Gravity of the Past: Polish-Ukrainian Memory War and Freedom of Speech

There is a power to the words ‘I remember’: the power of an event long past, exerting itself upon the present […] When the words begin a flow of warmth or love, it is a positive, binding power, but it is the most divisive and negative one possible when they lead on to events of death and destruction…

Ilana R. Bet-El

Collective memory matters politically: it provides a nation with an identity and common myth of origin, legitimizing power by creating a desired image of the past. This explains why states are preoccupied with memory, prescribing by law what has to be remembered and what must be forgotten. Revanchism, ethnic cleansing and war are all results of memory. The clash of historical narratives sponsored by states can destroy interstate relations. This happened in the case of Poland and Ukraine; these States were involved in memory war because of the attempts, from both sides, to instrumentilise history and use it for nationalist and populist goals.

These two countries were the ‘bloodlands’ during the Second World War. Yet, they have different memories of controversial events of the twentieth century. Describing the differing memories of the Polish-Ukrainian conflict Timothy Snyder writes:

[…] for patriotic Ukrainians the Organization of Ukrainian Nationalists created a moment of Ukrainian sovereign action by declaring a Ukrainian state under Nazi occupation in 1941 and a lasting memory of national heroism by their doomed struggle, for Poles its UPA [the Ukrainian Insurgent Army. – A.Ch.] was the organization which cleansed Poles from Western Ukraine in 1943 and 1944. Ukrainian patriots […] are unwilling to accept that the UPA did commit mass race murder in 1943-4. Poles […] are apt to believe that the anti-Ukrainian military operations of 1944-7 were a direct result (and a just one) of the UPA’s earlier ethnic cleansing. Both views are substantially incorrect. The UPA did indeed brutally murder […] Polish civilians in 1943-3. But in 1944-7 the Polish communist regime acted to ‘resolve the Ukrainian question in Poland’, not only to liquidate the UPA […]. [C]leansing actions (the word used at the time) […] was carried out in the name of the Ukrainian nation against Poles and in the name of the Polish nation against Ukrainians.

This passage from Snyder’s essay ‘Memory of Sovereignty and Sovereignty over Memory: Poland, Lithuania and Ukraine 1939-91’ challenges the ‘official’ truth of the two countries and, in light of recent legislative changes, can be considered ‘illegal’ both in Poland and Ukraine. (See: Timothy Snyder, ‘Memory of Sovereignty and Sovereignty over Memory: Poland, Lithuania and Ukraine 1939-1991’ in Jan-Werner Muller (ed.), Memory and Power in Post-War Europe: Studies in the Presence of the Past (Cambridge University Press, 2002), 39-58, 41-42).

What does the law say?

Ukraine

In April 2015, as a part of the so-called decommunisation package, Ukraine adopted the Law On the Legal Status and Honoring the Memory of Fighters for Ukrainian’s Independence in the Twentieth Century (the Law on fighters). This law is a development in the extremely controversial Ukrainian historical initiative to glorify the OUN, which dates back to the Yushchenko’s presidency (2005-10). In 2010, President Yushchenko awarded Stepan Bandera, a leader of the OUN, the title of ‘National Hero of Ukraine’. This decision polarized the Ukrainian society as Bandera has always been a divisive figure: a hero in the West and Kiev, a Nazi criminal everywhere else east of the Dnieper. Bandera’s glorification was not supported in Europe and ‘deeply deplored’ by the European Parliament.

There were several attempts to challenge the constitutionality of the President’s decree. The Verkhovna Rada of the Crimea Autonomous Republic appealed to the Constitutional Court of Ukraine arguing that this decision violates Ukrainian legislation (Law ‘On the State Awards of Ukraine’) as a title of ‘National Hero of Ukraine’ should be granted only to a person with Ukrainian citizenship. Bandera, due to obvious historical reasons, had never been a citizen of Ukraine. The Constitutional Court of Ukraine refused to consider thw claim and found it inadmissible. Interestingly, the President’s decree was declared illegal by the District Administrative Court of the Donetsk region.

