European Foreign Affairs qr. 4. 2021/ no. 19

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qr. 4. 2021 | no. 19 ISSN 2720-183X

NATO | Europe | Security

Editorial

Dear Readers,

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e are currently witnessing major changes in the international security system. These are taking place primarily in Europe and Asia, however, while they are happening on one continent, they exert a profound impact on the situation in the rest of the globe. The shift in the centre of gravity of the US policy towards Asia is already echoing in Europe, especially among the countries on the eastern flank of the North Atlantic Alliance. Washington is forced to increase its efforts focused on maintaining its own influence in the Indo-Pacific region, which further fuels its rivalry with Beijing. This situation is being exploited by the Russian Federation, which, as early as 2008, began to pursue a policy aimed at achieving its own objectives through armed aggression. Georgia was the first target. The President of the Republic of Poland, Lech Kaczyński, stood up in defence of this country. In the first days of the war, he arrived in Tbilisi together with a delegation of Estonian, Lithuanian, Latvian and Ukrainian leaders to emphasise support and solidarity with the Georgian people. Lech Kaczyński understood that the security of Poland and the region depended on ensuring the sovereignty of the states that emerged after the break-up of the USSR. Today, Georgia is a free and democratic country and an active member of the Eastern Partnership, a state associated with the European Union and cooperating closely with NATO. Nevertheless, Russia’s aggressive policy has continued. Since 2014, we have witnessed a war in Ukraine that could escalate at any time due to the ongoing concentration of Russian troops on the Russia-Ukraine border. However, Moscow’s expansive policy began much earlier, albeit using different tools, with the 2007 cyber-attack on Estonia being a perfect example. Nowadays, hybrid actions are carried out almost on a daily basis, and the artificially created migration crisis on the Poland-Belarus border is just one of many actions (though certainly one of the most dangerous among those) undertaken by Russia, in this case in cooperation with Belarus.

The North Atlantic Alliance is trying to respond to the contemporary challenges in the international security system.

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European Foreign Affairs © Copyright 2021 Efa Poland Warsaw, Poland Editor-in-Chief Adrian Kolano

adrian.kolano@europeanforeignaffairs.com

Translations Aleksandra Iskra Aleksandra Tomaszewska DTP and Printing www.sindruk.pl

Publisher

Efa Poland Sp. z o.o.

S. Noakowskiego 24, 00-668 Warsaw, Poland europeanforeignaffairs.com contact:

editor@europeanforeignaffairs.com

President Natalia Malinowska The opinions given and the positions held in the materials published in European Foreign Affairs solely reflect the views of the authors and cannot be equated with the official position of the Ministry of Foreign Affairs of the Republic of Poland and Ministry of Culture and National Heritage of the Republic of Poland.

ISSN 2720-183X

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NATO itself, much like modern threats, is also evolving. So are its actions and the means to achieve its goals. This is reflected in the NATO 2030 agenda, which sets out the main directions for the development of a new strategy. Secretary General Jens Stoltenberg launched a specific effort to strengthen NATO’s political coherence and consultation mechanisms as early as 2019. The NATO 2030 process has led to the formulation of a clear agenda, proving that it is possible to build consensus within the Alliance, which is de facto one of the organisation’s greatest challenges.

To get a better understanding of the ongoing changes and new threats, the core of this issue of European Foreign Affairs is devoted to NATO and security issues in Europe, with a special focus on the eastern flank of the Alliance. Our authors present the most serious challenges that NATO is still facing, outline possible scenarios for the development of the situation in Europe and offer their point of view on solving the most acute security problems, drawing on their many years of experience in the field of security. Moreover, in an interview with Stefan Gullgren, Ambassador of Sweden to Poland, you will find answers to questions concerning Polish-Swedish relations, the development of the energy sector, as well as Stockholm’s activities within the European Union and in cooperation with NATO. In this issue, you will also read an article describing the threats to the critical infrastructure, delve into the forgotten topic of Polish-Moldovan history and relations, learn about complex issues related to the rule of law in Germany and Poland, or once again embark on a journey through the 20th century Europe with Marshal Józef Piłsudski. For those hungry for visual thrills, at the end of this issue we have included a photo report with extraordinary photographs taken

by Radek von Hirschberg during this year’s Independence March in Warsaw.

I wish you a pleasant read!

With my sincere appreciation,

Adrian Kolano

Editor-in-Chief European Foreign Affairs

European Foreign Affairs

Contents

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76

104

Interview

LAW

history

Adrian Kolano H.E. Stefan Gullgren

Michał Sopiński

Sławomir Moćkun

The Future of PolishSwedish Relations

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The Concept of the “Rule of Law” – Between the Need of Interpretation and the Lure of Instrumentalisation

Interview Adrian Kolano H.E. Stefan Gullgren The Future of Polish-Swedish Relations

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Interview Adrian Kolano Wojciech Lorenz NATO in the Contemporary International Security Environment

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European Union Przemysław Żurawski vel Grajewski EU Strategic Autonomy and the Interests of NATO's Eastern Flank.

A View from Poland

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Security Beata Górka-Winter Poland and the Baltic Sea Region in the New NATO Strategic Concept

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Security Grzegorz Kuczyński Russian Threat to the Eastern Flank of NATO

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Security Mikołaj Rogalewicz Russian Anti-NATO Disinformation During the COVID-19 Pandemic

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Cybersecurity Wiktor Sędkowski Security of Critical Infrastructure

Józef Piłsudski's Exile, Imprisonment, Missions, and Peregrinations All Over the World (Part IV – The Last)

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International Relations Daniel Pogorzelski From Sobieski to Sienkiewicz: Moldova Cannot Be Free Without Resurrecting Its Alliance with Poland

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Law Michał Sopiński The Concept of the “Rule of Law” – Between the Need of Interpretation and the Lure of Instrumentalisation

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Law Magdalena Bainczyk German Problems with the Rule of Law

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Law Marcin Romanowski Jarosław Szymanek Establishing the Rule of Law in Poland

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History Sławomir Moćkun Józef Piłsudski's Exile, Imprisonment, Missions, and Peregrinations All Over the World (Part IV – The Last)

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Special Reportage Radek von Hirschberg The (Real) Faces of the Independence Day March

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The Future of Polish-Swedish Relations

Adrian Kolano’s Interview with His Excellency Stefan Gullgren, Ambassador Extraordinary and Plenipotentiary of the Kingdom of Sweden to the Republic of Poland

Over the past few years, relations between Poland and Sweden have varied and sometimes revolved around topics on which we have not always agreed. However, and more importantly, both on the bilateral level and as members of international organizations, we have common goals that will be much easier to achieve together. We share history, geographical neighborhood, and economic ties. We also have common challenges such as disinformation or, in general, hybrid activities which we have an interest in addressing together.

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The Future of Polish-Swedish Relations

First of all, thank you very much for taking interest in Sweden’s policy, widely speaking, and in particular our bilateral relations with Poland, which are very strong and productive. Poland is a strategic partner for Sweden and I think we are a strategic partner for Poland. We have used this term to describe our relationship already for many years, and I think this concept captures both the level of ambition and the quality of our relationship.

We have certain permanent interests that we are working on jointly and it is a partnership, which means that we are working together, as equals, in addressing the challenges that we have identified.

Let me first say a few words about the domains in which we already cooperate very closely, that is on security policy, especially the security situation in this part of Europe that both Sweden and Poland are part of. Geography is an essential factor in security policy. I think we share the assessment of the European security situation, the fact that it has deteriorated, the conclusion why it has deteriorated, and what we need to do to address its challenges. This can be done by working together, both bilaterally, but also in the framework of the European Union, through developing the EU’s foreign and security policy.

By extension, we also work very closely on issues related to the EU’s eastern neighbourhood, also because we are its neighbors. We are working closely on the Eastern Partnership that was launched once upon a time at the initiative of

© EFA

Let me start with the bilateral relations between Poland and Sweden. What, in your opinion, are the primary issues on which we need to continue to work and cooperate to solve problems in the constantly changing international arena today?

Editor-in-Chief of EFA Adrian Kolano (R) and His Excellency Stefan Gullgren, Ambassador Extraordinary and Plenipotentiary of the Kingdom of Sweden to the Republic of Poland (L).

Sweden and Poland. It now plays the role of an established EU policy for the eastern neighborhood, and we are working closely on developing this format and cooperating with the partner countries. For example, support for Ukraine, Ukrainian reforms, its sovereignty, and territorial integrity.

One area where we had somewhat different points of view a few years ago, but where we have come closer together is climate policy. In Sweden, we have been working for many years to try to use energy more efficiently, to move away from fossil fuels to more renewable sources, work on waste management, and so on. I think Poland is now facing a somewhat similar challenge that we faced 40–50 years ago 4/2021

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There is now a strong dynamic in the energy transformation in Poland, moving from coal to renewable energy resources. I think this is a very interesting area for cooperation, both bilaterally and collectively in the EU. when we were dependent on imported oil. Poland is dependent on coal. It is extracted, of course, in Poland, but it is an increasingly expensive energy source that makes Poland vulnerable to fluctuations in the energy market, and expensive energy is not going to help maintain the competitiveness of the Polish economy.

Poland is, of course, part of the EU, and we have set very ambitious targets together on where we should be in 2030, 2040, 2050. I noticed that there is now a strong dynamic in the energy transformation in Poland, moving from coal to renewable energy resources. I think this is a very interesting area for cooperation, both bilaterally and collectively in the EU, where, I think, we have many things to do together. It is an area where we came from different directions or different perspectives, but we are now converging, and I think that is a very promising field of cooperation.

Sweden is one of the best countries in the world in managing its energy sector for several reasons, some

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of which you have already mentioned. On what levels do you think we should straighten the cooperation between Poland and Sweden in this sector? Should the institutions play the main role, or is it just a governmental issue?

I think it should occur on several levels and in several ways. One of them is, as I said, the dialogue between governments and the mutual sharing of experience on how we can shape successful energy and climate policy. Another matter is involving the business community as such. In Sweden, we usually talk about a partnership between four partners: the government or public sector, the business sector, academia, and civil society. If they work together, we can get results quickly, efficiently, and well-anchored in society by reaching a broad agreement on the objectives and how to get there. Energy policy is by definition long-term because if you want to provide incentives for the use of certain energy sources and disincentives for the use of other energy sources, you need to have a stable policy framework so that the society and the business community can adjust to those objectives.

It takes time to invest in energy, it also requires a lot of money, and in order for it to be economically viable, investors need to know that these are the rules, and they will last for a long time. For example, we have a tradition in Sweden to try to reach political agreement across party lines in our parliament on energy policy so that it is stable for more than just one term of parliament. I am not saying that Poland needs to do the same, but I think strategic thinking is something that we can discuss mutually. The way we have worked with the business community might also be of interest to Poland, because in my humble opinion, this community is to a large extent the driving force behind the energy transformation due to rising costs, and

The Future of Polish-Swedish Relations

Polish President Andrzej Duda at the inauguration of the Polish-Swedish seminar "Innovation: A key to future growth.

Polish and Swedish experience". Stockholm, Sweden, November 30, 2016.

I think the companies can be very useful.

There are many Swedish companies in Poland, they have been here for a long time, so they are also Polish companies.

They produce goods and services here, they develop new solutions.

Your Excellency, you mentioned that the main direction of cooperation is possible within the framework of international organizations. I would like to mention the Three Seas Initiative (3SI), which is the forum of twelve states.

Countries outside the 3SI look for opportunities to cooperate with the initiative, especially economically. What is the Swedish approach to this format?

I think it would be fair to say that we follow it with interest because, as we understand it, the purpose of the initiative is to improve the infrastructure, widely speaking, in the eastern part of the EU. In

© PAP/Jacek Turczyk

In Sweden, we usually talk about a partnership between four partners: the government or public sector, the business sector, academia, and civil society.

If they work together, we can get results quickly, efficiently, and wellanchored in society. addition to infrastructure, the other two levels of cooperation between 3SI countries are cybersecurity and the energy sector.

And they are, of course, linked. The energy sector requires the infrastructure system, which also needs to be properly 4/2021

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Interview secured. So, I think, as an initiative aimed at improving both traditional and multidimensional infrastructure in the eastern part of the European Union, it should be welcomed because it would make the internal market work more efficiently and benefit us as well. We are an exporting country like Poland, so the infrastructure is required for the transport of our goods to be carried out efficiently.

What we hope is that this initiative reinforces the whole EU and becomes an example of how a few countries can work together to strengthen everyone. I know that in the public debate, there have been questions about whether this is an attempt to create a subgroup of member states in the EU. I don’t see it that way. I think it is natural that countries with more or less the same challenges when it comes to infrastructure and other areas you have mentioned cooperate to try to address them. So we are following it with interest, and I think there are ways we can certainly benefit from what is being done.

How do you assess the activities of non-governmental institutions of the Baltic Sea basin?

By definition, since they are nongovernmental, they do not operate under the direction of governments, and that is the way it should be. However, we have special programs, for example, on cooperation between NGOs in the Baltic Sea region, including Poland. We offer such grants through the Swedish Institute, and they can be small projects or larger projects. We also offer scholarships for those who want to study in neighboring countries. Again, we believe that it is essential for any policy area to have close cooperation between the government, the business community, academia, and civil society. If there is no civil society involved, you do not get the initiatives anchored so that they can be sustainable, that they can last and develop. You also do not properly 10

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Aerial view of Lillgrund Wind Farm.

use all the resources of society because the public sector is a part of society, but it is not the society, which also includes private actors. NGOs can be anything from small groups with one or two priorities to larger organizations. It does not even have to be organized – people-to-people contacts, in general, are what forms the basis of our international relationships, especially between neighboring countries. We have so many contacts between Sweden and Poland that it would be wrong not to take them into account and to see them as part of our bilateral relations. I would even say that they form their core. In Sweden, there are more than 140 thousand people with Polish roots and quite a few Swedes in Poland with Swedish roots. The contacts between them and what they represent in terms of exchanges between our countries are a tremendous advantage and asset. And I think it is similar between other countries in the region, so they should definitely be part of it. We should

The Future of Polish-Swedish Relations

© Tomasz Sienicki

obviously, on the government side, do what we can to support them, but it goes without saying that it is not our role to give direction – this is by definition an area where nongovernmental organizations should remain nongovernmental.

I would like to come back to the issue of the European Union and Sweden. What are the Swedish goals and its main challenges within the European Union? Do you think that the reactions of Sweden and of the entire EU to Russia’s actions on NATO’s eastern flank (for example, the war in Donbas, the annexation of Crimea, the situation in Belarus) were sufficient?

Sweden became a member of the European Union in January 1995 and since then we have been working to the best of our ability to strengthen it. We benefit from a strong

EU and a powerful, well-functioning internal market. We also want to strengthen the competitiveness of the EU in the global economy, because that is where the real competition takes place and will take place in the coming decades, not within the EU but between the EU and the rest of the world. And I stress competition here because competition for goods and services strengthens us – this is how we become better at what we do. It is a traditional Swedish priority to be open toward the rest of the world; to make sure that we intervene as little as possible in our trade relations.

Protectionism is going to lead to worse products at higher prices, all experience proves that. And it is not only because we are a small country, dependent on exports; it is actually the way we think it works, both within countries and between them.

Another important priority, which unfortunately has become more topical in recent years, is the need to protect 4/2021

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There should also be instruments supporting the reforms in Ukraine, which we also tried to do, and I think we worked very well together with Poland. the basic values of the EU, as outlined in Article 2 of the Treaty on European Union. Democracy, respect for human rights, and the rule of law, these values constitute the core of the EU; this is what this entire project is all about and what binds us together. In addition to that, it has a very important practical function.

If the institutions in EU member states would not function under these principles, such as independent courts, then the internal market would not work, as it depends on our mutual recognition and trust in these institutions. That is why we have to be very vigilant when it comes to developments that put the functioning of these institutions into question. We must make sure that the internal market is not weakened. I would even argue that this is what makes the EU strong in global competition – we have strong institutions that are trusted not only by our own societies, but by other societies as well.

This is the overall perspective, and you can also see that people’s support for Sweden’s membership in the EU has increased since we became its member.

We had a referendum in 1994, when a majority voted in favor of membership, and a referendum in 2003 on introduction of the euro, where the majority said ‘no’.

Some interpreted that as a referendum on the EU, but according to opinion polls conducted, there are now well over 12

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60% of the Swedish people who think it is a good thing that we are a member of the EU. Therefore, our membership has strengthened the belief in the EU as a project.

When it comes to the other part of the question, I think we have been more successful than many might have thought, keeping the EU united in its policy in reaction to Russia’s aggression in Ukraine, the illegal annexation of Crimea, the aggression in eastern Ukraine and Donbas. Some might have thought that we would not be able to act united behind a policy, but we did. We had to impose sanctions because that was the instrument available. It is very unfortunate, but it is the reaction we had to take and the sanctions should be in place for as long as the reasons we introduced them are still there. That is our position. Sanctions are not a policy, they are an instrument of policy, and the overall policy is to ensure that the object of aggression, in this case Ukraine, can remain a sovereign country with its territorial integrity respected and free to make the policy choices it wants for itself, whether concerning its economy or security policy. In addition to the sanctions, there should also be instruments supporting the reforms in Ukraine, which we also tried to do, and I think we worked very well together with Poland, both in specific projects, for example, on the decentralization reform in Ukraine, but also to keep the EU united on the support for the Ukrainian reforms.

Ultimately, of course, Ukraine has to do the hard work itself. So, as long as Ukraine is eager to pursue these reforms, the EU should be ready to support it.

Have we been successful? Well, that depends, of course, on how you look at it.

It is a fact that the illegal annexation of Crimea has not yet been lifted. I would not say that is due to the lack of EU efforts as we have done more than some might have

The Future of Polish-Swedish Relations thought, and probably more than Russia initially expected. We have to be persistent and show resolve to pursue this policy for as long as necessary.

In the last question, I would like to delve even deeper into the topic of Sweden and NATO. In what direction will relations and cooperation between Sweden and NATO head and should head in the near future?

Well, as you know, Sweden is not a member of any military alliance and that has been Sweden’s security policy for more than 200 years. And this remains our policy. We are a member of a political union, the European Union, and have solidarity commitments when other member states are affected. We have also declared unilaterally that we will not remain passive if another EU member state or Nordic country is attacked or affected by some natural disaster. We expect the same in return if we were unfortunate enough to be in such a situation.

Having said that, we have developed a very close relationship with NATO and with individual NATO member states.

With NATO, we are part of Enhanced Opportunities partnership. We think that it is working well, our impression is that NATO also thinks that it is beneficial for the alliance, so we would be happy to continue to develop it in the areas of mutual interest. In addition, we have developed bilateral cooperation with NATO member states, including Poland, and I think there is potential for these relationships to deepen. Outside this framework, we have developed very close cooperation with Finland, which is not a member of NATO either, but has a very close relationship with it, and this web of cooperation arrangements is part of the way we have responded to the deteriorating security situation in our part of Europe.

From 2015 to 2025, defense expenditures will increase by almost 100%. This is our conclusion from the situation in this part of Europe: we must increase the size and quality of the armed forces.

The other way we respond is by investing heavily in our own defense capabilities.

We are now in the process of making the biggest increase in defense expenditure since the 1950s. From 2015 to 2025, defense expenditures will increase by almost 100%. This is our conclusion from the situation in this part of Europe: we must increase the size and quality of the armed forces. We are reopening five regiments and one air wing; two or three of them have already been reopened during the last months, and the process will be completed next year.

By increasing the size of the armed forces, we can take responsibility for the security in our own country, and if we are stronger, we can also provide security for the wide region and become an even more relevant partner for those with whom we have cooperation arrangements. So, to try to answer your question, we have the frameworks, we are working within them to get the results that we expect and that our partners expect, and I think there is still room for increasing and deepening this cooperation to our mutual benefit.

Thank you for the conversation.

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NATO in the Contemporary International Security Environment

Adrian Kolano’s Interview with Wojciech Lorenz

We are currently witnessing dramatic changes in the international security system, relatively stable until recently. The war in Georgia (2008), Ukraine (2014) or Nagorno-Karabakh (2020), the dynamic growth of China’s power, which is followed by a redirection of the main focus of American politics towards Asia and the Pacific, as well as the aggressive policy combined with the comprehensive modernisation of the armed forces of the Russian Federation are just a few examples of the rate and scale of the observed transformations in the international system. Is NATO ready to meet these challenges?

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Let us start with the international situation, which, as we know, may change almost overnight. The North Atlantic Treaty Organization is evolving too, so are its actions and the means to achieve its objectives. How does the NATO 2030 agenda, which defines the main directions of work on the new strategy, help the North Atlantic Alliance respond effectively to the contemporary challenges?

Firstly, we must begin with what you have described as contemporary challenges.

