Polish Memory Law: When history becomes a source of mistrust The changes to the Law on the Institute of National Remembrance foster a tremendous mistrust within Poland, provoke memory wars amongst states and halt reconciliation processes between nations. The memory war also puts even more spotlight on the recent political changes in Poland.

On February 6th 2018, amidst international outcry, Poland’s president Andrzej Duda announced that he will sign a controversial amendment to the Law on the Institute of National Remembrance that has already passed approval of the Polish parliament. The law imposes sanctions up to three years of imprisonment to anyone who attributes “responsibility or co-responsibility to the Polish nation or state for crimes committed by the German Third Reich”. The President also signalled that he will send the law to the constitutional court for verification.

The law was adopted by the lower house of the parliament on the eve of the Holocaust Remembrance Day on January 27th. Since that time, it has caused an array of diplomatic scandals between Poland, on the one side, and Israel and Ukraine, on the other – although Israel and Ukraine were defending somewhat different historical narratives. United States secretary of state and Canada and France’s foreign affairs ministers expressed reservations about the amendment. Polish-Israeli diplomatic stalemate prompted assertions from Germany’s foreign minister and the chancellor Angela Merkel that Germany bears guilt and responsibility for the Holocaust.

In response to the international controversies over the proposed Polish legislation, Polish prime minister Mateusz Morawiecki’s chancellery produced a videotaped statement clarifying the governments’ position about this law that brings about the risk of making it criminal for both Poles and foreigners to express certain views regarding the history of the 20th century.

The former finance minister who became PM in December 2017, Morawiecki speaks on that video with a dramatic intonation, accompanied by emotional music and episodes of the wartime chronicle that collages images of Nazi concentration and extermination camps and those of heroic Polish soldiers. “Poland was under a dual German and Soviet occupation. Practically every Polish family mourned the loss of loved ones who perished at the hands of these occupying powers”, Morawiecki says in the video. From these evocative – and historically accurate – images of Polish hardships, he immediately transits to explain that Polish law is designed to hold accountable those who try to deny the suffering under Nazi terror. “Similar laws operate in other countries across Europe and the world. Holocaust denial is not only a denial of German crimes but also other ways of falsifying history. One of the worst types of this lie occurs when someone diminishes the responsibility of real perpetrators and attributes that responsibility to their victims”, he continued.

Regulating Holocaust denial

The above statements wrongly suggest that the new Polish “Holocaust law”, as it has been incorrectly dubbed by the international media, is about introducing criminal bans on denial of Holocaust, genocide, and crimes against humanity to the Polish legal system. In fact, such criminal prohibition already exists in Poland since 1998, as it does in most countries of the EU, and was introduced in the law on the Institute of National Remembrance that is now, 20 years later, subject to the controversial amendment.

Criminal laws against Holocaust denial were first adopted in Europe in the 1980s in Germany. The German model spilt over in Europe, and was gradually extended in scope from Holocaust denial laws per se to the wider prohibition of genocide denialism. During Germany’s presidency in the Council in 2008, such provisions were made the secondary law of the European Union.

During the 1980s and 1990s, and even partially in the early 2000s, many European countries legislated memory provisions, which largely targeted revisionist and denials narratives (about Shoah, Armenian genocide, colonial atrocities, etc.). Such laws raised important questions about the past and expressed hope for more emancipated and tolerant futures. Memory politics via acknowledgement of crimes against humanity, and in particular, a consolidating theme of the Holocaust, has been a source of emerging trust in international relations, especially on the EU level.

In contrast, from the 2000s and especially 2010s we observe a pretty vivid turn in memory laws being converted into weapons of memory wars. This is especially noticeable in Central and Eastern Europe, a region grappling with insecurity due to ambitions of Putin’s Russia. The concept of the so-called ‘mnemonic security’ has been instrumentalised to justify legislating about the past in a number of countries in this region, which struggle to counter Russian propaganda and imperialist ambitions. In this regard, the discussed Polish law is a true instrument of stirring memory wars instead of expected trust-building, to which the Polish PM alluded in his video.

Changes to the law

The law approved by the Polish parliament in 2018 brings three major changes to the Law on the Institute of National Remembrance.

The Institute (IPN in Polish abbreviation) was established to investigate crimes of totalitarian regimes (Nazi and Soviet) with regard to Poland and its citizens. Such national institutes of remembrance have been mushrooming in Central and Eastern Europe after the fall of the Iron Curtain, in countries including apart from Poland, for example, the Czech Republic, Hungary, and Ukraine. These institutes mimic each other, despite – at times, mutually contradictory – projects of victimised national identity they aim to construct. The Polish Institute, generously financed by the state, with a budget five times higher than of the Polish Academy of Sciences, is a regional leader – not only does it conduct and disseminate research, but is also equipped with prosecutorial powers to instigate proceedings of totalitarian crimes from the past. By law, the Institute is also crucial for identity-building activities, such as renaming streets and removing monuments of the totalitarian past from public sphere.

The first new change to the Law on the Institute extends the temporal scope of the Institute’s mandate. Initially, the Institute’s activities and quasi-legislative competence covered the period from 1944 until 1990. From now onwards, the period will encompass the span between November 8th 1917 and July 31st 1990. This extension is already controversial enough, considering that Nazis and Soviets have affected the territorial sovereignty of Poland from 1939 onwards. The decision to extend the temporal scope from the onset of the Bolshevik revolution can be interpreted as playing to the preferences of the anti-communist electorate of governing Law and Justice party (PiS).

