Populism and Memory: Legislation of the Past in Poland,Ukraine,and Russia

Populism and Empty Signifiers

Populism is one of the best-researched aspects of modern politics. ¹² However, the concept refers to too many different things, which share almost no single common property, including with respect to the politics of the past. I am interested here in the “new-wave” national populism (also referred to as right-wing radical populism, ethno-populism, nativist populism, conservative populism, or authoritarian populism), which is rapidly coming to dominate the political scene, especially in Eastern Europe. ¹³

Scholars have paid relatively little attention to the national populists’ politics of history, although it is sometimes argued that “populism is about constructing and using a past.” ¹⁴ Some theories of populism do indeed supply important premises for the further development of this approach. In fact, since the concept of a “people” and the sense of belonging to a (national) community are fundamental for populists, “it can be argued that constructing a ‘people’ requires . . . constructing powerful myths that draw on a collective memory of an imagined past in order to define who belongs to ‘the people.’” ¹⁵ Although the notion of constructing a people goes back to Ernesto Laclau’s highly influential On Populist Reason, ¹⁶ this approach typically opposes his theory. Laclau argues that the concepts used by populists (including the concept of people) have no clear positive meaning and function as “empty signifiers,” because “we are dealing with purely differential identities.” ¹⁷ Laclau is, of course, building here on Saussure’s claim that “language (and by extension all signifying systems) is a system of differences.” ¹⁸

I agree with Laclau that some concepts can present as empty signifiers and that this fact is crucial to understanding the ways in which populists use concepts. But I believe that he has failed to explain the reasons for that and has overestimated the degree to which empty signifiers are empty. Any (historical) term can, in certain contexts, become an empty signifier (vide sémantique). ¹⁹ This happens when the term is used to refer to a thing (or a class of things) in the world without specifically invoking any of its properties. ²⁰ Yet the term’s meaning remains available to both the speaker and the listener. Proper names (including those of “collective individuals” such as nations) are most often used in this way. ²¹ In contrast, while using a common (or general) name, we are most often (although not always) in a position of having to engage certain aspects of its meaning in order to formulate and understand the message. The ways in which we use concepts fluctuate between the model of the proper name (an empty signifier with an always available, albeit nebulous, meaning) and the model of the general name, which seeks to capture a class of things by calling attention to some of their common properties.

In contrast to concepts in the natural sciences, which have more abstract, general, and “definable” meanings, historical concepts (and most words of our everyday language) typically function as “semi-proper names” ²² and refer both to (more or less) abstract—and potentially universal—meanings and to those concrete occurrences that best exemplify a given category. Thus, the concept of absolutism relates both to unlimited monarchy and to the government of Louis XIV, and we usually avoid using it to allude to unlimited monarchies too distant from the Sun King’s France in space and/or time.

The ways we use concepts (and their grammatical types) change over time. As Reinhart Koselleck suggests, the proliferation of relatively more abstract and universal social and political concepts began in the late eighteenth century with the emergence of future-oriented philosophies of history. ²³ One can argue that the “crisis of the future” and the rise of memory in the late twentieth century have stimulated changes in an opposite direction, namely, a decay of abstract notions and universal values and the growing importance of “local logics” and particularistic identities. ²⁴ Most importantly, the forms of political legitimation have undergone a similar change: individual paths of past development have replaced projects of the future and master narratives as its main source.

In the age of populism, proper names of different communities of memory and myths that are parts of their meaning have grown in importance at the expense of the philosophies of history incarnated in more abstract and universal concepts. “Peoples” (French, Polish, Russian, and so on—the adjectives are crucial here, although they are often implied rather than spelled out when we use this word in a particular national context) have replaced social classes as the main protagonists of history and identity concepts. In fact, the very concept of identity came into use in the 1980s, in the context of transition from class-based images of society to those based on nations, ethnicities, and more particular characterizations of societies’ members.

The memory laws’ cultural form corresponds to this juncture in the evolution of Western historical consciousness. ²⁵ All ad hoc statutes that criminalize certain claims about the past protect the interpretation of particular historical events (typically traumatic), which function as sacred symbols of national and other communities, and none of them bans any philosophy of history. And although memories of certain particular events are inseparable from a given master narrative, ²⁶ the emphasis matters, and the new-style politics of the past resonates with the logic of the proper names. The evolution of the legislation of memory from Holocaust denial laws to statutes that exculpate nation-states from any responsibility for crimes against humanity has reflected the ascendance of the populist Zeitgeist and a decay of the democratic politics of memory. ²⁷

Faces of De-communization: Legislation of the Past in the 1990s

Battles over the past were an essential aspect of East European politics in the late 1980s and early 1990s. In a sense, Mikhail Gorbachev’s perestroika was a revolt of the suppressed counter-memories of various social, national, ethnic, and religious groups against the Soviet master narrative. The notion of legislating on issues of the past emerged in Eastern Europe (including in Russia) at the turn of the 1990s in the context of those battles and, more broadly, of the de-communization process. The Czechoslovak Lustration Act of October 1991, the German Stasi Records Act of December 1991, and the Czech Act on the Illegality of the Communist Regime of July 1993 marked the emergence of this legislation. After a long series of failed attempts, Poland adopted its own lustration act in April 1997. Similar enactments were passed all across the region, including laws on the restitution of property confiscated under communist rule, on the creation of occupation museums (or of similar institutions charged with preserving national memory), on the prohibition of Soviet symbols, and even on citizenship, which in some countries was denied to certain categories of people who were associated with the Soviet occupation and perceived as the Kremlin’s potential “fifth column.” ²⁸ The importance of the memorial component differed from one enactment to another, but as a rule, symbolic considerations were at least as important to their adoption as pragmatic ones. ²⁹

