07 Nov Confronting the Collaborators
[Professor Shane Darcy is the Deputy Director of the Irish Centre for Human Rights in the School of Law at the University of Galway and the author of ‘To Serve the Enemy: Informers, Collaborators and the Laws of Armed Conflict’ (Oxford University Press).]
Every war has its collaborators. And every country at war must at some point not only come to terms with the inevitable fact that amongst its population are those that have assisted the enemy, but also decide how it will deal with those who have collaborated with the opposing side.
As Ukrainian forces have advanced in the east of the country over recent weeks, they have been increasingly faced with Ukrainians described as “pro-Russian proxies”, citizens said to have supported the Russian occupiers in various ways. While Ukraine’s army may to an extent be “flushed with victory and stung with injury”, to borrow the words of Robert Jackson, the Chief United States Prosecutor at Nuremberg, the question arises as to whether they will “stay the hand of vengeance and voluntarily submit their captive enemies to the judgment of the law”? In dealing with the phenomenon of collaboration, what approach will Ukraine take and as a party to an international armed conflict, what does international law require?
The Ukrainian government took the view early on in the war arising from Russia’s aggression that those collaborating with the Russian authorities would be liable to prosecution and punishment. Specific legislation was passed for this purpose, with Ukrainian president Volodymyr Zelenskyy stating that “[a]ccountability for collaboration is inevitable, and whether it will happen tomorrow or the day after tomorrow is another question. […] The most important thing is that justice will be served inevitably.”
A “registry of collaborators” has been compiled, and dozens of trials have already taken place. In the context of recent territorial gains, Ukrainian authorities have taken the following steps, as The Guardian reports:
Ukraine’s security services published a list last week of 390 “collaborators” in Zaporizhzhia region alone, who they said would be prosecuted for volunteering to help the Russian electoral commissions. They also published photos of a further four Ukrainians who they said played high-level roles in helping Russia organise the fake referendums in the Donetsk and Luhansk regions.
But a number of people have also been killed by Ukrainian partisans for having collaborated with the Russian occupying authorities. Over a dozen Russian-appointed officials have been attacked by way of bombings, shootings and in one case, poisoning. Such attacks are seen as destabilising Russian control by deterring locals from collaborating and “fair game” in the context of the thousands of Ukrainian deaths at the hands of Russian forces, not to mention other egregious international crimes. But are they compatible with international law?
International Humanitarian Law on Collaboration
Both Russia and Ukraine are bound by the rules of international humanitarian law during the war, notwithstanding that Ukraine is acting in defence against Russia’s unlawful attack. While Ukraine has indicated that captured Russian soldiers will be treated in accordance with the laws of war, for example, Russia’s record in Chechnya, Syria and now Ukraine is one of seeking to “systematically evade the restrictions that [international humanitarian law] imposes on warfare”. But failing to abide by treaty rules does not, of course, release a party to a conflict from those obligations.
So what do the 1949 Geneva Conventions have to say about collaborators? Is Russia permitted to recruit locals to support its war efforts? And how can Ukraine act lawfully in responding to the phenomenon? For the various international commissions and tribunals which are investigating the conflict in Ukraine, including the International Criminal Court, international humanitarian law and related standards will lead their assessment of the conduct of the parties.
International humanitarian law as enshrined in the 1949 Geneva Conventions generally forbids an occupying power from coercing protected persons to collaborate. For example, the Fourth Geneva Convention covering civilians states that “[n]o physical or moral coercion shall be exercised against protected persons, in particular to obtain information from them or from third parties”. The Third Geneva Convention on prisoners of war likewise outlaws any “physical or mental torture, [or] any other form of coercion” for such purposes.
Prisoners of war cannot be compelled to fight in the enemy’s forces – it is a war crime under the Third Geneva Convention. The same is the case for civilians under the Fourth Geneva Convention. Voluntarily joining the opposing side’s forces is not expressly prohibited, although the civilians convention contains a rule against “pressure or propaganda which is aimed at securing voluntary enlistment”. Drawing a bright line between coerced and voluntary collaboration is not straightforward in situations of armed conflict, particularly in contexts of occupation or detention in prisoner of war camps.
Cooperation by Local Authorities
Beyond providing information to an occupying power or joining the enemy’s forces, collaboration might also be seen to arise where local politicians or public officials cooperate in some way with an invading force. Some may do so to try ensure that daily life for civilians continues as normal as possible. International humanitarian law even seems to expect a certain amount of such cooperation, but has long-struggled to articulate clear rules on the matter.
When the laws of war were being first codified in international law at the end of the 19th century, Russia put forward a proposal concerning such bureaucratic collaboration:
The military authority may require the local officials to undertake an oath, or on their word, to fulfil the duties required of them during the hostile occupation; it may remove those who refuse to satisfy this requirement, and prosecute judicially those who shall not fulfil the duties undertaken by them.
