COLLABORATORS. INTERNATIONAL LAW AND PRACTICE. THE SITUATION IN UKRAINE
In the past, although the concept of "collaborationism" was not a legally enshrined phenomenon, it has been the subject of numerous scientific studies by many scholars around the world.
The concept described the political and legal reality of occupied France during the Second World War. At that time, France was the birthplace of collaborationism as a concept that meant cooperation with the enemy or the occupying power.
The population of Ukraine, like many other countries in the world, was no exception to the collaborationist activities during World War II.
For Ukraine, the concept of "collaborationism" as a legal, political and criminal law phenomenon was introduced and first began to be widely used in 2014 after the attachment of the Crimean peninsula and the establishment of effective control by the Russian Federation in certain areas of Donetsk and Luhansk regions. And it was Russia’s full-scale intervention in February 2022 that forced Ukrainian lawmakers to criminalize the concept of "collaboration".
The legal regulation of the phenomenon of collaborationism is largely governed by the national criminal law of a particular country. However, international law also recognizes the inadmissibility of collaboration in the context of armed conflicts. In particular, the IV Convention relative to the Laws and Customs of War on Land of 1907 prohibits collaboration with the enemy, including overt or covertly aiding the enemy, cooperating with the enemy in hostilities or in any other manner. From the standpoint of international humanitarian law, depending on the circumstances, scope and consequences of collaboration with the enemy, collaboration may be qualified as a war crime or a crime against humanity.
We would like to draw attention to the fact that collaboration is usually carried out on the territory under occupation. According to Art. 42 of the Regulations on the Laws and Customs of War on Land of the IV Convention on the Laws and Customs of War on Land of 1907, a territory is recognized as occupied if it is actually under the authority of the enemy army. Occupation extends only to the territory where such authority is established and capable of performing its functions.
More broadly, the rules for the behavior of the aggressor state and the interaction of the civilian population with the occupier in the occupied territory are regulated by the provisions of the Geneva Convention relative to the Protection of Civilian Persons in Time of War, 1949.
For example, Article 40 of the Geneva Convention stipulates that nationals of the enemy state may use only such types of forced labor as are necessary to provide food, shelter, clothing, transportation, and health and not directly related to military operations. Although these works are called forced labor in the Geneva Convention, they can also be performed voluntarily, at least without the use of physical or mental violence.
Articles 24 and 50 of the Geneva Convention provide for the obligation of the occupying power to ensure the functioning of educational institutions, and the education of children should be entrusted to persons of the same cultural traditions. In other words, the norms of international humanitarian law prioritize the provision of educational services by existing educators, given the presence of children in the occupied territories who need to continue their education.
According to Article 51 of the Geneva Convention, the Occupying Power has no right to compel protected persons to serve in its armed or auxiliary forces. That is, it is prohibited from forcibly mobilizing men living in the occupied territory. Article 54 of the Geneva Convention prohibits the Occupying Power from changing the status of officials or judges in the occupied territories or taking any coercive measures against them if they refrain from performing their duties on grounds of conscience.
Doctors who work in the temporarily occupied territories and ensure the operation of hospitals will not be considered collaborators. According to the Geneva Convention, the Occupying Power is primarily obliged to ensure the continued fulfillment of the medical needs of civilians. Therefore, all medical personnel and material resources are to be primarily directed to ensuring proper medical care for the civilian population and continuous care for the wounded and sick. Receiving medicines or fuel from the occupiers is not cooperation, but a way of ensuring the life of the hospital, which is supposed to save local citizens. Even receiving a salary from the occupiers is not collaboration. Only those doctors who take the initiative to be appointed to a managerial position or who cooperate with the occupation authorities for political reasons or recognize the legitimacy of the occupation will be considered collaborators.
In general, it can be noted that the Geneva Convention relative to the Protection of Civilian Persons in Time of War (1949) and its Additional Protocols do not contain a general prohibition on the continuation of work by employees in temporarily occupied territories. Therefore, in the absence of signs of criminal offenses, it will not be considered collaboration and aiding and abetting if a citizen continues to perform her/his duties assigned by the state or if employees perform their normal labor duties at an enterprise under occupation.
In each specific case, the continuation of the employee’s work duties under occupation should be assessed, including whether s/he was subjected to physical and/or mental coercion, or committed actions that bear signs of criminal offenses (e.g., deliberate cooperation with the occupation authorities in order to obtain a managerial position or for political reasons, recognition of the occupation as legal, transfer of material resources etc.)