In the USSR/Russia too, governmental declarations and legal acts were passed to codify the new view of history, including the November 1989 resolution of the USSR Supreme Soviet that declared Stalin’s deportations of repressed peoples “illegal and criminal”; the December 1989 resolution of the Congress of People’s Deputies of the USSR that condemned the “secret protocols” of the 1939 Molotov-Ribbentrop non-aggression pact; the April 1991 Law of the Russian Federation On the Rehabilitation of Repressed Peoples, which in Article 2 characterized Stalin’s deportations of entire peoples as acts of genocide; and the October 1991 Law of the Russian Federation On the Rehabilitation of Victims of Political Repressions, which condemned Stalinism as a “totalitarian state.” In its turn, Ukraine also passed a rehabilitation act in April 1991, which cautiously extended the right for rehabilitation only to those “fighters for Ukraine’s independence” (Ukrainian anti-Soviet partisans, that is) who had not collaborated with the Nazis and had not been found guilty of war crimes.

De-communization was not, however, a monolithic enterprise. It was obviously crucial to Eastern Europe’s transition to democracy. But at the same time, the language of de-communization could be, and often was, also used by nationalists and populists, who were seeking to outplay their socialist opponents and improve their own image in Western eyes. With the exception of Russia, breaking with communism in Eastern Europe involved a struggle for national liberation in which democrats and nationalists were allies (hence the phenomenon of liberal nationalism, or national liberalism, which is so typical of Eastern Europe and so clearly different from national populism). ³⁰ As a result, de-communization has evolved into an ambivalent phenomenon that has both democratic and nationalist components.

During the 1990s, Russian, Ukrainian, and Polish governments pursued three significantly different strategies of de-communization and the political construction of history. Memory was undeniably no longer as central to those countries’ politics as it had been during the perestroika period: expectations of a better future temporarily soften disagreements over the past. But at the same time, the hardships of the transition period, nostalgia for both the communist and the pre-communist past, and the growing dissatisfaction with global capitalism and the neoliberal politics of austerity gave rise to a wide variety of populist movements all across the former Eastern Bloc, which would reinvigorate passions surrounding the past in the early twenty-first century.

In Ukraine, former communist apparatchiks became moderate nationalists and kept firm control over the country until the early 2000s. Pro-Western liberals and radical nationalists remained relatively marginal there, and the Ukrainian government pursued a very limited de-communization agenda and a “multi-vector” politics of history. ³¹ A handful of laws having to do with historical memory ³² followed their Soviet/Russian prototypes, such as the April 2000 Law On Perpetuating [sic!] the Victory in the Great Patriotic War, modeled after a similar Russian statute of May 1995 (let me mention en passant that memory laws are a privileged vehicle of “mnemonic diffusion” ³³ between the countries). In Poland, despite the social democrats’ (most of whom were former communists) coming to power in 1993, the tradition of national liberalism remained sufficiently strong to decisively influence the politics of memory, which found its expression in particular in the December 1998 law on the creation of Poland’s “Ministry of Memory,” the Institute of National Remembrance (Instytut Pamięci Narodowej [IPN]). In Russia, where political collisions were much sharper than in Poland and Ukraine and where the “red-brown” populists at times came quite close to seizing power, the battles over the past reflected the political turbulence.

On the one hand, several Russian enactments (such as the aforementioned 1995 legislation on the victory over fascism) gave the force of law to the old Soviet-style cult of the Great Patriotic War (the name under which the Second World War is commonly known in Russia), despite the fact that this cult was by no means as central for Yeltsin as it had been for his predecessors and was to be for his successor. On the other hand, in response to the growing red-brown danger, there emerged the idea of passing some kind of “anti-fascist” law, which would also counter attempts to spread neo-Stalinism. This idea harkens back to the mid-1990s, when a group of democratic politicians and activists supported by the Moscow Anti-Fascist Center proposed several draft laws modeled after the Gayssot Act of 1990, which prohibited Holocaust denial in France. ³⁴

The memory of the Holocaust was almost non-existent in Russia (and in other communist countries) during the Soviet period. ³⁵ It was an “irritating competitor” to the Soviet war myth, ³⁶ which portrayed the victory of the USSR over Nazi Germany as proof of the superiority of communism over capitalism. The Shoah was considered irrelevant in the “struggle of the two social systems.” In the late 1980s, however, the memory of the Shoah emerged in the context of the rise of memory characteristic of Gorbachev’s perestroika and largely in response to the growing far-right movement. During the 1990s it was cautiously promoted by Boris Yeltsin’s government. The authors of the Russian bills did their best to find formulas that would apply to the denial not only of Nazi crimes but also of Stalin’s repressions. However, the Russian Parliament, dominated as it was by the communist and nationalist opposition, blocked all those initiatives, the only outcome of which was the ban on fascist propaganda included in the July 2002 Law On Countering Extremist Activities (Articles 1.1, 1.2, and 1.3) and the ban on the display of fascist symbols in the December 2001 Code of Administrative Offenses (Article 20.3).

Russian attempts to criminalize the denial of both Nazi and communist crimes were not without parallels in other post-communist countries. Thus, in December 1991, the parliament of the Czech and Slovak Republic amended Article 260 of the old Czechoslovak Penal Code to forbid “movements that demonstrably aim at suppressing the rights and freedoms of citizens or preach national, racial, class or religious hatred (such as, for example, fascism or communism).” ³⁷ Although this was by no means an ad hoc memory law, certain statements about the past would have become illegal had the reference to fascism and communism not been invalidated by the Constitutional Court (on the grounds that, by referring to fascism and communism, the legislators were endorsing the notion of collective guilt).

