Amendment to the Act on the Institute of National Remembrance: Difference between revisions

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Reverted to revision 997731674 by Matilda Maniac (talk): Nooo, the ADDITION of this stuff constitutes "undiscussed major changes" since... you didn't bother discussing any of them. I've actually provided the rationale on talk for my restoration of version before YOUR "undiscussed major changes"
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The '''2018 Amendment to the Act on the Institute of National Remembrance''', also known as the '''Polish Holocaust law'''<ref>{{cite journal |last1=Kończal |first1=Kornelia |title=Mnemonic Populism: The Polish Holocaust Law and its Afterlife |journal=European Review |date=2020 |pages=1–13 |doi=10.1017/S1062798720000502}}</ref> or '''Lex Gross''',<ref name=Sadurski>[https://books.google.com/books?id=2AuXDwAAQBAJ&pg=PA155 Poland's Constitutional Breakdown], [[Wojciech Sadurski]], Oxford University Press, page 155</ref><ref>[https://academic.oup.com/icon/article-abstract/17/2/597/5523750?redirectedFrom=PDF Bugarič, Bojan. "Central Europe’s descent into autocracy: A constitutional analysis of authoritarian populism." International Journal of Constitutional Law 17.2 (2019): 597-616.]</ref>{{efn|The expression "Lex Gross" ("Law of Gross") was previously used for the 2006 amendment, struck down by the Constitutional Court, from which the 2018 amendment is derived. The law was perceived to target [[Jan Gross]], a Polish Holocaust researcher known for his scholarship on the [[Jedwabne pogrom]] and other research into the Holocaust which has provoked heated public debates in Poland due to its discussion of the implication of (ethnic) Poles into killings of the Jews.<ref name="Bucholc"/><ref name="Sadurski" />}} penalizes [[public speech]] which attributes [[responsibility for the Holocaust]] to Poland or the Polish nation. The legislation is part of the [[historical policy of the Law and Justice party]] which seeks to present a narrative of ethnic Poles exclusively as victims and heroes.<ref name="Hackmann"/><ref name=Sadurski/><ref name="George2019">{{cite journal |last1=Soroka |first1=George |last2=Krawatzek |first2=Félix |title=Nationalism, Democracy, and Memory Laws |journal=Journal of Democracy |date=2019 |volume=30 |issue=2 |pages=157–171 |doi=10.1353/jod.2019.0032 |url=https://muse.jhu.edu/article/721653/summary |language=en |issn=1086-3214}}</ref> The law met with widespread international criticism, as it was seen as an infringement on [[freedom of expression]] and on [[academic freedom]], and as a barrier to open discussion on [[Collaboration in German-occupied Poland|Polish collaborationism]],<ref name="Hackmann">{{cite journal |last1=Hackmann |first1=Jörg |title=Defending the “Good Name” of the Polish Nation: Politics of History as a Battlefield in Poland, 2015–18 |journal=Journal of Genocide Research |date=2018 |volume=20 |issue=4 |pages=587–606 |doi=10.1080/14623528.2018.1528742}}</ref><ref name="washingtonpost.com1">{{cite news|url=https://www.washingtonpost.com/news/worldviews/wp/2018/02/01/polands-senate-passes-holocaust-complicity-bill-despite-concerns-from-u-s-israel/|title=Poland's Senate passes Holocaust complicity bill despite concerns from U.S., Israel|last=Noack|first=Rick|date=2 February 2018|work=[[The Washington Post]]|access-date=2018-02-02|issn=0190-8286}}</ref><ref name="Ray2019"/> in what has been described as "the biggest diplomatic crisis in [Poland's] recent history".<ref name="Cherviatsova">{{cite journal |last1=Cherviatsova |first1=Alina |title=Memory as a battlefield: European memorial laws and freedom of speech |journal=The International Journal of Human Rights |date=2020 |pages=1–20 |doi=10.1080/13642987.2020.1791826}}</ref>
The '''2018 Amendment to the Act on the Institute of National Remembrance''', also known as the '''Polish Holocaust law'''<ref>{{cite journal |last1=Kończal |first1=Kornelia |title=Mnemonic Populism: The Polish Holocaust Law and its Afterlife |journal=European Review |date=2020 |pages=1–13 |doi=10.1017/S1062798720000502}}</ref> or '''Lex Gross''',<ref name=Sadurski>[https://books.google.com/books?id=2AuXDwAAQBAJ&pg=PA155 Poland's Constitutional Breakdown], [[Wojciech Sadurski]], Oxford University Press, page 155</ref><ref>[https://academic.oup.com/icon/article-abstract/17/2/597/5523750?redirectedFrom=PDF Bugarič, Bojan. "Central Europe’s descent into autocracy: A constitutional analysis of authoritarian populism." International Journal of Constitutional Law 17.2 (2019): 597-616.]</ref>{{efn|The expression "Lex Gross" ("Law of Gross") was previously used for the 2006 amendment, struck down by the Constitutional Court, from which the 2018 amendment is derived. The law was perceived to target [[Jan Gross]], a Polish Holocaust researcher known for his scholarship on the [[Jedwabne pogrom]] and other research into the Holocaust which has provoked heated public debates in Poland due to its discussion of the implication of (ethnic) Poles into killings of the Jews.<ref name="Bucholc"/><ref name="Sadurski" />}} penalizes [[public speech]] which attributes [[responsibility for the Holocaust]] to Poland or the Polish nation. The legislation is part of the [[historical policy of the Law and Justice party]] which seeks to present a narrative of ethnic Poles exclusively as victims and heroes.<ref name="Hackmann"/><ref name=Sadurski/><ref name="George2019">{{cite journal |last1=Soroka |first1=George |last2=Krawatzek |first2=Félix |title=Nationalism, Democracy, and Memory Laws |journal=Journal of Democracy |date=2019 |volume=30 |issue=2 |pages=157–171 |doi=10.1353/jod.2019.0032 |url=https://muse.jhu.edu/article/721653/summary |language=en |issn=1086-3214}}</ref> The law met with widespread international criticism, as it was seen as an infringement on [[freedom of expression]] and on [[academic freedom]], and as a barrier to open discussion on [[Collaboration in German-occupied Poland|Polish collaborationism]],<ref name="Hackmann">{{cite journal |last1=Hackmann |first1=Jörg |title=Defending the “Good Name” of the Polish Nation: Politics of History as a Battlefield in Poland, 2015–18 |journal=Journal of Genocide Research |date=2018 |volume=20 |issue=4 |pages=587–606 |doi=10.1080/14623528.2018.1528742}}</ref><ref name="washingtonpost.com1">{{cite news|url=https://www.washingtonpost.com/news/worldviews/wp/2018/02/01/polands-senate-passes-holocaust-complicity-bill-despite-concerns-from-u-s-israel/|title=Poland's Senate passes Holocaust complicity bill despite concerns from U.S., Israel|last=Noack|first=Rick|date=2 February 2018|work=[[The Washington Post]]|access-date=2018-02-02|issn=0190-8286}}</ref><ref name="Ray2019"/> in what has been described as "the biggest diplomatic crisis in [Poland's] recent history".<ref name="Cherviatsova">{{cite journal |last1=Cherviatsova |first1=Alina |title=Memory as a battlefield: European memorial laws and freedom of speech |journal=The International Journal of Human Rights |date=2020 |pages=1–20 |doi=10.1080/13642987.2020.1791826}}</ref>


