A Legal Battle against History

Published by Stanislav Kuvaldin at 13/02/2018

On 26 January 2018 the Polish Sejm passed a bill amending the Law on the Institute of National Remembrance (INR). Approved by the Senate on the night of 1 February 2018, it is perhaps the most controversial piece of recent legislation in Poland and has already provoked diplomatic tensions with Israel, protests of some US congressmen and objections from Ukraine. On 6 February 2018, Poland’s president signed the draft amendments to the Law on the Institute of National Remembrance. By doing so, he destroyed the cautious hope that the Polish head of state would suspend the adoption of this extremely controversial bill. (Indeed, President Andrzej Duda of the ruling Law and Justice (PiS) party has on a few occasions acted as a last-minute emergency brake to the most questionable lawmaking initiatives of his party’s members, such as certain bills related to the country’s judicial reform which had also triggered severe criticism both within the country and from the EU.)

History Oversight Authority

The new law adds a new responsibility to the current mandate of the Institute of National Remembrance. A special institution within the Polish governance system, the INR combines research with prosecutorial functions (the kind of powers that the Inquisition sought in older times). The INR’s responsibilities include research and investigation of crimes against the Polish people (meaning Polish citizens) committed by foreign totalitarian regimes such as Nazism and Communism, and by the pro-Soviet Polish government and its security services between 1944 and 1990. The INR keeps the archives of the former Polish People’s Republic security services and those left behind by the occupying security services of the Third Reich and the Soviet Union. INR experts are mandated to study these archives both for academic research purposes and to find evidence of crimes, so that the relevant INR Commission, which is part of the prosecutor’s office, may prosecute, investigate and send such cases to court. The INR also fulfills educational functions. This comprehensive mandate makes the INR a powerful historical policy body engaged in a partisan study of the past, potentially leading to legal interventions where historical data can be interpreted as evidence of crimes. The INR also monitors compliance with legislation on how specific parts of the country’s historical heritage should be treated. For example, the INR oversees the observance of Poland’s “decommunisation” laws prescribing that all places named after communist figures must be renamed and any remaining monuments to Red Army soldiers must be removed from public places.

For Poland’s Good Name and against Bandera

Once the amendments of 26 January 2018 become effective, two other important functions relevant to a discussion of history will be added to the INR’s mandate.

In particular, the amendments introduce criminal liability (see text of the law in Polish) for anyone “who, in public and contrary to the facts, ascribes to the Polish people or to the Polish State, responsibility or co-responsibility for Nazi crimes committed by the Third Reich,” or “who otherwise grossly understates the responsibility of the actual perpetrators of said crimes.” Such acts are punishable by a fine or imprisonment for up to three years (if the offence is unintentional, the punishment may be less severe).

In another equally important amendment, the types of crimes which the INR is mandated to investigate now include the activities of Ukrainian nationalists and Ukrainian armed groups who collaborated with the Third Reich. These amendments are made to Article 1 describing the INR’s functions. At the same time, Article 55 of the effective law provides that “public and counterfactual” denial of the crimes listed in Article 1 is punishable by a fine or imprisonment for up to three years. Added to Article 55 are two provisions: liability for suggesting the Polish people’s complicity in the crimes of the Third Reich (Article 55a) and a provision stating that such crimes can be prosecuted regardless of who commits them and whether the offence occurs in or outside of Poland (Article 55b), theoretically making the law enforceable worldwide.
It is unclear how exactly violators will be prosecuted, but the new Polish law allows NGOs, as well as the INR, to protect Poland’s good name by bringing cases to court as long as their charters allow them to pursue legal action.

Two Bills in One

It should be noted that overall, the proposed changes to the INR law are a political mix. The amendments introducing liability for suggesting Poland’s complicity in Nazi crimes were introduced by the ruling PiS party and defended by the government. Those adding the crimes of Ukrainian nationalists to the INR’s mandate of investigation were prepared by Kukiz’15, a right-wing populist political movement with its own agenda, separate from the government. In fact, Kukiz’15 first submitted their legislative proposal in mid-2016, but it was not considered by the Sejm at the time but shelved. Yet more recently, the right-wing populists joined the ruling party’s efforts to amend the law, so that their proposals were added to the package. Seeking support from the populist movement, the Law and Justice MPs did not object to Kukiz’15 amendments this time. In fact, both PiS and Kukiz’15 are competing for the attention of Polish right-wing voters concerned about today’s Ukrainian nationalism and the memory of mass killings of Poles by Ukrainian collaborators and nationalist groups during World War II.

The amendments to the INR law triggered a wave of critical and sometimes contradictory reactions from different sides. What concerns Israel and the US is very different from the causes of criticism in Ukraine. Moreover, the parties critical of the law are not likely to join forces. Investigating the crimes of Ukrainian collaborators during World War II, for example, does not in the least contradict Israel’s position. Therefore, while the amendments have been adopted as a single package, it makes sense to analyze them separately.

So far, criminal liability for suggesting Poland and Poles’ complicity in the Third Reich has triggered the strongest criticism. According to Israeli and US politicians and foreign policy departments, the way this provision is worded gives rise to concerns, mainly because of its ambiguity making it possible for the law to be used to suppress any sensitive discussion, e.g. of the Holocaust in Poland.

“Polish Death Camps”

The bill’s explanatory note says that it is designed to protect Poland from unfounded generalizations in describing events and concepts from World War II. In particular, the bill’s authors refer to the phrase “Polish death camps,” used from time to time to describe the death camps built by the Nazis on occupied Polish lands. Although those using the phrase do not normally imply that the camps were managed by the Poles, recently, the Polish Foreign Ministry, certain NGOs and politicians have reacted strongly to its use as insulting to Poland and the Polish people; they also argue that the phase might be exploited to accuse Poland (on legal or moral grounds) of complicity in the Holocaust.

