Reckoning with past evils never is an easy task. Undoubtedly, fighting for historical truth appears as an inherent right of each and every nation, what corresponds to the freely chosen shape of the politics of memory of a given state. Nevertheless, the ongoing discussion over the recent changes in the law on the Institute of National Remembrance (PINR) – named as a ‘Holocaust law’ in Western media – recently enacted by the Polish parliament, clearly shows how (even justified) intentions may be sunk by the legal and diplomatic short-sightedness of their authors. Today’s decision of the president Andrzej Duda to sign the bill, despite the assurances by politicians in Warsaw, definitely would not calm Poland’s partners in Tel Aviv, Kyiv or Washington.
Amendments to the law on PINR were firstly enacted by Sejm (lower chamber of the Polish parliament) on 26th January and, regardless of initial concerns raised by Israel and Ukraine, approved later on by the Polish Senate (the upper chamber). On 6th February, president Duda signed the bill, however decided to submit the law to the Constitutional Court. What was the purpose set by the ruling party, Law and Justice (PiS), to amend the statute, belonging to the group of so-called memory laws? What are the most controversial provisions stipulated by this law that caused so huge protests in Tel Aviv or Kyiv? And how to evaluate the Duda’s recent move?
Good name of the state
As it was repeatedly presented by the authorities in Warsaw, the Polish government intended to secure the good name of the state by fighting with historical false associations, especially mirrored by the phrase ‘Polish Death Camps’, insulting for the Polish State – Concentration Camps were definitely German, what was, besides, admitted once again in the last days by the German Foreign Minister, Sigmar Gabriel. Nonetheless, the law on the PINR shall be construed as an another step in Law and Justice conservative shape of today’s Poland, what is more, oriented at internal politics and its electorate, at most. Even though, what is underline by PiS representatives, the bill seemed to be consulted with Israeli partners at least since a mid-2016, when a project was introduced, the authorities in Warsaw did not anticipate what kind of reaction it may provoke among Jewish diaspora around the globe (notably in the US) and Israel, as such. It was the first serious oversight by the Polish side. Therefore, all diplomatic efforts witnessed at present, starting with the recent statement of the Polish Prime Minister, Mateusz Morawiecki delivered in order to cool the emotions of Israelis, are rather crying over spilt milk, having in mind that the contested statute was just enacted and signed by the Polish president.
What is inside the law? Surprisingly, a phrase of ‘Polish Death Camps’ or ‘Polish Concentration Camps’ that might have been penalized does not appear in the text of the statute at all; what is more, the proposal of adding such wording to the bill tabled by one of the Senators was rejected by the majority of deputies in Senate, belonging to the ruling PiS party. Instead of this, a problematic, newly added Article 55a speaks about the possibility of prosecution (under the maximum sanction of 3 years imprisonment) of a person, who publicly and in contradiction to facts assigns the responsibility of crimes committed by the German III Reich (or any other crime against peace, crimes against humanity or war crimes stipulated in the statute of the Nuremberg Tribunal) to the Polish State or Polish Nation. Furthermore, a law on PINR penalizes also the unintentional offences, what undoubtedly is something new (and alarming) among a group of memory laws enacted by different European countries.
“There is no doubt that the term ‘Polish death camps’ is a historical misrepresentation,” the Yad Vashem memorial said. “However, restrictions on statements by scholars and others regarding the Polish people’s direct or indirect complicity with the crimes committed on their land during the Holocaust are a serious distortion.”
Notably, the second term used in the statute – a ‘Polish nation’ – is definitely far from being clear and free from any doubt, what is very dangerous in the language of criminal law, leaving too much space for a broad interpretation. Israeli doubts (“Poland wants to rewrite history”) regarding the free and unencumbered discussion over the cases of participation of some Polish citizens (but not the Polish Underground State or the Government of the Republic of Poland in exile in London) in the Nazi German crimes – like the so-called ‘shmaltsovniks’, denoting Jews or Poles hiding Jews to the German occupation power – or such atrocities as ‘Jedwabne pogrom’ of 1941, conducted by a group of Poles, acting under the inspiration of Germans, shall not be underestimated or dissembled. Especially, having in mind that the most of trees planted in the Garden of the Righteous Among the Nations in Yad Vashem, World Holocaust Center based in Jerusalem, belongs to the Polish citizens who rescued Jews during the war. That is the (prevailing) historical fact of a Polish nation strong contribution to fight against the German Nazism, impossible to be erased from the world’s memory. Thus, fighting with a penal code in a hand does not appear as a proper instrument to raise awareness over the Holocaust and its real perpetrators (Nazi Germans and the III Reich) among the international community.
Law on the PINR foresees a justification of the ‘artistic or scientific activities’, however these wording can be also subjected to numerous and unpredicted interpretations. Does, for instance, a journalistic article fall within the ambit of the provision? Who is in fact going to assess, whether a given published work meets ‘the requirements of a scientific research’ (what kind of ‘experts’ would be appointed by a relevant judge in order to answer this question)? Similarly, I am really curious, how the Polish authorities imagine conducting prosecutions also against foreigners, since the law provides a possibility of punishing anyone regardless their nationality and territory, where a crime was committed (Article 55b). Such questions are most likely to appear in the near future.
