Instituto de Estudios Políticos y Derecho Público "Dr. Humberto J. La Roche"
de la Facultad de Ciencias Jurídicas y Políticas de la Universidad del Zulia
Maracaibo, Venezuela
Publicación cientíca en formato digital
ISSN-Versión Impresa 0798-1406 / ISSN-Versión on line 2542-3185
Depósito legal pp 197402ZU34
ppi 201502ZU4645
Vol.40 N° 74
2022
Recibido el 02/02/2022 Aceptado el 25/06/2022
ISSN 0798- 1406 ~ De pó si to le gal pp 198502ZU132
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Vol. 40, Nº 74 (2022), 328-346
IEPDP-Facultad de Ciencias Jurídicas y Políticas - LUZ
Military administrations as an element
of national security under international
and Ukrainian legislation
DOI: https://doi.org/10.46398/cuestpol.4074.17
Artur Fedchyniak *
Andrii Danylevskyi **
Yehor Nazymko ***
Oleksandr Kuleshov ****
Tamara Makarenko *****
Abstract
The article discusses some problems of military and civilian
administrations operating in Ukraine with the aim of maintaining
the national security regime. In particular, the authors investigate
the social and political reasons behind the decision to create
special government agencies, in the form of civil military
administrations. In addition to the comprehensive analysis of the relevant
legislative framework, reference has been made to the practical functions
of these administrations. The study methodology includes a variety of
research tools aimed at improving the analysis and a problem-oriented
approach. The conclusions are focused on improving the legislative as
well as organizational frameworks of civil-military administrations in the
Donbass region. In particular, based on the basic principles within the civil
society, including the supremacy of civil society over the armed forces, the
discussed Law should be eectively renamed as the Law “On civil-military
administrations” with a continuous approach, potentially within a specially
drafted project. It is suggested to include a chapter of the Law, on military
support of civilian authorities and ocial eorts of reconstruction of public
order in certain areas of Donetsk and Lugansk regions.
Keywords: military-civil administration; national security; military
conict; government functions; Donbass region.
* Ph. D., Associate Professor, Associate Professor of the Department of Legal Science, Berdyansk State
Pedagogical University, Ukraine. ORCID ID: https//orcid.org/0000-0003-0277-0888
** Ph. D. in Law, Associate Professor, Head of the Department of Criminal Law and Criminology, Donetsk
State University of Internal Aairs, Ukraine. ОRCID ID: https://orcid.org/0000-0002-9315-9381
*** Doctor of Law, senior researcher, Vice-rector, Donetsk State University of Internal Aairs, Ukraine.
ОRCID ID: https://orcid.org/0000-0003-4949-4155
**** Ph. D. in Law, Associate Professor, Head of the Department of Private Law Disciplines, Mariupol State
University, Ukraine. ОRCID ID: https://orcid.org/0000-0002-0604-1992
***** Associate Professor, Dean of the Faculty of Humanities and Economics, Berdyansk State Pedagogical
University, Ukraine. ORCID ID: https://orcid.org/0000-0003-2893-7789
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Las administraciones militares como elemento
de seguridad nacional en virtud de la legislación
internacional y ucraniana
Resumen
El artículo aborda algunos problemas de las administraciones militares
y civiles que funcionan en Ucrania con el objetivo de mantener el régimen
de seguridad nacional. En particular, los autores investigan las razones
sociales y políticas detrás de la decisión de crear agencias gubernamentales
especiales, en la forma de administraciones civiles militares. Además del
análisis exhaustivo del marco legislativo pertinente, se ha hecho referencia
a las funciones prácticas de estas administraciones. La metodología de
estudio incluye una variedad de herramientas de investigación destinadas
a mejores el análisis y un enfoque orientado a la solución de problemas.
Las conclusiones se centran en mejorar los marcos legislativos como
organizativos de las administraciones civiles-militares en la región de
Donbass. En particular, sobre la base de los principios básicos dentro de la
sociedad civil, incluida la supremacía de la sociedad civil sobre las fuerzas
armadas, la Ley discutida debería ser renombrada efectivamente como Ley
“Sobre las administraciones cívico-militares” con un enfoque continuo,
potencialmente dentro de un proyecto especialmente redactado. Se sugiere
incluir un capítulo de la Ley, sobre el apoyo militar de las autoridades civiles
y los esfuerzos ociales de reconstrucción del orden público en ciertas áreas
de las regiones de Donetsk y Luhansk.