The growing threat from Russia has been evident for several years now – at least since the annexation of Crimea, and even earlier from the perspective of Poland and countries on the eastern flank. For our region, the alarm bell went off with the Russian aggression against Georgia in 2008, although hybrid and cyberwarfare operations were executed before, e.g. the attack on Estonia in 2007. Basically, we have known since the mid-1990s that Russia was against NATO enlargement to the east so it resorted to various kinds of pressure, event threats. President Boris Yeltsin spoke of a “cold peace”, which was a direct reference to a possible new Cold War in case Russian interests were not consulted and the North Atlantic Alliance expanded.

Of course, the United States decided that NATO should expand eastwards, as it was the most strategically sensible way to stabilise Europe – not just Central and Eastern Europe, but entire Europe after the collapse of the Soviet Union and the reunification of Germany. NATO expanded, Russia was unable to stop this process, but after President Putin came to power, it began to increase the political and military pressure on NATO and its border states. What I mean here are both propaganda efforts and

© EFA

NATO in the Contemporary International Security Environment

Wojciech Lorenz, Ph.D. (L) and Editor-in-Chief of EFA Adrian Kolano (R).

enhanced cyberwarfare operations, attempts to influence political processes, manipulation of the electoral process in NATO member states – everything that we describe as hybrid actions below the threshold of open warfare, including accelerated modernisation of the armed forces, changes to the doctrine and clearly aggressive manoeuvres.

Taking the picture as a whole, it is clear that Russia is increasing its capacity for military conflict with NATO and implies to the North Atlantic Alliance that if it occurred, the risk of Russia using nuclear weapons (among other things) would grow. Its strategic objectives are therefore pretty clear – to prevent further enlargement of NATO to the east, especially towards Ukraine and Georgia, but also to maintain a buffer zone on the territory of the new member states of the eastern flank, former satellite states of the Soviet Union. In such a zone, Russia would have a military advantage, which it could turn into political and military pressure, blackmailing, and recourse to the threat of force. By manipulating the fears in those countries, Russia could undermine democracy and influence political divisions.

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NATO Secretary General Jens Stoltenberg (L) and North Macedonia Prime Minister Zoran Zaev (R) at a press conference in Skopje, North Macedonia, June 3, 2019. North Macedonia was the most recent country to join the Alliance.

From the beginning of its membership in the Alliance, Poland has appealed to NATO to maintain the collective defence capability or actually adapt it to NATO’s enlargement to the east. We need to bear in mind that the collective defence mechanisms that were created for the Cold War, such as commands, adequately armed and deployed forces, manoeuvres and plans, have been not later fully adapted to the Alliance’s new priorities. NATO had to focus not only on defence and deterrence but also on conducting missions in response to crises.

After the 9/11 attacks and the involvement in Afghanistan, this actually became a priority. At the same time, resources were too scarce to ensure the ability to simultaneously defend its own territory and engage in crisis response missions, as the NATO’s ambitions were. After the 16

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© PAP/Georgi Licovski

allies sent 50,000 troops from Europe to Afghanistan, they actually had no potential necessary to defend their own territory. It was not until 2014 that NATO gradually began to adapt to the aggressive Russian policy; it was no longer a secret that Russia was ready to use force, even to annex the territory of a country in its neighbourhood. But also this turning point – one in which the North Atlantic Alliance decided to gradually strengthen its defence and deterrence credibility – involves a process spread over years, just like during the Cold War. Let me remind you that we now have as many as 30 countries in NATO, so these are not decisions to be pushed through overnight or from one week to another.

As long as the alliance was engaged in Afghanistan, it was hard to convince the

NATO in the Contemporary International Security Environment allies to start working on a new strategic concept. But it was clear that it was high time to do so. The strategies of the North Atlantic Alliance are updated on average every ten years, and the previous one was adopted in 2010. Since then, the strategic reality has changed. Russia has become a threat to NATO. The USA is beginning to see China as the greatest threat in the long run. At the 2019 NATO summit, the member states asked the Secretary General to start a political process to strengthen NATO’s political cohesion and consultation mechanisms. It was not a decision to start work on a new strategy, but Secretary General Jens Stoltenberg, a flesh-and-blood politician, has decided to use this process to show that it was possible to settle a strategy without being divisive and that common ground of compromise could be found.

And this brings us to the heart of the matter – the NATO 2030 process, initiated

by Stoltenberg. He set up various expert groups, and they produced reports, based on which he drew up a clear agenda, proving that it was possible to build consensus within the Alliance.

From my perspective, the main component of this consensus is the strengthening of defence and deterrence capability – NATO will return to its primary function. The Alliance will, of course, still have to carry out all these crisis responses and cooperative security missions. In the current reality, Russia is not the Soviet Union, threatening to start a massive armoured assault on half of Europe as it did during the Cold War. Thus, different perceptions of threat may mean that concentrating on the Russian threat only would make the alliance less relevant to the security of the countries further in the west. It is therefore important for NATO to continue these various types of missions, but also for the member states to provide the necessary resources for defence and deterrence missions, which they have not done so far.

The second component involves the acceptance of and adaptation to the fact that it is China that challenges the United States and, in some areas, the whole Alliance. It will be harder to find balance here, but everyone agrees that NATO does not need to send its ships to the South China Sea. China generates all sorts of challenges through its actions in cyberspace and its policy in space, where it can neutralise the satellite systems of NATO member states, on which the ability to carry out the military missions depends. It is also necessary to strengthen the resilience, including cyberspace and the protection of critical infrastructure, over which the Chinese are also trying to gain control. Resilience is also crucial for the allies to be able to resist threats below the threshold of war from Russia or to maintain the will to fight in the times of armed conflict. This is another part of the agenda to be treated as a foundation, a starting point for negotiations on NATO’s new Strategic Concept to be adopted at the Madrid Summit next year.

NATO is expanding to include more countries, now primarily in the Balkans. I mean mainly Montenegro in 2017 and the accession of North Macedonia in 2020. What are the prospects for further enlargement of the eastern and southern flanks, involving countries like Bosnia and Herzegovina, but also Ukraine? How is NATO engaged in the conflict of Ukraine with the Russian Federation, and what else can the alliance do to help Kyiv?

We must remember that the possibility of NATO enlargement has been enshrined in the North Atlantic Treaty. Since 1949, when the Treaty was signed and the Alliance was established, we have had three rounds of enlargement during the Cold War and five rounds after it ended.

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The Alliance shows that there are no new Cold War divisions or Iron Curtains and that any Euro-Atlantic country that meets the relevant standards can become a member.

After the end of the Cold War, this “opendoor policy” became a hallmark of the Alliance and a vital part of building a new European security architecture. From the perspective of Russia, of course, it was something very negative, but for Poland, the Baltic States and beyond, it was a policy with two strategically important dimensions.

One, which is of great importance, is the psychological and political dimension.

The Alliance shows that there are no new Cold War divisions or Iron Curtains and that any Euro-Atlantic country that meets the relevant standards can become a member. This signal makes it hard to say that anyone has been abandoned or pushed into Russia’s sphere of influence – such a policy shows that at the level of the entire Alliance, there is no agreement on defining new spheres of influence. So even if Georgia and Ukraine recognise the reality that consensus on their membership will be difficult to achieve within NATO for various reasons, they can communicate to their societies that they still have the option. This is the window that Poland, Romania and the Baltic States have used. Admittedly, this window has now been a bit narrower due to Russia’s very aggressive policy, but this does not mean that they have been abandoned. This is extremely important.

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Another issue, however, is of the hard military reality. The North Atlantic Alliance has even stipulated that any state which meets the relevant standards in the Euro-Atlantic area may become a member of the Alliance, but must contribute to the improvement of NATO’s security and not its reduction. At the time of the discussion on the accession of Poland, Czech Republic and Hungary or even later, Russia did not pose such a direct threat. Therefore, the conditions for NATO enlargement could be worded in a way that ignored the arguments of the military commanders who said: “Listen, Poland does not meet these conditions. Look, they have obsolete postSoviet equipment, if we had to defend them... it is not realistic at the moment.”

The politicians replied: “Well, let’s adjust these conditions to the current political reality. Russia is not a threat, we treat Moscow as a partner, let us give them some time to adjust their potential.” This enlargement was therefore a political decision. Today, however, the military arguments must be taken very seriously – we are demanding this ourselves, after all – to indicate hard-headedly that Russia is a threat, and to plan the Member States’ defence capabilities based on this threat.

Thus, we continue to support this opendoor policy for strategic purposes, but anyone who knows anything about the real world, also knows that expansion into Ukraine or Georgia would have to be supported with a credible capability to defend those countries.

In practical terms it is possible that NATO admits new members from the Balkans when they are ready to join. In terms of Georgia and Ukraine, Poland fights to defend, among other things, the “open door policy” because experts from some states already suggest that this policy should be abandoned: “Russia will calm down, the problem will be solved and we all will live happily ever after.” However,

NATO in the Contemporary International Security Environment

The US President Donald Trump among European leaders and the NATO Secretary General during the 2019 NATO Summit in London, December 4, 2019.

it must be clearly stated that this would mean defining a new Russian sphere of influence – with Poland, the Baltic states and other eastern flank states as the disputed territory. Russia would aim to establish a new buffer area there, and the Alliance would have a limited capacity for collective defence. Moreover, the entire attention, the whole political and propagandistic potential to affect NATO would be redirected to our region. Thus, it is our vested interest to sustain the “open door policy” and maintain close relations with Georgia and Ukraine as NATO partner states. We must also remember that Ukraine was attacked when it was de facto a neutral country. It gave up its plans to join NATO. Even the EU has indicated that its association agreement with Ukraine does not offer membership prospects. It is clear that NATO enlargement is only a pretext for Russia.

Moscow would try to take control over its neighbourhood anyway.

© EPA/Peter Nicholls

Concerning the second part of your question – the North Atlantic Alliance, thanks to its treating these countries as partners who require support in the face of Russian aggression, is launching various support instruments. There are at least several funds dedicated to financing different areas of cooperation in the training of Ukrainian and Georgian troops. Georgia has quite an extensive support package, but to be honest, in such practical terms, the Alliance does not provide any massive aid. The US bilateral support to Ukraine has amounted to about $2.5 billion over the past few years.

Meanwhile, the support in NATO, within the framework of funds to finance various areas of cooperation with Ukraine, is about $40 million. It is, therefore, rather political and psychological support, while practical assistance is transferred to the bilateral level. This is where those countries that genuinely believe that defending the independence and 4/2021

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Interview sovereignty of Ukraine is a vital interest can take their stand. Including Poland.

We are witnessing the redirection of the political vector of the USA. As we have seen, Donald Trump during his presidency did not avoid pushing other NATO members e.g. to increase their expenditure on defence.

What may we expect from the new President Joe Biden concerning the US approach to the North Atlantic Alliance?

The pressure exerted by Trump’s administration was very strong indeed, but it was nothing unusual. We need to bear in mind that during the entire Cold War period, the USA accused its NATO allies of not spending enough on defence. Actually, the Alliance was then hostage to its own nuclear strategy. Except for the Federal Republic of Germany, which set up 12 divisions as the most exposed state, all other member states were looking for excuses not to invest in such conventional power. This resulted in a gamut of problems – lack of conventional potential entailed the risk of using nuclear arms in case of conflict. However, some states indicated that if the conventional potential is too strong, it could reduce the credibility of nuclear deterrence – the Soviet Union might think it was safe to attack as the nuclear weapon would not be used anyway. It was an insolvable dilemma, causing constant tension within the Transatlantic relations.

After the end of the Cold War, after the first few or so years, NATO had to adapt to the new realities, change its strategy, broaden its ability to strengthen its security to include crisis response.

When the need to use these allied forces in practice finally arose, it was clear that the European countries did not have the potential. They began to withdraw the 20

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obsolete equipment, but investment in the new potential was insufficient. NATO’s intervention in Libya clearly demonstrated this. US Defence Secretary Robert Gates strongly criticised the allies then. But with the involvement in Afghanistan and the financial crisis, the member states explained that they were not able to increase defence expenditure to 2 per cent of the GDP, which resulted in the inadequate defence capacity. Thus, when Donald Trump came to power and got some simple analyses which demonstrated that the Europeans were not investing enough, he resorted to threats, including the withdrawal of the US from NATO. We can argue about how credible these were, but some statements from Trump’s close associates suggested that he was actually deliberating this. We can never know to what extent someone uses such threats only to frighten allies and motivate them to act. However, this worked both ways.

On the one hand, of course, it spurred the allies into action, but on the other hand, it had the counterproductive effect in many countries, as it further weakened confidence in the American security guarantees. It justified some states to push the vision of European defence, European strategic autonomy, the concept of a European army. It could also, of course, encourage Russia to intensify its aggressive policy at a time of tensions within NATO, so it had both positive and negative effects.

The Joe Biden administration has made it a priority to strengthen NATO’s political cohesion and thus restore confidence in the USA. So far, this has been only moderately successful – the very chaotic manner of the withdrawal from Afghanistan again encouraged those trying to show that NATO was ineffective and unreliable, that the USA did not consult its allies enough. Therefore, I think the main contribution of the new US administration to this attempt to strengthen the alliance will be to engage

NATO in the Contemporary International Security Environment in the development of a new, transparent strategy consensus. We have to remember that a covert military strategy has already been adopted, and this alone is an absolute novelty because this is the first NATO’s military strategy in more than 50 years. We can therefore assume that it defined the risk and aimed to enable the Alliance to embrace Russia’s threat, as well as put some pressure on the member states to actually invest in the necessary defence and deterrence capability. Still, much depends on how the public part of the strategy will be worded. It is purely political, intended to let each state show that its interests are taken into account. It will, of course, emphasise that NATO is strengthening its defence and deterrence capability while maintaining dialogue with Russia (or rather that it is ready for dialogue with Russia, because Russia is not ready for dialogue with NATO yet).

There will be other elements, too – that the Alliance will continue to perform all three missions, i.e. collective defence, crisis response and cooperative security; there will also be something about terrorism.

When the average readers read it, they will see that it is all there. However, if someone is familiar with politics and able to associate the open strategy with the awareness of our confidential military strategy, and sees how the priorities are set, they will be able to tell whether this is a pressure to strengthen collective defence or rather something to give certain countries an excuse not to invest in defence and deterrence capability. I think it will only be after the new strategy is published next year that we will see to what extent the US administration has actually influenced the final shape of that strategy.

Talking about NATO, it is impossible not to mention the Russian Federation. And talking about the Russian Federation, especially in

recent years, it is impossible not to mention Moscow’s increasingly aggressive foreign policy aimed at Central and Eastern Europe and the countries of the former Soviet Union. Relations between NATO and Russia are not good, to say the least. How do you think this relationship will develop over the next few years? Is there a chance for a détente similar to the one that we observed in the 1970s, during the Cold War?

To return briefly to history, this policy of détente, endorsed by NATO in the Harmel Report, was actually a response to an immense crisis within the Alliance.

The different perceptions of threat and disagreements over the balance between conventional defence and nuclear deterrence were very deep. It was, therefore, concluded that the lack of agreement to each member state pursuing its own policy towards the Soviet Union to reduce internal political tensions within NATO member states would in fact be a recipe for the Alliance to fall apart.

After France withdrew from the military structures, Portugal hinted that in the case of neglecting its interests in Africa, it also did not necessarily need to be a member of NATO. Greece withdrew from the military structures in the 1970s. From the perspective of our region, especially people of my generation saw NATO as a monolith which the Warsaw Pact strived against. It was not a monolith – the Alliance tried to present a coherent outward appearance, but actually, it was crisis-ridden all the time.

Now, if we analyse how this policy of NATO’s relations with Russia will develop, we must remember the fundamental fact that the Alliance attempted, along with the decision on enlargement, to build a strategic partnership with Russia.

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We need to strengthen the credibility of defence and deterrence and constantly supplement it with the policy of dialogue with Russia. enlargements have been mainly political, not military, and have not entailed the necessary command structure and forces to defend the new member states.

At the same time, however, Russia was approached and offered cooperation. In fact, it was not only cooperation – Russia was given the status of a privileged partner. It was offered a consultation mechanism that no other partner country had ever received, namely a NATO-Russia Council. Russia was invited to the table as an equal partner, and the allies did not have to agree on a common position before meetings. Russia could not block the Alliance’s decisions, but it could influence them. Therefore, Russia received excellent tools not only to lead this dialogue with the allies and talk about its perception and interests but it decided to use them to drive political divisions among the allies.

Russia was not particularly interested in developing cooperation. The offers were hard to dismiss, but Russia treated them as a way to increase its influence on the decision-making processes in the Alliance.

This game was quite clear to Poland and the countries on its eastern flank, while for western states, it was the continuation of the policy of détente. Moreover, the attempt to build a partnership with Russia made it easier for Western politicians to build social and political support for enlargement in their countries. They said: “Look, we do not treat Russia as an 22

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enemy or a threat, but as a partner.” It was a crucial political component for NATO to expand at all, and it would probably have been hard to achieve the consensus without it.

However, the North Atlantic Alliance has developed a consensus since 2014. We need to strengthen the credibility of defence and deterrence and constantly supplement it with the policy of dialogue with Russia.

And if you ask me how NATO’s relations with Russia will be managed in the future – I believe that the consensus will be based on deterrence and defence, complemented by the offer of dialogue. Showing that NATO is ready for dialogue will be immensely important for maintaining its political coherence, so that people in France, Italy or Spain do not say that NATO is an aggressive player preparing for war. It will be just as important as the policy of détente to take these propaganda tools out of Russia’s hands, so that it cannot divide NATO member states amongst themselves and internally.

However, dialogue is one thing, and cooperation is another thing. NATO has suspended practical cooperation, announced in several communications that there is no return to it unless Russia substantially changes its policy. In principle, we can say that there is no return to cooperation with Russia until it returns the annexed Crimea. I imagine that the policy is flexible enough that – if Russia were to change drastically and stop escalating tensions and threaten to use force against the states of the eastern flank – a consensus to return to limited cooperation could be developed, even without returning the Crimea, which is rather unrealistic. At the moment, however, it is too early to talk about this. For now, we have worked out a consensus that a dialogue is possible, but that it should be a meaningful dialogue, not one ostensibly showing that Russia has met with NATO, for Putin using it

for his propaganda purposes, and NATO showing its commitment to dialogue, even if it was futile. Meaningful dialogue means: “We want to talk about Ukraine, about why you mobilise your forces. We are happy to tell you about our manoeuvres, about their defensive nature, but we have questions about why your manoeuvres assume an attack on the NATO’s territory...”

And Russia is clearly showing its lack of interest in such a dialogue, as it recently suspended the activities of its representation to NATO. This policy should remain to be pursued, because it is the basis of our political cohesion, i.e. deterrence and defence, supplemented by dialogue. At the same time, Poland and other countries on the eastern flank will probably have to keep explaining to the western allies that they should not confuse dialogue with cooperation. We have already signed up to many messages saying that there is no return to cooperation unless Russia dramatically changes its policy, and nothing of the sort is in prospect yet. On the contrary.

The topic of joint European Union forces has been raised more and more frequently recently. You have spoken of a lack of trust in the USA among some NATO members.

Those who advocate the creation of EU’s armed force, mainly France, point to the need for the Old Continent to be independent of the United States. What is your attitude to such postulates – is a “European army” an opportunity for our continent, an unnecessary duplication of military structures or a real threat to the North Atlantic Alliance itself?

This is, of course, a question with no short answer. However, to give the reader a good overview, we must again go back

to the Cold War and the policy of French President Charles de Gaulle. He recognised at one point that the threat from the Soviet Union was exaggerated militarily, that an offensive to the west was unlikely, and that the USA was pursuing a policy that did not often take into account the interests of the European allies, which was true. He, therefore, began to promote the idea of Europe as the third power, that is, a power between two hyper-powers – the Soviet Union and the United States. This Gaullist policy, combined with France withdrawing from NATO’s military structures, has sown the seeds of distrust towards France among some member states. Remember that NATO was created so that the USA could warrant the security of its European allies, and that enormous American capacity could be involved in a resolution of conflict. The majority of the allies, such as Germany, were therefore not happy with the policy of France, which they believed was based on creating a political “empty shell” and showing to their public the opinion that only they were conducting sovereign policy.

However, even though France withdrew from the Treaty’s military structures, it has very seriously treated NATO as a tool for ensuring collective defence in Europe.

The French, however, always tried to prevent NATO from extending its area of action and consultations beyond the Euro-Atlantic territory, believing that “over there, the powers should deal with each other, while NATO should focus on defending its own Euro-Atlantic area.”

However, a very serious problem appeared over time: the Americans began to push their European allies to support their policy not only towards the Soviet Union, or their European deterrence and defence policy, but also their actions outside Europe. The conflicts of interest were usually too deep, and the argument was like this: “Well, what if the situation arises that eventually you have to operate outside 4/2021

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And then, the idea began to emerge that the Western European Union, which was the dormant pillar of European security, should create a crisis response capability outside the territory of the Alliance and Europe. For example, during the first Gulf War in 1990-91, the Western European Union sent the ships to show the support of whole Europe, without undermining the mechanisms of NATO collective defence (although the Americans withdrew so many troops from Europe that it undermined the credibility of the defence capacity). Over time, however, most countries believed that the European Union should have its crisis response capacity to act outside its own territory.

