Act on the Institute of National Remembrance

The Act's article 55 criminalized "public denial, against the facts, of Nazi crimes, communist crimes, and other offenses constituting crimes against peace, crimes against humanity or war crimes, committed against persons of Polish nationality or against Polish citizens of other nationalities between 1 September 1939 and 31 July 1990";[6] and is therefore sometimes restrictively referred to as the law against Holocaust denial.[7]

In 1999 a University of Opole history professor, Dariusz Ratajczak, was tried under Article 55 for his Holocaust denial, was found guilty, and was sentenced to a year's probation.[8][9]

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.[1] 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).[12][16]

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. [17] In September 2016, Zbigniew Ziobro asserted that the "Polish death camp" term constituted an attack on the "good name of the Polish nation".[3]

The proposed legislation was criticized internationally as an attempt to suppress discussion of crimes that had been committed during the Holocaust by Polish citizens.[18][19]

The addition of the "ban on propaganda of Banderism" to the law (Article 2a) was spearheaded by the right-wing political movement, Kukiz'15.[20] 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".[21] Eventually, Article 2a was added to the bill on 25 January 2018 during the second reading.[22]

On 26 January 2018, after the bill's third reading, the Polish Parliament's lower chamber, the Sejm, approved the bill,[23]^{: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.[24] According to an opinion poll conducted in February 2018, 51% of Poles opposed the 2018 amendment.[25]

Some parts of the law will come 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 is was referred to the Constitutional Tribunal of Poland for review of its compliance with the Polish Constitution.[26]

The bill led to an outcry of condemnations against Poland in the United States, Europe, and Israel.[14] Some critics went so far as to accuse the Polish government of Holocaust denial.[27][28] 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".[14]

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".[3]

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[29] (Dz.U. 1998 nr 155 poz. 1016)).

The following main articles were added in February 2018:

• Article 55a:[15]

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.’

• Article 2a:[23]

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."

The above text refers to massacres of Poles in Volhynia and Eastern Galicia and to ethnic cleansing in Eastern Lesser Poland (Note: Eastern Galicia and Eastern Lesser Poland overlapped substantially, but were not coterminous: Eastern Galicia was a part of Eastern Lesser Poland annexed by Habsburg Austria to the Austrian Partition of Poland.[30])

Historians widely agree that some Poles were complicit in the Holocaust, betraying and murdering Jews.[31] 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.[31]

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?".[32]

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".[33] Israel's Prime Minister Benjamin Netanyahu accused Poland of Holocaust denial.[27]

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".[34][35]

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."[24]

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 Poland such as the Szczuczyn pogrom, 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."[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 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.[38][39]

Kanika Gauba in The Indian Yearbook of Comparative Law 2018 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.[15]

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.[40] 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.[3] The revision removed the possibility of criminal prosecution, but also removed the exemption of scholarship and arts from the law.[3] While violating the "good name" of Poland provision is no longer a criminal charge, charges may still be levied in a civil court.[3]

Following the amendment, the Polish and Israeli prime ministers issued a joint declaration condemning antisemitism and rejecting "anti-Polonism".[3] This statement was condemned by Yad Vashem.[3]

In 2019, article 2a was decreed to be void and non-binding by the Constitutional Tribunal of Poland.[4]

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.[41][42] In Ukraine, the Amendment has been called "the Anti-Banderovite Law".[43][44]

The director of the Ukrainian Institute of National Remembrance, Volodymyr Viatrovych, asserts that the Amendment's principal target is Ukrainians residing in Poland.[45]

The Polish law has been compared to Ukrainian Law 2538-1,[46] passed in 2015.[47][48]

Article 1 - the mission statement of the Institute - was changed to include "protecting the reputation of the Republic of Poland and the Polish Nation".[49] Prof. Havi Dreifuss, head of Yad Vashem's Center for Research on the Holocaust in Poland, noted that: "Since the law changed, the IPN’s fundamental role has changed. Today their official mission statement is to defend Poland’s reputation, and it is in that light that they should be viewed."[50]