Thursday, February 21, 2019 - 07:08

Source: «Critical solutions»,

On Shoddy Laws and Insensitive Critics

May 2015

Not long after the “decommunization” laws were passed, I realized that this was yet another issue I would find it hard to define my position on.  On Facebook, some intelligent people were complaining that the laws were passed without appropriate debate and honing, while others – not dumb themselves – replied that the debate had already been going on for 25 years, and it was long past time to act.  I agreed with both sides.  Meanwhile, pressing matters did not give me a chance to delve into the texts of the laws themselves right away and form my own opinion, plus at the beginning no one was asking me what I thought (which made me nothing but glad, because I wouldn’t really have known what to say).

But not everyone was as uncertain and slow to react as I was. A mere week after the laws had been passed, an open letter from a number of Western and Ukrainian scholars to the President and Chairman of Parliament [1]was published, calling for a veto of two of those laws, which recognized certain organizations as fighters for independence and condemned the Communist regime just as the Nazi regime.  I was struck both by the letter’s categorical evaluation of these laws and the historical phenomena they addressed, and by the list of signatories, among whom were quite a few people from whom I did not expect such a categorical statement.  I found it regrettable that so many specialists and respectable people, in particular some of my close acquaintances, had signed a text that firmly objected to the state recognizing Ukrainian Insurgent Army (UPA) (it was precisely UPA and related to it Organization of Ukrainian Nationalists (OUN) that the letter’s signatories did not want to see in the list of recognized fighters for independence) and condemning the Communist regime – i.e., steps that a majority of participants in the Maidan and its supporters indisputably expected from the new regime.  My regret grew when the scholars’ letter was picked up by numerous media outlets, where it was presented more or less as the unanimous opinion of the world scholarly community, which the Ukrainian authorities would certainly have to listen to.

At first, the only person to publicly express disagreement with this letter [2] was, as far as I know, Volodymyr Viatrovych, the head of the Institute of National Memory; his persuasiveness was undermined not only by his direct involvement in the laws’ creation, but also his unwillingness to admit their flaws, which are obvious to the majority of thoughtful readers.  Even Krytyka’s call to join the discussion got more of a response from people who had signed the letter than from their opponents.  At the same time, the lack of an authoritative rebuttal of a position that was unpalatable to them prompted some Ukrainian authors to attribute dishonest motives to the letter’s signers, above all the notion that they were carrying out the orders of political forces hostile to Ukraine.  This pitiable paranoia, which has proved attractive to many readers of such accounts, has forced me to formulate my own position.  I want to demonstrate that it is possible to disagree on principle with the letter’s signers without denying the blatant flaws of the laws that have been approved by the Ukrainian Parliament, Verkhovna Rada.

I am not going to say much about the laws themselves, because on that subject a great deal has already been said convincingly by others.  This has been done most comprehensively by Volodymyr Yavorskyi, who analyzed the law on condemning the Communist and Nazi regimes [3] in the context of European standards of human rights and similar statutes adopted by other post-Communist states, some of which were revised precisely from the perspective of those European standards.  Yavorskyi does not consider restrictions on Communist propaganda – or on propaganda in favor of any other ideology – to be an impermissible infringement on human rights, but he emphasizes that these restrictions must be clearly delimited and in keeping with the threat posed to national security and other people’s rights.  To ensure this, restrictions should apply not to views or symbols, but to particular ways in which they are used.  Thus, he suggested forbidding the use of Communist and Nazi symbols for commercial purposes, but allowing it in scholarly and artistic works; abolishing the restriction on positive assessments of these regimes’ activities in academic writing (the law that was approved only allows for assessments that “do not deny the criminal nature of the regime”); eschewing preventative prohibitions of “criminal” words and symbols in the names or document of political parties and other organizations; and reducing the punishment for totalitarian regime propaganda, substituting a fine for imprisonment.  Furthermore, Yavorskyi pointed out one important problem with forbidding Communist propaganda: while the criminality of Nazi acts was established through judicial channels back at Nuremberg, the lack of a comparable verdict on the acts of Communist regimes means that what is being forbidden is value judgments.  This obviously infringes on freedom of speech.

That freedom of speech is being unacceptably and unproductively limited has been pointed out by other commentators, as well.  In particular, Alexander Motyl, who is generally in favor of the approved “decommunization” package, has written [4] that the prohibition on expressing a “contemptuous attitude” towards recognized fighters for independence “contradicts the very spirit of the law” that recognizes them, as that law was intended to tear down the hegemony of outdated colonialist discourse and “encourage the expression of any opinion on the free market of ideas.” Andriy Portnov, taking a more critical position [5] (video-podcast in Russian), has expressed his amazement that the law on commemorating the victory over Nazism includes the state’s intention not to allow the “falsification of history” without clarifing what will be considered falsification, who will determine it, and how exactly it can be prevented.  Examining all four laws, Portnov points out a concept that lies at their core, namely that there is a (single) correct view on the past which the state can and should inoculate its citizens, who have been spoiled by Soviet propaganda, so that they can be rid of their imperial nostalgia and thus would not fight against their own state in favor of a foreign one.  Portnov quite rightly considers this notion not only contrary to current European approaches to the politics of memory, but also unproductive when it comes to understanding and overcoming the conflict in the Donbas, which is caused far less by different views of history than by the current actions of different elites.  In an analysis that is in line with Portnov’s, Oxana Shevel clearly points out [6] that the laws under discussion, first of all, “do not move Ukraine away from a highly politicized approach to the history of the Soviet era, when the government mandated one correct interpretation of history, designated heroes and villains, and reduced historical complexities to a black and white picture of ideologically correct good ‘ours’ versus ideologically 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.”

