“De-Communization Laws” Need to Be Amended to Conform to European Standards

On April 9, 2015 the Ukrainian parliament by a comfortable majority adopted four laws that have become collectively referred to as de-communization laws. Objections to the law have varied from hopelessly simplified rhetorical battles along the lines of “the laws are falsifying and re-writing “true” history/the laws are liberating “true” history from the clutches of the Soviet propaganda,” to the identification of specific troubling consequences of these laws.To truly comply with the European practices, the laws dealing with totalitarian regimes and fighters for independence ought to be amended in a way that actions defined by inherently ambiguous terms (“denial of the criminal nature of the regime,” “denial of the legitimacy of the struggle for independence,”  “information aimed at justifying” regimes, etc) are not made punishable offenses, whether administrative or criminal.

On April 9, 2015, the Ukrainian parliament by a comfortable majority adopted four laws that have become collectively referred to as de-communization laws. These are law no. 2538-1 “On the legal status and honoring of fighters for Ukraine’s independence in the 20^th century,” law no. 2558 ‘On condemning the communist and National Socialist (Nazi) totalitarian regimes and prohibiting propaganda of their symbols,” law no. 2539 “On remembering the victory over Nazism in the Second World War’, and law no. 2540 “On access to the archives of repressive bodies of the communist totalitarian regime from 1917-1991.” The laws were adopted without public or parliamentary debate (being submitted to the parliament only on a few days prior and adopted in the first and immediately in the final reading), and immediately after their adoption have under criticism from a variety of fronts – from Russian Foreign Ministry to the Communist party leaders and former Party of Regions/now Opposition Block members, to Ukrainian human rights groups, Ukrainian historians, and western experts on Ukraine who have written a collective open letter calling on President Poroshenko to veto two of the four laws (on the legal status of fighters and on the totalitarian regimes).

Objections to the law have varied from hopelessly simplified rhetorical battles along the lines of “the laws are falsifying and re-writing “true” history/the laws are liberating “true” history from the clutches of the Soviet propaganda,” to the identification of specific troubling consequences of these laws.  Among the latter, critics have noted the law’s potential to stifle open debate over history by introducing legal punishments for publicly expressing “wrong” opinions about the communist period or about fighters for Ukraine’s independence.  Dangers of aggravating domestic divisions in Ukraine by alienating the south and east of the country, questionable choice of organizations included and not in the designation of “fighters for Ukraine’s independence,” and potentially significant costs associated with the renaming and removal of many thousands Soviet-era monuments and place names have also been noted by critics. The President so far has neither signed nor vetoed the law, while the parliament already introduced amendments to the law on totalitarian regimes relaxing some of the prohibitions on the use of the symbols of the communist regime in particular. The debate over the laws is far from over, and can be expected to heat up as the anniversary of Victory Day approaches.

The fundamental dilemma with decommunization in Ukraine is how to undo the legal, institutional, and mnemonic legacy of the Soviet era that mandated and institutionalized one “correct” interpretation of the past without repeating Soviet approach of mandating one “correct” interpretation and punishing public expressing of dissenting viewpoints.  The intention to deconstruct political and legal memory regime created during the communist era is not by itself objectionable, and critics of Ukraine’s decommunization drive should be cognizant of the fact that simply calling for rejection of these laws does not leave Ukraine with a neutral or clearly morally preferable legal and public environment, but with a legal and institutional regime created in the Soviet period that has little changed since then. At the same time, if decommunization in Ukraine is to bring the country closer to Europe, the law condemning totalitarian regimes must comply with the standards reflected in the European resolutions condemning communism and Nazism. These resolutions are cited in the law on totalitarian regimes as having inspired the Ukrainian legislation, but, as this analysis will show, Ukrainian laws do not follow the letter and the spirit of either the principles contained in these European instruments, or of the decommunization legislation adopted in several other former Communist states.

More specifically, three of the four Ukrainian laws (on totalitarian regimes, on the fighters for independence, and, to a lesser extent, on the victor of Nazism) fall short in two respects. First, they do not move Ukraine away from the the highly politicized approach to history of the Soviet era, when the government mandated one correct interpretation of history, designated heroes and villains, and reduced historical complexities to the black and white picture of ideologically correct good “ours” versus ideological enemy “other.”  Second, the laws do not reflect European standards of memorialization policies where honoring civilian victims of political violence holds center stage, and murder and brutalization of civilian population are condemned, regardless of the goals for which they were carried out.  Ukrainian legislators, either on their own initiative or on the initiative of the President, should therefore further amend the laws to make decommunization conform to the European democratic standards.

