Transitional Justice and the Holocaust in Poland

1 Continuities and Ruptures

The Polish government-in-exile had been a persistent advocate of retribution for German atrocities, independently of the position taken by Western allies (Uczkiewicz 2022). As early as December 1939, its leadership, then in France, announced that “after winning the war, the Republic of Poland shall take reprisals against Germany, especially its authorities” (Paczkowski 2019, 148). Among the most decisive moves in this direction, the London government-in-exile signed the St. James Declaration in January 1942 and joined the Moscow Declaration on atrocities in November 1943, paving the way for the postwar Allied prosecution of war criminals. In the fall of 1943, the Polish government in London formed a War Crimes Office for gathering information on war crimes, including a special section on crimes against Jews, which submitted charge files to the United Nations War Crimes Commission (UNWCC), with dossiers on some 4000 German criminals, and helped to place the systematic mass murder of Polish Jewry on the Allies’ agenda (Fleming 2022). On the home front, in 1940, the Polish government issued a penal code and authorized the judiciary of the Polish Underground State to pursue collaborators on its basis, in which underground courts examined approximately 5000 cases, sentenced to death between 3000 and 3500 people, and carried out executions on 2500 of them (Gondek 1988, 114). The Moscow-backed Polish Communists, who came to dominate liberated Poland as the Polish United Workers’ Party (PZPR), effectively took over where the work of the Polish London government and its underground structures had left off. The Decree of August 31, 1944, known in short as the “August Decree,” issued by the Polish Committee for National Liberation (Polski Komitet Wyzwolenia Narodowego, PKWN), and amended several times thereafter, became the main legal instrument for the prosecution of the crimes of war and collaboration (Sawicki and Walawski 1945). On September 12, 1944, the PKWN decreed the establishment of Special Penal Courts (Specjalne Sądy Karne, SSK) to dispense justice on the basis of the August Decree in a summary manner, with nine such courts set up in the major cities of the territorially newly reconstituted Poland.

2 The Prosecution of Nazi German and Austrian War Criminals

The Polish contribution to the prosecution of Nazi perpetrators was exceptional and long since documented, not infrequently by judges and prosecutors (Cyprian and Sawicki 1956; Cyprian and Sawicki 1962; Gumkowski and Kułakowski 1967; Pilichowski 1980; Sawicki 1958), though it has largely been underappreciated in Western scholarship. As the authors of a much-needed corrective on the subject, Gabriel N. Finder and Alexander V. Prusin, note, Poland was “more persistent than any of the other Soviet satellites in pursuing Nazi criminals and investigating Nazi crimes” (2018, 5). Although the Allies did not permit a Jewish delegation to take part in the International Military Tribunal (IMT) at Nuremberg, they did permit a Polish delegation, whose drafting of the “Polish indictment” would be of critical importance to the Holocaust (incidentally, the indictment was partly based on materials previously collected by the Polish Underground State and prepared in London). The delegation, whose members would come to play leading roles in Polish jurisprudence on war crimes, comprised of four lawyers: Stefan Kurowski (head of the delegation), Stanisław Piotrowski, Tadeusz Cyprian, and Jerzy Sawicki (Kurowski and Sawicki were of Jewish origin). To broader historiographical debates about the failure of the IMT to treat the Holocaust as a separate phenomenon, the importance of the Polish indictment, argue Finder and Prusin, lay in its articulation of the genocide of the Jews in Poland as a distinct crime against humanity in relation to other victim groups, which stood in contrast to Western and Soviet approaches that prevailed in Nuremberg (Finder and Prusin 2018, 56–69, 97–99).

The proceedings took place at a time when anti-Jewish violence in postwar Poland was at its peak and the expulsion of its ethnic German population was ongoing, which to some Western observers raised questions about Poland’s status as a victim. In Poland, in the words of historian Natalia Aleksiun, the Nuremberg Trial “represented a disappointment and came to symbolize the lack of closure,” especially to Polish Jews who felt marginalized, as Polish authorities gave more emphasis to Polish suffering (2007, 188–189, 191). Another disappointment with Western jurisprudence, one that could not be aired so publicly, was the treatment of the Katyń massacre of Polish officers in the spring of 1940, which the Soviet delegation sought to pin on Nazi leadership in what was clearly intended as a show trial (Basak 1993a; Hirsch 2020, 320–334). Unknown to investigators at the time was the presence of as many as 700 Jewish victims among the nearly 22,000 prisoners of war killed by the Soviet secret police (Schochet 1993).

