds to a halt).

Is this a matter that should remain the competence of the NSDC, or one that can be returned to the competence of parliament?  What, other than the existing restrictions, would require the nimbleness of further swift, yet autocratic NSDC Directives vis a vis codifying them in statute via a democratically elected, albeit glacial and feckless, parliament?  Is it indeed the feckless nature of parliament that makes the NSDC the better choice?

Regardless, the days of Anti-Terrorism Operations, ATO,  and ATO zones may soon be drawing to a close.  The days of “temporarily occupied territories” may soon begin (more than 3 years after they were “temporarily occupied”).

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