26 Aug The Importance of Principle
A few months ago, I was invited by the Polish Ministry of Justice to participate in a one-day conference on the responsibility of lawyers for judicial crimes, part of Poland’s Day of Remembrance for the Victims of Stalinism and Nazism. The Ministry asked me to discuss American prosecutions of Nazi lawyers at the Nuremberg Military Tribunals — something I wrote about extensively in my book on the Tribunals.
I was initially hesitant to accept the invitation, coming as it was from a government that has been unrelenting in its attacks on judicial independence and the rule of law. Indeed, just two months ago the European Court of Justice held that Poland violated EU law by adopting legislation that reduced the retirement age of Supreme Court justices, because the law was — quoting the Court’s press release — “not justified by a legitimate objective and undermines the principle of the irremovability of judges, that principle being essential to their independence.” And that is just the tip of the iceberg.
Ultimately, though, I decided to accept the invitation. I viewed it as an opportunity to help dispel the myth, surprisingly widespread, that lawyers cannot be held criminally responsible for acts taken in their official capacity – for “just doing their job.” As the Justice case indicates, nothing could be further from the truth: lawyers participate in undermining the judicial system of their state at their peril. I was also encouraged by the overall lineup for the panel: a number of excellent scholars from various Central European universities and remembrance organizations, as well as a chair, Dr. Patrycja Grzebyk, who is a brilliant young ICL scholar at the University of Warsaw and a personal friend.
And then, less than 24 hours before the panel, everything changed.
Specifically, I was informed that the government had added a new member to the panel: Marek Jan Chodakiewicz, a Polish adjunct professor at Patrick Henry College in the U.S. I was appalled: put simply, Chodakiewicz is an ultra-right, ultra-nationalist, anti-semitic “historian” who has dedicated his career to whitewashing Polish anti-semitism during and after World War II. He has been particularly vitriolic in his baseless attacks on Jan T. Gross, the brilliant Princeton historian, who has bravely documented Poland’s sordid history of violence toward Jews in those years. (See, for example, Gross’s magisterial 2006 book Fear: Anti-Semitism in Poland after Auschwitz.) Chodakiewicz has also called Obama a Muslim and a Communist fellow traveler, enthusiastically quoted Enoch Powell’s infamously racist “Rivers of Blood” speech, and repeatedly said ridiculous and offensive things like “We want a Catholic Poland, not a Bolshevik one, not multicultural or gay!”
I believe deeply in academic freedom — even when it protects faux historians like Chodakiewicz. But I also have academic freedom, and that includes my right to choose with whom I share a stage. I had no intention of helping legitimize Chodakiewicz by engaging in academic discussion with him. So after consulting with Wojciech Sadurski, the University of Sydney law professor who has been persecuted by the Polish government for his unrelenting criticism of its attacks on the rule of law (you can read here an open letter 100s of us signed in his defense), I informed the Ministry of Justice that I was no longer willing to participate in the panel.
Apparently, I was not the only panel member who refused to appear with Chodakiewicz. And lo and behold — a few hours later I was informed that he was no longer part of the panel. At that point, though still hesitant, I agreed once again to participate in the conference.
I’m very glad I did. The panel was excellent — we had a wide-ranging discussion on how post-conflict and post-totalitarian societies should deal with crimes committed by lawyers from the previous regime. And although we all steered clear of directly accusing the government of undermining the independence of Poland’s judiciary, no one sitting in the audience — which included many high-ranking government officials from Poland and other Central European countries, as well as the President of the European Court of Justice (!) — could have come away from the panel thinking we weren’t really discussing the Polish government’s actions.
In the end, Chodakiewicz did get to speak — but completely alone on the stage, as the photo indicates, and with most of the audience already gone. I can’t imagine it was a very satisfying experience for him — but it was for me.
I tell this story not to praise myself for refusing to help legitimize Chodakiewicz, but because it illustrates the importance of standing on principle — whether that principle is not appearing on stage with an anti-semite or not taking part in an academic panel that includes only men. Not only is standing on principle the right thing to do, sometimes it even works.