Can European Law Stop Historical Revisionism?

[Todd Carney is a student at Harvard Law School. He holds a Bachelor’s degree in Political Science and Public Communications. He has also worked in digital media in New York City and Washington D.C.]

Though the whole world felt the weight of the Holocaust, some would argue that the Holocaust impacted Poland more than any other country. Though the world largely recognizes the atrocities that occurred in Poland during the Holocaust, Poland has engaged in “historical revisionism.” This revisionism has not centered on the actual impact of the Holocaust on Poland, but rather what contributed to the Holocaust. Poland currently has a law, the “Amendments to the Act on the Institute of National Remembrance,” that makes accusing any Pole of performing an action that assisted with the Holocaust, a libelous action. Many international leaders have expressed concern over the law, but no country has taken concrete actions to penalize Poland.

In 2019, Filomena Leszczyńska, the niece of Edward Malinowski, a Mayor of the Polish town, Malinowo, during World War II, used the Amendments to the Act on the Institute of National Remembrance to launch a lawsuit against two historians, Barbara Engelking and Jan Grabowski. Leszczyńska alleged that Engelking and Grabowski committed a libelous act when they wrote in their book, “Night Without an End,” that Malinowski had complicity in the Holocaust by letting German occupants murder Jews. Leszczyńska sought several remedies, including a ban on the book. Recently, a Polish court found Engelking and Grabowski liable, but only ordered Engelking and Grabowski to apologize to Leszczyńska. Still, many fear that the verdict could suppress free speech in Poland. This piece looks at what free speech advocates can do outside of Poland to oppose this law.

Background of The Law

In February 2018, Poland’s president, Andrzej Duda, signed into law, a bill that banned anyone from implicating any Pole as having responsibility for the Holocaust. The law would put people in jail for three years for referring to the Nazi extermination camps that took place in Poland as “Polish Death Camps.” The bill supposedly exempted art and academic discussion, but the lawsuit against Engelking and Grabowski shows that the law does not protect academic discussion.

Many leaders in the US, Israel and Europe criticized the bill. Duda defended the law, arguing that the Holocaust had a horrific impact on all Poles. Hence, Poland only wanted to ensure that no one distorted the memory of Poland’s losses during World War II.

Four months later, due to international pressure, Poland revised the law to only make a violation of the law a civil offense. Poland’s Prime Minister, Mateusz Morawiecki, called for the change and said, “[t]hose who say that Poland may be responsible for the crimes of World War Two deserve jail terms…but we operate in an international context and we take that into account.” This quote indicates Poland did not have a change of heart on the matter, they only wanted to end international pressure.

Interestingly many Holocaust scholars have argued that it is inaccurate to describe the Nazi extermination camps located in Poland as “Polish Death Camps” because the Polish government did not operate these camps. However, these scholars have maintained that it is still important not to understate the impact of Polish collaboration in other atrocities the Holocaust. Many individual Poles turned Jews over to the Nazis. Additionally, the Nazis used Polish agencies to manage ghettos and concentration camps.

Ultimately, the case at hand has nothing to do with the concept of “Polish Death Camps,” instead it concerns someone suing two historians for writing a book that alleges a politician had complicity in allowing the German occupiers of Poland in World War Two to kill dozens of Jews. Engelking and Grabowski are two internationally recognized scholars on the Holocaust. Several human rights organizations have backed Engelking and Grabowski’s credibility and have decried the lawsuit. It is clear that the lawsuit constituted a threat to the academic discussion of Poland’s role in the Holocaust. When the court announced the verdict, many human rights groups condemned the ruling. Additionally, as this verdict came, another story emerged that Polish police are probing a journalist, who wrote that Poles had complicity in the Holocaust.

Potential EU Remedies

In terms of legal actions from the EU, the current ruling government of Poland has faced disciplinary action from the EU before. Past EU actions have concerned laws from Poland that limited the independence of Poland’s judicial branch. The EU has a few enforcement mechanisms that could be relevant in these situations. The European Commission (EC) and the European Parliament (EP) can start legal procedures against a country if they violate an EU law.

The most likely violation of an EU law in this instance would involve Poland’s law constituting a violation of the  “Charter of Fundamental Rights of the European Union,” which lays out the fundamentally protected rights for EU citizens.