How is this reasoned criticism different from the position of the authors of the above-mentioned open letter, who also emphasize above all that the laws contradict “one of the most fundamental human rights: the right to freedom of speech?” In my opinion, the difference lies mainly in two interrelated matters: on the one hand, the categorical rejection of the state recognizing UPA and OUN as fighters for independence, and on the other hand, reservations about unambiguous condemnation of the Soviet regime.  On the one hand, the letter-writers are deeply troubled by the possibility of a ban on public expressions of a “contemptuous attitude” towards two Ukrainian nationalist organizations, one of which “slaughtered tens of thousands of Poles in one of the most heinous acts of ethnic cleansing in the history of Ukraine,” and the other of which “collaborated with Nazi Germany at the outset of the Soviet invasion in 1941” and “took part in anti-Jewish pogroms in Ukraine.” It is not surprising that historians are speaking out against the legislative imposition of a single correct version of the past, which would limit the possibility of publishing other interpretations.  But their thoroughly negative characterizations of UPA and OUN reflect exactly the same division between the good “us” and the bad “them” as in “Viatrovych’s laws,” only along different lines.  At least in the case of UPA, thoughtful historians should take into account not only the murder of Poles, but resistance to Nazi and Soviet occupiers; and scholars of the politics of memory should recognize that it was precisely this remarkably massive, long-lasting, and successful resistance that makes UPA fighters heroes for increasingly many Ukrainians, including those who do not share the principles of integral nationalism and who sincerely condemn the practice of ethnic cleansing.  Moreover, the new Russian occupation has made the need for armed resistance relevant again; this has drawn attention to the most famous example of such resistance in Ukrainian history, and thus over the past year the attitude towards UPA has improved appreciably in every region except the Donbas. 

Of course, scholars should not let politicians, journalists, and all Ukrainian citizens forget that, along with (and occasionally instead of) resistance to the occupiers, some UPA fighters committed violence against the civilian population and opponents within their own ranks, and therefore not everyone belonging to this organization was a hero or even a good human being.  But this aspect of their activity, shameful albeit typical for military units, must not supersede the positive image of the insurgent army as a manifestation of the struggle of a stateless nation against incommensurably stronger powers.  Notwithstanding  the effort of prejudiced scholars in the West and like-minded Ukrainians to present the entire history of the Ukrainian nationalist movement as a story of antisemitism, ethnic cleansing, and collaboration with the Nazis, ever more Ukrainian citizens understand that movement as a struggle for Ukrainian independence, comparable to nationalist movements in many other countries that found themselves under imperial rule or foreign occupation.  It is true that Ukrainian intellectuals and politicians may not gloss over the deplorable aspects of the complicated history of this movement or simplify it to a primordial conflict between two once-and-for-all camps of “us” and “them.” But neither do they have the right to deprive the nation of its heroes – who, of course, are not only nationalists, and not only ethnic Ukrainians.  At the same time, as Shevel wisely emphasizes, the politics of memory must pay at least as much attention to the victims, including the victims of individual criminal acts committed by those organizations that the majority of the population would prefer to deem heroes.  Foreign researchers can be of much help to their Ukrainian colleagues in carrying out this difficult task, if they combine a critical attitude towards nationalist narrow-mindedness with sensitivity to the national sentiments and even inferiority complexes of a nation whose post-imperial emancipation is complicated by a new imperial threat.  Unfortunately, the open letter does not demonstrate such sensitivity.

The same can be said of evaluations of the Soviet period, the complete condemnation of which would – according to the authors of the letter – “have unjust and incongruous consequences.” Obviously not everything about the policies of the Communist regime in general and with regards to Ukraine in particular was negative, and many of its actors genuinely wanted to do Ukraine good.  But the exact same thing could be said about every regime in human history, including the Nazi regime, at least with regards to Germany.  Individual well-intentioned or beneficial acts cannot cancel out the overall inhuman and anti-democratic nature of the Soviet totalitarian regime and its numerous crimes against the Ukrainian nation in particular.  This is precisely why the Ukrainian state must firmly distance itself from the ideologies and practices of that regime, as Central European and Baltic states have done with regards to that regime and its local satellites, and as postwar Germany distanced itself from the Nazi regime.  The need for this demarcation is particularly urgent now, when Russian authorities, reviving the Soviet regime, are infringing on the very existence of Ukraine as an independent democratic state.  In no way does this question the significance of the victory over fascism, the decisive contribution to which was made not by the Soviet regime, but the nations under its rule, including the Ukrainian nation. 


