Collaborationism as an object of criminological research

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Collaborationism as an object of criminological research

Oleksandr Dzhuzha, Doctor of Law, Professor, Vitalii Vasylevych, Doctor of Law, Professor, Dmytro Tychyna, PhD in Law, Senior Researcher National Academy of Internal Affairs

Abstract

With the onset of the war initiated by the Russian Federation against Ukraine, collaborationist activity has become a matter of national security for the country. Collaborationist activity, which involves cooperation or assistance to another country or organisation, can have an impact on the national security of a country, including armed or cyber influence, influence on information flows, and citizen safety. The purpose of this study is to identify the dynamics of changes and distinguish collaborationist activity from other types of criminal offences within the context of criminology and criminal law in Ukraine. The research methods used in this study included analysis and synthesis, which were used to identify pertinent issues in society that arise during the process of identifying the criminal activity of collaborators. Methods of historical analysis, specification, and classification are applied. The main methods used in the study were the analysis and synthesis of scientific and theoretical materials and legal norms.

Collaborationism in the context of international law is defined. The main acts in the field of international humanitarian law that define the legal status of populations in occupied territories are analysed. Based on key characteristics, various types of criminal activity are identified. The issue of the need to improve criminal law norms, the definition of crime, and the responsibility for collaborationist activity are addressed. The study explored the issue of collaborationism in Ukraine, which emerged as a result of the armed aggression of the Russian Federation. An analysis of the changes made to the Ukrainian Criminal Code regarding the definition of the crime related to collaborationist activity and the responsibility for such actions is conducted. The dynamics of court verdicts over the past year concerning the application of the criminal code provision in real time is summarised. The practical value of this study lies in the fact that identifying current problems and their resolution methods will enhance the effectiveness of law enforcement activities in detecting individuals engaged in collaborationist activity and holding them accountable. This, in turn, will contribute to reducing the level of criminality in this sphere.

Keywords: war crimes; national security; occupation; enemy; high treason.

Анотація

Колабораціонізм як об'єкт кримінологічного дослідження

Олександр Джужа, Доктор юридичних наук, професор; Віталій Василевич Доктор юридичних наук, профессор; Дмитро Тичина, Кандидат юридичних наук, старший науковий співробітник Національна академія внутрішніх справ

З початком війни, яку розгорнула Російська Федерація проти України, таке явище в суспільстві, як колабораційна діяльність, стало належати до питань національної безпеки країни. Колабораційна діяльність, яка включає співпрацю або допомогу іншій країні або організації, може мати вплив на національну безпеку країни, збройний або кібернетичний вплив, вплив на інформаційні потоки та безпеку громадян. Метою роботи є виявлення динаміки змін і відмежування колабораційної діяльності від інших видів кримінальних правопорушень у контексті кримінології та кримінального права України. Методами наукового дослідження слугували аналіз і синтез, за допомогою яких визначено актуальні проблеми в суспільстві, що виникають у процесі виявлення злочинної діяльності колаборантів. Застосовано методи історичного аналізу, конкретизації та класифікації.

Основним методом, використаним у роботі, став метод аналізу та синтезу науково-теоретичних матеріалів і правових норм. Визначено поняття колабораційної діяльності в контексті міжнародного права. Проаналізовано основні акти в галузі міжнародного гуманітарного права, які визначають правове становище населення на окупованих територіях. На підставі основних змін визначено різновиди злочинної діяльності. Порушено питання щодо необхідності вдосконалення норм кримінального права, регламентації складу злочину та відповідальності за колабораційну діяльність.

Досліджено питання колабораціонізму в Україні, що виник унаслідок збройної агресії Російської Федерації. Здійснено аналіз змін, внесених до кримінального кодексу України щодо визначення складу злочину за колабораційну діяльність і відповідальність за такі дії. Узагальнено динаміку судових вироків за останній рік, щодо застосування норми кримінального кодексу в реальному часі. Практичне значення дослідження полягає в тому, що визначення актуальних проблем і способів їх вирішення дозволить підвищити ефективність правоохоронної діяльності з виявлення осіб, які провадять колабораційну діяльність, та притягнення їх до відповідальності, що дозволить знизити рівень злочинності в цій сфері.

