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Sensu Stricto, Sensu Largo: The Battle Over Poland’s ‘Holocaust Law’
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On the morning of July 10, 1941, the Jewish inhabitants of Jedwabne, a modest town nestled in the marshy Podlaskie Voivodeship of northeastern Poland, found themselves forced from their homes and into the Market Square, where they were set to work plucking blades of grass from between the cobblestones that paved the commons. Of the roughly 350 Jews who were detained, around 40, including the local rabbi, were ordered by the German Ordnungspolizei to demolish the statue of Lenin that had been erected by the recently-ousted Soviet authorities. Having done so, the members of the smaller group were sent a short way down the road leading towards Wizna, hauling pieces of the fractured bust on wooden boards while being made to sing a slanderous refrain: “This war is because of us, this war is for us.” When they reached the barn of a certain Bronisław Śleszyński, just across the road from the Jewish cemetery, they were shot, knifed, and clubbed to death by Germans and Poles alike. The remaining Jews back in the square soon followed their co-religionists’ route along the grim path leading from the plaza through the barn doors, but this time, for the sake of efficiency, the structure was simply barred shut, doused with naphtha, and set ablaze. One peasant from the hastily assembled burial detail later remarked that the victims were “so intertwined with one another that bodies could not be disentangled.” And neither could the slain of the notorious Pogrom w Jedwabnem subsequently be disentangled from the Polish national story.

Analogous events took place around the same time in Radziłow and Wąsosz. All told some two million Jews would perish in the “Holocaust by Bullets” that took place in the ensanguined borderland between the Nazi and Soviet empires, with the number of killing sites estimated by the organization Yahad-In Unum to be a staggering 2,500. A pogrom even took place well after the war’s end, on July 4, 1946, in Kielce, where members of the Civic Militia, the Internal Security Corps, and activists of the communist Polish Workers’ Party attacked a refugee camp after the spread of vicious, spurious, and lamentably time-worn rumors concerning ritual abduction and murder. But it was the destruction of Jedwabne’s Jewish community that would, over the decades, come to be treated as the grotesque apotheosis of Poland’s Holocaust. The incident would be endlessly re-litigated in the courts of law and of public opinion. The People’s Republic of Poland held trials from 1949 to 1950; West Germany conducted investigations lasting from 1960 to 1965; the filmmaker Agnieszka Holland produced two documentaries on the topic, Gdzie mój starszy syn Kain (1999) and Sąsiedzi (2001); the Polish-American historian Jan Gross’s much-discussed account Neighbors: The Destruction of the Jewish Community in Jedwabne, Poland was published in 2001; and the Polish Institute of National Remembrance (Instytut Pamięci Narodowej, or IPN) undertook a wide-ranging forensic investigation of the atrocity during the first three years of this millennium.

It was the IPN inquiry that would prove authoritative, utilizing as it did archival material, eyewitness testimony, and archaeological investigation. The conclusion of Radosław Ignatiew, a public prosecutor and Head of the Branch Commission for the Prosecution of Crimes against the Polish Nation in Białystok, was that “the sensu stricto crime perpetrators were the Polish inhabitants of Jedwabne and those from the locations nearby — approximately at least forty men,” while “the murder at Jedwabne was perpetrated as a result of German inspiration” and thus “it is justified to ascribe, in legal and criminal terms, the complicity sensu largo of that mass murder to the Germans.” This was a conclusion the Polish people could by and large live with. The actions of the Polish perpetrators represented the proximate cause of the atrocity, the agenda of the Ordnungspolizei provided the ultimate cause, and the passivity of the rest of the townspeople could be chalked up to either “the acceptance of the crime or from the intimidation caused by the brutality of the perpetrators’ acts.” The massacre itself was investigated as a “crime against the Polish nation,” not as an act undertaken by Poland qua Poland. Just as there was, in the Gaullist conception, a “France that was never at Vichy,” so too was there a “Poland that was not at Jedwabne.”

