Author: Nicholas Richardson, Partner at Richardson & Wspólnicy (see website)
Continued from part 2
“Words are but symbols for the relations of things to one another and to us; nowhere do they touch upon absolute truth.” The words of Friedrich Nietzsche which come to mind this week as Poland’s new anti-defamation law attracts international criticism, from the United States, Israel, and Ukraine. The new law, which was signed by President Duda on Tuesday, carries a sentence of imprisonment on any one who accuses Poland of being complicit in crimes committed by Nazi Germany during the Second World War, or in other war crimes or crimes against peace and humanity. Interestingly, in view of the long running saga over the Constitutional Tribunal, the president has announced that he will refer the law to that body to see whether it is in line with the constitution.
Be that as it may, international reaction has not been favourable. United States Secretary of State Rex Tillerson said that the US is “disappointed” that the president has signed the new law. The State Department had earlier raised concerns about the effect the law “could have on Poland’s strategic interests and relationships”, including the US and Israel. The department had earlier said that: “We encourage Poland to reevaluate the legislation in light of its potential impact on the principle of free speech and on our ability to be effective partners”. Reacting to the signing, the department said: “Enactment of this law adversely affects freedom of speech & academic enquiry”. The law provides that an offence is not committed if the perpetrator of the prohibited act acted “with the framework of artistic or scientific activity”.
From the Polish perspective, the law is seen as a way of combatting use of the phrase “Polish death camps”, which many say implies Poland’s involvement in the Nazi’s mass extermination programme. Poland has, understandably, fought against the use of this phrase which has often appeared in foreign media in relation to the concentration camps run by the Nazis during the Second World War in occupied Polish territory.
Nobody of any intelligence doubts that the industrial extermination of humans in the camps was perpetrated purely by the Nazis. Those using the phrase in question in the media are however more likely to be guilty of lack of precision than any wish to deny a historical truth or to attribute a falsehood to Poland, and it is simply a feature of colloquial English that Polish, French or whatever might refer simply to geography as much as to anything else.
That said, there is no excuse for imprecision and work has been done to encourage international media to be more careful. Whether this law is the most effective way to continue that work is open to debate. The government is adamant that the use of such phrases distorts history and, in particular, risks distracting from the fact that in Poland there was no collaboration as elsewhere in Nazi-occupied Europe, that many Poles took great risks to save Jewish folk, and that Poles themselves died in great numbers in the camps.
For some commentators, however, there are concerns, particularly from Israel, that the new law could be used to inflict penalties for anyone who criticizes the role of individual Poles in the Holocaust (although this is not what the law provides). Israel’s ambassador to Poland, Anna Azari, said that in Israel the law “is seen as creating a possibility of punishment for Holocaust survivors’ testimony’.
In Ukraine the law was condemned on Tuesday in parliament since it allows criminal proceedings to be brought against anyone who denies crimes committed by Ukrainian nationalists between 1925 and 1950, such as the Volhynia Massacre during the Second World War. According to the Ukrainian parliament, the new law contains a “distorted concept” of Ukrainian nationalism and threatens to strengthen anti-Ukrainian sentiment in Poland. The parliament adopted a statement appealing to president Duda and the Polish parliament to “restore the balance” in Ukrainian-Polish relations.
There is no doubt that Poland was not responsible for any part of the Nazi mass extermination programme during the Second World War. As the German foreign minister Sigmar Gabriel told Polish foreign minister Jacek Czaputowicz on Sunday, Germany was solely responsible. And by all means continue to urge more accurate terminology in the international media. But history is best discussed in an atmosphere of scholarship and open debate and the use of criminal sanction in this area is likely to prove counter- productive. The truth is incontrovertible; it does not need criminal sanction and the souring of international relations to defend it.
For more posts from Richard visit his ‘The Polished lawyer’ blog