19. Feb 2019
Marta Bucholc is a sociologist, philosopher and legal scholar, research professor at the Käte Hamburger Center for Advanced Study in the Humanities “Law as Culture”, University of Bonn. Since 2005, she has been an associate professor at the Institute of Sociology, University of Warsaw. Her recent publications include: Schengen and the Rosary. Catholic religion and the postcolonial syndrome in Polish national habitus, Historische Sozialforschung/Historical Social Research (forthcoming) and Anachronistische Wahrnehmungen. Zur Rolle der Erinnerung in der polnischen Politik. Aus Politik und Zeitgeschichte 10-11/2018.
Maciej Komornik (LL.M.) is a Polish lawyer, patent attorney and Ph.D candidate at the German and Rhenish Legal History Institute, University of Bonn. His recent publications on the state of the rule of law in Poland include: Gewaltenteilung ausgehebelt. Der Umbau der polnischen Justiz 2017, Osteuropa 3-5/2018, and Die PiS und das Recht. Verfassungskrise und polnische Rechtskultur, Osteuropa 1–2/2016(with Marta Bucholc).
Recent Polish politics have taken a U-turn towards the past. One of the main items on the agenda of the governing Law and Justice (Prawo i Sprawiedliwość, PiS) party has long been the state of national memory. After winning the 2015 election, PiS proceeded to actively pursue the politics of memory – or a historical policy (polityka historyczna) as the party itself called it – in the name of historical justice.
A central element of this political turn is the regulation of public memory through the law. The so-called de-communization law enacted in 2016, for example, prescribed the dismantling of communist-era monuments and the re-naming of streets. This form of “legal governance of history”, as scholars of memory law have termed it, has raised less concern outside Poland than the simultaneous demolition of democratic institutions and the rule of law – despite similar ideological underpinnings. It was only after the Polish parliament passed an amendment to the Law on the Institute of National Remembrance (Instytut Pamięci Narodowej, IPN) on 26 January 2018, that PiS's memory politics suddenly became the focus of international attention. Quickly dubbed the “Holocaust law” by international media outlets for its proposed penalization of statements that implied Polish participation in Nazi crimes, international observers saw the amendment as a dangerous infringement on freedom of speech in Poland. Yet, the new law was short-lived: a year later, little is left of its most controversial provisions. Its long-term effects, however, may well outlive its spectacular appearance on the Polish political scene.
The IPN is a state agency that combines scientific, educational, publishing, and research work with investigative and prosecutorial activities. Its main tasks include the management of archival materials of the Communist secret services in Poland and the prosecution of Nazi and Communist crimes. The rather substantial January 2018 amendment to the ‘Act on the IPN’ of December 1998 (the 'IPN law'), included two particularly controversial regulations. The first and initially less known provision expanded the competency of the IPN to include prosecuting crimes committed by Ukrainian nationalists and members of Ukrainian units collaborating with Nazi Germany. This constituted a continuation of a wave of politically-sponsored remembrances of the Volhynia massacre, a mass killing of Polish civilians by Ukrainian fighters at the end of the Second World War.
The main cause for concern – or triumph, depending on your perspective – were, however, Articles 55a and 55b of the new IPN law. These amendments caused the legislation in question to be promptly, if not quite accurately, labelled the 'Polish Holocaust law'.
The first section of Article 55a reads as follows:
Whoever claims, publicly and contrary to the facts, that the Polish Nation or the Republic of Poland is responsible or co-responsible for Nazi crimes committed by the Third Reich […], or for other felonies that constitute crimes against peace, crimes against humanity or war crimes, or whoever otherwise grossly diminishes the responsibility of the true perpetrators of said crimes – shall be liable to a fine or imprisonment for up to 3 years.
Article 55b stipulated that criminal sanctions applied to Polish and foreign nationals irrespective of the regulations in force in the location where the criminal act was committed. In addition to criminal sanctions, civil sanctions were also expressly provided for.