Palabras clave: administración militar-civil; seguridad nacional;
conicto militar; funciones de gobierno; región de
Donbass.
Introduction
Globally, dierent models of administrative management exist on the
territories adjacent to and on the territories where military action, anti-
terrorist operations, are active. Based on some aspects of foreign experience,
including historical, it is worth mentioning that under conditions of armed
confrontation, even in the form of a hybrid military conict, the traditional
model of civilian governance does not work, but new forms of state and
regional power have to be introduced. That is, the creation and current
functioning of the military-civil administrations in some districts of
Donetsk and Luhansk regions is an atypical, but reasonable step taken by
the political leadership of Ukraine.
330
Artur Fedchyniak, Andrii Danylevskyi, Yehor Nazymko, Oleksandr Kuleshov y Tamara Makarenko
Military administrations as an element of national security under international and Ukrainian
legislation
For example, Israel has chosen a model for managing civilian military
administrations (their conditional counterpart) directly by its own armed
forces, agreeing to divide the West Bank into three zones according to
the level of local interference. At the same time, within zone “C” the local
military-civil administration of Israel is completely autonomous in its
aairs and is responsible for its own activities.
At one historical point, the United States temporary military government
in Okinawa, under the full control of its own local administration (which in
its status and authority was in fact military-civilian), gave local residents
the right to establish local executive and self-governing bodies to deal
with a wide range of issues. At the same time, the head of the American
administration and his deputy were given the right to suspend any decision
of the local (Japanese) government, and the most important ocials of
the local administration were also appointed only with the consent of the
Americans. Thus, there is a pragmatic two-pronged approach: on the one
hand, giving local residents the right to build their own system of regional
governance, while the Americans prevented any separatist, anti-American
actions by local authorities (Kuzmenko, 2020).
Today, Croatia can serve as yet another successful example
of reintegration of the territory and construction of a temporary
administration for such purposes. According to the intergovernmental
agreement (Croatia and Serbia through the UN and the US), a temporary
transitional UN administration in the form of a local model of military-
civilian administration had been envisaged for a period of two years. Such
organization combined in its competence military, security and civilian
aspects, which allowed to quickly and harmoniously integrate Slavonia into
Croatia (Kuzmenko, 2020).
Thus, even based on some aspects of foreign experience, including
historical, it should be noted: under conditions of armed confrontation,
even in the form of a hybrid military conict, the traditional model of
civilian governance does not work. Thus, new forms of state and regional
power must be introduced. That is, the creation and current functioning of
the military-civil administrations (hereinafter – MCA) in some districts of
Donetsk and Luhansk regions is an atypical, though reasonable step by the
leadership of Ukraine.
Mechanisms of interaction between the state and civil society institutions
are considered by researchers in several aspects. From the legal science
point of view, civil society, as a constituent state, is such a model of social
development that oers balanced inter-control and inter-limitation of state
bodies and non-governmental entities (civil society institutions) so that the
activity of state bodies is always within the sphere of monitoring by non-
state structures (Triukhan et al., 2019).
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Public administration as a specic type of public-political relations
in the process of exercising power-administrative powers has the task of
streamlining all social processes in order to achieve sustainable development
of the nation and the country. Economic well-being and social stability are
important criteria for state institutions to perform their functions. However,
their achievement is not always linked to external stability, and government
action is often aimed at overcoming natural, social, and less often political
and military risks. Public administration as a qualitatively new form of
management of state and public aairs aims to streamline social processes
to ensure sustainable development of the nation and the state, which is
realized through the activities of public authorities in economic, social,
cultural, political and other spheres (Maslova, 2021).
The current crisis in some parts of eastern Ukraine is complicated by the
fact that the military conict has not received proper legally recognition, it
is not dened as an international legal conict with the status of war.
With such background, civil-military relations create dialectical unity of
society and military organization of the state, that is, the civil and military
spheres, subordinate in the interests of stable functioning of the national
security system of the given state (Dulger, 2019).
1. Theoretical Framework
The theoretical framework of this paper is grounded on normative basis
as well as on legal literature related the topic. Relevant provisions of the
Constitution of Ukraine as well as of the basic Law of Ukraine “On military-
civil administrations” have been discussed within the paper as well. A set
of academic literature, primarily research papers, on various issues of the
legal status of military-civil administrations and their functioning has
been researched with the focus on the goals of such institutions aimed at
preserving the national security in Ukraine.
Finally, information from both ocial and investigative websites related
to the topic of military-civil administrations functioning has been analyzed
and integrated within this research.
