25 November 2007

The European Arrest Warrant is being used in an unexpected way

An interesting story has been doing the rounds, picked up by several newspapers in Britain and abroad. It is also, I believe, exciting some interest in Poland for reasons I hope to discuss in what is likely to be a longish piece. I have a kind of a personal interest as I knew several of the players some years ago when I lived in Oxford.

First the facts as they are at present. The District Military Court in Warsaw has issued a European Arrest Warrant to extradite Helena Brus-Wolinska, the widow of a well-known Marxist economist Włodzimierz Brus, a professor, recently emeritus, at the University of Oxford on charges of falsifying evidence against General Fieldorf, one of the heroes of the Polish anti-Nazi resistance and a victim of the post-War Communist purges. Helena Wolinska was, at the time, a military prosecutor, allegedly responsible for the lengthy imprisonment, illegal by the supposed Polish code of laws of the period, of the general and a number of other fighters in the Armija Krajowa that is the Home Army, better known as the Polish Underground.

[The picture above is of Helena Wolinska in a major's uniform and of General Fieldorf's daughter in the early fifties.]

One of the victims was Władisław Bartoszewski, a survivor of Auschwitz, courageous anti-Nazi fighter in the Home Army, a man who helped Polish Jews to escape the Holocaust and sent messages to the West with information about the death camps, an honourable and highly regarded politician who held several important political positions in post-Communist Poland.

According to an article by Anne Applebaum, published when the story first emerged about ten years ago, Helena Brus, who claims that the continued attempts by the Polish government to put her on trial are politically motivated, which is probably true and anti-semitic, which is non-proven and irrelevant, could not recall who Bartoszewski might have been at the time.

Ms Applebaum’s article is very good but a quick summary of Mrs Brus’s life story here may well be helpful. The roots of the problem go back into that murky period during and after WWII that has left deep scars on East European psyche. As it happens, this is a subject that has been raised on the blog before.

Helena Danielak, as she was called in the first place, though she had already been married to Włodzimierz Brus, managed to escape from the Warsaw ghetto and, as she claims, from a train that was heading towards one of the death camps. She fled to the Soviet Union, became a member of the Communist Party and returned to join the Communist underground movement, whose aim, let us be clear, was to make sure that it would not be the nationalists who take power after the war.

It was inevitable that Jews in Eastern Europe (and even in Poland there were still some alive) should greet the Soviet army as their liberators, its non-role in the Warsaw uprising not being clearly perceived at the time.

In Budapest there is a plaque next to the central synagogue to commemorate the day in February 1945 when the Soviet tanks broke through the wall the Nazis (German but with help from the local ones) had built to create a ghetto.

This does not mean that all those Jews were Communists or even, necessarily, pro-Communists. Many East Europeans, Jewish and non-Jewish alike, were hoping that a new democratic order would be created in their countries as they recovered from the horrors of the previous years.

In Poland this hope was quashed almost immediately, in other countries after a couple of years. Helena Wolinska, the name under which she went in the underground and the one she retained afterwards, remained a Communist and became a military prosecutor.

According to Anne Applebaum she was also the “mistress of Franciszek Jozwiak, head of the new People's Militia and eventually to be both deputy prime minister and a Politburo member”, though I suspect that was a result rather than cause of her own rise in the hierarchy.

As military prosecutor she signed arrest warrants and ensured that people whom the Communist government called bandits because they fought for an independent Poland stayed in prison and went to their various punishments. For General Fieldorf that meant death by hanging after a show trial that lasted exactly one day in February 1953 after prolonged imprisonment and maltreatment.

At the same time Helena Wolinska met quite accidentally Włodzimierz Brus, who, also, had spent much of the war in the Soviet Union. As soon as they extricated themselves from their respective partners, legal or otherwise, they remarried. Their marriage lasted until his death in August of this year.

Włodzimierz Brus may not have been involved in the destruction of heroic fighters who presented an alternative to the new Polish system but he, too, did his bit for the latter. Soon after the war there were debates between Marxist and “bourgeois” economists in Poland. There are written accounts of these debates and even some transcripts that were published in various journals in Britain in the seventies but do not seem to be available on the net.

As his obituary in the Guardian puts it:

After the war, Brus headed the propaganda effort of the Polish Workers' party, the wartime successor to the Polish Communist party, which allied with the Polish Socialist party to win constitutional referenda in 1946 and elections in 1947. The following year, he was active in the union of the two groups as the Polish United Workers' party, which ruled Poland for the next 40 years.