Although, strictly speaking, these provisions applied to all Nazi crimes, the new law was characterized – for example in a February 2018 legal analysis prepared by a pro-government conservative thinktank Ordo Iuris – as analogous to the laws penalizing Holocaust denial on the books in countries such as Austria, Belgium, and Israel. In many respects, however, the law diverged substantially from prevailing patterns.
The IPN law belongs to a category of ‘memory laws’ that Polish scholar Anna Wójcik has defined as laws “endorsing certain narratives about the past, often aimed at strengthening the collective identity of a nation or community.” This rather broad definition points to an important contemporary phenomenon: a rise in the number of laws that, explicitly or implicitly, aim at shaping discourses, narratives and memories of the past in order to mould collective identities. While some legal texts, such as constitutions and especially their preambles, have a long-recognized performative function within processes of identity formation, the emergence of punitive laws whose specific goal is to prevent certain views of the past from being publicly expressed in a democratic society is a more recent development. The Second World War and the Shoah provided a powerful moral and political impulse for the development of memory laws, with regulations prohibiting Holocaust denial becoming the first paradigmatic modern memory laws. Where implemented, such laws are typically interpreted as penalizing the public denial of the Holocaust or the expression of doubt about German responsibility. They are often enacted in response to anti-Semitic or other anti-minority hate speech that is understood as a disturbance to the public order.
In that respect, Article 55a is a refracted prohibition of Holocaust denialism. Instead of punishing individuals for saying that the Holocaust did not happen or that Germans were not responsible for its atrocities, it punishes those who argue that other agents, namely the Polish nation or the Republic of Poland were responsible or co-responsible for this genocide. What the law prohibits is thus not a denial, but a positive statement pertaining to the responsibility of the Polish nation and the Republic of Poland.
Any allegations of Polish responsibility made “publicly and contrary to the facts” was to be subject to criminal sanction. The phrase “contrary to the facts” was universally understood as an official acceptance of Germany's sole responsibility for the Holocaust and the disavowal of any responsibility of the Polish nation or the Republic of Poland in the atrocities. Although a different reading was ostensibly possible, the law was taken as a legal threat to anyone who argued that a Polish person was responsible for murdering a Jewish person during the Second World War. An exemption for artistic and scientific activities provided for in the Article did little to ease concerns.
The purpose of the amendment, as outlined in the first draft law submitted in 2016, was to put an end to the use of “Polish concentration camps” or “Polish death camps” by politicians and the international media. While the phrase had indeed been widely employed, diplomatic attempts were already successful in preventing further use, according to the Polish Ministry for Foreign Affairs. Interestingly, the 2018 amendment does not mention the phrase “Polish death camps.” Even before the law's adoption, legal scholars pointed out that its scope was far broader than necessary. Tomasz Koncewicz argued that the law would “cover an infinite number of statements that the majority may disapprove of at any given time [for] not being 'sufficiently Polish'. Especially statements that failed to concur with a vision of Poland as “the republic of the righteous” were likely to fall under this rubric. PiS was suspected of trying to use the new law not to defend Poland's reputation abroad, but to suppress unflattering discussions about Poles and Jews at home, what government propaganda has termed acts of 'anti-Polonism.'
The first attempt to target those who publicly argued for Polish complicity in the murder of Jews during the Second World War was the so-called Lex Gross, an amendment to the Penal Code passed in 2006. At the time, Poland was governed by a PiS-led coalition, whose then Justice Minister, Zbigniew Ziobro, is today the driving force behind the weakening of judicial independence in the country. The trigger for the 2006 amendment was the publication of Jan T. Gross's book, which describes the killing of Jewish residents by their Polish neighbours in Jedwabne in 1941. Gross was attacked by many for his defamation of Poland's reputation, and Jedwabne became a symbol – both for those who believe in truth-seeking and for those who believe they already know the truth. Incidentally, Gross’s revelations are still questioned by the Right: in a TV interview on 13 July 2016, PiS Minister for Education, Anna Zalewska, insisted that the fact that Jews of Jedwabne had been murdered by Poles was “just an opinion” and that other historians had diverging thoughts. ‘Lex Gross’ was eventually struck down in a ruling of the Constitutional Tribunal (which coincided with a liberal takeover of power in late 2007). But in 2018, after the Constitutional Tribunal was transformed into a “governmental enabler” and Zbigniew Ziobro returned to his position as Minister of Justice, ‘Lex Gross’ was restored in new, upgraded form as the amendment to the IPN law, causing even greater havoc with its muddy logic.