Nevertheless, the investigations into the events of July 10, 1941 seemed to tear the stitches from a gaping national psychic wound that had never fully healed, and large portions of the Polish body politic winced with pain. Some 48 percent of respondents in an April 2001 opinion poll maintained that Poland should not apologize in any way for the events at Jedwabne, while a mere 7 percent held Poland to be solely responsible for the atrocities, and only 14 percent would accept combined German and Polish complicity. The newspaper Nasz Dziennik warned that the overall debate constituted “tampering with history” and a prelude to Poland being “pressured to pay the highest of reparation for lost Jewish property.” At the same time the Jedwabne debate was roiling Poland, the German Union of Expellees was proposing the establishment of a Berlin-based Center Against Expulsions that would document the experience of ethnic Germans evicted from Poland after the war, and Russian authorities were refusing to accept Polish demands for the recognition of the Katyń massacre of 1940. In this symbolic battle over history, waged along the same fronts as the Second World War, many in Poland were growing increasingly concerned that an undeniable historical truth was being forgotten: that the Rzeczpospolita had, in the words of Norman Davies, “in proportion to its size…incurred far more damage and casualties than any country on earth,” becoming “the killing-ground of Europe, the new Golgotha.” In 1965 the Conference of Polish Bishops famously proclaimed that “we forgive and ask for forgiveness,” but it was only a matter of time before the Polish government would launch a symbolic counter-offensive on the field of historical memory.

It was for this reason that the Polish Sejm had in 1998 passed the Act on the Institute of National Remembrance, which paved the way for investigations like that of Radosław Ignatiew while criminalizing the historical negationism of crimes committed against Poland or Poles by Nazis or Soviets (in the process implicitly, if not quite explicitly, criminalizing Holocaust denial). Twenty years later, amidst a wave of populist political sentiment, the Sejm revisited the Act and passed the now-infamous amendment to Article 55a intended “to eliminate public misattribution to the Polish Nation or the Polish State of responsibility or co-responsibility for Nazi crimes committed by the German Third Reich.” As the Polish Foreign Ministry explained in a January 27, 2018 communiqué, “the amended act provides for a penalty in precisely defined situations for the purpose of preventing intentional defamation of Poland. The final determination of a specific case will rest with the court. The provisions of the amended act do not limit freedom of research, discussions on history or artistic activity.” The language of the amendment is worth quoting in its entirety:

1. [Anyone] who, in public and against the facts, ascribes to the Polish Nation or to the Polish State, responsibility or co-responsibility for Nazi crimes committed by the Third Reich, [as] defined in Article 6 of the Charter of the International Military Tribunal, Annex to the Agreement for the prosecution and punishment of the major war criminals of the European Axis, signed in London on August 8, 1945…, or for other offenses which are crimes against peace [or] humanity or [that are] war crimes, or who otherwise grossly reduces the responsibility of the actual perpetrators of said crimes, is subject to a fine or [to] imprisonment for up to 3 years. The judgment shall be made public.

2. If a perpetrator of the act referred to in paragraph 1 has acted unintentionally, [such person] shall be subject to a fine or community sentence.

3. No offense referred to in paragraphs 1 and 2 shall have been committed if the act was performed as part of artistic or scholarly activity.

The amendment was soon dubbed “Poland Holocaust Law,” and became the subject of withering international criticism, particularly and understandably from Israel. Prime Minister Benjamin Netanyahu issued a statement calling the legislation “baseless” and insisting that “one cannot change history, and the Holocaust cannot be denied,” though strictly speaking the law cannot be viewed through the prism of Holocaust denial per se. The opposition parliamentarian Yair Lapid thundered: “I utterly condemn the new Polish law which tries to deny Polish complicity in the Holocaust. It was conceived in Germany but hundreds of thousands of Jews were murdered without ever meeting a German soldier. There were Polish death camps and no law can ever change that.” The historian Efraim Zuroff, Eastern European director of the Simon Wiesenthal Center, urged caution on this front, however, pointing out that “Lapid fell in the trap that the Poles made for him, in a sense,” adding: “Polish individuals may have been responsible for the deaths of many thousands of Jews, but Polish state apparatuses were not integrated into the Nazi machine of genocide against the Jews, and, in that, Poland is actually an exception to many other countries in Nazi-occupied Europe.” Yad Vashem, while criticizing the law on the grounds that it paves the way for “serious distortion,” went on to agree that the “term ‘Polish death camps’ is a historical misrepresentation” just the same.

