This article analyses the amendments of January 2018 to the Act on the Institute of National Remembrance (INR) of 1998, which has raised doubts in light of in ternational law and provoked diplomatic tensions between Poland on one side and Germany, Ukraine, United States of America and Israel on the other. The INR is a national in stitution whose role is, among others, to prosecute perpetrators of in ternational crimes committed between 1917-1990. The article proves that the wording of the amendments is in consistent with in ternational law, as it ignores the principles of in ternational responsibility, definitions of in ternational crimes, and disproportionately limits freedom of expression. In consequence, it cannot be expected that third states will cooperate with Poland in the execution of responsibility for violation of the newly adopted norms.
This article provides an overview of “memory laws” in Europe, reflecting upon what may be called the “asymmetry” of such laws. It then looks at the special case of Poland and its troubled experience with memory laws; it considers the question of whether, in the eyes of the law – genocide, and in particular the Holocaust – is so “special” that its public denials warrant legal intervention. It also looks at the case law of the European Court of Human Rights and its (not necessarily coherent) “doctrine” on memory laws and their consistency, or otherwise, with the European Convention for the Protection of Human Rights and Fundamental Freedoms (and in particular with freedom of expression as laid down in Art. 10). The article concludes by asserting that even if we take the law as an indicator of European public memory, there is no consensus on the past, except perhaps for the special case of the Holocaust. The main challenge lies in determining whether memory laws, defined by some as social engineering and the imposition of “imperative” versions of memory, are consistent with the principles inherent in open, democratic and free societies in Europe. This challenge remains unmet.