No Law is Better than a Bad Law

Poland, the PiS and the Politics of Memory.

In some ways it all began with a simple slip of the tongue from President Obama back in 2012. His diplomatic faux pas was to refer to the Bełżec extermination camp as “a Polish Death Camp”, rather than a Nazi or German one, causing widespread anger in Poland. A sincere and immediate apology was issued in response, an act which stands in stark contrast to the current US administration’s attitude to potentially insensitive language. This was not the first time ‘death camps’ located in Poland had been described as “Polish” but it was the first time Polish anger at the term entered the Western mainstream’s political and academic consciousness.

Polish politicians across the political spectrum object to the description.  Back in 2012 it was the then Polish Prime Minister, Donald Tusk, who led the condemnation; who arguably remains the most outspoken critic of the current Polish government. The objections are fully justified: The Nazis theorised, constructed and operated the camps during the Second World War. As a result, there has been strong public and political pressure to correct such misconceptions which has resulted in the introduction of legislation that criminalises any attempt to place responsibility for Nazi’s war crimes on the Polish Nation. However, such a law change is damaging to the study of the Holocaust, for the truth, and the reputation of Poland.

The legislation passed, virtually unopposed, by the Polish Parliament in February 2018 amends the Act on the Institute of National Remembrance. The amendment makes it a criminal offence to ascribe “responsibility or co-responsibility” to the “Polish Nation or to the Polish State”, carrying a penalty of a fine or three years imprisonment. It applies to anyone who makes a statement in public which is then deemed to have breached these parameters, regardless of how the offending comment is made (in a speech, an article or online post), where the offence is committed or, whether the offender is Polish or not. This is entirely unenforceable, with the Polish State unable to monitor all forms of public debate and discussion around the globe let alone police the internet. To paraphrase a contemporary political slogan “no law is better than a bad law”.

The terms Polish “Nation” and “State” are terms that can be interpreted in a very wide fashion. John Stuart Mill regarded a Nation as being its citizens, therefore the actions of Polish Citizens, whether good or evil, can also be construed as those of the Polish Nation. Indeed, some acts of anti-Semitic violence were carried out by both ethnic Poles & Non-ethnic Polish citizens. A broad interpretation of “Nation” could mean any link to the acts of Polish Citizens with the Holocaust would fall foul of this legislation. In the same vein a State can also be defined in very broad terms to include any institution that is part of the governing apparatus of a nation. Any reference to active participation by state bodies or institutions with pre-war Polish origins, such as the police force, could breach the new amendment. By having offences that can be construed so widely it would make it possible for Polish courts to place wide restrictions on any criticism of Polish Citizens or the Polish State during Second World War.

The far reaching offences of this amendment are not countered by strong exemptions. Although the amendment excludes anything done as “part of artistic or scholarly activity” these phrases are vague. How widely will these exemptions be interpreted? Scholarly activity may extend to academics but what of teachers, and more significantly, students. Most importantly, none of these exclusions cover Holocaust survivors and their personal testimony. Although the Polish Prime Minister was quick to say it would not impact them, the amendment contains no such written protection. It would be a gross breach of an individual’s freedom of speech if they were unable to relay the truth of their personal suffering. The weakness of these exemptions must lead to fears that it could be abused by a court taking a very narrow view of the applicability of such exceptions.

This law change must also be seen in the context of ongoing judicial reforms. Since coming to power in 2015, the Law and Justice party (PiS) has drafted sweeping changes to the judiciary, although as yet the Polish President has vetoed these proposals. The proposed alterations would grant the government greater control of judges including the ability to select, sanction and sack judges. If such changes were carried out it would seriously call into question the independence of Poland’s judiciary which could have dire consequences for the interpretation of this amendment. Judges could be placed under pressure to interpret the law in line with the view of the Polish Government. By giving courts the responsibility to decide historical fact it is vital that they are free from political interference and without such independence the deficiencies of the law could be dangerously exposed to exploitation.

If the potential flaws in this legislation are abused, then it seriously risks constraining discussion of the Holocaust, within Poland in particular. Some violent acts were carried out by Poles against Jewish communities with little to no Nazi coercion. The most famous example being the massacre on January 10th 1941 at Jedwabne, during which ethnic Poles murdered all but a handful of their Jewish neighbours. Discussions of this act and others could legitimately assign responsibility to the Polish Nation. Such acts were not isolated from their wider context and therefore academic study should seek to place such acts within a wider history of the Holocaust. However the amendment would inhibit this discussion by making its conclusions criminal offences.

