How will the anti-defamation law dispute affect Poland’s political scene?

by Aleks Szczerbiak

Poland’s anti-defamation law has caused a huge diplomatic row with Israel and the USA but most Poles do not yet appear to see it as a clear and tangible threat to the national interest. A review of the law by the country’s constitutional tribunal could provide its right-wing government with a way to defuse the crisis without appearing to back down to international pressure.

Sacrificing diplomacy for domestic politics?

Since the end of January the Polish political scene has been dominated by controversy surrounding an attempt by the government, led by the right-wing Law and Justice (PiS) party, to amend the 1998 law establishing the Polish Institute of National Remembrance (IPN), a body charged with investigating Nazi and communist-era crimes and informing and educating the public about the country’s recent past. The new anti-defamation law imposes fines and criminal penalties of up to three years imprisonment for anyone found guilty of falsely ascribing responsibility or co-responsibility to the Polish nation or state for the crimes committed by Nazi Germany, whether the statements are made in Poland or abroad. The legislation was prompted by a long-running campaign to curb the use of defamatory phrases such as ‘Polish death camps’ by public figures (notoriously in 2012 by the then-US President Barack Obama, although the White House later apologised for this) which suggest that the Polish state was at least partly responsible for the extermination camps that were built and operated by the Germans to kill millions of Jews and others after they invaded Poland in 1939. During 2017 alone, Polish Embassies had to respond 260 times to the use of this term.

However, the new law caused a serious deterioration in Polish-Jewish relations and a huge diplomatic row with Israel, normally a close Polish ally. This began when the Israeli Ambassador to Poland Anna Azari attacked the law in a speech during a ceremony to mark the anniversary of the liberation of the Auschwitz extermination camp, on the day after the legislation was passed by the Sejm, the more powerful lower chamber of the Polish parliament. Israeli critics were concerned that the new law was so loosely worded that it could lead to the punishment of Holocaust survivors for their public testimony against Poles who harmed Jews during the German occupation.

The law also met with fierce criticism from the strongly pro-Israel US Trump administration which warned that it could adversely affect freedom of speech and academic inquiry (a concern shared by some Polish government supporters who argued that open debate was the best means of countering misleading statements about Poland’s role in the Holocaust) and have repercussions for the country’s strategic interests and relationships. All Polish governments have pursued a strongly Atlanticist foreign policy with the USA viewed as the main guarantor of the country’s military security. But given its strained relations with the major European powers and EU political establishment, the Law and Justice government has been particularly keen to develop close relations with the Trump administration and considers Washington to be its most important international ally.

At the same time, the liberal centrist Civic Platform (PO) – Poland’s largest opposition grouping and, between 2007-15, the country’s main governing party – called upon Law and Justice-backed President Andrzej Duda to veto the bill, and proposed amendments to: delete the imprecise term ‘Polish nation’, and clarify that the law was aimed specifically at tackling the phrase ‘Polish death camps’. Civic Platform and other government critics accused Law and Justice of politicising history and manoeuvring Poland into an international crisis in order to advance its domestic political agenda, arguing that the row exemplified the incompetence and amateurishness of its diplomacy. They claimed that the same objectives could have been achieved without alienating the country’s allies and that the law was counter-productive with media references to ‘Polish death camps’ going viral as soon as the row with Israel broke out. The government’s critics also argued that the crisis encouraged those Poles who held xenophobic views to speak out and, although they acknowledged that Law and Justice is not an anti-Semitic grouping, claimed that the party was reluctant to distance itself from radical nationalist elements of its core electorate. However, all but five opposition deputies (and every one from Civic Platform) either abstained or voted in favour of the law in the original Sejm parliamentary vote, leaving themselves open to criticism that they only changed their stance in response to international pressure.

Protecting Poland’s good name?

For its part, the government argued that the new law was necessary to send a clear signal to the world that it would not allow the country to be slandered, saying that Holocaust denial also involved ascribing responsibility for German wartime atrocities to other national victim groups such as Poles. Although it acknowledged that a tiny minority of individual Poles aided the Nazi forces, thousands of others sheltered Jews in spite of the fact that (uniquely in German-occupied Europe) they and their entire families faced execution if they were caught; the Israeli Yad Vashem World Holocaust Memorial Centre has honoured more Poles for helping Jews than any other national group. There was no systematic complicity with the Holocaust by the Polish nation or state and, unlike other countries, its government did not surrender to, or collaborate with, Nazi Germany.

The government’s supporters argued that the row only surfaced because of internal Israeli political disputes and claimed that Jerusalem was fully consulted on the contents of the law and its concerns taken on board; pointing out that the legislation makes exceptions for academic historical research and artistic expression, and is targeted precisely at proclamations about Poland and not specific Poles who betrayed Jews. They said that the Law and Justice leadership had strongly condemned anti-Semitism on numerous occasions, while the current government was one of the most pro-Israeli and philo-Semitic in, and Jews were safe in Poland compared with other parts of, Europe. Some commentators also claimed criticisms of the law were linked to attempts by Jewish organisations to persuade the Polish government to compensate them for property confiscated from citizens of Jewish origin during World War Two even when there are no living ancestors of the former owners.

