Filter for Collaborators. Striking a Balance between National Security and Political Freedoms

Preparing for the de-occupation of the territories seized after February 24, the “DPR/LPR” and Crimea

article by IHOR POPOV, an expert of the Ukrainian Institute for the Future

The occupation begets collaborators in virtually all countries that have experienced it. The Ukrainian war is no exception. Although such citizens are, in fact, few in number, it has become a challenge for the government and society to distinguish the active helpers of the enemy army from the residents of the occupied territories who, for various personal reasons, were in thrall to circumstance. These people have faced tough conditions in uncontrolled territories for not just months but years.

Consequently, the authorities have to consider the issues of post-occupation public policy in the territories of the “DPR/LPR” and Crimea immediately. After the Armed Forces liberate these territories, they must not fall into the hands of misled and erring officials; what is needed are readily available teams of state managers confident in their strategy and armed with clear-cut work algorithms.

What does the law say?

Shortly after the full-scale invasion broke out, the Criminal Code was amended to establish liability for collaborationism. The law defined such an activity and became a safeguard against the involvement of citizens in wrongful acts. It also provides for punishment in the form of a fine, community service or imprisonment, including quite serious prison terms.

Since the law came into effect, Ukraine has turned defense into offense and the liberation of territories, thus prompting the law to be consulted with an ever-increasing frequency. Over nine months of the war, the National Police registered about 2,000 criminal proceedings for collaborationism; 347 people are suspects, 206 indictments in this regard were submitted to the courts. In the first verdicts pertaining to the legal assessment of little-known citizens who did not rule out they publicly approved of Russian aggression, the courts ruled to ban such citizens from holding public positions.

Analysis of the practice of applying the law suggests the need for clarification. For example, a serious discussion has been caused by the assessment of actions of teachers in secondary schools. If the promotion of enemy values ​​in order to facilitate armed aggression against Ukraine must be stopped and punished, should the teaching of mathematics according to Russian textbooks be considered the same crime? Unfortunately, not all children who remain in the occupied territories have the technical opportunity to obtain online education using Ukrainian programs.

Another moot point is the occupation by a citizen of Ukraine of a position related to the performance of organizational and administrative or administrative and economic functions in the illegitimate authorities established in the temporarily occupied territory. If interpreted literally, the position of a senior janitor or manager of a municipal garbage removal company may be qualified as a violation of this norm, entailing appropriate legal consequences.

Of course, the severity of the law is now compensated by the common sense of its executors. In their decisions, law enforcement officers and courts take into account all the circumstances in which the offense has occurred, the motivation of the person and the real harm to the interests of national security. Then the law performs more of a pre-emptive function to prevent the desire to join the service of the occupation administrations. A series of eliminations of senior officials of such administrations, which is perceived by society as justified cruelty in wartime, has become an even stronger safeguard.

After the liberation of the temporarily occupied territories, according to the protocol, filtering measures take place, with a preliminary assessment of the actions of persons suspected of having been involved in collaborationism. When carrying out such measures, employees of the Security Service of Ukraine use service instructions, which probably provide answers to all controversial questions.

The results of the filtering measures have shown that the competent authorities have managed to strike a balance between the protection of national security and the rights of the majority of citizens. Enemy fakes about mass repressions have not corroborated by facts or evidence. Meanwhile, it is worth considering the possibility of publishing part of the criteria against which actions and statements of residents of non-controlled areas are evaluated. This will allow persons still staying in the occupied territories to exercise self-control and refrain from dubious actions.

The Verkhovna Rada is currently considering a draft law that would clarify a number of provisions on legal responsibility for collaborationism. It is proposed to set down that the delivery of pensions, provision of medical, housing and communal services and work of banks will not be subsumed under this category.

What to do with the “DPR/LPR” and Crimea?

These and other normative acts will be especially helpful in working with citizens in the territories which the Russian Federation has controlled for nine years and which the Armed Forces aspire to liberate. A literal application of the norms of the current law to millions of residents of Crimea, Donetsk and Luhansk regions will simply overwhelm the restored law enforcement agencies in these territories with workload and will be politically incorrect.

Meanwhile, the return of people is expected to be no less important and difficult than the return of territories. For the first few years after de-occupation, the powers of local authorities will obviously be exercised by military and civilian administrations, not elected local councils. Residents of the liberated territories must be guaranteed all social rights and the inviolability of private property; however, political rights and freedoms will be restored gradually.

Refined criteria of collaborationism will allow singling out the circle of persons whose ability to hold positions in government agencies or run for office in elections will be limited for a long time. As for the rest, it is important that they are gradually integrated into Ukraine’s political landscape. After nine years of living in the conditions of Russian propaganda, this process may drag on. If all electoral rights are immediately granted to persons who restore their Ukrainian citizenship, they will become the object of new manipulations by Russian special services.

To date, the activities of 12 pro-Russian parties have already been banned in Ukraine by court decisions based on the law passed during the war. Society has supported these decisions as necessary to safeguard national security. However, similar parties can be created anew, subject to all formal restrictions. A temporary restriction of voting rights for residents of the de-occupied territories can become a significant failsafe against such a political revenge.

What is more, the official basis for such a restriction may be not staying in uncontrolled territories but having the citizenship of the aggressor country. A person who has renounced such a citizenship may be deprived of electoral rights for a limited period, whose duration can be discussed with due regard for international humanitarian law and the experience of other countries.

War begets many challenges not only for the economy but also political rights and civil liberties. The task of the state is to strike a reasonable balance between the needs of protecting sovereignty and national security, on the one hand, and preserving and supporting political pluralism, freedom of speech and human rights, on the other. In turn, the challenge for society is to hold relevant discussions and offer the compromises it would be willing to accept.

Read this article by Ihor Popov in russian and Ukrainian.