Yad Vashem historians respond to the joint statement of the Governments of Poland and Israel concerning the revision of the January 26, 2018, amendment to Poland’s Act on the Institute of National Remembrance

The June 27, 2018, announcement regarding the Government of Poland’s intention to revise the amendment to the controversial Act on the Institute of National Remembrance stirred hope that a positive development and a step in the right direction were at hand. However, an examination of the joint statement by the Governments of Poland and Israel raises many questions both about the legal statute as approved and about assertions pertaining to historical aspects of the topic in the joint statement itself. A careful review of the wording of the change in the law shows that the amendment to the law as adopted now (which is not a repeal of the law, as it had been erroneously reported) left the gist of the legislation unchanged. Furthermore, the joint statement itself contains historical errors.

The “Act on the Institute of National Remembrance—Commission for the Prosecution of Crimes against the Polish Nation” was legislated in Poland in 1998. Its underlying aim was to prevent the denial of Nazi and Soviet crimes against Polish citizens from the onset of World War II (September 1, 1939) to the end of Communist rule in Poland (December 1989). Under the provisions of the statute, an Institute of National Remembrance (IPN) was established, tasked with documenting and investigating these crimes, and even invested with certain powers of prosecution.

On January 26, 2018, on the eve of International Holocaust Remembrance Day, the Government of Poland rushed through a series of addenda and amendments to the original law. These revisions, approved both by the legislature (the Sejm and the Senate) and by the President of Poland, triggered a worldwide protest—including in Poland—and were perceived by many as portending a serious blow to Holocaust remembrance and research.

The amendments that attracted the most criticism were Sections 55a and 55b, which criminalized, on pain of up to three years in prison, any public statement “contrary to the facts” that holds the Polish Nation or State responsible for “Nazi crimes perpetrated by the Third Reich” or complicity in responsibility for said crimes, i.e., the persecutions and murders that were perpetrated during the Holocaust. These sections also exempted researchers and artists from punishment if they were to express themselves in such a manner in the context of their scholarly or artistic work.

In their joint statement of June 27, 2018, the Governments of Poland and Israel announced the deletion of these paragraphs from the amendment of the law. The rest of the amendment, however—the wording of which was approved back in January 2018—remained in effect and was ratified. This has weighty implications:

a.       Within the framework of the amendment, the IPN was given a new responsibility in addition to its basic duties: “protection of the reputation of the Polish Republic or the Polish Nation.” Thus, the Institute was tasked with monitoring critical rhetoric and ensuring that the Polish nation be presented favorably.

Under additional sections of the amendment as approved, the Institute and nongovernmental organizations (NGOs) may bring charges based on the impugning of Poland’s “reputation”—a new, entirely amorphous concept. Unlike the criminal provision that was cancelled, such charges would be brought under civil law and offenders could be punished with fines. Since in Polish civil law the burden of proof is on the defendant and not the claimant in such cases, those sued would have to fund their defense in court and prove that their actions caused no offense to Poland’s “reputation” as defined by the IPN. Furthermore, the wholesale repeal of Sections 55a and 55b makes it possible to press charges for ostensible injury to “the reputation of the Polish Nation” even if said injury was not committed “publicly” and “contrary to the facts.” Similarly, charges may be pressed even if the content of the ostensible injury does not attribute to the Polish people or the Polish nation responsibility, or complicity in responsibility, for crimes perpetrated by Nazi Germany. As we understand the matter, this means that from now actionability shall apply even to non-public utterances that do not contradict facts (as determined by whomever) and do not necessarily relate to the Polish People and/or the Polish Nation. Moreover, the repeal of these sections also revoked the exemption of artists and researchers from the possible lawsuits and punishment. Thus, even a well-grounded statement by a conscientious researcher may be perceived by someone as impugning Poland’s good reputation, subjecting the researcher to the threat of being fined. Admittedly, the prime ministers’ joint statement assures freedom of expression in Holocaust research in all respects and that no legal measures will be taken. However, the wording of the amendment to the law as approved does not reflect this promise. Thus, the law and its amendments still leave open the possibility of real injury to unrestricted research and the collective memory of the Holocaust generally, and that of Polish Jewry in particular.

