As Ukraine prepares for the counter-offensive and states its unwavering will to return Crimea under its control, the plans for the post-war reintegration of the peninsula appear on the agenda. Among a number of concomitant social challenges, the issue of collaborationism stands out. As time goes by, the distinction between inoffensive engagement and serious cases of collaboration becomes increasingly blurred. Although the circumstances under which the peninsula will be retaken are still unclear, the primary task of the Ukrainian government is to work out an early strategy to narrow the possible set of policies.
Fighting collaborationism: Evolution of the legal framework
The first strategy for the de-occupation of Crimea was published in 2021. For the first time, the Ukrainian government articulated its intended policy towards the peninsula in a single document. In particular, it was stated that Ukraine intends to return Crimea by diplomatic means. Moreover, it identified general lines of work of the government to develop legislation related to reintegration. It also required the Cabinet of Ministers to create and endorse a specific course of action for executing the strategy. The document covered the following areas of work: economy, human rights mechanisms, environmental policy, information policy, social and humanitarian policy. To foster international dialogue and drum up international support, the document established the Crimean platform. Since then the Crimean platform engages politicians of Ukraine’s allied countries and provides space for multilateral talks in 5 key areas: reversing Russia’s annexation of Crimea, implementing stronger global sanctions against Russia, developing international security and human rights, combating the effects of occupation on the economy and environment.
However, after the beginning of the Russian invasion in February 2022, the approach to the issue has changed. Nowadays, unlike before 2022, Ukraine claims to be ready to retake Crimea by employing not only diplomatic means but also military force. Therefore, in 2023, the strategy for the de-occupation of Crimea was amended. The revised strategy includes a more systematized plan concerning relevant issues, such as the establishment of military administration, comprehensive methods for overcoming the consequences of the militarization of education and retraining of children and youth, recognition of documents concerning ownership, obtaining/restoring documents, and judicial decisions. However, the most contentious issue is defining liability for collaborators.
The first Ukrainian law on combating collaborationism entered into force in the spring of 2022 to bring to justice collaborators of the newly occupied territories in the first place. Though the definition of “collaborationism” is not provided, the law contains a list of illegal acts that lead to punishment. Those penal offenses include propagation of the aggressor state’s narratives, conducting economic activities to assist Russians, participation in the organization and conduct of illegal elections, voluntary participation in illegal armed or paramilitary formations, etc. Since then, civil society has been criticizing it with respect to its provided universal jurisdiction. To put it simply, we can distinguish three categories of collaborators: the population of Crimea that was illegally turned into an autonomous region of Russia, the population of the so-called Donetsk and Luhansk People’s Republics, the independence of which was unauthorizedly recognized by Putin in 2022, and the population of recently occupied territories (Kherson and Zaporizhzhia regions). Human rights champions argue that the approach concerning Crimeans’ liability should be different from other cases of collaboration. They have a point: because of the occupation length, almost every Crimean falls under the law’s definition of a “collaborator”.
Although in the revised strategy it is acknowledged that amnesty would be a common tool of Ukrainian policy towards the peninsula, an accurate legal framework regarding the issue is yet to be developed.
Such debates imply that the statutory regulation in this area is in its infancy. In order to devise a solution-oriented course of politics, a number of new institutions have been established, such as the Advisory Council on De-occupation and Reintegration of Crimea and the City of Sevastopol.
The special case of Crimean collaborationism
The main challenge lies in the fact that the population of the liberated peninsula can not be treated the same way as the population of other de-occupied territories. Here are some reasons why.
- Imposed ‘Russian order’. Notwithstanding the fact that a considerable number of Russians shall leave the peninsula as a result of bilateral treaties, the mindset of citizens is already profoundly altered. By virtue of illegal means (replacement of the Ukrainian language with Russian, hindering the enjoyment of culture, establishment of special militaristic youth organizations, persecutions, deportations, etc.).
