Justice Min: Anti-defamation law to protect Poland from false charges of complicity in German crimes

“The amended Institute of National Remembrance law is meant to protect the Polish state and nation as a whole against false accusations of complicity in German crimes, rather than blur responsibility of individuals or groups. There will be no punishment for witnesses of history, scholars or journalists who quote painful facts about our history. Investigations will be launched when evident German crimes are denied, belittled and attributed to the Polish state or nation,” Minister of Justice and Prosecutor General Zbigniew Ziobro said in an interview with the Polish Press Agency.

Polish Press Agency: Minister Ziobro, when Pope Francis visited the former German death camp Auschwitz two years ago, he chose silence as his way of paying tribute to the victims. Is contemplation and silence not enough? Did we need a legislative act?

Minister Zbigniew Ziobro: Signing the guest book on that day, the Pope also wrote, “Lord, forgive so much cruelty.” But to forgive, one must remember. And that’s the purpose of the amended Institute of National Remembrance law – to protect historical truth and the memory of victims of German crimes: Jews, Poles and other nationalities. True to the words of Jan Karski, a courier of the London-based Polish government-in-exile, who alerted US President Roosevelt, other foreign leaders and the whole world to the Jewish tragedy, and who kept saying until the end of his life: “Humankind should never forget about the Holocaust”.

Back then, the world was deaf to dramatic appeals made by Karski and to requests made on behalf of the Polish government to bomb the railway tracks used by the Germans to transport Jews to their death in Auschwitz. Today, this world is casual about circulating such expressions as “Polish death camps”. The term falsely ascribes participation in the Holocaust to the Poles as a nation. That is why we, the Polish people, still cannot afford to be silent even though it has been over 70 years since the war ended. These camps were not Polish but German. And it was at the hands of the Germans that almost every Polish family suffered during the war. Including mine. The new law is meant to prevent the blurring of the line between the perpetrators and their victims. It is meant to prevent the challenging and belittling of German crimes.

Would it not have been enough if the law had simply banned the phrase “Polish death camps”? Critics say that threatening penalties against those who “publicly and contrary to the facts attribute responsibility or partial responsibility for the Nazi crimes committed by the Third German Reich to the Polish Nation or the Polish State” is an overly general formulation.

Please read it to the end. The provision makes it clear that the Nazi crimes are understood “as determined in Article 6 of the Charter of the International Military Tribunal - Annex to the Agreement for the prosecution and punishment of the major war criminals of the European Axis, signed in London on 8 August 1945.” What is more, this Article is also quoted in the 2008 Framework Decision of the European Union. The Union obligated its member states to prosecute and penalize statements that deny or belittle Nazi German crimes, thus falsifying history. Such regulations are also in place in France or Luxembourg.

One could say that by amending the Institute of National Remembrance law we are implementing EU recommendations. Reference to Article 6 of the Charter of the International Military Tribunal is decisive in legal terms. It clarifies that the statutory provision refers to challenging crimes that have been historically established beyond any doubt, and not crimes that are only now being examined by historians, a point worth stressing.

Still, it would have been more straightforward to ban the phrase “Polish death camps”…

But then you could talk at will about, say, “Polish gas chambers” or otherwise make the Polish nation or state responsible for German crimes. You do not write laws this way, and criminal law is especially strict in this respect. It does not allow extensive interpretation. In other words, if we had prohibited the specific phrase “Polish death camps”, we would not be able to apply this ban to similar expressions by using extensive interpretation or analogy, in line with the Latin legal maxim nullum crimen sine lege stricta. The legislation we have adopted is precise if you read it in its entirety, especially in conjunction with the Charter of the International Military Tribunal, and not if you take journalistic short cuts or interpret it in a biased way.

Is it biased to say that those who talk about Polish WWII blackmailers or szmalcownicy and about Poles who committed crimes will face prosecution? The case of Jedwabne is often quoted here.

To begin with, it is a misunderstanding. The law protects the Polish nation as a whole and the Polish state against false accusations of German crimes. However, it does not protect individuals or even groups of Poles who behaved disgracefully during the war. Moreover, the prosecutor will have to prove that the allegations levelled against the state or nation are false.

It is a big step forward if you look at the legislation which was in force in Poland between 2006 and 2008, and which raised no concerns among Jewish communities at the time. It provided for a three-year prison sentence for those who slanderously imputed Nazi crimes to the Polish nation, and required the accused to prove before court that his or her statements were true, which is a rule for slanders. The new provisions shift the burden of proof onto the prosecutor.

It is true that not all Poles behaved decently during German occupation. We also had a small criminal underclass, who were especially visible in small towns, but their guilt cannot be put on the nation as a whole. Bear in mind that German-occupied Poland was the only country in Europe where helping Jews carried only one penalty, i.e. the death sentence by summary execution. And this applied not only to the helper but to his or her whole family. Those who knew about hidden Jews but did not report them to German authorities were punished with death, too. Anne Frank, who I don’t have to introduce, was hidden by Dutchmen. One of them spent 6 weeks in jail, for this noble act. The second one was sent to a camp, but survived. The third one was released. If they had found themselves in a similar situation in Poland, all three would have been killed, just as their families and those who were in the know but didn’t inform the Germans. As was the case with the Baranków family, whose two children was murdered in their home village near Miechów by Germans for hiding four Jews. Under such inhuman circumstances, the Poles as a nation passed their test in humanity. Tens of thousands of Poles are estimated to have lost their lives for hiding Jews. We owe them our memory, respect and defence against the lie about the “Polish Holocaust”.

We certainly do. But what will be the punishment, say, for the Jewish Holocaust survivors who say that Poles killed their loved ones or betrayed them to the Germans?

