Poland’s Memory Wars: The Legal Governance of History
In January 2018, the Polish parliament adopted the 2018 Amendment to the Act on the Institute of National Remembrance, which criminalized public speech claiming that the Polish state was responsible or co-responsible for Nazi crimes committed by the Third Reich. [1] The controversial act details that such claims “grossly diminish the responsibility of the true perpetrators of said crimes” and render individuals liable to a fine or three-year prison sentence. [2] Although the Act on the Institute of National Remembrance was established in 1998 to prevent Holocaust denialism, an undeniably positive aspiration, the 2018 amendment has resulted in the Act becoming a coercive mechanism for distorting and censoring national history. [3] On February 8, 2021, two Polish historians, Jan Grabowski and Barbara Engelking, were convicted of violating Article 55a of the Act on the Institute of National Remembrance (2018) in their novel Dalej jest noc [Night without End] for having accused Edward Malinowski, the mayor of the Polish village Malinowo during the Second World War, of abetting the Nazis. [4] Though the Act on the Institute of National Remembrance sought to protect Holocaust remembrance and demystify Poland’s ambiguous role under the Third Reich, the proceedings of the subsequent case—Leszczyńska v. Engelking and Grabowski (2021)—reveal the inherent threat memory laws pose to historical scholarship.
While it has been nearly eighty-two years since the Nazi invasion of Poland, the legacy of the Holocaust still pervades Polish national consciousness. As the first nation invaded by Nazi Germany in 1939, German-occupied Poland was notorious for housing such infamous extermination camps as Treblinka, Bełżec, and Auschwitz-Birkenau, and for its widespread anti-semitism; an estimated 90 percent of Poland’s Jewish population was murdered during the Holocaust. [5] As a consequence of the monumental repercussions of the Holocaust on Polish society, Poles have subsequently struggled to grapple with the domestic massacre of Jews and the adjudication of civilian crimes.
Accordingly, since the late 1980s, the Polish government has assumed an active role in prosecuting Nazi war crimes and preserving the remembrance of the Holocaust. On December 18, 1998, the Polish government passed the Act on the Institute of National Remembrance, which established the Institute of Remembrance in Article 8.1, a state organization dedicated to prosecuting crimes against humanity and overseeing national archives and historical education. [6] Furthermore, Article 55 of the Act outlawed the “public denial, against the facts, of Nazi crimes, communist crimes, and other offences constituting crimes against peace… committed against persons of Polish nationality between September 1, 1939 and July 31, 1990.” [7] The 1998 Act emerged during the late twentieth-century rise of European memory laws concerning Holocaust denialism. Amendments to previous legislation, such as Article 3h of Austria’s 1992 Prohibition Act, Article 24 of France’s 1990 Press Act of 29 July 1881, Article 130 of Germany’s 1994 Penal Code of the Federal Republic, and Article 457-3 of Luxembourg’s 1997 Criminal Code all criminalized Holocaust denial by positing that such denial undermined the Nuremberg Charter of 1945. [8] Such memory laws are often referred to as the legal governance of history, as they seek to “enshrine state-approved interpretations of crucial historical events” and clarify historical ambiguities. [9] In nations such as Poland that were under the totalitarian regime of the Third Reich for the entirety of the Second World War, memory laws have become integral vessels for justice and retribution.
However, the dissension surrounding whether or not Polish civilians had autonomy over their actions and should be adjudicated for atrocities committed during the Holocaust remains a topic of contention. Poland’s struggle to reckon with its past has resulted in the national government taking a strong stance in establishing Polish innocence during the Holocaust. Most notably, in 2018, the Polish government passed the aforementioned 2018 Amendment to the Act on the Institute of National Remembrance, which amended Article 55 to outlaw any individual who “publicly and contrary to the facts attributes to the Polish Nation or to the Polish State responsibility or co-responsibility for Nazi crimes.” [10] Such acts ostensibly constituted an attack on the “good name of the Polish nation” and would be prosecuted by means of civil law—prohibiting the prosecution of Polish citizens who burnt alive nine hundred Jews during the Jedwabne pogrom 1941 or massacred five hundred of their Jewish neighbours in Radzilów. [11] The 2018 amendment transforms the 1998 Act on the Institute of National Remembrance from a statute that aspires to protect the truth to one that censors it, defeating its original purpose of preserving accurate accounts of history.
In February 2021, Barbara Engelking, founder of the Polish Center for Holocaust Research, and Jan Grabowski, professor of history at the University of Ottawa, were accused of violating the amended Article 55 in their historical study on the fate of Jews in occupied Poland, Dalej jest noc. In a four-sentence passage, the authors summarized the testimony of Estera Drogicka, a Holocaust survivor, who stated that Edward Malinowski, the wartime mayor of Malinowo, led the Nazis to a group of over a dozen Jews in hiding, who were subsequently murdered. [12] The plaintiff, Filomena Leszczyńska, niece of Edward Malinowski, claimed that Engelking and Grabowski “slandered the memory” of her uncle and violated her “right to one’s national pride and identity,” grounding her claims on the basis that such allegations tarnished the “good name” of the Polish nation pursuant to Article 55 of the Act and Article 133 of the Polish Criminal Code. [13]
In the Warsaw District Court’s decision, Judge Ewa Jończyk ruled that the scholars failed to exercise due diligence and “use a professional methodology appropriate for historical analysis” when conducting research surrounding Malinowski’s role in the Holocaust. [14] The court continued that Engelking and Grabowski did not provide substantive evidence of Malinowski’s guilt, extrapolating on “unproven and unchecked” oral testimonies, and ordered a public apology for including “inaccurate information.” [15] Despite the defence demonstrating that Grabowski and Engelking had over a thousand pages of historical facts retrieved from scholarly sources and supported by international academia, the court decided to assume “the role of a historian and assess the value of a historical source.” [16] Though Grabowski and Engelking successfully appealed the ruling in August of 2021, the existence of legislation that stifles inquiry into the complicity or participation of the local population in the persecution of Jews threatens accurate historical scholarship and hinders the administration of justice for war crimes.
