A legal whip on history falsifiers: How Poland is penalizing crime denial (Part 1)
Poland is penalizing the “Auschwitz lie” in a similar manner to other Central European countries, forbidding both the denial of German crimes as well as lying about communist murders. The West, however, has a completely different approach to this matter.
In 1973, the brochure Die Auschwitz Lüge (the Auschwitz Lie) was published in the Federal Republic of Germany. The author of this publication was Thies Christophersen, a former member of the SS born in 1918, who was a guard in Auschwitz during the war with the rank of Sonderführer (special commander). This booklet quickly became a “classic” of neo-Nazi literature. In presenting his own World War II memories, Christophersen argued that there were certainly no gas chambers in Auschwitz and that the camp was merely a large industrial facility.
Over the next decades, deniers around the world referred to “Die Auschwitz Lüge”, contesting the widely accepted findings of historians – KL Auschwitz was a German extermination camp where about 1.1 million people were murdered. In this way, thanks to Christophersen (though undoubtedly contrary to his intentions), the term “Auschwitz lie” was circulated in the public domain, describing activities aimed at distorting the truth about the extermination of the Jews.
“Since the late 1980s, genocide deniers have invoked more ‘objective’ evidence, that is, the results of chemical tests of plaster collected from the walls of gas chambers. Teams of pseudo-experts, pretending to be tourists, secretly forged pieces of plaster from the walls of the gas chambers, and then subjected them to a chemical analysis for the presence of cyclone B compounds – explain the experts from the Auschwitz-Birkenau State Museum. – Of course, these connections are not nearly enough to establish that people were being killed in these rooms. What’s more – this analysis is supposed to provide clear evidence that no one was killed using gas in these premises”.
In the face of growing negationist tendencies, legislators – primarily in Europe – faced the following dilemma: how to react to the lies about the crimes of the Third Reich without severely restricting the freedom of expression and research? Could the legal provisions of that time also be used to combat outright lies about the mass murders carried out by the Germans? Or does that require the implementation of completely new mechanisms?
The Institute of National Remembrance against lies
In the times of the Polish People’s Republic, the criminal code (from 1969) prohibited the glorification of Nazi ideology. Article 270 of the Criminal Code provided that, “whoever publicly approves of fascism or any form of it” was subject to imprisonment from six months to 8 years. After the fall of communism, the new criminal code of 1997 included a provision (Article 256) which additionally penalized behavior that could not be criminalized in the communist period: “Whoever publicly promotes a fascist or other totalitarian system or calls for hatred based on national, ethnic, racial or religious differences or due to non-denominational status, shall be subject to a fine, restriction of liberty or imprisonment for up to 2 years”. Thanks to this solution, it became possible – seven years after the fall of the Polish People’s Republic – to prosecute people who praised the communist system.
The Polish legislator decided, however, that a provision should be introduced into the Polish legal order that would explicitly forbid not only presenting totalitarian ideologies in a positive way, but would directly penalize lying about mass crimes.
Thus, one and a half years after the introduction of the new, non-communist penal code, the Polish Parliament adopted the Act on the Institute of National Remembrance, which included Article 55: “Whoever publicly and contrary to facts denies the crimes referred to in Art. 1 section 1 shall be subject to a fine or imprisonment for up to 3 years. The sentence is announced to the public”.
Meanwhile, Article 1 section 1 mentions Nazi and communist crimes, crimes of members of Ukrainian formations collaborating with the German Third Reich, and other crimes constituting crimes against peace, humanity, or war crimes.
The Act on the Institute of National Remembrance penalizes the denial of crimes that took place between September 1st, 1939 and July 31st, 1990 (the day on which the Security Service of the Ministry of Internal Affairs was liquidated and the Office of State Protection was established in its place). A prerequisite for conviction is the public nature of the speech – Holocaust denial in private conversations in a small group of people is not punished. In the event of a conviction, there is an obligation to make the judgement public.
However, experts point out that while the act specifies “communist crimes”, the term “Nazi crimes” was not specified in detail. The former term concerns “acts committed by functionaries of the communist state in the period from September 17th, 1939, from July 31st, 1990, consisting in the use of repression or other forms of violation of human rights against individuals or groups of the population or in connection with their application, constituting offenses according to the Polish criminal law in force at the time they were committed.
What does the issue of preserving the freedom of science look like in this context? As Dr. Tymoteusz Zych points out in the book “Historical truth and responsibility for its denial and distortion”: “With regard to the subjective side of the crime, the mark of intentionality that characterizes the act under analysis is underlined. The doctrine notes that the act can only be committed with a direct intention. Therefore, it should be concluded that the subject of criminalization is only an intentional violation of the principles of the historical workshop. This feature will not be met in a situation where the goal of the person who denies the actual nature of the events specified in the provision is ‘to actually seek the truth, and not just to manipulate the facts’”.
Importantly, Polish regulations do not condition the penalization of denial with summons to commit a crime, as is the case in Greece and Italy. The European Union is calling on the member states to penalize, inter alia, the crimes of the Holocaust, pursuant to the framework decision of November 28th, 2008. The EU is calling for the punishment of “publicly approving, denying or grossly reducing the crimes set out in Art. 6 of the Charter of the International Military Tribunal, and directed against a group of persons defined by race, color, religion, origin or national or ethnic origin, or against a member of this group, if such acts may incite violence or incite hatred directed against this group or a member thereof”.
Central European specificity
Polish law penalizing the “Auschwitz Lie” is similar in this respect to the legislation of, inter alia, Lithuania, Hungary, the Czech Republic, and Slovakia, where it is forbidden to deny Nazi and precisely communist crimes. Both of these categories appear side by side, which is by no means obvious.
The issue is completely different in Western Europe, incl. in France, Germany, Austria, and Belgium (but also Israel), where it is forbidden to question Nazi crimes. The legislation of these countries is, however, silent about the massacres committed by communists.
This “dualistic” approach to penalizing historical lies is fought by, among others, Dovid Katz, an American historian who is one of the most famous critics of the so-called “Double genocide”. In his opinion, it is impossible to equate the crimes of the Third Reich and the Soviet Union.
– I consider this position to be a complete misunderstanding – said Tadeusz Płużański, a historian specializing in the subject of communist crimes, in interview for the “Do Rzeczy” weekly. – If we look at history, there are many more victims of communist murders than victims of Nazism. Both totalitarian regimes should be strongly condemned. Unfortunately, even in Poland, the victims of communism are too often overlooked. For example, schools teach that Poland lost 6 million citizens during World War II – 3 million Poles and 3 million Jews with Polish citizenship. Meanwhile, there is no mention of the hundreds of thousands of Poles murdered by the Soviets and communists. Therefore, it is clear to me that the catalog of crimes that is beyond denial includes both those committed by the Third Reich and the Soviet Union. The law must recognize that the mass murders were committed by both the Germans and the Soviets.
This article was published in 2021 in “Do Rzeczy” magazine.