Ключові слова: воєнні злочини; національна безпека; окупація; ворог; державна зрада.

Introduction

For Western Europe, a lawful and internationally recognised practice of prosecuting war criminals is characteristic. The concept of criminal collaboration emerged during World War II. During this period, the term “collaborationism” took on forms of moral and political involvement for those who cooperated with the cruel Nazi regime, thereby committing crimes against their own population. To distinguish between favourable and unfavourable collaborationists, it is necessary to understand the underlying ideas pursued by these individuals.

P. Digeser (2022) explored the issue of collaboration as an undefined concept, which led to political abuse and manipulation, and also formulated the concept of gender collaborationism. Throughout Europe, Germany's Nazi ideology created various combinations and forms of cooperation with occupiers, ranging from military to economic collaboration. In this sense, it is challenging to differentiate between collaborationism and the ordinary survival of the population during wartime.

S. Kalyvas (2018) investigated two types of collaboration: military and armed collaboration. The author also examined the theoretical underpinnings of the phenomenon, such as indirect rule, civil war, and endogenous dynamics. In the paper by T. Austad (2022), the role of national identity and religious beliefs of the population in the process of combating collaborators was examined, using the example of the Norwegian events during World War II.

Having examined mass killings that occurred during the armed conflict in East Java, G. Leksana (2021) & M. Galvis (2022) analysed the main features of genocide and highlighted collaborationist actions' peculiarities beyond the context of war. The unstable political situation in the state led to successful collaboration between the population and the military, as it had its intentions during the violence. Civilian populations were driven by motives such as political revenge against communist neighbours or economic attempts to acquire land. These motivations include rewards individuals received from violence, such as obtaining property or employment in the civil service. In the author's view, the participation of civilians in mass violence leading to genocide in Indonesia in 1965-66 is an expression of collaboration supported by the military.

E. Benmelech, E.F. Klor (2020) conducted an analysis of the phenomenon of foreign fighters joining the Islamic State in Iraq and Syria (ISIS). They investigated the reasons and motivations behind the collaboration of foreign citizens with ISIS. It was established that the influx of fighters to ISIS is driven not only by economic or political conditions but also has ideological and religious underpinnings. The ethnic homogeneity and the Muslim population's size provide an impetus for individuals from countries with high levels of economic development and advanced political institutions to join opposition forces or rebels.

The issue of collaboration in Ukraine was addressed by O. Diachok (2017). She elucidated the concept of collaborationist activity since the beginning of Russia's military invasion and the annexation of Crimea in 2014. The task then arose to prevent individuals responsible for crimes against Ukraine's national security from assuming state management roles. Analysing national legislation in relation to international human rights instruments, it was found that individuals implicated in criminal collaboration could not be held criminally responsible due to the absence of mechanisms to do so. There is now a need to amend Ukraine's criminal legislation.

The question of criminal collaboration with an occupying state remains open for society. War crimes, espionage, and high treason always take place during military operations. The problem of this study was the absence of practical application of this concept in modern society, as the notion of occupation is absent in most countries. As a result of the armed aggression of the Russian Federation, Ukraine has become the founder of new norms that take their place in international humanitarian law, which actualises the conduct of this study.

The purpose of the study was to examine new forms of collaborationist activity and methods to combat it in contemporary society. The objective is to identify the signs of collaborationist activity and address the responsibility for such a type of offence.

Materials and Methods

For a comprehensive and in-depth study, an analysis of a series of papers published in journals and collections on the subject of collaborationist activity with the enemy during the occupation was conducted. Familiarity with normative acts in the field of international humanitarian law that regulate the legal status of the population during the occupation, such as the IV Geneva Convention on the Laws and Customs of War on Land¹, the IV Geneva Convention for the Protection of Civilian Persons in Time of War², and the European Convention on Human Rights, was undertaken¹. An analogy was drawn between international acts and the practice of imposing criminal punishment for collaborationist activities during the Second World War period. Using an analysis of changes in criminal legislation over the recent period, particularly regarding defining the elements of the crime of collaborationist activity and legal accountability for such actions, was accomplished.

