Keywords

This chapter analyses the legislation of historical memory in Ukraine focusing mainly on the post-Maidan era, but addressing the notorious “de-communization laws” in the broader historical perspective of the post-Soviet transition. While there are some recent publications on various aspects of mnemonic legislation in Ukraine,Footnote 1 a systematic account is still missing. The so-called de-communization laws adopted by the Ukrainian parliament in 2015 have met with a lot of domestic and international criticism; they have also polarized the academic community and the Ukrainian public opinion. Some aspects of the new legislation have provoked concerns regarding the freedom of academic research and freedom of media as well as the potentially divisive and excluding features of the new official historical narrative. The proponents of the de-communization laws, in turn, refer to the Russian hybrid aggression and the need for a strong national identity. They use this argument as an additional justification for a long overdue legislation in a country which has in fact hardly ever dealt critically and in a systematic way with its Soviet past. Legislation of historical memory, a rather controversial issue in the West, is thus even more disputed in war-torn Ukraine which is facing the difficult challenge of preserving both democratic freedoms and national sovereignty.

Imposing a single historical narrative on a culturally diverse country with distinct regional identities and collective memories, not to mention the conflict in Donbas, may not be the best way to promote national reconciliation. At the same time, as many in Ukraine would agree, the Maidan has opened a historical window of opportunity for comprehensive de-communization and for leaving Russia’s cultural and political orbit. Denouncing Soviet totalitarianism and commemorating its victims strengthens Ukraine’s strategic choice in favour of Europe. The wording of the new legislation is, however, often reminiscent of the Russian attempt to protect the “victory in the Great Patriotic war” from “falsifications.” In any case, Ukraine’s troubled transition to democracy, further complicated by the armed conflict, can serve as a perfect testing ground for different conceptual approaches to the issue of legislating historical memory, from post-colonialism to transitional justice to mnemonic security.

The first section of this chapter positions Ukraine in a comparative Eastern European perspective and in the broader geopolitical context of competing Western and Russian politics of legislating history. The second section offers a brief overview of the history of mnemonic legislation in Ukraine, with an emphasis on the criminalization of statements about the past. The third and fourth sections address the most recent wave of mnemonic legislation in Ukraine—the de-communization laws of 2015—in the new political, cultural, and social context of Ukraine after the Maidan, the annexation of Crimea by Russia and the military conflict in Donbas. I will analyse the public perception of the de-communization laws, the political and intellectual debates around them (both domestic and international), and the responses from the regions in several overlapping contexts which include: (a) reconceptualization of the country’s national identity, its pro-European choice and political as well as cultural distancing from Russia termed by some observers as “decolonization”; (b) democracy, freedom of speech and human rights vs. national security, and more specifically, “mnemonic security”; (c) historical justice for victims and perpetrators of communist crimes vs. truth-seeking, justice and reconciliation in the current Ukrainian conflict.

Ukraine in the (Eastern) European Context

The dramatic history of the twentieth century in the Ukrainian lands might excite scholars interested in transnational, regional, and entangled history but it poses a serious challenge for those who believe that nation and state building requires a single incontestable historical narrative accepted by all citizens. Attempts to create an independent state in 1917–1921 ultimately failed, and the Soviet regime was established over much of today’s Ukrainian territory, while its western borderlands became parts of interwar Poland, Czechoslovakia, and Romania. In the 1920s, the affirmative cultural politics of the Ukrainian Bolsheviks led to a short period of “national renaissance,” which ended abruptly with mass political repressions, forceful collectivization, and the Great Famine of 1932–1933, known in contemporary Ukraine as the Holodomor. During World War II, millions of Ukrainians fought in the Red Army against Nazi Germany. At the same time, in Western Ukraine the nationalist underground (Organization of Ukrainian Nationalists, OUN) and its military wing, the Ukrainian Insurgent Army (UPA), pursued what appeared to be another chance to establish a Ukrainian state. At the beginning of World War II, the OUN collaborated with Nazi Germany, and the UPA, which was fighting against the Red Army, committed crimes against the Polish and Jewish populations. The Volhynia massacre and the involvement in the Holocaust overshadow the popular memory of the UPA as fighters for the national cause, making their political rehabilitation controversial.

After World War II the nationalist underground was crushed by the Soviet regime, with the result that the newly acquired western Ukrainian territories were Sovietized and the UPA was stigmatized by Soviet propaganda as Nazi criminals and “traitors”. The Soviet Ukraine shared with Russia and other Soviet republics two powerful official myths: the myth of the October Revolution 1917 and that of the Great Patriotic War. And while the former hardly survived the end of the Soviet Union, the latter has been deeply rooted in Soviet collective memory, especially in Eastern and Central Ukraine. Re-appropriated by the post-Soviet political elites, it became the main symbolic bond connecting Ukraine to Russia where the “victory over fascism” became the main pillar of its post-Soviet national identity. Finally, and not unimportantly when it comes to understanding the impetus to enact de-communization laws and their political legitimation, this myth was instrumentalized by Moscow in winter and spring 2014 in order to mobilize the Russian-speaking population in Crimea and Donbas against the “fascist” Maidan and later the Kyiv “junta.”Footnote 2

Back in 1991, with the collapse of the Soviet Union, independent Ukraine faced multiple challenges: not only did it have to implement market reforms on the ruins of the planned economy, but it also had to build new state institutions and to integrate former Soviet citizens with diverse ethnic, linguistic, and cultural backgrounds into a viable and coherent national community. As in other countries of Eastern Europe, legislating historical memory in Ukraine was used as an instrument to deal with the legacy of the Soviet regime and to build a new democratic system.Footnote 3 But as was common elsewhere in the post-Soviet space, priority was given to constructing the new national identity around narratives of suffering, heroic myths, and symbols of historical continuity.Footnote 4 As argued by some observers,Footnote 5 in Ukraine the national democratic opposition to the communist regime failed to seize power, instead making a deal with the former communist nomenklatura (the so-called sovereign communists), providing the latter with national symbols and historical narratives in exchange for being accepted as junior partners. The legislation of historical memory in Ukraine, at least until the Orange Revolution in 2004, reflected this compromise as it aimed at constructing a new “national memory” rather than dealing critically with the Soviet past. This compromise was largely limited to narratives and historical figures that had already been included in the Soviet canon and thus was broadly accepted throughout Ukraine. Issues such as the Holodomor and the role of the UPA remained politically controversial and were polarizing Ukrainian political elites and society.

