It is necessary to clearly define what “collaborationism” is and to separate collaborators from other criminals who help the aggressor country:
state traitors, accomplices of the aggressor state, and so-called “glorifiers”. A variant of such a definition is already in the draft of the new Criminal Code. Collaborationism is when citizens of Ukraine in the occupied territories support the aggressor state and voluntarily cooperate with it in the administrative, political, economic, and information spheres.
To be considered a crime, collaboration must cause harm.
For example, to national interests or sovereignty. If a person works in the occupation administration and simply distributes humanitarian aid or helps people survive under occupation, this should not be considered a crime (and now it is, and there are already convictions).
It is also worth distinguishing the harm caused by people in different positions in the same authorities. For example, the head of the personnel department of the occupation police and its chief. Currently, working in any position in law enforcement is a crime punishable by seven to ten years in prison.
Oleksandr Zhyla is the deputy head of the Prosecutorʼs General Office specialized department that oversees collaborationist investigations. He knows all the problems with this article and understands how to fix it.
lryna Vlasiuk / «Бабель»
In each specific case, the circumstances must be taken into account. Rescuers who simply put out fires in the homes of Ukrainians under occupation do not harm the state. If at the same time they serve the military units of the occupiers, help rescue equipment, that is another matter.
The same goes for people who distribute humanitarian aid. If in return they demand that Ukrainians obtain Russian citizenship, it is no longer just help to the locals.
As an alternative, responsibility can be prescribed not for the fact that a person held a particular position, but for the specific work that he or she performed in that position: operational-search, intelligence, pre-trial investigation, and so on.
It is important to prescribe the conditions under which a person who collaborated with the occupiers is exempted from liability.
A similar norm is in the article on treason: if a person reports that he was recruited to do something to the detriment of Ukraine, he is not punished. If something similar is prescribed in the article on collaborationism, people will receive an algorithm of actions — to document cooperation with the occupiers and report all the details to Ukrainian law enforcement agencies at the first opportunity. The article can also provide for other conditions under which a person will be exempted from criminal liability.
The Criminal Code needs to define what an “occupational administration” is.
This definition is already in other laws, and it is very broad there: it includes enterprises, institutions, and notaries. Because of this, a wide range of people are held liable for collaborationism. A specific definition will narrow this range.
The definition can be written in the notes to the article. Or it can be clarified that a collaborator cannot be any employee of the authorities, but only a high-ranking manager who has the authority to make decisions.
MP Oleksandr Bakumov admits that the article on collaborationism needs changes, and even wrote his own draft. But it, like others, was never considered by the parliament.
lryna Vlasiuk / «Бабель»
The first two parts of the article on collaborationism, which concern the denial of aggression and voluntary work in an ordinary position in illegal government bodies, should be decriminalized and made administrative offenses.
Currently, the law provides for a penalty for both parts — a ban on holding certain positions for 10 to 15 years, which is essentially lustration. It is irrational to spend the time and resources of law enforcement officers, prosecutors, and judges on such investigations.
Aiding the military and joining the army of the occupiers should be punished as treason, not collaborationism, as it is now.
This point should be removed from the article. Collaborationism is about civil and economic interaction with the enemy during the occupation. Aiding the enemy army is a more serious crime. These concepts should not be confused.
While any economic activity in the occupied territories is considered collaborationism, law enforcement officers should be guided by International Humanitarian Law during investigations.
For example, one of the Geneva Conventions states that the occupiers have the right to collect taxes in the territories under their control. That is, for example, the re-registration of an individual entrepreneur and the subsequent payment of taxes by Ukrainians is not collaborationism.
However, this does not mean a complete amnesty for individual entrepreneurs — it is important to whom exactly they supplied products and provided services, whether they won government tenders, whether they supported the occupierʼs army in some way, and so on.
In order not to confuse collaborationism and aiding an aggressor state, the Criminal Code should specify that accomplices may not be citizens of countries participating in an international military conflict, but foreigners who economically and politically strengthen the aggressor state.
lryna Vlasiuk / «Бабель»