The historians Jeffrey Kopstein and Jason Wittenberg, meanwhile, took to the pages of the Washington Post to warn that “Poland’s current government will likely face the unpalatable prospect of enforcing an unenforceable law and denying what the mainstream scholarly community has increasingly shown to be true: Some Poles were complicit in the Holocaust.” But that, of course, has been recognized all along. Recall that twelve individuals involved with the Jedwabne pogrom were convicted of treason in 1950, and that the more recent IPN investigation was only brought to an end because of the “result of a failure to find the perpetrators of the crime, other than those already adjudged.” And though the law would never pass constitutional muster in the United States, with its robust First Amendment protections, the law does specifically carve out exceptions for “artistic or scholarly activity.”

That the widespread criticism of the “Holocaust Law” often rather misses the mark does not mean that it has been anything other than a foreign policy debacle, which would explain why, on February 27, 2018, the Polish Ambassador to Israel Jacek Chodorowicz informed the Knesset Immigration, Absorption and Diaspora Committee that the “Polish Justice Ministry [was] committed to not enforcing the new law before there is an in-depth examination of all of its components, including a discussion with Israeli representatives.” The damage to Polish-Israeli relations had been too grave to ignore. Israel’s Education and Diaspora Affairs Minister Naftali Bennett had, after all, called on the Polish government to “remove this embarrassing bill from the table, as it is shameful to the memory of the Holocaust and the relationship between our countries,” and had gone so far as to order the dedication of two extra hours of instruction in Israeli schools in order “to learn more about European nations’ involvement in the Holocaust and their roles during the war, including that of Poland.”

Such negative publicity was a harsh blow for a country that has long prided itself on its history of relatively positive relations with its Jewish community at home and with Israel abroad, beginning with the invitation offered by King Casimir the Great to Jews in the fourteenth century, through the Polish military support offered to Yashiv and the Irgun, to Poland’s status as a “stalwart defender” of the Partition Plan for Palestine in 1947 and its prompt recognition of Israel sovereignty in 1948. It was in the spring of 1978 that a delegation of Israelis visited Poland in order to open the Jewish pavilion at Auschwitz, with Alexander Zvielli declaring that “we have observed a different world, and we leave it with a feeling that there is some hope for an improvement in Polish-Israeli relations. It is inconceivable that the connection between our two peoples, which lasted more than a millennium, can remain severed forever.” Soon thereafter, at a ceremony honoring twenty-two Polish “righteous gentiles,” Yad Vashem’s director Gideon Hausner went even further, suggesting that “the whole world has forgotten about the Holocaust, except for the Poles and the Jews.” In 2003, the Polish government received a collection of 34 manuscripts that had been looted from the Jewish Theological Seminary in Wrocław and wound up in the Czech Republic, and promptly returned them to the Jewish community to mark the 800th anniversary of its founding. That same year, Poland’s Ambassador to Israel, Maciej Kozlowski, called for support for the founding of a History Museum of Polish Jews, on the grounds that he was “deeply convinced that it is Poland and Poles who primarily need the History Museum of Polish Jews. It is a project that may reverse the alarming upsurge in anti-Semitic sentiments, it is an educational enterprise that can let us reclaim part of our own, genuine history.” Two years later, the museum was formally instituted, and went on to win the European Museum of the Year award in 2016. Few could have foreseen the depths to which this burgeoning relationship would fall in the early months of 2018.

