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The Rise of Memory Laws in Poland: an Adequate Tool to Counter Historical Disinformation?

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Forthcoming in the journal: Security and Human Rights The Rise of Memory Laws in Poland: An Adequate Tool to Counter Historical Disinformation? Dr. Uladzislau Belavusau, Senior Researcher at the T.M.C. Asser Institute (The Hague) – University of Amsterdam, Netherlands* Abstract This article focuses on the growing body of Polish memory laws, including the 2016 ‘Street De- Communization' Law and the 2018 Law on historical expression that introduced changes to the Act of the Polish Institute of National Remembrance. The analysis zooms in on, in particular, the often-overlooked component of the 2018 Law that requires the investigation of historical crimes of ‘Ukrainian nationalists’, as well as the wider context of 'memory wars' through memory laws in Central and Eastern Europe. The examination concludes that there is a discrepancy between the rationale to adopt this legislation in Poland, namely to counteract historical disinformation, and the legal solutions contained in the 2018 Law. Keywords Memory laws – Disinformation - Freedom of expression – Poland - Holocaust 1. Introduction: The Rise of Memory Laws and the Facets of Disinformation ‘[If] Governments impose singular historical narratives and prohibit alternative interpretations in “memory laws”, then they draw a line in the sand of time that can continue to divide societies for generations to come. And differences in historical interpretations and commemoration practices can have a negative effect on bilateral relations between States. Moreover, States have a duty to deal with history and memory in a responsible way in order to prevent or manage conflict within the society rather than fuel it.” (Lamberto Zannier, OSCE High Commissioner on National Minorities, 2017-present)1 *The author would like to thank Katharine Booth, Aleksandra Gliszczyńska-Grabias André W.M. Gerrits, Christophe Paulussen and especially Anna Wójcik for valuable comments regarding this article. 1 Forthcoming in the journal: Security and Human Rights The year 2018 was marked by worldwide media attention to a Polish law that was presented by its legislators as a tool to counteract historical disinformation.2 While it has been only one among a rich plethora of controversial memory laws adopted in Poland and the wider region of Central and Eastern Europe (CEE) in recent years, this law, which prohibited the attribution of an atrocious role to the Poles during World War II, has focused the international spotlight on the very topic of memory laws.3 Memory laws constitute an emerging study area in comparative constitutional and criminal law that focuses on various modes in legal governance of history.4 Criminal laws against Holocaust denial were first adopted in Germany in the 1980s, although the terminology of ‘memory laws’ (les lois mémorielles) constitutes a French legacy in comparative law.5 The German model spilled over into Europe and was gradually extended from Holocaust denial laws per se to a wider prohibition of genocide denialism. In 2008, following Germany’s presidency in the European Council in 2007, such provisions were made secondary law of the European Union (EU).6 Despite their multiple 1 Lamberto Zannier, ‘Preventing Crises and Conflicts through Promotion of Integration of Diverse Societies’, HCNM at 25: Personal Reflections of the High Commissioners, Office for the High Commissioner on National Minorities, The Hague, 2018. 42. 2 Law from 26 January 2018 Amending the Law of 18 December 1998 on the Institute of National Remembrance – Commission for the Prosecution of Crimes against the Polish Nation. See U. Belavusau, ‘Polen verkondigt met herinneringswet de teloorgang van zijn liberale democratie’, de Volkskrant, available at: https://www.volkskrant.nl/columns-opinie/polen-verkondigt-met-herinneringswet-de-teloorgang-van-zijn- liberale-democratie~b937a921/; J. McAuley, ‘Poland’s New “Holocaust Law” Comes Up Against Massacre of Jews in 1941’, The Washington Post, 22 February 2018, available at: https://www.washingtonpost.com/world/europe/polands-new-holocaust-law-comes-up-against-massacre-of- jews-in-1941/2018/02/22/ee9f22d4-10e4-11e8-a68c-e9374188170e_story.html; ‘Le Sénat polonaise adopte une loi controversée sur la Shoah’, Le Monde, 1 February 2018, Le Monde, available at: https://www.lemonde.fr/europe/article/2018/02/01/le-senat-polonais-adopte-une-loi-controversee-sur-la- shoah_5250085_3214.html. 3 For an extensive comment, see U. Belavusau and A. Wójcik, ‘La criminalisation de l’expression historique en Pologne : la loi mémorielle de 2018’, Archives de politique criminelle, 40, 2018. 175-188. 