The proponents of the Law on fighters present it as a matter of national security: for Ukraine, which suffers from Russia’s aggression, it is important to forge national identity based on glorification of the past. The Law portrays those who fought for Ukraine’s independence as heroes, never perpetrators. To erase from collective memory unwholesome moments when the national heroes were involved in crimes against civilians, the state holds responsible those who ‘publicly display a disrespectful attitude’ toward the fighters and ‘publicly deny the legitimacy of the struggle for Ukraine’s independence’. It should be noted that the Law does not determine the liability measures to be used. Instead it states:

Ukrainian nationals, foreigners and stateless persons who publicly express disrespect for … [fighters for independence. – A.Ch.]… bear liability in accordance with current Ukrainian legislation. Public denial of the legitimacy of the struggle for Ukraine’s independence in the twentieth century is deemed desecration of the memory of fighters, …denigration of the dignity of the Ukrainian people and is unlawful.

The unclear wording of the Law makes its practical legal application quite problematic. Yet, the Law is still able to freeze historical discussion and silence questions about the crimes committed by fighters. As noted, the Law ‘[…] exempts from criticism the OUN, one of the most extreme political groups in Western Ukraine between the wars, and one which collaborated with Nazi Germany at the outset of the Soviet invasion in 1941 […]’

Ukraine’s policy of memory aimed at monopolizing interpretations of the past was been met with indignation by the two states concerned – Israel and Poland. For instance, Reuven Rivlin, the President of Israel, speaking at the session of the Ukrainian Parliament devoted to the commemoration of the 75th anniversary of the Babi Yar massacre, dwelt on the crimes committed against Ukrainian Jews by Nazis and also mentioned Ukrainian collaborators: ‘Many collaborators to crimes were Ukrainians. And among them were the fighters of the OUN – who mocked the Jews, killed them, and in many cases handed them over to the Germans […]’

The Polish reaction was more radical. In July 2016, the Polish Parliament adopted a Resolution ‘On the Perpetuation of the Memory of Victims of Genocide Committed by the Ukrainian Nationalists Against the Citizens of the Second Rzeczpospolita in 1943-5’, which recognized the Volyn events as a ‘genocide’ (the Resolution on the Volyn genocide). The Resolution gave Ukraine a reason to blame Poland for the ‘politicization of tragic chapters of the Ukrainian-Polish history’ and ‘triggering of anti-Ukrainian moods […] at a time of most considerable sensitivity of the Ukrainian State’.

Poland

Soon after the Resolution on the Volyn genocide, in August 2016, the Polish Sejm, the lower house of the Polish Parliament, initiated a bill – an Amendment to the Act on the Institute of National Remembrance – to make the denial of crimes committed by the Ukrainian Nationalists punishable. The bill was adopted on 26 January and approved by the Polish Senate on 01 February 2018. On 06 February, the Polish President signed it into force. Reacting to the bill, the Ukrainian Foreign Ministry expressed ‘concern about the attempts to portray Ukrainians exclusively as “criminal nationalists” and “collaborators of the Third Reich”’. In turn, the Ukrainian Parliament stressed that ‘the Amendment contradicts the nature and spirit of the strategic partnership between Ukraine and Poland’ and warned against ‘incitement of conflicts between traditionally friendly Ukrainian and Polish peoples’ as these conflicts are in the interests of their common enemies ‘which were the Nazi and communist regimes in the past’ and ‘the Russian aggressor today’.

It is undoubtedly wrong to state that every member of the OUN was a Nazi collaborator and was involved in crimes against Jews and Polish civilians (the Polish historical narrative). It is also incorrect to claim that the OUN played no role at all (the Ukrainian historical narrative). This is a matter of historical discussion which should be free from the states forcible imposition of ‘official’ truth. Unfortunately, the Ukrainian Law on fighters and recent Polish legal initiatives make this discussion impossible.

It should be stressed that besides criminalization of the denial of crimes committed by Ukrainian Nationalists, the Polish bill sets measures to protect the ‘reputation of the Republic and the Polish Nation’. It provides that anyone who:

[…] publicly and contrary to the facts claims the Polish State or the Polish Nation to be responsible or co-responsible for the Nazi crimes […] or for the other crimes against peace, humanity or war crimes or in another manner grossly diminishes the responsibility of the true perpetrators of these crimes, shall be a subject to a fine or imprisonment of up to three years.

This provision referred as ‘the Polish Holocaust bill’ and strongly criticized by the US and France, has sparked a diplomatic row between Israel and Poland. The Israeli Foreign Ministry stated:

The State of Israel opposes categorically the Polish Senate decision. Israel views with utmost gravity any attempt to challenge historical truth. No law will change the facts.

As a countermeasure, the Israeli Parliament is ready to amend Israel’s law on the Holocaust denial to make it a crime to diminish or deny the role played by those who aided the Nazis in their persecution of Jews. Also, it has been proposed to provide legal defense to anyone prosecuted under the new Polish law.