In search of a new state identity, Ukraine, unlike most countries of East Central Europe and the Baltic states, could not draw on political and legislative traditions of an interwar statehood. In contrast, for example, one can consider the case of Lithuania, which, while still being a part of the Soviet Union, adopted some transitional legal measures aimed at “establishing the illegality of the Soviet occupation and creating a basis for reconstituting Lithuania’s sovereignty.”Footnote 6 In 1989, the Lithuanian Supreme Council declared the occupation and annexation of Lithuania in 1940 to be international crimes; and in 1990, the Constitution of 1938 was reinstated (albeit briefly) with the purpose of establishing legal continuity between the interwar state and post-Soviet Lithuania. Independent Ukraine borrowed its new state symbols from the short-lived Ukrainian People’s Republic (1918–1921), but what mattered legally was the Law “On the Legal Succession of Ukraine,”Footnote 7 adopted by the Ukrainian parliament on 12 September 1991, that declared independent Ukraine the legal successor of the Ukrainian SSR. The post-Soviet Ukraine thus “sought to reconcile both political traditions, but the crisis of legitimacy and the Russian aggression in 2014 raised anew the question of whether Ukraine had gained or restored its national independence back in 1991.”Footnote 8

More than 70 years of Soviet rule in Ukraine made it difficult to follow the Baltic model and externalize the communist regime as a result of a foreign “occupation”. The idea found some resonance in Western Ukraine, which was fully incorporated in the Ukrainian SSR only after World War II. But in general, independent Ukraine as it emerged in 1991, with its state borders, industrial economy and urbanized society, was largely perceived as a product of the “Soviet century”. It was the fall of the Moscow-backed Yanukovych regime and the Russian aggression in 2014 that helped legitimize the discourse of “Soviet occupation,” making its appropriation by the post-Maidan Ukrainian government possible. Since then, the Ukrainian Institute of National Memory has been promoting a new official narrative of Ukraine’s century-long fight against the Soviet empire. Moscow’s open questioning of the legitimacy of the Ukrainian state at the peak of the 2014 crisis contributed to the ontological anxiety of the Ukrainian political elite and opened the way to a new mnemonic legislation, namely the “de-communization laws” of 2015.

In the context of Ukraine’s competitive politics, the legislation of historical memory has been an instrument used to gain electoral support, to create political alliances and to denounce opponents. From the early 1990s, Ukraine’s relative political pluralism (especially in comparison with other post-Soviet countries) allowed history to become a matter of public politics, thus inevitably opening it to instrumentalization and political manipulation.Footnote 9 Since the early 1990s, the Ukrainian parliament has been an arena of heated debates about Ukraine’s history, and especially since the mid-2000s, presidents, political parties, and deputies have been prolific in drafting memory laws. The legislation of historical memory in Ukraine should also be considered in the context of the country’s political system, which has been under permanent re-construction. The constitutional reform of 2004, which transformed Ukraine from a semi-presidential to a parliamentary-presidential republic, was revoked in 2010 under Yanukovych and then restored in 2014. In any case, Ukrainian presidents have played an important role in symbolic and historical politics, just as presidential decrees have been an important part of historical legislation.Footnote 10 The judiciary, on the other hand, has hardly been involved in legislating history, a fact that differentiates Ukraine from East Central Europe and the Baltic states. One important exception to this general lack of involvement, however, was the decision of the Kyiv Court of Appeals on the Ukrainian genocide of 1932–1933.Footnote 11 On 13 January 2010, the court declared Stalin, Molotov, Kaganovich, Postyshev, Kosior, and Khataievich guilty of “deliberately organizing a genocide of a part of the Ukrainian national group, which resulted in the killing of 3,941,000 persons.”

Some authors have described the Ukrainian collective memory as “divided,” characterized by the persisting clash of two competing historical narratives—the Ukrainian nationalist on the one hand and the Soviet nostalgic on the other.Footnote 12 Historian Stefan Tröbst, who differentiates between several modes of coping with the communist past in the countries of the region, suggests a typology of “cultures of remembrance” in Eastern Europe.Footnote 13 According to him, Ukraine, along with Hungary and Poland, belongs to societies where fierce political controversies over the interpretation of the communist past take place. As Oxana Shevel argues, Ukraine in this respect can be compared to countries that have experienced civil war (such as Spain) as it faces a similar dilemma, namely reckoning with the crimes of state dictatorship in the name of justice vs. amnesia for the sake of civic peace.Footnote 14 Until 2014, she argues, the mnemonic regime in Ukraine can be defined as fractured and contentious:Footnote 15 key mnemonic actors “comprised two sets of mnemonic warriors (communist and nationalist) who have been striving to establish a unified memory field wherein their view of the past will be hegemonic, and a power-holding centre that has occasionally preferred strategic abnegation but has frequently acted also as a mnemonic warrior siding with either the left or the right.”Footnote 16 From this perspective, the legislation of history in post-Soviet Ukraine was a hostage of the profound conflict between the Soviet nostalgists and national democrats/nationalists both acting as mnemonic warriors and perceiving the battle for the hegemony of their historical narrative as a zero-sum game. As a result of the annexation of Crimea by Russia and the military conflict in Donbas, a significant part of the electorate that had supported pro-Russian politicians (representing the Soviet-nostalgic paradigm of memory) was excluded from political participation,Footnote 17 and the Communist Party was delegitimized due to its support of Russian aggression. Shevel identifies a potential shift towards a unified mnemonic regime, as the absence of a significant political opposition to de-communization seems to indicate. In any case, a democratic mnemonic regime that opens the public space up for pluralist narratives of the past remains a distant aim.

Finally, the transnationalization of memory is another important perspective to be considered when assessing the legislation of history in Ukraine. Nikolay Koposov in his study of mnemonic legislation in Western and Eastern Europe, underlines the importance of the Ukrainian case as a battlefield where (Eastern) European and Russian influences and approaches clash.Footnote 18 In his analysis, he focuses rather on the “entangled” Russian and Ukrainian legislative initiatives and specifically argues, “The vocabulary of most Russian and some Ukrainian memory law projects and, more broadly, the language of Putin’s current politics of memory was initially developed by a group of pro-Russian Ukrainian politicians and Russian nationalists actively involved in Ukraine’s internal affairs.”Footnote 19 However, the impact of East Central European countries and the Baltic States have been very important too, albeit on a different level. Already in the wake of the Orange Revolution, there was a strong feeling on the part of Ukrainian society and the political opposition that while several Western neighbours were entering the European Union in 2004, Ukraine was going to miss this train. The de-communization laws in Poland and in the Baltic states (the Czech Republic and Hungary were also referred to) came to be seen as a precondition for successful democratic transition and European integration of these countries. A part of the Ukrainian opposition believed that Ukraine had to catch up with these countries in terms of dealing with its communist past. The internationalization and Europeanization of the discourse on communist crimes in the 2000s (e.g. the Prague Declaration 2008) was a strong incentive for these political forces. The Polish example (the creation of the Institute for National Remembrance, the 1998 Memory Law,Footnote 20 the heroization of the Armia Krajowa, and the political rehabilitation of the anti-communist underground fighters) became a model for those political forces in Ukraine that supported Viktor Yushchenko as presidential candidate. Last but not least, the universalization of Holocaust discourse and the institutionalization of Holocaust memory on the international level, and in the EU in particular, stimulated public debate on the Holocaust in Ukrainian history and memory. More specifically, these tendencies affected mnemonic legislation in Ukraine in two ways: Holocaust discourse was adopted by some political actors as proof of Ukraine belonging within the realm of European commemorative culture, and thus to Europe, and at the same time it was used for strengthening and legitimizing its own narrative of national victimhood.