2. Methodology
The article employs a set of research methods, namely: terminological,
structural, formal-logical, historical.
The structural method has been used to describe the meaning and
structure of legal provisions related to the issues around military-civil
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Military administrations as an element of national security under international and Ukrainian
legislation
administrations functioning. Also, reference systemic method has allowed
characterizing current limits of permissible behavior in the area of public
service in their relationship with the norms of other legal bodies, including
constitutional law.
The terminological method, in turn, has revealed a separate body of legal
terms and concepts related to the military-civil administrations functioning
and responding to various military threats. Integration of such terms and
denitions into the legal system of Ukraine allows to better understand the
meaning and goals of ocial military-civil management.
The historical method of research has allowed to look into some previous
attempts to ocially introduce government agencies combining both civil
and military functions.
Finally, turning to the formal-legal method has enabled the authors to
properly analyze legal substance of the national legislation covering various
issues of military-civil administrations functioning.
3. Results and Discussion
On May 1, 2018 the Joint Forces Operation (hereinafter – JFO), as a
special military venture, was announced in Donetsk and Luhansk regions,
which has replaced the previously launched anti-terrorist operation (ATO).
The system of public administration under the circumstances of anti-
terrorist operation, and later the JFO, has revealed a number of issues
previously unknown in Ukraine.
Obviously, Ukraine was not ready for external military aggression and
management of its own territories in a situation where hostilities are taking
place.
The ongoing military aggression against Ukraine and the exercise of the
“hybrid warfare” strategy have become a new reality at the present stage of
development of geopolitical processes.
Under the circumstances, it has become clear that existing models of
territorial organization of power and local self-government, created during
more than twenty years of independence, did not meet the challenges of
escalating such military confrontation. Just as one example, Ukraine’s
Security Service has accused Russia of thousands of cyber-attacks against
Ukrainian infrastructure and institutions, including 6,500 incidents within
the last two months of 2016 only (Sullivan et al., 2017).
The lack of an eective system of popularization and information about
the activities of the AFU and aggressive anti-Ukrainian propaganda by the
Russian Federation has created preconditions for distrust and, in some
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Vol. 40 Nº 74 (2022): 328-346
cases, opposition from the local population in some districts of Donetsk
and Luhansk regions (Lutsenko et al., 2021).
Unfortunately preventive diplomacy as a progressive legal and political
tool for conict prevention has largely failed in the conict between the
Russian Federation and Ukraine. The Organization for Security and Co-
operation in Europe (OSCE) also could not prevent or mitigate the ongoing
military conict. While the use of preventive technologies has had positive
results on the European continent, particularly in Macedonia, Albania,
Latvia, and Estonia, etc., at the same time the conict in the East of Ukraine
has enabled preventive diplomacy to achieved only partial success, mainly
because these conicts do not have a large scale and numerous victims.
The OSCE is often blamed with this regard, for it does not conict with the
Russian Federation, denies that Russia is a party of these conicts and does
not fully perform the functions assigned to it as an international security
organization (Habro et al., 2021).
Carrying out ATO and JFO in Ukraine necessitated solution of a number
of tasks in order to ensure normal functioning of administrative-territorial
units of Donetsk and Luhansk regions, in which local governments did not
perform their functions. Therefore, there was a challenge of nding a new
mechanism for managing given territories during the military conict.
Under such conditions, an obvious question has risen: who exactly should
exercise the powers of local executive bodies, local self-government bodies
in the respective territories?
Therefore, creation and proper functioning of MCAs becomes relevant,
which should create necessary conditions for the development of territories
and help overcome negative consequences and military threat. This
underlines the urgency of the issue of determining functional parameters
of military-civil administrations in Ukraine, as well as comparing these
functions with the tasks of units of the Armed Forces of Ukraine and other
state bodies within the territories of Donetsk and Luhansk regions adjacent
to the demarcation line.
Any given state exercises its powers through the relevant state bodies and
their ocials, as well as through various non-governmental organizations
and representative bodies. The system of military-civil administrations as
governmental bodies with special status and powers in the East of Ukraine
is no exception here.
Despite many diculties of the political, social and economic situation
in Ukraine caused by the military aggression of a hybrid nature, all tasks,
goals, functions and principles of any government must primarily coincide
with the political goals of government.