The law is part of a broader wave of [[memory laws]] in [[Central and Eastern Europe]] which has gone along with the rise of [[illiberal democracy]] in the region.<ref name="Cherviatsova"/><ref name="Belavusau">{{cite journal |last1=Belavusau |first1=Uladzislau |last2=Gliszczyńska‐Grabias |first2=Aleksandra |title=The Remarkable Rise of ‘Law and Historical Memory’ in Europe: Theorizing Trends and Prospects in the Recent Literature |journal=Journal of Law and Society |date=2020 |volume=47 |issue=2 |pages=325–338 |doi=10.1111/jols.12228}}</ref>
The law is part of a broader wave of [[memory laws]] in [[Central and Eastern Europe]] which has gone along with the rise of [[illiberal democracy]] in the region.<ref name="Cherviatsova"/><ref name=Belavusau/><ref>{{cite journal |last1=Belavusau |first1=Uladzislau |last2=Gliszczyńska‐Grabias |first2=Aleksandra |title=The Remarkable Rise of ‘Law and Historical Memory’ in Europe: Theorizing Trends and Prospects in the Recent Literature |journal=Journal of Law and Society |date=2020 |volume=47 |issue=2 |pages=325–338 |doi=10.1111/jols.12228}}</ref> Although Poland compared the law with [[laws against Holocaust denial]], scholars argue that it more closely resembles Turkey's [[Article 301 (Turkish penal code)|Article 301]], which has been used to prosecute Turkish citizens who acknowledge the [[Armenian Genocide]].<ref>[[Alexander Tsesis]], "Genocide Censorship and Genocide Denial" In Grzebyk, Patrycja (Hg.): ''[https://www.academia.edu/44666397/Responsibility_for_negation_of_international_crimes The Responsibility for Negation of International Crimes]'', Warszawa 2020 p. 117 "Far more controversial than genocide denial laws, however, have been national efforts to censor evidence of complicity to commit genocide, and this is the case with civil legislation in Poland and the criminal law in Turkey... The newest version of the law, passed on June 6, 2019, continues to have a civil cause of action that can be brought by private citizens of the Law on Institute of National Remembrance (Art. 53o and 53p). The problem, then, has not been fully resolved, despite the 2019 changes, because defense of nationalistic honor continues to function as a censor on speech. The Law on Institute of National Remembrance is likely to have some of the same negative impacts as the Turkish censorship statute protecting national honor. Albeit, the Polish law is less draconian without a criminal provision... If the Polish Institute of National Remembrance Law were to be reviewed by the European Court of Human Rights, it would likely be found to be, like its Turkish counterpart, contrary to core principles of democratic governance."</ref><ref>{{cite journal |last1=Belavusau |first1=Uladzislau |title=The Rise of Memory Laws in Poland: An Adequate Tool to Counter Historical Disinformation? |journal=Security and Human Rights |date=12 December 2018 |volume=29 |issue=1-4 |pages=36–54 |doi=10.1163/18750230-02901011 |url=https://brill.com/view/journals/shrs/29/1-4/article-p36_36.xml?language=en |language=en |issn=1875-0230 |quote=The argument of the Polish government that all Western European countries have been legally protecting the memory of the Holocaust in the same way is at best misleading. The closest relative of the 2018 Law is not a standard provision in continental Europe’s criminal codes about punitive measures against Holocaust deniers. Rather, the closest sibling of the Law are parts of the Turkish and Russian penal codes. The way the Law frames the defence of collective Polish dignity in a historical context is foremost reminiscent of the notorious provision in the Turkish criminal code (Article 301), which criminalises denigration of the Turkish nation and is particularly used to silence people speaking out against the massacres of Armenians and other minorities by the Ottoman Empire in 1915.}}</ref> Article 2a, which requires the [[Institute of National Remembrance]] to investigate crimes against Polish citizens by Ukrainian nationalists, also caused controversy.<ref name="Hackmann"/><ref name=Belavusau>{{cite journal |last1=Belavusau |first1=Uladzislau |title=The Rise of Memory Laws in Poland: An Adequate Tool to Counter Historical Disinformation? |journal=Security and Human Rights |date=2018 |volume=29 |issue=1-4 |pages=36–54 |doi=10.1163/18750230-02901011}}</ref> As most Ukrainians residing in Poland had Polish citizenship, Article 2a indicates that the law's references to the "Polish nation" must be understood in an ethnic sense.<ref name="Hackmann"/>


