The Polish Holocaust Law
By Sherri Donovan, Esq.
I took a trip to Poland and Hungary in March, 2018 to investigate the recent Polish Holocaust law. My grandparents, great grandparents and great-great grandparents were from Poland, Russia, and other parts of Eastern Europe. My paternal grandfather was a socialist Rabbi in Brooklyn when he was sent down south to Georgia during WWII. He stated publicly, “We can’t just fight fascism abroad, we have to fight it right here”. His statement is as relevant and inspirational today in the U.S. and globally to be vigilant for human rights. It is because of Grandpa Gus, whom I never met (he died when my father was seven), reading Clarence Darrow’s autobiography at age eleven, and late night political discussions with my father on middle school nights that I became a lawyer and believe in human rights for immigrants, refugees, Palestinians and journalists, as well as an advocate against racism and genocide.
My maternal grandmother, grandma Rae, originally Rachael Kaplan, grew up in Stolin, a village in Poland, which then became part of Russian and is now in Belarus. Her father, a scientist, was the only known person wearing a yarmulke at Vilna University. Jews were not permitted but my great grandpa was permitted to stay because he was at the top of his class in Math and Science and thus was asked to tutor the Dean’s son.
Grandma Rae, known in her New York high school as the “smart green horn” came to the U.S. via the Statue of Liberty when she was twelve. At first not knowing English, only Yiddish and Polish, a black umbrella was placed outside the window of great-great grandma Fae’s rental apartment at 155 Houston Street, so my Grandma Rae and her parents could find their way home. It is because of my grandma Rae, I learned to giggle and live in the moment. My great- great grandma Fae (whom my middle name is from) lived to over 103 and was still carrying heavy barrels from the basement of her delicatessen at the age of 92!
In February 2018, Polish President Andrzej Duda signed legislation into law that criminalized any attribution to the Polish state or nation of complicity in the Holocaust and Nazi crimes by the German Third Reich. The new provisions also prohibited the use of the terms “Polish death camps” or “Polish concentration camps”. The law is broad and punitive. The sanctions included up to three years of imprisonment to anyone, whether in Poland or globally, who attributes responsibility or co-responsibility to the Polish nation or state for the Holocaust or crimes against peace. The bill has sweeping language including “whoever claims publicly and contrary to the facts,” and “distorting the historical truth about the Polish people and state.” There is an exception to the law for scientific or artististic activity. The amendments are contained in Article 55(a) of the existing Act on the Institute of National Remembrance. To make matters worse, the law was adopted by the lower house of the parliament on the eve of the Holocaust Remembrance Day on January 27th. Law Professor Arthur Nowak-Far at the Warsaw School of Economics pointed out that the law did not define elements of a crime and thus, should be struck down.
The far right Polish President Duda and his party, the Law and Justice Party (PiS) has been targeting immigrants, and inflaming xenophobia. They have also been threatening democracy by controlling the national media and the courts. The Constitutional Tribunal of Poland is required to verify the new law, however, the independence of the Constitutional Tribunal is highly questionable. In December 2017, the European Commission initiated proceedings against the Polish Government for violating Article 7 of the European Treaty. Article 7 protects common European values and institutions of democracy and respect for the law. This was the first time, Article 7 has been triggered since its inception in 1999. European Commission’s Vice President Timmerman declared that Poland’s presiding PiS headed by Jarosław Kaczyński had adopted thirteen laws in the last two years that permits systematic interference with the composition, powers, and functionality of the judiciary. The PiS came to power in 2015.
