The Military, the Police, the Berkut: What will the national guard be?

In a country at war, and where the state has not regained its monopoly on violence, it is no longer sufficient for politicians to rely on shifting voter sympathies or even powerful economic capital. Achieving their political goals is becoming impossible without investment in a third type of capital, military. With that in mind, the Committee for Legislative Regulation of Law Enforcement’s approved Bill No. 6556, which greatly increases the powers of the Ukrainian National Guard. The move has been perceived by human rights organizations as a clear attempt by Minister of Interior Arsen Avakov to create a private army.

The idea is not new. Classic examples are the Dnipro 1 and 2 battalions, created and equipped under protection of former owner of PrivatBank and the then-”master” of Dnipropetrovsk region, Ihor Kolomoyskyi. Not only did Kolomoyskyi form a loyal military unit, but he also immediately became a poster child for the civic commitment of big business. However, nationalist parties and organizations, such as the Right Sector, the Freedom Party or the Brotherhood, also created their own units, composed of their members. Soon, their veterans became the core of right-wing street protests. The “men in black,” with whom Oleh Liashko posed for photos in 2014, have taken a different path. They formed a battalion,then a regiment, and  became part of the National Guard. In 2017, the regiment served as the basis for a new political party, the National Corps. But party-linked paramilitary groups can barely be compared to the powerful military structure organized by Avakov, which could, according to human rights advocates, wield unprecedented powers in the near future.

The initiative to enlarge the powers of the National Guard appeared back in the late 2015, according to a member of the human rights coalition No to Police State Mykhailo Lebed, who spoke at a press conference in the Ukrainian Crisis Media Center. Back in 2015, bill No. 3723 was authored by the Poroshenko’s advisor Anton Herashchenko. His text, augmented with new ideas from new authors, became the substructure of the 2017 document. The authors justify the law by pointing to events such at the demonstration outside Verkhovna Rada in August 2015. On that day, during the mass unrest organized primarily by members of the Freedom Party, a live grenade was used against National Guard soldiers. Four servicemen died, 141 people were wounded. And although the two main suspects in the terror case were detained almost immediately, and the case materials were handed over to the court, the hearings still have not started.

However, behind the appeals to tragic events and statements about restoring trust in law enforcement, lurks the danger of turning the country into a police state. “It was a horrifying story. But could any additional powers have saved them at that moment? I don’t think so,” said a Self-Help MP Olena Sotnyk. She places responsibility on politicians, the police and the security services to prevent these situations. But instead of developing these services, the new legislation will turn the National Guard into an autonomous structure which would have police powers, military-grade arms, and the same functions as the infamous Berkut.

Freedom of assembly is deeply sensitive issue in Ukrainian society. The only way to prohibit a protest or set limits is by a court ruling. However, new powers will allow the National Guard (the military) to do so, based solely on their own ideas or the orders of their commanders. Soldiers will be allowed to set the “safe distance” between themselves and the protesters directly in the course of a street demonstration. Nothing will keep them from forcing the demonstrators to protest hundreds of meters away from street demonstration. And if the protesters try to cross this imposed border, the soldiers will have the right to use special means against them, regardless of whether they do anything illegal. The limits of what is allowed will now be officially drawn with rubber batons. Obviously, these uncertain limits will be systematically violated, leading to more and more violent clashes.

In addition to the legitimate use of force, National Guard soldiers can also expect impunity. It will hardly be possible to hold soldiers responsible for inappropriate use of force. Unlike police officers, whose badges are equipped with cameras, the National Guard soldiers (just like Berkut officers) are not obliged to carry individual markings which would allow identification. If they violate the law, it will be very difficult to find out who is guilty of the violation. The trials of Berkut members, which still have not concluded, are a perfect illustration.