While the act does not mention the [["Polish death camp" controversy]] (involving [[concentration camp]]s that had been built by [[Nazi Germany]] during [[World War II]] on German-occupied Polish soil), the act's chief intent was to address that controversy.<ref name="Hackmann"/> Under the Act, charges of offending the "good name" of Poland or the Polish nation may be brought by the [[Institute of National Remembrance]] or by accredited [[NGO]]s such as the [[Polish League Against Defamation]].<ref name="Hackmann"/> Originally, offenses against the "good name" of Poland were punishable as [[criminal offense]]s with up to 3 years in [[prison]]. Following an international outcry, a June 2018 amendment modified the "good-name" offense to a [[Civil law (common law)|civil offense]] that can be prosecuted in [[civil court]]s. The June 2018 amendment also removed exceptions for research and the arts that were present in the original law.<ref name="Hackmann"/>
While the act does not mention the [["Polish death camp" controversy]] (involving [[concentration camp]]s that had been built by [[Nazi Germany]] during [[World War II]] on German-occupied Polish soil), the act's chief intent was to address that controversy.<ref name="Hackmann"/> Under the Act, charges of offending the "good name" of Poland or the Polish nation may be brought by the [[Institute of National Remembrance]] or by accredited [[NGO]]s such as the [[Polish League Against Defamation]].<ref name="Hackmann"/> Originally, offenses against the "good name" of Poland were punishable as [[criminal offense]]s with up to 3 years in [[prison]]. Following an international outcry, a June 2018 amendment modified the "good-name" offense to a [[Civil law (common law)|civil offense]] that can be prosecuted in [[civil court]]s. The June 2018 amendment also removed exceptions for research and the arts that were present in the original law.<ref name="Hackmann"/>
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*Article 55a:<ref name="Gauba">[https://link.springer.com/chapter/10.1007/978-981-13-7052-6_10 Gauba, Kanika. "Rethinking ‘Memory Laws’ from a Comparative Perspective." The Indian Yearbook of Comparative Law 2018. Springer, Singapore, 2019. 233-249.]</ref><ref name=timesofisrael>{{cite news |url=https://www.timesofisrael.com/full-text-of-polands-controversial-holocaust-legislation/|title=Full text of Poland’s controversial Holocaust legislation|date=1 February 2018|access-date=2 January 2021}}</ref>
*Article 55a:<ref name="Gauba">[https://link.springer.com/chapter/10.1007/978-981-13-7052-6_10 Gauba, Kanika. "Rethinking ‘Memory Laws’ from a Comparative Perspective." The Indian Yearbook of Comparative Law 2018. Springer, Singapore, 2019. 233-249.]</ref><ref name=timesofisrael>{{cite news |url=https://www.timesofisrael.com/full-text-of-polands-controversial-holocaust-legislation/|title=Full text of Poland’s controversial Holocaust legislation|date=1 February 2018|access-date=2 January 2021}}</ref>
<blockquote>
<blockquote>
1. Whoever claims, publicly and contrary to the facts, that the Polish Nation or the Republic of Poland is responsible or co-responsible for Nazi crimes committed by the Third Reich, as specified in Article 6 of the Charter of the International Military Tribunal enclosed to the International agreement for the prosecution and punishment of the major war criminals of the European Axis, signed in London on 8 August 1945 (Polish Journal of Laws of 1947, item 367), or for other felonies that constitute crimes against peace, crimes against humanity or war crimes, or whoever otherwise grossly diminishes the responsibility of the true perpetrators of said crimes—shall be liable to a fine or imprisonment for up to 3 years. The sentence shall be made
1. Whoever claims, publicly and contrary to the facts, that the Polish Nation or the Republic of Poland is responsible or co-responsible for Nazi crimes committed by the Third Reich, as specified in Article 6 of the Charter of the International Military Tribunal enclosed to the International agreement for the prosecution and punishment of the major war criminals of the European Axis, signed in London on 8 August 1945 (Polish Journal of Laws of 1947, item 367), or for other felonies that constitute crimes against peace, crimes against humanity or war crimes, or whoever otherwise grossly diminishes the responsibility of the true perpetrators of said crimes—shall be liable to a fine or imprisonment for up to 3 years. The sentence shall be made public.
public.


