December 18, 2018

Martial Law and Human Rights

Victor Hvozd
President of the “Borysfen Intel” Centre,
Ph.D. in Military Science, Lieutenant General of the Reserve

 

The introduction of martial law in Ukraine raises a very important question of the state's guaranteeing the rights of citizens of the country in the face of the objective need for their partial restriction in this difficult period.

This problem becomes especially relevant in connection with Ukraine's choosing a firm course of joining NATO and the EU, which requires from it to comply with European norms and rules, despite the special circumstances due to Russia's armed aggression.

Moreover, as our Western partners have already stated more than once, Russia's military aggression cannot be a justification for violations of such norms in Ukraine, which also fully relate to human rights.

In the search for solutions to this problem, first of all, it is necessary to clarify and clearly understand what exactly makes necessary the introduction of martial law in the state, both in general, and in the situation around Ukraine.

According to the world experience, the main aim of introduction of martial law is to maximize the capacity of the state to respond to external and internal threats of a critical level. In particular, such threats include:

  • external aggression in the form of a direct military attack or in various forms of “hybrid” wars;
  • anti-government riots and attempts of state rebellion in the country, as well as massive unrest on different grounds;
  • natural disasters, ecological and man-made disasters with widespread consequences.

In case of real manifestations of these threats, it will require from the leadership of the state to take a number of crisis response measures that can only be effective if there is:

  • concentration of all power in the country or its separate regions in a single military authority with extraordinary powers;
  • ensuring internal stability and constitutional order in the country;
  • concentration of all state resources, necessary for actions in a crisis situation.

It is for this purpose that martial law is introduced in a state. Of course, the implementation of these measures will also require certain restrictions on human rights, which are determined by the national legislation of each country.

All these threats, in whole or in part, are also in front of Ukraine. Their manifestations are:

  • Russia's continuation of the aggression against Ukraine, which in fact has already moved from the “hybrid” form to the open use of armed force. The incident in the Kerch Strait on the 25th November showed this. Besides, there is a concentration of Russian troops near the Ukrainian border, accompanied by the Kremlin's aggressive rhetoric and provocative statements;
  • the activity of pro-Russian and all sorts of anti-Ukrainian forces in Ukraine is gaining momentum with the approaching of presidential elections in our country. It is the results of such elections that Russia counts on hoping to restore a pro-Russian government in Ukraine. At this, Moscow is already openly threatening with Ukraine's possible loss of its statehood if the new Ukrainian government does not satisfy Russia;
  • a high probability of large-scale man-made and ecological disasters if Russia's moving to active military actions against Ukraine or sabotage.

On the whole, these circumstances justify the introduction of martial law in Ukraine, which, in fact, should have been introduced in 2014 at the beginning of Russia's aggression against Ukraine. By virtue of certain circumstances, this was not done, which was a consequence of both objective and subjective reasons.

The critical level of threats to Ukraine also justifies certain restrictions on human rights related to the introduction of martial law. Such restrictions are determined by the Ukrainian legislation and well-known. So let's not stop there.

Instead, in the context of the introduction of martial law in Ukraine, it would be advisable to analyze how other countries of the world acted in similar situations and what the consequences were in terms of respecting the rights of their citizens.

Thus, in the 19th and 20th centuries, martial law was introduced more than in 80 countries of the world, including:

  • in the United States — during the earthquake in San Francisco in 1906, a miners' strike in 1914, the Japanese's attacks on Pearl Harbor in 1941, and African American protests in Detroit in 1967;
  • in Canada — to stop the separatists in the province of Quebec in 1970;
  • in Poland — to suppress the protest movement led by the “Solidarity” Trade Union in 1981;
  • in Panama — after the United States invasion in 1989;
  • in Yugoslavia — because of the NATO's Operation Allied Force in 1999;
  • in Georgia — as a result of Russia's attack in 2008;
  • in Thailand — in response to anti-government protests in 2014;
  • in Turkey — as a result of the attempted military coup in 2016;
  • in the Philippines — because of the activisation of extremists.

 

The above-mentioned examples show the fact that during the introduction of martial law human rights were limited in all regions of the world. The level of such restrictions depends on a number of factors, including:

  • severity and manifestations of threats to the national security of the state;
  • the state system in the country and its current leadership;
  • consciousness of the society of the country, spiritual values and traditions.

 

The International Criminal Tribunal for the Former Yugoslavia was established by the United Nations Security Council Resolution 827 from May 25, 1993. This court was empowered to prosecute those responsible for serious violations of international humanitarian law, the Geneva Convention, violations of the laws and practices of war, genocide and crimes against humanity, committed on the territory of the former Yugoslavia since January 1, 1991.

In 2017 the International Tribunal in The Hague confirmed the sentence to former President of the Croatian Defense Council
Slobodan Praljak — 20 years of imprisonment on charges of massive war crimes against Bosnian Muslims.

 

“I'm not a war criminal”, said Praljak and drank some unknown fluid.
The general died at hospital

Here is what happens in case of introduction of martial law:

  • in democratic countries — the restriction of the rights of their citizens is temporary and minimal-necessary. At the same time, there is a certain list of rights that cannot be violated in any case. As a rule, the decision on the introduction of martial law is approved by the Parliament;
  • in totalitarian countries — human rights is limited to the fullest, even if there is no real need for this. In many cases, there is not even a minimum list of rights that could not be violated. Usually martial law is introduced by the decision of the dictator with the possible formal approval by the Parliament.

Given the course chosen by Ukraine, it obviously must adhere to democratic principles of derogation and observance of human rights in the situation of the introduction of martial law in the country. In fact, this is already determined by Ukrainian legislation. In particular:

  • the decision on the introduction of martial law should be approved by the Verkhovna Rada of Ukraine. At this, clearly should be voiced the reasons for such a decision, the duration of the martial law and the regions of the country where it is introduced, as well as the relevant list of restrictions;
  • the Constitution of Ukraine includes a concrete list of the citizens' rights which cannot be violated even under martial law. So:
    • there can be no restriction on the right to equality and freedom on the grounds of race, color, political, religious and other beliefs, sex, ethnic or social origin, property status, place of residence, language or other grounds;
    • martial law does not eliminate equality between men and women;
    • citizens of Ukraine cannot be deprived of citizenship and the right to change it. Ukrainians cannot be driven out of the country or given to another state, and Ukraine will continue to guarantee the care and protection of its citizens who are outside its borders;
    • after the introduction of martial law, the right to life, respect for dignity, freedom and personal integrity cannot be violated;
    • cannot be restricted the right to send individual or collective written appeals or to personally apply to bodies of state power, local self-governments and officials of these bodies. In turn, these authorities are obliged to consider these applications and give a reasoned response within the established time limit;
    • martial law does not entitle the state to ignore the right to housing, enshrined in the Constitution of Ukraine.
  • the martial law in Ukraine was introduced for a limited period and only in those regions of the country which are under the greatest external and internal threats.

In connection with the mentioned, to date, the main issue is the clear execution by all public authorities and officials of the legislation of Ukraine and their official duties.

Besides, it is necessary to prevent the use of martial law in Ukraine by any forces for their political purposes, including for the purpose of canceling elections or transferring their terms.

Under such conditions, introduction of martial law in Ukraine will result in minimal restrictions on the rights of Ukrainian citizens and in fact won't affect their interests and daily lives.

Otherwise, there may be a real threat of a sharp internal crisis in Ukraine with unpredictable consequences. At this, it will inevitably be used by Russia to disintegrate Ukraine and eliminate its statehood.