A Brief Overview of the History of Mnemonic Legislation in Ukraine since 1991

The analysis of the four memory laws adopted in 2015 and of the ongoing debate on de-communization should be preceded by a brief overview of the history of mnemonic legislation in post-Soviet Ukraine. Attempts to provide such an overview were recently made by Georgi KasianovFootnote 21 and Nikolay Koposov,Footnote 22 albeit from rather opposite perspectives. Kasianov deals with mnemonic legislative initiatives mainly coming from the national democratic and nationalist camp; he focuses on the instrumentalization of historical memory and its political manipulation by this part of the political elites. Koposov pays more attention to the draft laws coming from Ukrainian Communists and pro-Russian politicians, and sees the historical legislation in Ukraine as an arena of Russian influences. For him, the legislative initiatives of Viktor Yushchenko and his political allies were a justified reaction to the consolidation of the pro-Russian forces on the platform of the Soviet/Russian cult of the Great Patriotic War. While Kasianov is rather critical of the political uses of history by the Ukrainian “nationalizing state” and the legislation of historical memory in particular, Koposov sees the latter as a legitimate instrument for coming to terms with the Soviet past. Both perspectives complement each other and provide insight into the Ukrainian war of two historical narratives (and political camps supporting them) by means of mnemonic legislation.

Before we examine the history of mnemonic legislation in Ukraine, a brief note on what is understood by the term “memory law” in this chapter is needed. According to Koposov, “the hard core of the broadly understood category of memory laws consists of legislation penalizing statements about the past (or memory laws per se) while its periphery includes several other kinds of laws”Footnote 23 referring to history and memory but regulating various aspects of state policy, from official commemorations and education to social protection of war veterans. In a similar vein, Antoon De Baets differentiates between prohibitive and prescriptive memory laws, the latter being coercive or non-coercive.Footnote 24 The focus of this chapter is on those memory laws that prohibit and/or criminalize statements about the past. These laws are particularly controversial because they are often seen as a challenge to basic freedoms of a democratic society. They are addressed here in the broader context of mnemonic legislation in post-Soviet Ukraine.

It should be noted that already in April 1991, before the official declaration of state independence, the Ukrainian parliament adopted the Law “On the Rehabilitation of the Victims of Political Repressions in Ukraine.”Footnote 25 Similar legislation was adopted in other Soviet republics (e.g. in the Russian Federation in October 1991), at the peak of the democratization processes launched in the era of perestroika and glasnost. But in general, during the first post-Soviet decade, Ukrainian legislators hardly addressed issues of historical memory. Some laws adopted during this period can be seen as managing the (dis)continuity with the Soviet regime, such as the Law “On Converting the Property of the Communist Party of Ukraine and the Communist Party of the Soviet Union into State Property”Footnote 26 or the Law “On the Status of War Veterans, Guarantees for their Social Protection.”Footnote 27 Others, such as the Law “On the National Archive Fund and Archival Institutions”Footnote 28 were meant to create the “infrastructure” of the national memory. Not being “memory laws” per se, however, they belong to the periphery of mnemonic legislation.

According to Kasianov, the first memory law per se in independent Ukraine can be considered the Law “On Commemorating the Victory in the Great Patriotic War 1941–1945,”Footnote 29 adopted on 20 April 2000 in the wake of the 55th anniversary of the end of World War II. Like the law regarding war veterans, it created continuity with the Soviet public cult of the Great Patriotic War, at the same time re-appropriating it for nation-building purposes. The law reaffirmed the status of Victory Day (May 9) as a national holiday and stated that symbols of the Great Patriotic War era should be used during public festivities. The law specifically mentioned the “Victory Banner” (the banner raised by Soviet army soldiers on the Reichstag building in Berlin on May 1, 1945) as “a symbol of victory of the Soviet people, their army and fleet over fascist Germany.” Moreover, the law ordered measures like “preventing the falsification of the history of the Great Patriotic War in scientific research, educational literature, textbooks and mass media,” obviously inspired by the discourse on the “falsification” of history in Russia.Footnote 30 In a rather Soviet manner, the law also ordered “recreating the heroic acts of the participants of the Great Patriotic War in works of literature and art, books and memorial albums, and mass media.”

The law caused little controversy until 2011, when, under the presidency of Viktor Yanukovych and on the initiative of the Communist Party, an amendment was adopted ordering the official display of the Victory Banner, together with the national flag, at state institutions on May 9 and other memorial days related to World War II. In so doing, the Victory Banner was practically elevated to the status of a state symbol. The amendment met resistance from the opposition in Parliament and provoked violent clashes in Lviv, where Soviet war veterans and pro-Russian activists were attacked by radical nationalists. One month later the Constitutional Court revoked the controversial amendment.Footnote 31 This episode should be understood in the context of the later memory wars, which became a routine in the Ukrainian parliament from the mid-2000s on (discussed further below).

Back in the first post-Soviet decade, conflicts between the left (Communists, sometimes supported by Socialists) and the national democrats were not rare in the parliament, but the power of legislating history was yet to be discovered by both sides. Public commemorations of important historical events and personalities were usually regulated by presidential decrees, which in most cases avoided polarizing political judgements. Nikolay Koposov sees Ukraine during Leonid Kravchuk’s (1991–1994) and Leonid Kuchma’s (1994–2005) presidencies as a typical case of “politics without a past” and explains it by the communist nomenklatura origins of both presidents.Footnote 32 Other scholars agree that Kuchma’s politics of memory was pragmatic and situational, avoiding polarizing issues, and reactional rather than proactive.Footnote 33 Positioning himself as an arbiter who stays above the fight of nationalists and communists, the president often acted as “mnemonic abnegator” sometimes siding with one or the other camp, mainly for reasons of political expediency.

Legislation of historical memory intensified in Ukraine in the mid-2000s as a result of important shifts in the Ukrainian (and Russian) political landscapes. The Orange Revolution of 2004 enabled the re-run of the second round of presidential elections and the victory of Viktor Yushchenko. The discourse of his political opponents stigmatizing him as a Ukrainian nationalist and even “fascist” (referring also to his project of rehabilitating the OUN and UPA) pushed the politicization of historical memory in Ukraine to a new level. Moscow saw the Orange Revolution as a direct threat and thus became involved in the Ukrainian disputes about the past, siding with Yushchenko’s political opponents. The pro-Russian groups organizing public protests against his politics of memory received support from Russia, and the contacts between the Party of Regions and some notoriously anti-Ukrainian Russian politicians intensified. The memory war between Kyiv and Moscow encouraged the former to use legislation of history as an instrument of establishing and legitimizing its historical narrative on the international level.

President Viktor Yushchenko, unlike Leonid Kuchma, had a strong opinion with regard to some contested topics of Ukrainian history. He believed that the collective memory of Ukrainians should be revived and cleansed from the artificially constructed Soviet narrative. Yushchenko’s politics of memory has usually been reduced to two main topics—rehabilitation of the OUN and UPA and gaining the legal recognition of the Holodomor as a genocide of Ukrainians by the Soviet regime.Footnote 34 But in fact, Yushchenko’s memory politics included other priorities as well, such as the Cossack past, and in particular, the restoration of the Cossack capital Baturin and the historical rehabilitation of Hetman Mazepa. While his controversial decrees honouring the leaders of the OUN and UPA Stepan Bandera and Yuriy Shukhevych with the Hero of Ukraine title are frequently referenced, less known is the fact that Yushchenko awarded several Soviet war heroes of Ukrainian origins with the same title, thus including them in the new national canon. In the beginning of his presidential term, Yushchenko somewhat naively called for the reconciliation of the UPA and Soviet war veterans.Footnote 35 Still, in some contexts he acted as mnemonic warrior, especially when promoting the official recognition of the Famine of 1932–1933 as a genocide of the Ukrainians by the Soviet regime.

