Letʼs start at the beginning: what is collaborationism and why is it considered a crime?
Collaboration is when citizens of an occupied country cooperate with an occupying country. It is a crime because the defending country does not want its citizens to aid, support, or advance the interests of the aggressor.
The article on collaborationism was written and adopted in the first weeks of the full-scale invasion. This is quite late, considering that the occupied territories appeared in our country in 2014. But I often hear that it is poorly formulated. Is this really so?
Yes, international organizations criticize the wording of the article a lot — from the point of view of international law, they are inaccurate. Sometimes they are even called fictitious. If you read different parts of the article, it is not always clear which actions will be treated as a crime and which will not.
As long as there is such uncertainty, prosecutors and judges must interpret the provisions of the article and explain this interpretation. It is recommended that national legislation be interpreted in accordance with the norms of international law. It would also be useful if the wording were written more clearly.
In the spring of 2014, the former mayor of Slovyansk Nelya Shtepa supported pro-Russian separatists and was detained in July. She is accused of encroaching on territorial integrity, and her trial is ongoing.
Getty Images / «Babel'»
Can you explain a little bit whatʼs wrong with the wording?
As an example, letʼs take a situation where a person works for the occupiers — not fighting, but performing some tasks in government bodies. If we compare paragraph 2 and paragraph 5 of this article, it turns out that any work in an official position in the occupied territories is considered a crime. This is one problem.
The second is the point about education. According to international humanitarian law, the occupying power is obliged to ensure normal life in the territories under its control, including the operation of schools.
Thus, teachers find themselves faced with a difficult dilemma: stay and teach, knowing that they will be forced to use Russian materials, or leave the school and lose their jobs, income, and face persecution from the Russians.
Another example is point 4, which deals with the transfer of material resources to illegal armed formations. Of course, citizens cannot be allowed to finance or supply the army of the occupier.
But the question is — can people under occupation pay local taxes?
If even this is criminalized, people will have no choice, because the occupying state will force them to do it. Now a lot depends on how investigators and judges interpret the law.
Speaking of work in the occupation, do I understand correctly that when, for example, a person heads a condominium association, they commit a crime?
Yes, this is a very apt example. If taken literally, then yes, even if this person does nothing to harm the state.
Okay, letʼs talk a little bit about the investigation of these crimes and how they are handled in court. Are there any problems with that?
The main principle of criminal law is that one should punish for unlawful actions that a person committed with malicious intent. And the main task is to prove this intent. That is, to prove that a person did something with the aim of harming Ukraine and helping the occupiers. To do this, you need to collect a lot of evidence.
And if in the case of the condominium association the goal was only to help the people in the building, isnʼt that a crime?
I cannot judge, but from the point of view of international law, the main thing is intent. It is what makes a crime a crime. For example, there are situations when a suspect denies that he had intent, but the facts and circumstances clearly indicate the opposite.
In such cases, a judge may conclude that intent has been proven based on the facts. But lawyers always have a “but”.
If we return to taxes, is this a crime? On the one hand, the money goes to the occupiers, and on the other, it is a common practice, because the occupation authorities must provide for the life of the population, hospitals, education. It is not free.
But the army can get this money.
If we talk about this in the context of international humanitarian law and human rights, then people living in occupied territories have the right to maintain their lives, to have access to medical care, and to education.
Letʼs get back to schools and education. Youʼve already mentioned one of the dilemmas: that according to the convention, children should continue their education. But there is a difference between the subjects they are taught. There is mathematics, where there is no propaganda. And there is history, where Russians deny the war or even that Ukraine is an independent state. There are propaganda lessons with "conversations about the main thing". Does the law make a difference what exactly the teacher teaches?
I do not want to define what behaviour is acceptable and what is not. But propaganda of the Russian position, denial of the war and the existence of Ukraine as a state is certainly a serious crime.
At the same time, one cannot condemn those who survived under pressure in difficult conditions, without a thorough investigation and a chance to defend themselves.
So where is this line? For example, a person does this for the sake of work and income, or their life is at stake. Is this line somehow defined in the law?
If we take the article on education, it says that it is a crime to “conduct propaganda [by a teacher] with the aim of promoting aggression, establishing and consolidating occupation, avoiding the responsibility of the aggressor, as well as actions aimed at introducing the standards of the aggressor state”.
So the key word here is “with the aim”. It means intention. And here an interpretation is needed. I can imagine that there are teachers who continue to work under duress and do not have criminal intent.
Ukrainian language and literature teacher Svitlana Nedbailo defected to the Russian side after the occupation of part of the Kherson region. She headed the Rubanivska school, where she met with Russian senator Kostyantyn Basyuk. In the photo next to Ramzan Kadyrov is Tetyana Kuzmich, a Ukrainian who, after the Russian occupation of part of the Kherson region, switched to the side of the occupiers and transferred her studies to Russian programs. In Ukraine, Kuzmich is accused of collaborationism.
Instagram / «Бабель»
Perhaps then it would be worth changing the article, making the wording more precise? Or distinguishing between coerced and voluntary actions?
This is a complex issue. I donʼt have to say how exactly the law should be rewritten, but Ukrainian law already has provisions on mitigating and aggravating circumstances. A threat can be mitigating.