Partly to rectify the perceived failures of the IMT, partly to ingratiate itself to restive popular demands for justice, and in part to protect its image abroad, the Polish government in Warsaw decided to create its own court intended specifically to prosecute major Nazi perpetrators and collaborators – namely, the Polish Supreme National Tribunal (Nawyższy Trybunał Narodowy, NTN), sometimes referred to as the “Polish Nuremberg.” Between 1946 and 1948, the NTN adjudicated seven high-profile cases, in which 49 defendants were charged with war crimes and crimes against humanity (Blumental 1947; Finder and Prusin 2018, 101–130; Lubecka 2021; Prusin 2010). These included, among others, Arthur Greiser, the former governor of German-annexed Warthegau; Ludwig Fischer, the governor of the Warsaw District; Albert Forster, the Gauleiter of Gdańsk (Danzig); Josef Bühler, the deputy of Governor Hans Frank, whom he had represented at the Wannsee Conference; and Amon Göth, the commandant of the Płaszów concentration camp. However, it was the trial of Rudolf Höss, the former commandant of Auschwitz, and forty guards and functionaries that garnered the most public attention.

Despite the use of the NTN as “a vehicle for legitimizing its power” by the Communist-dominated government, the trials are generally regarded as applying “conventional legal and moral standards comparable to those used in Western courts” (Prusin 2010, 2). They were based on documentary materials and witness testimonies, particularly those of Jewish survivors in the trials of camp personnel, and defendants were not subjected to physical or psychological pressure, which was common in Soviet war crimes trials (Finder and Prusin 2018, 105, 125). What deserves special note is the adoption of the term “genocide” (ludobójstwo) in the first two of the seven NTN trials: that of Arthur Greiser and Amon Göth; as well as the codification of the term in Polish law in 1946, well before its entry into international law through the Convention on the Prevention and Punishment of the Crime of Genocide of 1948. The NTN judgements interpreted genocide in keeping with Rafael Lemkin’s broad understanding of “cultural genocide” as articulated in his foundational work (Lemkin 1944, 107): in the Greiser case, in reference to efforts to destroy the Polish nation (Basak 1993b; Marcinko 2014, 659–670; Finder and Prusin 2018, 107); in the Amon Göth case, as the first application of the notion of “physical genocide” of the Polish Jewish population (Gawroń 2012; Marcinko 2014, 670–680).

The NTN was abolished in 1948 and its prerogatives transferred to the jurisdiction of the district and provincial courts, where high-ranking German Nazi officials would continue to be tried on the basis of the August Decree and the guidelines provided by the NTN. German perpetrators were also tried outside of the NTN framework. The open and highly publicized Majdanek trial of six camp functionaries, based entirely on witness testimony, which began in late 1944 as the war was still raging, went a long way in satisfying popular demand for swift and harsh retribution. In May 1946, the trial by the Special Penal Court of Gdańsk of eleven functionaries (including five women) of the Stutthof (Sztutowo) concentration camp, turned into a huge public spectacle, with as many as 50,000 watching the public hanging. The trial of Hans Biebow, former head of the ghetto administration in the Łódź (Litzmannstadt) ghetto, took place in 1947. In the 1948–1953 period, the accused primarily included members of the SS, such as Josef Grzimek, the former commandant of Jewish labor camps and ghettos in East Galicia; Friedrich Riemann, member of Einsatzkommando 5 active in Ukraine; Waldemar Machol, member of KdS Białystok and Sonderkommando 1005; and Jürgen Stroop, the SS and Police Leader in occupied Poland and Greece, who led the suppression of the Warsaw Ghetto Uprising in 1943 (Finder and Prusin 2018, 131–178). In total, around 5500 German Nazis were put on trial in Poland in the first decade of the postwar era. Many more could have been tried, but the Americans and the British became increasingly reluctant. Of between 12,000 and 15,000 individuals accused of committing atrocities in Poland, the Western allies had only agreed to extradite some 1800 to Warsaw by 1949, at which point the extraditions were suspended (Finder and Prusin 2018, 5–6; Pilichowski 1980, 69).

