The social structures of martial law in Ukraine

Serhii Makeiev

The social structures of martial law in Ukraine

In the structural perspective – one of the possible ways of speaking about society, of describing and understanding what is happening to it – social structure is understood as institutions, organisations, classes, strata and categories of the population together with the various inequalities between them. In a state of emergency (exception, the extraordinary) they undergo changes that are the consequence of wars, epidemics and revolutions – events that are unforeseeable and occur suddenly. This text is about the stock of notions sociologists possess for observing the modification of social structures and for sustaining a dialogue among themselves and with a potential audience under the martial law introduced in Ukraine on 24 February 2022.

The tradition of the social sciences

In 2003 the philosopher Giorgio Agamben published in Turin a small book, “The State of Exception” (“Stato di eccezione”), a thorough account of what it is as a social phenomenon subject to philosophical consideration and as an empirical object of description and interpretation. In both cases the phenomenon has a small number of essential features and characteristics.

Agamben here follows an intellectual heritage according to which the understanding of how people's shared existence is arranged is embodied almost exhaustively in law, in the body of statutes that order mutual relations and actions and help societies to preserve themselves. Social order, solidarity and security are thus what is protected (must be protected) by law from moral and political inflation and from the risks of disintegration with particular strictness. Such a protectorate of laws, however, is not all-encompassing; times inevitably come when their effect is entirely lost, times of anomie (the absence of norms) – times of the state of exception. Such is their most general and abstract definition, made salient by interstate and civil war and by the extraordinary events that invariably accompany humanity's evolution.

 In real history, however, the vacuum of power is quickly filled by ideological and political slogans and decrees that claim legality and that distribute the powers to issue orders and to oversee their execution among various authorities. A centralisation of power takes place, manifested in the merging of executive and legislative power with the supremacy of the executive. Some institutions and organisations lose the material and skill resources to act in the interests of the common good, losing “strength” and weakening.

At the same time the institution of citizenship is almost completely blocked: the prerogatives of constitutions concerning the rights and freedoms of individuals are suspended once martial law is introduced – the historically formed modification of the state of the extraordinary. By such an act individuals are deprived of their fundamental social definitions, which recognise them as legitimate participants in a shared existence within a state for which they are henceforth (I repeat, an idealised state is meant) no more than living beings. A “bare life” is exposed down to its biological foundation, as is clearly seen in Agamben's best-known book, “Homo Sacer. Sovereign Power and Bare Life”. The instance of power (the sovereign, the dictator, the state) now, mobilising and turning citizens into soldiers (“manpower”), disposes of individuals' life and death at its discretion. Such is the principle, the principle of the deinstitutionalisation of citizenship, but empirically it manifests itself in unequal treatment of different categories of the population, some of whom are required to report to recruitment offices first, others later, while a third group is protected from mobilisation to varying degrees.

Following Carl Schmitt, Agamben recognises as unquestionable, under conditions of war, the social distinction introduced by the opposition “friend – enemy”. The presence of definitions of the enemy, like the existence of a classification of states, institutions, organisations, strata and categories of individuals as such, becomes an unmistakable marker of the state of exception, regardless of whether it was introduced by any decree. To be in such a state and not to recognise it is a frequent occurrence. Martial law, moreover, in effect erases the distinction between the private and the general; it is not characteristic of “bare life”. Nothing, according to Agamben, prevents the general from invading the sphere of the private, the sphere in which individuals principally reside, the sphere of everyday life, no longer protected by personal rights and freedoms or by the protectionist care of social institutions; it is open to external intervention. But the private too, sensing and meeting no borders or prohibitive lines, has a chance to extend its own initiative into places where it once could not be: individuals sometimes act as though endowed with some right – another manifestation of the peculiarity characteristic of the state of exception.

Social structures in the law on martial law in Ukraine

The most general conception of the structural modifications introduced is given by the Law of Ukraine “On the legal regime of martial law”. It introduces a special institutional structure – the “military command”, consisting of the Commander-in-Chief of the Armed Forces, the commander of the Armed Forces and the commanders of various military formations. There is thus formed a union of the institution “president” and the institution “army”, which combines legislative and executive functions and whose orders and directives are subject to execution and do not require approval by the Verkhovna Rada. At the same time “military administrations” of various levels of subordination (oblast, district) are formed, down to territorial communities, responsible for securing public order and safety (the last two words are key to identifying a state of emergency). Their heads and staffing schedules are appointed and dismissed on the proposal of the higher military command and approved by the president. The administrations' powers over the use of labour resources and the material and financial assets of citizens and organisations are widened.

The concentration of legislative and executive prerogatives in a new institutional structure means that the Verkhovna Rada and the Cabinet of Ministers partly lose the status of central branches of power; the range of their prerogatives to control and manage social processes narrows and their possibilities of legislative initiative are limited. Some functions previously within the Cabinet's remit are transferred to the military administrations, such as oversight of the work of the media, cultural institutions and printing organisations. They also have the right to raise the question of banning the activity of political parties and civic organisations that threaten the country's sovereignty, to confiscate telecommunications equipment and to carry out the evacuation of the population.