Using the occasion of the 75th anniversary of the Holodomor in 2008, Yushchenko made the international recognition of the Holodomor as an act of genocide a political priority of his presidency. By November 2008, the new national memorial “Candle of Memory” in Kyiv was inaugurated and memorials to the Holodomor victims were set up all over Ukraine. The Institute for National Remembrance, created in 2006 on the initiative of Yushchenko as a state body with executive power, coordinated the commemoration nation-wide. A presidential decree from 2009 explicitly ordered the “dismantling of memorials and memorial signs devoted to persons involved in the organization of the Holodomor and political repressions.”Footnote 36 In other words, during the years of Yushchenko’s presidency, not only the discourse of the Ukrainian nation as a collective victim of the communist regime became mainstream, but the Holodomor was represented as the ultimate crime, comparable with the Holocaust.Footnote 37

In this context, one can better understand the significance of the draft of the law on the Holodomor, which Viktor Yushchenko submitted to the parliament at the beginning of November 2006 by express procedure. The draft declared the Famine an act of genocide against the Ukrainian nation, outlawed public denial of the fact of the Holodomor and introduced administrative liability for denial. The discussion of the draft in Parliament turned into a fierce political fight. The Party of Regions came up with an alternative draft, which proposed to define the Holodomor as a crime of Stalin’s regime against humanity and as a tragedy of the Ukrainian people (but not a genocide). The authors argued that the “genocide” definition would split Ukrainian society and alienate Russia. Eventually a compromise version was passed by the parliament in the same month. It declared the Holodomor an act of genocide against the Ukrainian people (not the nation), included as victims other nationalities living in Ukraine, and blurred the legal consequences of public denial. The Law “On the Holodomor of 1932–1933 in Ukraine”Footnote 38 was supported by three parties, Our Ukraine (OU), Block of Yulia Tymoshenko (BYUT), and the Socialist Party, thus symbolically restoring the initial unity of the “Orange coalition”.

In point of fact, the term “genocide” had already been used with regard to the Holodomor in President Kravchuk’s official speech of 1993. And in 2003, after parliamentary hearings on the Famine, the Ukrainian parliament issued an appeal to the nation calling the Holodomor a genocide. But the law of 2006 marked a new situation, as it legally secured one single official interpretation of the Holodomor, thus excluding and even prohibiting those discourses which contested or avoided the term “genocide”. Consequently, the Party of Regions, supported by the Communists, adopted an “anti-genocide” discourse in an attempt to mobilize the “anti-Orange” electorate and to demonstrate solidarity with the official Russian position. (Moscow fiercely opposed the definition of the Famine in Ukraine as genocide and referred to it as a “common tragedy” of many nationalities living in the USSR.)

In the following year, President Yushchenko submitted a new draft law criminalizing both the denial of the Holodomor as a genocide of the Ukrainian people and the denial of the Holocaust as a genocide of the Jewish people. Although unsuccessful, this initiative demonstrated an important development in the Ukrainian legislation on historical memory. The reference to international legislation criminalizing Holocaust denial signalled the internationalization of the Ukrainian discourse on genocide. On the one hand, this effort can be seen as an attempt to avoid a “competition of victimhoods”—an effort to win the support of the Ukrainian and international Jewish community, which was alarmed by the glorification of the UPA. On the other hand, critics of Yushchenko’s politics of memory saw this move as an attempt to instrumentalize the Holocaust for nationalist purposes, which in their eyes was especially disturbing in the absence of almost any serious public debate about the role of the Holocaust in Ukrainian history. Although Yushchenko’s draft was rejected, the idea of coupling the Holodomor and the Holocaust in order to justify the criminalization of public denial reappeared in other, subsequent law drafts.Footnote 39 The issue remained on the agenda of the Ukrainian parliament in subsequent years: representatives of Yushchenko’s and Tymoshenko’s political parties tried to build on the relative success of the 2006 legislation and to criminalize the denial of the Holodomor, while the Party of Regions sought to redeem the legal designation of the Holodomor as genocide and replace it with the less political formula “tragedy of the Ukrainian people”.

Nevertheless, the 2006 law on the Holodomor remained unchanged, and was not revoked even during Viktor Yanukovych’s presidency. Instead, the Holodomor commemoration was depoliticized, relegated to the level of civil society, and freed from “anti-Soviet” and “ethnic” connotations that irritated Moscow. The newly elected President Yanukovych publicly rejected the definition of the Holodomor as genocide at a session of the Parliamentary Assembly of the Council of Europe (PACE) just some weeks after his inauguration and practically never addressed the issue again. Although his era is sometimes characterized as a “neo-Soviet backlash,” Yanukovych himself acted rather as mnemonic abnegator disinterested in an active political use of the past. At the same time, the memory war continued in the parliament around alternative interpretations of World War II. The Communists and some notorious, pro-Russian politicians from the Party of Regions came up with several draft laws criminalizing fascist propaganda, the “rehabilitation of Nazism,” and the desecration of Soviet military graves and war memorials.Footnote 40 Aimed against the legacy of Viktor Yushchenko’s controversial politics of rehabilitating the OUN and UPA, these legislative initiatives resonated with Moscow’s growing concern about “historical revisionism” and the “falsification of history” in its neighbourhood. Nationalists and national democrats responded with draft laws prohibiting communist ideology and criminalizing the vandalism of the graves of independence fighters. Some drafts proposed to criminalize the public denial of Communist and Nazi crimes, thus denouncing both totalitarian regimes as equally criminal, following the example of the Baltic States and Poland, among others. None of these laws were adopted by the parliament (the only exception being the aforementioned amendment of the Law on the Victory Banner), but the significance of the proliferation of draft memory laws before the Euromaidan should not be underestimated: first, it points to the internationalization of the Ukrainian discourse on the past, reflecting the growing tensions between Russian and European regimes of memory; second, it shows that the idea of legislating history and criminalizing certain statements about the past was becoming widely accepted throughout the whole spectrum of Ukrainian politics.

The De-communization Legislation of 2015

The four memory laws on de-communization adopted by the Ukrainian parliament on April 9, 2015 and signed by President Poroshenko on May 15 thus did not come as a surprise. In fact, the authors of the new legislation saw it as a new attempt to accomplish that which was not achieved after the Orange Revolution. Moreover, the failure to complete de-communization during the Yushchenko era has often been evoked as one of the main causes of the anti-Ukrainian mobilization in the east and south of the country, as well as Russian aggression. The Maidan, the annexation of Crimea and the beginning of the war in Donbas led to a patriotic mobilization and a radical shift in Ukrainian politics. The Party of Regions was marginalized and lost a significant part of its electoral base with the occupation of Crimea and Donbas, while the Communists were heavily compromised by their sympathies with Moscow. As a result of the snap parliamentary election in October 2014, a new pro-European coalition was forged consisting of the Petro Poroshenko Block, the People’s Front (led by Arseniy Yatsenyuk), Self-Reliance (the party of the mayor of Lviv Sadovyi), Yulia Tymoshenko’s Bat’kivshchyna, and the Radical Party of Oleh Lyashko. The informal successor of the Party of Regions, the Opposition Block, showed only modest results, and the Communist Party for the first time received no seats in the parliament. The four memory laws thus were easily passed by the parliamentary majority in the first reading and without any debates. They included the following acts: (1) “On Access to the Archives of Repressive Organs of the Communist Totalitarian Regime from 1917–1991;”Footnote 41 (2) “On the Commemoration of [the] Victory over Nazism in World War II 1939–1945;”Footnote 42 (3) “On the Legal Status and Honouring of the Memory of the Fighters for the Independence of Ukraine in the 20th Century;”Footnote 43 (4) “On Condemning the Communist and National Socialist (Nazi) Totalitarian Regimes and Prohibiting the Propaganda of their Symbols.”Footnote 44

