On February 6 , 2018, Polish President Andrzej Duda signed a Bill that imposes criminal penalties to anyone who attributes Nazi atrocities during holocaust to the Polish State. Following this move, Secretary of State Rex Tillerson in a press statement expressed disappointment towards this decision for undermining free speech. The bill was passed despite assurances from Poland that there would be a dialogue with Israel before the vote took place. Israeli Prime Minister Benjamin Netanyahu described this as an “attempt to rewrite history”.
Only hours after the law took effect, the Polish League against Defamation, a Polish Campaign Group filed a lawsuit against Pagina 12 daily, an Argentine Newspaper for breaching this law. However, the Polish Justice Minister Zbigniew Ziobro announced that criminal proceedings would not be initiated against those found breaking the new Holocaust Law until Poland’s constitutional court rules on its validity. While the Court is yet to determine its constitutionality, the law has met with the ire of the United States of America and Israel. Amid this diplomatic row, the Polish Delegation visited Israel last Wednesday in order to facilitate dialogue “to preserve the historical truth and prevent harm to the freedom of research and expression”. While the situation is far from resolution, this piece explains why the Polish Law fails to meet with established principles in international law.
The law amends the Act on the Institute of National Remembrance to include inter alia two new articles, 55a and 55b. These provisions impose liability for making public claims of Polish complicity in Nazi crimes. These crimes are enlisted under Article 6 of the Charter of the International Military Tribunal. They are incorporated into three categories: 1) crimes against peace, 2) war crimes and 3) crimes against humanity committed by persons in the interest of the so-called Axis states. To put it simply, if any person, Polish or otherwise, imputes such crimes to the Polish State, she would be liable under the Act. The amendment provides an exception for claims made in pursuance of one’s artistic or academic activity.
The amendment was perhaps conceived in light of uproar caused when Former President Barack Obama visited Poland and used the phrase “Polish death camp”. He did so while posthumously bestowing a Presidential Medal of Freedom in 2012 to Jan Karski, a Polish World War II resistance fighter. President Obama apologized for using the phrase after being denounced by current European Council President Donald Tusk, who was then the Prime Minister of Poland. Nonetheless, the amendment seems problematic mainly due to three reasons.
Firstly, the amendment may cause a chilling effect for being vague and overbroad. This is due to several underlying factors. For example, it is not clear whether public claims prohibited under the Act would extend to virtual spaces such as social media. It is also not clear whether it extends to private spaces within public spheres. For instance, would private groups on Facebook discussing Polish complicity in Nazi crimes be held liable? This becomes relevant for a closed group on Facebook that uses phrases such as “polish death camp”. Moreover, it is not clear when one may draw a distinction between public and private spaces. In the absence of any explanation, individuals may find the scope of the restriction ambiguous. So, enforcing the amendment may result in a chilling effect inhibiting the legitimate exercise of free speech to discuss events relating to the Holocaust.
Secondly, this chilling effect may result in virtual revision of history of the Holocaust. In his dystopian Novel ‘1984’, George Orwell characterizes the past as mutable. He points out that past events have no objective existence; they only survive in written records and human memories. The past becomes whatever the records and the memories agree upon. He argues that a power that controls these records is equally in control of the minds of its subjects, since the past becomes whatever the power chooses it to make it. In the present context, the amendment arguably attempts to reinforce similar kind of control. The exercise of such power by Poland would result in restricting discourse as explained earlier, arguably resulting in virtual revision of Polish history. Even if one counter-argues that scientific research is exempted from the scope of this amendment, such research would only gather dust if there is a ban on public dissemination of such knowledge. The amendment tends to virtually revise Holocaust history by precluding any challenge to the Polish nationalistic narrative.
Thirdly, the amendment seems inconsistent with the European Convention on Human Rights ratified by Poland in 1993. Article 10 of the Convention recognizes that everyone has a right to freedom of expression. However, this right is subject to public order and compatibility with democracy and human rights. Article 17 of the Convention prohibits interpreting the Convention as implying that the State may do anything that undermines rights and freedoms envisaged under the Convention. In Garaudy v. France, Roger Garaudy, author of a book entitled The Founding Myths of Modern Israel, was faced with several criminal complaints for inter alia disputing the existence of crimes against Jews. Mr. Garaudy defended himself by arguing that the ban on publishing the book resulted in a violation of his right to freedom of expression under Article 10. The European Court of Human Rights, however, ruled that since the book as a whole manifested a ‘marked tendency to revisionism’, it was antithetical to the underlying values of the Convention, namely justice and peace. Denying historical facts undermines values relied on in the fight against anti-Semitism, constituting a serious threat to public order. Therefore, such denial would not be legitimized under Article 10.
Ironically relying on the Garaudy ruling, Ordo Iuris Institute for Legal Culture, a Polish think-tank in its report justifies the amendment under International law. It points out that Article 55a is admissible under Article 10. Instead of treating the amendment as revisionist, it regards polish non-complicity in the Holocaust as a historically established fact. Accordingly, it considers any deviation from such facts to be inconsistent with article 10 of the Convention.
With all due respect, the report assumes that the absence of Polish culpability is a clearly established fact. On the basis of this assumption, any deviation is considered as derogatory to Article 10. This assumption, however, results in intolerance towards alternate narratives. For instance, one research suggests that Polish complicity did in fact exist during the Holocaust, mainly in three forms. First, it took the form of the bystander phenomenon, wherein Poles stood by the crimes and did not do anything to prevent them. Second, Poles took advantage of the vulnerability of Jews during the Holocaust. Third, Poles rationalized their actions by regarding them as essential for their survival. It has been suggested that complicity in these forms helped in catalysing perpetration of Jews during the Holocaust.
Moreover, in few cases, the truth regarding Polish involvement against Jewish atrocities is uncertain. For instance, in the 1941 atrocity in Jedwabne, it is not clear whether they were carried on by Poles or through German involvement or under pressure from the Nazis. Yet, this law will make it impossible to discuss or debate the culpability of even certain individual Poles in Nazi Crimes. Intolerance towards alternative narratives may arguably result in misattribution or denial of events that actually took place. Such denial may itself be a revisionist endeavour, antithetical to the underlying principles of the Convention.
In light of these concerns, the Polish Government should reconsider bringing into force the amendment. Concurrently, the Polish constitutional court should strongly consider deeming it invalid.