The proceedings succeeded in no small measure due to the cooperation of extrajudicial institutions within the broader infrastructure. Chief among these was the Main Commission for the Investigation of Hitlerite Crimes in Poland (Główna Komisja Badania Zbrodni Hitlerowskich w Polsce, GKBZH) established in 1945 within the Ministry of Justice to conduct investigations and provide the Polish and the Allied courts with evidence regarding war crimes (Jasiński 2018), the precursor of today’s Institute of National Remembrance (IPN).^[1] Its main partner in matters pertaining to anti-Jewish persecution was the Central Jewish Historical Commission (Centralna Żydowska Komisja Historyczna, CŻKH) in Poland, formed in 1944 (Aleksiun 2008; Grabski 2015), the forerunner of the Jewish Historical Institute (ŻIH) in Warsaw. In addition to its remit to document and commemorate the fate of Polish Jews under the Nazi occupation, the CŻKH was bound by two additional political agendas: confronting Polish anti-Semitism and bringing war criminals to justice (Aleksiun 2008, 78–79). Over the course of a decade, staff from the CKŻP and ŻIH served as expert witnesses in a number of trials. Prominent among these were Nachman Blumental, Józef Kermisz, Michał Borowicz, Artur Eisenbach, Bernard Mark, and Abram Rozenberg-Rutkowski.

The Holocaust became a central issue in the trials of Höss, Göth, Biebow, and the Majdanek and Auschwitz administrations. An underlying line of interpretive tension was the question of the interconnectedness of Jewish and Polish suffering under occupation. The murder of more than 90 % of all Polish Jews continually ran the risk of being axiomatically subsumed into the suffering of the “Polish Nation,” ethnically defined. No doubt, Jewish historians had to operate within certain ideological and pragmatic constraints, such as fear of provoking anti-Semitism after the eruption of pogroms in the previous years. Employees of the CKŻP and ŻIH, especially toward the late 1940s, also began facing growing pressure to “represent the Holocaust through a Marxist and universalizing lens,” which “entailed de-emphasizing Jewish suffering” (Finder and Prusin 2018, 181). A frequent refrain in the courtroom was that Poles and other “Slavs” were “next in line” for extermination after the Jews, a view shared by many Jewish contemporaries, including Nachman Blumental and Raphael Lemkin, an understanding that, as Dan Stone observes, prefigured subsequent historiographical debates surrounding the genocide of the Jews as sui generis or one aspect of a broad Nazi demographic plan rooted in Lebensraum (Stone 2005). In terms of the Polish Main Commission, according to Łukasz Jasiński, for all its positive contributions, it functioned as a conveyor belt of the historical policy of the People’s Republic in terms of “Polonizing” the victims of the Holocaust (2018, 457). One historical artefact of this period is the widespread acceptance of the arbitrary figure of six million Polish victims of the Second World War (Gniazdowski 2008). At the same time, note Finder and Prusin, by situating the Holocaust within a broader national narrative of German crimes, Polish courts did not significantly depart from their Western European counterparts (2018, 110).

The achievements of Polish jurisprudence in the prosecution of Nazi culprits spoke to the strength of the prewar Polish legal milieu, which helped to produce important, though somewhat overlooked figures. This, despite the devastation of the legal profession during the war, in which of 7980 practicing lawyers, more than 50 % perished at the hands of the Nazis and the Soviets (Finder and Prusin 2018, 27). In addition to the prominent figure of Rafael Lemkin, the somewhat lesser known legal scholars are beginning to receive academic attention: among others, Hersch Lauterpacht, who introduced the concept of “crimes against humanity” into international law (Sands 2017); Jan Sehn, the Polish “Nazi hunter,” the investigative judge in the trial of Rudolf Höss who coaxed the former commandant of Auschwitz into writing down his personal story prior to his execution (Gańczak 2020; Nagorski 2016, 63–88); Tadeusz Cyprian, the prosecutor before the NTN and talented photographer who contributed to the documentation of Nazi crimes (Fijalkowski 2021); and Emil Rappaport, a major contributor to international criminal law and member of the NTN (Grzebyk 2020).