Accordingly, to our understanding, the current wording still exposes researchers, students, teachers, journalists, politicians, tour guides, and employees of commemorative sites to harm. This is not a groundless concern: Mr. Jarosław Kaczyński, the de facto head of Poland’s Law and Justice Party, said that by having the revised phrasing of the law approved, “We have opened the way for an anti-defamation offensive.” In the near future, many people may already find themselves liable to civil suits for having exercised their right to unrestricted speech and academic freedom regarding the Holocaust. For this reason, the wording of the law and its amendments as they stand today create an effective atmosphere of intimidation that will deter people from the outset from taking up sensitive questions, the sort that are the daily fare of those who deal with the Holocaust.

Our principled position has been and remains that any attempt to limit academic and public discourse by means of legislation and punishment is fundamentally improper and deals a serious blow to Holocaust research as well as Holocaust memory and commemoration.

An examination of the June 27, 2018 joint statement of the Prime Ministers of Poland and Israel reveals a series of problematic utterances that contradict the existing and accepted historical knowledge on the topic. Several examples follow:

a.       According to the statement as worded, “The wartime Polish Government-in-Exile attempted to stop this Nazi activity [of extermination] by trying to raise awareness among the Western Allies to the systematic murder of the Polish Jews.”

This statement is incongruous with the existing historical knowledge. The Polish Government-in-Exile, based in London, and the Delegatura (the Government’s representative body in occupied Poland) did not act resolutely during the occupation for the sake of Poland’s Jewish citizens, even though the Government received many authoritative reports during the war regarding the disaster that had befallen the Jews of Poland. In only a few cases did the Government express itself clearly about the murder of the country’s Jewish population. For example, it published the Bund report in mid-1942—a thorough, detailed, and unequivocal document that laid out the German program to annihilate the Jews; and on December 10, 1942 its Foreign Minister read out a detailed document about “The Mass Extermination of Jews in German Occupied Poland.”  This prompted the Allies to issue the important joint declaration on the Holocaust of European Jewry (December 17, 1942). However, at the same time the Government-in-Exile, whose members differed on the topic of the Jews, did not make the murder of the Jews its highest concern. Generally, it disseminated information about the extermination to the Allies mainly when it believed that doing so would enhance its value in the eyes of the Western Allies (foremost the United States) and help it attain its demands concerning border arrangements at the end of the war.

Furthermore, representatives of the Delegatura trenchantly criticized some actions taken by their Government in London. It claimed that both the Government’s censure of antisemitism, a widespread phenomenon in occupied Poland with roots in the prewar period, and its statement about the Jews’ right to live in the liberated and independent Poland that would arise after the war, were greeted with much hostility among the population of occupied Poland.

There is no doubt that the Polish Government-in-Exile and its agents in the Delegatura acted bravely during World War II to advance and represent the citizens of the occupied country and to protect them, to the extent possible, from the brutal German occupation regime, which had sliced Poland up and obliterated it as a political entity. Concurrently, however, they did not unswervingly see the country’s Jewish inhabitants as citizens of the Polish state, let alone an integral part of the Polish people.

b.      The statement says: “We acknowledge and condemn every single case of cruelty against Jews perpetrated by Poles during World War II. We are honored to remember heroic acts of numerous Poles, particularly the Righteous Among the Nations, who risked their lives to save Jewish people.”

While the joint statement does not note explicitly whether “every single case of cruelty against Jews perpetrated by Poles” refers to many cases or few, it definitely stresses “the heroic acts of numerous Poles.” In other words, assistance to Jews is presented as widespread, whereas - by implication - actions that were injurious to them were few. The past three decades of historical research tell a much different story: assistance to Jews by Poles during the Holocaust was relatively uncommon; assaults and even murder of Jews were widespread.