There were still those French ideas in the air, promoted for strengthening the position of France and the subjectivity of EU and making its security pillar independent of NATO. On the one hand, the ability to conduct missions within the EU is beneficial because it provides additional instruments that may be even better suited to the various challenges. However, there are plenty of practical and political problems.

Most countries, being members of both NATO and the European Union, fear that this will be a duplication of structures that no one can afford. Everyone has a limited number of officers – such as Poland, which should expect to defend its own territory and allocate the officers to its own commands. If Poland detaches several hundred officers to NATO, it does not want to send further few dozen to the EU structures actually duplicating those of NATO. Most countries think in the same way. There is a fundamental problem to be solved here. On the one hand, if we want the EU to have the actual capacity to conduct crisis response missions, then some command structures must exist.

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And it is not easy to find the border beyond which they are necessary to ensure this ability to act autonomously.

In my opinion, most countries agree that having such an autonomous capacity to act within the EU would be beneficial.

One can imagine different crises where NATO would prefer not to get involved because of possible negative perceptions in the affected region or lack of consensus within the Alliance on which instrument to use. It would then be possible to make better use of the instrument within the European Union to complement the crisis response capabilities of NATO, if the Alliance was not willing to act. This is the way of thinking, and this is also why the European Union Battlegroups have been created. However, some present the fact that they have never been used as an argument against them. Anyway, we must realise that military forces exist, among other things, precisely so that we do not have to use them; that they have a certain deterrent value by the very fact of their existence and availability for use. In this case, the value was also to raise the readiness of the general forces that could defend the allies, to enforce a military transformation. We must not forget that the ability to conduct a joint mission is a colossal challenge. The USA is a single political organism with a single armed force; it need not worry about the problem of interoperability. Russia is also one political organism with a single armed force, and it also does not have to worry about being composed of forces from many countries. NATO must bear in mind that during a large-scale collective defence mission, troops of various sizes from at least a dozen states would have to cooperate, and it must constantly practice developing this. In this case, the Battle Groups or other cooperation within the framework of the Union could bring additional benefits as part of developing this interoperability.

Unfortunately, some politicians, whether for political purposes or out of ignorance, are using the concept of a “European army” to create the false idea that it will provide security in Europe in case of a conflict with Russia. It is, of course, a fantasy. From the very beginning, the reason for establishing NATO, still strategically valid, has been to increase the probability of involvement of the US forces. Without it, even at the initial stage of a conflict, other states, even those with great potential, will calculate whether or not to engage in it. Thus, even in case of less serious conflicts, which are not threatened by nuclear escalation, like the wars in the Balkans in the 90’s, the other states’ disposition to use their forces, as well as determine whether the conflict could ultimately be resolved on favourable terms, depended on the involvement of political, military and financial resources of the USA. European states perceive threats in different ways and do not have a unified leadership based on the potential of a single power ready to coordinate a coalition. If we look at the European army from this perspective, everyone realises that it would probably not get involved to defend the Baltic States or Poland.

However, it can be used for crisis response missions, deepening interoperability and stimulating potential development. This is a very important instrument that we should not discard completely – quite the contrary. In the current situation, we will have to use all tools to stimulate potential.

If a particular country sees the investment in the EU potential as more beneficial, that is fine. But let us not duplicate structures and undermine the political coherence of NATO, and let us not create the false idea that we are developing a capability to defend us against Russian aggression.

It should be a potential to be used as a contribution of European countries to crisis response, supporting the collective

defence if necessary. We must also reckon with the fact that the US will focus its attention on the Indo-Pacific. It means that it will be less inclined to get involved in solving crises in Europe’s neighbourhood.

If there is a war with Russia, they will be ready to support Europe, but European countries will have to provide the majority of necessary forces. How Europe and the USA will work out the division of their responsibilities remains to be seen. Even with a lesser contribution from the USA, it is possible to create circumstances that make the American involvement in this conflict very clear and suggest that its escalation will entail the channelling of more US forces. However, I emphasise that Europe has always had to catch up on strengthening their defence and deterrence credibility. In the face of the real threat of wars in the Indo-Pacific region and our continent and the relative weakening of American power, the backlog is substantial.

To sum up, this EU effort and EU ideas will be very important, and cannot be completely rejected – it is simply a political and strategic reality that Europeans must significantly increase their potential in the future. And since the EU exists and influences the imagination of many societies, politicians will try to show them that we are doing something both in NATO and in the EU, because this will accelerate the development of necessary potential. However, in a practical and operational dimension, the EU’s potential should be employed to execute the crisisresponse missions. However, if necessary, the member states should be able to use their troops assigned to these forces or use the jointly developed capabilities for collective defence missions within NATO. That is the conclusion of today’s very interesting conversation. Thank you very much.

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EU Strategic Autonomy and the Interests of NATO's Eastern Flank. A View from Poland

Przemysław Żurawski vel Grajewski

T

he concept of European security autonomy emerged at the time of the creation of the European Union. It was first mentioned during the intergovernmental conference leading to the adoption of the Maastricht Treaty in December 1991, which established the Common Foreign and Security Policy (CFSP)1. The present article omits the initiatives of the Western Union (WU) of 19482, the Article J.4, Title V, Provisions on a common foreign and security policy, Treaty on European Union signed at Maastricht on 7 February 1992, Official Journal of the European Communities, C 191, 35, July 29, 1992, p. 59.

1

The Western Union was established by the Brussels Treaty (Traktat o współpracy gospodarczej, społecznej i kulturalnej oraz zbiorowej samoobronie, Brussels, March 17, 1948, [in:] Parzymies, S. (2008). Integracja Europejska w dokumentach, Warsaw: PISM, pp.

74–81. For the original text, see: The Brussels Treaty, Treaty of Economic, Social and Cultural Collaboration and Collective Self-Defence, March 17, 1948, Library, Official Texts, North Atlantic Treaty Organization, www.nato.int/cps/en/natolive/

2

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European Defense Community (EDC) of 1950–543, the Western European Union (WEU) of 19544, and similar formats, all of which had a different context, now completely historical, and other objectives. They were to be used as a defense mechanism against then possible Soviet invasion (WU and EDC), or to cover the failure of the latter concept and to bind Great Britain more strongly official_texts_17072.htmT cf: Traité de Bruxelles (17 Mars 1948), [in:] Evénements Historiques, 1945–1949. L’ère des précurseurs, L’idée européenne, La coopération militaire, L’Union Occidentale, Le Traite de Bruxelles. Centre Virtuel de la connaissance sur l’Europe, http://www.ena.lu/mce.cfm, December 12, 2007. For discussion see: Morawiecki, M. (1962).

Unia Zachodnioeuropejska, Sprawy Międzynarodowe 3, pp. 63–65.

Read more on EDC in: Bokajło, W. (1995).

Koncepcja Europy Konrada Adenauera i jej realizacja w praktyce politycznej w latach 1945–1954, Wrocław: Wydawnictwo Uniwersytetu Wrocławskiego, pp.

96–197.

3

See more in: van Ackere, P. (1996). L’Union de l’Europe occidentale, p. 127.

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© Photo Gabriel Piętka/MFA of the Republic of Poland

EU Strategic Autonomy and the Interests of NATO's Eastern Flank. A View from Poland

Chief of Polish diplomacy Zbigniew Rau (L) and the High Representative of the European Union for Foreign Affairs and Security Policy Josep Borrell (R). Brussels, Belgium, January 18, 2021. The meeting served to present Poland’s viewpoint on the most important issues related to the EU external policy, particularly transatlantic ties and the EU Eastern Partnership.

to the military ambitions of continental Western Europe. Finally, they were to serve as an instrument of Western Europe’s influence on American-Soviet disarmament negotiations (the WEU).

The contemporary concept of European security autonomy appeared for exactly opposite reasons to its predecessors. It emerged because of the end of the Soviet threat in 1991. Its recent revival is a Brexit effect: Great Britain used to hamper projects strengthening the military dimension of European integration as they were mainly a manifestation of French ambitions. Apart from a brief episode represented by the Saint Malo Declaration of 19985, these initiatives have been seen Joint Declaration on European Defence, BritishFrench Summit, (1999). St. Malo, December 3–4, 1999, [in:] From St. Malo to Nice, European defence: core documents, compiled by Rutten, M., Chaillot Paper 47, Institute for Security Studies, Western European Union. For a discussion see: Parzymies, S. (1999). Europejska Tożsamość Bezpieczeństwa i Obrony: mit czy rzeczywistość, Sprawy Międzynarodowe, April–June 1999, 2 (LII), p. 38.

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by London as a threat to the transatlantic unity of NATO6.

Many myths have appeared with regard to the process of giving autonomy to European security and its objectives, causes, and realities. Lack of knowledge and the misleading nature of the terminology unclear to non-experts results in conceptual confusion and a false picture of reality. ‘Common security’, as declared in EU documents, is not the same as collective defense, and ‘expeditionary capabilities’, clearly defined in the conceptual documents of WEU and later EU as the objectives of the European armed forces, do not refer to the ability to repel an invasion. The cold war’s type armies prepared to defend their own territories do not fit for expeditionary For more see: Żurawski vel Grajewski, P. (2009). Wielka Brytania wobec Wspólnej polityki zagranicznej i bezpieczeństwa Unii Europejskiej 1992–1999, [in:] Michowicz, W., Łoś, R., Żurawski vel Grajewski, P. (eds.), Ze studiów nad brytyjską polityką zagraniczną XX wieku, Łódź, pp. 166–188.

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Secretary of State Antony J. Blinken meets with European Union High Representative for Foreign Affairs and Security Policy and Vice President of the European Commission Josep Borrell. Brussels, Belgium, March 24, 2021.

missions and vice versa – the forces planned for expeditionary missions of the ‘out-of-area’ are not enough to ensure the defense of one’s own territory against a foreign invasion.

The analysis aims to dispel the myths mentioned above; to make the terms more precise, and to draw conclusions from the existing conditions on the actual nature of the concept and the perspectives of its implementation, as well as its significance for Poland.

Origins and Primary Objectives of the European Union’s Common Foreign and Security Policy

A prerequisite for the idea of a European foreign policy independent of the US and an autonomous military was the disappearance, as a result of the end of the Cold War, of the threat to the very existence of Western European states. Their fundamental interests, that is, the survival of their nations – uncertain in the event of a nuclear war between NATO and the 28

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© State Department photo by Ron Przysucha

Warsaw Pact – and their independence and territorial integrity, were no longer threatened. World War III became a highly unlikely scenario. The world has thus become much safer, but even less stable.

Local conflicts, so far always with the potential to escalate into a global conflict between the two superpowers, lost the status of possible ‘detonators’ and became much more real. The concept of Common Foreign and Security Policy emerged in such general circumstances. The CFSP and its military initiative, the Common Security and Defense Policy (CSDP), developed since the end of the 1990s, are thus a product of the post-Cold War period and an absence of a sense of threat to Europe’s existence. They are also an attempt by the EU to stabilize its region in the face of a lack of political will on the part of the US to engage its own forces and resources in solving the security problems of its European allies, other than the basic ones, such as their existence, independence, and territorial integrity.

While during the Cold War, the Americans were ready to pay for defending Europe against Soviet invasion, after the end of that

EU Strategic Autonomy and the Interests of NATO's Eastern Flank. A View from Poland conflict, covering the expenses of protecting Washington’s European allies from nonpriority challenges (as, for instance, the influx of refugees from the war-torn neighborhood) was not so justifiable to American voters. This was also because the Europeans themselves were not willing to bear the human and financial costs of their security. The EU’s necessity to acquire the military capability to stabilize its vicinity was made clear to European elites in the wars in Yugoslavia between 1991 and 1999.

The idea had been developed until the turn of the century based on that experience7.

The European Union suffered many prestige defeats8 in former Yugoslavia.

Proponents of making European security autonomous made this an argument for the need to equip European diplomacy with a credible ability to threaten military action.

To its opponents, it was used to point out that the whole construction was not wellfounded and that “guns” would have had to be borrowed from NATO either way9.

A separate trend and motive for promoting the concept of making European security autonomous is the ambition of the EU core states to free themselves from American domination, in the absence of the sense of the threat that had existed in Western For more on new post-Cold War challenges to European security as assessed by Western experts see: Algieri, F. (1996). In Need of a Comprehensive Approach: the European Union and Possible External Security Challenges, Managing Security in Europe, Gütersloh, pp. 193–197. Cf. Kuberski, M. (1996). Ewolucja polityki europejskiej Francji w dziedzinie bezpieczeństwa, Bezpieczeństwo Polski w zmieniającej się Europie. Europejska Tożsamość w Dziedzinie Bezpieczeństwa i Obrony, 9 (1996), pp.

48-49.

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For more see: Żurawski vel Grajewski, P. (2000).

Upokorzona Europa. Unia Europejska wobec konfliktów bałkańskich w latach 1991–1999, [in:] Magdziak-Miszewska, A. (ed.), World after Kosovo, Warsaw, pp. 64–85.

8

For more see: Smith, C. J., Creating the EU’s CFSP – The Balkans Conflict and the Debate over Federalism, [in:] Changing European Security Landscape. Research Report, Tempere Peace Research Institute 63, pp. 41–80; cf. Żurawski vel Grajewski, P. Upokorzona Europa..., pp. 64–87.

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Europe until 1991. This has been especially noticeable in France10 and is growing in Germany11. Anti-Americanism, particularly visible in the politically correct anti-Trump attitudes, is very popular in many Western European countries. It can strengthen, in the eyes of both French and German voters, the popularity of a politician who proclaims such views12.

10 Kuberski, M. (1996). Ewolucja polityki europejskiej Francji w dziedzinie bezpieczeństwa, Bezpieczeństwo Polski w zmieniającej się Europie.

Europejska Tożsamość Bezpieczeństwa i Obrony 9, pp.

41–74. For its most recent examples see: Emmanuel Macron apeluje o stworzenie „europejskiej armii”, Musimy bronić się przed USA, Rosją i Chinami, Wprost, November 6, 2018, https://www.wprost. pl/polityka/10166467/emmanuel-macron-apelujeo-stworzenie-europejskiej-armii-musimy-bronicsie-przed-usa-rosja-i-chinami.html. Cf.: France’s Macron pushes for ‘true European army’, BBC News, November 6, 2018, https://www.bbc.com/news/ world-europe-46108633 and Macron calls for ‘true European army’ to defend against Russia, US, China, Euractiv, November 7, 2018, https://www.euractiv. com/section/defence-and-security/news/macroncalls-for-european-army-to-defend-against-russiaus-china/.

11 Adamski, Ł. (2005). Niemiecka droga. „Deutscher Weg” Gerharda Schrödera – czy niemiecka polityka ulega renacjonalizacji?, Puls Świata, May 2005, 1–2/2005 (11–12), http://www.puls-swiata.subnet. pl/artykul.php?id=15&id_art=709 (September 14, 2013). See more in: Malinowski, K. (2009).

Przemiany niemieckiej polityki bezpieczeństwa 1990-2005, Poznań, pp. 363–390. Cf.: Miszczak, K. Polityka zagraniczna, bezpieczeństwa i obrony koalicji rządowej SPD-Sojusz 90/Zieloni w okresie 1998–2005, Warsaw 2012, pp. 229–245 and 306–341.

The rapid deterioration of German-American relations under Donald Trump’s presidency has been the peak symptom of this process so far.

12 On the latter, Macron is clearly successful, gaining more popularity than Chancellor Merkel among Germans in mid-December 2019, and symptomatically, he does so against a backdrop of record dislike among them for Donald Trump, who is trusted by fewer German respondents than Vladimir Putin. Niemcy ufają bardziej Macronowi niż Merkel, DW, December 25, 2019, https:// www.dw.com/pl/niemcy-ufaj%C4%85-bardziejmacronowi-ni%C5%BC-merkel/a-51789564?fbclid =IwAR3TeovvlC1MSwxi2Otm30_mh8P7tJFJp0y1Qc6YQbbkKQaTY. Cf.: Komu Niemcy ufają najbardziej? Macron, Merkel i Putin zmierzyli się w sondażu, Niezależna.pl, December 25, 2019, https://niezalezna.pl/303517-komu-niemcy-ufajanajbardziej-macron-merkel-i-putin-zmierzyli-sie-wsondazu.

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European Union Objectives of CFSP and CSDP

The aim of the military aspect of the CFSP, namely making the European defense policy autonomous, is to give the EU the ability to conduct military interventions outside its territory and not to defend it. It cannot be extended to the defense of EU member states, which, strategically, was already determined in the mid-1990s by the failure of the concept of an independent European nuclear deterrence13. Without its nuclear umbrella, there is no European defense autonomy.

The CSDP and its earlier versions – the 1994 NATO European Security and Defense Identity (ESDP)14 and the 1999 EU European Security and Defense Policy (ESDP)15 were designed as instruments of expeditionary missions intended to export stability beyond the EU’s borders rather than to defend the territory of its member states. This is evidenced both by the military structure (professional intervention forces, not numerous, and designed to operate under conditions of their own overwhelming technological and organizational superiority) and the original tasks set for the armed forces at the disposal of the EU (formerly the WEU) to be created, set out in the 1992 Petersberg Declaration16 and supplemented by the 2007 Lisbon Treaty17. The legal declarations 13 For more on this issue see: P. Żurawski vel Grajewski, Plany stworzenia europejskiego parasola jądrowego (francuskie wysiłki na europeizacji odstraszania nukularnego 1995–1996), [in:] Reginia-Zacharski, J., Łoś, R. (ed.), Konflikty i spory międzynarodowych 2, Łódź 2010, pp. 403–424.

14 Final Communiqué, Ministerial Meeting of the North Atlantic Council, Berlin, June 3, 1996. NATO Press and Media Service, p. 4. See more in: Zięba, R. (2001). Europejska Tożsamość Bezpieczeństwa i Obrony. Warsaw: Wydawnictwo Naukowe Scholar, p. 304.

15 See more: Słomczyńska, I. (2007). Europejska Polityka Bezpieczeństwa i Obrony. Uwarunkowania– struktury–funkcjonowanie, Lublin, p. 403.

Western European Union Council of Ministers, Bonn, June 19, 1992, Petersberg Declaration, Part II, unit 4, p. 1. Cf.: Kuberski, M. op. cit, p. 56.

16

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Article 43, Section 2, Provisions on the Common

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on territorial defense as included in the treaties18 are rhetorical and decorative and do not change the reality resulting from the adopted technical-military assumptions.

Even Article 42(7) of TEU, which contains a very clearly formulated statement that “If a Member State is the victim of armed aggression on its territory, the other Member States shall have towards it an obligation of aid and assistance by all the means in their power, in accordance with Article 51 of the United Nations Charter,” is weakened in the same paragraph. It continues with “This shall not prejudice the specific character of the security and defence policy of certain Member States” and relates to such countries as Sweden and Finland, which are not members of any military alliance, as well as Austria, Ireland, and Malta, which are neutral, and Denmark, which belongs to NATO but not to CFSP (due to the opt-out rule)19.

Security and Defence Policy, Chapter 2, Specific Provisions on the Common Foreign and Security Policy, Title V, General Provisions on the Union’s External Action and Specific Provisions on the Common Foreign and Security Policy, Consolidated Version of the Treaty on European Union and the Treaty on the Functioning of the European Union, Luxembourg: Publications Office of the European Union, 2010, p. 39.

18 The wording of the Maastricht Treaty with respect to building a common defense lacked precision.

Article J.4 states that “the common foreign and security policy shall cover all questions relating to the security of the European Union, including the possible framing of a common defence policy which might in time lead to a common defence”. Article J.4, Title V – Provisions on a common foreign and security policy, Treaty on European Union, signed at Maastricht on February 7, 1992, Official Journal of the European Communities, C 191, 35, July 29, 1992, p. 59. Article 24.1 TEU reads “The Union’s competence in matters of common foreign and security policy shall cover all areas of foreign policy and all questions relating to the Union’s security, including the progressive framing of a common defence policy which may lead to a common defence.” Article 24(1), Treaty on European Union (Consolidated Version), Official Journal of the European Union, EN, October 26, 2012, C 326/20.

Cramer, C. S., Franke, U., (2021). Ambiguous alliance: Neutrality, opt-outs, and European defence, Essay Collection, European Council on Foreign Relations, June 28, 2021, https://ecfr.eu/publication/ambiguous-allianceneutrality-opt-outs-and-european-defence/.

19

EU Strategic Autonomy and the Interests of NATO's Eastern Flank. A View from Poland

British Prime Minister Boris Johnson (R) with German Chancellor Angela Merkel (L), announce the post-Brexit joint declaration on foreign and security policy cooperation between the two states, outside the EU framework. Chequers, Buckinghamshire, Great Britain, July 2, 2021.

