Media performances called referendums on the occupied territories: Best Totalitarian practices

Almost unanimous support for the annexation of Crimea and occupied Ukrainian territories. The historical parallel is obvious: the Anschluss of Austria also tried to give legitimacy to wrongdoings through the will of the local population (what is worth mentioning – the occupied population).

One of the key Russian narratives is the distortion and discrediting of the instruments of direct democracy, namely elections and referendums. The vote of the “dead souls”, lack of alternatives in the ballot, and electoral fraud are not mere means to achieve the desired result. This also undermines trust in democracy and the gradual acceptance of dictatorship.

And if doubts regarding the necessity of elections are rare, the attitude even towards fully democratic referendums varies. A great starting position for Russian “it’s not so clear cut.” Let’s try to find out the risks of referendums and why the actions on the occupied territories should not be called even “sham referendums.”

Just so you know. It has been impossible to legally hold a local referendum in Ukraine for more than 10 years already. The Parliament of Ukraine skipped it (on purpose or accidentally) during the adoption of the Law “On the All-Ukrainian Referendum.” The draft of the law on the local referendum (even favorably evaluated by the Venice Commission) was stuck in the parliamentary committees before the war. 

An interesting legal conflict arose. On the one hand, according to the Constitution of Ukraine, citizens are entitled to participate in all-Ukrainian and local referendums. But without a detailed legal framework, these clauses are void. A referendum can only take place with clear rules. Moreover, referendums are not allowed to be held under martial law. Is it worth mentioning that according to the Code of good practice on referendums of the above-mentioned Venice Commission, the use of referendums must comply with the rule of law and democratic referendums are not possible without respect for human rights.

Hence, in 2022, no one believed this farce. Major international actors, including the EU, G7,  and the USA, unanimously condemned and totally rejected both the so-called referendums and their results on the Ukrainian territories occupied by Russia.

The fact that totalitarian regimes formally pretend to be democracies was revealed a long time ago. Thus, polls at gunpoint were called not referendums but plebiscites. Earlier, after the First World War, territorial issues were decided by plebiscites, in particular, the affiliation of Upper Silesia. In 1921, the majority of the population wanted to remain in Germany, despite the decision of the Versailles Peace Conference. This led to ambiguous territorial divisions, as later happened with Kashmir between Pakistan and India. Because of these problems, plebiscites have acquired a bad reputation; now, this definition is used for dictatorial initiatives or voting in non-democratic conditions. However, confusion is inevitable: for example, the Brexit referendum in Great Britain sometimes was called a plebiscite. Despite the efforts of bots, comparing this referendum to dictatorial farces undermines democracy in general. Suffice it to mention that the then Prime Minister David Cameron was against leaving the EU and was forced to resign. At the same time, the advantage was only 3% (heterogeneity is rather rare for plebiscites).

Plebiscites were successful only in the case of decolonization, which is now complete, not least because of the collapse of the Soviet Union. Other plebiscites, such as in Kashmir, have proved unable to resolve the issues.

Crimea, 2014. The Russians call the electoral performance on the occupied territory a referendum. (Moreover, in 2017, an analytical report “On the Legitimacy of the Referendum in Crimea” was prepared by a group of lawyers-experts in the field of international law – as an objection to the Venice Commission opinion). Before the pseudo-voting day, posters called for a choice between Russia and Nazism. There were two options on the ballots:

• reunifying Crimea with Russia as a subject of the Russian Federation;
• the restoration of the 1992 Crimean constitution and the status of Crimea as a part of Ukraine.

There were no “yes” or “no” choices typical for a referendum – rather a catch-22 situation. Despite its ambitious name, the odious constitution of 1992 contradicted the Ukrainian legislation of that time. For example, Crimea, on one’s own, decided to delegate to Ukraine the odd powers; this document was written in Russian without translation. But, above all, it declared Crimea an independent state. Nevertheless, a separatist document was valid till 1995 due to the lack of political will.

In fact (according to a leaked report from the Russian president’s Human Rights Council), the turnout was only 30%, with about half of those voting to join Russia. According to the official results, the turnout reached 83% and even 123% in Sevastopol. (Yes, the occupation authorities claimed that a quarter more people had voted than the number of residents recorded by statistics as of November 2013). All (allegedly) voted almost unanimously for annexation. As a matter of fact, people lacked an opportunity to say no, because there was no such option on the ballot.