Russians have been brainwashing the population for almost a decade. The “russification” of Crimea residents originated centuries ago with the conquest of the Crimean peninsula by the Russian Empire in 1783, and continued in Soviet times, finding its climax in the deportation of the peninsula’s indigenous people – Crimean Tatars. Following the eviction of Tatars, Greeks, Bulgarians, and Germans from Crimea in June 1945, the region lost its status as an autonomous republic and was incorporated as a territory within the Russian Soviet Federative Socialist Republic (RSFSR). Although in 1954 Nikita Khrushchev, the new leader of the Soviet Union, transferred Crimea to the Ukrainian SSR for practical reasons (for instance, to make it easier to secure a stable water supply to the peninsula), it was the time when the population composition was massively swapped. Russian families moved to the peninsula, while the return of the indigenous population to Crimea before 1989, when the authority finally allowed them to come back, was impossible. The Crimean Tatar, Greek and German names of the vast majority of cities, villages, mountains, and rivers were changed to sound more Russian-like. Thus, after proclaiming independence, Ukraine inherited a rather russified territory. We can see that fact from the statistics: According to IRI, in 2013, 23% of respondents were in favor of Crimea being separated and given to the Russian Federation. On top of that, 40% considered themselves Russians regardless of their passport. This fact only emphasizes the importance of thoughtful policy.
- Forced shift in demographics. According to Ukrainian officials, about 100,000 people have officially left the peninsula, with 150,000 people from Russia entering іn 8 years of occupation. Undoubtedly, that data is not accurate (for instance, there are no statistics concerning the forced transfer of persons deep into Russia’s territory). Previously, in 2018, the Commissioner of the President of Ukraine for the Affairs of the Crimean Tatar People Mustafa Dzhemilev suggested that the actual number of people migrating to Crimea from Russia is between 850,000 and 1 million. Besides, after the beginning of the full-scale invasion and the launch of mobilization, a new wave of migration from the peninsula has taken place. This implies that those Ukrainian citizens that stayed on the territories are outnumbered and suppressed by Russian newcomers. The only way for them to survive is to adjust. This leads to an increased level of pro-Russian and neutral (“against both”)-minded residents. This issue will become a stumbling stone in the post-war reconstruction and will require a balanced approach in determining the punishment before the return of Ukrainian citizens to the peninsula.
- The specifics of the Russian Federation’s policy. The persecution of disloyal groups towards the new government is worth being considered separately. Tortures, assassinations, unjustifiably long prison terms, and lack of medical treatment are the most common outcomes for those who disagree with Russian politics. The Russian Federation resorts to repressions of Ukrainian citizens due to fear of resistance in the temporarily occupied Crimea, as well as applies unreasonable search and seizure, fabricated criminal cases, in particular, to representatives of the indigenous people of the peninsula – the Crimean Tatars. Since the beginning of Russia’s occupation of Crimea, at least 18 people have been sentenced for “participation in the Crimean Tatar battalion”, which was included in the Russian list of “terrorist organizations”. However, the involvement of convicted Crimean Tatars in this group has not been proven.
Economy and law: The strategy unclear
Thus, the issue of collaborationism is complex and requires detailed analysis. Although this article does not aim to provide a comprehensive understanding of the problem, we will try to look into two controversial categories of collaborators – businessmen and lawyers (mainly jurists and attorneys). Both categories are among the largest when it comes to the number of people who are engaged in unintentional collaborationism.
“Economic collaborators”. The prosecution of business collaborators requires an extended understanding of survival needs during the occupation, as without functioning basic enterprises, a severe humanitarian crisis is inevitable. In particular, this applies to workers in the region’s traditional employment sectors. For instance, in view of these considerations, the post-war cases of economic collaborators frequently avoided prosecution after WW2. For example, most contractors that were employed to build German defense projects in West Flanders, Belgium, received only limited attention from the government and even civilians after the liberation due to the industrial character of the region (suspects either avoided punishment or received a lighter punishment).
Scenario. Regarding this topic and the specificities of Crimea, we should take into consideration several points. First, there are some vital areas of entrepreneurial activity for sustainable life, in particular the food industry. The agricultural sector is damaged by fresh water scarcity caused by the annexation, obstructing the labor of workers and disrupting the lives of civilians. The same delicate approach should be taken upon the cooperation in the service industry of tourism. According to available information, tourism, the greatest sector of the Crimean economy before 2014, has now degraded, causing job loss. Crimea gradually turned into a “sanatorium” for wealthy Russians. Secondly, even before 2014, unemployment was one of the greatest concerns of the population. Since 2014 the displacement of small and medium-sized businesses by entrepreneurs from the Russian Federation has been taking place. Furthermore, thousands of Russians moved and settled down following the annexation. They continue to take jobs from locals, thus encouraging some of them to take on any occupation to survive. Finally, Russia’s ongoing policy of militarizing the island also complicates the process of identifying the people guilty of collaborationism. Subordinating the life of the peninsula to its military needs, creating military bases, and developing military infrastructure, Russia forces the population to cooperate with its military-industrial complex.
