A week ago, we published an analysis of the Polish draft “historical” law expanding the mandate of the Institute of National Remembrance. The draft was signed by President Andrzej Duda on February 6, which means that it will become effective tomorrow, on February 20, unless found unconstitutional by the Constitutional Tribunal, to which the President sent it immediately after signing.
Prof. Monika Platek was one of almost 90 Polish and foreign intellectuals who signed an open letter against the law, initially published in Polish by Gazeta Wyborcza on January 31. Platek is a Professor of Law at the Law Faculty of Warsaw University and heads the Criminology Department at the Institute of Penal Law, at the Law Faculty, Warsaw University. She is a co-founder of the Polish Association for Legal Education [PSEP]. She also serves as a legal and human rights expert of the Human Rights Commission at the Polish Parliament. Prof. Platek teaches comparative criminology, criminal justice, correction, comparative criminal law, and gender studies.
In general, what are your thoughts on this law?
You should know that the draft of this law is not a new thing. First of all, it started when the present governing party, “PiS”1“Prawo i Sprawiedliwość” (“Law and Justice”)., was in power in 2006-2007. And in 2007 they introduced exactly the same changes through the Senate into the law of lustration. This law was then sent to the Constitutional Tribunal, which only partly did a good job: the tribunal found the law illegal and unconstitutional, but did not go into details. It was quite obvious that this law was proposed due to a book published by Jan Tomasz Gross about the behavior of Polish people in the region where Jews were killed, about how Poles behaved when they could grab the property of Jews killed there, and about the massacre of Jedwabne2The Jedwabne pogrom was an atrocity committed on July 10, 1941, during the German occupation of Poland in World War II. Described as a massacre or a pogrom by postwar historians, it resulted in the death of at least 340 Polish Jews of all ages, locked in a barn later set on fire. A group of at least 40 Poles was involved, after being summoned in Jedwabne by German police battalions belonging to the Ordnungspolizei. These are the official findings of the Institute of National Remembrance.. But actually at that moment, this entire story was only beginning. At any rate, in 2008 Constitutional Tribunal found this kind of legislation illegal. This is a crucial point for me: we are re-introducing something already declared non-constitutional by the Constitutional Tribunal. Then we have to take into consideration the fact that the Constitutional Tribunal did not do a good job, because it didn’t go into the details of why these specific rules were not constitutional, but based its judgment simply upon procedural matters. So my argument, namely that the present law was already judged unconstitutional by the Constitutional Tribunal, is still valid. But on the other hand, someone might say: yes, but the Constitutional Tribunal didn’t go into merit, which is also true.
So, what we are facing now is that in 2015 PiS is back in power, but this time they have a total majority, and they have a president who is kind of a puppet. By saying this I might also probably commit a crime, according to the Polish law. And the truth is, [the proposal] was introduced to Parliament on July 6 2016, and then was kept there, since November 2016. It was immediately criticized, but nothing happened for almost two years. It was brought back to life on January 25 2018, and as you can see it was signed by Duda, which happened on February 6 2018. There was not much of a discussion, and under the pretense that it is all about “Polish death camps”, and that such kind of statement is illegal. There are two elements to this. The first is that this usage has not been prevalent for many years now. There was even the case of President Obama, who mistakenly used this phrase and later on apologized. Then the message was spread all over the world that the fact that Nazi concentration camps were on the Polish territory cannot be translated as “Polish Nazi concentration camps”. So this is not an issue. And in fact, in this law there is nothing about banning you from using this phrase.
Yes, it is only in the explanatory note.
In fact you can use it, because if you are saying “Polish concentration camps”, meaning that they were on Polish territory, nothing will happen. Secondly, recently we published a book about Polish concentration camps, 203 [of them], operating on the Polish territory, including in places like Auschwitz and other places, where Germans had been keeping and exterminating people. And there were, from 1945 to 1948 or 1949, those camps in Poland where Polish people were concentrated and executing innocent Germans, Ukrainians, Russians, people from Silesia3In 1945-1946, nearly all of the 4.5 million Silesians of German descent fled from now Polish Silesia, or were interned in camps and forcibly expelled, including some thousand German Jews who survived the Holocaust and had returned to Silesia., Lemkos4Lemkos are an ethnic sub-group inhabiting a stretch of the Carpathian Mountains known as Lemkivshchyna, often considered by others as a branch of Ukrainians or Rusyns. Many Lemkos were forcibly resettled after the World War II, initially to the Soviet Union (about 90,000 people) and later to Poland’s newly acquired western lands (about 35,000) in the Operation Vistula campaign. This action was a state ordered removal of the civilian population, in a counter-insurgency operation to remove potential support for guerrilla war being waged by the Ukrainian Insurgent Army (UPA) in south-eastern Poland., Poles, Jews, you name it. Yes, we had 203 concentration camps in Poland.