However, a single example of inappropriate (and indeed offensive) wording could hardly be the only reason for legislative changes, all the more since the phrase in question is not explicitly mentioned in the text. This means that the law can have a broader application.

Israeli and US critics of the bill have pointed to some of its potentially harmful applications; in particular, Israel’s ambassador to Poland, Anna Azari, was one of the first to express (see text in Polish) these concerns publicly in her speech at a ceremony marking International Holocaust Remembrance Day in Oswiecim, Poland, on 27 January 2018. Ambassador Azari suggested that the legislative changes could make it a punishable offence to publish Holocaust survivors’ testimonies of Poles’ involvement in the extermination of Jews. This would mean that death camp survivors could once again become victims of persecution. Similarly, soon after President Duda signed the bill into law, US Secretary of State Rex Tillerson made a statement saying that enactment of this law could adversely affect freedom of speech and academic inquiry. In other words, Israeli and US critics of the law are concerned that the INR’s new powers now allow it to interfere with public discussion of certain sensitive issues related to the Holocaust in Poland, specifically the role of Poles who participated in pogroms, betrayed Jews to Nazi invaders or extorted money from Jews in hiding (the Polish language had a special term for those who did so: szmalcownik¹Derived from szmalc, meaning “dough,” or money in Polish slang., which in itself indicates that such behaviors were common). PiS politicians were strongly opposed to the study of these aspects of Poland’s history in previous years when their main opponent, the liberal Civic Platform party was in power. Discussion of Polish people’s role in the Holocaust in history lessons at school was particularly criticized and described in the PiS party’s political language as a “pedagogy of shame” which needed to be abandoned if future generations are to be raised proud of their country. The new law is expected to put a stop to this sort of discussion.

Line of Defence

It is noteworthy that prior to signing the law, the Polish president made a statement trying to dispel the critics’ concerns. In particular, he emphasised the explicit provision in the law that it would not apply to academic research and artistic work, meaning that artistic expression and research would not be affected by the legislative changes. In addition to this, according to President Duda, the law would counteract any attempts to attribute “integral” responsibility for the Holocaust to the Polish state and people. The Polish state, as the argument goes, could not be held responsible as it was dissolved in 1939 only to re-emerge after the Nazi occupation, and the Polish people at that time had no representation other than the government in exile and its clandestine institutions in Poland, but none of these institutions collaborated with the Nazi occupiers, least of all participated in the Holocaust. The shameful incidents of Poles betraying Jews to the occupiers and participating in pogroms are the sole responsibility of their perpetrators but not of the Polish nation; the bill’s supporters have emphasized on many occasions that Poland has the highest proportion of the Righteous among the Nations, non-Jews awarded this honorary title for risking their lives to save Jews during World War II. And certainly, President Duda emphasizes that the law only punishes allegations which are “contrary to the facts” and as such, cannot be an obstacle to Holocaust survivors’ testimony.

It does not look like President Duda’s explanations have fully satisfied the critics. It remains unclear what exactly will be defined as academic research and artistic expression and whether popular educational lectures, for example, might trigger legal action— particularly since the new law allows any NGO whose charter provides for such activity to pursue legal action “to protect Poland’s good name.”

At the moment, the Polish authorities have two options available to them to mitigate the new law’s negative effects.

In particular, the law will enter into force two weeks after being signed by the president; meanwhile, President Duda has forwarded the bill to the Constitutional Court for review of its conformity with the Constitution (specifically, with guarantees of freedom of speech). In addition to this, in the near future, the Ministry of Justice is expected to publish guidelines on how the law should be applied and which sorts of incidents may prompt legal action. The initiators of the legislative changes hope that these measures will help address some of the concerns about possible consequences of the new law once it comes into force.

Also, following a telephone conversations between Mateusz Moravetski and Benjamin Netanyahu, the Polish and Israeli heads of state, a decision was made to set up a task force to discuss the countries’ legal concerns—yet so far, only Poland has formed such a task force, while Israel seems in no hurry to send forward a negotiating team; thus, this mechanism designed to encourage dialogue and reduce mutual tensions has not been activated so far.

Ukraine Bracketed Out

It is noteworthy that in presenting the new law, Andrzej Duda has never referred to its “Ukrainian” part, thus simply ignoring all criticism voiced by Kyiv. Perhaps the Polish head of state found Ukraine’s discontent less important than Israeli and US concerns. However, the “Ukrainian” part of the law is also controversial. While reasoning that the law was designed to combat the denial of crimes committed by the OUN-UPA and Ukrainian collaborationists against Poles during World War II (in particular, the Volhynian Massacres), its drafters made sure that the wording was as offensive to Ukrainians as possible. In particular, the bill mentions “Ukrainian nationalists” explicitly as the perpetrators—although in describing the atrocities committed on behalf of Germany and the USSR, more abstract terms such as Nazism and Communism are used without reference to specific nations. Moreover, the location where the said crimes were committed is indicated as eastern Lesser Poland, a geographical name invented in the pre-war Poland for western Ukrainian lands to avoid any mention of Ukraine. The excessively general term “Ukrainian nationalists” enables a broad interpretation of their crimes, especially since the bill proposes broadening the scope of INR investigations to any “crimes against human rights” committed by nationalists between 1925 and 1950, thus allowing it to address any action of Ukrainian armed groups against Poles, including the Polish armed forces or police.

This, however, appears to be a mutual war of historical memories. According to the Polish bill’s explanatory note, Ukraine has outlawed any negative mention of “fighters for its independence” (which includes OUN and UPA members) and prohibits questioning the rightness of the Ukrainian people’s fight for independence in the 20th century. In this context, the Polish law is a confrontational response, which, however, makes a possibility of historical dialogue even more remote.[:]