Employing the method of specification, historical examples from European countries and the East concerning collaborationist activity during wartime and occupation periods were identified. The practices of various countries aimed at holding individuals accountable for treason were explored.

Based on dialectical and systemic methods, historical conclusions were drawn from foreign countries, indicating the need for the global community to address issues of state treason during wartime conflicts, mass killings, and political repressions. The concept of collaborationist activity was isolated from other criminal offences. The impact of propaganda from the aggressor state during war, which can shift the situation from collaborationism to national resistance and the fight for independence in totalitarian regimes, was analysed.

Using analysis and synthesis, general principles of law enforcement activities in Ukraine aimed at preserving state sovereignty within the framework of international humanitarian law based on national legislation were determined.

Through typological analysis, types of collaboration were categorised for criminal justice purposes. Conclusions about the specifics of collaborationist actions and criminal punishment for their commission in individual cases were derived using deduction methods. The importance of defining collaborationist activity as a distinct criminal offence for application in international legal practice was emphasised. Problems at the international level were synthesised using the method of generalisation.

Results and Discussion

Despite the fact that collaborationist activity poses a high level of societal danger, such actions are not always identified as criminal acts. This is due to the insufficient readiness of criminal legislation. To address this, it is necessary to identify types of offenses that deliberately harm national security, viewed from the perspective of state treason, while still falling outside the scope of criminal liability (Antonyuk, 2022). The issue of improving the existing criminal and criminal procedural legislation is particularly relevant in the territory of Ukraine during the introduction of a state of war. In such conditions, society requires new approaches to defining the elements of the crime and streamlining procedural actions. The dynamics of criminal processes demand changes to the current legislation, considering the future development direction of criminal legislation (Balobanova et al., 2022).

To understand the concept of collaborationism, it is necessary to analyse the main features of this phenomenon. The experience of the Chinese in Yokohama during the Second Sino-Japanese War demonstrated how easily the concept of friendship can be manipulated between two nations. The contemplations of the Chinese in Yokohama about friendship during the war highlighted the disconnect between its rhetorical concept and its use by the Japanese government for its own purposes. The consequences of such political manipulations persist in Chinese-Japanese relations to the present day. Diplomatic statements of friendship do not align with the factual distrust and hostility between the Chinese and Japanese people (Hretsa et al., 2022).

In accordance with the foundational acts in the field of international humanitarian law that define the legal status of the population in occupied territories, a territory is recognized as occupied if it is effectively under the control of the enemy's army. The IV Hague Convention² on the Laws and Customs of War on Land proclaims the principle of humanity, which obliges the occupier to ensure the normal livelihood on the occupied territory, a proper humanitarian situation, and adherence to rules of conduct with the civilian population and prisoners of war. This implies that the occupant is obligated to take measures to restore and ensure public order and the safety of the peaceful population. The Geneva Conventions³ regulate the treatment of prisoners of war and civilian populations during armed conflicts. The importance of the humanitarian sphere during armed conflict is difficult to overestimate. An individual who, due to an insurmountable situation, finds themselves in occupied territory is protected by the Convention. Regardless of the location, whether it is a region undergoing armed conflict or occupation and whether it is under the jurisdiction of a conflicting party or an occupying state, individuals are entitled to receive humane treatment.

As of 2023, European legislation does not define the elements of a crime related to collaborationist activity. Overall, international humanitarian law establishes responsibility only for individuals who engage in active activities such as espionage, sabotage, and intelligence in favour of an enemy country or its citizens. Based on these norms, support for an occupying authority that is not accompanied by active actions is not considered collaboration with the enemy. There is no direct prohibition on collaboration with the enemy or voluntary involvement of residents of occupied territories in such collaboration. The only limitation for individuals engaging in activity detrimental to state security is that the Convention's protection does not extend to them.