A distinction should also be made between collaboration (e.g., transfer of material resources to the paramilitary forces of the occupying state) and possible complicity in the commission of more serious crimes, including war crimes. For example, if a person hands over her/his house to the occupiers, where local civilians are tortured or killed, such actions may have signs of aiding and abetting violations of the laws and customs of war: cruel treatment of civilians or other violations of the laws and customs of war provided for in international treaties (in particular, Geneva Convention IV or Additional Protocol I).
The issue of collaborationism, its concept, types, and the limits of legal liability of collaborators have become of practical importance for Ukraine since the beginning of 2014. The Ukrainian legislature failed to criminalize this crime in advance. Some believed that liability for collaborationism was already provided for as part of the crime of high treason, therefore the introduction of an independent form of such an act would lead to confusion and pose a risk of violating human rights and freedoms. Many scholars and practitioners have put the issue of collaborationism on the back burner, putting the protection of human rights in the occupied territories first.
After 2014, when the Russian Federation absorbed Crimea and supported Russian hybrid forces in the occupied part of Donbas, there was a debate about the use of the word "collaborator" to refer to residents of these territories. The Ukrainian government called for the word "collaborator" to be abandoned in order not to offend the population of the occupied territories.
It was proposed to define as collaborators those who held positions in the occupation administration, organized a referendum, participated in hostilities (without killing or robbing, as this is a crime), or conducted information campaigns against Ukrainian statehood. Over the past eight years, two drafts of such a law have been written: the first, "On the Prohibition of Collaborationism (6170)", and the second, "On the Protection of Ukrainian Statehood from Manifestations of Collaborationism (7425)", which were submitted to parliament in 2017 and withdrawn in 2019.
Attempts to approve the law on collaboration were never completed. There were three main reasons for this: the lack of a clear definition of types of collaboration; the imprecise and vague wording of the draft laws; and the then pro-Russian political elite in Ukraine confidently denying the adoption of these laws in any version. However, the situation changed with the beginning of the full-scale intervention of the Russian Federation in our country, when the amendments to the Criminal Code of Ukraine were finally documented and approved.
A certain tolerance in this case led to an aggravation of the situation in the east and south of our country, a change in the tactics of hybrid warfare to open aggression by the Russian Federation, the establishment of cooperation and ties to the intervening state among local authorities, and the formation of a loyal attitude among the population. At the same time, the main requisites that ensured the temporary success of the military campaign and the relative prevalence of collaborationist behavior in this territory should be recognized as follows: 1. long and planned preparations for the occupation (external factors); 2. peculiarities of the socio-political development of pre-war Ukraine (internal factors); 3. post-Soviet heritage and commitment to the ideology of the "Russian world" (historical and ideological factors).
On March 03, 2022, the Parliament adopted the Law of Ukraine "On Amendments to Certain Legislative Acts of Ukraine on Criminalization of Collaboration Activities" and added Article 1111 "Collaboration Activities" to the Criminal Code of Ukraine.
The list of actions that can be considered collaboration is quite broad. A crime or a criminal offense is considered to be:
Public denials and appeals: public denial of the armed aggression against Ukraine; establishment and confirmation of the temporary occupation of a part of the territory of Ukraine; public appeals to support decisions and/or actions of the occupying state; armed formations; occupation administration of the aggressor state; cooperatinge with the aggressor state; armed formations; occupation administration of the aggressor state; non-recognition of the extension of state sovereignty of Ukraine to the temporarily occupied territories.
Occupation of positions in illegal bodies: voluntary occupation of a non-managerial position (not related to the performance of organizational, administrative or administrative and economic functions) in illegal authorities established in the temporarily occupied territory, in particular in the occupation administration of the occupying state; voluntary occupation of a managerial position (related to the performance of organizational, administrative or administrative and economic functions) in such illegal authorities or voluntary election to them; voluntary occupation of a position in illegal judicial bodies.
Organization of elections to illegal bodies: participation in the organization and holding of illegal elections and/or referendums in the temporarily occupied territory; public calls for holding them.
Participation in armed formations: voluntary participation in illegal armed or paramilitary formations created in the temporarily occupied territory and/or in the armed formations of the occupying state; providing such formations with assistance in conducting hostilities against the Armed Forces of Ukraine; other military and volunteer formations of Ukraine.
