Court, forgiveness, or compassion. How Ukraine punishes collaborationism and why changes are needed

The year was 1941. It was the first week of the Romanian occupation of Odesa. One autumn morning, ominous and immeasurably tragic, the invaders staged bloodthirsty acts of retaliation against civilians, especially Jews, to avenge the blowing up of their headquarters.

A stalwart administrator amongst the occupiers, Mayor Gherman Pantea, witnessed people hanged on the main streets of the city entrusted to him. "Barbarism, a shame that can never be washed away before the civilised world", is how Pantea described this day in his memoirs. Furthermore, he wrote that he had reported these events in 1941 to his Romanian leadership in the same words.

Pantea was born in the Russian Empire and studied in Kyiv. Unlike most of the Romanian occupiers, he spoke the same language as the people of Odesa. He governed the city during the period of the Holocaust and of mass war crimes.

He took orders from those who exterminated peoples and destroyed states.

At the same time, Pantea supported life and reconstruction in Odesa, and regulated work. When the time came to answer before a court for what he had done, he meticulously proved that he was not a villain, but only, as they would now say, a "strong administrator". Archives of reports on that day's "shame that cannot be washed away", and witnesses who recalled Pantea's efforts to save Jews and his far-sighted distanciation from repressive bodies helped this Romanian politician preserve his life and freedom during the hunt for collaborators throughout Europe after the Second World War.

Should people like Pantea be punished, and if so, how harshly? Among the many new challenges that faced the victors after the war, there was also the question of how to assess the level of cooperation with the enemy by the population of the occupied territories with the enemy. Each state responded to it in its own way.

This question has now arisen again for Ukraine. Comparing the current discussion to that of eight decades ago though, the legal guidelines no longer seem easy and unambiguous. Currently, the topic of collaborationism is subject to numerous discussions, doubts, and open questions.

One example of this was the recent public dispute between the Deputy Prime Minister and Minister of Reintegration of the Temporarily Occupied Territories, Iryna Vereshchuk, and the Ukrainian Parliament Commissioner for Human Rights, Dmytro Lubinets. Vereshchuk called on residents of the temporarily occupied territories not to accept Russian passports and not to cooperate with the [Russian forces] in any way. Lubinets, on the other hand, advised Ukrainians to take the [internal] passports in order to survive.

Ukrainska Pravda decided to investigate just where the line lies between collaborationism and survival during periods of occupation. What does Ukrainian law say and why do problems arise in reality? What was the line determined in other cases worldwide, and can we be guided by foreign experience?

Who is currently being prosecuted for collaboration in Ukraine and how?

Despite the many years of occupation of Crimea and parts of Donetsk and Luhansk regions, the Ukrainian Criminal Code had no provision on collaboration prior to 2022.

In the interval, law enforcement officers and judges began to receive indictments. Residents who, for example, helped the Russians hold sham "referendums" were charged with "encroachment on territorial integrity". Charges of "seizure of power" and "participation in a terrorist organisation" were also laid to collaborators.

Not everyone who helped the Russian forces in one way or another falls under these definitions, however, because these all constitute serious crimes that require solid evidence. "Cooperation at the household level was not criminalised," says Olena Lunova, a human rights activist at the ZMINA Human Rights Center. Since 2014, there has been growing social demand for the punishment of traitors.

Gyunduz Mamedov, who headed the Prosecutor's Office of Crimea in 2016-2019, explains how the law enforcement officers achieved a balance: "We identified more than 22,000 people who, when the Russian occupation of Crimea began, were working for law enforcement agencies. Many of them remained in their positions and continued to work for the occupying authorities.

We began to bring to justice those who participated in the persecution of citizens. For all the others, we waited until something in the law was changed to provide clearer guidelines." In 2021, the last year before the full-scale war, the authorities opened 208 cases of treason and another 276 under legal provisions covering the overthrow of the government, encroachment on the territorial integrity of Ukraine, etc.

The law books did not contain any articles on collaborationism, as lawyers could not arrive at a common opinion on the wording. After all, the law requires a clear formulation of what actions are punishable. "When discussions about 'let's criminalise cooperation' began, we were never able to reach an exhaustive list of actions that should be considered criminal offences.

Cooperation is a very broad concept," says Lunova. "And all this time, the arguments prevailed that it is preferable to adopt a hands-off policy rather than to criminalise and lay significant indictments of human rights violations." Human rights defenders have repeatedly explained: living under occupation is not a crime, and it is impossible to live in the territory for a long time without any interaction at all with those who control it. There were two draft laws on collaborationism in the Verkhovna Rada (Ukrainian Parliament).