The latest research has shown that at least tens of thousands, if not hundreds of thousands, of Polish Jews perished during the war due to actions of their Polish neighbors. Accordingly, Poles’ involvement in persecuting Jews was in no way marginal. Those who murdered Jews in the Łomża District (in Jedwabne, Radziłów, Wąsosz, and elsewhere) were Poles. Those who murdered the vestiges of Polish Jewry in Kielce after the Holocaust (in 1946) and elsewhere were Poles. Not a few members of the so-called “Blue” Polish police also were involved in murdering Jews. Furthermore, the involvement of Poles in the Jews’ catastrophe was not limited geographically (Łomża District) or chronologically (the end of the war); nor was it limited to certain social strata. Recent studies show that hundreds of thousands of Jews who attempted to flee from the Nazis’ murderous tentacles, particularly during the implementation of the “Final Solution”, sought refuge mainly among the Polish population. Most of them, however, were flushed out and murdered. Although some were seized by the Germans, most perished due to direct and indirect actions by Poles, who murdered them or betrayed them to their murderers. Thus, broad swaths of Polish society were complicit in the murder of the Jews throughout the war and even wider segments improved their situation and even enriched themselves from the “disappearance” of the Jews. Economic gain from the Jews’ demise and the possibility of dispossessing them figured importantly among the motives for Poles’ mobilization against their Jewish neighbors.

In fact, even Poles who attempted to help beleaguered Jews were afraid of their Polish neighbors no less than they were of the German occupier. It is true that only a small minority of fleeing Jews were lucky enough to encounter the noble-minded Righteous Among the Nations. Still, the 6,863 Poles whom Yad Vashem and the State of Israel have recognized as Righteous Among the Nations are a small and impressive minority. In Poland in particular, these people risked everything dear to them in order to aid fugitive Jews, some paying for it with their lives. The Jewish people, on its own initiative, established this enterprise unique in the history of national projects that commemorate catastrophes in the modern era, and for years has acted to recognize and appreciate the rescuers and their deeds. Any attempt to magnify aid to the Jews and present it as something that was widespread, and to minimize the role of Poles in persecuting Jews, contradicts historical truth and is an affront to the memory of the heroism of the Righteous Among the Nations.

c.       The joint statement reads: “some people – regardless of their origin, religion, or worldview, revealed their darkest side at that time.”

This passage attempts, illegitimately, to uncouple the calamity that befell the Jews from its concrete historical context and from the reality in occupied Poland during the war. It pulls in two different, unacceptable directions. First, it lumps together major criminals with petty ones, the many with the few, and those who volunteered to perpetrate their crimes with those who were coerced by death threats to collaborate. It reflects the spirit of a remark by Polish Prime Minister Mr. Mateusz Morawiecki (February 17, 2018): “[There were] Polish criminals just as there were Jewish criminals and Russian and Ukrainian criminals, not only Germans.” Namely, Jews, too, revealed “their darkest side at that time.” In the second direction, it distances these opaque dark sides from the concrete Polish reality.

There is no doubt that there were Jews who served the Germans during World War II, among them members of Judenräte, members of the Jewish police, and kapos. Despite the sensitivity of this subject, it is well known and has been researched thoroughly and forthrightly since the first postwar years. The discussion of this subject addressed both the conditions that were imposed on these people in the context of the persecution of the Jews, and the moral issues as well. Attention to this “gray zone”—as Primo Levi put it—has never been off-limits in Holocaust research and discourse, and no one has ever thought to pass a law regarding it.

Perhaps much more important is the very fact that the extent of collaboration by Jews, and its underlying motives, are fundamentally different from those that characterized the eagerness of not a few Poles to help the Germans to murder the Jews. Collaboration by Jews, notwithstanding its importance, was a marginal phenomenon. The magnitude of the “darkest sides” of various parts of Polish society toward the Jews during the war, in contrast, was anything but negligible and typified much of this society. Furthermore, most Jews who collaborated with the Germans—in the ghettos and the camps—did so in the hope of saving their own lives, those of their families, or parts of their communities. In almost all cases, refusal to obey would come (and in many cases indeed came) at the cost of their lives and those of their dear ones. In the majority of cases, Poles who collaborated with the Germans were not in mortal danger; some even volunteered and went out of their way to help the Germans to hunt down Jews. The attempt to suggest that Jews and Poles, (and Germans !) in their “darkest sides” were identical is an attempt to blur the difference between murderers by choice and hopeless persecuted people.

What is more, the Holocaust in Poland did not take place in a vacuum. Those who “revealed their darkest side at that time”—in the context of the law in question, which seeks to fight those who find fault with the “Polish Nation”—were not without identity. They were Polish Catholics who collaborated with the German occupier, whom they hated, in persecuting Poland’s Jewish citizens.