‘The Polish Holocaust bill’ is a rebirth of Article 132a of the Polish Criminal Code which was in force in 2006-8 and punished (up to three years of imprisonment) ‘anyone publicly accusing the Polish Nation of participating in, organizing, or being responsible for Nazi or communist crimes’. The Article was called to protect official historical narrative pursuant to which in World War II Poles fought against the two totalitarian regimes – Nazism and Stalinism – and have never collaborated with them. Interestingly, that Article 132a was named ‘Gross’ law’ as it was directed against Jan Gross, a Polish-American historian. In his internationally acclaimed book ‘Neighbors: The Destruction of the Jewish Community in Jedwabne’ (2000), Gross challenged Polish ‘official’ truth and showed how in July 1941 local population of the small eastern Polish community of Jedwabne murdered their Jewish neighbors without direct involvement from the Germans. Article 132a had to prevent publication of Poland Gross’ next book ‘Fear: Anti-Semitism in Poland after Auschwitz’ (2006).

In 2008, the Polish Constitutional Tribunal declared Article 132a unconstitutional based on procedural grounds. The February bill reestablishes this provision. But even without a norm directly aimed at protecting reputation of the state and nation, opinions and memories which challenge the Polish ‘official’ interpretation of the past can be punished under Article 133 of the Polish Criminal Code (public insult of the Nation or the Republic of Poland). For reference, the Criminal Code of Ukraine does not contain a similar article. Yet, there is a risk that following the destructive logic of memory wars, Ukraine will introduce criminal responsibility for public denigration of the state and national dignity.

What about the freedom of speech?

Despite the fact that Ukrainian and Polish regulations protect mutually exclusive historical narratives, they are very similar; these are examples of the state’s attempts to be the only caretaker of national memory. While protecting national heroic myths, both states treat freedom of speech as a secondary value. Poland and Ukraine use the same ‘totalitarian’ approach to history as, for instance, the Russian Federation and Turkey in Article 354-1 and Article 301 of their national criminal codes accordingly. Under the tag ‘Rehabilitation of Nazism’ Russia punishes ‘spreading of knowingly false information on activities of the Soviet Union during World War II’ to suppresses a discussion about crimes committed by the Stalinist regime and protect Russia’s mantel of Europe’s liberator. Turkey uses criminal sanctions against those who call the 1915 mass killings of Armenians in the Ottoman Empire genocide as these statements are said to be a ‘public denigration’ of the Turkish state and nation.

In Dink v. Turkey  and Akçam v. Turkey the European Court of Human Rights (ECtHR) recognized that criminal prosecution for expression of an ‘unfavorable’ opinion on the Armenian issue violates Article 10 of the European Convention on Human Rights (ECHR). The ECtHR stressed that Article 301 of the Turkish Criminal Code (public denigration) is ‘too wide and vague’ and ‘constitutes a continuing threat to the exercise of the right to freedom of expression’ as ‘any opinion or idea that is regarded as offensive, shocking or disturbing’ can easily be the subject of criminal punishment. This can be said about any attempt of a state to whitewash its past and ensure historical loyalty under the threat of punishment. In this sense, the best way to judge a state’s overall attitude towards human rights is to observe its attitude towards history.

In general, criminal sanctions are called to demarcate and protect fundamental values of society. Doubtfully, that preservation of state-sponsored historical narratives is a social interest worthy of being granted the highest level of protection. The proliferation of memorial laws with criminal sanctions reflects an escalation of memory wars in which historians, journalists and civil activists are the first victims. Indeed, ‘remembering the past and writing about it no longer seem the innocent activities they once were taken to be’.

When assessing memorial laws (laws through which states regulate historical narratives) with criminal sanctions one should keep in mind their purposes. The laws aimed to condemn the past and protect dignity of victims (particularly, the Holocaust denial ban) can be, if not accepted, at least explained based on the theory of ‘militant democracy’. While criminal punishment for challenging ‘glory of the past’ is a univocal violation of freedom of speech, there is no difference in being punished for criticizing a state’s current policy or disclosing its past wrongdoings.

The Polish-Ukrainian case proves well that a clash of historical narratives should not be solved with the use of criminal sanctions, that limitation of historical discussion by the threat of punishment makes it impossible to have reconciliation through a dialog on dark legacy of the past. The conflict over the history of the Second World War raises a question about a set of the European principles of mnemopolitics to stop current memorial wars (all is not quite on the European memory ‘front’) and prevent them in future.