“Martial law does not mean declaring war to Russia. It is going to be introduced for defence purposes.” – Ukrainian president Petro Poroshenko declared on 26 November 2018 in the National Security and Defence Council in Ukraine (BBC News, 2018). The proposition was to be submitted to the Ukrainian Parliament on the same day for discussion and voting, which would prove to be implemented successfully. Such a declaration and measure may seem, at first glance, relatively extreme, controversial or unprecedented, considering past situations when it was applied. The present article analyses the ongoing conflict – be it direct or sometimes indirect – between a world power, the Russian Federation, and an ex-communist state, Ukraine.
The focus will be divided into different perspectives. On the one hand, I will introduce the beginnings of the conflict in 2014, the way it is viewed internationally, the international relations between the two states since that moment, and the way they are regulated. On the other hand, I intend to look through the escalation of the conflict in late November that led to Poroshenko’s measure, I will analyse whether Russia’s attitude was justified or not, and also whether martial law is the most appropriate solution in the given case, with regards to other alternatives.
2. The grounds of a world conflict
The beginning of the worst East-West conflict since the Cold War has its roots in the crisis of the Crimean Peninsula, known as the Republic of Crimea, stretching from the south of Ukraine, between the Black Sea and the Sea of Azov. Regarding its historical background, it is worth mentioning that it was annexed by the Russian Empire in 1783. It turned into an autonomous republic in 1917 as a consequence of the Bolshevik revolution, following a transfer to Ukraine (under communist control at the time) in 1954, under the lead of Russian president Nikita Khrushchev. After the fall of the USSR in 1990, Ukraine gained independence and Crimea gained autonomy in 1991. Nevertheless, the 1996 Ukrainian Constitution stipulates that the Crimean legislation needs to be in accordance with the Ukrainian (Global Security, 2018).
The situation took a radical turn in early 2014 when Ukraine’s pro-Moscow president, Viktor Yanukovych – who had been elected in 2010 – was removed from office as a result of the Ukrainian revolution, due to high treason accusations. The reasons for such accusations lied in his close ties with Russia and the government’s decision to abandon plans to sign an association agreement with the EU. This led to violent protests by young pro-EU Ukrainian citizens against him and his presidency. As such, he was removed from his post by the vote of the Parliament and exiled to Russia. This situation made Russia consider even more that a West-leaning Ukraine could be a threat to its interests.
Therefore, Russian-backed separatists and rebels positioned themselves in opposition to the Ukrainian state in the East. By February 2014 Russia annexed Crimea, even though it had previously signed a border treaty and the Budapest Memorandum on Security Assurances with Ukraine in 1994 that guaranteed its territorial integrity. The territory, which has a Russian-speaking majority, voted to join the Federation in a referendum that Ukraine and the international community do not recognise as valid. For example, the United Nations General Assembly adopted a resolution the same year, which confirmed the integrity of Ukraine’s borders (United Nations General Assembly Resolution 68/262 of 27 March 2014). This means that the annexation of both the Crimean Republic and Sevastopol (administrative divisions of Ukraine) by Russia is illegitimate, despite its strong belief that the annexation convention is constitutional and valid. Even Vladimir Putin confessed later that when the referendum was taking place, the Russian army was present on the peninsula, the reason being more than just local self-defence (BBC News, 2018).
3. The climax and its implications
There has been a direct conflict between Russia and Ukraine since 2014 that caused significant damage and many deaths in the eastern part of Ukraine, due to the harsh intervention of Russian troops supported by rebels and separatists. This tense and unpredictable relation and the domination of the Russian Federation on the international stage culminated in late November 2018 with a widely-debated sea clash, which is considered as the most dangerous one since 2014. It included two Ukrainian gunboats and a tug being intercepted, fired at and seized by Russian border guards on their route towards the Kerch Strait on 25 November 2018. 24 Ukrainian sailors were detained in Russia, some of them got injured as well. The Ukrainian vessels were sailing from the port of Odessa in the Black Sea to the port of Mariupol in the Sea of Azov, a route used for economic purposes, with the Kerch Strait being the viable transit point between Eastern-Crimea and South-Western-Russia (Global Security, 2018).