Neutral countries chose their impartial status precisely so as not to be legally obliged to act militarily in defense of other nations. The other states are either NATO members or, like Sweden and Finland, work closely with the Alliance, and, in the event of a foreign invasion, will seek help from the bloc and not from the EU. The terms ‚defense’ and ‘defensive’ in relation to the EU policies in question should therefore be treated as examples of political correctness.

It is all about the expeditionary military capability for foreign intervention.

The humiliation of the British caused by the Serbian disregard for them during the negotiations accompanying the EU’s efforts to resolve the growing conflict in Kosovo in 1998 resulted in a change in the UK’s position and its agreement to intensify military cooperation within the European Union20. The effect of this situation was the Saint Malo declaration, which, as an agreement between France and the United Kingdom, the two largest EU powers with the most efficient expeditionary armies, 20 Information on the basis of a lecture of Nigel Sheiwald (Director for EU Affairs at the Foreign Office) Rola Wielkiej Brytanii w nowej Europie, delivered at the European Institute in Łódź on May 21, 1999.

© EPA POOL/ Andy Rain

translated into an intensification of EU security actions. At the EU summit in Cologne (3–4 June 1999), it was decided that the European Union would take over the WEU tasks and that the European Security and Defense Identity that had been planned to be created within NATO would be replaced by the European Security and Defense Policy designed to be created within the EU. The EU ‘inherited’ the Petersberg missions of the dissolved WEU21. The European Council in Helsinki (December 10–11, 1999) adopted the so-called Helsinki headline goal. It was decided to create, by 2003, a European intervention force of 60,000 people, capable of starting their operations within two months of the decision to deploy it and remaining operational for at least a year22.

The pompously announced project naturally disappeared. Due to the lack of 21 Presidency Report on Strengthening of Common European Policy on Security and Defence (Cologne, June 3–4, 1999), Presidency Conclusions, Cologne European Council on 3–4 June 1999, Press Release, Vienna, June 4, 1999, 50/99, pp. 40–43.

22 Presidency Progress Report to the Helsinki European Council on Strengthening the Common European Policy on Security and Defence Annex 1 to Annex IV, Presidency Conclusions Helsinki European Council 10 and 11 December 1999, http:// www.consilium.europa.eu/uedocs/cms_data/docs/ pressdata/en/ec/ACFA4C.htm.

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European Union means and political will, such a force has never materialized.

In 2003, Germany, France, Belgium, and Luxembourg, all four conflicted with the USA over the intervention in Iraq, tried to establish the European Defense Union (EDU)23. However, it turned out again that they did not have the resources to do so. The Tervuren summit, which was to be the start of the EDU, went down in history as the ‘praline summit’ because it did not produce any results other than the consumption of Belgian chocolate24.

In June 2004, another EU summit brought about the decision to establish by 2010 thirteen European battle groups of 1,500 soldiers each25. Eventually, two of them ended up on duty in pairs. They are activated in six-month turns, but vacancies sometimes occur, and the EU does not always use both groups. Therefore, the theoretical intervention potential of the EU currently amounts to 3,000 soldiers (in a ‘good’ six-month period). Other formats created within the EU (formerly the WEU) are subordinate to NATO. These are, for example, Eurocorps (about 60,000)26, 23 European defence meeting – ‘Tervuren’, Meetings of the Heads of State and Government of Germany, France, Luxemburg and Belgium on European Defence, Brussels, April 29, 2003, [in:] From Copenhagen to Brussels – European defence: core documents IV, Chaillot Papers 67, December 1, 2003, Institute for Security Studies European Union, compiled by Missiroli, A., pp. 76–80.

24 Koszel, B. (2012). Mocarstwowe aspiracje Niemiec w Europie XXI wieku: realia i perspektywy, IZ Policy Papers 6 (I), Poznań 2012, pp. 13–32.

Headline Goal 2010 approved by General Affairs and External Relations Council on 17 May 2004 endorsed by the European Council of 17 and 18 June 2004, (6309/6/04) European Union External Action, http://www.consilium.europa.eu/uedocs/ cmsUpload/2010%20Headline%20Goal.pdf.

25

Olivier, M. (1998). The Role and Military Capabilities of the Eurocorps, [in:] European Security and Defence Identity – New Developments.

Papers presented at the International Experts’ Seminar organised by the Cicero Foundation in Paris in the series “Great Debates” on 19 and 20 March 1998, Cicero Paper 4, 1998, pp. 51–52 and Headquarters of the Eurocorps. A Force for the 26

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EUROFOR, and EUROMAFOR, which function as staff structures with types of units assigned when activated (an aircraft carrier, a brigade of the maritime landing force, etc.), but they are not concrete units27.

Soldiers from these groups serve the North Atlantic Alliance. Therefore, treating them as additional protection, external to NATO, is a misunderstanding.

On June 22, 2017, the EU summit in Brussels resulted in the decision of the European Council to launch the Permanent Structured Cooperation (PESCO)28.

A little earlier, the European Commission created the European Defense Fund (EDF)29. PESCO can be joined by countries with a track record in European defense cooperation (for example, EU Battlegroup Contractors), which are ready to increase their arms procurement expenditures, launch multinational defense programs, harmonize defense planning, build joint military units, improve the interoperability of their armed forces with other partners, cooperate more extensively in logistics and training, and so on. The programs implemented as part of PESCO are to have privileged access to EDF funds, which means that they may be formatted according to the priorities of the leading EU powers, namely the supply offer of the German and French industries and the technological needs of the sub-Saharan warfare operations.

European Union and the Atlantic Alliance, http:// www.eurocorps.org/.

27 See more in: Villalba Fernández, A., La Cooperación en el ámbito de la defensa. EUROFOR y EUROMAFOR, CESEDEN, La cooperación hispano-franco-italiana en el marco de la PESC, Cuaderna de Estrategia 1998 (93), pp. 105–116.

28 European Council Meeting (22 and 23 June 2017), Conclusions, Brussels, June 23, 2017, (OR. en), EUCO 8/17, EN, CO EUR 8, CONCL 3, p. 5.

For more on the concept itself, see: Terlikowski, M. PESCO: konsekwencje dla jedności polityki obronnej UE, Biuletyn PISM 112 (1554), November 17, 2017.

29 Europejski Fundusz Obronny (2017). Komisja Europejska. Przedstawicielstwo w Polsce, https:// ec.europa.eu/poland/news/170607_efo_pl.

EU Strategic Autonomy and the Interests of NATO's Eastern Flank. A View from Poland Brexit, France, Germany

Brexit removes any hope of meeting within the CSDP and putting at the EU’s disposal a major military potential that could significantly exceed that of France.

The pacifism of German public opinion, the condition of the Bundeswehr30, and the historical and political constraints on Germany’s ability to assume military leadership in Europe make it impossible to build EU military capabilities based on the Paris–Berlin tandem. Germany is not interested in sending its soldiers to the Sahel (sub-Saharan Africa), where operations are an increasing burden for France31. They are also the main reason for this country’s interest in the project as it is a tool to share the costs of stabilizing its southern neighborhood among other EU member states. A recent example of the Parisian ambitions in this regard was the European Intervention Initiative (E2I) announced in September 2017 by President Macron, who was disappointed by the small scope of PESCO. This format aims to address challenges in the Mediterranean and south of the Sahara32, but is essentially external to the EU and heavily constrained under pressure from Germany33. What 30 Frelich, A. (2021). Bundeswehra – problemy i wyzwania, The Military Magazin MILMAG, March 16, 2021, https://milmag.pl/bundeswehra-problemyi-wyzwania/.

On French operations in the Sahel see: Czulda, R. (2021). Barkhane. Działania wojskowe Francji w Sahelu, The Military Magazin MILMAG, June 5, 2021, https://milmag.pl/barkhane-dzialaniawojskowe-francji-w-sahelu/.

31

32 See more: Gotkowska, J. (2019). Europejska Inicjatywa Interwencyjna, czyli francuski pomysł na obronę Europy, Klub Jagielloński, December 30, 2019, https://klubjagiellonski.pl/2019/12/30/europejskainicjatywa-interwencyjna-czyli-francuski-pomyslna-obrone-europy/. Cf.: Lorenz, W., Terlikowski, M. (2018). Wzmacnianie europejskich zdolności reagowania kryzysowego: propozycja Francji i Wielkiej Brytanii, Biuletyn PISM 85 (1658), June 28, 2018, pp. 1–2. On the broader political background of the French concept of European security autonomy, see: Maślanka, A. (2021). Rozpoznanie walką: autonomia strategiczna UE w polityce Francji, Biuletyn PISM 61 (2259), March 23, 2021, pp. 1–2.

33 Szczepanik, M. (2018). Plan reform Unii Europejskiej według Emmanuela Macrona: bilans

attracts Berlin to this initiative is the vision of conquering the EU arms market together with France, rather than sending troops to Africa and paying their costs.

The assumption that the idea of African intervention would be enthusiastically supported by the Scandinavians, Austrians, or the EU’s eastern flank would also be a sign of a wishful thinking. The project is not based on a community of interests and the resources at the disposal of member states, and there is no efficient decision-making process.

Experience of Libya in 2011

The military intervention in Libya initiated by the UK and France in 2011 showed the inefficiency of the European war machine.

The two most powerful expeditionary armies of the EU could not cope with the war-torn Libya. After a few weeks, these armies had to ask the United States for help. The Europeans had run out of ammunition, especially of the precisionguided category. They did not shift their national economies to war production for the Libyan war, and, based on the regular mode, they could not keep up with replenishing their stocks. Europe’s strategic autonomy once again proved to be an illusion34.

Changing Nature of Security Challenges after 2008–2014

Russian aggression against Georgia in 200835 marked the end of the immediate post-Cold War period. It was the moment i perspektywy, Biuletyn PISM 160 (1733), November 29, 2018, p. 2.

34 Olech, A. (2012). Międzynarodowe zaangażowanie wojsk Republiki Francuskiej, Warsaw, p. 94. For more on EU countries’ policies towards the conflict in Libya, see: Dobrowolska-Polak, J. (2011).

Partykularna polityka państw Unii Europejskiej wobec interwencji w Libii, Przegląd Zachodni, July–September 2011, 3, R. LXVII, pp. 111–132.

Cf.: Turczyński, P. (2012). Libijska wojna domowa i międzynarodowa interwencja 2011 roku – postawy Społeczeństw Libii i Zachodu, Zeszyty Naukowe WSOWL 1 (163), pp. 152–169.

35

See more in: Asmus, R. D. (2010). Mała wojna,

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European Union when the Russian military threat to Europe reappeared. Unfortunately, the West noticed it only after another Russian aggression, against Ukraine in 2014. These two events, together with the growing destabilization in the Middle East and North Africa since 2010, resulting from the so-called Arab Spring36 and the US withdrawal from Iraq37, changed the situation. They have removed the sense of stability and security in Europe.

However, the perception of threats is not the same everywhere in the EU. The eastern part fears Russia, the southern one radical Islamists; the former needs the development of capabilities to defend its territory, and the latter the development of expeditionary potential to suppress sources of instability beyond its borders.

The eastern flank of the EU deals with a strictly military threat and must prepare to withstand armed aggression from a more powerful actor – Russia – on its territory. For this reason, it is inclined to increase spending on national armaments, expand the number and quality of its troops, and strengthen ties with the United States and NATO. The southern members face a police and intelligence challenge (protecting their borders from immigrants, and their territory and citizens from terrorists) and a military challenge in the expeditionary aspect (for instance interventions in the Sahel, where tribal militias are the enemy) whenever they want and on a scale they choose. The South has a technological and organizational advantage over its opponent, unlike the eastern flank with która wstrząsnęła światem. Gruzja, Rosja i przyszłość Zachodu, Warsaw, pp. 452 and Grodzki, R. (2009).

Wojna gruzińsko-rosyjska 2008. Przyczyny-przebiegskutki, Zakrzewo, pp. 224.

36 See more in: Dziekan, M. M., Bania, R., Zdulski, K. (2020). Arabska Wiosna i świat arabski u progu XXI wieku, Łódź, p. 296.

U.S. withdrawal and the rise of the Islamic State in Iraq and the Levant (ISIL), Britannica, https://www. britannica.com/place/Iraq/U-S-withdrawal-and-therise-of-the-Islamic-State-in-Iraq-and-the-Levant-ISIL.

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respect to Russia, and its problem is not a lack of resources, but of political will. It does not need to prepare to repel classic aggression and does not need a quantitative expansion of its armed forces. Improving the CSDP may be, for some of its states, such as France, an attractive way to strengthen their own expeditionary capabilities on a scale, in a form, and in a direction corresponding to their political interests (the Sahel).

A group of 3,000 EU troops is sufficient for these tasks.

A Non-Removable Weakness of the CSDP Decision-Making Process

The European Union is a weak structure in terms of its politics. It is incapable of making unambiguous, sharp, and quick decisions, making a long-term effort, and consistently acting in the face of a determined aggressor. This is due to the intergovernmental character of the decision-making processes in military policy and the unanimity rule that applies to them (despite the procedures for weakening it through opting out and the constructive veto, which does not stop the coalition of willing states from acting).

French and German attempts to abandon the unanimity rule and adopt a majority voting procedure based on demographic conversion rates, as applied in the EU Council in other areas of European integration38, would lead to a division into permanent winners (Mediterranean lobby) and losers (eastern flank states) and, consequently, to a breakup of the EU. Therefore, the institutional weakness of the decision-making process cannot be fixed. The political weakness of the CSDP, on the other hand, stems from 38 Bielecki, T. (2021). Pomysł Maasa.

Odświeżanie sporów czy szansa na zmianę?, Deutsche Welle, June 8, 2021, https:// www.dw.com/pl/pomys%C5%82-maasaod%C5%9Bwie%C5%BCanie-spor%C3%B3w-czyszansa-na-zmian%C4%99/a-57818509. On France see: Maślanka, A. op. cit., p. 1.

EU Strategic Autonomy and the Interests of NATO's Eastern Flank. A View from Poland the absence of a political base, the fact that citizens are not willing to make sacrifices in the name of the EU (the lack of European political demos), and not from the distribution of power either between the EU institutions or between the EU and its member states.

At the time of Russia’s invasion of Georgia, EU leaders did not take a break from their vacations to react immediately. We then had to wait until September for an extraordinary EU summit. A similar situation occurred in 2009 when, during the Easter holidays, the Chisinau Parliament was on fire. No one decided to come back from their vacation earlier39. It would be childish to expect EU citizens, aware of such examples, to volunteer for military service not to staff posts, but to participate in real combat operations.

“To Wage War, You Need Money, Money, and More Money.”40

The size of the operational EU military force has been described above. These are two battle groups of about 1,500 soldiers each, without the airlift component and the C4ITS satellite system (communication and spy satellites that provide command, communications, satellite intelligence, computerization, targeting, and battlefield control). The EU Satellite Center in Torrejón near Madrid, the goal of which was to ensure the strategic independence of the EU from the US in the field of military satellite systems, ended up with the purchase of

39 Żurawski vel Grajewski, P. (2013). Czy i jak Unia Europejska patrzy na Wschód? Polityka Unii Europejskiej wobec obszaru postsowieckiego a interesy Polski, Analizy Natolińskie 6 (64), p. 46 http://www.natolin.edu.pl/publikacje_analizy.html.

40 Pour soutenir la guerre, trois choses sont nécessaires: de l’argent, de l’argent, et encore de l’argent. Giangiacomo Trivulce (Paroles du maréchal au roi Louis XII), DicoCitations, Le Dictionnaire des Citations, http://www.dico-citations.com/poursoutenir-la-guerre-trois-choses-sont-n-cessairesde-l-argent-de-l-argent-et-encore-de-l-arg-trivulcegiangiacomo/.

The eastern part fears Russia, the southern one radical Islamists; the former needs the development of capabilities to defend its territory, and the latter the development of expeditionary potential to suppress sources of instability beyond its borders. satellite pictures from Russia41. After all, setting up a network of satellites (some have been launched, but it is not a system) would require a considerable investment.

The European Airbus A 400 M transport aircraft project, which started back in 1982, has, after forty years of struggle and budget cuts, reached 63 aircraft in service in EU countries as of March 21, 2021. One of them crashed during a test flight in Seville in 2015. 212 had been initially planned to be in service42.

Strategic self-reliance costs money yet Europeans were outraged at Trump when he demanded that they spend 2% of their GDP on the army43. The thought that without the 41 Lynch, D. (2003). Russia Faces Europe, Chaillot Papers 60, May 2003, p. 71.

42 See more in: Żurawski vel Grajewski, P. (2004).

Transport lotniczy i system satelitarny. Brakujące ogniwa europejskich sił interwencyjnych a polityczne interesy Polski, Przegląd Wojsk Lotniczych i Obrony Powietrznej, 11(2004), November 2004, pp.77–85.

43 Kucharczyk, M., Lawton, S. (2021). NATO: Niemcy nie wypełnią zobowiązań wobec NATO, EURACTIV.pl, February 8, 2021, https://www. euractiv.pl/section/bezpieczenstwo-i-obrona/news/ niemcy-nato-biden-trump-polska-obronnosc/.

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The numbers, structure, equipment, and tasks assigned to the EU force indicate that it could be effectively used in lowintensity operations, such as rescue and humanitarian missions and post-conflict stabilization.

US it would be cheaper to build military capabilities is grotesque. Without money, this is simply impossible to achieve. No electorate anywhere in the “old” EU would support a program of increased military expenditure during the COVID-19 health crisis. For this reason, in the foreseeable future, there will be no significant surge in Europe’s military capabilities beyond a strongly pro-American eastern flank arming itself in fear of Russia.

Conclusions for Poland

The idea to make European security autonomous emerged as a result of the disappearance of the threat from the East, and not in order to repel it. When that risk existed, everyone was eager to receive support from Washington.

The numbers, structure, equipment, and tasks assigned to the EU force indicate that it could be effectively used in lowintensity operations, such as rescue and humanitarian missions and post-conflict stabilization. Provided EU member states or the battle group contributors give their consent (which is difficult or impossible to obtain), high-intensity combat missions can be effectively conducted only with regard to sub-Saharan tribal militias. This could be achieved should the US provide logistic36

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transport and satellite-communications support.

The only moment when European military integration approached reality was when the United Kingdom supported it through the Saint Malo Declaration signed in 1998.

The condition for building a significant military potential of the EU was BritishFrench cooperation. French-German attempts to create the EDU ended in the Tervuren fiasco. Brexit, therefore, translates into a cancelation of the material basis for any serious EU military policy, which cannot be conducted without the potential of the British Army. At the same time, it exacerbates concerns about the antiAmericanism of a possible EU military construct, which, in turn, deters proAmerican (pro-Atlantic) states in the EU from this project and, as such, contributes to its further weakening. Bilateral FrenchBritish cooperation is, of course, still possible44, but it will no longer be of an intra-EU nature.

Thirty years after Maastricht, the ineffectiveness of CFSP and CSDP can no longer be justified with the ‘youth and immaturity of the newly created EU structures’. There are other reasons and they will not disappear over time. The world will not wait with new challenges for the EU to be ready and mature enough to face them. Military planning in the European Union is done as if its authors thought that there was unlimited time to achieve the necessary combat capabilities, whereas it is not the case.

The CSDP is meaningless to Poland’s military reinforcement in the event of Russian aggression. This is due both to its military weakness and to the fact that it is 44 Współpraca pomiędzy Francją a Wielką Brytanią będzie kontynuowana, Defence 24, September 24, 2021, https://www.defence24.pl/wspolpracapomiedzy-francja-a-wielka-brytania-bedziekontynuowana.

EU Strategic Autonomy and the Interests of NATO's Eastern Flank. A View from Poland highly unlikely for Poland to receive any military assistance from the EU in the event of war that it would not receive from NATO under Article 5 of the Washington Treaty.

This conclusion also fully applies to PESCO. The attempts of Poland to create a “political currency” out of its participation in EU military missions (Chad, Congo45) to buy the support of the major EU powers, Germany, and France, have turned out to be unsuccessful for the country’s foreign policy and interests46. Examples include Germany and France’s opposition to the Membership Action Plan (MAP) for Georgia and Ukraine47, and their support for Nord Stream 1 and 2, Mistral-class ships, the Mulino training center near Nizhny Novgorod48 constructed by the German Rheinmetall for Russia, and the refusal to grant Poland a permanent observer’s seat at the Eurogroup summits in 201149, among other things.

45 See more in: Lasoń, M. (2008). Udział Polski w operacjach wojskowych Unii Europejskiej na przykładzie misji w Demokratycznej Republice Konga i w Republice Czadu, Krakowskie Studia Międzynarodowe V (4), pp. 229–24.

The fact that the most probable area of deployment of a ‘European army’ would be sub-Saharan Africa means that any real CSDP operations would take place outside Poland’s security area and, thus, from the point of view of Warsaw, would be an expense. The ineffectiveness of creating a “political currency” out of the participation of the Polish Armed Forces in EU missions makes paying such costs pointless.