Poland was the first country to outlaw the denial of both Nazi and Communist crimes, by virtue of the aforementioned 1998 Law on the Institute of National Remembrance, which was also the first case of explicitly banning certain claims about the past in Eastern Europe. The law prohibited the denial of Nazi and Communist “crimes perpetrated against persons of Polish nationality and Polish citizens of other . . . nationalities” (the word “nationality” is here used in the sense of ethnicity). This was an obvious attempt to downplay the importance of the Holocaust and present the Poles rather than the Jews as Hitler’s main victims. The law passed over in silence the participation of Poles in the Holocaust. ³⁸

In adopting the 1998 act, Poland created a memory law model that presented an alternative to the model in Western Europe. Western European memory laws, most of which came into force in the 1980s and 1990s, ³⁹ prohibit Holocaust negationism and/or the denial of crimes against humanity more generally. Since the 1990s and especially the 2000s, the European Union has thrown its full support behind this approach. ⁴⁰ However, the Western European model did not take into account certain concerns typical of some Eastern European countries, which derive from their respective historical specificities. There, the legacy of communism is usually perceived as a particularly important issue, while the collaboration of the local population with the Nazi and the Communist regimes and its share of responsibility for the Shoah are systematically denigrated. ⁴¹ This crucial denigration had its own role to play in the memory wars of the following decades. It also partly explains “the failure to set up a pan-European memory project.” ⁴²

Banning the Denial of Communist Crimes

The relatively peaceful international climate of the 1990s began rapidly deteriorating in Eastern Europe early in the new century with the continuing rise of populism and the emergence of Putin’s authoritarian regime. The years 2004 and 2005 were decisive for the formation of a new memory landscape in the region, as evidenced by several developments. The pretentious celebration of the sixtieth anniversary of the victory over Nazism in Russia started well before May 2005 and showcased the Kremlin’s neo-imperial ambitions. Putin’s involvement in Ukraine’s internal affairs around the November 2004 presidential elections aimed to promote the Soviet war myth and support his candidate, Viktor Yanukovych. These events triggered an avalanche of mutual accusations of past misdeeds. The Orange Revolution brought to Ukraine’s presidency the liberal nationalist candidate Viktor Yushchenko, almost openly supported by Poland. Lech Kaczyński and his Law and Justice (PiS) party won Poland’s parliamentary and presidential elections in the fall of 2005. Nationalists came to power in all three countries, and in the years that followed they faced the need to consolidate their support by using increasingly nationalistic rhetoric. Memory wars broke out in the Russian–Ukrainian–Polish triangle. ⁴³

The politics of history, including memory laws, became a weapon of choice that the three regimes consciously relied upon in their political propaganda. The term Geschichtspolitik first came into use in Germany in the context of the 1986–1987 Historikersreit, although the adjective geschichtspolitisch was occasionally used in the early twentieth century to denounce politically biased interpretations of the past. ⁴⁴ The neologism quickly gained popularity, arguably because it resonated with a widely shared feeling that in the emerging age of memory, public uses of the past would gain in importance and take on new forms. Chancellor Helmut Kohl was himself one of the first devotees of this politics.

In the 2000s, this notion began spreading across Eastern Europe. As in Kohl’s Germany, it was viewed there as a program of action rather than an analytical device. Soon after Lech Kaczyński came to power, a group of Polish right-wing intellectuals (which included such figures as Marek Cichocki, Dariusz Gawin, and Tomasz Merta) began advocating for a polityka historyczna, which they viewed as crucial to both domestic and foreign policy. ⁴⁵ About the same time, Russian “political technologists” had also come to appreciate the promise of the politics of the past. Thus, according to Gleb Pavlovskiy, an “architect of Putinism,” after the collapse of traditional political ideologies, “the politics of history will become the standard of politics as such.” ⁴⁶ Influences from Russia and Poland (and the Baltic countries) decisively affected the situation in Ukraine, where the consolidation of the nationalist movement around the reformed Svoboda (“Liberty”) party was accompanied by a sudden boom for the politics of memory, in sharp contrast with the situation of the 1990s (another case of mnemonic diffusion). In other words, in Eastern Europe as elsewhere, the past became a crucially important “soft-power” resource, with right-wing populists taking the lead in using it.

The 1998 Polish statute was followed by a series of Eastern European enactments that criminalized certain claims about the past. And while several countries (e.g., Bulgaria, Romania, Slovakia, Slovenia, and Croatia) criminalized the denial of crimes against humanity in accordance with the EU model, others have followed the Polish example by prohibiting the denial of both communist and Nazi crimes. For example, Lithuania’s memory law of 2010 forbids the denial of crimes “committed by the USSR or Nazi Germany on the territory of the Republic of Lithuania or against the inhabitants of the Republic of Lithuania,” ⁴⁷ which is a clear case of whitewashing the national past, because many Lithuanians in fact collaborated with the Soviet regime and were complicit in the Holocaust. ⁴⁸ De-communization memory laws also exist in the Czech Republic, Hungary, and Latvia. These are countries that, like Poland, Lithuania, and Ukraine, have a particularly strong record of anti-Soviet resistance and have been typically involved in fierce conflicts with Russia over the interpretation of the past.

There are no such laws in Western Europe, because the USSR and the leading Western countries were allies during the Second World War and because considering Nazism and communism two equally criminal regimes is hardly compatible with Western traditions of anti-fascism and social democracy. In contrast, in the east of the continent, both anti-fascism and socialism have been compromised by the Soviet communists. But although the EU has not supported the notion of criminalizing the denial of communist crimes, it has adopted several declarations calling for a fuller confrontation of the legacy of both totalitarian regimes, thus recognizing the legitimacy of Eastern European concerns with the memory of communism. ⁴⁹

The problem with laws that ban the denial of communist crimes is not that they view fascism and communism as two equally criminal regimes, which is understandable in light of those countries’ historical experience. The problem, rather, is that they shift the blame for historical injustices entirely to others and draw a veil over the ordinary people’s earlier support for both communist and fascist regimes and their participation in Nazi and communist crimes. In other words, they give legal protection to typically populist self-congratulatory national narratives, which is the opposite of what the European Union intends to achieve by promoting memory laws, namely, to overcome nationalism and create a pan-European mnemonic community.

