[Interview] Andrii Nekoliak: “The politics of memory laws can be intense”

Andrii Nekoliak is a postdoctoral researcher at the Asser Institute, and a member of the MEMOCRACY project. His work centres around legal issues that arise from memory laws, with a particular focus on Ukraine and Russia. “Article 354.1 of the Russian Penal Code, which bans the rehabilitation of Nazism, is also being used to prosecute those who condemn Russia’s current war on Ukraine. It creates a mood of paranoia and a feeling as if the country were in a besieged fortress.” An interview.

What is the focus of your current research?
“I am a postdoctoral researcher in the MEMOCRACY project, which focuses on the legal challenges posed by memory laws. It is a consortium with teams from Poland, Germany, Denmark and the Netherlands. As a member of the Dutch team, I am working on a study report which looks into political dynamics around Ukraine’s and Russia's memory laws, and issues of compatibility of these laws with European law and international law frameworks and regulations, and, for instance, with the practice by the European Court of Human Rights.”

What exactly is a memory law, and why is this topic  important?
“There are two ways to define a memory law. The broad definition includes official statements by, for instance, a national parliament that contribute to a particular understanding of history. This could include things like resolutions, declarations, and preambles to laws. The narrow definition is more legalistic: memory laws are laws that punish certain types of speech about the past. This includes laws that deal with historical denialism. The ban on Holocaust denial is an example of a punitive memory law. Memory laws pose important questions for liberal democracies. First of all, what is the legitimacy of regulating the historical discourse? And what are the conditions for that? Should some thresholds be mapped before a state engages in legal regulation of historical speech? And secondly, there is the issue of freedom of speech. Can a liberal policy limit individual freedom of speech? Is it even acceptable to criminalise historical speech? There are many philosophical and very practical questions that can arise in regard to the question why liberal democracies should, or should not regulate historical speech. And these regulations also entail legal problems.”

How do memory laws influence the way societies remember and interpret their past?
“Let me go back to the distinction between punitive and non-punitive memory laws. Memory laws can have a symbolic impact, for instance when a parliament votes for a declaration upholding the commemoration of a historical figure. Or when it dedicates a museum to a historical figure or historical event. These kinds of policies add an ‘expressive weight’, as Eric Heinze would say, to a certain historical representation of the past. One can think about this type of intervention as very lenient, as being a purely symbolic act. However, the intervention can become heavier when, for instance, public funding is involved. It grows to hold the most weight when restrictions on individual freedom and historical discourse are being set through a punitive memory law.”

Can you give examples of countries where memory laws have played a significant role in shaping public discourse and historical narratives?
“To me, as a political scientist, your question echoes issues of operationalisation and measurement. To study public perceptions of a particular issue over time, we need to collect data on how people's opinions have changed on that issue over a period of time. There is actually great research by the political scientist Félix Krawatzek, who did exactly that: he surveyed civic attitudes to memory laws among youth in Poland and Ukraine.  To answer your question: Germany is an example of a liberal democracy that has shaped public discourse by banning the denial of the Holocaust for decades.”

Can memory laws contribute to a social reconciliation with historical injustices? If so, how?
“Here we are entering the terrain of transitional justice, which is a set of processes and mechanisms that societies use to deal with a violent past, typically after a period of conflict or dictatorship. There is a very famous and important work by Barbara Misztal, who has examined prevalent assumptions in the literature about the links between memory and democracy. On the one hand, engaging with historical injustice and the memory of those injustices - via truth commissions for instance - is good for societal reconciliation. Engaging with historical injustice is indispensable tool for restoring a legal ethos of justice in a community. However, she also identifies an opposite direction where an excessive amount of public discussion over memory can be detrimental for a democracy, because you cannot consolidate societal trust, trust in public institutions, or trust in a state, which is essential for the operation of a democratic government. 

So, whether memory laws have a potential to help with social reconciliation, I think, depends on the agents who deal with historical discourse in a society, the so-called ‘memory entrepreneurs’. There can be figures who instrumentalise memory discourse in a populist manner, or with the intention to instigate resentment, or to discriminate minorities. But if there is enough responsibility and pragmatism on behalf of politicians, civil society leaders, and journalists not to abuse historical memory, then, memory laws are less detrimental. Once again, to have a clear answer to this question, it is necessary to have data over periods of time and contexts.”