EU member states must maintain their decision-making autonomy over the scale and structure of their national armaments and the use of their troops (including their scope) in CSDP expeditionary operations outside the European Union. Actions to defend the EU’s territory against foreign invasions should fall within the remit of the North Atlantic Treaty Organization, not the European Union. It is NATO and its prestige based on the military power of the US that is a deterrent to potential aggressors. We could see what kind of prestige the EU enjoys in the Kremlin in February 2021, during Josep Borrell’s visit to Moscow50.

46 On the idea of a military as a currency see: Żurawski vel Grajewski, P. (2010). Zasady wykorzystania Wojska Polskiego w zagranicznych misjach interwencyjnych, Arcana 95 (5/2010), pp.

42–51.

47

Asmus, R. D. op. cit., pp. 187–240.

Wilk, A., Żochowski, P. (2011). Francja i Niemcy zacieśniają współpracę wojskową z Rosją, Tydzień na Wschodzie, OSW, 22 (182), June 29, 2011, pp. 3–4. Cf.: Socor, V. Arms Transfers to Russia: An Internal Challenge to NATO, Eurasia Daily Monitor 8 (125), June 29, 2011, http://www. jamestown.org/single/?no_cache=1&tx_ttnews[tt_ news]=38105&tx_ttnews[backPid]=7&cHash=167e 2c0ead768be89c071ef6882e12ad and Поволоцкий, Г. (2011). Российско-французское военное сотрудничество: «Мистраль» наполнил паруса доверия, „Международная жизнь”, January 5, 2011, http://interaffairs.ru/read.php?item=552.

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Słojewska, A. (2012). Mniej państw przy euro stole, Rzeczpospolita 9 (9129), January 12, 2012, p. A8. Cf.: Ida, Euroszczyty jednak bez Polski, Rzeczpospolita 9 (9129), January 12, 2012, p. A1 and Magierowski, M. (2012). Bolesna porażka premiera Tuska, Rzeczpospolita 9 (9129), January 12, 2012, p. A2. See also: Stróżyk, J. (2012). Rząd się chwali prezydencją. Opozycja pyta o miejsce w UE, Rzeczpospolita 10 (9130), January 13, 2012, p. A4.

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Przemysław Żurawski vel Grajewski December 2021 The visit was widely viewed as an image disaster for the EU. Kuczyński, G. (2021). Rosja upokorzyła UE. Wizyta – katastrofa Borrella, TVP Info, February 6, 2021, https://www.tvp.info/52165367/ rosja-upokorzyla-ue-wizyta-katastrofa-borrella.

Cf.: Trippe, C. F. Powrót Borrella z Moskwy: z pustymi i poobijanymi rękami, Deutsche Welle, February 7, 2021, https://www.dw.com/pl/ powr%C3%B3t-borrella-z-moskwy-z-pustymii-poobijanymi-r%C4%99kami/a oraz Borrell w Moskwie. Z Nawalnym się nie spotkał, Ławrowowi przekazał głębokie zaniepokojenie, TVN24 Świat, February 5, 2021, https://tvn24.pl/swiat/rosjajosep-borrell-z-wizyta-w-moskwie-rozmowy-oaleksieju-nawalnym-5009592.56487184; Osiński, Ł. (2021). Wizyta Borrella w Moskwie kończy się gorzej niż przewidywali najwięksi pesymiści, PAP, May 2, 2021, https://www.pap.pl/aktualnosci/ news%2C809031%2Cwizyta-borrella-w-rosji-konczysie-gorzej-niz-przewidywali-najwieksi; Karnitschnig, M. (2021). EU foreign policy RIP, Politico, February 13, 2021, https://www.politico.eu/article/eu-foreignpolicy-rip/.

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Poland and the Baltic Sea Region in the New NATO Strategic Concept

Beata Górka-Winter

Along with the assertive Russian politics and the dynamic development of its military posture together with extended anti-access/ area denial (A2/AD) measures, the debate over the possibility to secure countries of the bloc’s eastern flank has been revitalized. Previously, such heated deliberations took place in the pre-accession era. Since that time, NATO has made an enormous task of adopting a defense strategy that goes hand in hand with the dynamic evolution of the security environment, including widespread conventional military build-up as well as preparations for hybrid scenarios and information warfare.

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Meeting of Ministers of Foreign Affairs of NATO member states in Riga, Latvia, November 30, 2021. To address current security challenges, NATO Allies were exchanging views on cooperation with partner countries and the European Union, and were also discussing a new strategic concept for the Alliance.

Q

uite a vast amount of time has passed since the period when politicians and military planners from the North Atlantic Alliance were for the first time racking their heads over future contingencies for prospective NATO members. The most relevant question at that time was: “how do we defend new member states?”, and “do we really need to concentrate on the eastern flank having terrorist organizations knocking to our doors?”1. Eventually, contingency plans for the region were approved only in 2010 and are now being updated due to the changing nature of threats coming mostly from Russia 2. Moreover, after See for example: Anderson, B., Wallin, L., “A Defence Model for the Baltic States”, European Security, Vol. 10, No. 1, (Spring 2001), 99. GórkaWinter, B., Estonia, Latvia, Lithuania [in:] GórkaWinter, B., Madej M., (eds.) NATO Member States and the New Strategic Concept: An Overview, PISM, Warsaw 2010.

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2

In a series of non-papers, these countries

© PAP/EPA/Toms Kalnins

Russia’s aggression in Crimea, followed by a whole set of war games staged by influential think-tanks (RAND, CSBA) and claims from military planners saying that the Russian military would need just three days to seize the Baltic States3, NATO’s position in the region was seriously bolstered after the Warsaw pressed on adopting contingency planning for the “newcomers” to NATO, which finally materialized in 2010 with the adoption of “Eagle Guardian” defense plans for the region. See: Wikileaks, “NATO contingency planning for our Baltic Allies”, December 15, 2009, https://wikileaks.org/plusd/ cables/09STATE127892_a.html.

See: Shlapak, D. A., Johnson, M., “Reinforcing Deterrence on NATO’s Eastern Flank. Wargaming the Defense of the Baltics”, (Rand Corporation 2018), https://www.rand.org/pubs/research_reports/ RR1253.html. See also: Lanoszka, A., Hunzeker, M. A., “Confronting the AntiAccess/Area Denial and Precision Strike Challenge in the Baltic Region”, The RUSI Journal, 161:5, 12-18, 2016, Fabian, B., Gunzinger, M., van Tol, J., Cohn, J., Evans, G., Strengthening the Defense of NATO’s Eastern Frontier, March 19, 2019, https://csbaonline.org/research/ publications/strengthening-the-defense-of-natoseastern-frontier.

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Since 2008, Russia has persistently implemented structural and welldesigned military reforms triggered by serious reflections after the intervention in Georgia.

Summit in 2016 whose outcomes were the NATO Enhanced Forward Presence and Force Integration Units, the strengthened Baltic Air Policing mission with new bases and fighters added, and munitions prepositioning (APS).

The main contributions here came from the U.S.-led European Deterrence Initiative (EDI). Russia is providing a constant incentive for NATO military adaptation not only upon its political decision to label the Alliance its main adversary. It is also conducting military actions aimed at restoring its sphere of influence and making efforts to build up its potential in the immediate vicinity of NATO’s eastern flank (together in military drills as Zapad showing progressive integration of Russian and Belarusian potentials).

Unquestionably, the general pace and direction of Russia’s military modernization is something that gives sleepless nights to military planners in the West. Since 2008, Russia has persistently implemented structural and well-designed military reforms triggered by serious reflections after the intervention in Georgia (the “New Look” programme). Its focus is on the army’s professionalisation and on re-arming with modern equipment, the rate that has allegedly reached 60% at present, as well as on assuring higher 40

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readiness. Russia managed to triple its defense expenditure as measured in exchange rates adjusted for purchasing power over the past two decades (2000–2019), with outside sanctions only temporarily slowing down the modernization efforts.

In 2019 alone, Russia’s military budget was $65.1 billion (up 4.5% compared to 2018 in real terms). This figure constitutes a 3.9% share of its GDP and places Russia among the top five military spenders, according to SIPRI.4 The main thrust in this modernization – to which the country gives priority treatment – is air defense systems, self-guided missiles, bombers, radar networks, anti-ship systems, and even nuclear-propelled drones. Even though some of the declared upgrade schemes are nothing but the propaganda message (such as the target of 30% full weaponry automation by 2030), Russia has undoubtedly put intense effort into bridging its technology gap with the West. As Michael Kofman underlines, “in practice the Russian military has bought a tremendous amount of hard conventional military power and spent considerably on nuclear modernization. Since 2011 one could count close to 500 tactical aircraft, over 600 helicopters, to more than 16 S-400 regiments along with countless air defense systems for the ground forces, 13 Iskander brigades, thousands of armored vehicles, ballistic missile and multipurpose nuclear powered submarines, so the list is extensive. Indeed, roughly 50% of the sizable Russian defence budget is spent on weapons procurement, modernization, and R&D.”5 See: Wezeman, S. T., “Russia’s Military Spending: Frequently Asked Questions”, 27 April 2020, SIPRI, https://www.sipri.org/commentary/topicalbackgrounder/2020/russias-military-spendingfrequently-asked-questions.

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Kofman, M., “Russia’s Armed Forces under Gerasimov, the Man without a Doctrine”, April 1, 2020, https://www.ridl.io/en/russia-s-armed-forcesunder-gerasimov-the-man-without-a-doctrine/.

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Poland and the Baltic Sea Region in the New NATO Strategic Concept

Nearly 2 000 individuals and 28 vessels from 15 nations, including Poland, participated in the annual Northern Coasts naval exercise that took place in the southern Baltic sea along the Swedish coast. Northern Coasts (NOCO) is a multinational naval exercise aiming to strengthen the ability to combine national assets to effectively conduct combined naval operations. Baltic Sea, September, 2021.

A quick look at the latest European tendencies shows quite a reversed dynamic. Western military budgets are consumed by personnel spending (soldiers’ pay, pensions, welfare), which absorb 60-70% of NATO countries’ defense scheme. Given the high costs of some much-prolonged out-of-area operations, especially in Afghanistan, there is only a small amount left for research and development (which NATO recommends to be 2% of the defence budget) and new disruptive technologies which, as some analysts argue, would bring a decisive advantage in future battlefield operations.

Over the past three years, the Russian armed forces have carried out 18 largescale exercises involving up to 100,000 troops of different types (including ground, navy, air, air defense, airborne, special forces, logistical and engineering forces, Interior Ministry troops, medical units and army psychological personnel deployed). Furthermore, Russia simulated an attack against NATO states. Among the tasks performed were: search and rescue; amphibious landing

© Photo: Melina Westerberg/ Försvarsmakten

In 2019 alone, Russia’s military budget was $65.1 billion (up 4.5% compared to 2018 in real terms).

This figure constitutes a 3.9% share of its GDP and places Russia among the top five military spenders, according to SIPRI. and anti-landing; air and ground strikes; submarine and anti-submarine warfare; missile strikes with long-range precision strike assets, and airborne and air assault operations. Moreover, as for nuclear weapons, Russia is the world’s largest nuclear weapons state and puts much effort in developing 4/2021

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Security this military branch. The country has recently deployed a new intercontinental ballistic missile (ICBM), the RS-28 Sarmat, to replace the more obsolete SS18. Furthermore, it added an advanced submarine carrying a new ballistic missile and a dual-capable cruise and ballistic missiles to its ground and naval stockpile. Moreover, Russia is installing the land-based Kalibr in violation of the INF Treaty and is performing flights of nuclear-capable bombers near NATO airspace. Moscow is simulating attacks in a move that only confirms what Western military experts said about the rapid erosion of the bloc’s nuclear deterrent. In addition to the robust saturation of NATO-adjacent areas with conventional and non-conventional capabilities, anti-access/area denial (A2/AD) measures add to the general concerns of a Russian military build-up.

As a solution to this problem, air forces and aviation assets are pointed to, as well as more long-range, survivable, precision strike capabilities from a ground sites with proper density. As U.S. Defense Secretary Robert Gates underlined several times, the need for more solid investments in intelligence, surveillance, and reconnaissance assets is also present, as without the means to identify, process, and strike targets, fighters alone will be of limited use.

Towards NATO 2030 within a military context

As NATO Secretary General Jens Stoltenberg underscored at the Riga Conference on November 12, the NATO 2030 project is intended to: • •

•

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Stay strong militarily.

Strengthen the political alliance by putting stress on common elements for all allies.

Adopt a more global approach to cooperation.

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© Source: Saab

While political “unifiers” are sometimes difficult to find, nobody is currently questioning the need for constant strengthening of the eastern flank and maintaining a credible deterrent in this area. The latest report of the Reflection Group also underpinned this necessity6.

NATO’s incoming new strategic concept (the new Security Strategy is to be adopted during the North Atlantic meeting in Madrid, 2022), as advertised by the NATO SG, should definitely respond to the new real, including military challenges from Russia. Why cannot it be solved at a lower level of military doctrines and why should it be introduced in the new strategic document? As Kalvik argues, Russia is identifying a threat coming from the U.S. in the form of a possible “aerospace blitzkrieg”, when the initial period of war is “United for a New Era. Analysis and Recommendations of the Reflection Group appointed by the NATO Secretary General”, 25 November 2020, at: https://www.nato.int/ nato_static_fl2014/assets/pdf/2020/12/pdf/201201Reflection-Group-Final-Report-Uni.pdf.

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Poland and the Baltic Sea Region in the New NATO Strategic Concept

Swedish Jas 39 E Gripen. The Swedish Air Force is one of the strongest among the countries of the Baltic Sea basin.

decisive and the adversary is determined to seize the strategic initiative. To undermine the American advantage, Russia is ready to use a whole array of forces and means, not only those accessible within a single domain (air, ground, naval), and also deployed in a specific theatre7. Therefore, it is firm about achieving information superiority (through ISR satellites) and building integrated air defense layers.

So is Russia eager to dominate the cyber domain and use cyber space to perform information, intelligence, and penetration operations, as well as to implement all kinds of subversive hybrid and disinformation scenarios.

Against such a complex background, the traditional ways of projecting power are considered obsolete while many analysts argue that there is an urgent need for NATO to start to “think big” again See: Kalvik, J., “Russia Does Not Have an A2/ADstrategy! Nor does it have Gerasimov doctrine”, October 24, 2018, https://www.etterretningen.no/2018/10/24/ RUSSIA-DOES-NOT-HAVE-AN-A2-AD-STRATEGY/.

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and find a new source of competitive advantage. In light of the American space potential, any such advantage must include this particular component. The same applies to cyber security, including 5G and 6G technologies. Moreover, a sectoral approach should give way to a holistic concept of warfare allowing the Alliance to reclaim its room for manoeuvre. As for Poland and the Baltic States, offsetting Russia’s A2/AD capabilities means keeping forward defense postures on land – by recreating divisions and corps as manoeuvrable units, assuring military mobility, strengthening special forces cooperation, and revising procurement policies to coordinate efforts – and in the air8. The Air Policing mission should be transformed into more robust Air Defense.

In the same vein, considering Russia’s military build-up in the close vicinity 8 See: Dalsjö, R., Berglund, C., Jonsson, M., “Bursting the Bubble Russian A2/AD in the Baltic Sea Region: Capabilities, Countermeasures, and Implications”, FOI, March 2010, at: https://www.foi.se/rest-api/report/FOIR--4651--SE.

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Security to NATO’s eastern wing, the concept of deploying boost-phase interceptors should be once again revised. For many years, the American Missile Defense Agency was slow to develop this layer of anti-ballistic and missile defense due to some technical feasibility concerns. This tendency could yet be reversed through new technology measures.

Militarily, the pace of the reforms in NATO should be considered as satisfactory.

Yet, can we assume that this region is already in position to credibly deter threats, mostly from Russia? The answer is obviously no and these countries are still racing against time – if to consider the “lost decade” when they refused to make their armed forces more effective and capable – sometimes amid political indecisiveness and inconsistency. All of these deliver the image of the eastern flank a bit too “benign” against a backdrop of the situation in Europe’s east whose countries witness regularly direct and open military intimidations together teamed with large disinformation campaign and other hybrid actions, including incursions of fighters and drones into their territory9.

An important element of the Russianorchestrated disinformation campaign run via traditional media outlets, troll farms and even some think-tanks consists of disseminating opinions NATO is challenging the security of Russia through a military build-up on the bloc’s east whose countries likely to join are forming an anti-Russian coalition. At the same time, Russia remains silent about its deeds aimed at spoiling the state of relative stability of this region (militarization of Kaliningrad, obscure military drills, CFE and INF suspension, etc).

9 See: Frear, T., Kulesa, Ł., Kearns, I., Dangerous Brinkmanship: Close Military Encounters Between Russia and the West in 2014, Policy Brief, ELN, November 2014, at: http://quote.ucsd.edu/deterrence/ files/2014/12/Dangerous-Brinkmanship.pdf.

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However, the general context of NATO’s military adaptation is difficult. On the positive side, no more Western military additions, such as those in Afghanistan, would allow the alliance to streamline financial resources for other tasks. The main obstacle is the Covid-19 pandemic now consuming the mindsets of politicians and influencing national economies.

In many countries, the outbreak has reshuffled government priorities, not to mention the tasks of their militaries and prospects for defense expenditure. Most importantly, NATO’s Defender 2020 which is crucial and much-anticipated exercise in the bloc’s eastern wing, were reduced and partially postponed, which raised serious doubts about how the Alliance would react in face of biological warfare.

Could it respond promptly to some severe staff shortage amid a growing number of infections? These concerns also apply to countries along the eastern flank that should once again advocate for their vital security interests to be recognized under a new NATO strategic concept, also through regional formats: 3SI or B9.

Although the new U.S. administration has so far met its allied obligations towards the eastern flank (SM-3 Block II missiles will be operational in Poland by 2022), what might worry are Washington’s pivot towards Asia and its growing competition with China. The latest migrant crisis along the eastern flank, a massive military buildup at the Ukrainian border together with the ongoing integration of Belarusian and Russian military potentials and a constant Russian war rhetoric prove that the risk is imminent in the region while an American focus on China may distract the ally with a bigger power projection scheme towards other theatres and less attention paid to NATO’s east.

Beata Górka-Winter December 2021

Russian Threat to the Eastern Flank of NATO

Grzegorz Kuczyński

Rapprochement between Belarus and Russia increases a threat to NATO’s eastern flank.

Not only in the military sense, which is demonstrated by the migrant crisis on the border. The danger did not emerge in 2014, but much earlier. Russia is using Lukashenko’s regime or Gazprom to wage hybrid warfare against the North Atlantic Alliance also in the sphere of economy and information.

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n early October, NATO reported that it was expelling eight Russian diplomats from the Russian representative office at NATO. Why? The alleged diplomats proved to be intelligence officers. However, this is not the whole rationale – the officers were believed to be actively spying.

Moscow reacted as could have been predicted. The Russian Federation closed its representative office at NATO and at the same time NATO’s office in

Moscow. This coincided with a two-day consultation of the defence ministers of the NATO member states. It resulted in the adoption of a concept of deterrence and defence for the Euro-Atlantic area, approved by NATO Secretary General Jens Stoltenberg. The concept is classified, but surely one of its key parts is a response to the Russian threat, which involves reacting to a potential simultaneous Russian attack in the Baltic and Black Sea areas with a possible 4/2021

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© EPA/Olivier Hoslet

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Russian Foreign Minister Sergey Lavrov speaks during a press briefing at the end of a NATO-Russia Foreign Ministers' Council in Brussels, Belgium, April 23, 2013.

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Russian Threat to the Eastern Flank of NATO use of nuclear weapons, cyberattacks and an attack in space.

Russia’s reaction was obvious. The defence minister accused NATO of gradually amassing troops at Russia’s borders and of reluctance to engage in dialogue1. The western bloc says it is just the way of deterrence, but it is known that one of the key parts of the plan comprises a scenario of responses to a potential attack by Russia. Moscow sees this as another reason for a new Cold War against NATO. Even Secretary General Jens Stoltenberg admits that the NATO-Russia relationship is at its lowest ebb since the end of the Cold War. Naturally, this affects the security of the eastern flank of NATO, i.e. the member states of the Alliance with a land border with Russia, starting from the North: Norway, Estonia, Latvia, Lithuania, Poland. One must not forget about the NATO members dealing with Russia on the Black Sea: Romania, Bulgaria and Turkey. In recent years, the Alliance has finally come to recognise the threat in the Black Sea region, but at this stage the confrontation on the northern end of the NATO-Russia front remains of key importance.

Belarusian Front

Zapad 2021 strategic military exercise was held this year, according to the four-year scheme. It was a Russian exercise, but involving Belarusian military as well. It was organised on the segment that is of key significance for Moscow, as it is the section of frontal confrontation with the West. The principal phase of the exercise took place from 9 to 16 September. It involved 200,000 troops. The aim of the Zapad exercise was to test the ability of the Russian and Belarusian military to defend the Russian Federation and Belarus against the USA and NATO. Officially, Zapad Шойгу: НАТО укрепляет инфраструктуру на границе с Союзным государством РФ и Белоруссии, TASS, access: 20.10.2021.