One of them was submitted in 2021 by the [leading political party], "Servant of the People" (Sluha Narodu), and was later approved. Olena Lunova recalls how this proposal was discussed in committee: the Prosecutor General's Office and the Ministry of Internal Affairs opposed the wording prepared by the members of Parliament because it would classify a wide range of people as criminals. The Scientific and Expert Department of the Verkhovna Rada gave its conclusion, identifying a number of disadvantages to the MPs' initiative.

At the beginning of March 2022, however, Parliament adopted a draft law in emergency mode. It contained a new article introducing punishment for several degrees of crime:

Public denial of aggression - punishable by deprivation of the right to hold certain positions for 10-15 years;
voluntary holding of a position in the occupation authorities - the same punishment, along with seizure of property;
propaganda in educational institutions and implementing the occupiers' standards in education - punitive labour for up to 2 years/arrest for up to 6 months/deprivation of liberty for up to 3 years and "lustration" [lustration prohibits high-ranking officials who have compromised themselves from working in the civil service for a certain period of time or for the rest of their lives - ed.] for 10-15 years;
transfer of material resources to the occupying army, economic activity "in cooperation with the aggressor state" - a fine of up to 170,000 hryvnias [around 4600 US dollars - ed.]/imprisonment for 3-5 years/deprivation of the right to hold positions and seizure of property;
positions relating "to the performance of organisational-administrative or administrative-economic functions", participation in the organisation of "referendums" - imprisonment for 5-10 years with "lustration" and seizure of property;
political measures and propaganda in support of the aggressor - a punishment similar to the previous one, but with 10-12 years of imprisonment;
voluntarily holding a position in the occupier's judicial and law enforcement agencies, serving in its army, assisting them in battles against Ukraine - imprisonment for 12-15 years with "lustration" and seizure of property.

If any of these actions led to any deaths or other serious consequences, the punishment is increased to 15 years or life imprisonment. As of June 2022, law enforcement authorities across the country investigated 1,300 cases of collaboration and managed to send 82 to court for consideration.

Now the Prosecutor General's Office is saying that punishing collaborators is one of their priorities. It is being discussed, in particular, at meetings with the Prosecutor General. In total, as of April 2023, law enforcement authorities have registered almost 5,500 cases of collaborationism and announced suspicions in approximately 1,400 cases.

In 2022 alone, the courts received 659 such cases and tried almost half of them (308). In the first year, 272 people were found guilty and not a single one was acquitted; about 50 pled guilty and entered into a plea bargain with the prosecutors. A very small number of cases were returned to the prosecutor for revision or closed.

"A significant number of the crimes, about 50% of the indictments sent to court, concern holding positions in quasi-law enforcement, judicial bodies and occupation administrations," says Ukrainska Pravda's source, Mariia Burdeina, deputy head of a specialised department of the Prosecutor General's Office. A quarter of the cases involving collaboration involve the charge of "public denial of aggression". Another 10% are instances of economic and educational collaborationism, that is, the provision of services and goods to the occupiers and following Russian standards in education.

Many cases have also been opened against the organisers of the sham "referendums". These are not only heads of the occupied regions appointed by the Russians, but also other residents, such as members of "election commissions" and agitators. But despite considerable efforts to punish the collaborators, the process has proven to be far from perfect.

What is wrong with the punishment of collaborators in Ukraine?

How can residents of the occupied territories understand what is a crime and what is not?

In response to this question, both human rights defenders and law enforcement officers often answer: "When it comes to Ukrainian law, it is very difficult now to draw the line between what is crime and what's not." This is the first and main problem. The Criminal Code of Ukraine does not define collaborationism.

"Only its forms and manifestations are indicated in the relevant article," Prosecutor Mariia Burdeina tells Ukrainska Pravda. International law specialist Nick Yurlov, referring to an article about "collaborationism", suggests that an ordinary cleaner could be labelled a criminal if he worked for the occupation authorities. "All his property could be seized," concludes Yurlov. "The senior janitor, to whom the junior janitors are subordinate, himself performs organisational and administrative functions, and this charge may be punished with 5 to 10 years of imprisonment."

Tamila Tasheva, the Permanent Representative of the President of Ukraine in the Autonomous Republic of Crimea, drew attention to the fact that, according to the current law, 200,000 residents of the peninsula may be open to prosecution. This issue will be especially acute for those people who work in critical infrastructure, in particular in the field of electricity, water, and gas supply, because their services are also used by the occupiers. The law does not contain a list of industries in which business or public service institutions are not prohibited from cooperation with the enemy.

The Prosecutor General's Office, however, says they have the tools to prevent the mass conviction of janitors. In particular, a person can be exempted from punishment based on the insignificance of his or her actions or coercion. But practice shows that among the verdicts for collaborationism, there are a considerable number of cases involving posts on social media or conversations with people in these occupied settlements.