In the end, Mr Duda signed the bill into law in February but, in an effort to defuse tensions and create space for dialogue, also referred it to the constitutional tribunal to check whether its most controversial clauses clashed with Poland’s fundamental rights. However, just as the diplomatic row with Israel appeared to be quietening down, tensions once again emerged following remarks by Poland’s Law and Justice prime minister Mateusz Morawiecki at the annual Munich security conference when, in response to a question from an Israeli journalist, he listed Jews among those who were ‘perpetrators’ of Nazi-era atrocities alongside Germans, Poles and other nationalities. The government later insisted that Mr Morawiecki’s words were taken out of context and it was never his intention to blame Jewish Holocaust victims for the German-perpetrated genocide.

The row has left most Poles unmoved

The irony is that one of the main justifications for Mr Morawiecki’s appointment as prime minister last December was that his fluent English, understanding of the mentality of Western elites and familiarity with diplomatic niceties would help to boost the Law and Justice government’s international standing. To be fair, the crisis was Mr Morawiecki’s first major political test since he took over the premiership and revealed his relative lack of experience in dealing with sensitive issues such as historical truth and memory. Mr Morawiecki only entered active politics when he joined the government as deputy prime minister for economic affairs in November 2015, having previously worked as a senior executive in the banking sector, and until he became prime minister only had to deal with economic matters. Moreover, Mr Morawiecki has also been very pro-active in taking the lead in international public diplomacy on this issue and, his Munich conference gaffe notwithstanding, worked hard to de-escalate the conflict and present Poland’s case.

Indeed, the fact that Mr Morawiecki appeared to be unflinching in defending Poland’s national honour and historical truth about the country’s role in the Holocaust in the face of fierce international criticism probably strengthened his position among Law and Justice’s provincial and less well-off but extremely patriotic core supporters. Up until now they may have been wary of Mr Morawiecki as a wealthy technocrat with a background in international high finance. Indeed, even if they had misgivings about the specific solutions proposed in the anti-defamation law, many Poles feel that the immense suffering that the country endured under German wartime occupation was too often ignored or deliberately pushed aside by those wanting to focus on Polish anti-Semitism. For example, a February poll conducted by the CBOS agency found that although 52% of respondents said that they understood Israel’s concerns about the law, only 24% felt that it would limit discussion of how Poles had treated Jews during the war. By a margin of 53% to 29% they agreed with Mr Duda’s decision to sign into law, and by 45% to 40% felt that introducing criminal sanctions would be an effective means of tackling misinformation about Poland’s wartime role (although they preferred to pursue this goal through education and diplomacy rather than legal measures).

Moreover, although international rows attract huge media attention they tend to leave most Poles unmoved unless they represent a clear and tangible threat to the national interest. While Poles are aware of the damage that the row over the anti-defamation law has inflicted upon the country’s relations with Israel, a key US ally, they do not necessarily believe that this will lead to a weakening of Washington’s NATO commitment to Poland’s military security. So far the row does not appear to have harmed the prime minister’s approval ratings and the ruling party retains a commanding poll lead over opposition groupings, although we need to await the publication of more opinion surveys conducted after Mr Morawiecki’s Munich remarks to get a clearer picture.

Waiting for the constitutional tribunal’s judgement

Although there is no obvious end in sight to the crisis – and the law will remain a bone of contention between the Polish and Israeli (and, therefore, US) governments, at least until the constitutional tribunal completes its review – Warsaw is hoping that the row will now at least quieten down. Israel also has an interest in de-escalating the conflict: Poland is currently its most important EU ally, has used its seat on the UN Security Council to support Jerusalem in its dispute with the Palestinians, and Israeli firms benefit from Polish defence contracts. At the same time, even many Law and Justice sympathisers are highly critical of the law and it may have been amended by now anyway had the international row not made it impossible for the government to back down without losing face.

The government’s strategy over the next few weeks appears to be to hold tight, avoid provocations that could sharpen the conflict, and wait until the constitutional tribunal completes its review. Moreover, although the law came into force at the beginning of March, some Law and Justice leaders have suggested that the public prosecutor’s office may not launch any actions to enforce it until the legislation has been vetted by the tribunal. Indeed, the tribunal – whose composition has been a matter of bitter legal and political dispute over the last couple of years, and which the opposition argues is now effectively subservient to the ruling party (something Law and Justice denies vehemently) – appears to offer the best hope of resolving the conflict. If it were to find the law’s most controversial elements unconstitutional then this would provide the government with a comfortable pretext to defuse the crisis by amending the law without appearing to be backing down as a result of international pressure.