According to Article 6 of the European Convention on Human Rights¹, the occupying authority must ensure effective judicial proceedings in the occupied territory. For this purpose, it is necessary to ensure the operation of non-political courts on this territory, and in case of violations of provisions on criminal liability, transfer the accused to them. The principles

Table 1. Types of collaborationism

Based on the fundamental principles of criminal procedural legislation, the object of collaborationist activity is to inflict harm on the sovereignty, territorial integrity, external and internal sovereignty of Ukraine, its defence capability, economic, and information security. The subjective aspect involves the perpetrator's awareness of the socially dangerous consequences of their actions. Motivations for such activity may include personal gain, revenge, or ideological beliefs of the individual (Yanishevska & Krysko, 2022).

International humanitarian law aims to regulate relations during armed conflicts and establish preventive measures to prevent them. In the context of global experience in combating collaborationist activity, it has been established that the modern system of international legal regulation contains declarative norms that demonstrated their inefficiency during military operations and the occupation of territories. This includes the functions of the United Nations Security Council and the International Committee of the Red Cross. During the Russian Federation's invasion of Ukraine, they proved ineffective in the conditions of a full-scale military conflict. There is a need to enhance norms in various areas of law, including criminal law, by defining new forms of crimes and their accountability (Kalyvas, 2018).

The attack by the Russian Federation challenged state sovereignty, territorial integrity, and independence of Ukraine. The socio-political situation in Eastern Ukraine during the military operations initiated the emergence of collaborationist activity in that territory and is indicative of treason. This phenomenon required an immediate update of criminal legislation to specifically define this crime as a separate criminal offence. The Ukrainian authorities promptly responded to societal demands by amending the Criminal Code of Ukraine to introduce criminal liability for collaborationist activity, targeting individuals who assist the Russians and collaborate with the occupying administration to the detriment of Ukraine. The new provisions in the Criminal Code align with the principles of international humanitarian law (Bondarenko et al., 2022).

On March 15, 2022, the Law of Ukraine “On Amendments to Certain Legislative Acts of Ukraine Regarding the Establishment of Criminal Liability for Collaborationist Activity”² came into effect, amending the Criminal Code of Ukraine³ to introduce Article 111-1. This article significantly heightened criminal liability for criminal cooperation with an aggressor state. Starting from that moment, criminal liability for collaborationist activity in Ukraine has been in effect (Table 2).

Table 2. Analysis of Article 111-1 of the Criminal Code of Ukraine

Source: Criminal Code of UkraineCriminal Code of Ukraine №. 2341-III. (2001, April).

In the Ukrainian language, “collaborationism” comes from French “collaboration,” which is defined as conscious, voluntary, and intentional cooperation with the enemy for one's own interests and to the detriment of one's own state and its allies. When interpreting this phenomenon, certain distinctions between collaborationism and espionage are made. Before the changes were introduced into the Criminal Code of Ukraine, the concept of “collaborationist activity” was only discussed in legal doctrines and draft laws. Therefore, such dynamic changes can be considered a significant breakthrough not only in the criminal legislation of Ukraine but also beyond.

Analysing the characteristics of actions provided in Articles 111-1 and 114 of the Criminal Code of Ukraine, certain differences in the description of the criminal elements can be identified. Collaborative activities do not involve committing actions related to the collection and transmission of information that could constitute state secrets to the aggressor state. The concept of espionage involves an actively purposeful collection of information that constitutes state secrets. An analysis was conducted on 70 verdicts rendered during the wartime period up until the end of August 2022. As a result, it was determined that judicial verdicts under Article 111-1 for collaborationist activities, among actions closely resembling it in terms of their characteristics, account for 45%, verdicts for state treason constitute 48%, verdicts under Article 114-2 for unauthorised dissemination of information about the movement, transfer of weapons, armament, and ammunition into Ukraine, as well as movement, transfer, or placement of the Armed Forces of Ukraine or other legally established military formations, amount to only 6%, and verdicts for obstructing the lawful activities of the Armed Forces of Ukraine and other military formations under Article 114-1 account for 1% (Fig. 1).

