We must remove all barriers to open discussion of the Holocaust

By Calev Myers



As nationalism and anti-Semitism continue to rise in European countries, it becomes increasingly important to remember and learn from the tragedies of the past and to make certain human rights are not abrogated. Ensuring these outcomes remains a dance, with some steps forward and some back. However, just because a step forward is taken does not mean we should stop at a standstill to pat ourselves on our back; instead we must act on that momentum and keep moving forward.

In June, when Polish President Andrzej Duda approved a legislative amendment to remove criminal penalties from the so-called Polish Law, I was thrilled. The Polish Law (Act on the Institute of National Remembrance), passed earlier in the year, had criminalized discussing Polish involvement in the Holocaust and the passage of this law immediately brought about public backlash.

Many organizations worked to have this law overturned and The International Association of Jewish Lawyers and Jurists, of which I am deputy president, found this law not only reprehensible but unconstitutional. Thankfully, a day after the IJL, an international association dedicated to preserving human rights and combating bigotry, filed an amicus brief with the Polish Constitutional Court calling for the law to be overturned, Duda pushed the amendment through two hours of Parliament and signed it in just 12 hours.

But this victory does not end the matter. While many of my colleagues at the IJL and my peers in the community of human rights lawyers shared my appreciation of this development and our apparent success, many of my Jewish friends in Europe were more reserved. They rightly pointed out that, according to the amended law, although a person who publicly refers to the Polish complicity in the Holocaust is no longer liable for criminal punishment, they can still be sued for damages in civil court by individual parties and by the Institute of National Remembrance, a quasi-governmental agency in Poland.

This worries me, as a Jew and as a human rights lawyer. It is one thing to be able to sue someone for defaming your person or company, but it is a gross overreach to be able to sue someone for speaking badly of a nation and the acts that happened there. In our current setting of a renewed anti-Semitic atmosphere in Europe, including in Poland, this reality can have a chilling and suppressive effect on historical research and honest journalism regarding the Holocaust.

In the days after criminal liability for discussing any Polish collusion in the Holocaust was nixed, but civil liability remained, I was heartened when Polish Prime Minister Mateusz Morawiecki and Israeli Prime Minister Benjamin Netanyahu released a joint statement affirming Poland’s intention to allow free and open discussion of the Holocaust.

The prime ministers wrote: “We support free and open historical expression and research on all aspects of the Holocaust so that it can be conducted without any fear of legal obstacles, including but not limited to students, teachers, researchers, journalists and — with all certainty the survivors and their families — who will not be subject to any legal charges for using the right to free speech and academic freedom with reference to the Holocaust. No law can and will change that.”

I have no reason to doubt the sincerity of the prime ministers and their belief in the protection of freedom of academic research and expression regarding the Holocaust. However, the fact remains that there is still a law in Poland, whereby it is possible to sue a person in civil court for financial liability if such research and expression is deemed to harm the good name and reputation of Poland. This law is binding under Polish jurisprudence, whereas, the joint statement of the prime ministers is not. Essentially, while the statement from the prime ministers declares good intentions, it does nothing to act on them.

This is why today, Sept. 4, the IJL has appealed to Morawiecki and Zbigniew Ziobro, Poland’s minister of justice and prosecutor general, for the issuance of official state guidelines to ensure Polish courts and state attorneys do not allow the remaining law to be used in any way to restrict research and publications relating to the Holocaust.

As zealous nationalistic movements are gaining political influence in Poland and throughout Europe, it is vitally important that we all remember the atrocities of the 1930s and 1940s to guarantee that they never repeat themselves. This is an excellent opportunity for the Polish prime minister and minister of justice to set an example of zero tolerance toward restriction on Holocaust research. I and my colleagues at the IJL implore them to prove to the world that today’s form of right-wing nationalism will never be exploited by malicious elements within our societies to foster crimes against humanity.

Myers is deputy president of the International Association of Jewish Lawyers and Jurists.