Open debate about the past, not state-mandated correct memory

The Ukrainian law on totalitarian regimes refers to European documents, such as resolutions adopted by the Parliamentary Assembly of the Council of Europe (COE), the Organization for Security and Cooperation in Europe (OSCE), and the European Parliament, but the thrust of these resolutions is quite different from the thrust of the Ukrainian law. The Ukrainian law on the condemning communist and Nazi totalitarian regimes criminalizes “propaganda” of communist and Nazi regimes, which it defines, among other things, as “public denial of the criminal nature of the communist and Nazi regimes, … spreading of information aimed at justifying criminal nature” of these regimes, and also production, dissemination, or public use of products that contain symbols of communist and Nazi totalitarian regimes.  Propaganda of totalitarian regimes and spread of its symbols is to be punishable by 5 to 10 years imprisonment. The law on remembering the victory over Nazism in the Second World War prohibit “falsification of the history of the Second World War 1939-1945 in academic studies, teaching and methodological literature, textbooks, the media, public addresses by representatives of the authorities, bodies of local self-government and officials.”  The law on the legal status of fighters for Ukraine’s independence legally forbids “public display of disrespectful attitudes” to the people defined as fighters for Ukraine’s independence, as well as “public denial of the legitimacy of the struggle for Ukraine’s independence in the 20^th century.” Those engaging in such acts are to be punished “in accordance with current Ukrainian legislation.”

The problem with these provisions is that terms such as “public denial of the criminal nature of the regime,” “denial of the legitimacy of the struggle for independence,”  “information aimed at justifying” regimes, “disrespectful attitudes,” or “falsification of history” are legally imprecise and leave open the question of who is to say just what specific actions constitute “denial,” “justification,” “falsification”, or “disrespectful attitudes.”  According to one of the developers of the laws such determinations are to be done by courts, but asking a court to define what constitutes falsification of history, for example, hardly solves the problem since the question is inherently political rather than juridical. The inherent vagueness of what constitutes prohibited behavior, and the shadow of legal action, including imprisonment, for publicly expressing wrong opinions, can only stifle historical research and public discussion of the past.  In response to such criticisms proponents of the laws have claimed that scholarly research is exempt, but according to the publicly available text of the totalitarian regimes law on the Rada website, exemptions detailed in Article 4 para 3 apply only to the use of symbols of totalitarian regimes in scholarly research, and only on the condition that the research “does not deny criminal nature” of the totalitarian regimes and research results are made public “in a manner not prohibited by the Ukrainian legislation.”  This again raises the question what kind of research will or will not be interpreted as “denying criminal nature” of the past regimes, and who’s to make such a determination. It likewise remains unclear what would constitute a prohibited and not prohibited way to disseminate research results, and scholarly research is not exempt from being designated as regime “propaganda” and associated criminal consequences.

By contrast, the European resolutions do not ban pubic expression of opinions about communist and Nazi regimes or “falsification” of history, but instead advocate open historical debate. Thus, the 2006 COE Assembly resolution condemning crimes of totalitarian communist regimes (not the nature of the regimes) advocates for historical knowledge, seeing “the awareness of history [as] one of the preconditions for avoiding similar crimes in the future.” The 2009 OSCE Parliamentary Assembly resolution likening and condemning Stalinism and Nazism noted “that an honest and thorough debate on history will facilitate reconciliation based on truth and remembrance.” The 2006 COE Parliamentary Assembly resolution calls on member states to “clearly distance themselves from the crimes committed by totalitarian communist regimes and condemn them without any ambiguity.” The resolution thus condemns the crimes committed by the communist regimes, but, unlike the Ukrainian law, neither define the “nature” of the regimes, nor stipulates that individuals who held certain positions in the communist regimes are to be condemned by the mere fact of being officials in these regimes. The Ukrainian law on totalitarian regimes, by contrast, bans among other things media outlets from spreading information that “creates positive image of persons” who worked in state security organs or occupied leading positions in the communist party starting from the position of the rayon committee secretary and higher, unless their activities contributed to “the development of Ukrainian science and culture.” Again, no exceptions are made for academic research, so both scholars and the media outlets that may report on scholarly research will be left to wonder whether particular research findings may be construed as “creating positive image” of communist-era officials, and therefore a legally banned activity.