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2021 was “defensive in nature” and “was not directed against any specific nation”.

The joint forces of the naval infantry of the Baltic and the Northern Fleets, supported by navy vessels carried out a wide-ranging amphibious landing operation with heavy weapons in the Kaliningrad region, mocking a possible attack on the coast of Poland or the Baltic states. Just like in 2017, the scenario of the exercise featured make-believe enemies: Nyaris, Pomoria and the Polar Republic. “It is an interesting development. While Nyaris appears to represent Lithuania and Pomoria is probably a stand-in for Poland, the Polar Republic is likely intended to represent Norway or another Scandinavian state, heralding a significant role in Zapad-2021 for Russia’s Northern Fleet Joint Strategic Command,” said analyst Michael Kofman2. The exercise involved 10,300 Belarusian soldiers, 2,500 Russians and 50 Kazakhs training at five training ranges, mainly in western Belarus. On 20 August 2021, Andrey Kartapolov, a representative of the Russian Defence Ministry, said that the joint Belarusian and Russian exercise was to bring home to the NATO states that it was not a good idea to disturb the “Russian bear.”

For many years, there have been only two permanent Russian military installations in Belarus – Lukashenko would not consent to establishing any other. The Hantsavichy Radar Station near Baranovichi in the Brest region of Belarus is a west-oriented part of a missile attack warning system. Since the 1960’s, communications between the Russian navy headquarters and its nuclearpowered submarines all over the globe has been supported by the 43rd Navy Communications Centre in Vileyka, Minsk Region. However, it so happens that during Zapad 2021, Russia started to build Kofman, M., Zapad-2021: What to Expect From Russia’s Strategic Military Exercise, warontherocks. com, access: 8.09.2021.

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© Source: Russian MFA

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As part of the joint strategic exercise of the armed forces of the Russian Federation and the Republic of Belarus Zapad-2021, the crews of Mi-28N, Ka-52, Mi-35 and Mi-24 attack helicopters of the army aviation worked out the tasks of aerial reconnaissance, missile strike against ground targets and air cover for a ground group of troops.

up its military presence in Belarus, though for a different reason. The Belarusian Defence Ministry said on 28 August that Russian missile units had arrived in Grodno, Belarus, to create a joint combat training centre for the air force and air defence forces3. Apart from SAM batteries, the centre will house a group of Russian SU-30SM multirole combat aircrafts, which landed in Baranovichi, 150 km East of the Polish border, on 8 September. The Russian planes are to patrol the Belarusian airspace, mainly along the borders with the NATO states. In turn, Russia’s Baltic Fleet is to construct a training centre for the land forces and a combat training centre in the Kaliningrad Region.4 As early as 5 March 2021, the Defence Ministers of Belarus and Russia announced plans to create three permanent shared military training centres: one each in Nizhny Novgorod and Kaliningrad in Russia Rosyjskie wojska rakietowe w białoruskim Grodnie, Russia Monitor, Warsaw Institute, access: 30.08.2021.

and one in the Grodno Region (Belarus).

Earlier, the Defence Ministries of the two countries had signed a five-year strategic partnership agreement. The plan assumes the organisation of over 160 joint activities altogether, nearly half of which are to be military exercises at training grounds.

The exercising of military control over the territory of Belarus will facilitate Russia’s potential military operation against NATO or Ukraine.5 Russian strategists treat Belarus as part of Russia’s own operating area. The Belarusian armed forces only play an auxiliary role. In fact, they are commanded by Russian generals from the headquarters of the Western Military Region of the Armed Forces of the Russian Federation. This is likely to be confirmed in a new military doctrine of the ‘Federal State of Russia and Belarus’ preannounced in October.

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Ibidem.

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Dyner, A. M., Białoruś i Rosja. Przyspieszona integracja, PISM 2021, no. 125 (2323).

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Russian Threat to the Eastern Flank of NATO Reinforcement of the Western Military Region

Belarus is an important, albeit one of several front segments of Russia on the border with the eastern flank of NATO. What is of key importance is the military potential in the Kaliningrad exclave, bordering Lithuania and Poland, as well as a short section of the land border between Russia and Estonia, and a longer one, with Latvia. Russia started a massive military build-up westwards after its aggression against Ukraine. This was accompanied by intensified military flights over the Baltic Sea while tensions went up in this part of Europe. In response, at the July 2016 summit in Warsaw, NATO allies pledged to strengthen the bloc’s eastern flank.

Since then, they have been committed to pursuing a policy of deterrence while remaining open to dialogue with Russia.

Still, Moscow rebuffs the idea of any talks and is now beefing its military potential in the Western Military District that in Russian military strategists’ belief occupies a pivotal role in a potential armed clash with the North Atlantic Alliance.6 The Western Military District is now the most powerful of Russia’s five military districts. It is seeing constant updates to its stockpile. Not only is the Russian military command striving to make some additions to the existing armies, corps, and divisions, but also to create new ones.

In May 2021, Russian Defence Minister Sergei Shoigu announced that another 20 units and formations would be formed in the Western Military District by the end of the year. According to analysts from the Poland-based Center for Eastern Studies, “in total, the offensive potential of the Russian Army’s Land Forces in the western strategic direction was increased by over 50 percent in 2015–2020.”7 Interestingly, Kuczyński, G., Russia vs. NATO’s Eastern Flank: Not Only Military Threat, European Foreign Affairs, access: 30.08.2021.

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Wilk, A., Zbroją i straszą: rosyjska armia na

Russia started a massive military build-up westwards after its aggression against Ukraine.

This was accompanied by intensified military flights over the Baltic Sea while tensions went up in this part of Europe.

Russia is adding more firepower to its Baltic exclave of Kaliningrad. Its location alongside with reports on Russian efforts to beef up both its defensive and offensive potential (by adding more tanks) raise concerns of a deteriorating position of Estonia, Latvia, Lithuania, and Poland – albeit to a lesser extent – when confronted with a potential attack from Russia.

Russia has been gradually strengthening its military potential in the Kaliningrad Region for a long time. This means not only a greater number of more modern tanks or aircraft altering (and reinforcing) the structure of the Kaliningrad grouping.

What is also important is the upgrade of the infrastructure, not least the key base of the Baltic Fleet in Baltiysk, Russia’s westernmost town. The neighbouring NATO states should also be alerted by reports about the strengthening of the parts of the Kaliningrad grouping which may be used for offensive purposes.

A point in case is the equipment of the 336th Independent Marine Brigade with BMP-3F infantry fighting vehicles. This significantly increases the amphibious zachodniej flance, OSW, access: 8.06.2021.

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© Source: gov.pl

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Soldiers from the 2nd Lublin Territorial Defense Brigade. The Territorial Defense Forces under the code name "Strong Support" are underway in the Lubelskie and Podlaskie voivodeships. Its aim is to strengthen the resilience of local communities from border regions to hybrid threats, such as the current migration crisis on the border with Belarus. Poland, November 30, 2021.

landing capabilities of the units of the Baltic Fleet.

Potential War Theatres

The concept of deterrence and defence for the Euro-Atlantic area adopted at the summit of the NATO defence ministers (2122 October), approved by NATO Secretary General Jens Stoltenberg, provides for a need of a simultaneous response by the Alliance to a potential Russian strike in two areas at the same time: in the Baltic Sea and the Black Sea regions. However, there is a significant difference between the two potential fronts. First of all, geography, state borders, the dislocation of the Russian troops and, last but not least, history indicate that the northern front delineated by the borders of Estonia, Latvia, Lithuania and Poland with Russia and Belarus will be much more important in a potential war between Russia and NATO. Russia does not border on NATO further south and 50

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a potential clash may occur on the Black Sea. There is a potential for confrontation on land with NATO-sympathising countries separating NATO from Russia: Ukraine and Moldova.

The military capabilities of the Alliance have long been known to be too modest to repulse a possible aggression in the Baltic states. Some models show that the Russian military – outnumbering the NATO forces several times over – could capture this part of the Alliance within several dozen hours.

Firstly, this is due to the military weakness of Estonia, Latvia, and Lithuania. Secondly, because of a lengthy frontline with Russia, the Baltic Sea behind, and their isolation from fellow NATO members. There is just one bridge between NATO allies and it runs through the Suwałki corridor. The military build-up in Kaliningrad and the volatile situation in Belarus bring a more serious threat to the only strip of land linking

Russian Threat to the Eastern Flank of NATO the Baltic states to the rest of their allies.

What is more, with its missile systems deployed to the exclave and the Baltic Fleet stationed there, Russia could easily cut off the Baltic states on land and thwart any relief missions at sea in the event of war.8 Also, one should not underestimate the military significance of the Nord Stream and Nord Stream 2 infrastructures in the event of an armed conflict. Both corridors run centrally through the Baltic Sea, from north-east to south-west. They separate Sweden, Finland and Denmark – neutral but Russia-sceptical countries – from the countries of NATO’s eastern flank: Poland, Lithuania, Latvia and Estonia. What may be particularly dangerous is the use of the pipeline infrastructure for diversion by Russia’s special naval forces.

The rapidly developing situation in Belarus has contributed to enhanced Russian offensive capabilities in the northern part of NATO’s eastern flank stretching from Estonia to Poland. It is also where NATO countries directly border Russia. The escalation of the border crisis between Belarus and Poland has been used by Russia and Belarus, which is dependent on it, to drum up the war rhetoric. Russian strategic bombers went on a patrol flight and then exercised over Belarus, whereas Lukashenko did not omit to say that this meant an option to use nuclear weapons.9 However, this does not mean that there is no threat from Moscow further south.

Naturally, it is important that Moldova and Ukraine – both showing pro-Western sympathies – are now wedged between Russia and NATO states (principally Romania). However, due to certain circumstances existing in both of these “buffer” countries, one can hardly describe as stable the southern bit of NATO’s

eastern flank running from Slovakia and Hungary through Romania to Bulgaria.

This is chiefly because of the smouldering conflict in Donbas, the annexation of Crimea, and the constant threat of Russian military aggression against Ukraine. Also the strategic situation of Ukraine’s western neighbours could change depending on the scope of this plausible invasion. Another destabilising factor is the Russian troops that have been deeply engaged in the breakaway region of Transnistria. Once in concert with rebel fighters, thousands of Russian soldiers are a threat not only to Moldova. They could also play a tactical role if Russia invades Ukraine. Moldova’s close ties with Romania make it a top security issue for the NATO state.10 One should also mention a third factor – namely Russia’s growing military capability on the Black Sea, made possible after Moscow annexed Crimea. The Russians are building up its grouping on the peninsula and the missile forces stationing there enable it to cover the whole central part of the Black Sea and block access to the Ukrainian ports, but also to threaten the NATO coast on the Romanian and, to a large extent, Bulgarian sections. No wonder that Moscow reacts to all activities of western forces in this region with irritation – note the testy comment

by Defence Minister Sergey Shoigu to the entering of the Black Sea by a large US Navy vessel.11 Hybrid Warfare

Moscow says it is reinforcing its military along its western border just opposite NATO’s eastern wing in response to alleged belligerence of the western military bloc.

This narrative is just one example of the information warfare campaign Moscow has for years waged against the West. And this is one of the top non-military Russian threats 10

8

Kuczyński, G., op. cit.

Совещание с руководством Совета Министров, president.gov.by, access: 11.11.2021.

9

Kuczyński, G., op. cit.

Russian Defense Minister Claims U.S. Presence In The Black Sea Is A Provocation, Radio Free Europe, access: 7.11.2021.

11

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What remains a powerful tool for Russian pressure is energy – or, more precisely its oil and gas supplies – and this exposes the scale of the non-military threat Moscow could represent to NATO’s eastern flank. to NATO’s eastern wing. Information warfare operations are being held on many fronts. One of its goals is an endeavour to smash the cohesion of the North Atlantic Alliance, hence fake news frequently popping up to compromise the presence of allied forces in Poland or the Baltic states.12 What remains a key theme in the information warfare is a claim that NATO is boosting its military presence at the Russian border and so Russia is forced to react by building up its military potential. The actual situation is naturally the reverse.

Russia imperils nations along the eastern flank of NATO through staged provocations and destabilising efforts. The most flashy example of this is a hybrid warfare strategy that Lukashenko wages by sending masses of migrants into the European Union. Yet, it has failed to sow foment in Lithuania. In Poland, the joint Russia-Belarus strategy has turned far more effective, creating deep political chasms the country has seen for years now13. It should be underlined, however, that the migratory pressure on the eastern border of NATO is not Lukashenko’s original idea. Considering the testing of the Finland border in 2015

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Kuczyński, G., op. cit.

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and the capacity of the Russian intelligence to organise the transport of migrants from the Middle East to Belarus, there is no doubt that this operation is inspired and supported by Moscow. In any case, the Russians select their tools carefully, depending on the target of their attacks.

In Estonia and Latvia, Moscow plays the card of Russian-speaking communities.

Elsewhere in Europe, Russia is nourishing the persistent ethnic and historical rows both among NATO states (PolandLithuania) and as well as between the bloc members and, for example, Ukraine.

What remains a powerful tool for Russian pressure is energy – or, more precisely its oil and gas supplies – and this exposes the scale of the non-military threat Moscow could represent to NATO’s eastern flank.

Russia had skilfully used this tactics long before Putin invaded Ukraine and sparked off Cold War 2.0 with Western nations.

Many NATO states remain heavily reliant on Russian energy commodities. The diversification policy pursued by Poland (imports of LNG, the Baltic Pipe) is slowly altering and boosting the security of also its neighbouring allies (for example the gas pipeline to Lithuania). This policy is best illustrated by the support of Moldova with gas supplies at a critical moment of its gas standoff with Russia.14 However, such projects as German-Russian Nord Stream 2 may seriously undermine those efforts. One should bear in mind that the threat from Russia is more than just military. Moreover, in this regard the Baltic States or Poland cannot count on such an unequivocal support from Germany, France or the USA, which Russia is perfectly aware of and is trying to leverage.15 Grzegorz Kuczyński December 2021 14 Moldova buys gas from Poland in trial purchase as Russia talks falter, Reuters, access: 25.10.2021.

15

Kuczyński, G., op. cit.

Russian Anti-NATO Disinformation During the COVID-19 Pandemic Mikołaj Rogalewicz

The COVID-19 pandemic has increased vulnerability to disinformation. Russia has used it to its own advantage by conducting information operations against NATO. Their primary goal during the ongoing health crisis has been to undermine the unity of the Alliance while improving Russia's image.

It aimed to create a vision of the epidemic on a regional and global scale that would be favorable to Moscow, portraying Russia as a haven of security in control of the situation and creating false messages concerning NATO – by presenting it as exposed and harmful.

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The development of the Sputnik vaccine was an occasion for Russia to discredit other countries’ efforts in battling the pandemic.

The Essence of Russian Disinformation

Disinformation is a tool used by various states to achieve their political goals. It is also an element of Russia’s foreign policy that has been used in recent years to increase the state’s influence and weaken its enemies, including NATO. Although disinformation goes back to the Soviet Union’s propaganda, today’s techniques are much more effective thanks to sophisticated communication strategies and the usage of the Internet and social networks, which allow such messages to reach many people in multiple countries1.

The Kremlin invests heavily in its propaganda, operating media outlets such as a multilingual news portal Sputnik, a TV channel RT, and TASS, the Russian Press Agency, all reaching international audiences2. Russian disinformation involves creating an ‘early narrative’ and then disseminating it through different media and websites. Such narratives are subsequently repeated on many different sources to increase their credibility.

The COVID-19 pandemic has made disinformation spreading easier than before. Under the conditions of fear, Dąbrowska, A. (2017). Dezinformacja – potężna broń w rękach Kremla (interview with Mark Laity), Polska Zbrojna, http://polska-zbrojna.pl/home/arti cleshow/23040?t=Dezinformacja-potezna-bron-wrekach-Kremla (accessed on 25.10.2021).

2

CSIS (2020). Countering Russian Disinformation, CSIS, https://www.csis.org/blogs/post-soviet-post/ countering-russian-disinformation (accessed on 25.10.2021).

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© Source: wikimedia commons

Russian Anti-NATO Disinformation During the COVID-19 Pandemic uncertainty, and chaos triggered by the health crisis, the public has become more susceptible to false and manipulated journalism. This, in turn, contributes to the spread of disinformation, which Russia has used to achieve its goals. During the COVID-19 pandemic, it targeted various states and entities, including NATO. Targets of Russian Disinformation against NATO

Disinformation is one of the tools of Russia’s foreign policy designed to attain its geopolitical purposes such as restoring Russian dominance in the post-Soviet area, establishing a polycentric world model, and increasing its political, economic, and military power around the globe. The main objective of such actions against NATO during the COVID-19 pandemic has been to weaken the unity and position of the Alliance and to improve Russia’s international image.

The disinformation targeting NATO is directed at various groups, such as western audiences in NATO countries, as well as viewers in Russia and the post-Soviet area.

This propaganda is designed to generate chaos and deepen social polarization within NATO countries. It is supposed to fuel conflicts and lead to their internal weakening3. It is also meant to undermine public faith and trust in the Alliance. This is why Western countries and NATO are portrayed as helpless in the face of the crisis, while Russia is depicted as a state that handles it well and helps others (e.g., by supplying medical equipment to Italy).

Furthermore, disinformation directed at the Russian society aims to divert its attention from the internal problems of Moscow.

Russian Anti-NATO Disinformation During the Szyszko, J., Świerczyński, M., Cała prawda o cyfrowej dezinformacji, Polityka Insight, https://www.politykainsight.pl/_resource/ multimedium/20112641 (accessed on 25.10.2021).

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COVID-19 Pandemic

Russia’s disinformation activities against NATO involve disseminating multiple different propaganda narratives and reaching specific audiences. During the COVID-19 pandemic, pro-Kremlin media and websites have shaped a regionally and globally favorable picture of the epidemic from Russia’s point of view by creating fabricated reports, manipulating material, presenting incomplete data or information in a false context, and fueling antidemocratic and anti-European sentiments.

In Russian narratives, the COVID-19 pandemic revealed the helplessness of the West and NATO, as those ineffective in the face of the crisis. It showed chaos and highlighted the lack of solidarity among European states that were solely dependent on each other. It pointed to the destabilization of the West and the disintegration of European countries, suggesting that Russophobia would no longer be profitable due to the economic crisis, which could be overcome through cooperation with Moscow and the lifting of the imposed economic sanctions.

Another ‘alternative reality’ shown was that Russia and China were in full control of the situation and that the pandemic would contribute to the emergence of a new international order. Russia was presented as a haven of security and stability4. For this reason, the subject of vaccines was another important part of propaganda. Moscow wanted the Russian vaccine to be the first to be launched and therefore had been released before it passed all the necessary tests. This created the image of Russia winning the vaccine race and being the first country to find Instytut Europy Środkowej, Rosyjska dezinformacja w Europie Wschodniej i państwach bałtyckich w czasie pandemii COVID-19, https:// ies.lublin.pl/komentarze/rosyjska-dezinformacjaw-europie-wschodniej-i-panstwach-baltyckich-wczasie-pandemii-covid-19/ (accessed on 25.10.2021).

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vaccinated against COVID-19 and other viruses and that western secret service agents had had the coronavirus vaccine before it even appeared in China8.

A key aspect of Russian disinformation at the beginning of the pandemic was the spread of communication that the coronavirus had been created in a U.S. laboratory in Wuhan, as a biological weapon of NATO. Another thing pointed out was that American soldiers were spreading the virus in Europe, making it impossible for Alliance troops to help the Baltic states or other allies in Central and Eastern Europe. Furthermore, there have been reports that NATO was using COVID-19 to mobilize western military forces against Russia6.

Disinformation was also propagated in relation to the ‘Steel Brawler’ exercise in Latvia and the BALTOPS maritimefocused drills in the Baltic Sea. It suggested that the two initiatives put civilians at risk and increased the number of COVID-19 infections. In reality, the Steel Brawler took place exclusively on military training grounds and BALTOPS at sea to avoid contact with the local population. The Russian disinformation against NATO in the Baltic States was also manifested in a fake letter allegedly written by the NATO Secretary-General to the then Lithuanian Defense Minister Raimundas Karoblis to withdraw troops of the Alliance from that country9.

The Defender-Europe 20 exercise, which took place in several European countries in 2020 and was a test of NATO’s capabilities, also became an object of disinformation. Due to the pandemic, its size and scope were limited to protect the armed forces and civilians. These drills were depicted in Russian narratives as threatening the health of ordinary people because they allegedly ignored pandemicinduced constraints7. It was pointed out that the forces of the Alliance were to move through the most infected parts of Germany without regard for danger.

Other false reports were spread claiming that NATO soldiers had already been Instytut Europy Środkowej, Rosyjska dezinformacja w Europie Wschodniej i państwach bałtyckich w czasie pandemii COVID-19, https:// ies.lublin.pl/komentarze/rosyjska-dezinformacjaw-europie-wschodniej-i-panstwach-baltyckich-wczasie-pandemii-covid-19/ (accessed on 25.10.2021).