The Guardian, however, does not write about the sheer nastiness of the debates. In fact, the obituary does not even mention them. Led by the young Brus the group of Marxist economists attacked the “bourgeois” economists personally, bullied and threatened them, destroying them intellectually and spiritually before the secret police could do so physically.

By 1956 Włodzimierz Brus had changed his opinions a little and started arguing for social market structures. Presumably he saw that pure socialism had been a disaster everywhere in Eastern Europe. Helena, on the other hand, was mildly criticized by a government commission for acting illegally during the Stalinist purge trials of the early fifties.

He became involved with some of the dissidents though he never abandoned Marxism fully, unlike his great friend, the philosopher Leszek Kołakowski. In 1968 there was another intra-party battle and this became a serious anti-Semitic attack on the Jewish members and officials.

Those who could, left the country and the Bruses together with their son came to Britain, first to Glasgow, then to Oxford in 1972. I met them there some years later and we became friends despite the age difference (it does not count for much in post-graduate Oxford colleges) though the story of Helena’s past was reasonably well known. One knows all sorts of people in life.

The Bruses fitted in well. His ardent Marxism had long ago transmogrified into a mild form of it that verged on social-democracy. His views fitted in with most of Oxford academia quite well. He and Lena, as she was known, full of Polish charm and hospitality, became well known and well liked.

Włodzimierz continued to be interested in Polish and other politics, supporting Solidarnosč and other Polish opposition groups, as long as they and their Western supporters were on the Left. Lena, on the other hand, tended to retreat with a headache if the discussions became too boisterous. It seems that she had already decided that she hated Poland as the country of ineradicable anti-semitism.

By the time Communism collapsed I had lost touch with them and so I do not know what their reaction was but I suspect it would have been mixed. Sadly, the third way of neither Communism nor capitalism had no place in Eastern Europe and neither politics nor economics went the way the Włodzimierz I knew would have liked.

Furthermore, they could not go back, as in the nineties the Polish authorities began their attempts to bring Lena back to stand trial. As Wikipedia puts it (she has a longer entry than he does, which is a rum turn up for the books):

The official charges against her were initiated by the Commission for Investigating Crimes against the Polish Nation. Wolińska is accused of being an "accessory to a court murder," classified as a Stalinist crime and a crime of genocide, and is punishable by up to ten years in prison.

Then and now Lena Brus has maintained that the motivating factor is anti-semitism and I was sorry to see at least one newspaper falling for that line. Quoting Jonathan Webber, whom I also knew at the time in Oxford, on matters of recent East European history is never wise and to go along with his analysis that this is all to do with the anti-semitism of many members of the Home Army is fatuous.

Undeniably there were people in the Home Army who were anti-Semitic and the stories of Jews helping the Soviet authorities to round up Poles were at least partly based on truth as were the stories of Poles helping the Nazis to round up Jews. It is also true that the Home Army helped Jews to escape before and after the Warsaw Ghetto uprising and sent urgent messages to the West about the death camps from 1942 onwards.

In any case, the crimes Helena Brus is being accused of were real and are not merely a figment of some anti-Semitic Pole’s imagination.

Two attempts to extradite her failed. The British authorities refused on humanitarian grounds, citing her age. All of which is very admirable but not very logical in the light of the shenanigans around the War Crimes Act of 1991 and the subsequent trial of the former Nazi criminal Anthony Sawoniuk.

The Bill was fraught with difficulties as it was creating retrospectively crimes to be tried in Britain though they were not committed in Britain. There was a great deal of opposition, much of which was dismissed as being anti-semitic, though it had more to do with worries about the undermining of certain basic precepts in English law. Those media organs like the Guardian, the Independent and the BBC who have been weeping crocodile tears over revenge being visited on an elderly lady in Oxford had completely different views on elderly gentlemen in various other places.

There was strong suspicion that behind the pressure that was being put on the government to pass the legislation lurked the KGB who were anxious to drive a wedge between anti-Soviet nationalist and anti-Soviet Jewish groups.

In the end it took so long to pass the Bill that the Soviet Union itself was well-nigh finished by the time Margaret Thatcher used the Parliament Act to over-rule the recalcitrant House of Lords.

Suspicions of KGB involvement strengthened when English lawyers travelled to Byelorussia (as it was then), Ukraine and the Baltic States to be presented with witnesses of miraculous memory and recognition powers and found that they could not bring their own interpreters or cross-examine those witnesses.

There was only one trial in Britain, that of Sawoniuk, allegedly because no other person on the list of war criminals had come to this country. He was tried and convicted in 1999 and died in Norwich prison in 2005 at the age of 84. No humanitarian grounds for him.