The European resolutions also do not conceive the dismantlement of communist regime legacy in terms of the mandatory removal of monuments to communist party leaders or renaming of streets and localities, as the Ukrainian law on totalitarian regimes does.  Instead, the 1996 COE Parliamentary Assembly resolution on measures to dismantle the heritage of the former communist regimes defines this heritage not in terms of monuments, street names, or other visible markers of communist past but as “(over)centralization, the militarization of civilian institutions, bureaucratization, monopolization, and over-regulation; … collectivism and conformism,  …blind obedience and other totalitarian thought patterns.”  Conversely, measures to dismantle the communist regime heritage are “separation of powers, freedom of the media, protection of private property and the development of a civil society, … decentralization, demilitarization, demonopolization and debureaucratization.”

The 2009 COE resolution “Attitude to memorials exposed to different historical interpretations” similarly advocates very different approach to monumental legacy of the previous regimes from the one taken in the Ukrainian law. The Ukrainian law mandates removal of the monuments to communist era actors and events by orders of the local or, failing compliance, central government organs within 3 to 6 months period. Instead, the COE resolution recommends that member states “initiate the broadest possible discussions between historians and other experts on the complexity of the historical background of these monuments, their meanings to different segments of the societies, internally and, if appropriate, internationally.” The resolution also urges search for broad societal consensus over the fate of the monuments, positing that “it appears vital to seek consolidation of all major political forces representing different approaches when discussing the fate of such memorials, with a view to reaching sustainable final decisions based on the opinion of the majority.”

To truly comply with the European practices, the laws dealing with totalitarian regimes and fighters for independence ought to be amended in a way that actions defined by inherently ambiguous terms (“denial of the criminal nature of the regime,” “denial of the legitimacy of the struggle for independence,”  “information aimed at justifying” regimes, etc) are not made punishable offenses, whether administrative or criminal.  The prohibition on “falsification of history” should also be removed from the victory commemoration law, while on the issue of the renaming on localities and removal of monuments, at a minimum the time period for this process should be extended and the process itself made subject to broad local discussions, and preferably local referenda (that could take place simultaneously with the local elections scheduled for later this year, for example).

Characterization of past regimes and past struggles for political goals constitutes an expression of political attitudes.  And while it’s true that a number of other post-Soviet states such as the Czech Republic, Poland, Hungary, and the Baltic states also have laws on the books condemning communist regimes, not all of these laws introduce legal punishments for public expression of positions different from the one stated in the law.  To take one example, the Czech law, recognized as among the most, if not the most, radical decommunization laws in the former Soviet block (July 1993 law on the Illegality of, and Resistance to, the Communist Regime), defines the Czechoslovak communist regime as “criminal, illegal and abhorrent” (Article 2 para 1), declared the Czechoslovak communist party to be a “criminal and abominable” organization (Article 2 para 2), and recognizes resistance to the regime as “legitimate, just, morally justified and worthy of respect” (Article 3).  However, the Czech law does not contain any clauses banning or outlawing different public characterizations of the communist regime or of the resistance to the regime.  If Ukrainian lawmakers decide to express a political position through decommunization laws, they should do so without banning or criminalizing alternative political interpretations of the past, including the Soviet past.

Honoring civilian victims, not perpetrators of civilian deaths

The second dimension on which Ukrainian laws’ conformity to the European standards and practices needs to be assessed is the European principles of memorialization whereby honoring civilian victims of armed violence holds center stage, and blood crimes against the civilian population are condemned, regardless of the goals for which they were carried out. This criteria pertains most directly to the law on the legal status and honoring of fighters for Ukraine’s independence. This law grants legal status of “fighters for independence of Ukraine” to member of a host of organizations, including member of the Organization of Ukrainian Nationalists (OUN) and the Ukrainian Insurgent Army (UPA), and legally forbids “public display of disrespectful attitudes” to these people or “public denial of the legitimacy of the struggle for Ukraine’s independence in the 20^th  century.” By granting legal status and mandating respectful attitudes to all members of these organizations the law suffers from the same flaw as the 1993 law on the status of Soviet veterans. It makes a particular political allegiance (in this case to the cause of Ukrainian state independence) sufficient for legal recognition and honorable treatment, regardless of whether the individuals honored are guilty of the murder of civilians or other war crimes.