3 The Prosecution of Collaborators

If the trials of Nazi German criminals in Poland represented at least some measure of justice to Holocaust victims, the same cannot be said for trials of Polish collaborators. It might be noted at the outset that far less is known about the prosecution of collaborators under the August Decree due in large part to the inaccessibility of the case files to researchers during the People’s Republic. It was arguably Jan Gross’s access to this source material in the late 1990s that enabled the Jedwabne debate and spurred further research into the August Decree files. Since then, these case files, colloquially known as sierpniówki, have become critical to the historical reconstruction of the so-called third phase of the Holocaust (or Judenjagd, “hunt for Jews”) following German ghetto-clearing operations in Poland, when some Jews managed to escape and go into hiding primarily in the countryside (e.g., Grabowski and Engelking 2022; Skibińska and Petelewicz 2007). Given the late access to this body of sources, however, the use of this trial material has often preceded a comprehensive legal and historical understanding surrounding the adjudication of collaboration in postwar Poland. The last two decades have seen to a handful of studies that consider various aspects of local anti-Jewish persecution and collaboration, including a historical overview (Żbikowski 2006, 258–264); whether the Jedwabne trial constituted a real, as opposed to a Stalinist trial (Rzepliński 2002); the ineffectiveness of the judicial process (Kornbluth 2013); motivations and defence strategies of defendants (Persak 2011; Skibińska 2011a; Skibińska 2011b); and perceptions of collaboration (McClintock 2019). Most recently, two monographs have sought to provide a broader regional synthesis of sentencing patterns and the transitional justice informing the prosecution of anti-Jewish crimes (Gieroń 2020; Kornbluth 2021).

The Polish case stood as something of an exception in terms of the question of “collaboration.” Unlike its Eastern European neighbors, the defeated Second Polish Republic was neither a satellite of the Third Reich nor a collaborating state. The “General Government for the Occupied Polish Territories,” as it was initially called, was a quasi-colonial territory administered from the top by Nazi officials, most importantly Governor Hans Frank, not without irony, one of the leading jurists of National Socialism. Due to concerns over its implications in international law, in July 1940, Frank dropped the words “for the Occupied Polish Territories” from its formal title (Winstone 2015, 29–30).With no institutional cooperation at the national level, the problem of putting on trial political and military elites that officially collaborated with the Third Reich did not exist, as was the case in other European countries (Connelly 2005; Paczkowski 2019, 145). The question of “collaboration” was generally raised in reference to members of co-opted or German-created low-level machinery of the occupation such as the Polish “Blue” Police (Polnische Polizei, PP), members of the rural administration (village heads, nightguards, hostages, foresters, gamekeepers, and the like), administrative agencies for Jews (Judenräte), and the ghetto police (Jüdischer Ordnungsdienst).

The key phrase of “assisting” or “acting in the interest of” (pójść na ręke) the German occupation authorities found in Article 1 of the August Decree was left deliberately vague to allow for a wide latitude in prosecuting broad categories of criminal behavior. All crimes adjudicated under Article 1 were punishable by death; judges would not have to differentiate between murder, manslaughter, or accessory to murder. The Decree was to be used in conjunction with the corresponding articles of the 1932 Polish Criminal Code. The Special Penal Courts, which operated from 1944 to 1946, were the most retributive expression of the August Decree, at times resembling martial courts. They were expected to work closely with the local branches of the Department of Public Security (Urząd Bezpieczeństwa, UB), a key instrument in the Soviet takeover. Much focus was placed on ethnic Germans (so-called Volksdeutsche), who had declared themselves to be of German ancestry under occupation. Most of the Special Penal Court trials ran concurrently with the NTN. After their conclusion, jurisdiction over August Decree cases was carried over to the District Courts. According to the most recent estimates, the People’s Republic held more than 32,000 trials for war crimes and collaboration under the special statute of the August Decree, with over 20,000 guilty verdicts issued, including 1835 death sentences, fewer than half of which were implemented (Kornbluth 2021, 7). Polish-on-Jewish crimes represented a small minority of the August Decree cases. According to Alina Skibińska’s survey of 72 courts in Poland, ethnic Poles stood accused of various crimes against Jews in approximately 7 % of all cases (Paczkowski 2019, 165, fn. 78).^[2] Approximately one third of the cases pertained to German or Austrian nationals or ethnic Germans.