None at all. This law is not meant to conceal facts or deny historical accounts of witnesses. As I said, we behaved decently as a nation, but that is not to say that some Poles did not commit base acts out of fear or greed. We are not going to deny it, let alone punish for it.

Not all facts that incriminate Poles are sufficiently documented in historical sources. Will you punish people who quote them and search for the truth that can be shameful for Poles?

We won’t. The purpose of the law is to preserve historical truth, not to hold back scholars and historians. The law says clearly that it does not cover academic and artistic activities.

And what about journalism?

The law also does not apply to it, if by it we understand writing commentaries and articles which contain references to historical controversies and doubts, reporting on academic research or describing facts that are shameful for Poles. No one is limiting freedom of speech or journalistic freedom. Until we are dealing with a self-evident lie, like, for example that extermination camps were “Polish”, or that Poles systematically murdered Jews, that is to say that something similar occurred to the massacres of Poles in south-eastern Poland, where the leadership of Ukrainian underground issued an order to military units, which were joined by a part of the Ukrainian population.

So what is the purpose of this law? What truth is it meant to protect?

It is meant to protect indisputable, unquestionable truth. The truth that is obvious for most Poles, but which is often challenged, including by some very marginal groups in Poland.

Such an indisputable historical truth is the fact that Germans attacked Poland in 1939. That the Polish army which had both Polish and tens of thousands of Jewish soldiers and officers fighting in it was the first to put up armed resistance against Hitler’s Nazi machinery. The fact that Polish soldiers, also of Jewish nationality, shed their blood to defend the Polish state which is now being accused of the Holocaust by some people. Poland was attacked by Germany and its coalition partners from all sides and after weeks of armed struggle it lost all its territory. The Polish government and a part of armed forces went into exile and clandestine resistance was not able to effectively protect its citizens, Jews as well as Poles. The war started by Germans took more than three million Polish Jews lives and almost as many lives of Poles. Despite losing our territory, we created Żegota – Europe’s largest underground army and the only underground organization in occupied countries to help Jews. The Polish government in exile contributed almost 1,5 million dollars for its operations, which was a lot of money at that time.

Another undeniable historical fact is that a collaborationist government was not formed in Poland, unlike in most occupied European states whose authorities helped the Third Reich exterminate Jews. Hundreds of thousands Poles were killed in all German concentration camps. No other people but Poles alarmed the world about the crimes committed against their Jewish fellow citizens. No other person but an officer from the underground Home Army Witold Pilecki let Germans imprison him in Auschwitz so that he coud report on the Holocaust and send dramatic accounts to the West.

It is also a fact that law imposed in occupied Poland allowed Germans to immediately punish by death whole Polish families for helping Jews. During such executions Germans would burn people alive in their homes. Despite such terror, Poles helped Jews on a large scale. It was incredible heroism to put at risk their own lives and the lives of their children. We cannot compare this to other occupied countries, where the usual punishment for helping Jews was imprisonment at most. It took the involvement of hundreds of thousands of Poles to save the Jews who were hiding in Poland. Scholars differ about the exact figure, but it is always in the hundreds of thousands. Poles make up the largest group, over a quarter, of those heroes whom Israel’s Yad Vashem Institute has recognized as the Righteous Among the Nations for saving Jews. This is why Poles have the right to defend themselves against scandalous and false accusations which claim that Poles as a nation were complicit in the Holocaust.

There are accusations, however, that Poles did not prevent German crimes committed against Jews in the territory of their homeland.

Just as they were unable to prevent the deaths of almost three million Poles, hundreds of thousands killed in concentration camps. Just as they did not manage to prevent the deportation of additional millions of citizens for slave labour in Germany. Just as they were unable to prevent the killing of 200,000 Poles during the Warsaw Uprising which broke out more than a year after the pacification of the Warsaw Ghetto Uprising. Just as they were unable to rescue approximately 60,000 Poles living in the Warsaw districts of Wola and Ochota. They were murdered by Germans during a couple of days and their dead bodies, both of men, women and children, piled up until first floors of buildings. Just as they were unable to prevent the occupier from looting and destroying a great part of national assets, from repeatedly imposing gigantic levies, etc.

We were unable to prevent the killing of Poles and we were unable to effectively oppose the extermination of Jews that Germans carried out with demonic persistence. It was a time of terror, and many people don’t know about it or just don’t want to remember. So accusing Poles who helped Jews as much as they could even though they were unable to save themselves is very wrong and unfair. Suggestions claiming it was possible to oppose German terror are completely at odds with historical realities, and stem from either ill will or profound ignorance.

Will you hold to account people who deny this truth when the new Institute of National Remembrance (IPN) law comes into force soon?

The procedures are underway, the wheels of justice turn slowly. If there is a suspicion that an offence was committed, the public prosecutor’s office, acting in line with the applicable law, will decide whether to start an investigation. It will surely not open investigation in cases, such as those as I have mentioned, that are outside the scope of this provision. If a procedure opens, the public prosecutor will appoint experts who will decide whether we have a case of distorting history, of denying obvious facts. When dealing with such controversial issues, they must base their decisions on irrefutable findings. Before the public prosecutor’s office presses charges against anyone, the Constitutional Tribunal will surely  take a position on the amended IPN law. Its ruling will be a guide public prosecutors on how to apply the new law, as the Tribunal’s judgements are universally applicable in Poland.

Do you expect the emotions stirred by the law to calm down?

I hope that emotions will give way to rational arguments. We will soon celebrate another anniversary of the Warsaw Ghetto Uprising. I don’t want the walls put up by Germans in the past to separate Poles from Jews. We are linked by nearly a thousand years of good, common history and we cannot let anything drive a wedge between us.

Source: Polish Press Agency (PAP)