Конституціоналізм і війна

Abstract

The article analyzes challenges which exist before constitutionalism in the conditions of warfare using the Russo-Ukrainian war as an example. It has been revealed how the transformation of the legal system and state institutions is carried out in the conditions of warfare, which is mainly a threat to constitutional identity. The latter is of fundamental importance for Ukraine since the loss of the first phase of the war with Russia (1917-20) caused the Holodomor of 1932/33, directed by the Kremlin, and organized by the obedient Creole administration of the Ukrainian SSR. The state’s ability to resolutely and promptly repulse the aggressor performs a dual function in the conditions of war - the sense of safety and security of the civilian population and the mobilization of the necessary resources to resist and defeat the aggressor. First of all, the spread of unconventional ways of waging warfare, which is accompanied even by waging warfare in space, leads to transformation of constitutionalism. At the same time, the rationalization of power in conditions of limited resources becomes a main priority, which is always a consequence of wars. Constitutionalism must produce certain safeguards against the barbarization of wars. The basis of this is an institutionally capable state, which relies on stable institutions, rules and procedures for the protection of the civilian population and effective repulsion of the aggressor. At the national level, the components of this are the tools of militant democracy and parliamentary oversight and judicial review, as well as the effective distribution of powers between authorities in the field of national defense. The state is considered an institutional space for the security of civilians, which is especially felt in conditions of external aggression. The purpose of the relevant such a case is effective control over the territory, protection of the civilian population and effective governance, in particular the allocation of limited resources. An important component of this system is the formation of a mechanism to prevent aggression, which should combine national and international legal means. Keywords: constitutionalism, human rights, institutional capacity of the state, martial law, warfare.