The Polish Holocaust Bill: A Violation of Freedom of Expression?

By Lauren Kissel

On February 1, 2018, Poland passed a new law that “bans any Holocaust accusations against Poles as well as descriptions of Nazi death camps as Polish.”[1] Essentially this bill bans accusations that Polish people were complicit in Nazi crimes that were committed within Poland during World War II.[2] If convicted under this law, one could face fines or up to three years in jail.[3]

In order to understand this bill, it is important to understand the history of World War II and German occupation of Poland. The Nazis occupied Poland from 1939 to 1945.[4] During this time, they operated six concentration camps on Polish soil, including the infamous Auschwitz-Birkenau camp where over 1.1 million people were executed.[5] While there were many Polish underground camps at this time, historians have long argued that many Poles were complicit or even collaborative with the Nazis.[6] For example, in 1941 there was a massacre of Jewish people in northeast Poland that was carried under the initiative of the Polish people themselves, not under any direction of the Nazis.[7]

The Poles are especially defensive of discussion regarding their potential involvement in the Holocaust. For example, in 2012 President Barack Obama made a remark that “erroneously describe[ed] the Nazi concentration camps inside Poland as ‘Polish.’”[8] Three years later, former F.B.I. Director James Comey made a similar mistake.[9] These remarks were “met with widespread exasperation among the Poles” including former Polish Prime Minister Donald Tusk accusing Obama of “ignorance, lack of knowledge, bad intentions.”[10]

Because of this historical turmoil, the Polish government argues that the purpose of this bill is to “fuel nationalistic sentiments in the country”[11] and “defend ‘the good name of Poland.’”[12] However, many countries and scholars around the world have taken issue with this new bill, stating that it perpetuates Holocaust denial.[13] Israel in particular has shown fierce opposition to it.[14] In a statement issued a week the bill was passed, Israeli Prime Minister Benjamin Netanyahu said the bill was “baseless” and that “[o]ne cannot change history, and the Holocaust cannot be denied.”[15] Israel's Holocaust museum and the World Holocaust Remembrance Center also issued a statement that said the bill “risked blurring ‘the historical truths regarding the assistance the Germans received from the Polish population during the Holocaust.’”[16]

Furthermore, there are many concerns about how this bill affects the right to freedom of expression and potentially violates international human rights law.[17] The U.S. State Department  stated that it is worried that the bill will “undermine free speech and academic discourse.”[18] This begs the question, what are Poland’s protections for freedom of expression and does this new bill violate any of them?

Under the Polish Constitution of 1997, freedom of expression is a protected right.[19] In particular, Article 14 of the Constitution states, “[t]he Republic of Poland shall ensure freedom of the press and other means of social communication.”[20] Furthermore, Article 54 enumerates “[p]reventive

censorship of the means of social communication and the licensing of the press shall be prohibited.”[21] However, these constitutional protections are contrasted with several sections of the Polish Penal code that in fact criminalize some expression. For example, Article 216 of the Polish Penal Code criminalizes insulting someone,[22] and Article 135 criminalizes insulting the Polish president.[23] Therefore, based on these Polish laws that have been upheld and enforced since their implementation, it would seem as if Poland’s laws do not quite follow its constitutional protections. Therefore, the Holocaust bill can likely be upheld under the Polish Penal Code, despite being a violation of freedom of expression.

The next issue to consider is whether the Holocaust bill violates Poland’s obligations as a European Union Member State. Poland joined the European Union on May 1, 2004.[24] When a country becomes a European Union Member State, it binds itself to various treaties and obligations that it is expected to implement and enforce.[25] One such obligation is the Charter of Fundamental Rights of the European Union, which provides that “Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.”[26]However, when Poland joined the European Union, it specifically opted out of this Charter.[27] Therefore, this Holocaust bill is not violating any of Poland’s obligations as a European Union Member State.