The first two laws have been the least controversial. The first one, “On Access to the Archives of Repressive Organs of the Communist Totalitarian Regime from 1917–1991,” requires, as a long overdue transitional justice measure, free access to the former KGB archives. The second law, “On the Commemoration of [the] Victory over Nazism in World War II 1939–1945,” replaces the above discussed Law “On Commemorating the Victory in the Great Patriotic War 1941–1945” from 2000. The new law refrains from the Soviet formula of the “Great Patriotic War”; instead, it refers to the European narrative of World War II as the great tragedy of the twentieth century and to the victory over Nazism as a common achievement to which Ukraine has contributed. It also makes respect for the memory of war veterans, members of the liberation movement and victims of Nazism (in this order) a duty of the state and of the citizens of Ukraine, thus seeking to reconcile Soviet, nationalist and European approaches. The law introduces the Day of Memory and Reconciliation on May 8 (as an attempt to adjust to the European tradition) but also re-affirms the status of the old Soviet Day of Victory on May 9 as a national holiday. In general, the law reflects the turn in Ukrainian society away from the Soviet war myth, which had been politically instrumentalized by Russian propaganda during the 2014 crisis.

The third memory law, “On the Legal Status and Honouring of the Memory of the Fighters for the Independence of Ukraine in the 20th Century,” establishes a long list of organizations, movements, and military formations, declaring them “fighters for Ukrainian independence in the 20th century.” Most of them are known only to historians, but what matters politically is that this list rehabilitates the UPA and OUN, thus putting an end to a protracted debate. This law has been criticized for failing to mention the controversial aspects of UPA and OUN activities, and for making the struggle for independence the main aspect of Ukrainian history.Footnote 45 What met with the most severe criticism was the provision of the law that “public denial of the legitimacy of the struggle for independence of Ukraine in the twentieth century is recognized as insult to the memory of the fighters for independence […], as disparagement of the Ukrainian people and is unlawful.”Footnote 46 The law introduced no explicit sanctions for such denialism, but the coercive prescription of the official historical narrative outlawing alternative or critical voices has worried historians and human right activists in Ukraine and abroad.

Finally, the fourth law, “On Condemning the Communist and National Socialist (Nazi) Totalitarian Regimes and Prohibiting the Propaganda of their Symbols,” deems criminal both the “Communist totalitarian regime of 1917–1991 in Ukraine” and the Nazi regime. It characterizes communism and Nazism in practically identical categories as regimes “that exercised the policy of state terror characterized by numerous violations of human rights in the form of individual and mass murders, slaughters, deaths, deportations, tortures, use of forced labour and other forms of mass physical terror, persecution for ethnic, national, religious, political, class, social and other reasons, inflicting mental and physical sufferings via application of psychiatric measures for political purposes, violation of the freedom of conscience, thought, expression, press and lack of political pluralism and due to these reasons it is condemned as incompatible with the fundamental human and citizens’ rights and liberties.”Footnote 47 The law thus does not differentiate between these two totalitarian regimes and between Stalinism and the late Soviet period.Footnote 48 In equating Nazi and communist regimes, it follows several earlier, not so successful, legislative initiatives in the Ukrainian parliament and refers to both the Ukrainian legislation (law on the Holodomor) and to the respective resolutions of the PACE, OSCE and the European Parliament underlining the need to dismantle the heritage of the communist totalitarian regimes.

This fourth law orders de-communization per se by enforcing the dismantling of remaining monuments to the leaders of the Soviet regime as well as the removal of Soviet symbols in the public space and changing Soviet-related geographic names and toponyms. Due to its practical implications, this law has had the biggest impact on the everyday life of Ukrainian citizens and has therefore caused fierce debates. The law explicitly prohibits propaganda and symbols of communist and national socialist totalitarian regimes, and introduces criminal liability, that is, restraint of liberty for a term of up to five years (up to ten years if committed in a group or by a person holding public office) for the production, dissemination, or public use of such symbols. This law in particular has been the target of criticism inside and outside of the country. The criminalization of the public use of communist symbols, the critics argue, limits freedom of expression, imposes a narrow view of the Soviet period of Ukrainian history, and suppresses alternative narratives.

The de-communization legislation raised a number of concerns, first of all about “the divisive potential of imposing such a unilateral view of history”Footnote 49 in a country with significant regional differences in collective memory.Footnote 50 Not only the Communists protested most loudly against the new laws; the Opposition Block (the successor of the Party of Regions) sharply criticized them in the parliament. Activists of grassroots initiatives fostering public dialogue and reconciliation were concerned of a further escalation of political tensions in a country torn by conflict. Local councils referred to budget constraints (e.g. exceeding costs for renaming streets), and local inhabitants, more concerned with economic and social issues, showed passive resistance. Even some of the pro-Ukrainian activists, while admitting that de-communization of the public space was overdue, saw a risk insofar as the new legislation could bring the Party of Regions back to power. Nonetheless, the new legislation was welcomed by pro-Ukrainian activists pushing for de-communization from below—and local authorities actually understood that the only way to cope with such “wild de-communization” was to give the process a legal form. In autumn 2016, an opinion poll conducted by the Sociological Group “Rating” confirmed the low popularity of the de-communization policy, especially in the east and south.Footnote 51 But as Oxana Shevel observed half a year after de-communization officially started, “thus far, however, the process has not led to any sizeable protests, and parties that vocally opposed the laws have not been able to convert their stance into any actual mobilization.”Footnote 52

Indeed, some renamings caused local protests and heated debates, as was the case with Kirovohrad, named after Soviet leader Sergei Kirov and re-named Kropyvnytsky in the course of de-communization to honour one of the fathers of Ukrainian national theatre born in the area. While the majority of local residents opted to resuscitate the city’s historical name of Yelisavetgrad, this solution was vetoed by the Institute for National Remembrance due to its imperial Russian connotations. The case of Dnipropetrovsk (named after the Ukrainian Bolshevik Petrovskyi) was much less controversial, as the new name—Dnipro—was not politically polarizing. Heated discussions emerged also around some Soviet monuments which had a cultural and historical value (e.g. the equestrian statue of Mykola Shchors, a Red Army commander during the Civil War in Kyiv, or a gigantic monument of the Bolshevik leader Artyom by famous Soviet sculptor Ivan Kavaleridze in the ‘Donetsk Oblast’). The local elites in Eastern and South Ukraine sometimes instrumentalized controversial cases to stir discontent with Kyiv. Such was the case with the Soviet military hero Marshal Georgy Zhukov, whose monuments (and the avenues named after him) in Kyiv and Odesa became a subject of protracted legal conflict. But Marshal Zhukov, a military figure rather than a Soviet political leader, was one of only a few contested cases, a result of the fact that the “hot” memory of World War II seemed to possess more significant potential for mobilization than the “cold” memory of the Bolshevik Revolution. De-communization legislation left local authorities little opportunity for sabotage as their responsibility and the deadlines for removing Soviet symbols were determined by law. The pressure from grassroots de-communization activists (often joined by radical nationalists) played a role, too. Therefore, despite widespread criticism in the media regarding de-communization, and a general lack of enthusiasm for such efforts on the part of the majority of Ukrainians, the de-communized symbolic landscape soon became a new status quo. After a group of deputies (mainly from the Oppositional Block) had appealed to the Constitutional Court, the latter confirmed the constitutionality of the Law “On Condemning the Communist and National Socialist (Nazi) Totalitarian Regimes and Prohibiting the Propaganda of their Symbols” in June 2019.Footnote 53

Dilemmas of Legislating History in Times of War

In this section, I will discuss the public and academic reception of the de-communization legislation and the political and intellectual debates around it in the following contexts: (a) nation building, “decolonization” and Europeanization; (b) freedom of speech vs. mnemonic security; (c) transitional justice.