Moreover, such cases are a kind of win-win for both parties. After all, it is not difficult for law enforcement officers to collect evidence of "criminal TikTok". At the same time, "public denial of aggression" is punished only by deprivation of the right to hold certain positions.

Most of the convicts in such cases are unemployed, retired or elderly, and include those with previous convictions," says Prosecutor Burdeina. That is, for these people, a kind of lustration is not a significant penalty. For this reason, as human rights defenders point out, the defendants often make plea bargains with the prosecutors.

It is doubtful whether such a "win-win" punishment has any benefits for the state or society at all.. The second problem is the existence of several similar articles in the Criminal Code that intersect with collaborationism. These include "war propaganda", "justification of aggression", and "assistance to the aggressor state".

Law enforcement officers who work with such cases say that there are no markers that would allow them to distinguish between similar crimes. At the same time, similar articles provide for radically different punishments. If the investigator and prosecutor define pro-Putin TikTok videos as "collaborationism", then a person convicted of this offence will only be deprived of the right to work in certain positions.

If the investigation determines that the hostile video was a "justification of aggression", the penalty rises to 5 years in prison. There are many examples of such different criteria being applied in Ukrainian courts. Last October, a refugee from Mariupol was tried in Dnipro.

According to the investigation, while hiding from shelling in the city, she blamed the Ukrainian army for everything, and during evacuation, she glorified the invaders when reaching the Russian checkpoint,. Despite the admission of guilt and remorse, the mother of two children, who had no previous convictions, was sentenced to 5 years in prison and her property was seized. At that same time, an officially unemployed man from Odesa, repeatedly convicted of robbery and drugs, told a store in the fall of 2022 that "Putin did an amazing job!" He was punished by a ban on working in a government position for 10 years.

"This is a field open to corruption, because the courts can decide whether or not a person will go to prison depending on the way their actions are qualified," human rights defender Olena Lunova emphasises. "This is a field for selective justice, for injustice and human rights violations." The chaotic and sometimes disproportionate nature of the punishment for collaborationism causes a third problem - not a legal one, but a very substantial one nonetheless. This is fear, misunderstanding, and mistrust of the Ukrainian authorities on the part of the residents of the occupied territories. The Russians do not hesitate to take advantage of this, intimidating the population. Nick Yurlov works for the Truth Hounds organisation, which is engaged in documenting international crimes in the Russian-Ukrainian war.

The lawyer recalls the testimony of former prisoners with whom the occupiers recorded video "confessions" after torture: "The Russians tell them: 'You leave now, your own people will eat you alive, we made a video with you, the Security Service of Ukraine will catch you as a traitor.'" Human rights defenders cite another example: the parents of children taken from the Kherson region to Crimea did not submit a statement to the Ukrainian authorities, fearing prosecution, even though in this case they were only victims of Russian crimes.

A similar situation is that of Russian passports. Ukraine firmly accuses Russia of forcing its citizens to obtain Russian passports. So those who receive them are primarily victims of Moscow, not criminals.

Human rights defenders are currently not aware of any cases where holding Russian documents was grounds for persecution. However, the government has written a draft law proposing to impose penalties for voluntarily obtaining a passport. "If a person receives a passport under occupation, it is impossible to determine who received it under pressure and who did not," the human rights defender Lunova asserts, criticising such ideas. "If it is a pensioner who cannot receive a pension from Ukraine and has nothing to live on, is obtaining a passport considered to be under pressure?"

Lunova assumes that the legal provision on collaborationism was introduced in Ukraine as a preventive, i.e. safety, measure. It was intended to quickly warn Ukrainians: it is forbidden to support the Russian forces. However, such approaches cannot work in a situation where occupation lasts a year or two or nine.

Especially if Ukraine plans to take back the captured territories. Currently, changes to the article on collaborationism are being discussed in the Law Enforcement Committee of the Verkhovna Rada. A special working group has been created.

However, it should be part of a larger plan for the reintegration of the regions, complex and well thought through.

How can Ukraine draw the line between collaborationism and life under occupation?

"People have remained people for the last several million years. First of all, the natural desire to survive is activated," Odesa historian Oleksandr Babych wrote before the full-scale invasion in a dissertation on the survival strategy of civilians under occupation during the Second World War. Babych talks about the context that is crucial to take into account before discussing the brutality of the punishment of collaborators.

"After a month or two of occupation, people get used to it. You consider the occupation your new life. Let's take Odesa in 1941: officially, we had a little more than 100 partisans who were part of some resistance groups, out of a pre-war population of 604 thousand inhabitants.

