Protecting the defenders: why Ukraine needs a military ombudsman and how it should function

Since 2014, hundreds of thousands of Ukrainian citizens have stepped forward to defend Ukraine against Russian aggression. At the same time, the situation has revealed that protection is particularly needed for our defenders themselves and their families. Servicemembers are vulnerable and often unprotected, as they depend on their commanders and are compelled to follow orders, risking their lives and health.

Therefore, the institution for protecting the rights of military personnel requires not only establishment but also effective implementation and realization. Ensuring transparency in these processes is crucial so that both servicemembers and the public understand how it functions. Trust, of course, is equally vital.

Unfortunately, such initiatives are at least a decade overdue. However, it is imperative now to catch up and implement this initiative effectively. Advertisement:

The idea of a military ombudsman is not new and has already been successfully implemented in several countries.

The first attempts to formalize this mechanism were made in Scandinavia. Notably, Sweden introduced the institution of a military ombudsman as early as 1915, becoming the first specialized body for protecting the rights of servicemembers. This development was a logical continuation of the democratic oversight traditions established in 1809, when Sweden introduced a general ombudsman institution to monitor legality within state bodies, including the military.

The military ombudsman in Sweden was tasked with ensuring that the rights of soldiers and officers were not violated, even within the strict confines of military discipline. The ombudsman monitored the actions of military commanders, reviewed complaints from servicemembers, and ensured that fair and lawful procedures were applied to them. The concept of a military ombudsman as a distinct institution gained particular relevance after World War II when it became clear that the rights of military personnel needed special protection.

In the 1950s, Norway and Germany also institutionalized military ombudsmen. These positions were created to ensure transparency in the activities of the armed forces, address complaints from servicemembers, and prevent abuses. Parliamentary model

The parliamentary model integrates the military ombudsman into the existing ombudsman institution with specific powers aimed at protecting the rights of servicemembers, veterans, and their families or places the ombudsman fully under the authority of parliament. This model is exemplified in Norway, where the military ombudsman reports to parliament and works on servicemembers' complaints, monitors service conditions, and ensures compliance with standards in the armed forces. This approach allows for a focused address of relevant issues.

Executive model In this model, the ombudsman operates within the government, for example, under the Ministry of Defense, but retains independence in decision-making. This structure ensures direct access to governmental structures but may sometimes be constrained by administrative influence.

In Canada, the military ombudsman reports directly to the Minister of National Defense but maintains autonomy in their activities, reviewing complaints from servicemembers and their families, investigating rights violations, and providing recommendations to resolve identified problems. Hybrid model The hybrid model combines elements of the parliamentary and executive models.

The ombudsman may act independently but maintains links with other state structures. For instance, in Austria, the military ombudsman, the Defense Commissioner, works closely with parliament but retains certain autonomy.

A prominent example of this model is the United States. In the U.S., oversight of servicemembers' rights is carried out by the Servicemembers' Advocate and the system of Inspectors General.

The advocate mediates between servicemembers and commanders, offering advice on resolving issues, while inspectors general work within military structures to review complaints, conduct investigations, and report findings to Congress. This system ensures transparency and accountability. Independent model

The independent model involves establishing a separate body or position that operates independently of the executive branch. Such an ombudsman is appointed by parliament and is accountable to it and the public, ensuring autonomy and impartiality. In Germany, the parliamentary military ombudsman oversees compliance with servicemembers' rights and democratic standards in the armed forces.

This ombudsman has the authority to conduct investigations, review complaints, access military facilities and documents, and reports annually to parliament, ensuring transparency and enhancing public trust in the human rights system within the military. In contrast, in some countries, the ombudsman is entirely subordinate to the executive branch and lacks true autonomy. This creates risks of bias, limiting the effectiveness of military rights protection.

For example, in China, the military ombudsman is dependent on the ruling party's policies. In Russia, oversight occurs at the level of the prosecutor's office. For Ukraine, a relatively young state that is also fighting for its existence and democratic path, the independent or, at the very least, parliamentary model of a military ombudsman appears most suitable.

These models account for the specifics of our country, where the army comprises individuals who, a few years ago, pursued entirely different professions but stepped up to defend the nation during its most challenging time. Such models align closely with the "Venice Principles," which emphasize the importance of ensuring the authority, impartiality, and legitimacy of the ombudsman institution: the ombudsman should be elected or appointed through a procedure that guarantees maximum independence.

Independence is the key factor for the effective functioning of a military ombudsman, enabling the role to fulfill its duties effectively.

Conversely, the executive model, with subordination to the Ministry of Defense, does not seem the best choice for Ukraine. While it facilitates cooperation with security structures, it could limit the ombudsman's independence and create risks of conflicts of interest. Furthermore, it would be more effective if there were complete trust in the Ministry of Defense, which is currently lacking.

Servicemembers and the public might harbor doubts about the impartiality of such an institution. In any case, the first step should be to present a draft law and then make a final decision through dialogue. Additionally, regardless of the chosen model, the ombudsman's reporting to parliament and ultimately to the public is mandatory.

The introduction of a military ombudsman in Ukraine is a significant step toward strengthening the protection of servicemembers' rights. Ultimately, the presence or absence of military ombudsmen largely depends on a country's political system, level of democratization, and human rights culture. A properly chosen model for this institution will ensure its effectiveness and contribute to strengthening democracy.

Publications in the Expert Opinion section are not editorial articles and solely reflect the author's point of view

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