There is an important difference between the East European memory laws that assimilate communism to fascism and the afore-mentioned attempts of the Russian democrats to do the same in the 1990s: in the Russian case, banning the denial of communist crimes did not signify whitewashing national history. Rather, those bills were intended as an expression of Russia’s repentance for the crimes of its own dictatorial regime, which makes them closer in the spirit, if not in the latter, to West European memory laws.

PiS, Populism, and Memory Laws in Poland

Since first coming to power in 2005, PiS has sought to adapt the Polish legislation of memory ever more closely to the needs of the populist politics of memory. The first attempt in this direction was undertaken in 2006, when the party controlled both the government and the presidency. In October, the Sejm passed a lustration act that considerably expanded the functions of the IPN and amended the Penal Code by introducing Article 132a, “Slander of the Polish People,” which stipulated:

Anyone who publicly imputes to the Polish people participation in, organization of, or responsibility for communist or Nazi crimes shall be subject to the penalty of imprisonment for up to 3 years. ⁵⁰

This amendment is commonly known as the Gross Act, because Polish populists viewed Jan Gross’s research on Polish anti-Semitism, including his 2001 book Neighbors, ⁵¹ as a scandalous affront to the country’s reputation. However, in September 2008, when PiS was no longer in control of the government, the Constitutional Tribunal nullified the Gross Act on procedural grounds. ⁵² (Article 133 of the 1997 Penal Code, which remains in force, envisages the same penalty for “anyone who publicly insults the Republic or the Polish people”—a provision that few other countries have.)

The aforementioned 2018 Holocaust law is another step in the same direction. It was introduced into the Polish parliament in August 2016, soon after PiS’s accession to power in October 2015. It shows that a belligerent politics of history remains the party’s preferred instrument for consolidating electoral support. Both the 2006 and the 2018 statutes are not only silent on crimes against humanity committed by ethnic Poles but openly shield the perpetrators from exposure.

Partisans of the new Polish law present it as a reaction to phrases such as “Polish death camps” being colloquially used to refer to Nazi extermination camps. But there is a lot more in the statute than an invitation to watch one’s language. The law has added “the crimes of the Ukrainian nationalists and of the members of Ukrainian organizations that collaborated with the German Third Reich” to the roster of crimes against humanity the denial of which is punishable on the basis of the 1998 act on the IPN (Article 1). The lawmakers are here referring to the Organization of Ukrainian Nationalists and the Ukrainian Insurgent Army, which were implicated in the 1943 Volhynia massacre (Article 2), one of the most painful episodes in the history of Polish–Ukrainian relationships. In the 1990s, Poland took the initiative in overcoming this legacy through an open discussion with an independent Ukraine. ⁵³ But in April 2015, on the instigation of Ukrainian nationalists, the Ukrainian parliament forbade any criticism of those two organizations, which were now glorified as “fighters for Ukrainian independence.” ⁵⁴ The Polish government (then run by the liberal Civic Platform party) condemned the law but refrained from taking countermeasures in the face of the Russian aggression against Ukraine. In contrast, the PiS government has chosen confrontation, and in July 2016, the Sejm endorsed a resolution recognizing the Volhynia massacre as a genocide and declaring 11 July as a “National Day of Remembrance for Victims of the Genocide perpetrated by Ukrainian nationalists on citizens of the Second Polish Republic.” ⁵⁵ One month later, the Holocaust law was first introduced in the Polish parliament.

The 2018 statute establishes that the provisions of the 1964 Civil Code “regarding the protection of personal rights should apply to the protection of the good name of the Polish Republic and the Polish nation” and that civil cases on these issues (which can result in the imposition of substantial fines) can be instigated by an NGO acting within the scope of its statutory tasks and by the Institute of National Remembrance (Article 5). The most controversial provision of the new act (Article 6) reads:

Whoever publicly and contrary to the facts attributes to the Polish Nation or to the Polish State responsibility or co-responsibility for the Nazi crimes committed by the German Third Reich . . . or for any other offenses constituting crimes against peace, humanity or war crimes, or otherwise grossly diminishes the responsibility of the actual perpetrators of these crimes, shall be liable to a fine or deprivation of liberty for up to 3 years. ⁵⁶

Clearly, Nazi crimes were committed by the Nazis. However, the mention of “other offenses” suggests that things are somewhat less straightforward than they may at first appear. Although located in Poland, the Nazi extermination camps were by no means Polish. But the peoples of Eastern Europe did not need camps to exterminate local Jews. In Poland in particular, local populations, including the Nazi-controlled police force (the “blue police”), actively participated in the Judenjagd, “the hunt for the Jews.” ⁵⁷ This continued after the war too: during the first postwar year, hundreds of Jews were killed by Polish nationalists, including in the infamous Kielce pogrom. ⁵⁸

To be sure, the Polish case is somewhat special. In contrast to most other countries of Eastern Europe, Poland was not allied with the Nazis: Polish resistance was, in fact, among the most heroic acts of the Second World War. Poland’s human losses were proportionally higher than those of any other country, including the USSR. And while some Poles enthusiastically assisted the Nazis in their Judenjagd, others risked their lives saving Jews. Postwar “People’s Poland” prided itself on being one of the world’s most anti-fascist countries and played a key role in prosecuting Nazi war criminals. As a Polish historian puts it, the Poles have for decades been “compet[ing] with the Jews for a palm of martyrdom.” ⁵⁹ The current right-wing Polish government is now promoting that legacy as an essential part of the Polish identity, just as the country’s communist authorities once did. This explains certain similarities between (otherwise significantly different) Polish and Russian memories of the war ⁶⁰ and makes these countries particularly sensitive to accusations of crimes against humanity and to the notion of the Holocaust as the Nazis’ most abominable crime.