As some scholars of memory laws have pointed out, the new IPN Law's attribution of “responsibility for very broadly defined crimes amounts not to historical facts, but to opinions.” There are at least three distinct matters of opinion to be considered in the wording of Article 55a: first, the relationship between facts and responsibility; second, the relationship between an individual and the State or the nation; and third, the possibility of proving a negative.
Facts and Responsibilities
Attributing responsibility is never simply a matter of fact. A fact may constitute the basis for responsibility only if there is a norm (be it legal, moral, religious or other) connecting a fact and the responsible person or persons. Neither the existence nor the contents of this rule are a matter of fact, except in a broader sense wherein the term ‘fact’ may apply to social norms. As with most issues, opinions on someone's responsibility are also likely to differ – a pluralism of opinions that is actively protected in democratic societies. From this point of view, it is possible that an individual in possession of all the established facts about the Holocaust would continue to believe that Germans were not responsible for it. In many democratic countries, the public expression of such an opinion would be liable to criminal prosecution, despite a commitment to freedom of speech. Public expression of opinion is thus limited: a certain version of the past is endorsed, in contrast to competing accounts in which, for example, the Holocaust never happened, or was a kind of assisted mass suicide.
From this point of view, it is unreasonable to reproach PiS for their adoption of an ideologically-loaded law. All memory laws contain a quantum of ideology: each officially prioritizes a certain memory of the past and makes a specific historical narrative legally binding, to the detriment of any alternatives. Their purpose is not a respect for the facts as such, but a commitment to specific values and ideas, which makes a certain vision of the past more preferable than another. As the European Court of Human Rights (ECtHR) stated in Perinçek v. Switzerland in 2015:
For the Court, the justification for making its [the Holocaust] denial a criminal offence lies not so much in that it is a clearly established historical fact but in that, in view of the historical context […], its denial, even if dressed up as impartial historical research, must invariably be seen as connoting an antidemocratic ideology and anti-Semitism.
Here, the ECtHR justifies the exclusion of certain opinions from public circulation without encouraging a denial of the facts. The Court used the somewhat thorny expression “clearly established historical fact,”: even though the evidentiary basis for German responsibility has been established beyond a reasonable doubt, the most important reason for condemning Holocaust denial is its fundamental incompatibility with the European regime of human rights. Decreed here are not the facts, but the opinions: the fact of the Holocaust is treated as an independently established truth. To decree an opinion may be a legal, political and moral imposition, but to decree a fact is pure ideology.
Individual versus the State or National Responsibility
A further implication of Article 55a: what does it mean to attribute responsibility for the Holocaust to the Polish state or the Polish nation? Even the most complex crimes are, technically speaking, committed by individuals: a person signs a document, pulls the trigger, turns the handle or simply looks away. That being said, the criminal responsibility of non-human entities such as corporations has been acknowledged in many legal systems through an extension of the principle of individual personal guilt as a prerequisite for criminal responsibility. From this point of view, a state can theoretically be criminally responsible, but not a nation (Volk,naród), although the question remains open as to how many killings by how many individuals it would take to bridge the ontological divide between individual and state responsibility. Modern states leave traces of their decision-making processes in signed documents, orders, instructions and protocols; nations do not. As such, two matters of opinion appear: first, who is a part of the nation and who is not; and second, at what point are the actions of individuals attributed to a state or a nation versus simply to themselves. The danger here is that the concept of the nation – and to a certain extent that of the state – is fundamentally blurry. It is therefore prudent to proceed cautiously in matters of collective responsibility.