At the same time, under the current circumstances in Ukraine, the
main objective is to achieve and consolidate successful results of military
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Artur Fedchyniak, Andrii Danylevskyi, Yehor Nazymko, Oleksandr Kuleshov y Tamara Makarenko
Military administrations as an element of national security under international and Ukrainian
legislation
operations, as well as to restore the functioning of state power in the crisis
area. As the general background to this, the military sphere reects the real
state of aairs of a certain social system, which highlights a wide range of
state strategic issues, including social relations related to the protection of
human rights and legitimate interests of the society and the state at large
from the foreign armed forces by ensuring proper functioning and creating
necessary conditions for their normal development (Lutsenko, 2020).
The key piece of legislation in the area of MCA regulation is the Law of
Ukraine of February 3, 2015 № 141-VIII “On military-civil administrations”
(Law No. 141-VIII, 2015). Under paragraph 15 of Art. 3 of this Law Verkhovna
Rada of Ukraine (the national parliament) exercises parliamentary control
over the activities of the MCA. Usually, activities of the MCA are also
subject to other Laws of Ukraine, which apply to the entire territory of
Ukraine, in the part relating to the activities of the MCA: security, economic
development, education, medicine, culture, social protection etc.
MCA is also subordinated to the President of Ukraine, who actually
forms and reorganizes the MCA by his decrees, appoints the heads of the
MCA, determines the list of positions, makes a decision on the liquidation
of such administrations).
As followed directly from the name of the administrative body researched
in this paper, MCA combines both military and civil components. Both
are important for operational purposes. As rightly put by one American
commentator, the administrative military’s origins can be found in the
Constitution, statutes, and military doctrine. Its functions include personnel
management, stang, recruiting, testing, training, health care, equipping
and hardware acquisition (Nevitt, 2018).
MCAs are partially subordinated to the Cabinet of Ministers of Ukraine,
since they are also responsible for exercising the powers of the executive
branch. Therefore, the MCA must comply with the resolutions and orders
of the Cabinet of Ministers in the part related to current routine activities
of the MCA.
It is obvious that activity of the MCA is also subject to the normative
documents of the Joint Operational Sta of the Armed Forces of Ukraine in
the relevant part.
Thus, legal framework governing activities of the MCA is quite complex
and also multilevel: laws of Ukraine, decrees of the President of Ukraine,
resolutions of the Cabinet of Ministers, regulations of ministries and other
central executive bodies in Ukraine. Also, on a routine, day-to-day basis,
MCA is guided in its activities by its own regulations of local legal force –
the orders of the head of the given MCA (Svitlodar, 2022).
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Before further proceeding to the analysis of the key provisions of the
central document for this study, the Law on the MCA of 2015, it is necessary
to briey refer to the genesis of an unprecedented legal step for Ukraine
to establish the MCA against the background of military confrontation in
Donbas region.
In an explanatory note to the draft Law of Ukraine “On Military-Civil
Administrations”, the authors of the bill have underlined that the anti-
terrorist operation in Donetsk and Luhansk regions had revealed a number
of issues caused by the failure of local governments to implement the
Constitution, in particular as a result of their actual self-removal from the
exercise of their powers. This had an extremely negative impact on the
security and livelihoods of the population in the area of the anti-terrorist
operation.
At the same time, experts of the Main Scientic and Expert Department
of the Verkhovna Rada of Ukraine have expressed a number of critical
remarks on this document, which unfortunately have not been addressed
within the text of the nal version of the Law. Among the key remarks, in
the opinion of the parliamentary experts, are the following four blocks of
issues.
1. Based on Part 1 of Art. 3 of the Bill (now the law), it follows that the
MCA should be formed by the decision of the President of Ukraine.
However, in accordance with Part 2 of Article 19 of the Constitution
of Ukraine, public authorities and local governments, their ocials, are
obliged to act only on the basis, within the powers and in the manner
prescribed by the Constitution and laws of Ukraine. The powers (rights and
responsibilities) of the President of Ukraine are established exclusively by
the Constitution of Ukraine, which is directly indicated by the provisions of
paragraph 31 of Part 1 of Art. 106 of the Basic Law. The Constitutional Court
of Ukraine has repeatedly drawn attention to this fact in its decisions.
Similar remarks address the novelties regarding the powers of the
President of Ukraine to approve the list of positions in the MCA (Part 6 of
Article 3 of the draft Law), appointment and dismissal of the head of the
MCA (Part 1 of Article 6 of the draft).
Such novelties violate basic provisions of the constitutional order
regarding the rule of law, the highest legal force of the Constitution of
Ukraine, requirements of compliance of laws and other regulations with
the requirements of the Basic Law of Ukraine (Article 8).