Finally, one can ask if the Holocaust bill violates any of Poland’s obligations as a member of the Council of Europe. Poland became a Member State of the Council of Europe in 1991.[28] As a member, Poland is obligated to follow the European Convention on Human Rights.[29] The European Convention on Human Rights expressly protects freedom of expression and states, “Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.”[30] However, Article 10(2) places some restrictions on this broad grant of freedom of expression by stating that it can “be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society. . . for the protection of health or morals, for the protection of the reputation or rights of others.” [31] Remember that the stated purpose of this bill is “fuel nationalistic sentiments in the country”[32] and “defend ‘the good name of Poland.’”[33] Therefore, it is arguable that this bill is not violating the European Convention on Human Rights because it is intended to protect Poland’s morality and reputation, which is an exception that is allowed under Article 10(2) of the Convention.[34]

Overall, this new Holocaust bill has gotten a lot of international attention and caused some uproar.[35] However, after examining Poland’s international obligations as a Member State of both the European Union[36] and the Council of Europe,[37] it is not likely that this bill will be deemed to violate any of Poland’s international obligations to protect freedom of expression. The most viable argument would be that this bill violates freedom of expression under the Polish Constitution.[38] However, given Poland’s history of criminalizing certain expression, as well as the strong nationalistic and protective sentiments underlying this bill,[39] it is likely that this bill will still be able to come into effect.

[1] Rick Noack, Poland’s Senate Passes Holocaust Complicity Bill Despite Concerns from U.S., Israel, The Washington Post (Feb. 2, 2018), https://www.washingtonpost.com/news/worldviews/wp/2018/02/01/polands-senate-passes-holocaust-complicity-bill-despite-concerns-from-u-s-israel/?utm_term=.ff96f7a271c2.

[2] Id.

[3] Id.

[4] Id.

[5] Id.

[6] Id.; Judith Vonberg, Poland to Outlaw References to ‘Polish Death Camps’ in Holocaust Bill, CNN (Feb. 2, 2018 6:39 AM), https://www.cnn.com/2018/02/01/europe/poland-passes-holocaust-bill-intl/index.html.

[7] Colin Dwyer, Poland Passes Bill Criminalizing Claims of its Complicity in the Holocaust, NPR (Feb. 1, 2018, 2:29 PM), https://www.npr.org/sections/thetwo-way/2018/02/01/581896647/poland-passes-bill-criminalizing-claims-of-its-complicity-in-the-holocaust.

[8] David Nakamura, After Obama’s ‘Death Camp’ Mistake, Calls for Stronger Mea Culpa, The Washington Post (May 30, 2012), https://www.washingtonpost.com/politics/after-obamas-polish-death-camp-mistake-calls-for-a-stronger-mea-culpa/2012/05/30/gJQAbKyl2U_story.html?utm_term=.2ab0884a5c36.

[9] Noack, supra note 1.

[10] Id.

[11] Id.

[12] Vonberg, supra note 6.

[13] Noack, supra note 1.

[14] Id.

[15] Vonberg, supra note 6.

[16] Id.

[17] Barbora Černušáková, Poland’s Holocaust Law is a Dangerous Threat to Free Speech, TIME (Mar. 9, 2018), http://time.com/5193301/poland-holocaust-law-freedom-speech-amnesty/.

[18] Dwyer, supra note 7.

[19] See The Constitution of the Republic of Poland.

[20] Id. art. 14.

[21] Id. art. 54.

[22] Kodeks Karny [KK] [The Penal Code] art. 216, §§ 1–2 (Pol.),

http://www.legislationline.org/documents/section/criminal-codes/country/10 (emphasis added)

[23] Id. art. 135, § 2.

[24] Poland: Overview, Eur. Union, https://europa.eu/european-union/about- eu/countries/member-countries/poland_en#poland-in- the-eu (last updated Feb. 11, 2018).

[25] EU Treaties, Eur. Union, https://europa.eu/european-union/law/treaties_en (last updated Feb. 11, 2018).

[26] Charter of Fundamental Rights of the European Union art. 11(1), Dec. 18, 2000, 2000 O.J. (C 364) 11.

[27] Consolidated Version of the Treaty on the Functioning of the European Union art. 1, May 9, 2008, 2008 O.J. (C 340) 1.

[28] Poland, Council of Eur. http://www.coe.int/en/web/portal/poland (last visited April. 15, 2018).

[29] See European Convention on Human Rights art. 1, Nov. 4, 1950, E.T.S. 5.

[30] Id. art. 10(1).

[31] Id. art 10(2).

[32] Noack, supra note 1.

[33] Vonberg, supra note 6.

[34] European Convention on Human Rights, supra note 29, art. 10(2).

[35] Černušáková, supra note 17.

[36] Poland: Overview, supra note 24.

[37] Poland, supra note 28.

[38] See The Constitution of the Republic of Poland.

[39] Noack, supra note 1; Vonberg, supra note 6.