Before examining Poroshenko’s disputed martial law enforcement, I shall take a look at what is contested first and foremost by the international community, i.e. the legitimacy of Russia’s action, its justification or the lack thereof, as well as the elements that make this situation quite paradoxical, void of clear legal explanations, sanctions or solutions. Although a 2003 Russia-Ukraine treaty (Treaty Between the Russian Federation and Ukraine on Cooperation in the Use of the Sea of Azov and the Kerch Strait of 24 December 2003) stipulates unimpeded access to the Kerch Strait and the Sea of Azov, besides the fact that the Black Sea is free for shipping, Russia accused Ukraine of violating its territorial waters and international legislation. Consequently, Ukraine refers to this maritime clash as aggression by Russia, given the lack of recognition of any Russian territorial sovereignty over Crimea and the 2003 treaty. This treaty is still in effect, despite the annexation of Crimea, which would virtually provide Russia with jurisdiction over its territorial water. Russia’s Azov operation could certainly be seen as a strategic intent to weaken economic connections across the frontline, making Ukraine lose the port of Mariupol and loosen its blockade over Crimea, thus further destabilising the region in the context of an ongoing four-year war.
The strategy adopted by Russia could be grasped through the creation of a 33 metres high bridge across the strait. It stretches from Russia to Eastern-Crimea, contributing to the transportation of even more arms, men, and equipment to the territory and reduces the flow of North-South shipping in and out of the Ukrainian ports of Mariupol and Berdiansk. Things began moving rapidly only during the summer and early autumn. In May 2018 Russian vessels began stopping and delaying the shipping in the Sea of Azov, including both Ukrainian vessels and those with Western flags, imposed huge waiting costs on all vessels on their way to or from Ukrainian ports, and increased militarisation and surveillance over the Sea of Azov. At the same time, Ukraine sent 270 special forces personnel to the Azov and Black Seas in August and is also considering a possible new Ukrainian naval base in the region. (International Institute for Strategic Studies, 2018). Therefore, the actual situation could be nothing more than a visible Russian tendency of gaining more territorial supremacy based on the fragile and unstable diplomatic relations with Ukraine and by taking advantage of the lack of any clear legal act or convention that could specify the limits of the territorial rights of the states involved.
4. A controversial legal solution
In pursuit of facing this maritime clash and preserving national and international stability, especially during the presidential campaign, Petro Poroshenko urged the NATO to send ships to the Sea of Azov, warning of the threat of a Russian invasion. Although Ukraine is not a member of NATO, it is supported by both the NATO and the UN, which condemn Russia’s actions. In light of an emergency meeting between Ukraine and the UN Security Council right after the incident, Petro Poroshenko declared his decision of introducing martial law in Ukraine’s border regions for 30 days (half of the legal period of time normally stipulated) to the Ukrainian Parliament, which voted for its implementation. Generally speaking, the introduction of martial law suggests a severe internal decline of stability that leaves a country with no other option than the military takeover of the civil legal system. The military and other law enforcement bodies control the movement and detention of individuals within the country. In other words, “the military becomes the judge and the jury, as well as the police force”, which means that the right of the individuals to turn to a civil court in order to challenge the restrictions on their freedom is restrained (Legal Career Path, 2018).
President Poroshenko seems to justify his radical decision on the state of war between his country and Russia by the brutal occupation of Crimea since 2014 and by the ongoing political dissent between pro-European and separatist rebels within Ukraine (protests at the Russian Embassy in Kiev included). Although the NATO and other Western countries support Ukraine and its policy, Russian President Vladimir Putin accused him of making this “popular” decision to increase his poll ratings in view of the March 2019 elections, considering that his ratings have plummeted so far (The Guardian, 2018). Although the fact that elections would be suspended for a while due to the shift in the legal framework may give Poroshenko time to improve his rhetoric, it could also turn out to be the contrary. In pursuit of re-establishing security, safety and stability within the country, martial law has proved to be too restrictive to regain people’s confidence in the judiciary and the state throughout history. From a personal point of view, restricting civil rights and liberties, infringing military orders and rules would make the situation even worse, let alone dismantling in terms of Poroshenko’s pro-European tendencies.
As such, martial law and its consequences could be viewed as an action of risk-taking. Prudence, balance, and a proper application of international law would be paramount to safeguarding fundamental human rights that would temporarily be restricted. Beyond this, more viable solutions would be available: the NATO training for Kiev’s military, the Trump administration selling weaponry to Ukraine, as well as tougher economic sanctions imposed on Russia. However, such measures seem to tackle only the effects and not the roots and causes that led to the rising conflict. How about the Ukrainian citizens who are doubtful and fearful of the future? – We may ask. How about the harsh martial law, which is not likely to end externally as soon as hoped, its immediate consequences or the situation after its revocation? To such questions there is only one exhaustive answer: the creation and enforcement of a proper regulation for Russia and Ukraine, based on mutual consent, resulting from real and sincere diplomatic talks, with the interference of world organisations. As idealist as this perspective might seem, only law enforcement (and not a tough temporary military law) can be the key to turning dystopia into normality.
By Claudia Timofte
This article was originally published in issue 6.2 of the magazine, which can be accessed here. All references used can be found at the end of that issue.