What is more, in 2020, the Russian Constitution was amended; an additional clause explicitly prohibited the Russian government from returning any territory to its previous status once it has been declared part of Russia. Now the Kremlin will refuse to return Crimea to Ukraine, relying on its Constitution, and not on the results of the Crimean pseudo-referendum of 2014. Putin did not dare to hold a full-fledged constitutional referendum after these amendments – this action was called just an “All-Russian vote” (the relevant law was adopted and the Constitutional Court explained its peculiarities in its decision). Not surprisingly, the stakes are high. It was with these amendments that Putin reset his term count to zero, providing himself with a nearly lifelong rule. Almost 79% votes were collected with numerous violations. It is possible to question the legitimacy of this plebiscite, which was held, in particular,  in the annexed Crimea and the occupied territories of Donbas.

2022. On September 27, the so-called “Central Election Commission of the Kherson region” announced that 87% of voters expressed a desire for the Kherson region to join Russia. Nevertheless, this news recognizes the absolute inability of Russian totalitarianism. First of all, even under mass surveillance, with fear for their lives, 13% of brave local residents dared to defy the system. In Austria and Germany in 1938, not even 1% of the population voted against Anschluss. Secondly, the central election commission of the region (and not even the entire one) is a ridiculous fiction that only confirms the defeat on the battlefield. Salazar and Hitler first established power over the whole state territory and then played plebiscites. Thirdly, something like a “regional referendum” is possible where there is local self-government and has to be related to its issues. To recall a mayor or adopt the charter of the community, but by no means to join a foreign state. Last but not least: all German voters voted unanimously for the Anschluss of Austria – Putin did not dare to hold such a referendum on the entire territory of Russia.

According to Nazi models

Such patterns resemble something. Dictators turned out to use the same techniques. One of the reasons for their fondness for mass polls is the impossibility of a consolidated opposition due to mere “yes/no” alternatives. Actually, the comparison of the Russian performance algorithm with procedures of Hitler’s illegal plebiscites significantly flatters the modern occupiers.

Voting in Germany in the 1930s had a lot in common with Russian deceitful activity. At the same time, these are the German ones that should be called “sham,” “pseudo-referendums,” or “undemocratic plebiscites.” They at least had the formal signs of a referendum: they took place on the entire state territory, over which the Nazis had power, and were conducted under local legislation – whether German or Austrian (or at least obeying the law was imitated). The referendums also had a certain continuity: they were held twice in the Weimar Republic, the predecessor of the Third Reich. So the population accepted the vote in 1933 and 1934 without warning. In this way, Hitler justified withdrawing from the League of Nations and merging the posts of president and chancellor.

However, the Russians parroted a lot of other methods. The German government used large-scale intimidation and electoral fraud to secure a confident “yes” vote. Storm troopers patrolling voting areas, the election secrecy was breached. In addition, many ballots had pre-marked “yes” votes, spoiled ballots or even “no” votes were often counted as “yes” votes. Opponents of the regime were arrested before the plebiscite. 

But a distorted and veiled question was a primary tool. Here is an example: “Do you, German man and German woman, approve of the policy of your government of the Reich and are you willing to declare it as expression of your own perception and to formally confess to it?” By the time one finishes reading, the understanding of what it is all about is lost. Not a word about the League of Nations, but a lot about expressing one’s own opinion. Who doesn’t want one’s valuable opinion to be respected? 

Besides, the voting was timed to the fifteenth anniversary of the Compiegne Armistice which was an unpleasant memory for most Germans. As a result, almost 95% are in favor of withdrawal from the League of Nations (which was already conducted), and 90% are in favor of absolute power.

The approval of the Anschluss of Austria by Germany was even more original. “Do you approve of the reunification of Austria with the German Reich accomplished on 13 March 1938 and do you vote for the list of our Führer, Adolf Hitler?”

The election results’ approval and the occupied territory’s annexation were combined in one question. However, by these methods the Nazis achieved a unanimous favorable vote both from the whole of Austria and from the whole of Germany. 