The lack of prudence and caution is particularly striking in the Polish debate. While pro-government media occasionally question whether Polish citizens killed their Jewish co-nationals during the war, many politicians and some historians have chosen to dismiss the killings as the marginal acts of deviant individuals. Rather puzzlingly, pro-government historian Ewa Kurek has stated that Poles could not have murdered Jews in Jedwabne since “there was no sovereign Polish State at that time.”
While Holocaust denial is prohibited in many countries, most do not prohibit the attribution of guilt to non-German parties, provided it does not lead to a reduction of German responsibility. One possible rationale for extending responsibility is to underline a universal human solidarity which the Holocaust negated. Conversely, there is a danger in reducing responsibility and thereby inadvertently reaching a point where a genocide has occurred for which no one is responsible, be it for various psychological, political, economic, organizational, legal or cultural reasons. While diminishing responsibility constitutes a clear threat, extending it – with due care based on clearly established facts – hardly ever does, unless what is at stake is not truth and justice, but a collective ego.
How to Prove a Negative
The third matter of opinion camouflaged within Article 55a is the issue of proving a negative. Stating that there is no factual basis for claiming the Polish state or the Polish nation's partial responsibility for the Holocaust can only be justified if all facts regarding Nazi crimes were already known. But the very existence of bodies like the IPN is evidence of the contrary: we are still discovering new facts. The flawed logic here is derived partly from the false assumption that a general victim status is able to grant immunity from guilt. The historical fact that non-Jewish Poles were also victims of Nazi Germany is often mentioned in public debates. But ‘victim’ and ‘perpetrator’ are not mutually exclusive. Thus, the argument recently made by Polish Prime Minister Mateusz Morawiecki, that some Jews were also responsible for killing other Jews, does not, contrary to the intention of some of its proponents, make anyone else innocent.
In short, unless all facts are known, which is not the case, it is impossible to dismiss a designation of responsibility as “contrary to the facts”: it is only possible to prevent some facts from being discovered, or to deny the link between any number of facts and the responsibility of the state or the nation. Incidentally, it would have been tempting to test the criminality of a claim such as: 'All of humanity is responsible for the Holocaust' under Article 55a. It seems highly unlikely that uttering such a sentence would result in prosecution: despite its philosophically profundity, the statement is politically empty and cannot be used against anyone, while the purpose of Article 55a was to weaponize Polish innocence.
The amendment to the IPN law was smoothly adopted on 26 January 2018. As a matter of course, all pro-government members of parliament voted in favour, as did, surprisingly, a few opposition MPs, although the vast majority abstained, lacking either the stamina or the conviction to vote against an amendment they would later condemn. Only five MPs voted against.
Israeli officials and Jewish activists swiftly protested. Despite frequent proclamations by PiS politicians that the new IPN law was not meant to suppress freedom of speech or freedom of science and art, concerns remained. President Duda signed the new law on 6 February 2018, but decided to submit it for review by the Constitutional Tribunal (controlled by PiS), in response to the growing international pressure, including from the United States State Department.
However, this move did not stifle the outrage. When Polish Prime Minister Morawiecki appeared at the Munich Security Conference on 17 February 2018, he was asked by an Israeli journalist whether he would be prosecuted for telling the story of how Polish neighbours informed on his family during the war. In fact, the status of personal memories and their public expression raised much anxiety, since it was not – in contrast to artistic and scientific activity – expressly exempt from the scope of the new law.
A remarkable approach to the law was articulated by the president of the Polish Senate, Stanisław Karczewski, who publicly announced that “the IPN law would not be applied” while the Constitutional Tribunal deliberated. Karczewski verbalized what many felt – that the law was first and foremost an ideological declaration, a symbolic move in the Polish cultural wars.
