De-occupation of some areas of Donetsk and Lugansk regions and the return of the population of these territories to the Ukrainian legal framework will inevitably face the Ukrainian society and the Ukrainian state with the question of collaborationism.

Who and how should determine the status of each person who survived the occupation, his/her guilt or innocence and degree of liability? Who should be brought to justice and how the collaboration with the enemy has to be punished?  What is the degree of liability of each person who did not want or could not leave the occupied territories? Who is the victim and who is the accomplice of the aggressor?  Punishment or amnesty?

I am convinced that today it is extremely necessary to start a broad and frank public discussion of this topic and to study the experience of the countries that passed the same path, to listen to and consider various possible approaches and solutions.  And most importantly – to determine and formulate a possible compromise which can be acceptable for the Ukrainian society.

Donbas is Ukraine, and residents of Donbas are citizens of Ukraine. In my opinion, just this postulate should become the basis for future discussion.

Of course, collaborationism cannot be ignored.  And at the same time – only the guilty persons should be punished!

I will state my point of view:

Criminal prosecution should be extended only to the leadership of the “DNR” and “LNR”, persons who fought against the Ukrainian army and the National Guard and those people who committed severe crimes.

Most of those who survived the occupation are victims or were forced to collaborate with the enemy, and the amnesty should include them with the consequent restoration of all civil rights and freedoms.

This is a principal point: in no case can we talk about “clean-ups” or repressions against the peaceful population, the people who had found themselves in the occupied territories by the will of the aggressor!

If a person for any reason could not leave and have lived during occupation in his home, continued to work in his specialty, did not participate in the organization of illegal elections or other actions, did not contribute to the activities of the illegal authorities, then he/she has to be checked and receive a new legitimate Ukrainian passport and all rights of a citizen of Ukraine.

Only those should be prosecuted whose hands are stained with the blood of civilians and Ukrainian soldiers, who headed illegal authorities, organized illegal referenda and elections, participated in pogroms, robberies, and committed criminal offenses.  It has to be the stance of the state, and this principle should be the basis of the entire complicated process of reintegration of the temporarily occupied territories of Donetsk and Lugansk regions.

Background

The term “collaborationism” comes from the French word “collaboration” – cooperation – which was used by the Marshal Petain in his appeal to the French people to cooperate with the fascist invaders. After the Second World War, the term was included into international law with the meaning of “military, political and economic cooperation of the residents of the occupied country with the invaders to the detriment of their country”.  A collaborationist is a traitor, who collaborates with the occupiers.

Accordingly, any military conflict, which is accompanied by occupation, inevitably leads to the emergence of collaborationism.

During the Second World War, many countries occupied by Hitler and his allies either collaborated with the invaders or had to come to terms with their presence and activities.  Albania, Belgium, Great Britain, Greece, Denmark, Italy, Norway, the Netherlands, Poland, France, the Czech Republic, Yugoslavia and the USSR in Europe.  India, Indonesia, China, including Manchuria and Mongolia in Asia.  Of the 38 existed SS divisions, only 12 were fully manned by the Germans. On all fronts of the war, from India to Denmark, the fascist military formations included volunteer armies and national divisions. Accordingly, each such country had to undergo a process of moral and legal purification and determine the extent of the guilt and liability of their citizens-collaborationists.

Collaborationism in France

The most vivid in historical retrospect is the experience of postwar France in the 1950s (the so-called “Charles de Gaulle Laws on Collaborationists“) when the transition from tough sanctions to amnesty of persons recognized as collaborationists went through several stages and took almost seven years.

After Charles de Gaulle came to power in France, the Consultative Assembly adopted two laws that established the liability of those who “by assisting Germany and its allies, threatened the national unity, rights, and equality of all French citizens.”

These laws clearly defined the range of persons affected by the law, the legal institution of administration of justice, the measure and the degree of punishment.

These laws affected the following persons:

– members of the governments of the “de facto authority” (the occupation authorities);

– top managers of the Ministry of Propaganda and the General Commissariat for Jewish Affairs;

– members of collaborationist parties or organizations;

– organizers of “economic, political or creative events/actions […] in favor of cooperation (with the occupation authorities)”,

as well as any person who in writing or verbally in public extolled the Germans, “racism or totalitarian doctrines”.

