Statement of concern

to

President of Ukraine
Parliament of Ukraine
Supreme Court of Ukraine
National Security & Defense Council of Ukraine

by

undersigned, each with extensive professional experience and firm commitment to Ukraine,

regarding

civilian criminalization of combatant commander decisions and its impact on Ukraine’s security & Western support

On December 11, 2020, a civil appellate court reviewed the trial and upheld the conviction of retired Major General Viktor Nazarov who, as acting Chief of Operations of the “anti-terrorist” effort in the Donbas, was accused of negligence in connection with the shoot-down by Russian-led forces of a Ukrainian Il-76 transport plane on June 17, 2014, with the loss of 9 flight crew and 40 paratroopers.

In the immediate aftermath, two responses — conducted simultaneously and separately of each other — registered major concern over the implications this decision has for Ukrainian security. On December 19, 2020, over one-hundred Ukrainian senior officers and proven battlefield commanders put their signatures and careers on the line in issuing an “Open Statement” to the leadership of the country, warning that the civilian prosecution and incarceration of General Nazarov is a “Threat to the National Security of Ukraine.” 

On December 20, two Americans, Lt. General (Ret.) Ben Hodges and Dr. Phillip Karber, with extensive experience and direct knowledge of Ukraine’s seven-year defense against Russian aggression and of the current state of Ukraine’s armed forces, produced a detailed review of the case. Their independent findings, published in The Kyiv Post on December 22, 2020, pointed to the dangerous consequences for Ukraine’s national security of these proceedings against General Nazarov.

On December 23, the Supreme Court of Ukraine issued a stay in Nazarov’s incarceration, and President Zelensky ordered the Chief of the General Staff Ruslan Khomchak “to study the combat experience of the tragedy.” These are noteworthy, but even if Nazarov is ultimately exonerated, the structural issues that produced the civilian criminalization of combatant command decisions remain. Moreover, the General Prosecutor’s office, in recent weeks, has initiated several similar cases charging higher commanders with responsibility for military losses.

We fear that the continued practice of abdicating to civilian prosecutors and judges, who neither have the experience nor the expertise to evaluate demands of battlefield decision-making, subverts Ukrainian security. Neither the United States nor other Western states militarily supporting Ukraine would ever allow their commanders to be treated in the manner as was General Nazarov. At a time when Russia continues the war in Donbas, Ukraine must encourage the commitment, fighting spirit and initiative of its military personnel. The prosecution of General Nazarov has the very opposite effect. 

As the Hodges/Karber report notes, Ukraine should not punish military commanders for “making tough decisions under high uncertainty and difficult circumstances.” This sends a very negative message undermining Ukraine’s military officers, and could affect how other countries assess Ukraine’s military when they make decisions regarding military support for Ukraine.

We suggest that the Presidential Administration, Parliament, Supreme Court and the National Security & Defense Council:

  • Ensure a meticulous review of this matter at the highest level, taking into utmost account the deep concerns of so many of Ukraine’s senior and experienced battlefield commanders and, given Ukraine’s application for NATO membership, reconsidered in light of Western practice.
  • Ensure that the trial of military officers in matters related to decisions made in combat or otherwise during time of war is conducted in a military court, before a military judge and with a jury of operationally experienced military officers.
  • Maintain the stay of incarceration of General Nazarov and freeze any other measures against him until completion of such high-level review, with his treatment and civilian verdict reassessed with respect to those findings.

Ukraine’s prosecution of General Nazarov and the civilian criminalization of combatant commander decisions are something only Russia can celebrate. 

With concern:

Dr. Stephen Blank 
Senior Fellow, Foreign Policy Research Institute

General Philip Breedlove (US Air Force, ret.) 
Distinguished Professor, Sam Nunn School of International Affairs, Georgia Tech University; former NATO Supreme Allied Commander, Europe (SACEUR)

General Wesley Clark (US Army, ret.) 
former NATO Supreme Allied Commander, Europe (SACEUR) and 2004 Democratic Party Presidential Candidate

Melinda Haring
Deputy Director of Atlantic Council’s Eurasia Center and Senior Fellow, Foreign Policy Research Institute’s Eurasia Center

John Herbst
former US Ambassador to Ukraine and Uzbekistan

Lieutenant General Ben Hodges (US Army, ret.)
former Commander US Army Europe

Glen Howard
President, Jamestown Foundation

Dr. Donald Jensen 
former US diplomat

Dr. Phillip Karber 
President, The Potomac Foundation; former Strategy Advisor to the Secretary of Defense

David Kramer 
former US Assistant Secretary of State for Democracy, Human Rights and Labor

Robert McConnell 
Director, External Relations, Friends of Ukraine Network (FOUN); former Assistant Attorney General

Stephen Pifer 
former US Ambassador to Ukraine

Roman Popadiuk 
former US Ambassador to Ukraine

Victor Rud 
Chairman, Foreign Affairs Committee, Ukrainian American Bar Association

William Taylor 
former US Ambassador to Ukraine

Alexander Vershbow 
former NATO Deputy Secretary General; former US Ambassador to Russia

This views expressed in this Statement of Concern are solely those of the authors and do not necessarily reflect the views of the Atlantic Council, its staff, or its supporters.

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