July 13, 2021 — Jerusalem, Israel and Warsaw, Poland
This piece originally appeared in Ynet and Rzeczpospolita.
By Sebastian Rejak and Zvi Rav-Ner
Over the last 30 years, Israel and Poland have built a friendly, mutually-valued relationship and yet almost destroyed it. A relationship needs time to grow strong, but it can sometimes dismantle overnight.
It may then need even more time and good will for parties to rebuild trust. That is exactly what Poland and Israel will need.
Bad decisions, bad emotions
Reading the exchange of statements and social media posts between the countries, we are moved to ask “What went wrong?”
One would be tempted to answer by noting the latest bill amending the Polish Code of Administrative Procedure that sharply affects the process of property restitution. But the story starts a bit earlier than that, and events of three years ago set the stage and the tone for what we are witnessing today.
In January 2018, Poland adopted a law that sought to regulate what can and cannot be said about responsibility for the Holocaust. Those ascribing to the Polish nation or Polish state responsibility or co-responsibility to for Nazi crimes committed by the German Third Reich would have been punished for up to three years in prison.
That understandably caused an outcry among Holocaust scholars and was met by criticism from Jewish organizations, Israel, and the U.S. State Department. Although authors of statements about forms of Polish complicity in the Holocaust can still be sued in court, the penal element was removed from the law.
Could it be worse? Yes.
In February 2019, yet another chapter in Polish-Israeli distrust was penned when then-foreign minister Israel Katz, allegedly quoting former prime minister Yitzhak Shamir, said in a TV interview that Poles imbibe anti-Semitism with their mothers’ milk. (Shamir had retracted those words in two press interviews in the 1990s, but who would remember such “details”?)
Poland then refused to send a high-ranking official to a political summit in Israel where the prime ministers of the Czech Republic, Hungary and Slovakia had arrived for a meeting of Visegrad Group leaders with then-prime minister Benjamin Netanyahu.
The following two years were marked by almost complete silence between top Israeli and Polish officials. During that time Israel went through four elections, the last one leading to a new coalition government sworn in on June 13. In the meantime, while anti-Semitism was becoming more visible in the public square in Poland, economic cooperation between the countries continued to grow.
A new opening that wasn't
With a new government, one might have thought there is a chance for a new political opening. And that is not entirely irrational. Psychologically this is a mechanism that we often see work in politics: new people have new ideas, a different approach, a different language. However, that did not happen.
Poland’s parliament, led by the majority Law and Justice party, and joined by the Peasant Party, the far-right Confederation, the Left, and a few other opposition MPs, adopted a highly controversial bill amending the Polish Code of Administrative Procedure.
The amendment was relatively simple, on the face of it. Its objective was to strengthen the reliability of law, particularly when it comes to administrative decisions pertaining to property.
The reason for the law, legislators explained, was to implement the Constitutional Tribunal’s May 2015 verdict. The Tribunal aimed to limit the possibility to challenge Communist-era administrative decisions on nationalization of property.
Not surprisingly, reactions in Israel were emotional, as reflected in the foreign minister’s comment on Twitter.
“No law will change history,” he wrote. The bill “is a disgrace that will not erase the horrors or the memory of the Holocaust.”
“This is not the first time that Poles have tried to deny what was done in Poland during the Holocaust,” he said.
Polish Prime Minister Mateusz Morawiecki responded that he would make sure his country won’t pay a penny “for German crimes.”
So, a law that was clearly imperfect and would have made it impossible to declare invalid administrative decisions older than 30 years, was understood as another example of Poles wanting to deny (at least parts of) Holocaust history.
The controversy was also depicted as a “Polish-Jewish” clash, a conflict over which narrative of World War II and the Holocaust is right.
However counterproductive the law is, and we both think it is, presenting it as a threat to the memory of Jewish Holocaust victims is questionable and rather misleading.
An estimated 80-85% of property claimants are not Jewish. As the World Jewish Restitution Organization pointed out in its June 22 press release, “The proposed legislation … would harm claimants, including Holocaust survivors and their families as well as many other Jewish and non-Jewish rightful property owners.”
Can the law be fixed?
But let’s come back to the law itself and the rationale for it. It is often repeated that the Polish parliament had no other option than to act in line with the Constitutional Tribunal’s verdict of 2015. Is that really so?
The short answer is yes. The long answer is generally yes, but in practice the parliament could have chosen a thousand different solutions. In its ruling, the Tribunal itself made it clear that “the legislator is free to choose the legal instruments serving the implementation of the constitutional values indicated by the Tribunal.”
At least two questions, therefore, have to be asked. First, why only 30 years and not 50 or 70 years after which decisions could not be declared invalid? The other is about the moment the law would enter into force after it is promulgated (the so-called adaptive period or vacatio legis).
Why could this law not enter into force one, two, or even three years after it is passed, rather than just 14 days? The process of property restitution is already very complicated, so why make it even less user friendly?
Also, the provisions at hand could include exceptions with regard to cases pertaining to property nationalization resulting from the last war and how it affected the question of factual and legal dimensions of property ownership.
At issue is unimaginable destruction of property and huge changes in social structure for which victims of World War II do not bear responsibility. The singular specificity of those dramatic changes has to be taken into account so that claimants, Jewish or non-Jewish, are not wronged yet another time – first during the war, then by Communist laws, and now by unjust solutions to a problem that is indeed historically, legally, and morally complex.
Can the relationship be fixed? Or at least can a healing process be started?
Instead of asking who is to blame, parties should think how they can work together to find a solution to the problem.
It is certainly difficult to undo decisions or be always driven by rational choices rather than emotions. A return to basics, it seems, is needed since basic things have been neglected.
All relationships, between individuals or states, depend heavily on communication.
Communication must precede, not follow, decisions, so much more if these decisions affect sensitive issues. This, of course, starts with how well you know your partner, what you think your partner cares about and pays attention to. And, yes, it’s also about knowing where your partner may be oversensitive or may overreact.
This, too, is part of the mechanics of bilateral cooperation. If dialogue or mutual trust need to be rebuilt, it cannot start by asking the question “What should they do, what should they change for our relationship to be fixed?”
In a situation like the one between Israel and Poland, both parties should admit the following: there is too little chemistry binding them and too much destructive energy involved. Sincere communication between top leaders is necessary for the relations to start moving forward positively.
They should see each other as valued partners, which is what our countries have long been. If that is the leaders’ decision, Jerusalem and Warsaw have to focus in the coming 8-10 weeks on preparing the ground for basic talks.
Importantly, they will have to realize that they bear responsibility for a relationship that a generation of Poles and Israelis have built at great price, with huge efforts.
What will leaders in Warsaw and Jerusalem choose?
Dr. Sebastian Rejak is Acting Director of American Jewish Committee (AJC) Central Europe and Zvi Rav-Ner served as Israel’s Ambassador to Poland from 2009 to 2014.