It is highly telling that the activity of the Cabinet of Ministers (Article 12) is regulated by 5 very general points, while the activity of military administrations at all levels (Article 15) is regulated by 56. One may be slightly mistaken in the count, but by no means about who is really responsible for the state of affairs and who is the instance of power that encourages, controls, directs and imposes penalties – that establishes and maintains the order of everyday life. But of course the law says not a word about the redistribution of functions or about their limitation under martial law. At the same time, unlike the court and the General Staff, the rights of the National Security and Defence Council are not spelled out, although it is said that, not endowed with official powers and residing as it were in the institutional shadow of the law “On the legal regime of martial law”, it prepares proposals for presidential decrees, exercising legislative initiative and joining the union of the institution “president” and the institution “army” as a third element of the institutional structure of the state of exception.

The Decree of the President on the introduction of martial law of 24 February 2022 suspended the operation of Articles 30–34, 38, 39, 41–44 and 53 of the Constitution of Ukraine (11 articles) concerning the rights, duties and freedoms of citizens. Here is what is not guaranteed by the country's fundamental law: the inviolability of the home; the confidentiality of correspondence and telephone conversations; the impermissibility of interference in personal and family life and judicial review in the case of unfounded accusations; the freedom to express one's convictions and to disseminate them; the right to elect and be elected; to assemble and hold rallies and demonstrations; to own and dispose of one's property; the right to entrepreneurial activity; the right to work; the right to strike; the right to education. The law “On the legal regime of martial law” does not repeat the wording of the President's Decree but specifies that no restrictions are placed on the rights and freedoms provided for by part 2 of Article 64 of the Constitution of Ukraine (18 articles).

Thus, according to the law, of the 47 articles of section 2 of the fundamental law “on the rights and freedoms of citizens”, 29 articles apparently remain in force, although 11 have been suspended by the President's Decree. The 18 articles that remain unmentioned are, one must suppose, likewise not obligatory. The 29 articles on rights and freedoms constitute about 62% of all the articles (47) – such is the scale of the damage to the institution of citizenship in the state of exception in Ukraine. Such, in our particular case, is the intensity of the inevitable but temporary process of the “exposure of bare life” through the military-political conservation of the democratic heritage of progress in the degree of civilisation of shared life in a state of emergency, on which Agamben reflected persistently and consistently in his works.

Some features of extraordinary circumstances are contained in the laws that supplement those introducing martial law. In the Russian Federation, for instance, over the past decade a conception of one's own country as surrounded on all sides by enemies and under siege has spread and taken hold (a state of siege, in Agamben's terms, is a variety of the state of emergency). Hence the division of countries into “friendly” and “unfriendly”, and of “enemies” – along a range from external enemies to be destroyed (in whom nothing human is any longer seen) to the “undesirable elements” of internal enemies. And in Ukraine laws are adopted on collaborationism and anti-state activity, aimed at identifying and subsequently punishing “internal enemies”.

In addition, transformations in different directions must take place with the customary educational, cultural and economic differences, which under exceptional circumstances are also prone to modifications of smoothing over or, conversely, of accentuation. In a situation where men in a country at war are regarded as potential soldiers, the dominant tendency devalues the significance (“weight”) of educational, cultural, religious and generational differences. Conversely, in the process of selecting those mobilised, differences in health (fitness for service) and in the degree of patriotic readiness to join the armed forces (the opposition “volunteers – draft evaders”) are revalued. The significance of situational differences grows between those at the front and those in the rear, between categories of the population that have suffered from the war to unequal degrees. Which tendencies unfold and which contract is a matter for empirical study in the concrete circumstances of place and time. But it is reliably known that the contribution of various institutions, organisations and communities of individuals to the survival of a society at war proves unequal. Compared with peacetime, the ranking of trust in institutions, organisations and communities is transformed, as is the ranking of their prestige (honour and glory). A more detailed examination of these, however, like the observation of social differences that acquire and lose significance, requires additional research effort beyond the scope of this note.

The law “On the legal regime of martial law”, then, regulates the rights and duties of the central – newly created and traditional – organs of state administration at various levels. But administrative practice does not always coincide with the unconditional prescriptions of laws, which testifies to the inevitability of the divergence of “law and life”, as Schmitt and Agamben maintained. And this, in turn, calls on social scientists to study the empirical experience of the influence of the authorities on socio-economic and political processes in the context of the variety of interests and claims of different subjects pursuing particular aims under extraordinary conditions. The use of traditional sociological instruments for observing such experience remains problematic. What is needed here, most likely, is an interdisciplinary approach requiring the application of a variety of political-science, legal and public-administration methods as well. The prospects of implementing it in wartime and under substantial constraints on funding for such an undertaking, however, remain fairly uncertain.