Poland finds itself in something of a historical bind, given its self-image as a perpetual victim in “God’s playground” and as the “Christ of Nations,” and must wrestle with the role its citizens played during the Holocaust, both as heroes and perpetrators. To again quote Norman Davies, the “essence of Poland’s modern experience was humiliation,” and no proud nation can long tolerate such an oppressive psychological climate. It was Zygmunt Bauman who contended that the issue is not

whether the Poles should feel ashamed or whether they should feel proud of themselves. The issue is that the only liberating feeling of shame — the recovery of the moral significance of the joint historical experience — may once and for all exorcise the specter of the Holocaust, which continues to haunt not only Polish-Jewish relations, but also the ethical identity of the Poles and Jews alike to this very day. The choice is not between shame and pride. The choice is between the pride of morally purifying shame, and the shame of morally devastating pride.

The case can certainly be made that the amendment to the Act on the Institute of National Remembrance constitutes an instance of morally devastating pride. But we must question whether countries which opt to embrace allegedly morally purifying shame, like Germany with its Kollektivschuld or omnipresent collective guilt, do not pay another sort of price. Bundeskanzlerin Angela Merkel’s open-door policy during the recent migrant crisis was due in no small part to Germans being “acutely aware of this historical stain” and “very eager to make clear that they’re not that country anymore,” as Kathleen Newland rightly noted at the time. It is also a policy that jumpstarted the far-right Alternative for Germany (AfD) party and opened up vast diplomatic chasms throughout the European Union, and was in any case highly debatable on its merits. We are told by Thomas Scheff, in his Bloody Revenge: Emotions, Nationalism, and War (1994) that “acknowledging shame helps connect parties; admission of feelings of weakness or vulnerability can build solidarity or trust,” but policies and positions explicitly predicated on “weakness” and “vulnerability” are not likely, in the final reckoning, to be in the national interest.

Ultimately, the controversy sparked by the “Holocaust Law” has proven to be a source of considerable frustration, given that there is already a consensus on all sides that, as Efraim Zuroff succinctly put it, “the Polish state was not complicit in the Holocaust, but many Poles were.” The Polish government has chosen to emphasize the former contention, its critics the latter, but there is no meaningful debate as to the particulars. All of this could readily have been appreciated on the very day of the Jedwabne massacres. It was certainly grasped when the People’s Republic of Poland tried the perpetrators for treason, and all the more so when, half a century later, the event was again investigated as a crime against the Polish nation, albeit one carried out in large part, though not entirely, by a collection unrighteous Poles. In the formulation of Aleksander Kwaśniewski, former president of Poland, it is possible to eschew collective responsibility while still seeking forgiveness “in the name of those who believe that one cannot be proud of the glory of Polish history without feeling, at the same time, pain and shame for the evil done by Poles to others.”

It is altogether unfortunate that the waters have been muddied in Poland by comments like those of Polish Education Minister Anna Zalewska, who vaguely suggested that there are “different scenarios” about precisely what took place in Jedwabne, or those made recently by a teacher in Jedwabne, who mused: “If someone asks us what happened here, what should we say? I tell them about the Soviet occupation, that the Jews worked with the Soviets, that they greeted the Soviets with flowers.” It is likewise regrettable that the debate has elsewhere spiraled off into unforeseen and irrelevant tangents, such as when Israeli Zionist Union MK Ksenia Svetlova criticized the Polish ambassador for his country’s treatment of much-despised Soviet monuments, on the grounds that “it’s revenge for the sake of revenge” and “these are monuments for the Red Army that liberated Poland; it shouldn’t matter who built them. I’m proud of every person who contributed to the victory over the Nazis.” Poles, it should hardly need to be said, are under no obligation whatsoever to maintain monuments to the Soviet forces that waited for the Nazis to complete their suppression of the heroic Warsaw Uprising before swooping in to implement the second stage of the brutal “double tyranny” over Poland.