The second thing is that if you make such a law, and if you make it that way in the country that has demolished democratic instruments, you cannot count on the people in power being held in check by other elements. Both government and courts lack oversight. And the courts are totally subject to the government in power. So you cannot even count on that.
[The draft law] says “publicly and against the fact”. And the truth is that for the last 20 years an entire library of books has appeared describing the position taken by Polish people during the war. And the truth one sees in these studies is that, indeed, in this nation you had heroes, but also a lot of people who were frightened, neutral, disinterested, or who disliked those of Jewish origin. And you had a bulk of people persecuting, killing, and betraying Jewish people to the Germans. And also killing those Jews who survived the war after it ended. These are the facts. And if you want to pretend that those facts don’t exist, it paints a bad picture of the nation. This is a sign of immaturity. It shows we might have trouble with our self-esteem and our self-perception. Pretending that those crimes were not committed will not help. It is like that phrase “don’t think about white bear”, or the “pink elephant”. So, there is a big elephant in the room throughout this whole discussion. The best evidence of the problem we had during the Second World War is the Polish attitude towards immigrants right now. It wasn’t a problem two years ago, when Poland received over 150,000 people from Chechnya, who were Muslim and not well-adapted, but nobody really cared. Except for specialized groups, like the Polish Association for Legal Education, where we were showing that taking children to kindergarten or school is the best way for people to adapt. Later, of course, some of these people smoothly immigrated to countries where they were better received than in Poland, but it isn’t the issue. If you are making it into one, and if you are able to do it in such a short time, that shows that this nation has a practice of neglecting, hiding, and trying not to admit crimes. To do it in such a style—on Friday, when it is Shabbat, at night—becomes a trait of the Polish government. This is how they work, as is following through despite all the negative opinion. And you also have to admit that by doing it they are gaining a lot of support. So two years ago there were people would either not think much about or stay silent because they knew: it is not acceptable among cultivated people to be an anti-Semite. But today those people are anti-Semites themselves.
And this is broadly accepted and stimulated by the people from the present parliament. And I wouldn’t blame Kaczynski alone, although he is the one behind it. And he started it by using fascist epithets5Jarosław Kaczyński, leader of PiS and former prime minister of Poland, notoriously said at his party’s campaign rally in October 2015 that “migrants have already brought diseases like cholera and dysentery to Europe, as well as all sorts of parasites and protozoa, which … while not dangerous in the organisms of these people, could be dangerous here.” for the immigrants who were supposed to be accepted by Poland, but who were not. We are a 55 million nation, with only 38 million living in Poland. So Polish people themselves have a large migrant diaspora. At times they themselves have been refugees. But that’s another story. Polish people can be foreigners and can be refugees. And you can be sure that they will tell they should receive all the necessary help. But this very ugly and nasty attitude that started two years ago is spreading. From the country that had an ability to show how to reach high standards we have become a country that looks a lot like Germany in 1933. But this is not 1933 and not Germany. So knowing the whole history and admitting the fact that we are repeating it shows that, firstly, it is possible, and, secondly, it is possible because for the last twenty years this country undergone immense changes. It is really a modern, well-developed, beautiful country, as far as the environment and technology is concerned. But not enough work has been done on the feeling of community or civic responsibility, and no work has been done on people’s minds. The truth is, this is the country that only had democracy for eight years before the Second World War and had sprouts of democracy after 1989. It is a very fresh democracy in a country with a long history of slavery; our peasants were treated like slaves. And we have nobles who in fact were not [noble], because they were working for the oligarchs and doing everything the latter were telling them to do. So this is not a country with the tradition of being responsible, developed and standing on its two feet. [This tradition] means that when a problem arises you first ask yourself what you might have done wrong. This is not the question we are asking now.
It is also very important to see other things. Over the last fifteen years we have developed very good relations with Ukraine. These are ruined now. Talking about one side of the story when Ukrainians were killing Polish people is correct. But not talking about Poles killing Ukrainians and treating them like slaves for a long part of history is yet another example of being immature, one-sided and unable to see the elephant in the room.
And there is a third element, which is extremely important. If you look at this law, it also mentions other crimes against humanity and war crimes. Now, every government since 2003 was responsible for first allowing and then continuing to hide secret prisons on Polish territory created by the CIA. And I am saying this today. But in two weeks, when this law comes into effect, talking about this will be a crime.
In fact, us publishing it would be a crime too, as the law says that it is not only about Polish citizens.