Meanwhile, the “all-Russian vote” of 2020 somewhat resonates with the constitutional plebiscite of 1933 in dictatorial Portugal. Antonio Oliveira de Salazar then introduced the one-party system and secured a one-man rule. There, all those who were absent were given a “yes” vote. People also voted for the Constitution in one package. It was not possible to choose specific provisions. Women were technically allowed to vote in the 1933 constitutional referendum for the first time. Putin also manipulated this; he added the painful issue of “protecting the traditional family values” to the text. Thus, opponents of the amendments were not against oppression and dictatorship but apparently for the LGBT values of “rotten Europe.” 

How to evaluate it?

Timothy Snyder, a professor at Yale University, advises not to call what Russia is conducting on the occupied territories a “referendum” at all; using this word is misleading propaganda.

There is not only no legal basis to talk about a “referendum,” but there is also a lack of factual basis for a “sham referendum”. When we say “illegal referendum,” we admit that some voting took place with flaws. And what Russia is doing is a media exercise to shape public opinion about Russian-occupied Ukraine.

Moreover, holding referendums during an armed conflict and under the threat of the use of force is not only illegal, it contradicts the idea of a referendum. Frightened old ladies with pieces of paper are not infrastructure for voting but rather decorations.

On top of that, according to the Constitution of Ukraine, issues of altering the territory of Ukraine are resolved exclusively by an All-Ukrainian referendum. However, the Constitution is silent about the media spectacles of the occupying state. The Criminal Code is more eloquent: such actions qualify as collaborative activities. Since March 3 of last year, participation in the organization and holding an illegal referendum on the temporarily occupied territory has been punishable by imprisonment for a term of 5 to 10 years with additional restrictions.

Meanwhile, the law enforcement and judicial systems of Ukraine keep an eye out. In the verdict against the Kherson collaborator, the judge of the Odesa court, was not neutral in assessing the actions of the accused and did not hide his skepticism. The accused does not understand all the negative consequences because disapproval of the right to the existence of a nation is a crime against humanity and genocide. Isn’t it a kind of nostalgia for the Soviet pseudo-elections as a chance to have a snack and see neighbors? No, the judge believes that this is the weakness and fear of the totalitarian system for its existence. After questioning the alleged election commission member, the judge recognized him as a mindless tool of the Russian Federation.

The illegal government chose people with a minimal level of education who cannot critically analyze the situation.

Regional prosecutor’s offices (for example, Luhansk) even brought to justice in absentia the so-called “members of territorial election commissions” created by the occupying power of the aggressor state. On September 23-27, 2022, these persons compiled voter lists, issued “ballots”, counted votes, and drew up protocols. One of the accused previously worked as a state executive in Markivka. At the pseudo-referendum, under the “lens of video cameras”, she secured the voting. Nazi Germany used the same mechanisms. Even if all formal procedures are followed, free expression of will is impossible without the secrecy of voting.

In total, law enforcement officers identified 150 such collaborators in the Kherson region alone. Accompanied by Russian soldiers, they visited local residents, threatened people with weapons, intimidated and forced them to participate in the so-called “referendum”. Cases were recorded when the military broke down doors, and those who disagreed were taken away in an unknown direction. A local manager of a utility company forced the employees to vote in the referendum.Doesn’t it resemble anything?

How did international organizations and partners react?

Canada called the action “a desperate attempt to legitimize conquest and limit a surging Ukrainian counteroffensive” and ‘a mockery of the principles that Russia has pledged to uphold as a permanent member of the United Nations Security Council.” Leaders of the G7 stated that these actions in areas forcibly put under Russia’s temporary control in no way represent a legitimate expression of the will of the Ukrainian people. Moreover, they go diametrically against the rule of law among nations. The High Representative of the EU for foreign affairs noted that the results of such actions will be null, they will not have any consequences other than accountability and additional restrictive measures for those involved. The US State Department calls them spectacles, the results of which were orchestrated in Moscow and do not reflect the will of the people of Ukraine.