(a) The most obvious dimension of the debate around the de-communization laws concerns the use of legislative instruments for forming the narrative of national history and for re-shaping national identity in the context of the ongoing Ukrainian-Russian conflict. The 2015 legislation continues the already existing tradition of legislating history (the 2006 law on the Holodomor being the most prominent example of the pre-Maidan era), but it is far more ambitious and comprehensive. It positions the official narrative of Ukraine’s twentieth century as a “national liberation struggle,” creating a canon of “fighters for national independence,” that reduces the Soviet period of Ukrainian history to “crimes of a totalitarian regime” and replaces the Soviet narrative of the Great Patriotic War with a European one. Some observers see this radical re-definition of Ukraine’s “national memory” as connected to the sharp political shifts in Ukraine and the region since 2014, such as the “rapid consolidation of Ukrainian national identity,” and “the end of Ukrainian government’s geopolitical and cultural-historical oscillation between Russia and the West.”Footnote 54

Indeed, the perception of Russia as the eternal threat to Ukraine’s independence, and its role of the constituting “Other” for Ukrainian national identity, have been reinforced by recent events. Particularly in the context of the centenary of the 1917–1921 revolution in Ukraine, the national liberation aspirations of the Ukrainians and their attempt to create their own state are again, as they were 100 years ago, depicted as being thwarted by Russian aggression. Once again, Ukraine is presented as facing the threat of losing its independence to Russia. Volodymyr Viatrovych, the director of the Institute for National Remembrance in 2014–2019 and one of the main architects of de-communization, went even further speaking about Ukraine’s “hundred-year war for independence.”Footnote 55 The laws of 2015 are thus supposed to undo the legacy of the Soviet regime in Ukraine which is seen as a form of Russian dominance.

One can agree with Andriy Portnov that the idea of the new legislation is to draw a new symbolic dividing line between post-Maidan Ukraine and Putin’s Russia.Footnote 56 This division, according to Portnov, is supposed to be constructed “not according to language or religious identification but alongside the attitude to the Soviet past: largely glorified in Russia and condemned in Ukraine.” Such an approach could be characterized as “civic nationalism” if it had not been combined with legislation celebrating the ethno-linguistic and cultural core of the nation (such as the Law “On the Legal Status and Honouring of the Memory of the Fighters for the Independence of Ukraine in the 20th Century”). Formally, de-Russification is not the aim of the de-communization legislation, and yet in practice these notions often merge, as Russia’s current hybrid aggression against Ukraine serves to legitimize the nationalist narrative of Ukrainian history as a history of recurrent Russian aggression and occupation. Combined with a policy aimed at limiting the access of Russian cultural products to the Ukrainian market, language quotas in the media and, most recently, a political campaign aimed at creating a national church independent from the Moscow Patriarchy, the legislation on de-communization has often been seen in Ukraine as part of a greater “decolonization” agenda.

The discourse on Ukraine as a “post-colonial nation” has become rather popular in Ukrainian public debates. In its common interpretation, post-coloniality is associated with collective victimhood, ignorance about one’s own history and dominance of the colonial mind-set imposed from outside.Footnote 57 The aim of the de-communization legislation is thus seen as overcoming the post-colonial status. However, some prominent Ukrainian intellectuals such as Mykola Riabchuk criticize the de-communization laws for targeting the “dead” communist ideology instead of addressing the still existing cultural, political, and economic colonial dependence from Russia.Footnote 58 They see the Ukrainian political elites (including the authors of the de-communization legislation) as main bearers of the colonial mind-set.

Journalists, public intellectuals, as well as some scholars have made an attempt to interpret Ukraine’s de-communization laws from a post-colonial perspective.Footnote 59 Yurchuk introduces the concept of “reclaiming the past,” or regaining control over a narrative of national history that during the Russian and Soviet rule was imposed by the imperial centre.Footnote 60 She sees a dynamic tension between the two approaches: “reclaiming the past” and “coping with a difficult past,” and writes, “as a post-colonial state, Ukraine needs to produce its own history, distanced from the Soviet master narrative; as a (potentially) European state it is expected to be self-reflexive and self-critical about its past. The post-colonial agenda of reclaiming the past may be questioned on the grounds that glorifying national heroes and silencing or even denying their involvement in perpetrating atrocities and human rights violations runs counter to the proclaimed adherence to European values.”Footnote 61

Another aspect of the public debate on de-communization concerns the consequences of externalizing the Soviet past from the Ukrainian historical narrative. For some left-minded critics of de-communization, the Soviet symbols banned by the new legislation refer to the positive aspects of Soviet economic and cultural modernisation and, more importantly, to the idea of economic and social justice which gained new actuality with the rise of post-Soviet oligarchic capitalism. In their eyes, the total ban on Soviet symbols, regardless of the context and purpose of their use, impoverishes Ukrainian history. It excludes not only Russian Bolshevism but also Ukraine’s own socialist traditions from public space and intellectual debate. By denying the early Ukrainian SSR and Ukrainian Communists their role in nation building, the politics of de-communization reduces the Soviet history of Ukraine to a narrative of national victimhood.Footnote 62

Finally, the authors of the de-communization legislation, and the Institute of National Remembrance in particular, underlined that the laws are a necessary instrument for achieving the country’s “Europeanization”. As Lina Klymenko argues, by establishing the new narrative of the past through “de-communization” laws, the Ukrainian leadership seeks not only to differentiate between Ukrainian and Russian remembrance cultures but also to demonstrate a commonality between Ukrainian and European values, thus reinforcing Ukraine’s belonging to European civilization.Footnote 63 In this sense, legislating history is about the future rather than the past; it is about Ukraine’s “return” to Europe. References to EU legislation and the EU discourse on the condemnation of communist totalitarian regimes thus serve to inscribe Ukraine into European political culture. However, as noted by some critics, “the spirit” of the new legislation does not always follow the “letter”: the approach to history they promote is reminiscent of the Soviet one, with one single correct interpretation decreed by the state that results in a highly ideological black-and-white picture.Footnote 64 The laws do not reflect, in other words, “European standards of memorialization policies whereby freedom of expression is upheld [… and] honouring civilian victims of political violence is a central priority.”Footnote 65

(b) Being involved in a military conflict on its own territory, Ukraine has struggled to preserve both democratic freedoms and national sovereignty. Therefore, another important context of the debate on de-communization legislation concerns the tension between two political priorities: democracy, freedom of speech and human rights, on the one hand, and national security, and more specifically, “mnemonic security,” on the other. Since spring 2014, there have been concerns inside the country and among its Western partners that human rights and freedom of media might be sacrificed under the pretext of counteracting Russia’s information war. The most vocal criticism of the de-communization laws in Ukraine thus came from international organizations monitoring the freedom of public expression and the rule of law (e.g. the OSCE or the Venice Commission) as well as international and Ukrainian scholars concerned with the freedom of academic research. An Open Letter signed by a number of well-known historians and other scholars and addressed to President Poroshenko expressed concern with imposing a monopoly of one single historical narrative, and with the potential threat of criminalizing critical opinions.Footnote 66 The letter appealed to the President to veto the legislation passed by Parliament. Some professional historians in Ukraine have long been outspokenly critical towards the legislation of history (e.g. Georgi Kasianov), seeing it as manipulation of the past for political purposes and as a means to curtail the freedom of research. The de-communization legislation is, from this perspective, a further step in the wrong direction.