Article Six says, “[e]veryone has the right to liberty and security of person.” This statement is short and pretty vague, but there are obvious cases where a country could violate this. If a government arrested individuals off the street for no reason, that would constitute a clear violation of their “security.” If a government passed a law saying that anyone who spoke against the government, would go to jail, this law would violate their “right to liberty.” Based on this logic, Poland’s law violates Article Six. Though no one can go to jail for violating this law, the potential for civil liability does violate someone’s liberty and security because they face a substantial punishment through potential monetary, reputational and free speech damages from a civil lawsuit. Though tort laws are common, the fact that a Polish court ruled that Engelking and Grabowski committed libel for taking a position backed up by substantial evidence shows this law violates free speech in a way that the typical libel law does not.

Article 11 says, “[e]veryone 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,” and that “[t]he freedom and pluralism of the media shall be respected.” Logically, a law that bans all media or protests would violate this article because no one would have “freedom of expression” or the ability “to impart information…without interference.” However, it is worth noting, the EU has banned denying the Holocaust, so Poland could argue remarks like “Polish Death Camps” are similar to the Holocaust denial laws because both laws seek to restrict the spread of misinformation. However, even if that individual point is true, the case against Engelking and Grabowski shows Poland’s law is going far beyond “Polish Death Camps.” Engelking and Grabowski minimally have credibility to the potential accuracy of their point and according to many academics, their position is completely accurate. Hence, the content that Poland penalized in this trial threatens free speech far more than a ban on Holocaust denial.

Given the evidence that Poland violated two key EU laws, the question becomes what remedy can the EU pursue? The EC, which is part of the executive branch of the EU government, could launch an infringement procedure. Under an infringement procedure, the EC investigates if a country potentially violated an EU law. If the country under investigation fails to satisfy the EC’s concerns, then the EC will pursue a multi-stage investigation that will attempt to have the country comply with the EC’s concerns. If these steps fail, then the European Court of Justice (ECJ) will review the matter and if the ECJ finds a violation of EU law, it will deliver a remedy that the country must abide by. The EC has actually pursued several infringement procedures against Poland over Poland’s laws that threaten judicial independence.

Alternatively, the EP could seek to discipline Poland. The EP or EC would issue a statement that the country created a “clear risk of serious breach” of EU values. Then the country could speak to its own defense. Next, two-thirds of the parliament would need to approve that the “clear risk of serious breach” exists, as would four-fifths of the European Council. The heads of state for every EU country makes up the European Council. If the country continues to violate EU values and laws, then the EC or one-third of EU countries propose to find the country in “serious and persistent breach” of EU values. The accused country can again defend itself and then two-thirds of the parliament again needs to approve the proposal. Then the European Council needs to unanimously (except for the country facing the action) vote to condemn the country and then for a punishment. The issue with this course of action is that although Poland would not take part in any of the votes, Hungary would participate. Hungary and Poland have largely voted in tandem on accountability measures. So, Hungary would likely vote against punishing Poland.

A final remedy exists outside the EU. The remedy involves pursuing a case through the European Court of Human Rights (ECHR). The ECHR is a forum established by the Council of Europe (COE). The COE consists of 47 member-states, all of whom are European, but not all are EU members. The COE conducts actions to defend the rule of law. The ECHR allows for individuals to bring actions against any of the 47 members, which includes Poland. So Engelking and Grabowski could bring a case against the Polish government. If the ECHR finds that the Polish government violated Engelking and Grabowski’s, the ECHR would mandate a remedy and require that Poland ensures the action never occurs again. If the ECHR found for Engelking and Grabowski, the ECHR’s remedy would likely involve calling for the repeal of Poland’s law. The ECHR would make its decision based on the European Convention on Human Rights, a treaty that all COE members are parties to, that pledges to protect human rights.

Looking at the European Convention on Human Rights, the convention’s articles are more precise than the Charter of Fundamental Rights of the European Union. The first part of Article 10 of the European Convention on Human Rights states that, “[e]veryone 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.” Poland’s law would violate the “right to freedom of expression” and to “impart information and ideas.” However, the second part of Article 10 states, “[t]he exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.” The second part of Article 10 could provide a defense for many countries. Poland could claim they need this law for the “protection of reputation” or “morals,” since it concerns Poland’s national pride. Despite this, it is likely this exception for Article 10 exists to protect libel laws that involve malicious lies or laws concerning hate speech, both of which substantially differ from Poland’s law.

The EC and the ECHR both present ways to fight for free speech against Poland’s law. Though Poland has the most prominent issues concerning Holocaust revisionism, other Eastern European countries have sought to suppress academic discussion of the Holocaust. Action from Europe on this matter can set an example for the rest of the world.