Understanding the motives that underlay the widely found hostility toward the Jews on the part of the Polish surroundings is one of the most complicated and charged topics in research. Scholars who have dealt with this issue, since the days of the German occupation itself, point to a wide variety of factors, including the nature of the relations that had taken shape between Polish Jews and Polish non-Jews during the pre-war decades, particularly in the interwar years; the existence of Polish national and nationalistic tendencies; the attribution of communism to the Jews as a collective (the negative concept “Żydokomuna”); traditional hatred of Jews; fear of the German occupier; and avarice. The statement is worded in a way that attempts to soft-pedal this complex and murderous reality, which entails a complicated struggle with the past.

d.      The joint statement says: “We acknowledge the fact that structures of the Polish underground State supervised by the Polish Government-in-Exile created a mechanism of systematic help and support to Jewish people, and its courts sentenced Poles for collaborating with the German occupation authorities, including for denouncing Jews.”

This wording attempts to project the activity of Żegota (the Council for Aid to Jews), an important but small organization, onto all of Polish society and to attribute this impressive organization’s activities to all institutions of the Polish resistance at large. Żegota was a unique rescue enterprise, in which Poles and Jews participated together—itself an unparalleled phenomenon during the war. It was established in late 1942 in order to aid the persecuted Polish Jews. Although most of Polish Jewry had been murdered by then, hundreds of thousands who had escaped the German occupier were seeking refuge within Polish society. Żegota was established by Polish intellectuals—some of whom were even antisemites—who had been involved in helping Jews individually until that time. Once the organization was up and running and received support from the Polish Government-in-Exile, the possibilities of relief expanded considerably. Thus, thousands of Jews, including hundreds of children, survived by virtue of the organization’s activity, which included financial support, help in obtaining forged papers, and so on. Żegota was undoubtedly an exceptional rescue project in all of occupied Europe. Nevertheless, like other Righteous Among the Nations, its members—Jewish and Polish—were susceptible to extortion and had to hide their actions from Polish society, which turned a jaundiced eye on helping Jews.

Furthermore, primary documentation and research based on it indicate that sizable elements within the Polish resistance not only failed to help Jews, but also were often actively involved in oppressing them. In World War II, two main underground organizations were active in occupied Poland alongside a set of additional ones—the Armia Krajowa (Home Army), the largest resistance entity, which despite some disagreements was identified with the Polish Government-in-Exile, and the Armia Ludowa (People’s Army), a smaller organization comprised of left-wing circles that had Soviet connections.

The Armia Krajowa, which at its peak had hundreds of thousands of members and received financial support from the Polish Government-in-Exile, was nationalistic and, in large part, antisemitic in complexion. Notwithstanding well-documented cases in which members of the Armia Ludowa attacked Jews, most members of resistance groups who murdered Jews belonged to the Armia Krajowa. That is to say: Polish resistance fighters, who were willing to resist the German occupier devotedly and courageously, made a contribution to a certain aspect of the Nazi policy in occupied Poland and its sweeping success: murdering Jews. Irena Sendler, Righteous among the Nations and a member of Żegota, expressed these tendencies by remarking that it was simpler during World War II to hide a tank under a rug than to conceal a Jewish child in a home. Furthermore, not only did none of the Polish resistance organizations—unlike what happened in several other countries—define helping Jews as part of their struggle against the German occupation, but the opposite view prevailed in not a few underground circles: persecuting Jews was perceived as a commendable patriotic act. This makes the attempt to depict the “Polish resistance” (at large) as having helped Jews during the Holocaust a real distortion of documented facts.

The attempt to present the betrayal of Jews as an act judged gravely by the underground tribunals is also deceptive. Thousands of Poles were placed on trial before these tribunals during World War II for having harmed Polish national interests. Only some 150 Poles, in contrast, were punished for involvement in pursuing Jews, and in many of these cases, too, the harm inflicted on Jews was not the definitive factor in punishing the collaborators. When one places the punishment of blackmailers of concealed Jews (universally known as Szmalcowniks) and betrayers in its proper historical context, one finds in fact that persecuting Jews was not considered contrary to Polish national interests. Indeed, there is no doubt that most Poles feared the Germans and hated them passionately. Concurrently, however, many of them—including the resistance organizations—expressed themselves in a manner that considered the disappearance of the Jews a favorable outcome of the war.