4 U. Belavusau and A. Gliszczynska-Grabias (eds.), Law and Memory: Towards Legal Governance of History, Cambridge: Cambridge University Press, 2017; N. Koposov, Memory Laws, Memory Wars: The Politics of the Past in Europe and Russia, Cambridge: Cambridge University Press, 2017; E. Fronza, Memory and Punishment: Historical Denialism, Free Speech and the Limits of Criminal Law, The Hague: T.M.C. Asser Press, 2018; G. Resto and V. Zeno-Zenkovich (eds), Riparare Racricare Ricordere: Un dialogo tra storici e giuristi, Editoriale Scientifica, 2012; A. Garapon, Peut-on réparer l’histoire? Colonisation, eslavage, Shoah, Odile Jacob (2008). 5 French memory laws took as an inspirational basis the prohibition of the Holocaust denialism, mimicking it on Armenian genocide and discussion about French colonial past. See Pierre Nora, ‘Lois mémorielles: pour en finir ce sport législatif purement français’, Le Monde, December 2011; Sèvane Garibian, ‘Pour une lecture juridique des quatre lois «mémorielles»’, Esprit, 2006. 158-73. 6 EU Council Framework Decision on Combatting Certain Forms and Expressions of Racism and Xenophobia by Means of Criminal Law 2008/913/JHA (28 November 2008). See Luigi Cajani, ‘Legislating History: The European Union and Denial of International Crimes’, in Belavusau and Gliszczyńska-Grabias, op. cit., 129-148. See also the 2 Forthcoming in the journal: Security and Human Rights forms – punitive and declarative, constitutional and administrative, legislative and judicial – the adoption of memory laws rose tremendously in Europe in the 2010s under the pretext of counteracting historical disinformation.7 Furthermore, their mushrooming in CEE, in particular in Poland, has been intertwined with a noticeable democratic decline in the region.8 ‘Illiberal democracies’ appear to be particularly eager to revert to populist identity-formation under the guise of memory politics, mainstreaming nationalist historiography while marginalizing and, at times, suppressing alternative visions of the past by, among others, ethnic minorities. Misinformation about the past has been well described as a specific effect in psychology, referring to the impairment in memory for the past that arises after exposure to misleading information. This area of psychology addresses a number of issues regarding this phenomenon, including the conditions under which people are especially susceptible to the negative impact of misinformation and conversely when they are resistant.9 The discussion about (in)permissible criminalisation of historical discourses often draws on the limits of freedom of speech.10 In this respect, Poland does not constitute an exception but rather a powerful example of how legal instrumentalization of historical memory can be detrimental to fundamental rights.11 This contribution, therefore, will focus on several Polish memory laws with an emphasis on the aforementioned law of 2018, often – albeit misleadingly – referred to as the ‘Holocaust Law’ (further 2018 Law).12 The contribution will first consider the wider online symposium about memory laws on the Verfassungssblog, available at: https://verfassungsblog.de/category/debates/memory-laws-debates/ (January 2018). 7 U. Belavusau, Final Thoughts on Mnemonic Constitutionalism, Verfassungsblog, available at: https://verfassungsblog.de/final-thoughts-on-mnemonic-constitutionalism/ (15 January 2018). 8 Marta Bucholc, ‘Commemorative Law-Making: Memory Frames of the Democratic Backsliding in Poland after 2015’, Hague Journal on the Rule of Law, 11, 1, 2018. 85-110; Wojciech Sadurski, Poland’s Constitutional Breakdown, Oxford: Oxford University Press, 2019; Carlos Closa and Dimitry Kochenov, Reinforcing Rule of Law Oversight in the European Union. Cambridge: Cambridge University Press, 2016. 9 Elizabeth F. Loftus, ‘Planting Misinformation in the Human Mind. A 30-year Investigation of the Malleability of Memory’, Learning & Memory, 2019. 361-366. 10 U. Belavusau, ‘Memory Laws and Freedom of Speech: Governance of History in European Law’, in A. Koltay (ed), Comparative Perspectives on Fundamentals of Freedom of Speech. Amsterdam: Wolters Kluwer, 2015. 537- 558; Ilya Nuzov, ‘Freedom of Symbolic Speech in the Context of Memory Wars in Eastern Europe’, Human Rights Law Review, 19, 2019. 231-253. 11 Aleksandra Gliszczyńska-Grabias, Calling Murders by Their Names as Criminal Offence – a Risk of Statutory Negationism in Poland, Verfassungsblog, 1 February 2018, https://verfassungsblog.de/calling-murders-by- their-names-as-criminal-offence-a-risk-of-statutory-negationism-in-poland/ 12 For example, O. Aderet, Poland’s Holocaust Law: First Lawsuit Filed Using Contentious Legislation, Haaretz, available at https://www.haaretz.com/world-news/europe/poland-s-holocaust-law-first-lawsuit-filed-using- contentious-law-1.5867841 (4 March 2018); V. Charnysh and E. Finkel, ‘Rewriting History in Eastern Europe: 3 Forthcoming in the journal: Security and Human Rights context
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