2. If the act specified in clause 1 is committed unintentionally, the perpetrator shall be liable to a fine or a restriction of liberty.
2. If the act specified in clause 1 is committed unintentionally, the perpetrator shall be liable to a fine or a restriction of liberty.
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[[Dovid Katz]] wrote that the law was "an overreaction to some common mischaracterizations of Poland’s role in the Holocaust", including "the myth that Hitler chose to build concentration camps there because Poland was so antisemitic". However, he judged other Eastern European memory laws to be worse, including laws in Hungary, Lithuania, and Latvia which criminalize disagreement with the idea that there was a Soviet genocide in these countries with a prison sentence, and Estonian and Ukrainian laws which criminalize negative interpretations of those countries' collaborationist nationalist movements. What he found truly outrageous was the international silence to these non-Polish "legislative acts that criminalize truth-telling about the Holocaust".<ref>{{cite news |last1=Katz |first1=Dovid |title=Poland's New Holocaust Law Is Bad, But Not the Worst |url=https://jewishcurrents.org/poland-s-new-holocaust-is-bad-but-not-the-worst/ |accessdate=26 October 2020 |work=Jewish Currents |date=25 April 2018}}</ref>
[[Dovid Katz]] wrote that the law was "an overreaction to some common mischaracterizations of Poland’s role in the Holocaust", including "the myth that Hitler chose to build concentration camps there because Poland was so antisemitic". However, he judged other Eastern European memory laws to be worse, including laws in Hungary, Lithuania, and Latvia which criminalize disagreement with the idea that there was a Soviet genocide in these countries with a prison sentence, and Estonian and Ukrainian laws which criminalize negative interpretations of those countries' collaborationist nationalist movements. What he found truly outrageous was the international silence to these non-Polish "legislative acts that criminalize truth-telling about the Holocaust".<ref>{{cite news |last1=Katz |first1=Dovid |title=Poland's New Holocaust Law Is Bad, But Not the Worst |url=https://jewishcurrents.org/poland-s-new-holocaust-is-bad-but-not-the-worst/ |accessdate=26 October 2020 |work=Jewish Currents |date=25 April 2018}}</ref>


American jurist [[Alexander Tsesis]] criticized the law for being ambiguous, for limiting dissemination of knowledge and for being vague.<ref>Tsesis 2020 pp. 117–118</ref>
In ''The Indian Yearbook of Comparative Law'', Indian scholar Kanika Gauba wrote that, whereas Holocaust legislation in other countries enacts a ''duty to remember'' by means of criminalizing [[Holocaust denial]], the Polish bill enacts a ''duty to forget'' by instituting "collective amnesia" on the complicity of part of the Polish population in the Holocaust.<ref name="Gauba"/> Polish law scholars Aleksandra Gliszczyńska-Grabias, Grażyna Baranowska, and Anna Wójcik state that with the revised version of the law, "the risk of violations of individual rights and freedoms remains high". They also question the compatibility of the law with international human rights standards.<ref>{{cite journal |author1=Aleksandra Gliszczyńska-Grabias, Grażyna Baranowska, Anna Wójcik |title=Law-Secured Narratives of the Past in Poland in Light of International Human Rights Law Standards |journal=POLISH YEARBOOK OF International Law |date=2019 |doi=10.24425/pyil.2019.129606}}</ref>

Polish legal scholar {{ill|Patrycja Grzebyk|pl}} writes that "A scientist who would like to investigate crimes committed by Polish citizens or the scale of Polish collaboration risks the loss of his time, money and reputation in lengthy proceedings against her/him commenced by someone who feels insulted." Even the revised version of the law is inconsistent with international law and human rights standards, as it "limit[s] freedom of speech and scientific activity in a disproportional way and entitle[s] NGOs to bring a lawsuit on behalf of the Polish state or nation".<ref name="Grzebyk" />
American jurist [[Alexander Tsesis]] criticized the law, stating that it "restricts the acquisition, expression, and dissemination of knowledge" and "its ambiguity makes it uncertain who will be punished and for what communications", leading to a [[chilling effect]] on "satire, political commentary, historical analysis, and eyewitness testimony". He concludes that "Poland’s effort to control the public spread of information is likely to lead to misleading conclusions that downplay victims’ sufferings and incite hate propaganda."<ref>Tsesis 2020 pp. 117–118</ref>


===Amendment===
===Amendment===
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==Article 2a==
==Article 2a==
{{main|Poland–Ukraine relations}}
{{main|Poland–Ukraine relations}}
Article 2a was criticized because the law singled out "Ukrainians" as the only national group explicitly stated to have carried out crimes, while the only action qualified as "genocide" was the [[massacres of Poles in Volhynia]]. It also was worded in such a way as to criminalize Ukrainian attacks on Polish military targets, which were not illegal under international law.<ref name=Grzebyk>{{cite journal |last1=Grzebyk |first1=Patrycja |title=Amendments of January 2018 to the Act on the Institute of National Remembrance – Commission for the Prosecution of Crimes against the Polish Nation in Light of International Law |journal=Polish Yearbook of International Law |date=2018 |volume=37 |pages=287–300 |doi=10.7420/pyil2017o |quote=As a result of the amendments, Ukrainians are the only national group directly mentioned in the Act as perpetrators of crimes, and the Act does not refer even toGermans or Russians but instead prefers to speak about crimes of the “Third Reich” or of the “communists.” Not surprisingly, Ukrainians have felt offended by this “distinction.”}}</ref>
Article 2a was criticized because the law singled out "Ukrainians" as the only national group explicitly stated to have carried out crimes, while the only action qualified as "genocide" was the [[massacres of Poles in Volhynia]]. It also was worded in such a way as to criminalize Ukrainian attacks on Polish military targets, which were not illegal under international law.<ref>{{cite journal |last1=Grzebyk |first1=Patrycja |title=Amendments of January 2018 to the Act on the Institute of National Remembrance – Commission for the Prosecution of Crimes against the Polish Nation in Light of International Law |journal=Polish Yearbook of International Law |date=2018 |volume=37 |pages=287–300 |doi=10.7420/pyil2017o |quote=As a result of the amendments, Ukrainians are the only national group directlymentioned in the Act as perpetrators of crimes, and the Act does not refer even toGermans or Russians but instead prefers to speak about crimes of the “Third Reich” or ofthe “communists.” Not surprisingly, Ukrainians have felt offended by this “distinction.”}}</ref>