In addition to the riot powers, the National Guard will also gain a whole range of regular police functions. Some of these it already has. But most of them are related to directly stopping a crime when the military is used to maintain public order . What is fundamentally different about most of the new powers bill No. 6556 propose giving to the National Guard is that they are only about policing, not about the use of force. In particular, the National Guard will be able to check IDs, carry out surface searches, stop vehicles, limit access to territories, make photo and video recordings, enter properties and much more. The National Guard will also be given convoy functions.

If the bill is passed into law, the military will also be able to write protocols about small-scale administrative offences. The list of these offences, among other things, includes drinking alcohol or smoking in places where it is not allowed, small-scale disorderly conduct or prostitution. It is hard to imagine how officers, who mostly have only military skills, will stop these “dangerous” crimes.

The very idea of involving the military in these activities directly contradicts the Strategy of Development of Internal Affairs Agencies, approved by the Cabinet of Ministers in October 2014, according to the analysis of the bill by the OZON civic watch group. The strategy argues for the demilitarization of law enforcement agencies and turning them into civil services. The bill also, according to the document, violates Article 17 of Ukrainian Constitution, which directly prohibits the use of the Armed Forces of Ukraine or other military formations to limit the rights and freedoms of citizens.

“It is unclear why these powers are being given to the National Guard. Don’t the police have enough powers? Don’t they have enough people? If they really lack people, then we need to ensure proper funding. If these functions are handed over to the National Guard, it means that there is funding,” says an analyst from the expert group Police Under Control, Mykhailo Kamenev. “The use of police functions by a militarized unit, in and of itself, presupposes more violence.”

The motivation for passing bill No. 6556 is not only to concentrate power. According to MP Ihor Lutsenko, the National Guard will obtain powers to control the most criminalized businesses, such as amber production. “It will be a full corruption cycle, when a corrupt business will be protected by force, ensured by force, and not a single Ukrainian citizen, not a single law enforcement agent will be able to destroy this corruption,” comments Lutsenko.

As a military formation, the National Guard has the right to use heavy arms and military equipment. At the same time, the bill transfers some of the control over the National Guard from the Ministry of Defence to Avakov’s Ministry of Interior Affairs. So we will have an autonomous military structure, which will be directly tied to one person with power and political ambition. It is not hard to imagine how this power will be used.

“The bill proposes to turn the National Guard into an alternative army, because it will no longer be controlled by the Ministry of Defence, but rather by the Ministry of Interior. And this means that if there’s another conflict escalation, there will be two absolutely different armies on the battlefield, controlled by two absolutely different people. For Ukraine, both from the military perspective and from the perspective of abuse (including the use of National Guard to achieve personal political ambitions), it is a huge, unacceptable threat,” says Olena Sotnyk.

The expansion of the National Guard’s powers will include one of the best-known volunteer battalions, Azov. Information about violent incidents involving Azov fighters, who mostly share radical right opinions and don’t hesitate to use neo-Nazi symbols, are already regularly covered by the media (1, 2, 3). And the street violence legitimized by the new powers and the protection from the highest ranks of the government, can become systemic. Although, according to Ihor Lutsenko, such developments are unlikely (because they are not in the volunteers’ interest), Azov’s usually active press office, which does not shy away from criticizing the National Guard, has not made any official statements criticizing the bill yet.

On September 19, at a press conference in the Ukrainian Crisis Media Center, MPs and human rights advocates promised to use everything in their power to stop the bill, which has already reached the stage of the first reading in Verkhovna Rada. Its unacceptability has already been made clear by the Ombudsman, MP groups and human rights groups. The grassroots pushback has also started. On September 19, there was the first street protest against the bill, organized by Kharkiv activists from the Bunker Social and Cultural Center. And on September 21, a protest took place in Kyiv, outside Verkhovna Rada, and in a number of other cities. So there is hope that the bill will not be passed, at least not in its present edition. But even in this most optimistic (and not guaranteed) scenario, Avakov’s private army will not disappear. It will retreat to its present position to regroup and plan another march on power. For this reason,demilitarization not only of particular services, but of Ukrainian politics in general must become the key task for the immediate future.