This is irresponsible. It shows that you are making not a law, but a manifesto, because you have no proper instruments to implement this law and you are not going to. This law is supposed to make people like me swallow their thoughts and stop talking, writing, and discussing. So there is this chilling effect, which is extremely dangerous. I am old, going to die, and they can kiss my ass. But there are a lot of people who will shut up. And with shutting up this side and simultaneously letting fascists and nationalists get more and more public space is really dangerous. And of course the third element of it all is the Church, which has remained totally silent. This silence is in fact extremely loud, and shows that we have a problem with racism, homophobia, xenophobia, and some other stuff. And of course everybody is to blame.
Being aware of those elements is not a revelation, but it should be transferred into books and discussions. You cannot count on that today however because we are really developing into a very fascist and nationalistic state. And the fact that it can be done so bloody quickly is frightening. But this is the law. This is not about only history, this is not about only shutting up the survivors of the Holocaust, this is of course also shutting up any discussion about crimes that were committed by Polish soldiers on the ground of Afghanistan, Iraq, Iran, name any place where we are going as part of the peace process or peacekeeping operations. But if you are going for a peacekeeping operation with a gun, which you use and kill civilians… In a Polish court we have this famous case Nangar Khel6The Nangar Khel incident took place in the Afghan village of Nangar Khel on August 16, 2007. A few hours after an ambush by insurgents, a patrol of Polish soldiers taking part in the International Security Assistance Force opened heavy fire at the area of the village. The attack resulted in the deaths of six civilians, including a pregnant woman and three children, and seriously injured three other women., where Polish soldiers killed civilians. And the court ruled that it wasn’t a war crime but a crime of insubordination. The soldiers on trial were just pawns, the least responsible people for the whole thing. And the ones responsible were the government that we had at that time. Sending those forces wasn’t a good thing to do, because it was solely about killing and nothing else.
But today the kind of point that I am making now means talking about putting the blame on Poland for other crimes, which are the crimes of war. And if you look in the international law, we are now in the situation, when the prosecutor of the ICC, Fatou Bensouda, requested authorization from the Court judges to initiate an investigation into the alleged crimes against humanity committed in the context of the armed conflict in Afghanistan. So, we are a part of it. And this law is trying to kill the truth, and of course, it doesn’t work. I am a lawyer. If I were a psychotherapist or psychoanalyst, I would say that if you are trying to hide something which is extremely shameful and painful and you are responsible for it, and if you are silent about it—if you are a human, you get cancer and you die. If you are a nation, the result can be equally terrible.
Thank you. Two questions that are technical but I think important nonetheless. First: President Duda said that after he would have signed the law he would send it to the Constitutional Tribunal. Why would he do that and do you think it can change anything?
He did it. He did it just because he can. Because he is an immature person who was told to do so. It is not like he made any decision on it.
Told by the party?
By Kaczynski! He did it to cover his ass, of course. And this is not what the president should do. If the President has doubts he shouldn’t’t sign this law but send it to the Constitutional Tribunal first. But earlier we also haven’t had many good presidents, so what is happening today in Poland is really not the result of 2015. Four years before 2015, a lot of horrible illegal events were also happening.
Yes, I have been following the Constitutional Tribunal story and other things.
Yes. And of course the fact that it is now sent to something called the Constitutional Tribunal is phony. So if you ask me what I think will happen—they will say that it is fine. Because, first of all, this is a bunch of non-judges. Secondly, those who are real judges are silent and not allowed to judge. Thirdly, those are clerks of the party, who do what the party [tells them they are] supposed to do. It has a name, but it doesn’t have a context.
Then it is not a democratic instrument. Even if I can have such doubts—that shows. I’ll tell you more: if they say something else, I will doubt whether it is their way of reasoning. I will rather come to the conclusion that this is the result of a behind-the-doors discussion and a way to run away from the problems that we are facing now.
To save face?
No. You have to understand that the guy who is behind the rules, Kaczynski, is doing it because he has a lot of supporters. And it is such an easy thing to become a minister, to have a salary and a good life in general. So there are a lot of people who are with him, and you can’t put all blame just on him. But he doesn’t value the people for anything, apart for his power. It is that simple. He doesn’t care for “face”.
What I meant was that instead of changing his mind because of some diplomatic scandals, he would have the Constitutional Tribunal say something else.
Maybe. But to change your mind, you have to have a mind and ability to reason. He is a very smart politician, but also a psychopath, who lives in a bubble, far away from real life. So this is not the way he is thinking.
My second question is about some people saying in Facebook discussions that there is that provision that says there is an exemption for “academic and artistic activities” or something like that. What do you think of that?
First of all, why academics and artists? Why leaving it to these two groups? Second, who will declare that I am an academic or an artist? Third, what kind of a court is going to evaluate my academic or artistic ability? That’s phony stuff.
It would have been easy in the USSR, when we had these unions of writers, artists, etc.