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6

EUvsDisinfo (2020). Disinfo: NATO uses COVID-19 to mobile western military forces against Russia, https://euvsdisinfo.eu/report/nato-usesthe-covid-19-to-mobilize-western-military-forcesagainst-russia (accessed on 25.10.2021).

8

NATO (2020). NATO’s approach to countering disinformation: a focus on COVID-19, https://www. nato.int/cps/en/natohq/177273.htm (accessed on 25.10.2021).

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Ukraine and Zapad 2021

Russia’s disinformation during the pandemic has also targeted Kyiv. Russia has waged permanent information warfare against this country, which intensified in 2014. Its main goal has been to weaken the country’s global position. The proKremlin narratives during the pandemic were in line with the old trend of presenting Ukraine as a failed state. They pointed to the inadequate response of Kyiv, the lack of capacity and resources to combat the pandemic, and the feebleness of the administration and government. Another false information was about the origin of the virus as a U.S. biological weapon and American laboratories that allegedly operate in Ukraine and were the site of the

European Foreign Affairs

EUvsDisinfo, Disinfo: NATO soliders have already been vaccinated against COVID-19, 2020. https:// euvsdisinfo.eu/report/nato-soldiers-have-alreadybeen-vaccinated-against-covid-19 (accessed on 25.10.2021).

NATO (2020). NATO’s approach to countering disinformation: a focus on COVID-19, https://www. nato.int/cps/en/natohq/177273.htm (accessed on 25.10.2021).

Russian Anti-NATO Disinformation During the COVID-19 Pandemic

Soldiers participating in the NATO military exercises DEFENDER-Europe 20, November 11, 2020. The exercises were a target of Russia’s disinformation campaign.

creation of the SARS-CoV-2 virus10. In this way, the fears of foreign infiltration of the country were incited in Ukraine, and the belief that authorities were ‚puppets’ of the West and Kyiv was governed outside the EU and the USA was promoted. The message was that Ukrainians were incapable of governing their state and needed external domination. Some of the pro-Kremlin narratives have become relatively popular.

For example, false information about U.S. laboratories in Ukraine made its way onto a major Ukrainian TV channel 1+111.

10 Wolska, A. (2020). Dezinformacja w czasach pandemii. Jak wygląda i jak się z nią skutecznie zmierzyć?, Euractiv. https://www.euractiv.pl/section/ bezpieczenstwo-i-obrona/news/dezinformacjaw-czasach-pandemii-jak-wyglada-i-jak-sie-z-niaskutecznie-zmierzyc/ (accessed on 25.10.2021).

11 Piotrowski, M. (2021). Ukraina odporna na dezinformację COVID, Instytut Wolności, https://

© PAP/Marcin Bielecki

The Zapad 2021 strategic exercises of the Russian and Belarusian armies, which took place in mid-September 2021, were significant for Russian disinformation.

The propaganda machine presented them as a defensive action against the growing aggression of NATO, which allegedly sought to destabilize the two countries and change their ruling regimes. Zapad has also been used to terrorize neighboring states by making them feel a real threat of military conflict. Another campaign against NATO states and Ukraine, whose objective was to fill the media with information about the superiority of the Russian military, has triggered anxiety. The Russian narratives on these exercises presented the military instytutwolnosci.pl/11657-2/ (accessed on 25.10.2021).

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Though Russia was among the countries most hit by the coronavirus, it instrumentalized the pandemic as part of its disinformation campaign.

relationship with Belarus as a permanent anti-Western martial alliance12.

NATO in Action Against Disinformation

Russian information activities against NATO have been present for years, and the COVID-19 pandemic served as a very good excuse for their intensification.

Disinformation is a dangerous and easily accessible weapon, inexpensive and of unlimited reach, which poses a threat to the Alliance. For this reason, NATO takes action against it. This is why the Strategic Communications Center of Excellence (NATO StratCom), based in Riga, was 12 Wilk, A., Żochowski, P. (2021). Ćwiczenia „Zapad 2021”. Rosyjska strategia w praktyce, OSW, https://www.osw.waw.pl/pl/publikacje/komentarzeosw/2021-09-03/cwiczenia-zapad-2021-rosyjskastrategia-w-praktyce (accessed on 25.10.2021).

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© PAP/EPA/Maxim Shipenkov

established in 2014 to help improve strategic communications capabilities within the Alliance and its allies13.

StratCom brings together international experts from various backgrounds who use modern technologies for analysis and research.

StratCom was created to incorporate communications into NATO policy, integrate information strategy with the rest of the command, and combat disinformation. The aim is to raise awareness of information operations and to refute misleading or false claims.

In its analytical reports, StratCom summarizes the tactics, messages, and objectives of Russian propaganda. After 13 StratCom, About NATO StratCom COE, https:// stratcomcoe.org (accessed on 25.10.2021).

Russian Anti-NATO Disinformation During the COVID-19 Pandemic the annexation of Crimea, it focused on helping NATO member states identify fabricated or deceptive narratives and increasing public resistance to Kremlin disinformation. StratCom’s coordinated efforts are critical to strengthening the collective security of member states and countering disinformation efforts against NATO. Conclusions

Russian disinformation affects western societies and poses a threat to the national security of NATO countries. The intensity of such operations is steadily increasing, the pandemic being one of its reasons (to Moscow’s internal and external benefit). It has boosted people’s susceptibility to false information due to uncertainty and chaos. Russia’s operations against NATO are still ongoing, with some narratives appearing regularly in Russian media, statements by politicians, or on pro-Kremlin websites.

Russia is targeting various groups, and their main goal is to undermine the unity and position of NATO and to improve Moscow’s global image.

During the pandemic, Russian antiNATO disinformation has focused on showing the harmfulness and helplessness of the Alliance and presenting its actions as aggressive towards Russia. Simultaneously, Moscow was portrayed as a security anchor in control of the situation and capable of adequately managing the crisis – and even helping other countries. Another aim of these narratives was to show the superiority of authoritarian states over democratic ones. Disinformation was also directed against Ukraine, where the fear of the country being infiltrated by foreign services was fueled to create a negative image of NATO. An information operation related to the Zapad 2021 exercises was also carried out, which presented them as a defensive measure

Russian information operations against NATO will continue and, therefore, must be countered effectively. It is crucial in this context to strengthen StratCom's cooperation to raise public awareness and refute misleading or fabricated claims. taken by Belarus and Russia against the allegedly growing aggression of the Alliance.

Russian information operations against NATO will continue and, therefore, must be countered effectively. It is crucial in this context to strengthen StratCom’s cooperation to raise public awareness and refute misleading or fabricated claims. Educational campaigns are also of key importance to make European societies more resistant to false or manipulated information.

Another thing is building trust in those in power and public institutions and implementing transparent policies. Some western audiences believe the Kremlin’s narratives because they do not believe the authorities in their own countries. The impact of disinformation is greater when trust in the government decreases.

Mikołaj Rogalewicz December 2021

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Security of Critical Infrastructure

Wiktor Sędkowski

In early May 2021, a ransomware attack led to the shutdown of a fuel pipeline carrying 45% of diesel, gasoline, and jet fuel supplies for the eastern part of the United States. As a result, not only the company managing the transmission infrastructure suffered, but also end-users, who, in fear of price spikes and longlasting fuel supply interruptions, lined up in front of numerous gas stations in the Southeast region of the U.S. Within a few days, fuel prices increased dramatically, inciting chaos at gas stations. In several states, including Virginia, Florida, and Georgia, authorities were forced to declare a state of emergency because the situation posed a threat to the safety of citizens.

A broken password resulted in fuel shortages and an exceptional situation on the East Coast.

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Security of Critical Infrastructure

A Colonial Pipeline facility in Baltimore, Maryland, USA, May 10, 2021.

A cyberattack forced the shutdown of 5,500 miles of Colonial Pipeline's sprawling interstate system, which carries gasoline and jet fuel from Texas to New York. The FBI confirmed that Darkside ransomware is responsible for the attack that compromised the Atlanta-based pipeline company.

Colonial Pipeline Co.

Hackers from a criminal group DarkSide gained access to Colonial Pipeline’s network on 29 April. They got into it by logging in using valid access credentials to VPN, a network that allows employees to remotely access the company’s computer infrastructure1. The VPN account used by the attackers had not been used for some time. According to best security practices, it should have been deactivated or completely removed from the system at the time of the attack. Unfortunately, the account remained active and could still be Montalbano, E. (2021). DarkSide Pwned Colonial with Old VPN Password, Threat Post, https:// threatpost.com/darkside-pwned-colonial-with-oldvpn-password/166743/, access 07.10.2021.

1

© PAP/EPA/Jim Lo Scalzo

used to access the Colonial network. There is no certainty as to how the intruders obtained the password. However, the same password was certainly available in public databases on the Internet, so even if hackers did not acquire the complete access data directly, they were able to breach security using a dictionary attack.

It involves launching an automated process to check the passwords available on a previously prepared list. Hackers check one password after another, hoping that one of them will be correct and allow them to access the resource. Criminal groups responsible for ransomware attacks also use phishing to find passwords.

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Having consulted with experts about the situation, Colonial Pipeline paid the ransom, about $4.4 million in bitcoin. In return, DarkSide provided keys and a decryption tool so that the company could restore the systems disabled during the attack. sensitive data. Importantly, in many cases, the victim does not have to reveal the password to the targeted system. As users, we are in the habit of using the same or similar passwords on various websites.

Cybercriminals deliberately exploit this weakness.

In the case of Colonial Pipeline, a single hacked password allowed attackers not only to enter the network but also to take control of a machine inside the enterprise.

The attackers then, using standard techniques, elevated their privileges, gaining access to the domain controller2.

Taking it over is, in practice, equivalent to taking control of the entire enterprise network, as this element plays the role of a central database. It is responsible for user authentication, enforcement of security policies, and access to resources. A domain controller allows the person managing Trend Micro Research (2021). What We Know About the DarkSide Ransomware and the U.S. Pipeline Attack, Trend Mico, https://www. trendmicro.com/en_us/research/21/e/what-weknow-about-darkside-ransomware-and-the-uspipeline-attac.html, accessed 07.10.2021.

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it to grant any user access to any system resource, change existing privileges, and distribute global network settings.

Having obtained such high access rights, the attackers easily installed software encrypting hard drives on computers connected to a corporate network.

The process would be much more difficult if the unused account was blocked.

If the procedures to check password strength had monitored the available public databases and raised an alert accordingly, the attackers might not have been able to get into the system so easily. If the commonly used multifactor authentication (logging in with additional security such as SMS code or token) had been implemented, the attack could have been stopped. In addition, if an IDS (intrusion detection system) had correctly identified suspicious logins, it might have been possible to cut off the hackers’ access before they penetrated the network further. Unfortunately, none of the above happened. On Friday, May 7, an employee in Colonial Pipeline’s control room saw a ransom demand on a computer screen. After a while, the same message appeared on other displays.

According to the procedures and for fear of a possible escalation of damage, the process of stopping pipeline operations began immediately. Within 70 minutes of the incident, the entire pipeline was shut down, the first time in 57 years. Having consulted with experts about the situation, Colonial Pipeline paid the ransom, about $4.4 million in bitcoin. In return, DarkSide provided keys and a decryption tool so that the company could restore the systems disabled during the attack.

The story of Colonial Pipeline did not end after the ransom was paid. The United States responded to the attack. U.S. law enforcement obtained just over half of the ransom, $2.3 million. They took over the criminal group’s infrastructure, and after

Security of Critical Infrastructure tracing transfers on the bitcoin network, they were able to find the funds from the crime. As a result, approximately 63.7 bitcoins transferred to DarkSide accounts

by Colonial Pipeline were recovered.

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A long list of victims

The Colonial Pipeline case is not the first example of an attack on critical infrastructure, and the energy sector, although one of the main targets of cyberattacks, is not the only one affected.

The critical infrastructure of companies in the transportation, public services, telecommunications, and strategic manufacturing sectors is also exposed to danger.

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•

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In 2013, Iranian hackers breached the security of the Bowman Avenue Dam in New York City, taking control of the sluice gates3.

In December 2015, the world witnessed the first known power outage caused by a cyberattack. Three Ukrainian electricity distribution companies were attacked by BlackEnergy malware and hundreds of thousands of homes were left without electricity.

In early 2016, news outlets informed of an attack on Israel’s power grid. In this case, Israel Electricity Corporation’s response was quick enough to stop the ransomware attack early, automatically disconnecting infected systems from the network and preventing the virus from spreading.

In 2015 and 2016, the global SWIFT system, used by banks around the world to send money electronically, was attacked by North Korean hackers. Linked to a group called

Berger, J. (2016). A Dam, Small and Unsung, Is Caught Up in an Iranian Hacking Case, The New York Times, https://www.nytimes.com/2016/03/26/ nyregion/rye-brook-dam-caught-in-computerhacking-case.html, accessed 07.10.2021.

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Lazarus, the attack resulted in millions of dollars being stolen.

Cybercriminals are attacking even fragile targets as nuclear power plants. In 2016, malware used by attackers to steal sensitive information and conduct corporate espionage operations was detected at a German nuclear power plant 4.

Wolf Creek Nuclear OC, based in Kansas, faced a phishing attack in 2017. Employees with access to critical infrastructure were targeted directly.

In 2019, malware was discovered on the network of India’s largest nuclear power plant KKNPP (Kudankulam Nuclear Power Plant). The National Cyber Security Agency and the Indian Department of Atomic Energy revealed that one of the plant’s employees had connected a malware-infected laptop to the plant’s administrative network.

Although the plant’s operational network was properly separated from the administrative systems, the situation still caused some trouble.

Security experts revealed that a large amount of data from the KKNPP’s administrative network was stolen as a result of the infection5.

Defense

Although critical infrastructure protection has been an issue for a very long time, its definition is relatively new. It first “appeared in official US government documents with President Bill Clinton’s directive of 22 May 1998, on critical infrastructure protection. This directive Townsend, K. (2016). German Nuke Plant Hit by Disruptive Cyber Attack: Report, Security Week, https://www.securityweek.com/german-nukeplant-hit-disruptive-cyber-attack-report, accessed 07.10.2021.

4

Das, D. (2019). An Indian nuclear power plant suffered a cyberattack, Washington Post, https://www. washingtonpost.com/politics/2019/11/04/an-indiannuclear-power-plant-suffered-cyberattack-hereswhat-you-need-know/, accessed 07.10.2021.

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Colonial Pipeline system. The company says it transports 45 percent of the fuel consumed on the East Coast.

Today, we know that the probability of a remote attack on a power plant or a water treatment system through malicious software is much higher than that of a kinetic bombardment. indicated the need for the United States to increase its alertness to possible terrorist attacks”6. In Poland, around the same time, a law on the protection of persons and property was passed, which indicated selected elements of the state’s infrastructure, including key facilities and equipment, and means of transport Szewczyk, T., Pyznar, M., Ochrona infrastruktury krytycznej a zagrożenia asymetryczne, Przegląd Bezpieczeństwa Wewnętrznego 2080–1335, 2 (2010), pp. 53–59.

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important for defense, economy, and public security.

More than two decades ago, countering cyber threats was not such a priority. Today, we know that the probability of a remote attack on a power plant or a water treatment system through malicious software is much higher than that of a kinetic bombardment.

Keeping pace with technological changes, modern countries have, through legal acts, introduced definitions and lists of objects, installations, devices, or even services constituting critical infrastructure (in Poland, the Act of 26 April 2007 on crisis management). They also defined the duties of key service operators. Key services are those that are the most important for maintaining critical social or economic activity. Their providers are responsible for ensuring adequate protection against the consequences of cyberattacks.

We cannot complain about the lack of regulations that result from national and international legislation. Security requirements are defined, among others,

Security of Critical Infrastructure by the EU Cybersecurity Act [Regulation (EU) No 526/2013], the EU’s Cybersecurity Strategy for the Digital Decade (of 16 December 2016), and national laws (in Poland, the Act on the National Cybersecurity System of 5 July 2018, among others). In 2021, the European Council, debating the cybersecurity strategy in the EU, stressed that it is essential “for building a resilient, green, and digital Europe.” The Directive on Network and Information Security (NIS Directive) was updated and work began on the Directive on the Resilience of Critical Entities (RCE Directive). The European Union Network and Information Security Agency was transformed into a new European Union Agency for Cybersecurity7.

Legal regulations will obviously not stop the attacks. Therefore, those responsible for the management of critical infrastructure must not place emphasis only on the system’s compliance with requirements and standards. A fundamental element is the cooperation of management boards with security and IT departments and the implementation of security solutions following the guidelines of experts from the field. Priorities and techniques will probably vary depending on the sector, the size of the company, and the technology used in its systems. The basics are what is in common, and every person responsible for security should remember the following seven elements listed by the U.S. National Cybersecurity and Communications Integration Center (NCCIC)8.

Patch management

Publicly known vulnerabilities in software used in systems should be fixed as soon as possible to minimize the time in which an attacker can potentially exploit them. Experts recommend carefully Enisa, https://www.enisa.europa.eu/, accessed 07.10.2021.

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NCCIC (2016). Seven Steps to Effectively Defend Industrial Control Systems, Homeland Security.

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monitoring all system components, always updating software to the latest available version, and thus patching all revealed vulnerabilities. They also point out that the same procedures should be implemented for devices temporarily connected to the system, such as employee laptops used in BOYD (bring your own device) mode or equipment of subcontractors performing diagnostics.

Reduction of the attack area

To gain unauthorized access to a system, an attacker needs to find just one vulnerability, exploit one of the weaknesses in security implementation.

For this reason, it is necessary to ensure that the attack possibilities are as limited as possible. Services available in the company’s internal network should not be accessible from the outside unless there are sufficient business reasons to do so. Network systems should only be interconnected when needed. If their connection is needed, then perhaps it is possible to establish them only in one direction. A one-way connection makes an attack much more difficult. The NCCIC expert guidelines explicitly state the need to isolate ICS (Industrial Control System) networks from other untrusted networks, especially the Internet. Other basic practices to reduce the attack field include blocking all unused ports and deactivating excessive and unused services.

Fortification

This countermeasure strategy is important, but not always easy to implement. It consists of dividing the system into several zones, due to which the range of a possible attack is limited. It also allows for faster recovery from an incident, and thus reduction of related costs9.

Separation of logical and, what is even better, physical parts of the network, will NCCIC (2009). Improving Industrial Control Systems Cybersecurity with Defense in Depth, ICSCERT.

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Cybersecurity help to prevent criminals from extending the access they gained in the initial phase of the intrusion.

Access rights

Criminals very often use previously obtained valid credentials to break in, as confirmed by the Colonial Pipeline example. Where possible, we should implement multifactor authentication and always reduce user privileges to the minimum needed to perform their duties. If we cannot use security keys or biometrics, we should bear in mind the requirements for user passwords, with a special emphasis on their length, complexity, and uniqueness. We should also remember that taking over credentials, allowing an attacker to impersonate real users, leaves less evidence of an intrusion than exploiting a security hole or running malware.

Remote access

Each remote access channel must be known to the network operators. Connections should, within reason, be time-limited and monitored, and remote access should always be uniform. We should not allow separate access procedures for vendors, contract employees, and fulltime employees. If possible, we should implement two-factor authentication, using two separate types of authentication (e.g. password and software-generated token).

© Source: wikimedia commons

ransomware attacks, Petya, spread by imitating a MEDoc software update10.

The lack of mechanisms to monitor the update process led to the infection of 12,000 computers.

Lists of allowed applications

The defined list of allowed applications (whitelist) allows one to limit the possibility of accidental and intentional launching of malicious software. This solution will cause only the applications placed on the list to run on our network systems. It will make it harder for criminals to execute malicious code, but unfortunately, it will also complicate the work of our staff. Another step is to use solutions that would monitor network traffic, to which updates for allowed applications and whitelist updates are sent. One of the most spectacular 66

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Monitoring procedures

Defending critical infrastructure against modern threats requires active monitoring.

Experts recommend focusing on tracking: • •

I P traffic at ICS boundaries, IP traffic on the control network to identify new connections,

10 Tung, L. (2017). Petya ransomware attacks were spread by hacked software updater, ZD Net, https://www.zdnet.com/article/microsoft-petyaransomware-attacks-were-spread-by-hackedsoftware-updater/, accessed 07.10.2021.

Security of Critical Infrastructure

Kudankulam Nuclear Power Plant, the biggest nuclear power plant in India, suffered a malware attack. Nuclear facilities are a vulnerable target for hackers.

• • •

logs from the HIDS and NIDS systems, the authentication process to identify unusual times or connection sources, administrative actions to detect access control manipulation.

Taking a hit

Even the best-prepared defense does not guarantee 100% security. Risk management professionals know this. The cybersecurity risk, even after implementing the best and most expensive solutions, will never be reduced to zero. It could only happen if we applied an avoidance strategy and stopped our actions. For this reason, we must be ready for an attack and have a proper incident response plan in place.

