On the National Security Law of Ukraine: A small leap forward; a few steps back
On the National Security Law of Ukraine: A small leap forward; a few steps back
This summary of comments on the new national security law is written for lawmakers with the intention of stimulating more active discussion. I completely understand that much of this law is shaped by history and concerns organisations, practices and processes unique to Ukraine. I also understand that as an outsider some Ukrainian complexities will remain a mystery to me. However the law as it is written must be completely understandable and bring new value with no hidden political undertones or opportunities for poor implementation. If defence and security is to be effective in a modern democratic Ukraine that is at war, then this law must be the tool to make changes towards NATO and EU values and standards (Things remarkably not even mentioned in the law. So this law is a big first step forward, but this institute needs to look further ahead to the next major changes. This commentary can act as a guide to stimulate discussion about how this law works in practice and what changes should be tackled next and why. There is also no intended criticism of this or any President. But it is vital that a law as written must be capable of being implemented or it loses force and credibility.
I had the opportunity to work on the first copy of this document in 2015. It has moved forward powerfully in many areas and the drafters should be congratulated. Most importantly there are many new and valuable western concepts now developed within the law that were fiercely rejected previously by MOD. Unfortunately much new has been left alongside the old concepts that have not been removed. So there is still much work to be done by lawmakers to bring this law and the subsequent changes to the system into line completely with western democratic ideals. In some cases such as in the management of defence the recommendations listed are still very Soviet in nature. I know that any radical change of concepts and ideas seem difficult to replace well worn systems and thinking especially for leaders brought up in the old school. But it would be wrong of me as an adviser to condone things that I know or feel to be wrong. Thus some comments may seem overly critical but they are well intended. I leave it to lawmakers to decide if I have given ideas of value for them or not.
The two initial points I would make concern the focus and the writing. In terms of focus the law does not yet provide clarity for a country at war. If I was reading this law for Switzerland or Austria with their limited threats I would leave much of it untouched. But Ukraine needs clear law to make better systems, not just in fine words, but in terms of who does what to whom, when, where, why, and how. The lack of this operational focus and clarity shouts-out throughout the whole document and leaves dangerous loopholes and overlaps in responsibility and accountability for action. A typical example is in the article on management of intelligence. This is arguably one of the key facets of this law and for the country, but gets limited attention. Dangerous loopholes like this must be closed. I offer practical suggestions that have worked elsewhere. The writing in many cases is too passive and that also allows loopholes in responsibility. An example is the paragraph for the Minister of Interior “The activities of the National Police of Ukraine, the National Guard of Ukraine, the State Border Guard Service of Ukraine, the State Emergency Service of Ukraine and the State Migration Service of Ukraine are directed and coordinated by the Cabinet of Ministers of Ukraine via the Minister of Internal Affairs of Ukraine”. This would be better worded with active speech “The Minister of Internal Affairs is directly responsible for the performance, activities and actions of the National Police of Ukraine, the National Guard of Ukraine, the State Border Guard Service of Ukraine, the State Emergency Service of Ukraine and the State Migration Service of Ukraine as required by government. He should report in person to Parliament annually on this responsibility or as requested by Parliament for specific purposes ” Then responsibility and reporting are clear and unclouded.
