Always a misnomer, albeit a deliberate one, Ukraine’s “Anti-Terrorist Operation”(ATO) in and surrounding the temporarily occupied territories of Luhansk and Donetsk is slated to come to an end as of April 30, 2018, some four years after it began. The ATO will cease both on paper and with regard to the current internal Ukrainian military command-and-control mechanisms.
This anticipated change in command and control was announced by President Petro Poroshenko on April 13 (Interfax, April 13). Previously, the ATO was officially under the command and control of the State Security Service (SSU), the internal agency charged with anti-terrorism and counter-intelligence. Clearly, the conflict in eastern Ukraine is far more than a terrorist insurgency; and just as clearly, the SSU is not necessarily the correct agency to be officially commanding what is, in reality, a conventional, yet contained, military conflict marked by (en)trenched warfare and the heavy use of armor and artillery.
Recognition of this fact was codified via urgent draft legislation submitted to the Verkhovna Rada (national parliament) by President Poroshenko on October 4, 2017, and which subsequently became law on February 21, 2018 (Rada.gov.ua, accessed April 16). The new law, effective the day after it was published in February, de jure ended the ATO. The command and control of the operation, however—due to be transferred to the Joint Operational Headquarters of the Armed Forces (JOHAF)—has in practice not yet occurred. Indeed it was not until March 16 that Poroshenko appointed Lieutenant General Sergei Naev as commander of the Joint Operational Headquarters—a new commander for an entirely new command-and-control structure (Interfax, March 16).
Lieutenant General Naev previously held the position of deputy chief of staff of the Armed Forces and first deputy commander of the Land Forces. In announcing Naev’s new appointment, President Poroshenko stated, “On my initiative, the Verkhovna Rada adopted a law on the reintegration of Donbas, which created a new legal basis for repelling enemy aggression in Donbas, and, in the long term, for restoring Ukraine’s territorial integrity. The format of the anti-terrorist operation will be changed to the operation of the Joint Forces. The Supreme Armed Forces and other military formations and law enforcement bodies will answer to the commander of the Joint Forces. I decided to appoint Lieutenant General Sergei Naev to this post” (Interfax, March 16).
Disregarding the political content of the law pertaining to Russian responsibilities and liabilities, as well as bureaucratic matters relating to which documents issued within the occupied territories Ukraine will recognize (birth and death certificates only), there are certainly some issues that are considered controversial. In particular, questions arise concerning new, broad and possibly unconstitutional presidential powers. Additionally, there are legal questions related to the new powers of the Commander of the Joint Operational Headquarters of the Armed Forces. It is also unclear how previously issued ATO documents will be treated once the ATO has officially ceased to be an operation. Finally, there is the matter of amending numerous existing domestic laws that mention the ATO.
The new law replacing the ATO puts the commander of the Joint Forces at the head of the Ukrainian response to Russian aggression. As such the SSU, National Police, National Guard, Border Service, become subservient to JOHAF command and control. According to the Ukrainian chief of the General Staff, Viktor Muzhenko, “The law, which was signed by the president of Ukraine on February 20, systematized the use of the Armed Forces to fulfill the tasks they performed in the ATO and change the format of the main operation. The ATO will be completed, and we will proceed to the Joint Force. This implies a clear structure of the management system, the subordination of certain forces and military leadership, and the creation of a joint operational headquarters as the main governing body of this operation in the Donetsk and Luhansk regions” (Radiosvoboda.org, February 22). In effect, this law creates the ability to enact something akin to “martial law” within a contained area as decreed by the president, without the necessity of declaring Martial Law across the entirety of the Ukrainian state.
New legal concepts, such as “areas of fighting” and “security zones” located within the government-controlled areas along the contact line, are to be determined by the Chief of the General Staff, upon the submission of the newly created position of the commander of the Joint Operational Forces. The exact provisions and limitations of the JOHAF will be set by the president.
Additional powers have been granted to personnel under JOHAF command regarding their interactions with the civilian population. The law establishes a special regime for Ukrainian citizens with regard to entering the temporarily occupied territories through designated checkpoints, and the JOHAF commander can deny entrance to these. Furthermore, law enforcement and military service members are allowed to strengthen security measures if what critics equate to martial law is introduced. Among those expanded powers include document checks, detentions, stops and searches, restrictions on movement, limits on entry to residential and other buildings, as well as the commandeering of private vehicles and communications for official use. Moreover, those involved in the “areas of fighting” and “security zones” can use, “if absolutely necessary, weapons and special means against those who violate the law or attempt to illegally enter the temporarily occupied territories” (Rada.gov.ua, accessed April 16). Some domestic human rights organizations have raised concerns over the rights to freedom of movement for the civilian population due to such expanded powers of the military, as well as worries that such powers will be abused (Khpg.org, January 18).
All of that said, it remains to be seen if, and by how much, the April 30 transfer of command from the SSU to the military will affect daily life for those civilians living in and around the front lines. Ukraine is not known for its efficient or effective implementation of new laws. And its military and law enforcement commanders rarely allow much discretion to their personnel when enforcing their remits. Thus, many of the changes detailed in the new law may, in fact, remain on paper for a long time to come.