Why Russia's Legislation on Foreign Agents Matters During Its War Against Ukraine
By Maxim Krupskiy
Russia's undeclared war against Ukraine has been going on for one year now. This insane military conflict is an open challenge to the existing world order and raises many complex questions concerning, among other things, the identification of the domestic legal and social conditions under which this war was made possible. Analysis of their development can play an important role in creating effective mechanisms for predicting and preventing similar threats to international security at an early stage in the future.
In analyzing the war, the most important questions that must be answered are threefold. First, how did the Russian authorities manage to secure the support of a significant part of the population for this war? Second, what made tens of millions of Russians directly or indirectly support the so-called "special military operation?" And third, why is Putin's regime today quite successfully constructing a new narrative of Russia's struggle against the so-called "collective West" without facing any significant opposition from Russian citizens?
Of course, it is impossible to give an unambiguous answer to these questions, since the true causes of these social phenomena are always complex. One of the leading places in the list of reasons for the formation of such loyalty among the Russian population is rightly occupied by propaganda. However, the use of propaganda alone does not provide an answer as to why a large percentage of the population is susceptible to it. In addition, by focusing solely on the practices and mechanisms of propaganda, we risk overlooking other important reasons why individuals form a tolerant attitude toward Russian military aggression.
One of these reasons, I believe, is the systematic repression of the main actors in Russia's emerging civil society: NGOs, independent media, and civic activists. The main instrument of such repression stems from legislation regarding so-called "foreign agents.” I am convinced that the deliberate stigmatization of independent civic activity in Russia over the past decade has contributed significantly to the atomization of Russian society. It has made it possible to return to the paranoid narrative of fighting against "national traitors" and the "fifth column," and, to a certain extent, influenced the social conditions for Russian citizens to be loyal to the attack on Ukraine.
The law on "foreign agents" first appeared in Russia in 2012 in the form of amendments to the Federal Law "On Non-Commercial Organizations”. It was presented as an analog of the American FARA law, which has been in force in the U.S. since 1938. In the explanatory note to the bill, the Russian legislator argued that the law was intended to ensure openness and publicity in the activities of NGOs that receive funding from foreign sources and engage in political activities, including in the interests of their financial donors.
Despite its stated goals, the law has provoked a wave of criticism from both the third sector and the legal community. The international community also voiced its concerns about the initiative. First, the amendments did not meet the criterion of the quality of law. The concepts of "political activity" and "foreign funding" were vaguely formulated and allowed any NGO that receives foreign money to be recognized as a "foreign agent," while not requiring proof of the existence of activities in the interests of a foreign source.
Furthermore, the term "foreign agent" has a distinctly negative connotation in the perception of Russians, and is synonymous with "national traitor," "state traitor," "spy," etc. due to the legacy of the Cold War. Many warned that the reputation of organizations labeled as "foreign agents" would be unfairly undermined, and they would not be able to continue to operate freely in Russia. Government agencies, businesses, and ordinary citizens would not want to deal with "foreign agents," who, by definition, should not be trusted because they had "sold out to the West" and were a threat to Russia.
Over the next few years, the government forcibly included dozens of well-known NGOs on the "foreign agents" list. As critics predicted, everything from environmental protection and refugee assistance, to public lectures and protection of victims of police and domestic violence were recognized as political activities, and the main criterion was the receipt of foreign funding. Administrative proceedings were initiated against NGOs, and fines of hundreds of thousands to millions of rubles were imposed for their refusal to voluntarily register as a "foreign agent" and the absence of the "foreign agent" label on their materials.
As a result, many organizations were forced to give up foreign funding, which either significantly limited their opportunities or gave them no choice but to close down altogether. Pressure was especially placed on small regional organizations, whose success depended to a large extent on their cooperation with regional authorities, which proved impossible to continue while having the status of a "foreign agent.”
Against the backdrop of the war, the legislation on "foreign agents" has become stricter. Currently, not only non-profit, but also commercial organizations, media, and citizens can be labeled as "foreign agents.” It is no longer necessary to receive foreign funding; simply being "under foreign influence" is enough. There are many discriminatory restrictions for them, including a prohibition on engaging in educational activities in state educational institutions, organizing public events, or producing and distributing materials to minors. The programs and activities of organizations with the "foreign agents" designation can be canceled by state authorities, even if they do not violate the law.
Despite the fact that in June 2022, the European Court of Human Rights ruled that Russia had violated the right to freedom of assembly and association (Article 11 of the Convention) with regard to NGOs, during the war, the "foreign agents" law was applied even more intensely. Everyone who publicly spoke with an anti-war position, like famous musicians, journalists, lawyers, and bloggers, was recognized as "foreign agents," as well as the oldest and most respected NGOs, which were later liquidated. In early 2023, the State Duma is already actively discussing the issue of confiscating the property of "traitors" and "foreign agents" who left Russia, and also those who criticize the war against Ukraine and the policies of the Russian government.
Over the past ten years, the law on "foreign agents" has become a powerful tool for suppressing independent civic activity and combating dissent. On the one hand, the Russian state has managed to increase social atomization, thus creating an atmosphere of fear of "internal enemies" and distrust of civil society institutions. Participation in any civil activity independent of the state in Russia today is a risk, causing most Russians to prefer to reject it and demonstrate either a loyal attitude to state policy, or to take an indifferent position.
On the other hand, the legislation on "foreign agents" has interrupted the process of creating stable horizontal ties in Russian society that began in the 1990s and early 2000s, and the birth of a tradition of civic self-organization, based on international principles of respect for human rights and freedoms; the main centers of which were NGOs. In my opinion, this is also one of the significant reasons for the lack of anti-war consolidation of Russian citizens in the context of the aggression against Ukraine.
Any international military conflict makes it especially tempting to strengthen control over civil society under the pretext of countering the destructive activity of foreign political forces and protecting both state sovereignty and democracy. However, the Russian experience of applying the legislation on "foreign agents" clearly shows how such instruments of control can themselves become a threat to democratic values. Today, when such legislation is increasingly in demand in different countries of the world and causes reasonable concerns among the international community, the example of Russia should serve as a reminder that using such control mechanisms should be treated with special caution. In today's global world, the systematic suppression of civil society in one country is not only that country’s problem, but may one day become a factor in the destabilization of a whole region.
Maxim Krupskiy is a Visiting Scholar with the Fletcher School’s Russia and Eurasia Program, a human rights defender, attorney, and Ph.D. Candidate of Science in Philosophy. For more than a decade, he has defended refugees and civil activists persecuted by the Russian authorities for participating in peaceful demonstrations. Since the adoption of the "foreign agents" laws in Russia, he has represented numerous nonprofit human rights organizations in court, in cases challenging their inclusion in the "foreign agents" register. As an independent expert, he has prepared more than 40 anti-corruption expert opinions in the field of migration, administrative, environmental, criminal, criminal procedural legislation, and legislation on NGOs. At Fletcher, his research as a visiting scholar with the Russia and Eurasia Program focuses on the concept of “foreign agents” and how foreign agent laws impact civil society, development, human security, and democracy as a whole."
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