Do judges use this? I ask because I saw statistics that there are only two acquittals under the article about collaborationism.
I cannot directly evaluate judges, because it would be an interference in their independence. But there are reports from human rights organizations that indicate very different sentences from different courts for the same actions: one court may give ten years, another three.
This suggests that there is no uniform practice. In such cases, it would be appropriate to show more leniency and understanding of the difficulties of life under occupation. After all, people who were simply trying to survive, not help the enemy, are often punished.
A Ukrainian court has convicted a woman who worked as the acting head of the health sector in the occupation administration in Vovchansk in July 2022 during the occupation. The verdict states that she managed hospitals and provided people with medicines. Is this logical?
I donʼt know this case and its circumstances, so I canʼt comment on it. What I can say is that under international humanitarian law? The occupier is obliged to provide medical care. Doctors have the right to work.
If a person in the administration was engaged in providing others with medicine, then the question is — who did they harm? What was their intention?
Діма Вага / «Бабель»
Investigators believe that she helped the occupation administration function because she was part of it. On the other hand, she helped people get medicine.
Again, I canʼt comment on a case I donʼt know about. I just want to reiterate that the key factor in every criminal case is intent. If someone intends to help people, thereʼs nothing wrong with that.
Maybe there was another motive or there were other circumstances that made it a crime, that should be proven in court, and if thereʼs no evidence, let the person go.
Letʼs talk about judges. The Geneva Conventions indicate that Ukrainian criminal law should be in effect in the occupied territory, and therefore, judges should continue to consider cases related to ordinary crimes. Russia has introduced Russian legislation there. That is, if judges continue to operate within the framework of the Geneva Conventions, they will become collaborators. Accordingly, is Russia pushing our judges to commit a crime?
Russia constantly violates international law. The situation with judges is different from the examples with doctors. Judges in the occupied territories should be able to resign from their positions.
And the occupying power has no right to punish them for refusing.
On October 2, 2024, GUR reported that Ukrainian judge Vitaliy Lomeiko had been eliminated in temporarily occupied Berdyansk. After the occupation, he began collaborating with the Russians and called on others to do the same. Later, Russian propagandists claimed that Lomeiko survived.
Головне управління розвідки МО України / Telegram
Of course, there are people who openly support the occupation authorities, spread Russian propaganda. And such actions should be criminalized. But there are also people who do this to survive themselves or to help others survive.
One such case is described in the Human Rights Watch report — it is the story of a psychologist who started helping people and was convicted of collaborationism because she had a position in the municipality.
And all those situations that we are talking about are not black and white, they are in a gray area.
International organizations and Ukraine are now talking about transitional justice: society after the war needs to find ways to restore peace so that people can live together.
These are neighbours, these are villages where everyone knows each other, and everyone knows what the other did during the occupation. And if the only solution is criminalization, restoring peace will be difficult.
Transitional justice has been applied since the war, and collaboration cases are being investigated and tried in courts now. What should investigators do — stop their work?
Why canʼt we apply elements of transitional justice now? I mean, in the liberated, de-occupied territories?
Okay, but there are also proceedings against people who remain in the occupied territories.
These cases are heard in absentia. That is, the accused cannot explain their actions.
Діма Вага / «Бабель»
But there are always lawyers who can contact the accused.
But how then to prove intent if there is no position of the accused? This is a serious problem. This is not exactly a question of international humanitarian law, it is rather a question of human rights — the right to a fair trial.
Because if a person cannot say anything in his defense, because he is in occupied territory, then what is the point of such a trial in absentia?
And when you work with investigators or judges, do you talk about this?
We are talking about in absentia trials in war crimes cases. And collaboration is not a war crime. Therefore, it would be advisable to apply transitional justice, and leave criminalization for what is clearly black. That is, cases where there is a clear intention to help the Russians — to spread propaganda, to support the Russian army with information or finances.
Iʼm from the Netherlands, so we had the same problem after World War II. At that time, the population was very angry at people who either tried to take advantage of the occupation or helped the occupying authorities.
After the liberation of the Netherlands, the first to be attacked were women who had relations with German soldiers. They were dragged out of their homes, humiliated in the streets, their hair cut off. It was clear that it was emotions, anger after what people had experienced.
This anger was directed at those who were the easiest victims. And we are ashamed of that. International organizations are trying to explain to Ukraine how to avoid this.
After the liberation of European countries from German occupation, women who had relations with Germans became victims of lynchings and executions. In the pic — women from the Netherlands and France.
Getty Images / «Babel'»
There may be people who say “no” to the occupiers and nothing will happen to them. And someone will say “no” and then disappear. There may be those who say “no” and run away.
Someone will say “yes” and do the bare minimum. And someone will do everything they are asked to do and even show initiative themselves. If I were a prosecutor, I would focus on the last category.
You say that transitional justice should be used in collaboration issues. It has many tools. What should we focus on? On establishing the truth, such as truth commissions?
Truth and reconciliation commissions are one way. In this context, the Croatian experience may be interesting. Such commissions are an opportunity for some people to explain their actions and ask for forgiveness.
Sometimes those who listen say: "Oh, if I had known that, I wouldnʼt have accused you."