In 2019, article 2a was decreed to be void and non-binding by the [[Constitutional Tribunal of Poland]].<ref name="PR24">{{cite news|url=https://www.polskieradio24.pl/5/1222/Artykul/2247655,Ekspert-orzeczenie-Trybunalu-Konstytucyjnego-ws-nowelizacji-ustawy-o-IPN-moze-otworzyc-droge-do-dyskusji|title=Ekspert: orzeczenie Trybunału Konstytucyjnego ws. nowelizacji ustawy o IPN może otworzyć drogę do dyskusji|publisher=[[Polskie Radio 24]]|date=17 January 2019|accessdate=2019-05-16|language=pl}}</ref>
In 2019, article 2a was decreed to be void and non-binding by the [[Constitutional Tribunal of Poland]].<ref name="PR24">{{cite news|url=https://www.polskieradio24.pl/5/1222/Artykul/2247655,Ekspert-orzeczenie-Trybunalu-Konstytucyjnego-ws-nowelizacji-ustawy-o-IPN-moze-otworzyc-droge-do-dyskusji|title=Ekspert: orzeczenie Trybunału Konstytucyjnego ws. nowelizacji ustawy o IPN może otworzyć drogę do dyskusji|publisher=[[Polskie Radio 24]]|date=17 January 2019|accessdate=2019-05-16|language=pl}}</ref>

Revision as of 00:42, 2 January 2021

The 2018 Amendment to the Act on the Institute of National Remembrance, also known as the Polish Holocaust law[1] or Lex Gross,[2][3][a] penalizes public speech which attributes responsibility for the Holocaust to Poland or the Polish nation. The legislation is part of the historical policy of the Law and Justice party which seeks to present a narrative of ethnic Poles exclusively as victims and heroes.[5][2][6] The law met with widespread international criticism, as it was seen as an infringement on freedom of expression and on academic freedom, and as a barrier to open discussion on Polish collaborationism,[5][7][8] in what has been described as "the biggest diplomatic crisis in [Poland's] recent history".[9]

The law is part of a broader wave of memory laws in Central and Eastern Europe which has gone along with the rise of illiberal democracy in the region.[9][10]

While the act does not mention the "Polish death camp" controversy (involving concentration camps that had been built by Nazi Germany during World War II on German-occupied Polish soil), the act's chief intent was to address that controversy.[5] Under the Act, charges of offending the "good name" of Poland or the Polish nation may be brought by the Institute of National Remembrance or by accredited NGOs such as the Polish League Against Defamation.[5] Originally, offenses against the "good name" of Poland were punishable as criminal offenses with up to 3 years in prison. Following an international outcry, a June 2018 amendment modified the "good-name" offense to a civil offense that can be prosecuted in civil courts. The June 2018 amendment also removed exceptions for research and the arts that were present in the original law.[5]

History

A 2006 amendment with some of the same aims, Article 132a of the Polish Penal Code, was passed in 2006 with the efforts of Minister of Justice Zbigniew Ziobro, but was invalidated two years later on procedural grounds.[11] The amendment was seen as targeting the writings of historian Jan T. Gross, whose work on the Jedwabne Pogrom triggered wide public debate in Poland; the amendment was frequently dubbed Lex Gross (Latin: Gross's Law).[4][12]

After a period of lobbying, the first version of the 2018 Amendment was drafted on 17 February 2016 by Minister of Justice Zbigniew Ziobro. On 30 August 2016 the Council of Ministers, presided over by Prime Minister Beata Szydło, forwarded the draft to the Sejm. [13] In September 2016, Zbigniew Ziobro asserted that the "Polish death camp" term constituted an attack on the "good name of the Polish nation".[5] The proposed legislation was criticized internationally as an attempt to suppress discussion of crimes that had been committed during the Holocaust by Polish citizens.[14][15] The addition of the "ban on propaganda of Banderism" to the law (Article 2a) was spearheaded by the right-wing political movement, Kukiz'15.[16] Kukiz'15 submitted this addition on July 16, 2016, however it was blocked by Civic Platform and Law and Justice parties citing "the good of Polish–Ukrainian relations".[17] Eventually, Article 2a was added to the bill on 25 January 2018 during the second reading.[18]

