7

Currently, there is an ongoing discussion about the new Polish 'Holocaust law' and the possible whitewashing of their own past. Then I read excerpts of the text. I primarily used the translation on the Wikipedia, but for example this one from the Times of Israel is nearly identical.

The paragraph in question is Article 55a:

  1. [Anyone] who, in public and against the facts, ascribes to the Polish Nation or to the Polish State, responsibility or co-responsibility for Nazi crimes committed by the Third Reich, [as] defined 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 August 8, 1945 [...], or for other offences which are crimes against peace [or] humanity or [that are] war crimes, or who otherwise grossly reduces the responsibility of the actual perpetrators of said crimes, is subject to a fine or [to] imprisonment for up to 3 years. The judgment shall be made public.

The first part of the text talks about nazi war crimes as defined in Article 6 of the Charter of the International Military Tribunal. But then there is also a part about other war crimes or crimes against humanity.

The way I read it:

Anybody who abscribes to the polish state or nation

EITHER

  • nazi war crimes

OR

  • other war crimes, crimes against peace, humanity

will be punished with imprisonment for up to 3 years.


Do I understand it wrong?

It seems, that it is now forbidden to accuse the Polish state of crimes against humanity in past, present and future. That is of course assuming, that the accusations are against the facts. But in the end some court in Poland can decide what are facts and what not ... especially as the Polish government is gaining control over the judicative.

And even if everything works as it should work, someone would possibly think twice before publishing something, that could give him jail time easily. It will be a huge barrier.

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    Seems like you took the middle part of the law out of the context of "responsibility and coresponsibility for Nazi crimes commited by Third Reich", after which the law lists types of crimes: defined in Article 6, Annex to the Agreement, AND other crimes againts humanity. – Jacek Serafinski Feb 22 '18 at 0:18
  • The law mentions "against the facts", so it should be technically ok. If facts are distorted but a Polish court rules them ok, then there could be a serious problem. I wonder how mere lapses in wording by some people will be treated. – jjack Feb 22 '18 at 20:51
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    Accusing people of future crimes is not a good idea anyway, cmon now. – user1721135 Mar 2 '18 at 15:53
8

There are several points to observe here:

  1. Crimes conducted by the Third Reich were by far the largest point of any war crimes committed in Poland and against Polish civilians. The question, to which extent Polish people were collaborating with the Nazis, is of high emotional impact to the country that has suffered harshly from the German occupation. Other war crimes, with some notable Soviet or Ukrainian nationalist exceptions, mostly fade away behind this topic.

  2. Academic publication is not subject of the legislation. Thus, scientific research may not be criminalized under this act.

  1. 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.
  1. To understand the shrill reaction of both Poland and Israel in this issue, one has to note that there is a long-time ongoing dispute about the property of heirless Jews that was seized during Nazi occupation and Soviet control and currently is in Polish possession.

    Here is an Israeli centered view and a Polish centered view of the topic. I will not go into the depths of this conflict, or even take a side, but since it is about billions of dollars, drastical reactions are to be expected. And the law, stating that no one may call the Polish nation or people responsible for any Nazi crimes, can (at least partly) be seen as an attempt to protect oneself from future attempts to get compensation for the lost Jewish properties.

  2. The most interesting part (in my view) of the legislation is still ignored. Check the last sentence:

Irrespective of the regulations in force at the location of committing the criminal act, this Act shall apply to Polish and foreign citizens in the event of committing the offences referred to in Articles 55 and 55a.

That is a very far-reaching statement. Even if you are American, Israeli, or German, saying "Polish concentration camps" may bring you a sentence of up to three years from a Polish court, although it is questionable if such a sentence would actually be possible to enforce in practice. (*) It can very well be interpreted as an attempt to intimidate any critic of Poland, especially because what is a fact about Poland in front of a Polish court maybe very different to what is a fact about Poland in other countries due to the very volatile interpretation of historical facts by different countries.

(*) Personally, I think the law is a very narrow-sighted idea due to the Streisand Effect, independent of whatever one may feel about its validity.