For these reasons, the wording of the statement contradicts the historical findings: the structures of the of the Polish underground State and the Polish Government-in-Exile did not (!) create a mechanism of systematic(!) help and support to Jewish people; and its courts did not (!) sentence Poles for collaborating with the German occupation authorities, including for denouncing Jews.

e.       In the statement, it is said that “Both governments vehemently condemn all forms of anti-Semitism and express their commitment to oppose any of its manifestations. Both governments also express their rejection of anti-Polonism and other negative national stereotypes. .”

This formulation outrageously and groundlessly equates antisemitism and anti-Polonism. Antisemitism—hatred of the Jewish people in its modern form—is a phenomenon that, notwithstanding academic debates over its exact definition—has been present, foremost in European history, for many centuries. The proliferation of negative images of Jews and Judaism, spanning vast geographical expanses, large spans of time, and diverse social spectrums, stands at the forefront of research. The actual results of this derogatory attitude are also central objects of research. There is no doubt, however, that antisemitism, in its various shades, played a central and massive role in the Holocaust: it not only powered the Nazi extermination project but also prompted members of many other peoples to enlist in that enterprise to one extent or another.

Anti-Polonism, in contrast, is a relatively new notion that some, in recent decades, have tried to assimilate into the public discourse as a key concept. It denotes hostility toward the Polish nation as a collective and the attribution of derogatory characteristics to its individuals. Those who promote the concept claim that it is widespread around the globe. Sometimes it is invoked to describe ethnic tensions that surfaced during World War I and, moreover, in the last stages of World War II, as Poles were persecuted and even murdered. Its main use recently, however, is the context of the discourse over the role of Poles in the murder of Jews during the Holocaust.

It is important to speak about prejudices and stereotypes regarding Poland; it is important to note the existence of the draconian Nazi German authorities in occupied Poland during the war; it is essential to stamp out the misleading and ill-conceived concept of “Polish death camps.” Calling this phenomenon “anti-Polonism,” however, is fundamentally anachronistic and has nothing whatsoever to do with antisemitism. The pairing of antisemitism and anti-Polonism, however, signals the absence of historical understanding of the origins, the characteristics, and indeed the essence of antisemitism.

 These few examples capture the gist—but not the entirety—of the historical distortions that appear in the joint statement. Therefore, painstaking study of the wording of the statement indicates that it misrepresents the legal reality that came about in Poland after the statute was amended, as well as main issues in the history of Polish Jewry in the Holocaust. The existing documentation and the comprehensive historical research that has been done in this field for many decades disprove many aspects that are addressed in the joint statement. As a body tasked with researching, commemorating, and preserving the memory of the Holocaust, Yad Vashem is duty-bound to point out these historical inaccuracies and warn against the risk of real infringement of freedom of discussion about the Holocaust.

For years, Yad Vashem has maintained working relations with diverse researchers, institutions, and circles in Poland for purposes of research, documentation, commemoration, and education. We support sincere efforts to produce a responsible historical picture of the Holocaust, efforts that would tackle the past including its shadowy and luminescent sides, as are indeed being made in Israel and many European countries. Poland is also a member of the International Holocaust Remembrance Alliance (IHRA). For this reason, too, it is required to act for the preservation of memory of the Holocaust and to refrain from distorting Holocaust facts. The right way to correct historical distortions and erroneous historical outlooks is by means of reliable historical research, open and pressure-free public discourse, and even-handed and open educational activity. Any attempt to limit historical research and to point to a priori conclusions by means of legislative intervention, such intervention accompanied by legal measures that are meant to intimidate, clashes with this approach.

Yad Vashem will continue to carry out the mission with which it was commissioned since it was established: to promote responsible research by providing opportunities and conditions under which researchers and educators around the world, and in Israel, may contend unrestrictedly with the complex truth of the Holocaust era, including relations between Polish non-Jews and Polish Jews before, during, and after the Holocaust.

Prof. Dan Michman, Head of the Yad Vashem International Institute of Holocaust Research and John Najmann Professor of Holocaust Research

Prof. Havi Dreifuss, Head of the Center for Research on the Holocaust in Poland, the Yad Vashem International Institute of Holocaust Research

Dr. David Silberklang, Senior Historian, the Yad Vashem International Institute of Holocaust Research