Presidential Negligence in Ukraine’s Pre-War Crisis
According to Article 106, Section 20 of the Constitution of Ukraine, the President, in accordance with the law, decides on general or partial mobilization and the imposition of martial law in Ukraine or in its specific areas in the event of a threat of aggression, danger to the state independence of Ukraine.
Pursuant to the provisions of Article 1 of the Law of Ukraine “On the Legal Regime of Martial Law” of December 12, 2015, No. 389-VIII, martial law is a special legal regime introduced in Ukraine or in its specific areas in the event of armed aggression or the threat of attack, danger to the state independence of Ukraine, its territorial integrity, and involves granting the relevant state authorities, military command, military administrations, and local self-government bodies the powers necessary to prevent the threat, repel armed aggression, and ensure national security, eliminate the threat to the state independence of Ukraine, its territorial integrity, as well as the temporary restriction of the constitutional rights and freedoms of individuals and citizens and the rights and lawful interests of legal entities with the indication of the duration of these restrictions.
That is, it is precisely the President who makes the above decisions, and these decisions are made by him at a stage when there is a danger or threat, but not when an attack has already occurred.
Such a decision should have been made by the President of Ukraine well before the start of the armed aggression on February 24, 2024, several months before this date, when he became aware of the threat of attack.
However, the President failed to fulfill his duties, thereby endangering the lives, health, and property of Ukrainian citizens. He introduced martial law and general mobilization after the start of armed aggression against Ukraine, that is, with a clear delay.
At that time, he should have taken measures to declare a state of war and make a decision on the use of the Armed Forces of Ukraine, which by then should have already been properly staffed, including those called up during the preliminary mobilization of citizens.
Thus, according to Article 106, Section 19 of the Constitution of Ukraine, the President submits to the Verkhovna Rada of Ukraine a proposal to declare a state of war, and in the event of armed aggression against Ukraine, makes a decision on the use of the Armed Forces of Ukraine and other military formations established in accordance with the laws of Ukraine.
That is, in the event of armed aggression against Ukraine, the President is not endowed with the right to declare a state of war; such powers are only vested in the parliament, that is, the Verkhovna Rada of Ukraine.
It turns out that according to the Constitution of Ukraine, the President makes a decision on the use of the Armed Forces of Ukraine and other military formations after the declaration of a state of war.
However, the President of Ukraine did not submit to the parliament a proposal to declare a state of war, and bypassing the introduction of a state of war, made a decision on the use of the Armed Forces of Ukraine and other military formations, issuing the corresponding decree, which nevertheless, without the introduced state of war, was approved by the parliament controlled by the president.
Moreover, the current legislation of Ukraine (Article 106 of the Constitution of Ukraine) does not establish the powers of the President of Ukraine to extend martial law; however, he continues to extend it constantly over the past two years, making changes to his first decree.
Therefore, the Decrees of the President of Ukraine on the extension of the term of martial law in Ukraine No. 133/2022 of March 14, 2022, and subsequent No. 259/2022 of April 18, 2022, No. 341/2022 of May 17, 2022, No. 583/2022, No. 757/2022 of November 7, 2022, No. 58/2023 of February 6, 2023 (No. 254/2023 of May 1, 2023), and so forth, have no legal force, since the norms of the Constitution of Ukraine are norms of direct action.
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