2. Powers of the MCA, proposed in the draft law, include the powers
granted to local self-government bodies by the Law of Ukraine
“On Local Self-Government in Ukraine”, in particular, the powers
provided for in Art. 26 (exclusive competence of village, settlement,
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Artur Fedchyniak, Andrii Danylevskyi, Yehor Nazymko, Oleksandr Kuleshov y Tamara Makarenko
Military administrations as an element of national security under international and Ukrainian
legislation
city councils), Art. 36 (powers of executive bodies of village,
settlement, city councils in the course of defense activities), Art. 43
(issues that are decided by district and regional councils exclusively
at their plenary sessions) of this Law. However, some of these powers
of local governments follow from the constitutional requirements of
Art. 143 of the Constitution of Ukraine and by their nature may not
be transferred at all to any other permanent or temporary bodies.
Similarly, powers delegated to local state administrations by Article
119 of the Constitution of Ukraine may not be transferred to any
other bodies.
3. Proposals in paragraphs 7, 8 of Art. 6 of the draft Law have been
a violation of the rights of local self-government on concluding
agreements on behalf of the territorial community, giving orders
and instructions of the head of the MCA the legal force of decisions
of the relevant council, which are usually taken collectively.
4. Analysis of the proposed novelties in the draft Law has revealed
the need to harmonize them not only with the provisions of the
Constitution of Ukraine, but also with the provisions of the laws of
Ukraine “On Local Self-Government in Ukraine”, “On Local State
Administrations”, “On Security Service of Ukraine”.
5. Parliamentary experts have also drawn attention to the fact that
at that time the Parliament had already registered a draft Law of
Ukraine “On the special procedure for exercising certain powers
of local governments for the anti-terrorist operation in Donetsk
and Luhansk regions” № 1529 of 26.01.2015, the subject of legal
regulation of which intersects with the submitted bill. In essence,
the submitted draft and the bill № 1529 oer dierent approaches
to resolving the issue of exercising the powers of local governments
in the ATO zone. In particular, the bill № 1529 is based on the
idea of transferring powers of local self-government bodies in case
of their non-implementation by the relevant bodies to local state
administrations within the relevant administrative-territorial unit.
This approach was justiably viewed as more acceptable given the
fact that legal nature of local governments and local executive bodies has
many common features, objectives and orientations. Both operate at the
local level within a dened territory, in particular to ensure the livelihood
of its territorial communities. The closeness of the legal essence of the
activities of these bodies in content and partly in form allowed to consider
it more appropriate to address the issue raised by the draft by clarifying
powers, stang, logistics of local executive bodies in relevant territories
with enhanced cooperation with Security Service of Ukraine, Armed Forces
of Ukraine, military formations operating in accordance with the current
legislation of Ukraine.
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However, constructive and well-argued remarks by the parliamentary
experts have not been taken into account when voting for the current
version of the Law on MCA. According to the Law “On Military-Civil
Administrations” of 2015, this legal act denes organization, powers
and procedures of military-civil administrations, which are formed as
a temporary coercive measure with elements of military management to
ensure security and normalize the population in the area, repulse the armed
aggression of the Russian Federation, in particular in the area of the anti-
terrorist operation, which is not aimed at changing and / or abolishing the
constitutionally enshrined right of territorial communities to local self-
government.
The 2015 Law (Article 1) denes military-civil administrations as
temporary state bodies in villages, settlements, cities, districts and regions
operating within the Anti-Terrorist Center of the Security Service of Ukraine
(if formed to fulll the powers of relevant bodies) in the area of the anti-
terrorist operation) or as part of the Joint Operational Headquarters of the
Armed Forces of Ukraine (in case of their formation to fulll the powers of
relevant bodies in the area of national security and defense, repel and deter
armed aggression in Donetsk and Luhansk regions) and are designed to
ensure the Constitution and laws of Ukraine, security and normalization of
life, law and order, participation in combating acts of armed aggression, acts
of sabotage and terrorism, prevention of humanitarian catastrophe in the
area of repulse of armed aggression by the Russian Federation, including
anti-terrorist operations.