The rhetoric has changed significantly compared to 2014. At that time, NATO, the UN General Assembly, the Venice Commission, the EU, and the G7 recognized that the referendums contradicted the Constitution of Ukraine and international law (e.g., the G7 enumerated international treaties; the EU warned that its outcomes would not be recognized). They tried to speak in their language and with arguments where the rule of law matters. Apart from 11 states (primarily so-called rogue states), including Afghanistan, Venezuela, Cuba, Nicaragua, Syria, Sudan, and North Korea, no one else has recognized it. Despite this, the wording was crucial. In 2022, the UN General Assembly condemned “illegal so-called referendums”, and demanded it reversed its annexation declaration. In 2014 it underscored that the referendum had no validity and was not able to form the basis for any alteration of the status of Crimea or Sevastopol. Even the Constitutional Court of Ukraine recognized the referendum and all preparations to it as unconstitutional as if unconstitutionality was substantial for Russia. Now the gloves are off; the Central Election Committee of Ukraine or the Ministry of Foreign Affairs  agreed their resolutions with the assessment of international organizations. No traces of the law in this case. None: neither international nor constitutional.

The will of the people or the tyranny of the majority?

Alright, the Anschluss of Austria and Russian performances are telltale cases. And what about Brexit, the disagreement of the Netherlands on the EU-Ukraine Association Agreement in 2016, and the Greek bailout referendum in 2015, which only deepened the crisis? The Netherlands and Greece are members of the EU, and Great Britain is famous for one of the oldest democratic traditions.

By the way, high barriers have been set for referendums in Germany. There has never been an all-national referendum, even the Constitution was not approved by popular consultation. All referendums that have taken place so far were local. Once bitten, twice shy; teasing popular opinion still causes anxiety in Germany.

Such precautions helped avoid speculation on the subject of Dexit (Germany’s exit from the EU) from the far-right Alternative for Germany party. One of Russia’s biggest allies in the matter of occupation, by the way.

The referendums are likely to have achieved the greatest success in their homeland – Switzerland. As a true Swiss hallmark, they are held there almost every month. Evidently, referendums related to Ukraine will also be held in the state. In order to impose sanctions or allow weapons re-export, the people must agree to loosen up historical neutrality.

The last referendum in Switzerland was held recently, on June 18. 9 months have passed since the previous one; for the Swiss, this is a long enough break caused by a pandemic. One of the June referendum issues is also indirectly related to the war in Ukraine. It would seem to be about climate neutrality. But the referendum advertisement called on voters to “upset Putin with their voice”, and to support a gradual withdrawal from oil and gas. Almost 60% voted “for”, and the decision was passed.

So why did Switzerland succeed, and referendums become an outstanding feature of democracy? Obviously, neutrality ensures the possibility to vote without reasonable fear for their lives. But above all, it is political consciousness and willingness to take responsibility without relying on a charismatic leader. The correctness or incorrectness of decisions is difficult to assess, but this mechanism works, and what is important – it does not depend on elections. On the contrary, dictators were prone to hold elections and referendums at the same time (Hitler asked for opinions about the Anschluss of Austria or military occupation of the Rhineland region simultaneously with elections.)

Referendums are an essential instrument for determining the state’s future. For example, Norway, in 1905, almost unanimously voted for independence from Sweden. However, the population did not support joining the EU twice (in 1972 and 1994), still remaining on the sidelines. Meanwhile, Liechtenstein recently refused to ban casinos this year by a 70% majority. It’s still a pretty effective way to measure the unmeasurable, namely public opinion.

After the Brexit vote , John Rentoul, the Independent’s chief political commentator, examines whether Britain should have introduced referendums in 1972. Before that, they were considered a tool of dictators, not applicable to a representative democracy which the UK was. In particular, Prime Ministers Margaret Thatcher and Clement Attlee used to beware of them as “a device of dictators and demagogues”, even being ready to recognize its results. However, the referendum in 1975 confirmed the British’s desire to be members of the European Economic Community. Moreover, the parliament was divided regarding this issue. In 2014, the year of the annexation of Crimea, Scotland remained part of Great Britain because the majority of the population voted in a fair and democratic referendum.

Owing to the elections, Mussolini or Trump came to power. However, these drawbacks of the democratic fallacy do not mean that the election has discredited itself. They mean that critical thinking must be constantly on guard because information wars are still going on. Each of us is responsible for one’s choices.

As for ruscist or Nazi media actions… Even disguised as referendums, they cannot be held in a state with such a distorted interpretation of the rule of law. While digging a pit, looking under one’s feet is better. Without proper democratic guarantees, what goes around, can easily come around.

Olha Nykorak, German Marshall Fund of the United States research fellow, postgraduate researcher in constitutional law

The project is implemented with the support of the Ukreate Hub program from the Open Lithuania Foundation.