The main issue that has divided historians is the question of the political nature of the August trials. Far more than the prosecution of Nazi German war criminals, the August Decree was used as an excuse to eliminate political opponents of the new regime. In October 1944, the Provisional Government issued a special decree calling “For the Protection of the State,” which made the decree applicable to members of the Home Army (Armia Krajowa, AK), the pro-London anti-Nazi and anti-Communist umbrella organization during the war (Finder and Prusin 2018, 20). Subsequently, these and other normative acts would be used to sentence thousands of real and potential opponents of the Communist regime (Kulesza and Rzepliński 2001). This produced a transparently absurd situation, in which leading members of the wartime Polish resistance to Nazism were incarcerated with senior Nazis, such as the emblematic case of Kazimierz Moczarski placed in a prison cell together with Jürgen Stroop (Moczarski 1981). The most infamous example of judicial murder on the basis of the August Decree is the case of August Emil Fieldorf, the Polish commander-in-chief of the Home Army after the failed Warsaw Uprising, who was tortured, sentenced to death as a “fascist-Hitlerite,” and executed in 1953 (Fijalkowki 2014). Not without reason, Polish society had grounds to be suspicious of the government’s crackdown on alleged collaborators. The August trials came to be largely viewed as political trials characterized by forced confessions motivated by the use of torture and all-pervasive terror, reflective of the broader Sovietization of Polish society (Birt 2019; Chodakiewicz 2004–2005).

Another factor that dogged Poland’s postwar reckoning with the Holocaust was a widespread perception of the “Jewish” nature of the Communist regime (Żydokomuna), due in part to the presence of a disproportionate number of Jews in the upper echelons of the Ministry of Public Security (Paczkowski 2003; Polonsky 2016). The role played by communists of Jewish origin in the new regime remains one of the most disputed issues in the historiography of the 1944–1956 period. For its part, the new Polish government was interested in gaining the favor of the not insignificant Jewish minority (between 210,000 and 240,000 people, according to various estimates), granting it significant autonomy and privileges relative to other ethnic groups, as embodied by the CKŻP (Grabski 2015, 36), in order to promote its image abroad as a democracy that protected minority rights and, in so doing, legitimize the new regime.

The work of Andrew Kornbluth, which delved into ministerial correspondence at the time, has unsettled most of the assumptions surrounding postwar retribution for collaboration. Where Finder and Prusin assume that trials of collaborators were “by and large show trials” (2018, 246), Kornbluth’s findings point in the opposite direction. In analyzing cases of Polish participation in the Holocaust, Kornbluth encountered no evidence of politically motivated prosecutions. Rather, even at the height of Polish Stalinism, the Communist regime faced a semi-independent judiciary that was formed by the deeply nationalistic legal milieu of the Second Republic, which successfully resisted becoming a tool of the regime. Contrary to received wisdom, the cases were not generally characterized by the use of physical coercion to fit a preconceived narrative, as was the case in military courts. Blatant stage management outside the military court system would only characterize the prosecution of high-profile figures of the anti-Communist underground in the early 1950s, and only in the “secret section” of the Warsaw city court (Kornbluth 2021, 132, 233). Even in the most draconian application of the decree, as manifested in the Special Penal Courts, the cases were “not scripted,” their outcomes “not predetermined,” and the process not steered in a “top-down effort” (Kornbluth 2021, 133). The courts were largely permitted to issue their own judgments, which yielded a high degree of variation in sentencing.

Jewish victims were generally peripheral to the postwar reckoning. The precious few Jewish survivors to appear in the trials generally faced a hostile environment with no guarantee of security. The judges adopted a highly restrictive interpretation of the August Decree, which minimized the culpability of the accused, resulting in low conviction rates and relatively light sentences. Given the association of the August trials with the period of violent Sovietization, the imperfect reckoning with the Holocaust that it represented was dismissed in its entirety as illegitimate and consigned to the dustbin of history. If anything, according to Kornbluth, the trials laid the foundations for a “denialist and exculpatory memory of collaboration by ethnic Poles in the Holocaust” (Kornbluth 2021, 274).