In general, the laws of 2015 have divided the professional community of historians into two camps: the “statists” believe that the Ukrainian state should take a proactive position in establishing a national narrative, promoting it in society, and defending it against neighbouring countries. In contrast, the “liberals” give priority to the freedom of academic research and fear potential censorship. The central concern of the first group is national security, especially relevant in times of crisis and external aggression. According to Volodymyr Viatrovych, de-communization is a matter of security politics because Ukraine’s independence and European identity are threatened by bearers of Soviet values. In his eyes, “it is precisely on this island of ‘Sovietness,’ which for historic reasons remained strongest in the Donbas and Crimea, that Putin’s aggression against Ukraine is taking place. The bearers of Soviet values (…) are today the main source of manpower for the terrorist bands of the so-called DNR and LNR.”Footnote 67

The de-communization legislation in Ukraine is thus a prominent example of the securitization of cultural policy,Footnote 68 including historical memory and national identity. The tendency towards the securitization of historical memory, or understanding the control over the national historical narrative as a matter of national sovereignty, is not new in Eastern Europe, torn as it has been by mnemonic conflicts (e.g. the Baltic-Russian and Polish-Russian memory wars). Departing from the concept of ontological security used in International Relations, some scholars from the regionFootnote 69 have developed the notion of “mnemonic security”. From this perspective, Maria Mälksoo argues, “Ukraine’s de-communization laws raise fundamental questions about the legitimate defence of democracy in times of political transformation and war.”Footnote 70 She asks further if militant democracy is “a more acceptable solution in the context of ongoing nation building, regime change and active conflict (including a continued ‘memory war’) as compared to consolidated democracies during more ‘normal’ times.” The question makes sense given that denying the historical and political legitimacy of the Ukrainian state in its current borders was the key element of the Moscow’s anti-Ukrainian propaganda at the peak of the conflict in 2014.

The opponents of the “security argument,” from their side, argue that the threats to the Ukrainian state come not only from the outside; some of them are home-made, such as the divisive effects of de-communization on Ukrainian society and the risk of sliding into authoritarianism by curtailing freedoms.

(c) The de-communization legislation in Ukraine can also be discussed from the perspective of transitional justice. Transitional justice refers to a range of measures that societies transforming themselves from authoritarianism to democracy or moving from a violent conflict towards peace undertake to reckon with legacies of systematic or widespread violations of human rights.Footnote 71 In the narrow sense, transitional justice “is used as a synonym for criminal prosecution of authoritarian rulers (and their agents) for alleged mass atrocities.”Footnote 72 In practice, however, transitional justice goes far beyond judicial measures and includes such approaches as truth commissions, reparation for victims, reform of public security and restoring trust in state institutions as well as commemorative programs. The contemporary understanding of transitional justice is bound to a forward-looking perspective, meaning that its main aim is the prevention of human rights abuses in the future. Lavinia Stan, an expert on post-communist transitional justice, argues that former Soviet republics, with the only exception being the Baltic States, “have engaged in only limited reckoning with the mass human rights abuses perpetrated by the communist regime in 1917–91.”Footnote 73 Among her explanations for this reality are an incomplete democratic transition marked by a high level of corruption and disregard of the rule of law, the continuing political influence of former Communist Party officials and KGB officers and agents, the weakness of civil society, and the lack of international pressure. In addition, she notes that the more time has passed after mass human rights abuses the more difficult it is to implement transitional justice.Footnote 74

Although not part of legislation on historical memory per se, transitional justice, similarly deals with a problematic past by means of law and is meant to transform the historical consciousness of post-authoritarian and post-conflict societies. In the post-communist context, transitional justice measures have often been merged with (and sometimes substituted by) the instrumentalization of memory for the purpose of nation building. While post-communist nations were defined as collective victims of the Soviet regime, little was done to bring perpetrators to justice.

Ukraine’s record in transitional justice has so far not been very impressive, albeit better than in other post-Soviet republics. Until 2014, emphasis was made on the commemoration of victims (e.g. the 2006 law on the Holodomor), while criminal justice towards perpetrators was only symbolic (see the Decision of the Kyiv Court of Appeals 2010, mentioned above). The Law “On the Rehabilitation of the Victims of Political Repressions”Footnote 75 was selective and material compensation provided by it was rather limited. Not a single official of the Soviet regime was prosecuted for abusing human rights, and many former high officials of the Communist Party of the Soviet Union and of the Ukrainian KGB continued to play key roles in Ukrainian politics.

In this context, one could argue that the Maidan protests and the subsequent fall of the Yanukovych government gave the impetus to the most ambitious transitional justice measures thus far. These measures concern some aspects of the de-communization legislation, and in particular, the law providing public access to former KGB archives. By addressing the “fighters for independence” (many of whom fell victim to Soviet repressions), the amended rehabilitation law is more inclusive (even if still modest in terms of material reparations). Removing Soviet symbols from the public space and banning Soviet propaganda, albeit politically controversial, goes in the same direction. Moreover, the “authoritarian moment” of the Yanukovych regime, and its use of brutal violence against the protesters (including the Maidan massacre on February 20, 2014), mobilized Ukrainian civil society to lobby for radical reforms of public security and the judiciary. In 2014, two of the laws that were among the measures that the Ukrainian parliament took in response to these demands were the Law “On Restoring Trust in the Judiciary”Footnote 76 and the Law “On Government Cleansing” (also called Lustration Law).Footnote 77

This first law reflected a popular demand to dismiss judges involved in the unlawful prosecution of the Maidan protesters. The second regarded the removal from office of civil servants “who made decisions, took actions or inaction (and/or contributed to their taking) facilitating power usurpation by the President of Ukraine Viktor Yanukovych” or who violated human rights and freedoms. Additionally, reflecting the issue of disloyalty on the part of the state apparatus in the face of Russian aggression, the lustration law also imposed a ban on public servants who cooperated as secret informers of other countries, undermined national security or called publicly for the breach of Ukraine’s territorial integrity and sovereignty.