In the bitter debates after January 2018, a litany of the usual motifs invariably resurfaced, including the equalization of Polish and Jewish victimhood, the existence of a Jewish-American conspiracy and the equation of wartime anti-Semitism with anti-Polonism. Certain media discussions featuring leading pro-government journalists and politicians have since become notorious for their openly anti-Semitic character and strikingly bad taste. Many intellectuals were attacked and Jan T. Gross, a chief target, became a symbol for anti-Polonism. Next to Israeli, Jewish and American reactions, less prominent but no less vehement ones on the Ukrainian side were also registered.
Finally, the wave of recriminations combined with American pressure resulted in an event artfully choreographed by the Polish government as a huge foreign affairs success: on 27 June 2018, a joint Polish and Israeli declaration was signed by Mateusz Morawiecki and Benjamin Netanyahu, and promptly published on the webpage of the Polish prime minister. The declaration begins with a commemoration of 30 years of Polish-Israeli relations and an announcement of continuing dialogue in the field of Holocaust research. This is followed by a rejection of the term “Polish concentration/death camps [which is] blatantly erroneous and diminishes the responsibility of Germans for establishing those camps”, as well as by a remembrance of the Polish wartime government-in-exile which had tried to prevent the Holocaust. Crimes committed against Jewish citizens by their Polish co-nationals are “acknowledged and condemned”, and the heroism of Poles saving Jews is “honoured”. Further, all “actions aimed at blaming Poland or the Polish nation as a whole for the atrocities committed by the Nazis and their collaborators of different nations” are rejected, stating that “some people – regardless of their origin, religion or worldview – revealed their darkest side at that time.” The Declaration expresses support for “free and open historical expression and research on all aspects of the Holocaust” which should be conducted
without any fear of legal obstacles, including but not limited to students, teachers, researchers, journalists and – with all certainty the survivors and their families – who will not be subject to any legal charges […] No law can and will change that.
The final section condemns “all forms of anti-Semitism”, whereby “both governments also express their rejection of anti-Polonism and other negative national stereotypes.”
As part of the bargain, Articles 55a and 55b were removed from the Act on the IPN. The legislative proceedings that followed set a new record for parliamentary speed: the draft of the statute complying with the Declaration was submitted, went through all procedural stages in both houses, was adopted, sent to the President and signed by him on the very same day, 27 June 2018.
So, after much scandal, the Polish government performed a tactical retreat and managed to get the Israeli government to commit publicly to use the term 'anti-Polonism'. In Israel, the joint declaration was hardly a popular move. Holocaust historian Yehuda Bauer stated that Netanyahu had sold the truth about the Holocaust for petty political reasons, including the organisation of the upcoming Visegrad Summit in Israel. However, the document stood. For the price of giving up the controversial criminal sanctions, the Polish government was presented with the option to use yet another hoary argument: if Israel itself does not find us guilty of anti-Semitism, who could? Indeed, it was easy to celebrate this as a triumph of Polish national interest.
A further triumph was owed to the dutiful Constitutional Tribunal, which on 17 January 2019, after 11 months of deliberation, once all possible political facts had been clearly established to the government’s satisfaction, declared the provisions regarding crimes against Poles committed by Ukrainian nationalists and members of Ukrainian units collaborating with the Third Reich unconstitutional. Few are aware that although the criminal sanctions were dropped, the option to file a civil lawsuit and impose non-criminal sanctions for making public statements about a Polish responsibility for the Holocaust remain.
All sources of public controversy were thus dealt with, or so it seemed at the time: the joint Declaration contributed next to nothing with regard to fostering a sustainable understanding between the Polish and the Israeli governments. On 18 February the Israeli government cancelled a summit of the Visegrad countries and Israel as a result of Poland pulling out after the acting Foreign Minister of Israel stated that Poles “suckled anti-Semitism with their mothers' milk.”
