Poland's PM Mateusz Morawiecki at a press conference at Chancellery of the Prime Minister in Warsaw, Poland on 23 January 2018. NurPhoto/Press Association. All rights reserved.Poland’s new so-called “Holocaust
law” sends a menacing message to its minority groups by turning the
criminalization of hate speech on its head. Hate speech laws are normally
enacted as a protection against marginalized populations. But this new law
exploits the spirit of such legislation in order to bolster the ruling
majority’s authority and to further intimidate vulnerable groups.
At first glance, and despite the
international furor it has ignited, there is nothing surprising about Poland’s
new so-called “Holocaust law”, the Amendment to the Act on the Polish Institute
of National Remembrance (IPN). Like many such laws, it too offers an official
reading of history. Poland’s constitution, like many modern counterparts,
achieves a similar aim in its preamble with reference to the country’s
histories of foreign repression – as does its 2017 de-communization law, which
calls for the dismantling of Soviet-era monuments, much to Russia’s
disapproval.
Poland has joined the perennial
efforts to legally institute and disseminate official – read flattering –
discourses of national history. Memorial structures, national museums, public
curricula, repatriation and citizenship schemes the world over serve similar
objectives, even if more indirectly than explicitly targeted ‘memory laws’.
What have been termed memory laws
emerged in the past several decades in response to threats of revisionist
Holocaust historiography and have proliferated throughout the post-Cold War era
with reference to other histories of mass atrocity. They pronounce official
versions of traumatic pasts, often criminalizing these events’ public denial,
denigration, or diminution. And in their consensus to obstruct Holocaust
revisionism, they reflect a certain degree of international cooperation.
They also express a shared value of
inclusivity and a commitment to a unified European ethos or identity. The
Council of Europe formalized that commitment in 2008 by adopting the Framework
Decision on racism and xenophobia to combat “particularly serious forms of
racism and xenophobia by means of criminal law,” especially in the face of
resurging anti-Semitic expressions throughout new EU member states from Eastern
and Central Europe.
The law criminalized hate speech,
considering it a violation of the fundamental principles – including liberty
and democracy – of the European Union and its Member States. Along with the
recognized offense of publicly inciting to violence or hatred through,
among other acts, the public dissemination or distribution of tracts, pictures,
or other material, it also made it a punishable crime to publicly condone, deny
or grossly trivialise crimes of genocide, crimes against humanity and war
crimes as defined by the International Criminal Court concerning events occurring
during and after the Second World War.
Importantly, when it came to Polish
law, the Framework Decision equated ‘hate speech’ with ‘historical revisionism’,
which, as legal scholars have noted, are not equivalent, and in many
legislations are treated as separate offenses. The targets of ‘hate speech’ and
‘historical revisionism’ remain fundamentally different, since ‘hate speech’
aims at discursively threatening and injuring an individual, usually from an
already marginalized group. Historical revisionists, in the interests of
maintaining their legitimacy and mainstreaming their cause, instead prefer
using objective language about groups, rather than individuals so as to
circumvent charges of incitement to hatred and violence.
The EU-wide equivalencing of
historical revisionism with hate speech, as advanced by the Council of Europe,
unwittingly fosters political redefinitions of the crime of denialism and, more
importantly, of hate speech. The Framework Decision provides nationalist
historical revisionists – or, in current parlance, neo-authoritarian populists
– with grounds for a repressive mechanism to empower xenophobic majorities by
further marginalizing vulnerable minorities.
The Law and Justice Party
(PiS)-endorsed “Holocaust law” achieves just such a cynical manoeuver,
consistent with the party’s legal hijacking of Poland’s constitutional system,
by inverting the purpose of the IPN denial ban passed in 1998.
That existing law had already made punishable,
by a fine or imprisonment of up to three years, the public contradiction of
facts established as Nazi and communist crimes perpetrated against Polish
nationals and citizens between 1939 and 1989. Furthermore, and emulating the
German Criminal Code (Section 130), Poland’s constitution (Article 13) also
regulates references to the country’s fascist and totalitarian past, citing the
endorsement of authoritarian activities as an act congruent with incitement to
racial or national hatred.
In other words, like the Framework
Decision, the existing Polish law reflects a hate speech approach to Holocaust
revisionism. This leaves room, as evinced by the new amendment, for its
perverse reinterpretation.
The currently “frozen” 2018
PiS-endorsed amendment (Article 55.a.1) – pending the Constitutional Tribunal’s
review – introduces a new punishable crime to the 1998 IPN law, namely the
attribution of any Polish co-responsibility for the Third German Reich’s Nazi
crimes or for other crimes against humanity.
The rationale is that such
attribution diminishes the responsibility of the actual perpetrators. This
component allows the amendment to be misrepresented or misinterpreted as an
additional law against Holocaust denial. Polish Prime Minister, Mateusz
Morawiecki, explains the logic behind this initiative in an official government
video, stating, “Similar laws operate in other countries across Europe and the
world. Holocaust denial is not only a denial of German crimes but also other
ways of falsifying history. One of the worst types of this lie occurs when
someone diminishes the responsibility of real perpetrators and attributes that
responsibility to their victims.”
This contorted logic constitutes an
extraordinary example of Holocaust denialism in anti-denialist sheep’s
clothing.
As numerous commentators have noted,
this aspect of the law actually suppresses open and factual discourse about
Polish WWII crimes. And it therefore effectively exercises repressive Holocaust
denial, while pretending to staunch it.
But the amendment and its underlying
intentions actually proceed even further than this paradox in cynically
subverting and redefining the purpose and meaning of hate speech legislation.
If laws curbing injurious discourse serve to protect minorities and the
marginalized against a potentially or actually hostile majority, Article 55.a.1
now inverts the objective of such laws.
It prioritizes the alleged
vulnerability of the majority – the Polish Nation – against the minuscule and
inflated threat of historical inaccuracy. It therefore redefines hate speech as
an insult against the ruling majority and its myth of national unity and
innocence, rather than as a threat to plural democracy.
Punishing hate speech is intended to
protect those excluded from this myth – those who do not conform to the
religious, ethnic, national or racial moulds it upholds. But in reinterpreting
this crime as a victimization of the majority, Poland’s “Holocaust law”
expresses an openly hostile stance against its minorities, both past and
present.