Though the Act on the Institute of National Remembrance sought to protect the falsification of history and elucidate the contested role of the Polish state during the Holocaust, it has become a coercive model that imposes state-approved interpretations of history on scholarship. The 2018 amendment to its Article 55 and 2021 decision in Leszczyńska v. Engelking and Grabowski shed light on the reality of memory laws: they prioritize protecting the “good name” of the State over providing an authentic and comprehensive discussion of history. Considering the paradoxical intentions of memory laws, it is difficult to navigate the extent to which the legal system should have jurisdiction over history. However, Polish memory laws and the proceedings of Leszczyńska v. Engelking and Grabowski expose the inherent threat that memory laws pose to historical scholarship.
edited by William Kanellopoulos
Sources:
[1] Times of Israel Staff, Full text of Poland’s controversial Holocaust legislation, The Times of Israel (2018), online at https://www.timesofisrael.com/full-text-of-polands-controversial-holocaust-legislation/ (visited October 20, 2021).
[2] Ibid.
[3] The Institute of National Remembrance, The Act on the Institute of National Remembrance, dated December 18, 1998.
[4] Leszczyńska v. Engelking and Grabowski (2021).
[5] Estimated pre-war Jewish population and estimated number of murdered Jews per country during the Holocaust from 1930 to 1945, Statista (2021), online at https://www.statista.com/statistics/1070564/jewish-populations-deaths-by-country/ (October 20, 2021).
[6] The Act on the Institute of National Remembrance, The Institute of National Remembrance (December 18, 1998), online at https://www.legal-tools.org/doc/fc69d7/pdf/ (visited October 20, 2021).
[7] Ibid.
[8] Michael Whine, “Expanding Holocaust Denial and Legislation Against It,” 20 Jewish Political Studies Review 1, 57 (2008).
[9] Uladzislau Belavusau and Aleksandra Gliszczyńska-Grabias, Memory Laws: Mapping a New Subject in Comparative Law and Transitional Justice 250 (Cambridge University Press 2017); Nikolay Koposov, Memory Laws, Memory Wars: The Politics of the Past in Europe and Russia 30 (Cambridge University Press 2017).
[10] Full text of Poland’s controversial Holocaust legislation, The Times of Israel (2018).
[11] Jörg Hackmann, “Defending the “Good Name” of the Polish Nation: Politics of History as a Battlefield in Poland,” 20 Journal of Genocide Research 4, 588 (2018); Yves Jean Potel, “Chronology of Mass Violence in Poland 1918-1948, Mass Violence & Résistance,” Science Po Mass Violence and Mass Resistance, (2010).
[12] Masha Gessen, The Historians Under Attack for Exploring Poland’s Role in the Holocaust, The New Yorker (2021), online at https://www.newyorker.com/news/our-columnists/the-historians-under-attack-for-exploring-polands-role-in-the-holocaust (visited October 20, 2021).
[13] Wojciech Czuchnowski, The plan to destroy Holocaust scholars. Polish Anti-Defamation League goes after the authors of the book "Night Without End, Wyborcza (2021), online at https://wyborcza.pl/7,173236,26714379,the-plan-to-destroy-holocaust-scholars-polish-anti-defamation.html?disableRedirects=true (visited October 18, 2021); Full text of Poland’s controversial Holocaust legislation, The Times of Isreal (2018); Polish Code of Criminal Procedure (1997), Article 133.
[14] Wojciech Czuchnowski, Holocaust Scholars Engelking and Grabowski Ordered to Apologize in Libel Case, Wyborcza (2021), online at https://wyborcza.pl/7,173236,26783046,holocaust-scholars-engelking-and-grabowski-ordered-to-apologize.html (visited October 18, 2021); Monika Brzozowska-Pasieka, Statement by Filomena Leszczyńska Lawyers, Kuryer Polski (2021), online at https://kuryerpolski.us/en/Page/View/pasieka-new-yorker-letter (visited October 18, 2021).
[15] Ibid; Andrew Higgins, Polish Court Orders Scholars to Apologize Over Holocaust Study, The New York Times (2021), online at https://www.nytimes.com/2021/02/09/world/europe/poland-holocaust-jews-libel.html (visited October 18, 2021).
[16] Aleksandra Gliszczyńska-Grabias, “A Ruling Against Survivors.” By Imre Kertész Kolleg. Cultures of History Forum (2021): 4-11.