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    @JacekSerafinski I would not use the term "Polish concentration camps" as it is blatantly wrong. Concerning the law applying to foreign citizens, note that it takes place "irrespective of the regulations in force at the location of committing the criminal act". So even if, lets say, a French person makes such a statement on French(!) soil, he is liable to prosecution by a Polish court. And that is surely uncommon. It is one thing to adapt to the laws of a foreign country if I am travelling there. It is a completely different thing to adapt to the laws of a foreign country if I am at home. – Thern Feb 22 '18 at 2:16
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    I'm not a lawyer, but I'm aware of multiple laws that are following the same principle (regardlessness of the location of the crime). 1. GDPR forces foreign entities (outside EU) to follow regulations around privacy of EU-country citizens. 2. US imposes to share foreign income with US IRS There are many others. I agree it's unenforceable, unless the person of interest steps onto Polish soil. – Jacek Serafinski Feb 22 '18 at 2:44
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    @JacekSerafinski GDPR, as mentioned in your link, will only affect transactions within the EU, but of course companies outside of the EU are affected if they also operate inside EU or export data from the EU. That is the equivalent of a person from abroad visiting a country and then being subject to the laws of the country. Extradition is created for fugitives so that they can't avoid prosecution by flight: "If the fugitive is found within the territory of the requested state, then the requested state may arrest the fugitive and subject him or her to its extradition process." – Thern Feb 22 '18 at 3:43
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    @JacekSerafinski Extraterritorial jurisdiction exists, but applying it to foreign citizens in foreign countries is still a notable exception (typically it includes terrorism against own civilians or piracy against own civilians/property). Even Holocaust denial is typically not enforcable when done by foreigners on foreign soil. As I said, it is a notable, uncommon action. Comments are too short to explain all in detail (GDPR is still not comparable, US foreign income rules were not comparable), but it is verging into offtopic anyway. Maybe this can be explained in a separate question. – Thern Feb 22 '18 at 5:30
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    The issue with 2.Academic publication is not subject of the legislation. Thus, scientific research may not be criminalized under this act. as a defense of the innocence of the law is that point could be read as "only academics are allowed to talk about these events. but no one else can (even if they are quoting academics themselves)". And you are absolutely right about Universal jurisdiction being applied to only very few, grave crimes. – SJuan76 Feb 24 '18 at 20:07
2

Do I understand it wrong?

You've taken the paragraph out of context. The amendment is a part of The Act on the Institute of National Remembrance. The purpose of the institute is [1]:

1) the recording, collecting, storing, processing, securing, making available and publishing of the documents of the state security authorities, produced and accumulated from 22 July 1944 until 31 July 1990, as well as the documents of the security authorities of the Third Reich and the Soviet Union relating to:

a)

  • the Nazi crimes,

  • the communist crimes,

  • other crimes against peace, humanity or war crimes,perpetrated on persons of Polish nationality or Polish citizens of other nationalities between 08 November 1917 until 31 July 1990

So your conclusions are incorrect. Even if you look at the original (in Polish) paragraph in question in isolation [2]

Art. 55a. 1. Kto publicznie i wbrew faktom przypisuje Narodowi Polskiemu lub Państwu Polskiemu odpowie- dzialność lub współodpowiedzialność za popełnione przez III Rzeszę Niemiecką zbrodnie nazistowskie określone w art. 6 Karty Międzynarodowego Trybunału Wojskowego załączonej do Porozumienia międzynarodowego w przed- miocie ścigania i karania głównych przestępców wojennych Osi Europejskiej, podpisanego w Londynie dnia 8 sierpnia 1945 r. (Dz. U. z 1947 r. poz. 367), lub za inne przestępstwa stanowiące zbrodnie przeciwko pokojowi, ludzkości lub zbrodnie wojenne lub w inny sposób rażąco pomniejsza odpowiedzialność rzeczywistych sprawców tych zbrodni, podlega grzywnie lub karze pozbawienia wolności do lat 3.

the intention is clear - to cover crimes both included in the Article 6 of the Charter of the International Military Tribunal, Annex to the Agreement and other crimes not explicitly stated there.

Finally, let's assume, for the sake of argument, that you were right.

If any government would willing to commit crimes against peace or humanity or war crimes then the fact it is going to prosecute someone for pointing this out, is of the least concern. Not to mention that history shows that such governments, are either indifferent or willing silence unwanted opposition, using much more drastic means.


  1. The Act on the Institute of National Remembrancel Consolidated text as at 16 June 2016 (based on: Dz.U. Polish Journal of Laws of 2016 items 152, 178, 677, 749)

  2. USTAWA z dnia 26 stycznia 2018 r. o zmianie ustawy o Instytucie Pamięci Narodowej – Komisji Ścigania Zbrodni przeciwko Narodowi Polskiemu, ustawy o grobach i cmentarzach wojennych, ustawy o muzeach oraz ustawy o odpowiedzialności podmiotów zbiorowych za czyny zabronione pod groźbą kary.

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