In June 2018, Poland repealed Article 6 of the new law in response to international pressure. ⁶¹ In January 2019, the Constitutional Tribunal of Poland, on the initiative of President Andrzej Duda, ruled unconstitutional the expression “Ukrainian nationalists” as “inconsistent . . . with the principle of specificity of legal provisions” proclaimed by Polish Constitution. ⁶² This was clearly intended as a way of softening the Polish–Ukrainian confrontation. However, other provisions of the 2018 statute remain in force, including Article 5, which has made claims of Polish co-responsibility for the Holocaust punishable with considerable fines after civil litigation. ⁶³ Other recent memory laws also remain in force in Poland, including the April 2016 act that prohibits “the propagation of communism or any other totalitarian system through the names of public buildings, structures, and facilities” and provides for the removal of communist monuments, including monuments to the Soviet “soldier-liberators.” ⁶⁴ This law is clearly modeled after the 2015 Ukrainian de-communization law. As in the case of Ukraine, the destruction of those monuments after the adoption of the Polish law brought about a tense confrontation with Russia.

Populism and Memory Laws in Putin’s Russia

In the 1990s, Boris Yeltsin and his advisors pursued a politics of memory that was largely inspired by the Western model. This approach combined Holocaust commemoration with anti-communism and a cult of national heritage, which served to counterbalance the negative assessment of the Soviet system. However, this politics failed because of a lack of resources and of trust from the population.

With the emergence of Putin’s authoritarian regime, the politics of memory in Russia took a different turn. ⁶⁵ Instead of blaming the communist past and using the notion of national heritage to stimulate “cultural patriotism,” the new regime began promoting the cult of the Great Patriotic War as a foundational event in Russian history, which—as in the Polish case—is partly understandable in light of the country’s historical experience. The groundwork for the present-day cult of the war was laid by a persistent mythologizing of the war during the late Soviet period, ⁶⁶ with the goal of whitewashing the Soviet past, including Stalin’s mass crimes, the memory of which has been marginalized by the heroic war myth. ⁶⁷ The cult of the war includes, as one of its main components, the notion of the Yalta postwar political order, which legitimizes Putin’s neo-imperial ambitions and simultaneously makes a majority of Eastern European countries reject the “new Russian ideology.” ⁶⁸ Since the early 2000s, the memory wars between Russia and her former East European satellites typically deploy around interpretations of the war.

As with PiS, Putin’s regime has also co-opted the legacy of anti-fascism, portraying all anti-Russian forces—including “the historic West,” which in the Kremlin’s idiom is traditionally and irreparably anti-Russian—as inherently pro-fascist. This goes back to Stalinist propaganda, when whoever dared to criticize communism was immediately called fascist. ⁶⁹

The immediate prehistory of the 2014 Russian memory law, also known as the Yarovaya Act, ⁷⁰ goes back to the Russian–Estonian war of words that ensued after the relocation of the “Bronze Soldier” (a memorial to Soviet “soldier-liberators”) from downtown Tallinn to a war cemetery in 2007. ⁷¹ This episode emboldened Russian nationalists who sought to introduce new legislation that would “ban insults to the significance of [Russia’s] great Victory.” ⁷² As a precedent, they routinely evoked criminalization of Holocaust denial in the West. The 2008 armed conflict with Georgia further contributed to the radicalization of Putin’s politics of memory. So did the subsequent confrontation with the West, as well as the Prague Declaration on European Conscience and Communism calling for the “recognition that many crimes committed in the name of Communism should be assessed as crimes against humanity . . . in the same way as Nazi crimes [had been] assessed by the Nuremberg Tribunal.” ⁷³ The rise of the democratic protest movement in December 2011 and its May 2012 suppression by force showed that the “Putin consensus” of the 2000s, based on a compromise between liberal values and neo-imperial restoration, had outlived itself. The regime drastically changed its cultural policy, adopted an aggressive posture vis-à-vis the West in international relations, and passed several repressive laws that introduced censorship of the Internet, restricted the freedom of meetings, and proscribed “insults to religious sentiments” and “the denial of traditional family values.” ⁷⁴ A law criminalizing counter-memories of the war was a logical continuation of this policy. Although the government’s experts remained critical of the draft law due to its vagueness, the bill (the first version of which was introduced in the Duma in May 2009) was passed in the wake of the 2014 annexation of Crimea, suggesting that the war myth was an essential component of the propaganda campaign aimed at justifying Putin’s aggression against Ukraine.

The May 2014 law added a new article (Article 354.1, “Rehabilitation of Nazism”) to the Penal Code of the Russian Federation:

The denial of facts established by the Judgment of the [Nuremberg] Tribunal …, the justification of crimes established by the above-mentioned Judgment, as well as dissemination of knowingly false information on the activities of the USSR during the Second World War, when expressed publicly, are punishable by a fine of up to three hundred thousand roubles . . . or by deprivation of liberty for up to three years. ⁷⁵

The punishment is increased to up to five years of imprisonment if “the same deeds [have been] committed with the use of one’s official position or through the mass media, as well as with fabrication of prosecution evidence” ⁷⁶ (which arguably applies to historical research that is not in line with the official interpretation of the Second World War). The act also provides that “manifest disrespect toward society regarding Russia’s days of military glory . . . or public insults to the symbols of Russia’s military glory” are punishable by a fine or by correctional labor for up to one year. ⁷⁷ Presumably, the goal of the Russian lawmakers was to justify the Soviet Union’s policies in response to the three main charges leveled at its actions before, during, and after the Second World War: its involvement in the outbreak of war, war crimes committed by the Red Army, and the establishment of puppet regimes in the “people’s democracies” of Eastern Europe.