Propaganda and implementation of Russian education standards in educational institutions: propaganda of the occupying state in educational institutions; actions aimed at implementing the occupying state’s education standards in educational institutions.
Economic cooperation with the occupying state: transfer of material resources to illegal armed or paramilitary groups established in the temporarily occupied territory and/or armed or paramilitary groups of the occupying state; conducting economic activities in cooperation with the occupying state and illegal authorities.
Participation in political and informational events: organization and conduct of political events, information activities in cooperation with the occupying state and/or its occupation administration aimed at supporting the occupying state and/or avoiding responsibility for armed intervention against Ukraine; active participation in such events.
An important point in the qualification of collaborationism is coercion. If a person proves that s/he acted under conditions of extreme necessity, i.e. by force, that there was a circumstance that excludes the criminality of her or his behavior, then, accordingly, the Criminal Code will not apply. The term "forced" implies that a person acts against her or his will. This can be mental or physical coercion such as demonstration of weapons or threats to take life. If a doctor forcibly performs surgery on a representative of the aggressor country, this is coercion. And if a person offers her- or himself for the position of chief physician of a medical institution, this is direct cooperation.
The practice of international tribunals has proven that in a situation of armed conflict due to the presence of armed forces, there is an almost all-encompassing situation of coercion, in which, as a rule, it cannot be assumed that the victim’s unreserved consent is present. "The manifestly coercive circumstances that exist in all situations of armed conflict create a presumption of lack of consent and eliminate the need for the prosecution to prove lack of consent as an element of the crime…" "… any form of deprivation of liberty renders consent null and void" (ICTY, Prosecutor v. Kunarac, ICTR, Prosecutor v. Gacumbitsi, ICTY, Prosecutor v. Furundzija).
All crimes against the national security of Ukraine are committed with direct intent. At the same time, a special motive (anti-state motive – to commit an act to the detriment of Ukraine’s interests) and purpose (to harm the national security of Ukraine) are requisite features of the subjective side, even if they are not specified in the content of a particular article.
As of February 18, 2023, investigators of the National Police of Ukraine have initiated 2,511 criminal proceedings on the fact of collaboration (Article 111-1 of the Criminal Code of Ukraine). Some of the proceedings were initiated over the following facts: public denial of Russia’s intervention in Ukraine, as well as armed aggression; public calls to support the decisions and actions of the occupying state, to cooperate with the occupying state, and to non-recognition of Ukraine’s state sovereignty in the temporarily occupied territories. More than half of the proceedings relate to the following issues: voluntary occupation by a citizen of Ukraine of positions that were created illegally in the temporarily occupied territories, as well as in the administration of the occupying state, or voluntary election to such bodies; voluntary occupation of positions in the judiciary or law enforcement agencies, or in illegal armed or military formations.
Collaborationism as a phenomenon undermines the national security of Ukraine and poses a direct threat to state sovereignty, territorial integrity, constitutional order and other national interests of Ukraine, and therefore should be punishable by law. In addition, post-conflict settlement is impossible without restoring justice and restricting a number of rights of those involved in collaborationism.
In order to restore justice, it is crucial to avoid selective justice and bring to justice all those responsible for collaborative activities. It is equally important for Ukraine to ensure that the process of criminal prosecution upholds such fundamental principles as equality and respect for human dignity, as well as to comply with its other human rights obligations.
It is undeniable that such a shameful phenomenon of our time as collaborationism cannot be left unpunished. But satisfying this request should not create the risk of mass indiscriminate prosecution on suspicion of collaboration. Each case must be approached individually. The field of repression should not include innocent people whose fate has already been crippled by the war. We cannot allow collective responsibility of all persons who found themselves in the occupied territories. A person who engages in collaboration must not only consciously and voluntarily cooperate with the enemy, but must also act in its interests and to the detriment of her or his state. With this approach, we will bring national legislation closer to the generally accepted interpretation of collaborationism from the perspective of international law.
Thus, having studied collaborationism through the prism of the situation in Ukraine, two key theses can be distinguished. The first is that people who deliberately and consciously betrayed their homeland must be unequivocally punished. The second is that people who collaborated in order to save their lives and had no other choice in difficult circumstances will not be considered criminals and will not be punished.
PhD in Law, Associate Professor of the Department of International, Civil and Commercial Law of the Kyiv National University of Trade and Economics.