In 1942-43, there were almost no partisans in Odesa." During the evacuation in 1941, about half of the population, 310,000, managed to leave Odesa. Locals worked at the lower and middle levels of the occupation authorities.

The invaders would reserve about a third of top-level positions for themselves. Among the vice-mayors who worked with Mayor Gherman Pantea, 2 out of 5 were local. "There were two attempts to convict Pantea.

Both times he was acquitted, because as the mayor he was simply performing economic functions," Babych says. It was only after the Second World War that the word "collaborator" acquired the meaning that we associate with it today. At that time, European states on the Allied side began to prosecute those who had joined forces with the Nazis.

Often these prosecutions were on a very large scale. France is often cited as a prime example.

125,000 people were sentenced there for collaborating with the enemy. There was a separate punishment for "national dishonour" and unpatriotism, which included deprivation of one's pension.

50,000 people were given this sentence, but almost 80% of them were later amnestied. In other countries, civil rights could also be restricted or access to certain positions could be barred to those convicted of a lack of patriotism. In the Netherlands, such accusations were made against 405,000 people - 7% of the country's adult population.

20,000 women were stripped of their citizenship because their husbands were convicted of collaborating with the enemy. In Norway, along with the usual forms of punishment, children born to Germans were denied citizenship. Relatives of convicts were subjected to a number of restrictions, including on the right to vote, serve in the army, and work in managerial positions.

However, the Norwegian government quickly realised that the scale of the punishment threatened the country's economy. And therefore it was forced to limit such prosecutions. And Belgium and the Netherlands dropped charges for economic cooperation with the enemy or adjusted the requirements for how this cooperation had to be proven.

"It cannot be said that there is a ready-made solution in international practice that could be taken over and imported," says Nick Yurlov. Human rights defenders add that international experience can more readily be used as an example of overly radical approaches that subsequently had to be cancelled. International humanitarian law does not prohibit individual voluntary cooperation with the enemy.

Moreover, it obliges the occupier to maintain the regime that existed in the territory before its arrival, and, of course, to protect human life. In the post-World War II world, the UN created a system that it advises all states to use to handle the consequences of war. It is called transitional justice.

This is not so much a legal as a political and legal framework. It is focused on the victims of war, aimed at restoring their rights, establishing justice and reconciliation. "Transitional justice has 4 key elements," explains Daria Svyrydova, a human rights defender of the "Ukraine 5 AM" coalition.

"First, the truth must be established; everything that happened must be documented. The second element is to prevent impunity. Those who are guilty of the most serious crimes must be held accountable.

The third is reparations for victims. The fourth is guarantees of non-repetition: the state must do everything to ensure that the war does not repeat itself." According to these norms, people who are guilty of international crimes cannot escape responsibility under any circumstances, and there is no statute of limitations.

However, an important element of transitional justice is amnesty. To one degree or another, it has been used by all the countries that came out of World War II. Another tool is lustration.

This [way of excluding officials who were part of the occupying regime from holding office for a period or for life -ed.] can become one of the safeguards against new violations of human rights and, at the same time, will prevent hundreds of thousands of people from being tried. "If we punish everyone who was connected in any way to the occupation authorities but did not commit any actions that caused grave consequences, this will create dissatisfaction and the conflict will increase," Svyrydova adds. Any responsibility, lustration and amnesty must be personal.

After all, stigmatising those who had to coexist with the occupiers will definitely not contribute to establishing the truth. It is impossible to find a single solution for all cases of collaboration. Therefore, much will depend on the judicial system and its integrity.

The answer is not simply an article in the Criminal Code, but a matter of state policy, which should be ready "for yesterday". And it should be written with the participation of various experts and take into account the opinion of society. Surveys show the willingness of the majority of the population to agree to an amnesty, for example, for teachers, doctors, social workers, and utility workers.

On the contrary, society does not accept one for the security forces, politicians or the military. Despite the long experience of having occupied territories, the Ukrainian government is in no hurry to write a post-occupation strategy. "Before Zelenskyy, there was no such strategy at all," recalls the former Crimean prosecutor Gyunduz Mamedov. "After he became president, one was written individually, by individual people."

According to Svyrydova, a group of experts, including human rights defenders, law enforcement officers, and members of the Ukrainian Parliament, has now developed a plan that includes transitional justice tools. While it is not public, it has been submitted to the president. "It is important, first of all, that the issue of collaborationism be addressed.

And secondly, that it be communicated," concludes the lawyer Nick Yurlov. "I want Zelenskyy to come out in his evening address and said, 'This is possible, and this is not possible, for this you will be "prosecuted" after the liberation, and for this you will not'."
Sonia Lukashova, Ukrainska Pravda Translator: Elina Beketova

Editor: David Matthews, Monica Sandor