MCA of the regional level District MCA level of settlements
Donetsk region - Donetsk MCA
Bakhmut Svitlodar city MCA
Toretsk city MCA
Volnovasky
Volnovakha city MCA
Vuhledar city MCA
Myrne village MCA
Olgin village MCA
Mariupol Sartan village MCA
Pokrovsky
Avdiivka City MCA
Marjinka City MCA
Ocheretyn village MCA
Kramatorsk Slovyansk city MCA
Luhansk region – Luhansk
MCA Severodonetsk
Hirska city MCA
Lysychansk City MCA
Popasna City MCA
Severodonetsk city MCA
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Artur Fedchyniak, Andrii Danylevskyi, Yehor Nazymko, Oleksandr Kuleshov y Tamara Makarenko
Military administrations as an element of national security under international and Ukrainian
legislation
Shchastynsky
Shchastyn city MCA
Stanychno-Luhanska village
MCA
Nizhnoteplivska rural MCA
Shirokivska village MCA
Figure 1 – Structure of Military-Civil Administrations in Some Parts of Donetsk
and Luhansk Regions. Source: Decree of the President of Ukraine № 61/2021
“On the formation and reorganization of military-civil administrations in the
Donetsk region”
An important detail should be underlined here: in accordance with this
provision of the MCA Law, state institutions may, if needed, be established
in any region of Ukraine – in case of ocial introduction of the anti-
terrorist operation regime. At the same time, these state bodies will operate
as part of the Anti-Terrorist Center of the Security Service of Ukraine. And
a separate “branch” (type) of the MCA – those that are currently established
and operate as part of the Joint Operational Headquarters of the Armed
Forces of Ukraine to perform the powers of relevant bodies in the eld
of national security and defense, repel and deter armed aggression of the
Russian Federation in Donetsk and Luhansk regions.
Thus, the Law on the MCA seems to set an administrative precedent
for the future – the ability to create and further spread the experience of
the MCA to any locality in Ukraine in case of launching the anti-terrorist
operation regime.
Military-civil administrations of a district or a region are temporary
state bodies that exercise the powers of rayon, oblast councils, state
administrations and other powers dened by this Law in the respective
territory.
Military-civil administrations of settlements are temporary state bodies
that exercise in the territories of the respective territorial communities
approved by the Cabinet of Ministers of Ukraine the powers of village,
settlement, city, district councils in cities (in case of their creation),
executive bodies of village, settlement, city, district councils in cities (in
case of their creation), village, settlement, city mayors and other powers
dened by this Law.
At the same time, this study has revealed that currently there are only
MCAs of the regional level (Luhansk and Donetsk regions) in Ukraine,
as well as MCA of the level of settlements – urban and rural. However,
no district MCAs and district MCAs in cities exist, despite the legislative
possibility of their creation.
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It is important to pay attention to the fact that MCAs of settlements must
be headed by persons from among the personnel of military units formed
in accordance with the laws of Ukraine, members of the rank and le and
chiefs of law enforcement agencies (Shutova et al., 2020). This requirement
follows from the Decree of the President of Ukraine of April 23, 2015 №
237 “On some issues of military-civil administrations” (as amended).
The document states that within such MCAs only persons from enlisted
members of military formations, members of the rank and le and chiefs
of law enforcement agencies, can be appointed to the following positions:
1) City (town) Military-Civil Administration – Head, First Deputy
Head, Deputy Head of Security and Public Order, Chief Specialist of
the Information Policy Department (Sector);
2) Village Military-Civil Administration – Head, Deputy Head for
Security and Public Order, Chief Specialist of the Information Policy
Department (Sector);
3) Small village Military-Civil Administration – Head, Deputy Head of
Security and Public Order, Chief Specialist of the Information Policy
Department (Sector).
Instead, at the level of regional and district MCA leadership positions can
be replaced by persons from among the personnel of military formations
created in accordance with the laws of Ukraine, members of the rank
and le and senior law enforcement ocers. That is, there is a signicant
dierence between the obligation and the possibility of appointing persons
to appropriate positions in dierent MCAs.
Position Number of positions
City Military-Civil Administration
Head 1
First Deputy Head 1
Deputy Head of Security and Public Order 1
Chief Specialist of the Information Policy
Department (Sector) 1
Village military-civil administration
Head 1
Deputy Head of Security and Public Order 1
Chief Specialist of the Information Policy
Department (Sector) 1
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Artur Fedchyniak, Andrii Danylevskyi, Yehor Nazymko, Oleksandr Kuleshov y Tamara Makarenko
Military administrations as an element of national security under international and Ukrainian
legislation
Rural military-civil administration
Head 1
Deputy Head of Security and Public Order 1
Chief Specialist of the Information Policy
Department (Sector) 1
Figure 2 – List of positions in the military-civil administrations of settlements
to which persons from among the servicemen of military formations formed
in accordance with the laws of Ukraine, persons of the rank and le and
commanding sta of law enforcement agencies are appointed. Source: Decree
of the President of Ukraine № 237/2015 “On some issues of military-civil
administrations”
Military-civil administrations are legal entities under public law and
are endowed with powers under this and other laws, within which they act
independently and are responsible for their activities under the law.