There is a problem in the qualification of actions of Ukrainian citizens related to collaborationism. Criminal proceedings are initiated by law enforcement agencies under Articles 111 (State Treason), 111-1 (Collaborationist Activities), and 111-2 (Aiding the Aggressor State) of the Criminal Code of Ukraine. The application of one or another article in these cases is essential for the individual. The practice of applying these articles indicates a lack of legal certainty in these norms. This means that the same act can be qualified under several articles. International standards of law stipulate that the legal rights of individuals should be determined by legal norms, not by discretionary powers of state authorities (Mys- lyvyi, 2022). Such vagueness may lead to the annulment of verdicts at the national level and to decisions against Ukraine in the European Court of Human Rights. For instance, in the decision of the Supreme Court, the panel of judges of the Second Judicial Chamber of the Cassation Criminal Court in case No. 760/6265/22 Criminal Codex of Ukraine № 2341-III. (2001, April)., verdicts of the lower courts were annulled. In this case, a man was found guilty of acquiring and storing firearms, ammunition, and explosives without the required legal permit at his place of residence. He was convicted of illegal possession of weapons and ammunition and sentenced to actual imprisonment. When the Cassation Court made its decision, it expressed the position that if the actions of an individual are proven to be an extreme necessity, such actions are not a criminal offence according to Part 1 of Article 39 of the Criminal Code Resolution of the Supreme Court of Ukraine on the Case № 760/6265/22.. Considering the practice of the European Court of Human Rights, citizens should have the opportunity to report to competent state officials about the behaviour of public servants that they find unlawful or illegal Case of Rogalski v. Poland № 5420/16. (2023)..

Figure. 1. Analysis of the dynamics of court sentences (as of the end of August 2022)

In contemporary international conflicts, many parties are involved, including civilians. As is known, they are not allowed to participate in combat activities. Modern International Humanitarian Law cannot provide a clear answer as to whether such actions constitute violations of humanitarian law in cases of war crimes or whether such activities are subject to ordinary criminal responsibility. The question of the compatibility of state programmes with international law was raised during the political crisis in Syria from 2015 to 2018. Due to the internal political crisis in the country, protests aimed at overthrowing the regime of President Bashar al-Assad arose, accompanied by violent events. In support of the Syrian rebels, the government of the Netherlands adopted a programme of “non-lethal aid.” Despite the fact that the programme was developed within the framework of international law, the principle of non-intervention and the prohibition of the use of force were violated (Ruys & Ferro, 2020). International Criminal jurisdictions have developed a so- called “loyalty” test to determine the relationship between the concept of loyalty and high treason. The test itself has no legal effect, but it exists as an interpretive tool to prevent arbitrary and unjustified judicial legislation for the protection of individuals under the Fourth Geneva Convention Convention № 995_154 “On the Protection of the Civilian Population in Time of War”. (1949, August)..

As of 2023, the world is actively discussing the extreme danger of Nazism and totalitarianism. If such ideas win, humanity will face ideological decline, humanitarian catastrophe, and post-war repression. In this context, it is vital to define a line between the criminal actions of collaborators that pose a threat to national interests and actions aimed at preserving fundamental humanitarian human rights and preventing the prosecution of innocent people.

V. Voisin (2017) explores the issue of punishing female collaborators in the Soviet state who had sexual relations with an invader. This behaviour causes condemnation from the local population from a moral standpoint. The state utilised this for social-political purges of the population.