Germany, which has been a leader in teaching tolerance and the holocaust in their schools and museums, was the first country in the 1980’s to criminalize Holocaust denial. The European Union and individual European countries have since adopted provisions against genocide denial to build trust among nations and promote humanity without hate. The new provisions in the Polish law and Amendment of Article 55 are not consistent with the memory measures described above. As PHD Senior Researcher, Uladzislau Belavusau in The Hague has perceptively analyzed, the new Polish law is more analogous with Turkish and Russian penal codes. In the Turkish Criminal Code (301) denigration of the Turkish nation is outlawed and is intended to silence speech against the Armenian genocide and other minorities by the Ottoman Empire in 1915. In 2014, under Putin, a criminal code, Article 354 was enacted prescribing a fine or exactly up to three years of imprisonment, as the Polish law does, for disseminating false information about the Soviet Union’s actions during WWII. The law sought to inhibit recent bloggers and liberal groups, as well as to rehabilitate Stalin’s name. State officials are subject to stricter penalties.
The new Polish law permits NGO’s, as well as prosecutors to file lawsuits against those who attack the historical dignity and national reputation of Poland. The first lawsuit was filed by the Polish League Against Defamation against an Argentinian newspaper, Pagina 12 and journalist Frederico Pavolsky, for a story and photo that was published two months before the law came into effect. The Polish League Against National Defamation is close to the ruling party and collected tens of thousands of signatures to pass the new Holocaust law.
There were mass street protests in Warsaw and other cities against the erosion of the independence of the courts in 2016 and 2017. In 2018, there were urban mass protests against the rise of racism, anti-semitism and a further tightening of Poland’s already restrictive abortion law.
The first attempt at the new holocaust legislation occurred in 2000. The Polish parliament penalized “defamation of the Polish Nation” and entitled it, “Lex Gross”. Jan Tomasz Gross published a book immediately before the proposed legislation entitled “The Neighbors” about the well-documented Jedwabne pogrom. The book documents the history of a village in 1941 where Jews were forcefully collected and burned to death in a barn. “Lex Gross” was struck down by the Polish Constitutional Tribunal not on a violation of free speech but a technicality.
In an open letter to the current Parliament, a letter was written on behalf of Polish Jews by Jan Gebert that there was a serious concern that the new provisions would criminalize giving testimony about non-Jewish Poles who extorted or murdered Jews. Worldwide reactions expressed grave concerns about stifling academic inquiry. A prominent Polish Jewish journalist Kon Stanty Gebert tested the law and challenged prosecutors using the outlawed language in an article. Mr. Gebert published in the The Polish Daily in March, 2018, that members of the Polish nation bear co-responsibility for collusion with the Third Reich in massacres like Jedwabne, and that the Polish nation committed a crime against peace when it participated with the Soviets in the 1968 occupation of Czechoslovakia.
On my tour of the Jewish ghetto in Krakow, named Kazimierz, I questioned my guide about the new law. He stated that his good friend, a non-Jewish Pole was working for years with the religious community in Krakow and building awareness, sensitivity and cultural exchange between the non-Jewish and Jewish sectors of Krakow. His friend stated that with the introduction of this new law, dialogue has disastrously disappeared. In 2013, the Polish Museum of Polish Jews in Warsaw opened and had successfully focused on dialogue and reconciliation. The new holocaust law disrupted this progress.
On my tour of the Auschwitz and Birkenau concentration camps, I asked the guide about the new holocaust law. Silence. Her lips closed tight like the shells of a clam. She said, “I can’t talk about that.” I asked her privately, “Is it the government, your employer or your choice?” No response by the young woman. I said, “How can you do a tour about the Holocaust and not at least explain the new law?” The young guide then turned to a colleague, an older Polish woman who did not speak English. I understood of her response, one word “controversial”. In translation, the younger guide interpreted for the more experienced guide and said, “I agree with the first part of the law about prohibiting the term “Polish death camps” but not the rest of the law.” I was shown by these guides the Auschwitz cell of the monk, Maximillian, who gave his life in replacement for another Auschwitz prisoner who had a family. The cell had a cross and fresh flowers in it.