The legal cases of “national humiliation” were being heard in separate sections of the courts, which later became civil law chambers.

The law had given the accused the right to prove that he had redeemed his guilt through subsequent assistance to the Resistance and such confirmation had led to his/her acquittal.

Also, the articles of the law had prohibited the collaborationists from working in some positions and engaging in certain types of activities. They were prohibited:

• to work in the justice system, to be a witness or juror,
• to work in the field of education or be a guardian,
• to hold a top position in the media,
• to work in the banking and insurance sector,
• and to be member of the trade unions.

The social-administrative “purge” (deprivation of career prospects, dismissal, etc.) was quite harsh. According to the estimates of French historians, such measures affected 20% of officers of the French army. For example, as a punishment for cooperation with the occupiers, Louis Renault enterprises were confiscated and nationalized, and he died in prison.

Law defined “special zeal” in cooperation with the Germans as an aggravating circumstance.  Thus, the prefect, who had only implemented the law issued by the Vichy regime, without showing any special personal zeal, could escape punishment.  Virtually no punishment have been instituted for officials in the colonies (which until 1940 served the Republic, since 1940 – the regime of Vichy, and from 1942 to 1945 – the de Gaulle government).

Criminal liability was provided – long-term imprisonment or death penalty – depending on the degree of harm caused to the state by the activities of the collaborationist.

In total, 170,000 trials were held in France on charges of collaborationism and 120,000 sentences were imposed, including 4,785 death penalties.

All sentences were handed down by the court, and it was doing it quickly.  Nevertheless, many suspected in collaboration with the fascists did not live to see the court: they have been dragged out of the prison cells and lynched publicly.

By the end of the war, 3,920 people were executed (another 9,000 (!) were lynched without trial), 1,500 were sent to penal servitude, and 8,500 were convicted to various terms of imprisonment. In total, until 1949 French courts convicted 39,000 people, more than 50,000 were deprived of civil rights, and about one thousand people de Gaulle pardoned.

A separate place in the history of France takes the so-called “horizontal collaborationism” which means punishment for women who were mistresses of the Germans.  The most common form of punishment was shaving their heads (about 20,000 women were shaved, and approximately 8,000 such acts were performed before France was liberated entirely from the invaders and a new government was established; for the first time women were shaved by Resistance members in June 1943, as the underground press reported).  In most cases, this shaving did not entail any legal consequences either for the women themselves or their children, including those born from the invaders; all children were recognized as French citizens, and their rights were not infringed.

The trials of collaborationists were discontinued in 1949 when the idea of the unity of the nation triumphed. In 1953, an amnesty law was passed, and all prisoners were released accordingly. Moreover, according to the law on amnesty, nobody can even remind the former collaborationists about their service to the invaders.

Experience of Scandinavian countries

Among the Scandinavian countries, only Denmark and Norway were occupied.  At the same time, only Norway had provided armed resistance to the invasion of German troops.  It is characteristic that the attitude towards collaborationists in Norway was harsher than in Denmark (in Denmark anti-collaborationist movement became active only in the autumn of 1944).

Denmark

Immediately after the liberation of Denmark, almost 40,000 people were arrested and sent to internment camps. The overwhelming majority of the detainees have received insignificant terms of imprisonment or have avoided criminal punishment at all.  Only 80 people were sentenced to death penalty.  The death sentences were mostly replaced by prolonged imprisonment.  Suspects were tried for “state treason” and war crimes.  It is characteristic that the leaders of the collaborationists have perished in prisons in a strange way (either from suicides or accidents).  Separately, should be mentioned 18,000 children born by the Danish women from the Germans. Their mothers were subjected to various forms of neglect, obstruction, and beatings.

In June 1945, the Danish army and police liquidated the bulk of the Nazi terrorist groups.

Their members were either killed or arrested, tried in courts, and sentenced to death and long prison terms.  The punishment for postwar terrorism was tougher than for collaborationism.