There is now a desperate need for rapprochement, and good faith efforts on each side are required to repair the damage produced from this ongoing diplomatic tumult. Fortunately, there are ways forward. Consider the tremendous work of the European Jewish Cemeteries Initiative, a project spearheaded by Rabbi Isaac Schapira, and assisted by Israel’s former justice minister Yossi Beilin, who recently described a trip to the Frampol, a town due south of Jedwabne, near the Ukrainian border. “We talked to children there and they had no idea there were ever any Jews. They had never met any Jews…We built access roads and fences around the cemetery and the locals took an interest. Now the school nearby is protecting the cemetery. The children researched and wrote reports on the Jews of Frampol. They sang to us [in Hebrew],” Beilin reported, adding that “this project is more than just a cemetery. The unexpected results are bigger than the project itself. Without it, the contribution of Jews to the development of Eastern Europe will simply disappear.” Ambassador Jacek Chodorowicz has reported that his government is hard at work creating a database of such sites, as well as implementing “unified and dignified” ways to mark and preserve them.

It should be borne in mind that much of the lingering controversy in Poland over the nature of the Jedwabne massacre stemmed from the preservation, or lack thereof, of the victims’ burial site, which allowed Jan Gross and others to significantly overestimate the scale of the slaughter, but likewise made it difficult for the public prosecutor to reconstruct the day’s events in satisfactory detail. And the overall story of the treatment of Jewish cemeteries in Poland must be remembered as well. Yoysef Raykh, in his yizker-bukh (memorial book) for the town of Belkhatov, described how Jewish gravestones had been used by the Soviet authorities to build a bridge and to pave the sidewalks. “They lie as if disgraced with their inscriptions in the Holy Tongue, with their engraved Psalms, menorahs, Jewish lions, and Stars of David.” Raykh continued:

Now these stones — torn out of their graves — stolen from the dead, with the holy inscriptions “Here lies” and “May the soul of this holy man be in paradise forever” are trodden by strangers’ feet, and desecrated. An article was printed in the central organ of the Polish Socialist party, Rabotnik, which concluded by stating that from being a dirty, isolated town before the war, Belkhatov had grown into a town that was both clean and cultured. We would like to say to these “cultured people”: you live in our homes, you sleep in our beds, and you use our bedding, you wear our clothes — at least do not obliterate our holy places!

Another yizker-bukh tells of the

Koriv Jews [who] spoke to one another only a few moments before they were shot, and agreed that if even a single one survived the massacres he would come to the graves of the others and shout down to them, proclaiming the end of Hitler. No graves have been left of all those who were slain. And the surviving Koriv Jews will not be found on Koriv soil in Poland. That is why the surviving Koriv folk…cry out to you, to your wailing, wandering, never-resting souls: “Beloved and precious martyrs of Koriv, we bring you to burial today! In a yizker-bukh, a memorial volume! Today we have set up a tombstone in memory of you!”

Those two memorial books speak eloquently to our continuing, eternal, and sacred obligation to safeguard the tangible and intangible heritage of that terrible, instructive time, as well as the vibrant world that was lost as a result.

Radosław Ignatiew’s conclusion in his IPN report on Jedwabne was particularly well-crafted. It carefully meted out the historical blame, properly apportioning it in the sensu stricto to the Poles who wielded sticks, T-bars, and kerosene to snuff out hundreds of lives, and in the sensu largo to the Germans who orchestrated the scene. But left unmentioned was the third category of interpretation, the sensu largissimo, the widest context of all, perhaps because it fell more within the ambit of the historian and philosopher than that of the jurist. Lost in the battle over Poland’s “Holocaust Law,” it would seem, is this broader sense of the matter at hand. It is imperative going forward that the implicated parties consider how best to honor and maintain the collective Jewish and Polish memories of that era; how best to achieve further rapprochement; and how best to preserve the vestiges of the various individuals and communities whose existences were snuffed out when Poland and its constituent peoples were subsumed by a tide of Nazi and Soviet bloodletting.

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