On 26 January 2018, after the bill's third reading, the Polish Parliament's lower chamber, the Sejm, approved the bill,[19]: Art. 1  which would apply to Poles as well as to foreigners. On 1 February 2018 the upper chamber, the Senate, passed the bill without amendment. On 6 February 2018 President Andrzej Duda signed the bill into law.[20] According to an opinion poll conducted in February 2018, 51% of Poles opposed the 2018 amendment.[21] Some parts of the law[which?] came into effect 14 days after its registration in Dziennik Ustaw (the Register of Statutes), with the full law coming into effect within 3 months. The law was referred to the Constitutional Tribunal of Poland for review of its compliance with the Polish Constitution.[22]

The bill led to an outcry of condemnations against Poland in the United States, Europe, and Israel.[8] Some critics went so far as to accuse the Polish government of Holocaust denial.[23][24] The Simon Wiesenthal Center issued a travel advisory urging Jews to refrain from visiting Poland due to "Poland’s government campaign to change the historical truth by denying Polish complicity in the Nazi atrocities".[8]

As of May 2018, 70 different charges under the act were filed in Polish courts. Most, however, were by Polish citizens protesting the law by filing a self-incrimination. A non-protest charge was filed against the BBC for a production on the Auschwitz concentration camp that used the term "Polish Jewish ghettos".[5]

Original bill

The proposed law modifies a previous law relating to the Institute of National Remembrance (namely, the Act of 18 December 1998 on the Institute of National Remembrance – Commission for the Prosecution of Crimes against the Polish Nation[25] (Dz.U. 1998 nr 155 poz. 1016)).

The following main articles were added in February 2018:

1. Whoever claims, publicly and contrary to the facts, that the Polish Nation or the Republic of Poland is responsible or co-responsible for Nazi crimes committed by the Third Reich, as specified in Article 6 of the Charter of the International Military Tribunal enclosed to the International agreement for the prosecution and punishment of the major war criminals of the European Axis, signed in London on 8 August 1945 (Polish Journal of Laws of 1947, item 367), or for other felonies that constitute crimes against peace, crimes against humanity or war crimes, or whoever otherwise grossly diminishes the responsibility of the true perpetrators of said crimes—shall be liable to a fine or imprisonment for up to 3 years. The sentence shall be made public.

2. If the act specified in clause 1 is committed unintentionally, the perpetrator shall be liable to a fine or a restriction of liberty.

3. No offence is committed if the criminal act specified in clauses 1 and 2 is committed in the course of the one’s artistic or academic activity.’

The crimes of Ukrainian nationalists and members of Ukrainian organizations collaborating with the Third German Reich, as defined in the Act, are acts committed by Ukrainian nationalists in the years 1925–1950, involving the use of violence, terror or other forms of violation of human rights, against individuals or ethnic groups. One of the crimes of Ukrainian nationalists and members of Ukrainian organizations collaborating with the Third German Reich is their involvement in the extermination of the Jewish population and genocide on citizens of the Second Polish Republic in Volhynia and Eastern Lesser Poland."

Article 55a

Historians widely agree that some Poles were complicit in the Holocaust, betraying and murdering Jews.[28] Article 55a was condemned by Holocaust Charities, the United States, the European Union, and Israel for being an obstacle to free discussions on Polish complicity in the Holocaust.[28]

Poland

Government

In January 2018, there was a spate of anti-Israel and antisemitic ripostes to international criticisms of the bill. State TV ran antisemitic crawls on a talk show; state-radio commentator Piotr Nisztor suggested that Poles who supported the official Israeli position might consider relinquishing their Polish citizenships; and TVP2 director Marcin Wolski remarked that the Auschwitz death camp might be called a "Jewish death camp", as Jewish Sonderkommando inmates had run its crematoria.[29][30][31] On 29 January 2018 Polish President Andrzej Duda responded to official Israeli objections to the Polish bill, saying that Poland had been a victim of Nazi Germany and had not taken part in the Holocaust.[32] "I can never accept the slandering and libeling of us Poles as a nation or of Poland as a country through the distortion of historical truth and through false accusations." On 31 January 2018, before the Polish Senate vote on the bill, Deputy Prime Minister Beata Szydło said: "We Poles were victims, as were the Jews ... It is a duty of every Pole to defend the good name of Poland."[33]

Other

A letter signed by many prominent persons in early February, including journalist Anne Applebaum and the 3rd President of Poland Aleksander Kwaśniewski, said: "Why should the victims and witnesses of the Holocaust have to watch what they say for fear of being arrested, and will the testimony of a Jewish survivor who “feared Poles” be a punishable offence?".[34] According to Barbara Kirshenblatt-Gimblett of the POLIN museum, "These attempts to legislate what can and cannot be said is actually destroying the good name of Poland."[35] Former prime minister Donald Tusk tweeted, "Whoever spreads the false phrase about "Polish camps" is detrimental to the good name and interests of Poland. The authors of the law have promoted this vile slander to the whole world as effectively as no one has before. So, according to the law ..."[36]

Prof. Stanisław Krajewski of the University of Warsaw, who co-chairs the Polish Council of Christians and Jews, said that "The way the law is formulated makes it a blunt instrument for paralysing and punishing anyone you don't like", and that "the government's harsh, dismissive reaction to critics has encouraged many people to think they can now attack Jews."[37] On 14 March 2018 the Polish Bishops' Conference noted a rise in anti-Semitism stimulated by the controversy over the Amendment and declared anti-Semitism to be "contrary to the Christian tenet of loving one's neighbor."[38] On 15 March 2018, a group of Polish rabbis thanked the Polish Bishops' conference for condemning a rise in anti-Semitism in the controversy, and said they would "continue to speak out against analogous attitudes among Jews."[38] In 2018 the Union of Jewish Religious Communities in Poland said the legislation has led to a "growing wave of intolerance, xenophobia, and anti-Semitism", making many community members fearful for their safety.[39][40]