It’s is more like under Mussolini. In his state “ours” could do everything, but “others” could only do things in accordance to the law. So that’s a passage for “ours”. We can do whatever we want, and if it is convenient for us, we will say that this is art or academic work. More importantly, this is not for journalists or book publishers. I received a very interesting letter from one of my students, who pointed out another thing: what you have to read is actually Article 4 of this Law, which says that if you publish a book, you can be also “transmitted”, as a publisher, to this Article 55 [introducing criminal liability for suggesting the Polish people’s complicity in the crimes of the Third Reich, among other things]. So this is also a real killing of the public discussion. And Poland did enormous work [on the World War II history], really, I have piles of books published by the institute that studies the crimes committed during the war and after the war against Jewish population. But also the relationship between the people of Ukraine and Belarus, Russia—a very good discussion showing that the history is grey and there is no white and black.
[As an example,] I personally could never understand why people escaping from ghettos were still hiding in the cities, rather than escaping to villages. Without those studies I would have never had an idea of how dangerous the Polish villages were. This is so characteristic.
There are two more things I want to tell you. We are living in the country where admitting to being Jewish sounds like you are admitting your guilt. The way we use the language also says something about the nation. And when I was in Yad Vashem, there were two sentences that struck me. The first sentence was what Jewish people heard upon returning to their village after the war: “Oh, they didn’t kill you all?” It wasn’t “welcome, we are happy to see you,” but there was surprise that they were still alive. Because they already managed to get into their houses, take and use their belongings. And the second sentence was “we did not leave Poland, we were escaping Poland.” This was said by people who were leaving Poland after the Second World War, from 1946-1947 up to the 1950s.
I think that a lot of work has been done during the last twenty years to face anti-Semitism, problems of relationships, and the very fact that we were never neighbors. We were people from different nations living side by side. In this way [Jan Tomasz] Gross was not correct—we didn’t know each other. And most of people didn’t care, because it was like a foreign land, foreign culture and foreign everything. If you look into Polish culture starting from Mickiewicz, who himself was Belarussian, Russian, Ukrainian and Lithuanian (and his mother was Jewish, so he was a Jew)! And we are very proud of five Nobel Prize winners, including Marie Skłodowska Curie, who was actually first Russian, then French, but she never was a Polish citizen. We also have nine Polish Nobel Prize winners whom we are totally silencing, because they were of Jewish origin. That says something about our nation, doesn’t it?
So I think pretending that it does not exist is stupid. Creating a law like we did is harmful. First of all, it may be harmful for Polish international relations, but it is also so harmful for us, and I hope that realizing how harmful it is will be a pass to wisdom, which I would like to hope for. Since you don’t have real enemies, you create artificial ones, and the next step is that you have to kill your imaginary enemies. And that’s a straight step towards a civil war, which I hope we will avoid.[:]
|↑1||“Prawo i Sprawiedliwość” (“Law and Justice”).|
|↑2||The Jedwabne pogrom was an atrocity committed on July 10, 1941, during the German occupation of Poland in World War II. Described as a massacre or a pogrom by postwar historians, it resulted in the death of at least 340 Polish Jews of all ages, locked in a barn later set on fire. A group of at least 40 Poles was involved, after being summoned in Jedwabne by German police battalions belonging to the Ordnungspolizei. These are the official findings of the Institute of National Remembrance.|
|↑3||In 1945-1946, nearly all of the 4.5 million Silesians of German descent fled from now Polish Silesia, or were interned in camps and forcibly expelled, including some thousand German Jews who survived the Holocaust and had returned to Silesia.|
|↑4||Lemkos are an ethnic sub-group inhabiting a stretch of the Carpathian Mountains known as Lemkivshchyna, often considered by others as a branch of Ukrainians or Rusyns. Many Lemkos were forcibly resettled after the World War II, initially to the Soviet Union (about 90,000 people) and later to Poland’s newly acquired western lands (about 35,000) in the Operation Vistula campaign. This action was a state ordered removal of the civilian population, in a counter-insurgency operation to remove potential support for guerrilla war being waged by the Ukrainian Insurgent Army (UPA) in south-eastern Poland.|
|↑5||Jarosław Kaczyński, leader of PiS and former prime minister of Poland, notoriously said at his party’s campaign rally in October 2015 that “migrants have already brought diseases like cholera and dysentery to Europe, as well as all sorts of parasites and protozoa, which … while not dangerous in the organisms of these people, could be dangerous here.”|
|↑6||The Nangar Khel incident took place in the Afghan village of Nangar Khel on August 16, 2007. A few hours after an ambush by insurgents, a patrol of Polish soldiers taking part in the International Security Assistance Force opened heavy fire at the area of the village. The attack resulted in the deaths of six civilians, including a pregnant woman and three children, and seriously injured three other women.|