Members of the Russian Duma claim that this particular piece of legislation is no different from Western memory laws. ⁷⁸ But it can, rather, be regarded as an extreme case of the East European trend toward using memory laws for the protection of national narratives, as it openly privileges the memory of an oppressive regime over that of its victims. In contrast, West European (and some East European) memory laws, notwithstanding their shortcomings, protect the memory of victims of state-sponsored crimes. A statute similar to the Russian law of May 2014 exists only in Turkey: Article 301 of the Turkish Penal Code in 2005 criminalized insults to the Turkish state and is normally used against those who recognize the extermination of the Armenians in the Ottoman Empire as a genocide. ⁷⁹ As noted above, Poland repealed parts of a comparable law in June 2018.

The repealed Polish statute and its Russian and Turkish prototypes differ in important ways. Russian and Turkish crimes against humanity were state-sponsored crimes imputable to the oppressive regimes that existed in those countries, while the Polish crimes were those of individual perpetrators.

To better understand the meaning of the 2014 Russian statute, we will compare it with an alternative Russian bill whose authors sought to find a middle ground between the Russian myth of the war and Western memories of the Holocaust, with the obvious goal of making this myth more acceptable to international opinion. This bill was initiated by Boris Spiegel, a Russian “oligarch,” politician, and prominent Russian-Jewish activist. In June 2010, he created World Without Nazism, an international human rights movement, which proclaimed the struggle against Nazi ideology and historical revisionism as its main goal.

The memory of the Holocaust had been cautiously promoted by Boris Yeltsin’s government, but its status in Russia began to change under Putin. This memory, and the notion of human rights more generally, gradually came to be seen as an ideological weapon wielded by the West in its “crusade” against Russia. At the same time, however, Holocaust commemoration had promise, insofar as the Nazis had indeed found collaborators in some Eastern European countries—a fact that the politics of memory in those countries sought to obscure. ⁸⁰ The Kremlin could therefore hope to build a “coalition of memory” with the West against its Eastern European opponents. The traditional Stalinist war myth, however, would be of little use here (as almost unanimously negative Western reactions to Yarovaya’s draft law of 2009 had clearly demonstrated).

In March 2013, Spiegel had proposed expanding the list of offences detailed in Article 282 of the Penal Code by including the rehabilitation of Nazism and Holocaust denial. Had his proposal been accepted, Article 282 would have criminalized

actions aiming at inciting hatred or enmity, rehabilitating Nazism, glorifying Nazi criminals and their accomplices, denying the Holocaust, the disparagement of the human dignity of a person or a group of persons on the basis of gender, race, nationality, language, origins, religion, or belonging to a social group, committed publicly or through the media. ⁸¹

This bill was indeed similar to West European Holocaust denial laws, which consider Nazi crimes to be offences of a racist nature. But Spiegel’s approach eroded the “purity” of the Russian war myth and was rejected by the Duma (while Spiegel himself had to resign as a member of the Council of the Federation, formally because of a new law that forbade combining positions in the parliament with those in international NGOs, which would include a World Without Nazism).

After the adoption of the Yarovaya Act in 2014, several other memory law drafts were introduced in the Russian parliament, including two similar drafts of 2015 (prepared by the Communist Party of the Russian Federation and by the national-populist Liberal Democratic Party of Russia) that criminalized “publicly equating the political regime of the USSR and the regime of Nazi Germany.” ⁸² None of them were approved by the Parliament; neither was the proposal (submitted by Boris Spiegel’s former collaborator, Konstantin Dobrynin) to criminalize the denial of those actions “that had been officially condemned by the [Russian] state as crimes of Stalin’s totalitarian regime” ⁸³ (which would include political repressions and the deportations of entire peoples).

The Yarovaya Act is very infrequently used in Russian courts (in contrast to the ban on the display of Nazi symbols, to which a November 2014 law assimilated the symbols of the Organization of Ukrainian Nationalists and of the Ukrainian Insurgent Army). ⁸⁴ And when it is, it serves to penalize any criticism of the official Soviet/Russian narrative of the war, while numerous cases of Holocaust denialism go unpunished. Thus, in June 2016, Vladimir Luzgin was sentenced by a court in Perm to a fine of 200,000 roubles (currently about $3,000) for reposting an article claiming that the Second World War began with the German and Soviet invasion of Poland. In November 2017, Ivan Lyubshin from Kaluga was sentenced to a fine of 400,000 roubles for posting on the popular social network VKontakte a video showing the joint Nazi-Soviet military parade in Brest in 1939, criticizing war crimes committed by the Red Army, and equating the Stalinist USSR and Nazi Germany. In February 2018, a case against Igor Dorogoy was brought on the initiative of the Magadan office of the Federal Security Service for a post on Odnoklassniki, another well-established social network, where, among other things, he called Marshal Zhukov a “marauder.” The prosecutors are interpreting this as a public insult to a symbol of Russia’s military glory. At the time of writing, the case is still ongoing.