What is probably at least equally important, both the ultimately failed transaction with the Netanyahu government and the Constitutional Tribunal's verdict did little to remedy the negative social effects of dabbling with the IPN law. According to media reports, no prosecutions were initiated based on Article 55a before it was repealed (despite provocative self-accusations by some oppositional organizations). The new law did however have an alarming impact on mentalities and on the culture of public debate, summarized in a report prepared at the request of the Commissioner for Human Rights, Adam Bodnar, by the Centre for Research on Prejudice (Centrum Badań nad Uprzedzeniami- CBU) at the University of Warsaw. The director of the CBU, Michał Bilewicz, is one of the most internationally recognized Polish social psychologists of his generation and has been targeted by PiS in the past due to his research activity. Predictably enough, the report provided further support for those who have diagnosed a new wave of prejudice in Polish society on equal footing with a defamation of the Poland's reputation.
Although the data analysed by the CBU was gathered in March 2018, before the criminal sanctions were dropped, it seems reasonable to assume that the June 2018 amendment as well as the recent diplomatic conflict with Israel would only have reinforced the tendencies observed by the researchers a few months earlier. The report summarizes the effect of the new IPN law as quite contrary to the declared intentions of the PiS government. Instead of decreasing false and unjust historical narratives, it led to their rapid escalation. The phrase “Polish death camps” in particular gained greater interest among internet users, especially in English-speaking countries: worldwide, the frequency of the phrase increased by a factor of nine, while the overall frequency of internet searches about the Holocaust remained unchanged.
Internationally, the main result of PiS's attempt to defend Poland's reputation was further a denigration of the same. Domestically, the outcome was an ever-deepening polarization on the subject the history of Polish-Jewish relations. While the number of people convinced that all Poles engaged in helping Jewish citizens during the war rose by 100%, the percentage of those willing to discuss cases of Polish collaboration with Germans also increased. However, this did not translate into a significant shift in attitudes towards historical truth: adherents of a narcissistic view of the Polish nation as well as those who hold anti-Semitic views remain unwilling to admit that there were murderers among the Poles, too. A further deplorable effect was the rise in anti-Semitic hate speech in public debate: previously marginalized expressions, phrases and tropes have made it into mainstream public discourse, likely for good.
Prejudice-mongering epitomized by the new IPN law has contributed to a negative picture of Poland abroad, and deepened social conflict in the country. However, the most disquieting aspect is that the highly polarized debate actually adequately reflects the split in opinion: in February 2018, the Public Opinion Research Centre (CBOS) in Warsaw published a report demonstrating that 40% of a representative sample of Poles supported criminal sanctions for spreading false opinions about Polish responsibility for wartime atrocities. 51% of Poles believed that it would be better to counteract such speech by means other than criminal prosecution. These two halves of Polish society are unlikely to be reconciled, and the Polish-Jewish past remains a deeply antagonizing factor.
The division of Polish society predates PiS, but its persistence is undoubtedly the responsibility of those who deliberately introduced the language of prejudice, hate and aggression into the public discourse. As such, the Polish cultural wars continue. The public murder of Paweł Adamowicz, the liberal mayor of Gdańsk, on 13 January 2018 was seen by some as both shocking and unsurprising in the “heated climate of Poland." Old sentiments and resentments have been revived not as part of a collective self-reflection, but to enhance a collective ego-defence at the expense of societal trust and international credibility. However, the symbolic and emotional potential mobilized in service of short-sighted, ignorant politics and sloppy legislation cannot be extinguished at will. Whether or not it will turn on the political forces that deployed it, it has undoubtedly already damaged Polish society, as well as the Polish state and the Polish nation.
Marta Bucholc and Maciej Komornik: The Polish ‘Holocaust Law’ revisited: The Devastating Effects of Prejudice-Mongering. Cultures of History Forum (19.02.2019), DOI: 10.25626/0094.
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