Secondly, the law refers to Second World War “crimes of Ukrainian nationalists and Ukrainian formations collaborating with Third Reich”. Most of the historical tensions between Poland and Ukraine has been related to the 1943-1944 Volyhnia massacres – an ethnic cleansing of the Polish population on the ethnically Ukrainian territories, which sparked acts of retaliation by Poles against the Ukrainian population. Surprisingly, the new amendment defines the temporal scope of such crimes as committed between 1925-1950.

Polish-Ukrainian memory

There are no recent signs of official denying the massacre or its attribution to Ukrainian perpetrators by the Republic of Ukraine. To the contrary, recent years have shown attempts of joint commemorative practices between the two countries, despite the years of Ukrainian national resistance to it. After PiS came to power, in 2016 the Polish parliament adopted a resolution on Volhynia massacre that proclaims it genocide and unequivocally declares Ukrainians a guilty part to protect the dignity of Polish victims.

These two changes in the law related to Polish-Ukrainian memory politics have received less media attention, due to the extremely harsh critique of the third component of the Polish law, and the fact that ally-seeking Ukraine has been modestly vocal in critiquing Polish parliaments’ decision.

The third, most discussed component of the law introduces the risk of criminal charges for anyone who wrongly, and contrary to established historical facts, attributes the Second World War Nazi crimes to the Polish state or the Polish nation. What is mistakenly addressed by the press as “Holocaust law”, has nothing to do with penal measures against Shoah deniers.

The bill is meant to protect the good name of Poland by introducing a novel crime in Article 55.a.1 that states as follows “those who publicly and notwithstanding facts attributes to Poland or the Polish Nation the co-responsibility for the Nazi crimes committed by the Third German Reich […] or for other crimes that constitute crimes against peace, humanity or military crimes or those who in another way diminish responsibility of the actual perpetrators of those crimes, are subject to fine or a 3-year imprisonment”. Exceptions are guaranteed for artistic and scientific purposes.

Interpretation is key

The unfortunate wording of the law raises concern that the new legislation will nevertheless criminalise speaking about the negative involvement of Poles in the Holocaust and suspend free inquiry of scientists and intellectuals who wish to deal with this aspect of Polish history.

A disturbing argument advanced by the Polish government is that this law is nothing exceptional since all Western European countries have been protecting the memory of Holocaust. Yet the closest relative of this bill is in fact not a standard provision in continental Europe’s criminal codes about punitive measures against Holocaust deniers.

The closest siblings of the new Polish law are actually Turkish and Russian penal codes. The way the new law frames the defence of collective Polish dignity in historical context is foremost reminiscent of the notorious provision in the Turkish criminal code (Article 301), criminalising denigration of the Turkish nation and used, in particular, to silence people speaking out of the massacres of Armenians and other minorities by the Ottoman Empire in 1915. Likewise, the provision is more similar to Putin’s policy of rehabilitating Stalinism, namely Article 354.1 introduced to the criminal code in 2014 by Russian Duma. The article prescribes three years of imprisonment (exactly the same term as in the Polish bill) to people “publicly spreading false information about USSR’s activities during the Second World War”.

Interestingly, by advancing this law, Poland is not only stirring memory laws with its crucial allies but also confirming the downslide of its liberal democracy. Over the past two years, the Polish government has been in the epicentre of criticism from the EU and facing a huge external criticism in particular for dismantling its independent Constitutional Tribunal and increasing political grip over the judiciary.

In this regard, it is worth to remember that the first attempt to advance a law aimed at protecting the dignity of the Polish nation emerged in the 2000s, after the publication of Jan Tomasz Gross’s book The neighbours about Jedwabne’s pogrom. The well-documented story of a village where Poles rounded up and burnt their Jewish neighbours in a barn in 1941, sparked enormous discussion in Poland, which led to soul-searching among some Poles and outraged others. After Law and Justice came to power for the first time, the Polish parliament voted for the law criminalising any “defamation of the Polish Nation”, dubbed lex Gross. The Polish Constitutional Tribunal struck that law down, albeit, unfortunately, not as contradictory to basic standards of free speech, but on a purely procedural ground regarding its adoption.

New context

This tiny technicality from the past showcases the gravity of changes that occurred in Poland after PiS came to power in 2015. Upon declaring that he will sign the 2018 bill into law, president Andrzej Duda declared that he will immediately send it for consideration to the Constitutional Tribunal. But today, in contrast to the 2000s, the discussion about the law aimed at protecting Polish dignity and repute will happen in front of the Constitutional Tribunal controlled by the ruling party. On the very same day that the discussed amendments were adopted by the lower house of parliament, Sejm approved professor Jarosław Wyrembak, the author of a legislative opinion about the law, as a new judge of the Constitutional Tribunal.

This controversial law fosters a tremendous mistrust within Poland, provokes memory wars amongst states and halts reconciliation processes between nations. Governments often inflame mistrust to cover up their controversial policies. In this case, memory war puts even more spotlight on the challenges to rule of law in Poland.

Uladzislau Belavusau, PhD, is Senior Researcher in European Law at the T.M.C. Asser Institute in The Hague – University of Amsterdam, the Netherlands and principal investigator in the EU-funded research consortium , PhD, is Senior Researcher in European Law at the T.M.C. Asser Institute in The Hague – University of Amsterdam, the Netherlands and principal investigator in the EU-funded research consortium MELA (“Memory Laws in European and Comparative Perspective”). He received his PhD from the European University Institute (Florence, Italy) and is currently a visiting scholar at the University of California at Berkeley (USA).

Anna Wójcik is assistant researcher and PhD candidate at the Institute of Law Studies of the Polish Academy of Sciences.