Similarly, the Nazis utilised elements of Polish institutions during the occupation. Perhaps most famously the Blue Police, which was made up of the pre-war Polish Police Force, who were responsible for rounding up some Jews and for policing the external boundaries of the Ghettos. A proper exploration of the Holocaust in Poland would require examining the Blue Police – with failing to mention its pre-war origins representing a knowingly dishonest interpretation of history. All study in this area is put at risk by this law which could seriously limit historical discussion and investigation.

The law also includes a clause which bans the denial of Ukrainian co-responsibility for the Holocaust and Genocide in south-east Poland. Again this provision inhibits a fair exploration of the Holocaust by conveniently ignoring the fact that Ukrainians formed a significant minority within Poland in 1939. The Ukrainian Government has already suspended academic collaboration with Poland because of the law change. There must also be concern that the amendment may lead other countries, particularly Israel, to cease academic collaboration and this will have a negative impact on the study of the Holocaust, and the Second World War in Poland.

The amendment is part of a wider effort by PiS to rewrite the story of Poland. In addition to this law change it has sought to assert control over the popular presentation of Poland’s history. It has already sacked the director of one museum (Gdansk Museum of the Second World War) who sought to place Poland’s wartime history in a European context. His replacement has instead increased the nationalist focus of exhibits. Such a move allows the PiS to present Poland’s suffering as being unique among nations, giving it equivalence with the suffering of the Jews, and granting it an excuse to exclude controversial issues.

Why then if this measure is so controversial has the Polish government carried it out? In part the answer lies in the past. The desire to rehabilitate Poland appears to be a reaction to its experience under various occupations. The loss of control under first the Nazis and then the Soviets, has led to a disowning of anything which occurred in Poland under these regimes. Indeed PiS’s reasoning behind its judicial reforms is to ensure that any traces of communism still in the system are removed. This reassertion of control over the past is born of a desire to exorcise Poland of blame for past deeds done beyond its control. In this way Poland owes nothing to foreign nations or institutions who previously betrayed her.

By defending Poland’s history, PiS can present itself as Poland’s modern champion. The complaints from foreign governments act to support the presentation of Poland as a victim. PiS have also sought to connect the nation with the glories of the past. It has helped support the restoration of the Catholic Church in Poland and draws upon its links to both Poland’s heritage and resistance to communist dictatorship. In this way it can hark back to a time when Poland was one of Europe’s great powers from the Union of Lublin in 1569 until the Partitions of the late 1700s. This positioning allows Poland to feel both persecuted and self-confident enough to express belligerence. Its rejection of EU migrant quotas can be seen as stemming from this belligerence. Such acts have proven to be highly popular, PiS sits at record highs in opinion polls and as such has a strong practical political motivation as well as a cultural one to take the stance it has.

The stated intentions behind this legislation are good. It seeks to correct unfair accusations made against Poland of having played a major role in the Holocaust but so far this law change has only increased such accusations. As a result of the Polish Government’s actions, the phrase “Polish Death Camps” is making headlines across the world and perhaps most damagingly of all, by criminalising the accusation of responsibility it has resulted in exactly such accusations being made, not always to make a historical point but a political one instead.

The law is a bad one which completely lacks the nuance such a complex subject requires. Furthermore it risks damaging freedom of speech as the language of the amendment allows for a potentially wide interpretation of breaches and a narrow interpretation of the exceptions. The ongoing concerns about judicial independence only make such worries more prescient.

An honest discussion of the Holocaust in Poland must contain the massacre at Jedwabne and the Blue Police as well as the heroic acts of resistance carried out by many poles, including the Zegota an underground Polish resistance network which is thought to have saved around 10,000 Polish Jews. However the action and attitude taken by the PiS suggests it would rather manipulate national memory for contemporary political gain. This stance risks damaging Poland’s relationships with international partners, particularly those with Israel, Ukraine and the EU.

The Polish Government would be far better served by repealing this amendment and not constraining discussion when few credible assessments would not place of responsibility for the Holocaust on Poland. It would be a far greater sign of its break with the dictatorship of the past and a symbol of its growing confidence to allow a more diverse presentation of Poland’s past.


Books used:

Poland – Adam Zamoyski

The Holocaust – Jeremy Black

The War of World – Niall Ferguson

Way too many online news articles which I really should have noted down before deciding to make a list.

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