Moreover, public servants who worked in senior positions in the Soviet Communist Party, as full-time employees or covert agents of the Soviet KGB, became a subject of lustration. The long overdue post-communist lustration thus arrived in Ukraine in one package, with measures meant to restore justice and trust in public institutions after the fall of the Yanukovych regime, often denounced by critics as “neo-Soviet”. However, blending together in this way the responsibility for the wrongdoings of the Soviet regime and the abuses committed by the Yanukovych government obscured the goals of the new legislation on lustration.Footnote 78

Another problem with both laws is that they compromise rather than implement the idea of transitional justice. Ukrainian experts and human rights activists as well as international organizations such as the Venice Commission have criticized both draft laws and proposed to make serious amendments to them in order to avoid manipulations, abuse of human rights and political pressure on the judiciary. In fact, passing both laws was a populist move resulting from the pressure of radical activists practicing “wild lustration” (de facto harassment and attacks on some public officials accused of cooperation with the Yanukovych regime). If the aims of transitional justice measures are the reform of public security and the renewal of civic trust, Ukraine is still far from achieving them. Moreover, lustration in its current form adds to the deterioration of the legal and political culture in the country.

The Ukrainian case of transitional justice is especially complicated because dealing with the crimes of the communist regime has to be undertaken not in a “post-conflict” society, but in a society currently affected by a political crisis and an ongoing military conflict. Thus far, the criminal investigations into the Maidan massacre on February 20, 2014, and the Odesa tragedy on May 2, 2014, have not resulted in a triumph of justice; in both cases, civil society and journalists pursued truth seeking and put pressure on state investigators. In addition, Ukraine has to deal with new injustices, war crimes, and mass violations of human rights, especially in Donbas. While civic activists do important work documenting such cases and assisting victims in protecting their rights, the question remains if a broader restoration of justice and rule of law is possible before the resolution of the military conflict. If the current priority in Ukraine is peace and reconciliation, then a truth commission might be a more appropriate instrument of transitional justice than the legislation on (Soviet) history.Footnote 79

To conclude, historical justice for victims and perpetrators of communist crimes, one of the aims of de-communization legislation, seems to compete with the more urgent goals of truth-seeking, justice and reconciliation in the current Ukrainian conflict. While the legacy of the Soviet regime is one source of Ukraine’s rule of law deficit, of its politicized and corrupt judiciary and low civic trust, the legislation of history alone cannot solve these problems.

Conclusion

Post-Soviet Ukraine is not an exception among the countries of Eastern Europe, a region where the legislation of historical memory since 1989 has become an instrument of nation building and reckoning with the communist past, a means of asserting the “sovereignty” of national memory, and a weapon utilized by rival elites in the ongoing culture wars. Unlike neighbouring Russia and Belarus, where history and memory have been used by authoritarian regimes for consolidating mass support, Ukraine became increasingly torn apart by mnemonic conflicts fuelled by competing interest groups which manipulated divisive historical narratives with the purpose of electoral mobilization. Pluralism and competitiveness in Ukrainian politics, combined with conflicting geopolitical imaginaries, encouraged the weaponization of the mnemonic legislation by fractured political elites. While some legislative initiatives were meant, according to their authors, to restore the Ukrainian collective memory supressed by the communist regime and to facilitate the country’s European integration, others aimed at preserving continuity with the Soviet past and the “spiritual unity” with Russia. With political polarization growing, prohibitive memory laws criminalizing “wrong” historical narratives came to be seen as an acceptable instrument of politics. Yet the same political pluralism and the rotation of elites prevented Ukraine from a consistent and sustainable mnemonic law-making.

The Maidan revolution of 2013–2014, the military conflict in Donbas and Russian aggression contributed to the de-legitimation of the Soviet-nostalgic narrative, thus empowering mnemonic warriors who sought to reckon with the Soviet past and provided the legislation of historical memory with the additional argument of national security. The “memory laws” adopted in spring 2015 were seen by their initiators as long overdue measures meant to overcome Ukraine’s Soviet legacy and thus facilitate the country’s European integration. Presented as a part of the ambitious reform agenda aimed at Ukraine’s modernization, the “memory laws” were, however, perceived by many critics as a symbolic substitute for real reforms, obscuring anti-corruption and de-oligarchization with nationalizing politics and fighting phantoms of the Soviet past. The opponents of “de-communization” used arguments often employed against “memory laws” worldwide:Footnote 80 first, they argued that the legislation of historical memory violates freedom of speech; second, that it imposes a single official historical narrative (reminiscent of the Soviet era) and thus limits freedom of research; and third, that it fosters a narrow, particularistic politics which excludes significant groups of the Ukrainian population (e.g. ethnic minorities), and thus reinforces the polarisation of Ukrainian society. The debate, however, did not result in any amendments to the de-communization laws (e.g. removing criminal liability for the public use of Soviet symbols) as it was proposed by moderate critics.

Half a decade since the de-communization laws have been adopted, their most significant effect has been a rather consequential cleansing of Ukraine’s cultural landscape of the Soviet symbolic legacy (monuments and toponyms). While some protracted conflicts took place on the local level around such historical personalities as Soviet Marshal Georgy Zhukov (see above), they remained on the periphery of the country’s political life. In general, however, the outcome of the de-communization legislation has been controversial. The much criticized provision of the law “On the Legal Status and Honouring of the Memory of the Fighters for the Independence of Ukraine in the 20th Century,” which stipulates the “public denial of the legitimacy of the struggle for independence of Ukraine in the twentieth century” as “unlawful,” has remained declarative so far and has had no repercussions for academic freedom and historical debate (although some historians would argue that the very fact of a single official narrative combined with the potential threat of violence from radical nationalist groups does limit academic freedom). A more worrying signal is that there have been criminal cases regarding the “propaganda of communism” that have resulted in real, albeit suspended, sentences. On the positive side, and not without some historical irony, the legislation and the debates around de-communization stimulated the re-discovery and a new interpretation of Ukraine’s Soviet modernist art and architecture by a new generation of artists and cultural activists who seek to integrate Soviet Ukrainian cultural heritage into the national canon. An uncontroversial and positive result of the de-communization legislation is the opening of the archives of Soviet state security agencies and their re-organization into a new archival institution under the auspices of the Institute for National Remembrance.

The long-term outcomes of the de-communization legislation are as open as the future of Ukraine. The ongoing military conflict and the political polarization within the country certainly make it more difficult to sustain pluralism when it comes to memory politics, just as it is more difficult to transform the critical attitude to the Soviet past into a new political culture based on democratic and liberal values. The last presidential and parliamentary elections seem to indicate a retreat of the most notorious mnemonic warriors of the Poroshenko era and a more relaxed attitude of the new leadership to the historical past. The new head of the Institute for National Remembrance has declared openness for dialogue and a more inclusive approach based on consultations with local communities.Footnote 81 Volodymyr Zelenskyi, despite owing much of his electoral success to the role of a history teacher he played in the “Servant of the People” television series, has shown little interest in issues of historical memory so far. The populism that brought him to power is quite different from its Polish or Hungarian versions, as it does not draw on nationalism, “traditional values,” and historical traumas. (All this was reserved for Poroshenko and his “European Solidarity” party, now in opposition). Nor is Zelenskyi a neo-Soviet nostalgist, seeking to restore the pre-Maidan status quo—a mission that the opposition from the pro-Russian side is in fact pursuing. That there has been no major backlash regarding de-communization, nor has there been a new round of memory wars thus far, has to do with the fact that President Zelenskyi—a “mnemonic abnegator” according to Bernhard and Kubik—still has a solid majority in the parliament.Footnote 82 Changes to this fragile political constellation could encourage mnemonic warriors on both margins of the political spectrum to once again use historical legislation as an instrument of politics.