On 5 March 2018, in front of the Prosecutor's Office in Warsaw and Wrocław, 45 Polish citizens made public statements referring to historical events, including the Jedwabne pogrom and the Szczuczyn pogrom. The citizens claimed that they attributed responsibility for the events and alleged that their public statements constituted criminal acts under Article 55a of the amended Act of the Institute of National Memory. In the Prosecutors' offices, the citizens deposited formal written documents reporting their alleged crimes.[41][42]

According to Polish scholar of constitutional law Piotr Mikuli [pl], the amendment appears to contradict provisions of the Polish constitution including: "Art. 2 from which the so-called principle of decent legislation may be derived, Art. 42 para. 1 expressing the rule nullum crimen sine lege and Art. 54 para. 1 on the freedom to express opinions."[43] He also expressed the opinion that it did not meet the requirement of being necessary in a democratic society in order to allow a restriction in freedom of speech per Article 10 of the European Convention on Human Rights.[43]

Israel

Even before being passed, the law damaged the Israel–Poland relations. Israel's Foreign Ministry director-general Yuval Rotem reported that preserving the memory of the Holocaust takes priority over international relations. He said that "Preserving the memory of the Holocaust is a matter beyond the bilateral relationship between Israel and Poland. It is a core issue cutting to the essence of the Jewish people".[44] Israel's Prime Minister Benjamin Netanyahu accused Poland of Holocaust denial.[23] Yad Vashem condemned the Polish bill, saying that, while "Polish death camps" as a phrase is a historic misrepresentation, the legislation is "liable to blur the historical truths regarding the assistance the Germans received from the Polish population during the Holocaust".[45][46]

Other Israeli officials such as Education and Diaspora Affairs Minister Naftali Bennett have termed the expression a "misrepresentation", although Bennett said of the proposed law "This is a shameful disregard of the truth. It is a historic fact that many Poles aided in the murder of Jews, handed them in, abused them, and even killed Jews during and after the Holocaust."[47] Israeli president Reuven Rivlin said in Auschwitz that historians should be able to study the Holocaust without restrictions. He also stated "There is no doubt that many Poles fought against the Nazi regime, but we cannot deny the fact that Poland and Poles lent a hand to the annihilation".[48]

Israel's official memorial to the victims of the Holocaust, Yad Vashem, has opined: "There is no doubt that the term 'Polish death camps' is a historical misrepresentation [ ...] However, restrictions on statements by scholars and others regarding the Polish people's direct or indirect complicity with the crimes committed on their land during the Holocaust are a serious distortion."[49][50] Israeli political scientist Shlomo Avineri said young Israelis unintentionally associate the Holocaust with Poland, sometimes far more than with Nazi Germany. Writing in Haaretz, he called for a reappraisal of Israeli Holocaust education policy, to more greatly emphasize German culpability and Polish resistance during the March of the Living.[51]

In protest at what she saw as the censorship and "borderline Holocaust denial" provided by the 2018 bill, Israeli journalist Lahav Harkov repeatedly tweeted the phrase "Polish death camps".[52][53][30]

Other countries

In the U.S., Secretary of State Rex Tillerson expressed "disappointment" in the bill, adding: "Enactment of this law adversely affects freedom of speech and academic inquiry."[20] Three United States representatives, Steny Hoyer, David Price, and Brad Schneider, penned an op-ed for Time to criticize the bill.[54]

While the American Jewish Committee (AJC) has stated that it "has been for decades critical of such harmful terms as 'Polish concentration camps' and 'Polish death camps,' recognizing that these sites were erected and managed by Nazi Germany during its occupation of Poland", AJC has also said that, "while we remember the brave Poles who saved Jews, the role of some Poles in murdering Jews cannot be ignored", and that the AJC is "firmly opposed to legislation that would penalize claims that Poland or Polish citizens bear responsibility for any Holocaust crimes".[55][56]

In February 2018 the Ruderman Family Foundation launched a campaign for the US government to sever its ties with Poland. The campaign included a YouTube video in which a group on-screen repeated the phrase "Polish Holocaust"; the video was removed after widespread criticism.[57][58]

Scholars and historians

Jeffrey Kopstein of the University of Toronto and Jason Wittenberg of the University of California, Berkeley, authors of the book, Intimate Violence: Anti-Jewish Pogroms on the Eve of the Holocaust, about anti-Jewish violence in occupied Poland after the Nazi invasion of Soviet Union, opine that the purpose of the new bill "is clear: to restrict discussion of Polish complicity." They also suggest that "Poland’s current government will likely face the unpalatable prospect of enforcing an unenforceable law and denying what the mainstream scholarly community has increasingly shown to be true: Some Poles were complicit in the Holocaust."[59]

Dovid Katz wrote that the law was "an overreaction to some common mischaracterizations of Poland’s role in the Holocaust", including "the myth that Hitler chose to build concentration camps there because Poland was so antisemitic". However, he judged other Eastern European memory laws to be worse, including laws in Hungary, Lithuania, and Latvia which criminalize disagreement with the idea that there was a Soviet genocide in these countries with a prison sentence, and Estonian and Ukrainian laws which criminalize negative interpretations of those countries' collaborationist nationalist movements. What he found truly outrageous was the international silence to these non-Polish "legislative acts that criminalize truth-telling about the Holocaust".[60]