The first attempt (and the only one to date) to use Article 354.1 to counter Holocaust denial was made in August 2017, when a criminal case was brought against Roman Yushkov, a nationalist activist from Perm, who had reposted an article by Murmansk blogger Anton Blagin entitled “Jews! Return to Germans Money for Your Fraud with ‘Holocaust Six Millions Jews [sic]!’” This typically denialist text is still available on Blagin’s page on LifeJournal, and links to Yushkov’s post can be found on several pages on VKontakte, Facebook, and elsewhere. So far, no charges against Blagin have been brought, even after he publicly intervened in support of Yushkov and acknowledged his authorship of the original blog. In September 2018, Yushkov was acquitted by a court at Perm, in yet another sign that the Russian authorities’ real concern is to protect the memory of Stalinism rather than that of the Holocaust.

Populism and Memory Laws in Ukraine

Since 2004, the politics of the past in Ukraine has been closely interwoven with the Russian–Ukrainian memory war. This politics consists of harsh confrontations between, on the one side, the Kremlin and its Ukrainian supporters who seek to promote the Soviet/Russian war myth in Ukraine, and on the other Ukrainian nationalists and national liberals who reject the Communist legacy, condemn Stalin’s repressions (including the Holodomor, the 1932–1933 man-made famine that cost some three million Ukrainian lives), and—although to different degrees—rehabilitate “fighters for Ukraine’s independence” and their far-right leaders, such as Stepan Bandera and Roman Shukhevych. The rapid polarization of political forces and the radicalization of their memory claims in the 2000s and 2010s stand in sharp contrast to the cautious history politics in Ukraine in the 1990s. Ukrainian lawmakers have proven to be exceptionally prolific drafters of memory laws: since 2005, they have introduced more than eighty bills in the Supreme Rada on various issues related to history. ⁸⁵

Upon coming to power in 2005, Viktor Yushchenko launched a large-scale campaign to promote the memory of the Holodomor as a myth of the origins of independent Ukraine, for which he expected to gain support in the predominantly Russian-speaking Eastern Ukraine (where the Holodomor had taken place), as well as the broad endorsement of the international community. However, he failed to overcome nostalgia for the USSR or create a national consensus around his de-communization agenda in memory politics and ended up by joining the (mostly West Ukrainian) radical nationalists in promoting the cults of Bandera and Shukhevych (awarding the title of Hero of Ukraine to both). ⁸⁶ His attempt to criminalize the denial of the Holodomor as genocide of the Ukrainian people (and of the Holocaust as genocide of the Jewish people) resulted in only partial success: in November 2006, the Rada agreed to recognize the Holodomor as a genocide and its public denial as “an insult to, and humiliation of, the dignity of the Ukrainian people.” ⁸⁷ No criminal sanctions for contesting this assessment were however introduced.

The battle of memory laws in Ukraine reached its peak in 2008–2012, on the eve and in the aftermath of the 2010 presidential elections (which Yushchenko lost to Viktor Yanukovych). Most new legislative initiatives came from a group of pro-Russian politicians, many of whom collaborated with Boris Spiegel (who had been born in Ukraine and had strong political and business connections there) and supported his World Without Nazism project. It was in this milieu (supported by the Russian Ministry of Foreign Affairs and arguably by the Russian secret services) of pro-Russian Ukrainian politicians, Russian nationalists involved in Ukrainian politics, and Russian-Jewish activists close to the Kremlin that the new vocabulary of Putin’s history politics was developed. The vocabulary centered on condemning attempts to rehabilitate Nazism and the glorification of Nazi war criminals and their accomplices (such as Bandera and Shukhevych, who had indeed collaborated with the Nazis). The first memory law draft to use this formula was proposed by Vadim Kolesnichenko, an MP from Viktor Yanukovych’s Party of the Regions, in January 2009. ⁸⁸ It was rejected by the Rada on formal grounds (due to its imprecise language), as were dozens of other bills that either prohibited the rehabilitation of Nazism or banned both Nazi and communist ideology, recognized anti-Soviet partisans “as a party to the Second World War,” and gave them the full privileges of war veterans.

It was not until January 2014, however, that a bill criminalizing “the public denial or justification of fascist crimes against humanity …, including crimes committed by . . . those who fought against the anti-Hitler coalition and collaborated with the fascist occupiers,” ⁸⁹ was adopted by the Rada as part of the “dictatorship laws package,” which was passed by Yanukovych’s supporters in violation of parliamentary procedures as part of a failed attempt to suppress the Maidan protest movement. This law was drafted by Petro Simonenko, leader of the Ukrainian communists, and the reference to the anti-Hitler coalition was clearly borrowed from the Yarovaya Act (or more exactly, from its first version). In contrast to other dictatorship laws, which were declared null and void just a few days after their adoption, the Simonenko Act remained in force (although it was never implemented) until April 2015, when the new Ukrainian government passed four de-communization laws, all of which had to do with historical memory.

Some of these laws were drafted, on behalf of the predominantly centrist government, by the Ukrainian Institute of National Remembrance (created under Viktor Yushchenko in 2005 in imitation of, and with the help of, its Polish homologue), while others were proposed by ultra-nationalists from Oleg Lyashko’s Radical Party (which was then part of the governmental coalition). The new laws declassified Soviet-era archives (including security files) ⁹⁰ and modified the rules for celebrating the memory of the victory over Nazism in the Second World War (not the victory of the Soviet Union in the Great Patriotic War, as formulated in the aforementioned law of 2000). ⁹¹ They also prescribed the demolition of Soviet monuments (which inaugurated the Leninopad, literally “the fall of Lenin,” a mass destruction of Lenin’s statues), recognized both communist and fascist regimes as criminal, and banned “the public denial of [their] criminal character” as well as the use of their symbols. ⁹² They further prohibited criticism of the independence movement and specifically any “lack of respect” toward its participants and “public denial of the lawfulness of the struggle for Ukraine’s independence in the twentieth century,” such denial being “recognized as an outrage toward the memory of fighters for Ukraine’s freedom . . . and as a disparagement of the Ukrainian people.” None of these laws, however, has introduced any criminal sanctions for violating any bans on the statements about the past. ⁹³ Most of the norms introduced by the de-communization laws harken back to a bill that was drafted by Oleh Tyahnibok, leader of the ultra-nationalist Svoboda party, back in November 2005, ⁹⁴ and have since remained, although in somewhat different versions, on the agenda of both Ukrainian right-wing populists and national liberals. It goes without saying that the de-communization laws have been negatively perceived in both Poland and Russia and have contributed to the exacerbation of memory conflicts in the region. ⁹⁵