Not all Ukrainian citizens will agree with such a resolute demarcation, and the Russian government and its sympathizers in the West will not hesitate to use it to sow discord amongst Ukrainians and to discredit post-Maidan Ukraine in world public opinion.  The divisive consequences of the new laws are particularly emphasized by one of the signers of the letter, David Marples, in an article that defends the position expressed in the letter [7]against Viatrovych’s accusations of bias.  In his opinion (I don’t know if it is shared by all the letter’s signers), “one can surely remove Lenin statues, which frankly are an eyesore,” but “one cannot force people to change long-held views overnight or ignore their opinions simply because we disagree with them.” I don’t understand how removing monuments to the founder of the Soviet regime differs from condemning the regime itself: neither action is supported by the entire population, but both are necessary as symbolic markers of state policy and as signposts for society’s future development.  At the same time, condemning the Communist regime is no more divisive than condemning Nazism, which German authorities after World War II only undertook under pressure from their occupiers and only to the degree that was demanded of them. Fuller and more decisive denazification was only undertaken two decades later, when a new generation had arisen, one which did not have personal memories of the well-being and might, as it were, during the times of the great Hitler.  Ukrainians have waited just as long – and now we are merely taking steps that other countries (less divided or more dependent on outside forces) took immediately after the collapse of totalitarian regimes. 

It is difficult to shake the feeling that the emphasis placed by the authors of the open letter on the divisive impact of condemning the Communist regime is at least in part connected to their rejection of a view that rests at the heart of the laws under discussion: that Communism and Nazism were equally criminal.  Marples says that, although he does not share this view, he considers it “logical that citizens often adopt such a perspective” in countries that endured Communist rule, including Ukraine.  I don’t know to what degree the letter’s signers share this logic, but it strikes me that they did not seem to protest publicly against the neo-Soviet tendencies of the Yanukovych period, or devote the same careful attention to Ukrainian neo-imperial Communists that they pay to more or less radical nationalists.  Moreover, during Yanukovych’s brutal assault on Ukrainian democracy, some of them believed that the main threat to that democracy was not Yanukovych, but nationalists from the “Svoboda” Party.  During the Euromaidan, responsible scholars of Ukrainian history and politics tried more or less actively to convince world public opinion of the opposite hierarchy of threats, but the current letter demonstrates that the phantom threat of rehabilitating Nazism in Ukraine continues to worry many Western scholars much more than the real danger of preserving the legacy of Communism.

In addition to their rejection of the equivalency of Communism and Nazism, the letter-writers’ reservations about proposed changes to the politics of memory are also caused, in my opinion, by a lack of understanding about the negative consequences of the status quo, which, too, runs contrary to the family reminiscences and ideological convictions of a significant number of citizens.  It is possible that keeping the old policy would have led to fewer public protests than changing it.  But it would hardly have prompted fewer private objections, disappointments, and suffering among people who think that the state has ignored them for a long time and who hope that the new regime will finally pay attention to their opinions.  I completely agree with Shevel that “simply calling for rejection of these laws does not leave Ukraine with a neutral or clearly morally preferable legal and public environment, but instead with a legal and institutional regime created in the Soviet period that has changed little since then.”  At the same time, any change should affect not only declarative evaluations of particular periods in the past, but also the ways it is represented in various domains – from monuments to the fallen heroes and victims to material provisions for the veterans who are still alive – and, of course, the manner in which the politics of memory are implemented.  So, for example, recognizing UPA soldiers as fighters for independence does not get rid of the policy approved in the early 1990s, which guarantees benefits to all Soviet veterans (including the secret police, who killed insurgents and – having changed into partisan uniforms – civilian residents of the Western provinces), while UPA veterans are granted these benefits only if they fought against the Nazi – but not Soviet – regime and “did not commit crimes against peace and humanity.” Meanwhile the law on condemning totalitarian regimes calls for the Soviet practice of the center dictating a model of memory for all parts of the country, a practice from which post-Soviet Ukraine had already partially moved away.  So what we need is not less demarcation from the Soviet regime, as the letter’s signers propose, but more, in essence rather than simply form.

As for the laws passed on April 9 – shoddy and to a large degree un-European – the President should, in my opinion, veto them, point out the articles that need to be revised and ask for new versions to be prepared as quickly as possible.  These new versions should take into account the points raised in public discussion.  Although a good number of Ukrainians will inevitably perceive this veto as a rejection of decommunization, it is better to carry out this important task a bit later, but more in line with the declared goal of moving closer to Europe.  At the very least because discrepancies will not only sabotage the laws, but will result in them being overturned in court – if not in our Constitutional Court, then in the European Court of Human Rights.

Authorized translation from Ukrainian. KRYTYKA is deeply grateful to Kate Younger for her volunteer work on this translation.

Translated by: 
Kate Younger