It is worth noting that MCAs have a fairly complex organizational
structure, due to the specics of their powers in a wide range of powers and
areas of responsibility – from security and public order to the development
of education, health care and etc. MCA is simultaneously subordinated to
the President of Ukraine (who actually forms and reorganizes the MCA by
his decrees, appoints the heads of the MCA, determines the list of positions,
decides on the liquidation of such administrations). MCA are also partially
subordinated to the Cabinet of Ministers of Ukraine, as they are also
responsible for exercising the powers of the executive branch. Finally, the
Parliament of Ukraine (the Verkhovna Rada), within legal authority based
on paragraph 15 of Art. 3 of the Law on MCA exercises parliamentary
control over the MCA activities.
MCA ocials act, to a certain degree, as a liaison between regular
armed forces and law enforcement agencies, as well as civilians in the
conict zone, and are primarily responsible for the information component
of cooperation between the two sides. MCA sta coordinates activities
of military, governmental, non-governmental, international, charitable,
religious and other organizations in the direct provision of assistance and
care to the conict-aected population.
The routine activities by the MCA are open and public, except for the
consideration of issues, which are classied information or belong to the
List of information that constitutes classied ocial information (“For
ocial use only”). Public and transparent overage of MCA activities is done
in the manner prescribed by law.
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As previously noted, the concept of military-civil administration is
dened at the legislative level. In accordance with the Law of Ukraine
“On Military-Civil Administrations” of 2015. MCA is dened as a special,
important element of the mechanism of public administration that ensures
the performance of state functions, while endowed with power, acts based
on the principle of responsibility to the local community and the state, legal
entities and individuals for their activities.
The nal section of this article will cover some of the key security-related
functions (responsibilities) carried out by the MCAs according to the MCA
Law. It is obvious that MCA has a list of its unique functions and powers
that derive directly from the MCA Law provisions.
Legal literature highlights the following key features inherent in the
military-civil administration structure: 1) MCAs are state bodies; 2) MCAs
are temporary; 3) MCAs are established in villages, settlements, cities,
districts and oblasts; 4) MCAs have a special purpose, which is to ensure the
Constitution of Ukraine and laws of Ukraine, security and normalization of
life, participation in combating sabotage and terrorist acts, prevention of
humanitarian catastrophe in the area of anti-terrorist operation (Zhuravel,
2021: 68-69).
Generally speaking, the competence of MCAs can be represented as a
set of activities that will include competence in the areas of planning and
socio-economic development; budget and nance; property management;
urban planning, housing and communal services, trade, consumer services,
transport, communications and telecommunications; education, health,
culture, physical education and sports and social protection; regulation
of land relations, environmental protection and historical or cultural
monuments; defense, national security and civil protection; ensuring law
and order, protection of rights, freedoms and legitimate interests of citizens;
resolution of organizational and representative issues and in the eld of
administrative-territorial organization. Consolidation of this competence in
acts of administrative legislation is characterized by certain contradictions
and gaps, which could be eliminated by supplementing the Law of Ukraine
“On Military-Civil Administrations” with a number of exible provisions
that refer to the laws of Ukraine “On Local Self-Government” and “On local
state administrations” (Svirina, 2019: 109).
Art. 5 of the Law on MCA, which regulates certain rights of
administrations, provides in particular for a number of powers related to
protecting civilians and providing for their basic rights. These include the
powers to:
1. establish procedure for the use of storage facilities, structures and
other facilities to protect the population, as well as to meet security
needs;
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Artur Fedchyniak, Andrii Danylevskyi, Yehor Nazymko, Oleksandr Kuleshov y Tamara Makarenko
Military administrations as an element of national security under international and Ukrainian
legislation
2. organize evacuation of the population from places and areas
dangerous to living, as well as evacuation of enterprises, institutions,
organizations and property of important state, economic and
cultural importance;
3. organize, if necessary, the standardized provision of the population
with drinking water, food, basic necessities, medical supplies.