Perhaps the must crucial problem that lawmakers must address is the role of the President within the security system. The constitution appoints the President as Commander in Chief. This role he has admirably taken seriously. The problem is that in making himself literally the military commander and wearing uniform he has distorted the checks and balances of the whole system. He has drawn responsibility and arguably excessive authority to himself making him omnipotent. He has made dealing with him as a civilian impossible in this subject. In this law he is being given the role of “governance” of the system but expressed only in the context of “power to give orders” rather than in the need to hold those accountable who fail. Thus there is now NO civil control of the military because the most senior person has no checks and balances placed upon him. This is dangerous. It is also clearly against the spirit of civilian control argued in this law. The lack of accountability for the four lost ammunition dumps highlights the problems. In any western defence system a senior person would immediately resign. However with a military President this does not happen as he is inextricably linked to the system himself. It could be argued that Churchill had the same powers, but in reality he did not. First he still had to answer to the King weekly. He was also beholden both to his party and Parliament. He had to report his actions to Parliament each week and he was always only one vote of confidence away from removal and replacement. This law should either demand a much greater accountability of Presidential actions to Parliament and make the responsibilities accountable in some way, or remove and reallocate responsibilities and reword the governance and civil control aspects that the president should fulfil. For those interested in reading more there is an academic paper on the subject available from the Institute in English and Ukrainian
The second challenge with this law and for the President is the sheer amount of tasks given to the President both in this law and the constitution concerning defence and security. Many of these are totally impossible to fulfil in the way they are written. These tasks also weaken the role of Ministers, Ministries and government by taking away their natural responsibilities for performance. This is actually unfair on the President as by law it tries to create a situation where he/she has to become superman vested with superhuman powers. But no person can be the sole guarantor of national sovereignty as the Constitution demands. We are not in the matrix; and presidents cannot fly and catch bullets in their teeth and we should not demand by law that they do so. The very best for them is to ensure that the national defence and security systems are properly tasked by a good strategy and made operationally effective to best secure the nation and people. They can also select the best people to lead the system. The presidential tasks within this law need rethinking and rewording.
A third challenge is the wasteful and operationally dangerous overlapping of tasks, documents and authorities for national security. For example every agency wants to be involved in counter terrorism, even the military. Put simply, too many police tasks have been spread amongst other agencies. This creates expensive private fiefdoms but in the long run weakens the authority of the police and arguably the state. Terrorism is simply breaking the law and should be seen as such. Historically the communist state developed institutions to protect power and itself. In a democracy these are no longer relevant. Admittedly there are new challenges such as Cyber defence and warfare but these must be positioned in the organisation best placed to understand them and deal with them.
There appears little use of policy as a strategic security tool at national level. Policy appears all throughout the law but does not say what it is and what it should do in the definitions. At present the overlapping tasking shows the lack of this policy coordination. Unfortunately the MOD has exempted itself from policy reform for the time being. Without policy coordination across all the defence and security agencies, tasks and documents duplicate and contradict each other, money is wasted and operations will eventually fail.
The civilian oversight system suggested within the law does not give sufficient indication how the law should work in practice. There are two fundamental flaws:
- The law does not define the oversight relationships between those organs involved in oversight both acting and overseeing. In other words how does each part actually make the oversight work – for example if civil society truly has a role how do they physically exercise this role in a way that is meaningful and does not lead to political frustration? If the current MOD reform office or civilian support at the front line is taken as an example today then it is clear that MOD or the staff can block and thwart oversight activities simply by inaction or claiming the civilians have no role in any particular area. There is no legal requirement for them to take notice. The public are often forced to use Facebook to get their message across which is surely not what this law intends.
- The law also fails to address implementing those human values and standards it mentions both within the forces themselves and of the forces against civilians. This is especially important for following those values of humanity where people are in an organisation not of their own free will but by national order (conscription and mobilisation) and then how they are treated by authority.
Verkhovna RADA is given oversight authority for many activities but the law does not outline how this is to be exercised. For example it does not identify their powers to call defence to order for budget spending, over-secrecy, checking conscript training or following operations etc. It does not tell the MOD or Security Services what they must do to support the RADA in each case. It does not outline what powers RADA has when they are not happy with something.
Another key point is the need for a coherent plan for changing the national level defence and security structure. Currently the desire for “unified management” is actually not developed within this law beyond giving everything to the President. The real organisation is not unified at all. Too many organisations and processes are run along single Ministerial lines rather than being coordinated and with a single operational focus. Examples include the lack of a working national crisis structure with no 24/7 operational HQ or an all source intelligence cell. Many task overlap and there is serious lack of operational consistency between the personnel issues, doctrines and training of National Guard, SBU, police and army. There is need for maritime coherence between the navy and Border Guard and so forth. Partly this is because the NSDC does not have the powers or resources to force change at Ministerial level and partly because too many responsibilities and powers are vested in the President who simply does not have time to process all the challenges. This law does not help.