The 1993 law on the status of war veterans and guarantees of their social protection reflected Soviet ideological dogmas by defines as veterans and combatants all members Soviet armed formations, including the security and interior ministry troops, without exempting from status and state benefits either formations or individuals guilty of murder and brutalization of civilian population in the process of establishing Soviet rule in Ukraine. At the same time, the 1993 veterans law recognizes (article 4, part 16) as veterans and combatants only those member of the UPA who did not fight the Soviet regime after 1944, and “who did not commit crimes against peace and humanity.” There was thus both an ideological standard (one needed to have fought for, and not fought against, the Soviet state to be legally recognized as a veteran), and a double moral standard (committing crimes against humanity excludes from status only member of the UPA but not members of the pro-Soviet armed formations) in the veterans law.

The newly adopted law on the legal status and honoring of fighters for Ukraine’s independence suffers from the same flaw. While some historians and activists in Ukraine deny the role of members of the OUN and the UPA in war crimes, voluminous historical research produced through the peer-review process in the west has documented such involvement. The naked truth is that members of the OUN and UPA both fought bravely for the goal of Ukrainian state independence, but many members of these organizations also committed war crimes by participating in the Holocaust and the extermination of Polish civilians. And while it is appropriate for an independent state to acknowledge those who fought for state independence, it is not appropriate for a democratic state to attempt to white wash the historical record and penalize public discussion of this record, or to honor those guilty of war crimes.  The legislators should amend both the 1993 veterans law, and the law on the status of fighters for Ukraine’s independence, by exempting from legal recognition those who are guilty of war crimes and crimes against humanity.  Given that few subjects of these laws are still alive the measure would be mostly symbolic, but it will be sending the right message that Ukraine, as a democratic state, stands by the principle that those who murder of civilians for political purposes, regardless of what these purposes may have been, cannot be honored in a democratic state.

Such an approach would also be in line with the principles contained in the European resolutions, such as the 2006 COE Parliamentary Assembly resolution condemning crimes of totalitarian communist regimes which places emphasis on condemnation of the crimes and human rights violations perpetrated by such regimes and on honoring victims of regimes’ violence by extending “sympathy, understanding and recognition to the victims of these crimes.”  The exclusion of perpetrators of blood crimes against civilians from legal status and state recognition would also be in line with the policies of other former communist states. Thus, the January 1991 Polish law “On combatant and certain victims of wartime and post-war repressions” excludes from the eligibility for status of combatant or victim of repression “those who committed murder or other crimes against civilians in the period to 31 December 1956 in connection with activities recognized as combatant activities or of equal status in the understanding of the Act, for which they had been condemned by a final and binding court sentence.” Similarly, section 4 para 4 of the 2011 Czech law “On the participants in anti-communist opposition and resistance” excludes from status of a participant in the anti-communist opposition and resistance those whose “involvement in the anticommunist opposition and resistance was led by condemnable motivation and/or who, during such an activity, acted in a condemnable manner leading towards the denial of the values of freedom and democracy, or acted in an especially condemnable manner leading towards the denial of individual principal human rights while such actions could be avoidable as part of acting against the communist regime in Czechoslovakia.”

Concluding observations, or how not to turn a window of opportunity into a trap

The victory of the Euromaidan and the outcome of the October 2014 legislative elections for the first time made it politically possible in Ukraine to legally undo Soviet legacy in the sphere of historical memory.  If previous legislatures were nearly evenly split between forces that saw Ukraine’s future tied with Russia and those who wanted Ukraine to break with its Soviet past and history of Russian domination, the October 2014 elections for the first time in post-Soviet Ukrainian history produced the parliament where supporters of a pro-Russian course are in a lopsided minority.  As recently as October 2014, seven attempts to put on the agenda draft law on recognizing the OUN and the UPA fighters as combatants in WWII failed in the Rada, but this April a package of decommunization laws, including the law recognizing the OUN and the UPA members as fighters for Ukrainian independence, was easily adopted by a comfortable majority.  In the year since Euromaidan, public opinion in Ukraine has also became decidedly less pro-Russian, the change aided by Russia’s aggression against Ukraine’s territorial integrity.  At the same time, citizens of Ukraine remain divided on issues such as attitudes to the Soviet era and the OUN and the UPA, where regional differences between the south and east on the one hand, and the west and center on the other, remain prominent.  How decommunization laws will go down with the society is an open question. Given the ongoing Russian aggression and Russia’s opposition to these laws, it is possible that the laws will produce less opposition than they would have just a few years ago. At the same time, by getting away with laws that threaten historical research, penalize public dissent, and white wash historical record under the guise of ridding the country of the communist totalitarian legacy the Ukrainian lawmakers will be doing a disservice to the prospects of democratization and true decommunization in Ukraine.