In addition to protests articulated by Israel, huge concerns over the guarantee of the freedom of expression in the light of the new law on PINR were raised by the US Department of State. Obviously, a freedom of expression is ‘a holy right’ protected by the United States constitution, while in the countries belonging to the Council of Europe it may be subjected to some limitations. Nonetheless, even the cursory reading of case-law of the European Court of Human Rights regarding the Article 10 of the Convention (securing the freedom of expression), in the light of memory laws, especially tragedy of Holocaust, leaves no place for a positive scenario for Polish authorities in potential proceedings before the Court in Strasburg. In different ‘historical cases’, notably concerning the World War II, judges in Strasburg stood on a position that only a clear negation of international core crimes, like Holocaust, may (and shall) be justified by a penal sanction – in many others (like Lehideux and Isorni against France or 1998 or Monnat against Switzerland of 2006) they treated a retributive sanction as a form of inadmissible censorship in a public discourse over difficult historical issues. Moreover, it is very feasible that a possibility of penalizing also the unintentional offences would be contested by the Court as well.
The law and Ukraine during the wae
A bit on the margin on the world’s discussion, remains the question of an another amendment to the law on PINR that caused a no less important protests, this time, in Ukraine. Following the proposal submitted by the populist parliamentary fraction of ‘Kukiz-15’, led by the charismatic ex-rocker Paweł Kukiz, Sejm included in the statute a possibility of penalization of any cases of promotion of crimes committed by ‘the Ukrainian nationalists’ and ‘Ukrainian formations collaborating with the German III Reich’. Today, the Verkhovna Rada (the Ukrainian parliament) adopted a resolution condemning the legal construction of the Polish law on PINR, naming Ukrainians – as the only nation ‘by name’ – as perpetrators of crimes against humanity and war crimes committed on Poles, equaling the Ukrainian nationalism with German Nazism or Soviet communism, and closing the door of free discussion over the unsolved historical issues.
It is obvious that the ongoing Polish-Ukrainian discussion over the evaluation of the 1943 Volhynia and Eastern Galicia massacre (an ethnic cleansing, or like the majority of Poles claim, a genocide committed by the Ukrainian Insurgent Army (UPA) on the Polish citizens of those provinces) under the fog of World War II is difficult, but putting on the whole Ukrainian underground movement ‘a label of Nazi collaborators’ is far from being true. In addition, it may cause false associations of ‘contemporary Ukrainians’ in the Polish society, what is even more dangerous, having in mind the huge wave of the Ukrainian economic migration to Poland in the last three or four years (what corresponds to the economic outcomes of the Revolution of Dignity and the Russian aggression on the east of Ukraine and the illegal annexation of the Crimean Peninsula).
Today’s decision of president Duda to sign the bill and send it immediately under the ex-post facto control to the Constitutional Court was probably the only one really likely to happen, bearing in mind the political reality in Poland. Duda simply could not have vetoed the statute, concerning his political roots in Jarosław Kaczyński’s Law and Justice party and expectations of the majority of voters supporting PiS. Nevertheless, as it seems, the better solution was to send it directly to the Constitutional Court instead of signing the bill (commencing the process of ’prior constitutional control’ stands among the presidential prerogatives) and letting the controversial and defective provisions to come into force. As many experts indicate, the legal evaluation of the law on PINR would become a real test for the Consitutional Court itself, since the constitutional crisis in Poland of 2015 and 2016, the Court seems to become one more instrument in a toolkit of a ruling party.
In his statement, president Andrzej Duda talked about a need of deep and calm historical dialogue with Israel and a possibility of changing the controversial provisions, if the Court finds them as unconstitutional, what sounds reasonable concerning the Polish-Israeli relations. Unfortunately, in Duda’s speech no single word concerning ‘the Ukrainian context’ of the law appeared, what shall be understood as alarming, bearing in mind the necessity of the strong support for Ukraine, a contemporary victim of the Russian aggression.
Fighting for historical truth with a penal code, instead of providing dialogue or education, is the matter of weak states, and sadly, Poland has just joined such a club. Even though, Warsaw is right in saying that Poles, alongside Jews, were the nation that suffered the most during the trauma of Holocaust, moreover tried to oppose the brutal policy of the German III Reich, for instance, by hiding and rescuing Jews under the threat of a death penalty. There is nothing we can do now but hope that the law on PINR would not destroy efforts of many generations working for difficult but successful Polish-Israeli and Polish-Jewish dialogue on historical matters.
“Polish Death Camps” is false
A phrase “Polish Death Camps” appearing from time to time in Western media (once disseminated even by the US President, Barack Obama) is false and insulting for Poland. Moreover, Poland has never institutionally cooperated with and supported German III Reich, thus no client government formed by Polish nationalist has been installed by the German occupants (contrary to, for instance, Vichy France headed by Marshal Philippe Pétain during the World War II).
Camps were invented, organized and managed by the German III Reich, therefore we shall speak about ‘German Death (Concentration) Camps’, possibly ‘Nazi German’, but even not ‘just’ ‘Nazi Death Camps’, since the ideology and a political system of Nazism was rooted in a real state, with real political power of Adolf Hitler and NSDAP, moreover, supported by the majority of a real German population. Since the end of the World War II Germans has successfully dealt with their past, thus any threat of re-stigmatizing Germany for mass atrocities conducted more than 70 years ago by referring to the term of ‘German Death Camps’ in the public debate is rather unlikely to happen.