Civil War researchers V. Bauer et al. (2022) examined the involvement of militants in Pakistan to reduce cooperation with the United States. The analysis results indicated that killing collaborators using drones led to a decrease in espionage as a whole. Defining the concept of a collaborator and their motivation to cooperate with the enemy is the subject of analysis in the book by J. Espindola & L. Payne (2022). The authors delve into whether cooperation is harmful or whether it leads to an increase or decrease in violence, whether it is always evil or if it can be viewed in light of mitigating injustice. The study is based on various types of cooperation in different times, countries, political systems, political and cultural conflicts. S. Bozanich (2022) identified key factors that give rise to collaboration- ism. According to him, these are violent actions by the aggressor country or occupying totalitarian power. Under the influence of special events, disputes on religious topics and ethnicity arise on an ideological basis.

For instance, during the Yugoslav War, there was a threat of genocide against Bosnian Muslims, ethnic Albanians, Croats, and other nations. Amid internal conflict and Nazi occupation, questions arose about mass violence and genocide. The diversity of political, ideological, and cultural perspectives does not provide a clear understanding of the boundary between collaborationism and national liberation resistance or the struggle for independence. The model of European behaviour during the war is characterised by a paradigm between resistance and cooperation with the occupation authorities.

The interconnection principles of the political, social, economic, and military spheres during war with totalitarian regimes and the significance of gender as an analytical category were explored by V. Drapac, G. Pritchard (2015). Currently, historians and jurists agree that the issue of collaborationism is not limited solely to the context of military actions and territorial occupation during wartime. J. Espindola (2023) described manifestations of collaboration beyond the scope of warfare. He investigated this issue from a philosophical and moral perspective, assessing the risks of cooperation between state authorities and criminals involved in drug-related crimes in Mexico. In exchange for leniency in sentencing and protection from retaliation, these wrongdoers are required to leave their criminal organisation and strike a deal with law enforcement agencies to share information about their activities. The author questions the permissibility of using collaborators in the state justice system.

Based on the general concept of criminal law and specific historical examples, one can conclude that the phenomenon of collaboration occupies a distinct place in criminal legislation. Given that modern hybrid warfare involves a wide spectrum of society, traditional concepts such as treason, espionage, sabotage, and genocide no longer fit neatly within the confines of current jurisprudence. An important point is not only the amendment of Criminal Legislation but also the continued exploration of these processes to prevent the manifestation of genocide, mass violence, and other grave violations of human rights.

Conclusions

Collaborationism has been discussed and studied by historians and sociologists in their works; however, the legal practice of holding collaborators criminally responsible is relatively limited. It is based solely on the application of general international acts and has not yet been incorporated into national criminal legislation. This legal gap is rooted in the absence of precedents in world history since the end of World War II. The Nazi regime left a considerable impact on the development of contemporary Europe and its citizens' political and ideological perspectives on societal life. The Nuremberg Trials were centred around war crimes and crimes against humanity in general. The complex historical past and the establishment of Ukrainian statehood in the context of the Russo-Ukrainian war prompted innovations in criminal legislation. However, there is no clear legal stance on regulating the behaviour of Ukrainian citizens residing in occupied territories who collaborate with the enemy or occupying authorities.

The question of treason becomes particularly acute during times of war, regardless of where it occurs, whereas collaborationism is a type of behaviour that must necessarily manifest on occupied territories and is demonstrated during the occupation. Progressive humanity faced a new challenge in the form of Vladimir Putin's imperialistic totalitarian regime. Society, especially the population of Ukraine, proved unprepared for the new threat to humanity that unexpectedly arose from the Russian Federation. Therefore, the introduction of new provisions into the Criminal Code of Ukraine should only mark the beginning of new research in the field of criminal legal issues related to collaborationism.

This matter requires further study, a scientific approach to the issue that will enable bridging gaps in law enforcement activities, particularly in the context of collaborationist activity during military operations, mass killings, other manifestations of genocide, and gaining new theoretical and practical insights. The timely incorporation of changes into criminal legislation to minimise the consequences of collaborationist activity and prevent it in occupied territories is of particular importance.

The scientific originality of this paper lies in identifying new characteristics when defining the elements of the crime of collaborationist activity in the context of hybrid warfare.

humanitarian law collaboration criminal offense

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