Why should there be, one might argue. What has age to do with the beastly crimes the man had committed? Still, there is a certain lack of consistency here. The Poles do not even want Britain to pass difficult legislation or undermine the English legal structure. They merely want to try Helena Brus as they have tried various others who had behaved in what most of us would call criminal manner during Poland’s Stalinist period.

Now the Polish authorities or, at least the District Military Court in Warsaw have decided on a different strategy and has invoked the European Arrest Warrant. The problem as I see it, having written about the EAW, is that it is a little unclear under which of the 32 categories Helena Wolinska’s alleged crimes are to be put. Here they are:

- participation in a criminal organisation,
- terrorism,
- trafficking in human beings,
- sexual exploitation of children and child pornography,
- illicit trafficking in narcotic drugs and psychotropic substances,
- illicit trafficking in weapons, munitions and explosives,
- corruption,
- fraud, including that affecting the
financial interests of the European Communities within the meaning of the Convention of 26 July 1995 on the protection of the European Communities' financial interests,
- laundering of the proceeds of crime,
- counterfeiting currency, including of the euro,
- computer-related crime,
- environmental crime, including illicit trafficking in endangered animal species and in endangered plant species and varieties,
- facilitation of unauthorised entry and residence,
- murder, grievous bodily injury,
- illicit trade in human organs and tissue,
- kidnapping, illegal restraint and hostage-taking,
- racism and xenophobia,
- organised or armed robbery,
- illicit trafficking in cultural goods, including antiques and works of art,
- swindling,
- racketeering and extortion,
- counterfeiting and piracy of products,
- forgery of administrative documents and trafficking therein,
- forgery of means of payment,
- illicit trafficking in hormonal substances and other growth promoters,
- illicit trafficking in nuclear or radioactive materials,
- trafficking in stolen vehicles,
- rape,
- arson,
- crimes within the jurisdiction of the International Criminal Court,
- unlawful seizure of aircraft/ships,
- sabotage

Of course, one could argue that the Communist military prosecutor’s office was a criminal organization but I can’t quite see the British authorities falling for that one. Conspiracy to murder? It’s possible. Does Helena Brus’s activity in the late forties and early fifties constitute crimes under the International Criminal Court, given that the ICC did not exist at the time?

This could be an interesting little problem, though I suspect that the British government will, once again, go for the humanitarian argument, for which there is provision in the European Arrest Warrant, to avoid all these discussions.

The question, I suppose, is whether this is quite what the European Arrest Warrant was intended for. Then again, what we are always told it was intended for – to make the fight against terrorism easier – is somewhat at variance with the crimes listed in it.

Another question is whether this is the best way for the East Europeans to confront the past. It’s all very well for people to sniff about political motivation and sneer at vengefulness among those ungrateful East Europeans who did not like the Communist system but as even Adam LeBor points out in this article if elderly Nazis are pursued why not elderly Communists.

It is true that the case against Helena Wolinska is being pushed by General Fieldorf’s daughter and her family but one can understand the desire to see justice being meted out to those who had destroyed her father, the great war hero. Not many of them are alive.

Besides, the years after the war when the Communists were accumulating power, in preparation for a final coup and the destruction of the anti-Nazi non-Communist resistance remains troublesome in other countries as well as Poland. Not only were they physically destroyed but their role was completely re-written in textbooks. A real investigation of what happened is essential if these countries are to face the future with any real confidence.

But would that investigation be best served by the trial of an old woman, however bad the crimes are of which she is being accused? Gerald Warner of The Scotsman thinks so. I am not sure I agree with him though I think he is certainly right in finding Helena Wolinska’s use of her Jewishness to try to escape punishment distasteful. He, however, sees it as a test case for Britain to abandon the West’s double standards over Nazism and Communism.

For too long, a double standard has rightly demonised Nazism, but wrongly humanised Communism. The nauseating cult of 'Uncle' Joe Stalin was part of it; so were the Cambridge traitors. On any festive occasion in pre-1989 Moscow, the podium at Lenin's tomb was creaking beneath the weight of British trades unionists and fellow travellers. Even today, students who would never dream of wearing Nazi insignia will cheerfully sport red stars, hammers and sickles and other Stalinist kitsch. The Nazis murdered 20 million souls, the Reds 100 million. Does a nine-figure score for genocide transport an ideology beyond the gravitational pull of moral censure?

Can one argue with that? The trouble is that I do not think the case of Helena Brus-Wolinska will change much as far as the double standard is concerned especially if she is made out to be a victim of political forces and anti-semitism. The fight for that will continue for a while longer.