Three million non-Jews in Poland also lost their lives under Nazi occupation. I was at the University in Krakow where Copernicus attended, and where Polish professors were once called for a beginning of the year meeting and then shot dead by the Nazis. Poland has a long and early history of being invaded from Germany, Russia, Prussia, the Austrian Habsburg Monarchy, and even the Swedes and Mongols. A national identity has been fragile and thus important to the Polish people. The reality and myth of being the victim exists. A Polish underground State was established in 1939 by the Polish government in exile in London. Some Poles, like the only non-Jewish person in the Krakow ghetto, a chemist who ran a pharmacy, helped and hid Jews at the risk of death. Thousands of Poles concealed and aided their Jewish neighbors. The citizens of Poland have the world’s highest count of individuals recognized by Yad Vashem in Jerusalem for saving Jews from extermination. The 6,706 Polish women and men are recognized as the Polish Righteous Among the Nations which is over 25% of the 26,513 awarded globally. There were also organized networks of Polish resistance committed to protecting Jews.
As Hungarian Professor Miklos Molnar discussed with me in Budapest, the Polish as the Hungarians were victims and collaborators with the German Nazis. They were both. The Professor also lamented about his government’s extremist policies and gerrymandering. Viktor Orban was re-elected for a third time as Prime Minister in April, 2018. He has been in office since 2010. Orban’s party, Fidesz also won two-thirds of the parliament. Budapest is the exception, with 100,000 peaceful protestors taking to the streets a week after the election.
The Organization for Security and Cooperation in Europe, a public watchdog for democracy stated that the Hungarian election used intimidating xenophobic rhetoric and was riddled with media bias. Government paid anti-immigrant posters were placed side by side with campaign posters of liberal philanthropist Soros with a “doctored” longer nose, arm in arm with Orban’s opposition. In the documentary, “Cries From Syria”, one child refugee sadly spoke about being treated like a dog from Hungarian authorities, including being told to drink dirty water from a muddy puddle.
As Ben Helfgott, a survivor of Buchenwald, told BBC, “I was saved by a Pole and I was nearly killed by a Pole. That is my history, it cannot be changed. They can pass a law but it cannot work.” Professor of Polish history, Anita Prazmouwska, at the London School of Economics (my alma mater where I took classes on Eastern Europe and Germany) proclaimed, to the BBC, “This is history as a tool, as a means for a nationalistic government to accuse everyone else of betraying the nation while painting itself as the true carriers of the Polish flag. It is a blunt instrument.”
The law is a product of the embodiment of nationalist and autocratic shifts in the United States and some European governments, including Poland, Hungary and Austria. As New York Times journalist and foreign policy editor, Roger Cohen, wrote in his April 6, 2018 article, “How Democracy Became the Enemy,” “A vigorous counterrevolution against the liberal-democratic orthodoxy of diversity and multiculturalism is underway.” Trump chose Poland for his first major public European speech in 2017. Instead of playing the role of human rights watchdog and being firm with the PiS and Duda about their undemocratic actions, Trump inflamed and empowered the alt-right. He praised the current Polish government and reinforced xenophobia with battle cries to protect borders. Trump’s speech was drafted by Steve Miller, architect of the travel ban. As the Southern Poverty Law Center reported in 2018, hate crimes have increased in the United States more than 20% since Trump’s campaign and presidency. Even in schools across the U.S. there is an epidemic of bigotry. As in Poland and Hungary, Trump has attacked voting rights and the independent press, and undermined the judicial branch of government. He has criticized judges, stacked the courts with far-right ideologues and pardoned Joe Arpaio, the former Arizona Sheriff who was convicted of criminal contempt for refusing to stop profiling Latinos. He has empowered the white supremacist movement by equating neo-Nazis with anti-racists activists after deadly violence against a young woman human rights protestor in Charlottesville, calling African nations “shithole countries” and appointing extremists in the White House.
My grave concerns about Poland’s Holocaust law include, manipulation and inflammation of hate and oppression for political gain, rewriting of history, a deterioration of dialogue and trust between Jews and non-Jews in Poland and globally, discrimination against other vulnerable communities, stifling of inquiry and education, inhibiting democracy and free speech, and setting in motion a destructive model against reconciliation and peace.
Note: Due to international pressure, jail time has been removed from the law for violations.