The Danish government had rather “loyal attitude” to collaborationists and only in 2003, the Prime Minister of Denmark, Anders Fogh Rasmussen, openly stated that cooperation with the German invaders was “morally not justified”.  Later Mr. Rasmussen became NATO Secretary General and adviser to the President of Ukraine Petro Poroshenko.  During 58 years after the war, the political leadership of Denmark avoided official condemnation of the facts of collaborationism.  The reason is, perhaps, that this term can also be applied to the activities of the Danish government itself, which never went into exile during the occupation, but was dismantled by the German command three years after the occupation began.

Norway

After the surrender of the German troops in Norway, more than 100,000 Norwegians were variously prosecuted for cooperation with the invaders. 29 to 40 thousand people were arrested, according to diverse sources.  The prosecutor’s office demanded 200 death sentences, but courts supported not all of the prosecutor’s requests.  Several hundred collaborationists were sentenced to life imprisonment.

As in Denmark, the collaborationists were, as a rule, sentenced for “treason” and war crimes.  Most of the accused had avoided severe punishment.  However, 28 political and military leaders led by Minister-President Quisling were shot.  Given the problematic and undemocratic nature of the criminal prosecution, some cultural figures who supported the Nazi regime were treated in the best Soviet traditions.  For example, the writer Knut Hamsun was recognized as a madman and placed in a psychiatric hospital.

It is characteristic that the transitional government of Denmark, even before the parliament was convened, introduced the death penalty for treason and war crimes with grave consequences.  As a result, the death sentences were criticized in a legal context.  The Norwegian society divided on the “silk front”, which united opponents of the death penalty, and the “ice front” which included supporters of severe punishment.

Especially tragic was the fate of Norwegian women who had liaisons with German soldiers.  They numbered almost 70,000. They were beaten, raped, publicly humiliated, and economically discriminated against. Five thousand women were sent to concentration camps.  8 634 children born to German soldiers under the Lebensborn program (improvement of the gene pool of the Aryan race) were scornfully called “Nazi caviar”.  The same fate awaited another four thousand children born in marriages between German soldiers and Norwegian women. A special medical commission declared children born from Germans to be dangerous for Norwegian society because they had “inferior genes”.  Many such children were brought up in orphanages.  There was a special stamp in their documents.

Some Norwegian women with children born from Germans were forced to move or send children to a more tolerant Sweden. One of them was the mother of Anni-Frid Synni Lyngstad, who gave birth to her at the age of 19 in a Norwegian mining village from a German soldier.  The girl grew up with her grandmother in Sweden and became known as singer Anni-Frid, a member of the pop band ABBA.

Only in 2005, the Norwegian parliament abolished all discriminatory rules affecting these people who were already over 60…

Collaborationism in a hybrid war situation

Collaborationism happens in all situations of military conflicts with the seizure of territories, including the newest history of the application of methods of hybrid wars on the territory of the republics of the former USSR (Moldova, Georgia, Azerbaijan, etc.).  However, currently, there is no country in the world with the valid law on collaborationists.  All national legislative systems provide for criminal punishment for high treason, and Ukraine is no exception.  Thus, we can rely only on the legal practice of the 40-50s of the last century.

We undoubtedly need to study this experience, including the negative consequences of both types of unsuccessful decisions: either the concealment of the problem or the use of too radical measures.  The former lead to a split in society and the lynch law while the latter hamper the reintegration process and create the prerequisites for the emergence of the “fifth column”.

On the other hand, the situation in Ukraine is radically different from the situation in France and other countries that participated in the Second World War.  The world has changed, technology has changed, wars have changed.

Ukraine for more than four years is a side of the conflict, which legally is not a war, while as a matter of fact, it is full-fledged military aggression by the Russian Federation.

This is the newest hybrid war, which includes a very strong information component enabling the enemy to manipulate people’s minds and substitute concepts at all levels, including the world public opinion and the media. Russia disguise the actions of its military formations as a “liberation movement” of local militias, cooperation with the occupation regime is presented as participation in the formation of the state structure of the “independent republic”, and attempts to restore the territorial integrity and sovereignty of Ukraine are branded as the offensive of the hit squads of the “Bandera junta”.