Concluding Remarks

The “war of laws” has become an essential part of the memory wars fought both within and between Poland, Ukraine, and Russia. In recent years, national populism has decisively influenced these countries’ legislation of the past. But although national populists may fight each other, they largely share the same patterns of thought and behavior. And what unites them may prove far more powerful than what divides them, as evidenced in particular by the “family resemblance” between Poland’s 2018, Russia’s 2014, and Ukraine’s 2015 statutes. In all cases, populist-promoted memory laws protect national narratives rather than the transnational memory of the victims of state-sponsored crimes. The notion of state repentance for the crimes of the past is totally alien to the populist politics of memory, which is why this politics is inherently conflictual.

There are, however, significant differences between the narratives supported by Russian, Polish, and Ukrainian nationalists. Thus, Russian and pro-Russian Ukrainian populists promote a cult of the Great Patriotic War to legitimize the Kremlin’s neo-imperialist ambitions, while Polish and anti-Russian Ukrainian nationalists consider their countries as victims of both Nazism and communism and reject the “good war” consensus. For this, Moscow condemns them as “Nazi allies.” At the same time, Russian and Polish nationalists alike cultivate the legacy of antifascism, which Ukrainian nationalists typically downplay (it goes without saying that in each country there are also populists who openly sympathize with fascism). Finally, Polish and Ukrainian nationalists radically disagree on the ethnic cleansing perpetrated by Poles against Ukrainians and by Ukrainians against Poles. In this debate, the Kremlin presents as tertius gaudens.

The legacy of anti-fascism features prominently in today’s politics. Holocaust denial laws, including the postwar antifascist legislation that forms the core of international human rights law, have been born of this legacy. But the array of those claiming anti-fascist credentials is broad, including far-right anti-fascists and far-left anti-fascists. Before 1989, Soviet and Polish communists alike used anti-fascism to legitimize alternative forms of dictatorship, and national populists in both countries currently do the same.

Alongside the legacy of anti-fascism, both the Putin and the Kaczyński regimes have inherited their countries’ own far-right traditions. In Russia’s case, this encompasses the Eurasian movement and such conservative historical thinkers as Ivan Ilyin, whom Putin particularly admires. ⁹⁶ In the Polish case, the legacies of Józef Piłsudski and Roman Dmowski, all differences between them notwithstanding, are fundamental to PiS-style nationalism. ⁹⁷ Anti-fascism has paradoxically merged in Russia and Poland with their national traditions of near-fascism.

But here again, the Polish and the Russian cases are by no means identical. Present-day Polish right-wing anti-fascism goes hand-in-hand with anti-communism. The Kremlin, in contrast, is (very cautiously) using anti-communism mostly in domestic politics, because anti-communism in international relations often involves an anti-Russian component (namely, criticism of the Soviet empire). And it goes without saying that in many respects, Putinism is a continuation of, rather than a break with, the Soviet system. Also, Poland does not seem to have strong neo-imperial ambitions (although at a certain point in its history it was the dominant political force in Eastern Europe), while Putin’s Russia clearly does. The prewar Polish regime, although dictatorial, was not even remotely as oppressive as Stalinism, and today’s Poland is still far from attaining the level of unfreedom typical of Putin’s Russia. Yet in both cases, anti-fascist rhetoric is widely used to present Poles and Russians uniformly as victims and to whitewash crimes that some of them were involved in. This makes Poland and Russia different from most other Eastern European countries (including Ukraine), where anti-fascism is less a matter of national pride. This explains why the 2018 Polish enactment differs from other de-communizing memory laws and comes closest to the 2014 Russian statute.

Was the transformation of memory laws, from an instrument of democratic politics of history into a weapon of choice used by national populists, inevitable? I believe that it was quite likely to occur because the rise of memory favors particularism and the logic of proper names. Laws that penalize the denial of concrete historical events could certainly be, and have indeed been, used to protect essentially universal symbols such as the memory of the Holocaust, but their focus on individual events makes them especially suitable for protecting sacred symbols of particular communities and their national narratives. Those laws largely operate on the level of political symbolism rather than of rational discourse. Populism, with its appeal to the emotional, appears more than democracy to be at home in the domain of symbolism, memory, and myth.

Laws criminalizing certain cases of enunciation about the past have marked a new stage in the development of history politics across Europe, and not only because of an obvious distance between promoting certain ideas and punishing those who publicly disagree with them. These laws have contributed to the reactivation of the notion of the sacred in our societies, a notion that can, and often does, generate and legitimize an emotional need for suppressing opinions commonly assessed as blasphemous. The current revival of antagonistic memories promoted by national populist movements ⁹⁸ could only profit from a mental climate that favors such reactions. It has also profited from the “growing punitive trend that is introducing new speech bans into national criminal codes,” ⁹⁹ the trend that liberal democracies initiated at the time of their apparent triumph over their fascist and communist rivals in the late twentieth century. By doing so, they have forged a weapon that populists could not fail to use. Today, this punitive trend, of which memory laws are an essential component, increasingly often informs the politics of the new authoritarian regimes and national populist parties and governments.