There is thus a clear need to strengthen NSDC by setting up a proper crisis operational infrastructure at national level. Four full time organisations are recommended. These need not be overly expensive as manpower can be seconded from other organisations on a rotational basis:
- The first is a small 24/7 national level wartime operational cell based upon the NSDC manned by skilled operators from all the security apparatus and led by a trusted senior official. It should be tasked to coordinate all the defence and security operations nation wide and act a central focus point for Ministries. It will support government preparing for and manage an even more serious crisis than now. The need for this is obvious. If Russia should attack then it will not be nicely on a working day. It will be when senior people are engaged elsewhere. There will be little time for detailed analysis or meetings. There needs to be a government organisation that is always operationally ready, with authority to act, and with whole government plans at fingertips.
- To assist the government there is also needed within NSDC an “All source” intelligence cell made up of analysts from all the agencies and other intelligence providers like the ports, national bank and liaison officers from key nations. This should be led by a senior figure (National Intelligence Director) with international standing and gravitas. This cell should take feed from all possible sources and deliver daily reports to officials and back down to the lowest levels.
- The third organisation needed is a proper 24/7 Joint Force HQ in the MOD/General Staff. This need for this is obvious and clearly reinforced by the military response after the Azov activities. The Joint HQ in Donbas was outflanked and with no powers to respond in this area. This HQ should be commanded by a Joint Commander who ranks equally with the chief of staff and below the chief of defence. In an emergency this man will be relied upon totally so he must be the best strategic thinker in the forces.
- Finally development of a “soft power” management and coordination body to identify how best to defend the country by all available non violent means. This body would meet under the auspices of the NSDC and include experts in diplomacy, academia, cyber, public relations, industry, economics, finance, national and international law, civil society and Diaspora liaison.
A further long term challenge is with the plethora of organisations being used for defence and security. Some should not exist at all such as the State Service of Special Transport. They just eat public money that could be better spent elsewhere. The most contentious issue is with the National Guard. This organisation does not exist in Western democracies as it has its roots in the communist past. It was designed for use by Government to keep the people in check. It is not at all the same as US National Guard which is military and under defence control. Most of the Ukraine National Guard tasks are police tasks and duplication diminishes the important role of the national police in an unhealthy way. It reduces the importance of “police primacy” in working with the population and arguably stops the police developing properly as a modern organisation. Keeping a large expensive military trained force just for the possibility of Martial law or football matches is anathema. Their range of tasks also cross over into other organisations like the SBU, presidents guard and defence forces but with no clarity within this law why each should do what they do. In reality the Guard is a private army and needs proper tasking and reform. There is no justification in this law why the National Guard should exist at all and this needs national debate. Clearly there is always a need for a type of “security police” who have training in weapons but these people should only be used where police resources and capabilities are inadequate. Arguably the Guard should also always be under police command not a separate third force to be used by politicians. As it stands now, within this law as it is written the Guard does not justify the extent of budget they use or the military capabilities currently being developed.
The police also need reform. Key to this is clarity of tasking. Importantly police must have independence from political interference but must always be answerable to the public. This can be done by civilian boards of inspection that monitor police performance and report openly and regularly to Government and Parliament. Police independence and checks and balances should be enshrined in this law. The policing tasks need rewriting as they are woolly and unclear in terms of actually what police should do and how they should be equipped and trained. I would recommend three clear tasks:
- To uphold the laws of the nation without giving favour for position, rank or privilege
- To support and protect all law abiding citizens going about their law abiding business
- To fight all types of crime and produce evidence of wrongdoing sufficient to warrant conviction or informed discussion in court.
The points of law for MOD and the military remain contentious as they are still not adapted fully to the NATO and EU management styles. The article for management of MOD fails to address the key issue of separating strategic political control from day to day management. The vital NATO compatible management roles of State Secretary and Policy Director remain unmentioned in the law. Power and budgets remain politically centralised without the proper checks and balances that these two non political roles and proper delegation should bring.
General Staff are probably taking upon themselves too much in this law. They legislate to control everything including directing the war and in the process will manage less. Their key role is the crucial development of the military system and capabilities for the next round of operations. The new Joint HQ is a great success and well covered in the law but adds confusion by being listed as THE Joint Headquarters. It is strongly recommended that the task of war management for the whole of Ukraine should be delegated to a second more senior Joint Operational HQ based at and directly supporting MOD and the Staff. The idea of having operational commands in general is being confused within the law by not mentioning that the new Joint HQ and Commander primarily control the Donbas operation. This part of law as it stands is operationally dangerous and legally confusing in terms of command and control if Russia attacks suddenly elsewhere.