American jurist Alexander Tsesis criticized the law for being ambiguous, for limiting dissemination of knowledge and for being vague.[61]

Amendment

Pressure from the United States Department of State and threat of downgrading the US-Poland relationship were significant in causing the Polish government to change course.[62] In late June 2018, the Polish government decided to stop waiting for a ruling from the constitutional court and in a hasty process, the legislation passed in a single day, modified the act.[5] The revision removed the possibility of criminal prosecution, but also removed the exemption of scholarship and arts from the law.[5] While violating the "good name" of Poland provision is no longer a criminal charge, charges may still be levied in a civil court.[5]

Following the amendment, the Polish and Israeli prime ministers issued a joint declaration condemning antisemitism and rejecting "anti-Polonism".[5] This statement was condemned by Yad Vashem and its former director, Holocaust survivor Yitzhak Arad, because it was seen as equating the two.[5]

In 2020, Dariusz Stola told Time that the law may have triggered "intimidation that discourages scholars, especially those of the younger generation" from studying the Holocaust in Poland.[63]

Prosecutions

The first case to be brought under the law was by Polish League Against Defamation against an Argentine newspaper, Pagina/12, and its journalist Federico Pavlovsky for an article on the Jedwabne pogrom, published in 2017 before the amendment was passed. The League did not challenge the content of the article, only the use of a picture of cursed soldiers to illustrate it. Following the notification, Pagina/12 and eleven other Argentinian publications reprinted the article, publicizing the information about Jedwabne in Argentina. The Special Rapporteur on Freedom of Expression of the Inter-American Commission on Human Rights, Edison Lanza [es], as well as several Argentine politicians, jurists, and human rights experts, criticized the attempted censorship.[64][65] Lanza called the amendment "a censorship law that aims to close the academic debate on crimes against humanity". He added that "the concept of 'defamation' of a nation or a state is incompatible with international standards that refer to the protection of the reputation of individual persons" and such a law would not be accepted under the Inter-American Convention on Human Rights.[64][66]

In 2019, the League lost an 18-month lawsuit in which it alleged that Jewish News had defamed the Polish nation with an article titled "Polish restitution law excludes most Holocaust survivors and heirs". It was ordered to pay PLN 1,097 in legal costs and PLN 4,623.57 in other costs.[67][68] In 2020, it lost an appeal against the verdict. In particular, the League objected to the fact that the article referred to "Nazis" instead of "German Nazis" and did not explicitly state that "Germans" were responsible for killing 90% of Poland's Jewish population.[69][68] It also wanted to force the newspaper to add a sentence saying that Poles rescued Jews rather than murdering them.[70]

In February 2019, NBC anchor Andrea Mitchell incorrectly stated that the Warsaw Ghetto Uprising was against the "Polish and Nazi regime". She later apologized on Twitter, saying that she misspoke. IPN sued because they wanted an on-air apology.[71][72]

In 2019, a case against Gross for writing that Poles had killed more Jews than Germans during the war was dropped after historian Piotr Gontarczyk said that no reliable statistics are available on the matter.[73][74]

Article 2a

Main article: Poland–Ukraine relations

Article 2a was criticized because the law singled out "Ukrainians" as the only national group explicitly stated to have carried out crimes, while the only action qualified as "genocide" was the massacres of Poles in Volhynia. It also was worded in such a way as to criminalize Ukrainian attacks on Polish military targets, which were not illegal under international law.[75]

In 2019, article 2a was decreed to be void and non-binding by the Constitutional Tribunal of Poland.[76]

The Amendment's passage worsened Polish–Ukrainian relations, already contentious on the questions of the prewar Organization of Ukrainian Nationalists and the wartime and postwar Ukrainian Insurgent Army. Stepan Bandera and Roman Shukhevych have been considered Ukrainian national heroes in Ukraine, and war criminals in Poland.[77][78] In Ukraine, the Amendment has been called "the Anti-Banderovite Law".[79][80]

The director of the Ukrainian Institute of National Remembrance, Volodymyr Viatrovych, asserted that the Amendment's principal target is Ukrainians residing in Poland.[81]

The Polish law has been compared to Ukrainian Law 2538-1,[82] passed in 2015.[83][84]

Mission statement change

Article 1 - the mission statement of the Institute - was changed to include "protecting the reputation of the Republic of Poland and the Polish Nation".[85]

Prof. Havi Dreifuss, head of Yad Vashem's Center for Research on the Holocaust in Poland, noted that with the change of the law in question the IPN’s fundamental role has changed and this was reflected in their mission statement.[86]

See also

Notes

  1. ^ The expression "Lex Gross" ("Law of Gross") was previously used for the 2006 amendment, struck down by the Constitutional Court, from which the 2018 amendment is derived. The law was perceived to target Jan Gross, a Polish Holocaust researcher known for his scholarship on the Jedwabne pogrom and other research into the Holocaust which has provoked heated public debates in Poland due to its discussion of the implication of (ethnic) Poles into killings of the Jews.[4][2]

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  86. ^ Benjakob, Omer (2019-10-03). "The Fake Nazi Death Camp: Wikipedia's Longest Hoax, Exposed". Haaretz. Retrieved 2019-10-04.

Further reading

External links

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