The idea of deployment of the collaborationist movement in the occupied territories as part of the concept of a hybrid conflict was largely borrowed by the Putin regime from Fascist Germany. Of course, it is improved and adapted to the needs of current society and use modern communication technologies to create the illusion of “statehood” and the legitimization of the occupied territories. The collaborationist part of local society is used to give the appearance that occupying authority realizes “wishes, requests, the will of the local population”.

All this leads to the legitimization of collaborationism in the minds of people who have remained in the occupied territories and is broadcasted around the world through propaganda channels of communication, camouflaged as the media.

Obviously, the adoption and implementation of the law on collaborationists will be inevitably complicated by the activities of Russia and pro-Russian political forces, which will launch a broad campaign to discredit the difficult processes of reintegration of the population of the occupied territories.  Russian propaganda will stimulate the continuation of the armed resistance to Ukrainian troops, intimidating the population with future “sweeps” and criminal prosecution for committed and not committed crimes.

We should consider these risks and develop countermeasures.  Including warning our foreign partners about the expected propaganda campaigns to discredit laws on collaborationists and amnesty as well as the processes of their implementation.

What should be the Ukrainian law on collaborationists?

Collaborationism cannot be left unpunished.  But the punishment should be selective and multileveled.  The law should include a clear and explicit definition of a criminal act and a univocal list of categories of persons which it covers.

All the people who consciously collaborated with the invaders, who participated in the work of local authorities that facilitated the seizure of territories, who fought on the side of the invaders, who committed criminal crimes against the Ukrainian military and civilians must be brought to justice and be punished.

It is also necessary to introduce a legislative norm which prohibits any citizen, recognized by the court as a collaborationist, to be elected and hold positions in government authorities and local self-government bodies, and to be a civil servant.  It will reduce the risk that the representatives of the “fifth column” enter authorities to organize sabotage and subversions against Ukraine.  After the Second World War such political restrictions were successfully used in France and generally brought positive results.

Promoting the restoration of Ukraine’s state sovereignty over the occupied territories of the Donbas should be considered as a condition for exemption a person from the criminal liability or its mitigation.  Consequently, even combatants who did not commit serious war crimes or representatives of the middle local government level can avoid criminal responsibility if they help to restore the Ukrainian authority over the occupied territories.

Jointly with the Law on Collaborationists should be adopted an Amnesty Law which will cover the majority of the population who survived the occupation and were hostages to the aggressor or had to work in institutions and organizations in the occupied territory.

The experience of France shows that if such cooperation was neither military nor punitive, these categories of citizens in most cases fall under some amnesty forms and/or programs.

The development and adoption of laws on collaborationists and amnesty is a necessary stage of the process of de-occupation and reintegration of the temporarily occupied territories of Donetsk and Lugansk regions even though the issue of collaborationism is debatable in Ukraine.  There are fundamentally different views on collaborationists: from  “accomplices of Nazism” to “hostages of their time” or “fighters for Ukraine’s independence”.

Moreover, these laws should be enacted BEFORE the commencement of the process of liberating the seized territories and then it will be absolutely necessary to undertake an information campaign to explain the provisions of these laws to the population, both in Ukraine and in the occupied territories.

We cannot allow a period of legal uncertainty because it will frighten people and create the opportunity for the spread of fake news and rumors by the hostile propaganda.  Also, we can not allow the “lynch law” and “witch hunts” when the innocents may suffer.

Thus, Ukraine has to solve a complex and multi-component task: not only to conduct legal, social and moral reintegration of the population of temporarily occupied territories but also to head the process of detoxifying the information space, to clear it of the fake component.

We must act promptly to be ready for a quick and effective process of de-occupation and reintegration of our territories.

We must act elaborately and judiciously not to repeat mistakes of others and to account for new risks, including “hybrid” risks.

We must act decisively and openly to deprive the enemy of possibility to blanket the world with the informational smog of lies and fakes.

We must act.

 

Arsen Avakov