Poland's “Holocaust Law” and the Complexity Of
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FACT SHEET Poland’s “Holocaust Law” and the Complexity of Holocaust Revisionism in Europe On January 26, 2018, on the eve of International fears that the Constitutional Tribunal will either act in Holocaust Remembrance Day, members of the the government’s interests or at its direction, Polish parliament introduced an amendment to the whether in affirming the criminal provisions of the country’s 1998 Act on the Institute of National Holocaust law, or, conversely, by finding it Remembrance that has since been dubbed “the unconstitutional, which would allow the government Polish death camp law,” or the “Holocaust Law.” The to preserve their position on the law and subvert law, which was established in 1998 to maintain international criticism. If the Constitutional Tribunal World War II-era archives, now makes it a crime, finds the provision unconstitutional, a further punishable by fine or imprisonment for up to three concern is that the government will use its ruling to years, to accuse Poland of responsibility or legitimize the (politicized) Tribunal, since the complicity in Nazi atrocities during World War II. It international community will perceive a functioning also gives the country’s Institute for National Tribunal regardless of the controversies surrounding Remembrance power to bring civil charges against politicization and appointments. anyone who defames or tarnishes the reputation of The law generated significant criticism from the U.S. Poland or the Polish people. State Department, the Congressional Bipartisan On February 6, 2018, following an international Anti-Semitism Task Force, the government of Israel, outcry, Polish President Andrzej Duda expressed and numerous Jewish and human rights concern that some provisions of the bill might violate organizations from around the world. Poland’s constitution. However, instead of vetoing it, Malgorzata Szuleka, a lawyer for the Helsinki he signed the bill into law and referred the provision Foundation for Human Rights, one of the most-well- regarding criminal penalties for using the term respected NGOs in Poland, said of the law: “We “Polish death camps” to the country’s Constitutional prefer to call this the Censorship Law, rather than Tribunal. The Tribunal will determine whether this the Holocaust Law, because it is about curtailing provision violates free speech protections and clarify speech far and beyond that related to the what speech can be prosecuted. In the meantime, Holocaust.” the law’s provision establishing potential civil penalties takes effect on February 28. Implications of the amendments to the law The Polish government has in recent years severely Although media attention has focused on the undermined the independence of the country’s connection between the new law and the concept of judicial system, as evidenced by recent laws “Polish death camps,” no such language exists in radically altering the composition of the Supreme the law. The absence that specific language, Court and regional courts, and establishing however, does not mean the law is not worthy of processes for appointing new judges. There are scrutiny: Human Rights First FACT SHEET n The law provides penalties—imprisonment of up when they travel abroad to discuss their to three years and a fine—for public accusations concerns about the policies of the current “against the facts” that tarnish the reputation of government. Adding fuel to these worries, a the Polish government and people. The report issued by the head of the Polish Senate ambiguity of the language raises significant on February 15 “ordered” Poles living abroad to concerns of how the law will be applied. notify authorities of any “harmful comments by compatriots outside of Poland.” n Amendments to articles 1 and 2 of the law contain controversial provisions within the n While the law provides an exemption for context of Holocaust distortion, in that they scientific/academic research and art, the specific equate Nazi crimes with communist crimes. boundaries of what constitutes academic or scientific research and art remain unclear. The n The amendments give the INR increased power, government asserts that the law will not affect and create broad-based censorship on political Holocaust research either in Poland or abroad, and historical dissent. One amendment to article but as written it could clearly have transnational 55 of the law reads: implications. In addition, the likelihood of any “whoever accuses, publicly and against the such exemption being granted diminishes given facts, the Polish nation, or the Polish state, the phrase “against the facts.” Furthermore, of being responsible or complicit in the Nazi whether journalists fall within the exemption crimes committed by the Third German remains an open question. Reich…or other crimes against peace and ________________ humanity, or war crimes, or otherwise grossly diminishes the actual perpetrators The “Holocaust Law” is a major setback for civil and thereof, shall be subject to a fine or a human rights in Poland. As Poland awaits the verdict penalty of imprisonment of up to three of the Constitutional Tribunal, one thing remains years.” clear, the country has drifted far from its commitment to the rule of law. And by enacting a law that The law would also prosecute those who “act subordinates free expression to unbridled unintentionally.” nationalism, it has marked a troubling turn away n Additionally, the amendments give the INR from the truth, in all its complexity. For this reason, authority to bring civil charges, which could lead the Administration and Congress should continue to to imprisonment of those perceived as harming put pressure on Poland to repeal the Holocaust law the reputation of Poland. This provision could be and address issues relating to rule of law. n used against individuals that express dissent or criticize government policy. n The law is not limited to acts committed in Poland, giving it an extraterritorial effect. This raises the question of whether human rights advocates from Poland could be prosecuted .