One key omission in the law is the vital problem of how to manage mobilisation and reserves. Even with good intentions, if there is a serious attack the current system will not work because of time and human volume and what has not been practiced or exists in peace does not work in war.
The concept of a Supreme Commanders HQ and subservience of the military to this HQ is a Soviet construction, democratically dangerous and completely out of line with European and NATO constructs and values. It is recommended that this idea should be removed in totality from this law.
The law also allocates tasks and responsibilities to Service Commanders but fails to address the issue of budget. Without a proper delegated budget for Commanders, especially SOF, Navy, and Air Force the tasks in the law come written on toilet paper and no commander can be deemed accountable.
Key changes in MOD that are needed now have been deferred in the law until 2021. The reason for this delay should be made clear.
Currently the Security Services are involved in too many tasks, most of which are rightfully the province of other Ministries or agencies. The organisation is far too large and unwieldy to manage and retain the extreme secrecy needed (It is approximately 15 times larger than MI5). Duplication of policing tasks is wasteful and expensive. Lawmakers need to read the advice given by the NATO liaison office on this issue. Certainly they recommend a stronger emphasis on developing an effective civilian counter intelligence organisation and upon the policy and law making issues of security as the National Centre for these issues. This first task is vital as Ukraine has not yet cleared itself of unwanted foreign interference. Those police and enforcement tasks that duplicate the work of other Ministries and agencies should be reallocated under this law. This will allow the reduction in size of the organisation and the concentration upon core not subsidiary tasks.
The Intelligence Agencies of Ukraine is the weakest area of importance in this act. It fails to show how intelligence is controlled, co-ordinated, assessed and used. There is no nominated lead agency. The possibility of the President being able to establish a coordinating agency makes no sense as this is not what is needed and anyway would take a long time to become effective. It is recommended that the country needs a full time “intelligence director” and a national level all source intelligence assessment and direction cell running 24/7. This cell should include intelligence not only from intelligence services but from the likes of the SBU, Military J2 combat intelligence, national bank, border guard, police and trusted allies. It should contain a strong link to national NGOs assessing open source intelligence, the media, and international open source analysts. The organisation should be staffed by analysts from each of the key security agencies on rotation to ensure maximum operational experience. It should be managed directly under head of NSDC. It is also recommended that because of the multiplicity of tasks within the presidential administration and the importance and timeliness of war intelligence requirements, intelligence tasking should be split. The strategic policy and direction of intelligence requirements should come from the administration but detailed operational intelligence plans and requests should come from the head of an all source cell in discussion with heads of NSDC and defence and security agencies.
The definitions of security and defence sector must be made clear. There is a world of difference between the “violence” of defence and the societal support activities of the police and they must never be confused within one definition. What are missing from the current definitions are those operational level definitions that are involved in making this law work. Typically these include the definition of the difference in task between political guidance and control and actual organisational management, the vital definition of Command, Mission Command, clarity of the concepts of decision making such as authority, delegation, responsibility and accountability. Also defining the concept of readiness, underpinned by resources and training, that is fundamental for all agencies for the actual delivery of this law. Without legal clarity of these definitions it could be argued that the law is toothless as there will never be clarity about the delivery and performance of operations.
A weak definition is the defence planning paragraph which still retains vestiges of the communist planning concept that military do the planning and the state must provide the money for the plan (The 250000 army for example!). Defence planning in a democracy is NOT about planning for capabilities that can possibly be afforded by the state, but planning for capabilities that can be afforded within the annual budget allocated to the defence sector by government. It is about efficient spending of public money. This is a fundamentally different concept from that written in the act because in any instance of failure planners can always blame the state for not providing sufficient resources, but in a democracy, planners must work to create the best force possible within their allocated means. In this definition the communist idea still has the upper hand.
 Dr Thomas Durrell Young (2018) Can NATO's “new” allies and key partners exercise national-level command in crisis and war? Journal of Comparative Strategy, 37:1, 9-21