You have recently written a publication about the Russian regime employing memory laws to suppress anti-war dissent. Can you expand on how memory laws interact with freedom of speech?
“Russian memory laws are peculiar. Nikolay Koposov, an expert on Russia’s history and politics, has argued that they mimic Western European laws that ban Holocaust denialism: on the surface, they deal with the topic of Nazi crimes. Yet, as he explains, the actual political dynamics around these laws showcase the intent to protect the memory of the Stalinist regime, rather than the memory of the victims of the Soviet totalitarian regime. In my recent publication, I support Koposov’s original point. In my article, I show that Article 354.1 of the Russian Penal Code, which was introduced by the Russian parliament back in 2014 and bans the rehabilitation of Nazism, is used to prosecute those who claim that Soviet Union under Joseph Stalin was also responsible for the outbreak of World War II, due to the Molotov-Ribbentraup Pact. But the law is also being used to prosecute those who condemn Russia’s current war on Ukraine. It is being used to create a mood of paranoia and fear among the population, and a feeling as if the country were in a besieged fortress.”

What led you to undertake a PhD on the topic of memory laws?
“During my master’s studies at the University of Tartu, in Estonia, I grew interested in the ‘politics of memory’ course, and my mentor, Dr. Heiko Pääbo, incited me to continue in that direction. When I was finishing my master’s degree, lots of discussions about memory laws were sparked by cases like the Ukrainian legislation of 2015, and, later, the Polish 2018 law. So, I decided to pursue this topic and embarked on a PhD. While my PhD was focused on political science questions, I am now working on issues of a more legal nature, which deal with the legal dilemmas posed by memory laws in Eastern Europe. Because I already hold a master’s in law, so returning to the law was a natural development for me.”

Your PhD focuses on memory laws in Poland and Ukraine. Can you highlight your main findings?
“In my dissertation, I examine how the politics of memory laws in Poland and Ukraine have changed since the countries became democracies in 1989/1990. I focused on the punitive memory laws of Poland and Ukraine that show how intense the politics of memory can be in the region. My main finding was that lawmakers have engaged with historical discourses over the memory of World War 2 existing in both countries differently. These, what I called, ‘adversarial’ and ‘accommodating’ orientations in law-making explain the variation in criminal punishment functions between Polish and Ukrainian laws.

In addition to this, I studied how the political situation and long-term trends in political competition in two legislatures have affected commemorative law-making in both countries.  By doing so, I gained a thorough insight into both the phenomenon of ‘memory laws’ and the legislative processes of the two country-cases. Empirically, I retrieved and coded complete datasets non-punitive legislation for Ukraine and Poland (447 and 719 pieces of legislation, respectively), covering three decades of the politics of memory in the national parliaments. I also undertook a fieldwork trip to Kyiv, collecting expert interviews with the leadership and professionals at Ukraine’s Memory Institute, parliamentarians, memory activists, and a former minister of justice. Here my main argument was that the difference in the incentives structures to leverage legislative process in parliamentary politics explained the variation in legislative outputs for Ukraine and Poland.”

Do you have any advice for young academics?
“I would advise to excel in your main discipline first. It is important to establish oneself as a capable young scholar following the requirements, expectations, and conventions prevalent in your own field first - be it political science, law, or another field. With your PhD, you will need to make a significant contribution to your field, so it is wise to stick to your discipline’s requirements.”

About the MEMOCRACY project
The proliferation of memory laws and policies in Central and Eastern Europe (CEE) has instigated a contemporary culture war in Europe, a clash concerning the meaning of the past for present European identities. The MEMOCRACY project seeks to address this democratic dilemma and the related legal and political challenges in the context of contemporary Europe. The term ‘memocracy’, coined for the purposes of this study, means ‘ruling on the basis of memory’.

Read more
In a blog post for Verfassungsblog, researchers Andrii Nekoliak (Asser Institute) and Elizaveta Klochkova (OVD-Info), describe how the Russian Federation is using a “memory law” to put pressure on potential critics of the Russian attack on Ukraine. This Russian law is used to create a mood of paranoia and fear among the population, and a feeling as if the country were in a besieged fortress. The authors think that Russian regime may increasingly use Article 354.1 to purge anti-war dissent. Read more.