When we discuss the most eective (desired) mode of the MCA operation
in any given territory, it is necessary to emphasize the following functions:
1) normalization of the living conditions of the civilian population,
namely – the organization of food supply, medical care, construction
and arrangement of temporary camps for displaced persons;
2) restoration of the functioning of public authorities in crisis areas;
3) restoration of destroyed or non-functioning infrastructure in the
entrusted territory;
4) assistance or monitoring of humanitarian aid missions;
5) disarmament of all illegal military formations;
6) solving the problem of possessing a signicant number of illegal
rearms by the population;
7) assistance in the demining process;
8) providing opportunities for the movement of civilians in the territory
of the relevant competence;
9) active struggle, rst of all by means and resources of law enforcement
bodies, with mass riots, banditry and crime in general;
10) professional training of personnel who can work eectively and
interact in the conditions of JFO;
11) organization and holding of local elections in crisis areas;
12) conducting active informational and propaganda and patriotic-
educational work among the local population.
As an example, dealing with illegal rearms possession by the population
(clause 6 in the list) can correspond to the issue of smuggling from the
temporary uncontrolled areas of Luhansk and Donetsk regions (Movchan
et al., 2021). This is especially relevant in view of the wide discussion in
Ukrainian society regarding the need for the criminalization of commodity
smuggling (Pidgorodynskyi et al., 2021).
Thus, local and regional bodies of military-civilian legal regime really
represent the state in the territories of military operations, exercise its
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power, political will and protect the population, territorial integrity and
sovereignty of the state through the outlined tasks. This is the most eective
way to create most favorable conditions for the population living in the
crisis area.
Ocials of military-civilian administration units act on regularly basis
as a link between the regular armed forces (law enforcement agencies)
and civilians of the conict zone and are primarily responsible for the
information component of cooperation between the two sides. Public
service professionals coordinate activities of military, governmental, non-
governmental, international, charitable, religious and other organizations
regarding provision of direct assistance and support to the aected
population (Shevchenko, 2016).
Administrative functions of the MCA are primarily intended to support
defense and security status on the territories aected by the hostilities
(without violating military objectives of the Armed Forces in any given area),
maintain public order, conduct educational work, organize and implement
measures for mobilization training and civil defense, take necessary
measures for the organization and protection of the state border; create
appropriate conditions for the functioning of entry-exit checkpoints in the
temporarily occupied territory of Ukraine; carry out systematic measures
on military-patriotic education of the population. These and other related
functions are prescribed in Art. 4 of the Law on MCAs.
Thus, MCA is endowed with a special purpose in order to determine
main direction of its powers and does not perform the functions of local
state administration and local governments only. The rather unique status
of this institution is explained by the fact that it is a complex administrative
structure, which combines both managerial and law enforcement functions.
The key goal of such hybrid mode of functioning is providing or at least
contributing to the regime of national security on any given territory of
Ukraine.
Conclusions
Military-civil administration as a special type of state institution of a
conditionally hybrid nature (according to its status and powers), responds
to the current threats facing Ukraine in connection with the hybrid military
conict in eastern Ukraine.
Based on data from open sources, we can summarize: the current
regulatory framework is very supercial, without proper detail, describes the
relationship between the bodies (units) of the MCA and other governmental
agencies. In practice, the level of intensity of such interaction diers in each
given area of Luhansk and Donetsk regions.
344
Artur Fedchyniak, Andrii Danylevskyi, Yehor Nazymko, Oleksandr Kuleshov y Tamara Makarenko
Military administrations as an element of national security under international and Ukrainian
legislation
The Law of Ukraine “On military-civil administrations”, discussed within
this paper, though expected by its title to be one of the most important
legislative pieces on CIMIC issues, does not eectively address the topic
of civil-military cooperation. Under this Law, military-civil administrations
basically represent a hybrid model of military-civil governance within
specic Ukrainian territories directly or indirectly aected by the foreign
military aggression.
Based on the key principle of the supremacy of civil society over the
military, the discussed 2015 Law should be eectively renamed into the
Law “On civil-military administrations” with a continued focus, potentially
within a specially drafted chapter of the Law, on the military support of civil
authorities and ocial public order rebuilding eorts in certain areas of
Donetsk and Luhansk regions.
Preferably, amendments to the Law should reect expansion of the
powers of civil-military administrations towards closer operational and
tactical cooperation with locally stationed military units. The new model
should be based on the regular tripartite contact between the military, local
community and regional (local) authorities.
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Esta revista fue editada en formato digital y publicada
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Vol.40 Nº 74