Other States did not agree with the stance and while the proposed article never made it into an international treaty, there was an acknowledgment that it would be in the interests of the population in occupied territory that local authorities continue to function even though such cooperation ran the risk of becoming treasonous.
The Fourth Geneva Convention touches on the issue of local authorities working with an occupying power. The latter, for example, has an obligation to ensure schools and care facilities for children continue to operate “with the cooperation of the national and local authorities”. Public officials and judges may be expected to continue in their roles but cannot be sanctioned for refusing to fulfil their functions “for reasons of conscience”.
However, the Convention accepts that compulsion may be allowed to ensure the provision of “public utility services, or for the feeding, clothing, transportation or health of the population of the occupied territory”. It was recognised during the drafting of the 1949 Geneva Conventions that “it might be necessary for certain … officials or judges to be compulsorily employed”. The ICRC Commentary to the Fourth Geneva Convention notes further that “the occupation authorities, being responsible for maintaining law and order, are within their rights in claiming the co-operation of the police”.
Individuals that do cooperate with an occupying power in such ways are invariably at risk of accusations of collaboration. As CNN reported in June “[l]ocal officials in areas overrun by Russian forces have frequently faced an unenviable choice: try to protect and represent the people who elected them – or leave quickly”. While many officials left the region of Kherson upon the Russian invasion, a city council member named Ilya Karamalikov remained and subsequently faced charges of treason. While accused of giving the occupiers confidential information and providing other forms of assistance, such as to wounded Russian troops, his lawyer claimed he was trying to keep order during a chaotic situation, protect the population and prevent looting. “For me as his lawyer and for many concerned residents of Kherson the answer is obvious: Ilya Karamalikov is a hero.”
With Ukrainian authorities “investigating more than 1,000 suspected collaborators across the occupied territories”, courts hearing such cases will inevitably be faced with more claims that individuals, like Karamalikov, acted in the interests of the local population. Others might assert that they acted under duress, or that they viewed collaboration as a means of keeping themselves safe. It has long been recognised that those collaborating with an opposing side against their will should not be liable; as the Russian delegate to the 1874 Brussels Conference put it:
An inhabitant of a country, who has “voluntarily” served as a guide to the enemy, is guilty of high treason; he is not, however, liable to punishment from the moment he has been “compelled” by the enemy to serve in such capacity.
Raising duress as a defence is not uncommon, although conviction may hinge on the nature and degree of the collaboration and the consequences for failing to do so.
There is no question but that Ukraine is within its rights to punish cases of collaboration. Writing just a couple of years after the 1949 Geneva Conventions were adopted, Hersh Lauterpacht put it that “[a]lthough a belligerent acts lawfully in employing spies and traitors, the other belligerent, who punishes them, likewise acts lawfully”.
For the prosecution and punishment of alleged collaborators to be lawful, the proceedings must comply with relevant rules of fair trial. While Ukrainian civilians suspected of collaborating with Russia might not qualify as “protected persons” under the Fourth Geneva Convention when falling into the hands Ukraine’s forces, they are entitled to the “fundamental guarantees” of international humanitarian law, including the right to a fair trial. The European Convention on Human Rights is also applicable in the trial of suspected Ukrainian collaborators, or indeed of any Russians for that matter.
In collaborator trials, concerns have arisen in the past with regard to retroactivity and vaguely-defined offences, while sterner sentences have been handed down to collaborators than those on the opposing side accused of war crimes. Ukrainian civil society has addressed shortcomings in Ukraine’s new laws and sought to explain how citizens can avoid being implicated in the offence of “aiding the aggressor state”.
With news accounts of Ukrainian partisans “doling out their own justice”, the question also arises of the lawfulness of killing collaborators during situations of armed conflict. While resistance fighters in many situations of armed conflict may have found it easier to direct attacks at local collaborators than against the better-armed armed forces of the occupying power, this seems less the case in the Ukrainian context: “Those deemed guilty of treachery have been shot, stabbed, blown up, poisoned and hanged, illustrating the ruthless and lethal determination of those hunting them down”. Some, but certainly not all of those killed, seem to have served in a military capacity.
International humanitarian law dictates that unless Ukrainian collaborators have joined or are fighting alongside with Russian forces, or are directly participating in hostilities in other ways, then they are not a legitimate target for lethal force. Equally, Russian forces that kill Ukrainian collaborators when they have “no further use for them” would be committing war crimes.
Staying the hand of vengeance in the face of acts of betrayal that may have furthered Russia’s aggressive war and its unlawful annexationist policies in Ukraine may be easier said than done. But thus far the Ukrainian authorities seem mostly determined to submit alleged collaborators “to the judgment of the law”, as is required by applicable international law standards. Establishing the facts, assigning responsibility and punishing appropriately may allow for a coming to terms with an uncomfortable aspect of armed conflict in a region where past collaboration has cast a long shadow.