Source: radiosvoboda.org
Therefore, the provision of Ukrainian law concerning “the implementation of economic activities in cooperation with the aggressor state” with corresponding punishment in the form of imprisonment or fines is too harsh. When considering the cases of WW2 economic collaborators, the judges paid more attention to whether the enterprise became rich due to the occupation, or whether it functioned to provide work and essentials to the population. This concept holds true nowadays. The punishment for conducting business must be mitigated and should differ from the one that is valid for other liberated occupied territories.
Lawyers. The punishment of lawyers for collaboration has always been a challenging issue. On the one hand, the legal practice of lawyers justifies the regime and constitutes a direct act of collaborationism. On the other hand, civilians on the occupied territories should not be left without legal protection. Since 1945, legal standards have been evolving toward the promotion of human rights, thereby occasionally justifying the continuation of professional activities during the occupation. According to the developed practice, governments should not disregard the influence of de facto established occupation institutions completely. In particular, the activity of lawyers in the temporarily occupied territories should not be illegal in itself, because it puts the civilian population at risk of being left out.
In the case of Crimea, one of the areas of legal activity that should not be prosecuted is human rights protection. The Russians put pressure on lawyers who protect political prisoners by intimidation, arrests, fines, and depriving Crimean defenders of their attorneys. However, as the question of the distinction between punishable and non-punishable groups of lawyers is still unresolved, Ukrainian policymakers should pay more attention to world practice. We can take a closer look at the decisions of the ECHR concerning this topic. For instance, In the case “CYPRUS v. TURKEY”, ECHR referred to the Advisory Opinion on Namibia investigated by ICJ to assert that “international law recognizes the legitimacy of certain legal arrangements and transactions in such a situation, … the effects of which can be ignored only to the detriment of the inhabitants of the [t]erritory” and thus justifying the activity of the courts of the Turkish Republic of Northern Cyprus (TRNC), “though recognizing validity only of those decisions, effects of which could be ignored only to the detriment of the inhabitants of that territory. Later, this principle was reiterated in the case “MOZER v. THE REPUBLIC OF MOLDOVA AND RUSSIA”: “The decisions taken by the courts of unrecognized entities, including decisions taken by their criminal courts, may be considered “lawful” for the purposes of the Convention provided that they fulfill certain conditions. This does not in any way imply any recognition of that entity’s ambitions for independence ”.
Scenario. The settlement of the issue greatly depends upon the way in which the Crimea peninsula will be retaken. Ukraine should combine acclaim of its power with the manifestation of mercy to the Crimeans. The matter requires preliminary institutionalization of the process to minimize disarray and misperceptions among the personnel executives and civil society afterward. Therefore, a balanced information policy lies at the core of successful reintegration.
No wonder that some of the judicial decisions would be acknowledged as valid. As trite as it may sound, Ukraine does not have the resources to reconsider all cases. This necessitates trade-offs that would be painful for Ukrainians who will return to the peninsula to agree with (e.g. the recognition of several acts established by Russian law, which might pose a threat when resolving such disputes as overlapping property rights). Therefore, it’s high time that a special mechanism for cooperation between CSOs and the government was devised to provide space for public deliberations. CSO would accumulate public ideas and support and contribute to generating consent.
Thus, Ukraine’s punishing collaborators would be a unique experience, as it will be the first time that such a procedure takes place in Europe on such a scale. This task provides Ukraine with certain opportunities (e.g. to show its readiness to promote human rights and foster conducive sentiments along the peninsula), while also implying mounting perils. The key take-off point is to evolve CSOs-state relations, as the participation of NGOs will secure the state from adopting generalized decisions that are too remote from people.
Marharyta Hlybchenko
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