The question of Jewish collaboration, by contrast, appears to have been of little interest to the regime. Contrary to conventional wisdom, the topic was not a taboo in the first postwar decade. Among the thousands of trials of alleged Polish collaborators, only 50 Jews were tried for collaboration in Polish state courts (Żbikowski 2014). The issue was of far greater interest to the community of Polish Jewish survivors and their representative body. The acquittal of Michał Weichert, the director of the Jewish Social Self-Help (ŻSS) organization, who was sentenced to death for collaboration by the Jewish Combat Organization (ŻOB) during the war, before the Special Penal Court in Krakow prompted the leaders of the CKŻP to establish a Jewish citizens’ tribunal or honor court (Engel 1999). The lawyers of the CKŻP examined allegations against some 2000 suspected collaborators. Of the 175 files that were opened, 25 putative collaborators ultimately stood trial before the Civic Court (Sąd Społeczny) of the CKŻP, 18 were convicted, and seven acquitted; five putative Jewish collaborators stood trial in both a Polish state court and an honor court (Finder and Prusin 2007). High on the list were former Jewish policemen and alleged Gestapo informers. The first trial was held in November 1946, its defendant, Shepsl Rotholc, a rank-and-file policeman in the Warsaw ghetto, whose case set the moral standard by which future defendants would be judged (Finder 2006). The standard was that of the Warsaw ghetto Jewish underground, which, after the commencement of the massive ghetto-clearing operation of July 22, 1942, was regarded as the only legitimate authority of the Jewish community whose orders Jews were obligated to obey. Honor courts were also established by members of Polish Jewish community in DP camps of the German zones of occupation (Person 2015).

4 Conclusions

The current state of research on the prosecution of Nazi criminals and collaborators, certainly as embodied by the recent works by Finder and Prusin in addition to Kornbluth, points to two emerging stories of Polish judicial reckoning with the Holocaust “behind the Iron Curtain.” On the one hand, both accounts argue that postwar trials of crimes against Jews were not Stalinist-type show trials but were generally conducted in the spirit of the rule of law. On the other hand, Poland’s largely positive record of prosecuting Nazi criminals stands in contrast to the failures in prosecuting Polish grassroots perpetrators of anti-Jewish crimes. Where the trials of Nazi criminals went a long way in delivering some measure of justice and bridging the gap between Poles and Jews, the trials of suspected collaborators, with few surviving Jewish witnesses who could testify and a lenient approach toward defendants taken by judges, had largely sidelined the Holocaust and failed to produce a meaningful reckoning. One of the main challenges of future scholarship will be to bring these contrasting stories together in a synthesis. As empirical studies of individuals tried under the August Decree are currently limited to regional and case studies, it will be some time before we see a full account of postwar justice and the Holocaust in Poland.

It is worth noting that Operation Reinhard, the key Nazi killing program that consumed one third of Europe’s Holocaust victims and most of Polish Jewry in the General Government, remained marginal to the proceedings, with the majority of the SS and Ukrainians who had served in the death camps never brought to trial. Attempts to bring to justice the lower-level functionaries of the Operation Reinhard camps would continue across various West German courts from 1955 to 1966 (Bryant 2014).

The Second Polish Republic was divided between two occupiers, the German and the Soviet, but due to the establishment of the Communist regime, only Germany could be arraigned. What postwar retribution would have looked like under the aegis of the legitimate and sovereign Polish government after its return from exile in London can only be left to the historical imagination. It is worth remembering that Poland’s flawed reckoning with the Holocaust took place in the same Orwellian postwar milieu that disallowed bringing an indictment against Soviet perpetrators of the Katyń massacre of 1940, German perpetrators for the crushing of the Warsaw Uprising of 1944, particularly the Wola massacre (Grzebyk 2019), and Ukrainian nationalists (OUN-UPA) for the Volhynian Massacre of 1943–1945. The regime’s interest in prosecuting Nazi crimes would resurface again in the late 1950s and 1960s as a way to expose the failures of de-Nazification in the Federal Republic of Germany. But with the commencement of the “hot phase” of the Cold War on the international stage and the consolidation of one-party rule at home in the early 1950s, Nazi crimes had largely lost much of their ideological significance and public appeal.