A well-prepared set of tools and procedures

The cybersecurity risk, even after implementing the best and most expensive solutions, will never be reduced to zero. that the security team can use to identify, eliminate the threat, and recover from cyberattacks will ensure that the damage from an attack is brought to a minimum.

Wiktor Sędkowski December 2021 4/2021

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From Sobieski to Sienkiewicz: Moldova Cannot Be Free Without Resurrecting Its Alliance with Poland Daniel Pogorzelski

Maia Sandu is doing what she can to redirect Moldova’s political orientation. Renewing the country’s forgotten ties to Poland is the key to making it last.

In late October of this year, Poland came to Moldova’s defense as Russia was once again using energy supplies as a weapon. Warsaw has now become Moldova’s first non-Russian natural gas supplier. While Europe tries to avert a looming shortage of this vital resource with winter approaching, Moscow is using it to reassert control over a Moldovan government seeking closer ties with Europe.

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From Sobieski to Sienkiewicz: Moldova Cannot Be Free Without Resurrecting Its Alliance with Poland

Jan III Sobieski, the 17th century king of Poland, tried to place his son on the Moldavian throne as Hospodar from Suceava’s “Zamca.”

T

he situation in the lands of Central and Eastern Europe is exceptionally tense as Vladimir Putin’s Russia is pugnaciously thrusting itself across the region. Skillfully using proxies such as Belarus and the puppet states of the Luhansk and Donetsk People’s Republics in the Donbas, Moscow has greatly honed its ability to engage in hybrid warfare since occupying Crimea in 2014.

Russian forces are once again massing themselves along the Ukrainian border this year, with credible intelligence sources reporting a planned invasion

by Moscow in the spring of 2022. As news broke the day after the American Thanksgiving holiday that a coup plot against Ukrainian President Volodymyr Zelensky was discovered, many voiced skepticism as the Kremlin denied any role in the matter.

Warsaw and Chișinău came together during the Moldovan gas crisis due to their shared interest in restricting Russian interference in their part of Europe.

Considering Russia’s current aggressive stance, maintaining this alliance is of

© Source: wikimedia commons

Considering Russia’s current aggressive stance, maintaining this alliance is of vital importance to not just Poland and Moldova, but also the entire panoply of nations we popularly refer to as ‘the West’. vital importance to not just Poland and Moldova, but also the entire panoply of nations we popularly refer to as ‘the West’.

As important as keeping Russia at bay may be to each of them, this partnership will not last unless the many ties that for centuries have joined Moldova and Poland are brought back into the popular perception of both nations. Their absence is all the more striking given that the Moldovan state in its entirety is made up of lands that once were either a fief

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International Relations (Bessarabia) or a part of the PolishLithuanian Commonwealth (Transnistria).

A SIGNIFICANT YET NEGLECTED LEGACY

Poles and Moldovans have a long history as pawns in Moscow’s designs to bring these territories into its sphere of influence.

However, what has been forgotten are the strong links between the two peoples.

Many of these connections persist to this day, though largely overlooked in the popular perception of both countries.

This should be contrasted with Poland’s strongly rooted partnership with Hungary.

Knowledge of this centuries-long alliance is common in both countries, most famously presented in this bilingual jingle: Polak, Węgier — dwa bratanki, i do szabli, i do szklanki, oba zuchy, oba żwawi, niech im Pan Bóg błogosławi.

Lengyel, magyar – két jó barát, Együtt harcol s issza borát, Vitéz s bátor mindkettője, Áldás szálljon mindkettőre.

This text glorifies the two nations as brothers, masters of the saber and the shot glass. Characterizing the Hungarians and Poles as courageous and lively, it ends with a supplication for divine providence to bless both peoples.

Poland’s equally strong connections to the Romanian-speaking peoples, however, have been largely consigned to obscurity.

Like the Poles and Hungarians, the Wallachians or Wołosi, as they were once commonly referred to in Polish, have been pinned between Ottoman, AustroHungarian, and Russian ambitions to subjugate them. It was in the Principality of Moldavia, the medieval forerunner of Moldova, that these Polish-Romanian ties were strongest.

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The significant influence of Romanianspeaking peoples on the history of Poland is as profound as it is underappreciated and poorly understood. These PolishWallachian bonds have been growing from the founding of the Principality of Moldavia, which Polish King Władysław II Jagiełło spoke of as “a rich and fructiferous land.” A former fief of the Polish-Lithuanian Commonwealth, this territory is now divided between Romania, Moldova, and Ukraine.

Serving as a buffer state between the Commonwealth and the Ottomans, the influence of Poland was felt in the Moldavian principality beginning with the Angevin Dynasty in the 14th century on. In 1373, the son of Bogdan I, Latcu (known in Polish also as Laczko), converted to Catholicism in a move to solidify ties between the two polities.

Although this effort to change the religious orientation of the Moldavian realm did not take hold, the two states grew to be inextricably linked over the subsequent centuries. The nobility (pol. ‘Szlachta’) of the Polish-Lithuanian Commonwealth and the Moldavian Boyars intermarried.

Noble lineages such as the Mohyła (Movilă) and Barnowski (Barnovschi) families established themselves in both states. The border between Poland and Moldavia along the lower Dniester River was porous, promoting cultural exchange and the coupling between them. The Prut River and the Carpathian Mountains became avenues for mercantile connection that also facilitated the settlement of Wallachians of Romanian origin throughout southern Poland. It was a sizable effect, extending as far west as Podhale, the Duchy of Cieszyn, and beyond. The culture of Poland’s beloved Górals (lit. ‘highlanders’) is replete with their influence, thanks to which Romanian words and culinary specialties such as bryndza (a cheese made of sheep’s milk) became staples in the land of the White

From Sobieski to Sienkiewicz: Moldova Cannot Be Free Without Resurrecting Its Alliance with Poland

Nina Sztanski, the former first lady of Transnistria, and the second president of Moldova (1997–2001), Petru Lucinschi, are of Polish descent. The other picture shows Vladimir Putin (L) and Petru Lucinschi (R) during the meeting in ChiŞinău, June 17, 2000.

Eagle. In Lviv, the Romanian-speaking community was so strong at one time that they came to even have their own “Wallachian” Church which is now one of the city’s landmarks. Polish King Jan III Sobieski tried not once but twice to place his son James Louis on the Moldavian throne as Hospodar from Suceava’s ‘Zamca’, a name for the structure derived from the Polish word for ‘castle’ (zamek).

Counterintuitively, these bonds were only strengthened after the partitions of Poland. Sizable portions of the Principality of Moldavia, which bordered the PolishLithuanian Commonwealth, were also incorporated into the Russian and AustroHungarian Empires. Northern Moldavia became the Austro-Hungarian Crownland of Bukowina and for decades was ruled from Lviv. The Moldavian region of Bessarabia between the Dniester and Prut rivers came under the rule of the Russian Tsar, just like the former Polish capital of Warsaw. Both Moscow and Vienna sought to further develop these seized land from Moldavia, a strategy that included encouraging ethnic Poles to settle there.

© Source: wikimedia commons

To cite just one Moldovan city, Soroca (Soroki), notable Poles such as architect Jan Bagieński, Hieronim Przepiliński the founder of the Silesian Legion under General Józef Haller’s command, and Major Stefan Walter were all born here. The nearby villages of Nimereuca (Niemirówka) and Cerlina (Cierlina) were the site of a Jewish agricultural colony named Lublin, a testament to the scope of this migration present throughout Bessarabia.

In the aftermath of the Bolshevik Revolution and the annexation of Bessarabia to Romania, many Poles left for the newly independent Polish state.

One of those who emigrated to Poland was Felix Dudchievicz (Feliks Dutkiewicz), a Moldovan MP who gave one of the most touching remarks in his parliament during the debate over the future status of the territory in 1918.

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International Relations Moldovan and Polish nations… On behalf of the Polish people, I fully support the union of Bessarabia with Romania, as the Moldovans, the indigenous inhabitants of this land, want.”

Others, such as Józef Gaydamowicz-Poraj, stayed. This Bessarabian community was important enough that a Polish Consulate was created in Chișinău (Kiszyniów) during the interwar period to serve their needs. Famed Romanian general Henri Cihoski, the son of a Polish exile of the January Uprising, was tasked with integrating Bessarabia into the Romanian state. The reincorporation of Bessarabia and Bukovina after WWI impacted the geopolitics of the Romanian state, which became a steadfast ally of Poland during the interwar period.

UNREALIZED POTENTIAL

Today Moldova is one of the poorest countries in Europe. The easternmost part of the state is under the control of the breakaway Transnistrian Republic. Russia’s consistent interference in Moldova’s affairs to prevent it from potentially joining the West through the EU and NATO is one of the key reasons for this tragic state of affairs.

Russia has been able to command such an enormous role in Moldova because, aside from Romania, most other EU states have largely ignored the Moldovan people. Utilizing the local Russianspeaking population in both Bessarabia and separatist Transnistria, where that population is most concentrated, has given Moscow incredible leverage and at very little economic cost. For nearly half a million people living in Transnistria, a Russian passport has been the only ticket out of the enclave. It is precisely in this area where Poland can have an extraordinary impact in curbing Russian influence. What this requires is not only ramping up aid to the local Polish 72

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community but a full-scale effort by the government in Warsaw to revive Polish culture throughout Moldova. While the average Pole is largely oblivious of their connection to these lands, the locals remember. The Russian-speaking community that Moscow has so expertly manipulated for its own ends has diverse ethnic origins. Polish ancestors can easily be found in the family tree of many locals due to the many waves of Russification these lands were subjected to.

This Polish influence extends into the highest echelons of power in Moldova.

Nina Shtanski, the former First Lady of Transnistria, is of Polish descent, while a one-time spokesman for the Transnistrian President Yevgeny Zubov spent his childhood in Poland. The surname of Moldova’s second President, Petru Lucinschi is the Romanian transliteration of the Polish last name Łuczyński.

This is especially true of Transnistria, a significant part of which was, for centuries, under direct Polish rule. Ruins of Polish manors, palaces, and churches dot the landscape. The valley of Valea Adîncă (Waładynka) was the setting of Horpyna’s cave from Sienkiewicz’s epic “With Fire and Sword”. In many ways, the local Polish community of this vicinity mirrors the modern fate of the otherworldly Saiga antelope that opens this novel: a once common sight now teetering on the brink of extinction.

STRONGER TOGETHER

What is needed to reverse the current situation is a full-court press. Poland needs to focus on reconnecting with Moldova in the same way it reengaged with other states that were once part of Poland under the Jagiellonian dynasty, which became newly independent after the breakup of the USSR. This should include aspiring to have the leaders of

From Sobieski to Sienkiewicz: Moldova Cannot Be Free Without Resurrecting Its Alliance with Poland Moldova and Poland meet with the same frequency that Warsaw links up with their Lithuanian counterparts.

The best way to begin this effort would be to make it part of a new tripartite group including Romania in addition to Poland and Moldova. Akin to the Weimar Triangle, this partnership would in effect be the modern successor to the close relationship between Greater Romania and Poland between the two World Wars.

Such an opening by Poland to these two Romanian-speaking countries presents a whole host of additional opportunities for cooperation, including cultural exchanges that would facilitate rekindling the ancient connections between these peoples along the Baltic and Black Seas.

WHAT TO DO AND WHAT DO WE GAIN

It is no surprise that Soviet rule was catastrophic for Polish communities in all the lands that make up Moldova today.

Russification and persecution resulted in a community that only now is beginning to reorganize itself. The support of Poland has been vital to this effort, but what has been done until now, has been insufficient to fully address the problem.

In return for aid, the Polish government needs to make it a priority to lobby Moldova and Transnistria to grant Poles official recognition as a national minority in both polities, with guaranteed political representation as part of that equation. This would have an immediate impact with Poles having a voice in the government bodies meeting in Tiraspol and Chișinău. Poles are entitled to similar rights in neighboring Romania, with a Polish MP in the Chamber of Deputies representing them in Bucharest. Having a seat at the table as national issues are being discussed will immediately improve their position. This would provide a strong incentive for locals to give weight to their Polish ancestry.

Undoing the mass Sovietization of a significant part of the Moldovan population, and particularly Transnistria will fundamentally weaken the Russian influence that has destabilized this region since the Transnistria War in 1990.

Providing Russian language speakers in this region with the ability to reconnect with their Polish roots will not only deprive Russia of the cultural stranglehold it has on this portion of the population, but it will also grant new opportunities in one of Europe’s poorest areas. Although Moscow would remain influential, its monopoly on Russian would come to an end.

This is why the United States and Poland’s NATO partners ought to support these goals not just as a courtesy to their ally, but in their self-interest. Undoing the mass Sovietization of a significant part of the Moldovan population, and particularly Transnistria will fundamentally weaken the Russian influence that has destabilized this region since the Transnistria War in 1990.

Given the relative ease with which those who speak Russian can understand and even master the closely related Polish language, there exists a potential to dramatically shift the balance of power.

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International Relations

Henri Cihoski, a Romanian general and politician of Polish descent, played an important role in integrating Bessarabia into the Romanian state in the aftermath of World War I.

must be given special consideration since the Russian invasion of Crimea and the ongoing conflict in the Donbas. All 1,500 Russian soldiers are based at the former decommissioned Soviet ammunition depot in Cobasna, guarding around 22,000 tons of military equipment and ammunition.

DRAWN TOGETHER BY WINE, WARMTH, AND A SHARED HISTORY

Restoring the bonds between the peoples of Poland and Moldova will not be possible without increasing direct contact between the citizens of both states. That means coordinating a national strategy to encourage travel to Moldova by Poles, which would also greatly increase Poland’s soft power throughout the region.

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command the Polish imagination. Until now, Moldova’s place as part of that space has been a blind spot as Poles indulge in nostalgia tourism. State-owned media such as Polish Public Television (Telewizja Polska) could easily help bridge this gap by producing content to highlight tourist sites connected to the shared heritage of the two countries. By stimulating demand, the increased contact between Poles and Moldovans will foster grassroots connections, which in turn will serve to further cement personal ties. Given Moldova’s proximity to Poland, its warmer weather, and the country’s modest prices compared to Western Europe, such a move

by Warsaw would ensure it would have considerable influence in Chișinău.

There has been some movement in this direction already, albeit on a level insufficient to what is necessary. Several days before Moldova’s Independence Day on August 27, 2005, three European bison from Poland’s Białowieża Forest were brought to Moldova, restoring an animal that had been extinct locally since the 18th century. Polish media outlets such as Wirtualna Polska have published pieces on must-see sights in Moldova. It is a trend that has accelerated recently thanks to popular Polish YouTubers such as Stefan Thompson releasing videos of their travels through the country. Buttressing this movement, Roman z Polszy, a Polish speaker from Moldova, has helped to increase awareness of this community, which is now emerging from decades of oppression. Rebuilding the magnificent French Renaissance Revival architecture Juriewicz Palace in Raşcov (Raszków) as a local Polish cultural center and museum could not only serve as an incentive to attract Poles, but also a visual testament to the rich Polish heritage in this part of the world.

At present, Polish tourists are largely absent from Moldova. This table clearly illustrates how Poles have been a non-factor in the

From Sobieski to Sienkiewicz: Moldova Cannot Be Free Without Resurrecting Its Alliance with Poland Moldovan tourism sector. That neighboring Romania and Ukraine top the list is to be expected, but note that a significant number of tourists visiting Moldova come from states that are further away from Chișinău than Warsaw. Geographic distance is not a factor preventing Polish citizens from visiting Moldova.

© 2021 NATIONAL BUREAU OF STATISTICS OF THE REPUBLIC OF MOLDOVA.

Table 1. Tourists in Moldova by country of origin (2018).

The increased popularity of wine tourism presents additional opportunities for Poles to mark their presence in Chișinău.

Moldova’s robust tradition of winemaking has long been a driver of its economy.

Given the mild weather, it is no surprise that the cultivation of Moldovan grapes enjoys such a distinguished pedigree and that wine was one of the main exports of Moldova during the medieval period to Poland and Ukraine. This also presents an additional opportunity for Poland, as though Moldovan wines are still highly prized throughout the former USSR, Russia has banned the import of Moldova’s most prized export several times and will

By failing to act now, the window of opportunity to change direction will unfortunately pass, and Russia’s unchecked influence in Moldova and Transnistria will surely continue. likely do so again in the future. Given that Moldova is the 20th largest wine-producing country in the world, has a vineyard area of 148,500 hectares (367,000 acres), and as of 2018 produced around 2 million hectolitres of wine, this power play by Moscow is meant to punish the country where it hurts most. Poland, with its growing appetite for wine, can easily intervene to soften the blow to its neighbor for Moldova’s largest export, especially if it can get its citizens to imbibe on this drink as a sign of solidarity.

The potential of the Three Seas Initiative to change the geopolitics of Central and Eastern Europe will remain unfulfilled so long as this part of the former Jagiellonian realm remains forgotten to the average Pole. By failing to act now, the window of opportunity to change direction will unfortunately pass, and Russia’s unchecked influence in Moldova and Transnistria will surely continue. Like with the European bison from Białowieża Forest that reestablished this animal which had, for centuries, been extinct in Moldova, it is up to Poland to resurrect this special relationship for the benefit of the entire region as it scrambles against Russian domination.

Daniel Pogorzelski December 2021 4/2021

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Law

The Concept of the “Rule of Law” – Between the Need of Interpretation and the Lure of Instrumentalisation

Michał Sopiński

The rule of law as a contemporary hurrah term

In the contemporary refection on law, the concept of the rule of law is currently one of the trendiest and most frequently referred to notions, both in Europe and in the United States. In his famous essay Four Puzzles about the Rule of Law: Why? What? Where? And Who Cares? Martin Krygier even states that “Rule of Law is now an international hurrah term”1.

In the Polish public discourse of recent years, the concept of the rule of law 1 Krygier, M., Four Puzzles about the Rule of Law: Why, What, Where? And Who Cares?, [in:] Fleming, J. E. (ed.), Getting to the Rule of Law, New York 2011, p. 64.

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has been present primarily as the focal point of the dispute over judicial reform between Brussels and Warsaw and over the primacy of EU law over national law.

In this view, the concept of the rule of law has been linked to the specific principles of European law (“principle of effective judicial protection ” – Article 19 TEU), international law (“right to a fair trial” – Article 6 ECHR) and Polish constitutional law (“right to a fair and public hearing before a court” – Article 45 of the Polish Constitution). Therefore, it most often appears in the context of the relationship of the judiciary to other authorities, the independence of the courts and the independence of judges. This is because the

© Public domain

The Concept of the “Rule of Law” – Between the Need of Interpretation and the Lure of Instrumentalisation

Frontispiece of the book “De arte combinatoria” printed in 1690. Work by Gottfried Leibniz was published in 1666 in Leipzig.

concept of the rule of law plays, in a way, the role of a standard for the operation of legal institutions in individual states or international organisations such as the European Union. It is thus of practical importance and occupies an honourable place in legal argumentation.

The modern popularity and frequency of evoking the concept of the rule of law coexist with the number of definitions created by historians, politicians, philosophers and lawyers. However, according to some authors, the plethora of the explanations of this notion in the public discourse and the imprecision of these definitions has led to the overuse and ideological abuse of the concept, and consequently to its having no value

The modern popularity and frequency of evoking the concept of the rule of law coexist with the number of definitions created by historians, politicians, philosophers and lawyers. today. It is therefore hard not to agree with Martin Krygier’s statement: “In the past 20 or so years, the concept has gone from often-derided but more often 4/2021

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In recent years, in Polish public discourse, both supporters and opponents of the direction and shape of changes within the judiciary system have been referring to the concept of the rule of law to justify their views. ignored margins of public concerns to a somewhat hallowed, if also sometimes a hollow centre of many of them.”2 Another reference that can be made here is to the statement by Joseph Raz of Oxford University, according to whom it has become fashionable to use the concept of the rule of law as “a general stand-in for everything nice one could ever want to say about a political system, or everything good one could want from it.”3 For this reason, I believe that a meaningful definition of the meaning of the concept is only possible after trying to determine whether the term “the rule of law” itself has no political overtone or whether it implicitly contains a pre-determined – and therefore instrumental – way of thinking about the state and the law.

For this purpose, let us refer to the idea of essentially contested concepts by Scottish philosopher Walter Bryce Gallie.

According to him, the character of such concepts (e.g. social justice, democracy, art 2

Ibidem.

Cf. Dyrda, A., Zasada rządów prawa: zasada z zasady sporna?, [in:] Filozoficzne i teoretyczne zagadnienia demokratycznego państwa prawa, (ed.), Andruszkiewicz, M., Breczko, A., Oliwniak, S., Białystok 2015.

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etc.) is that they are not unambiguous, but are also not the “confused concepts”, i.e. terms where the parties to the dispute only apparently refer to the same notion4.

In recent years, in Polish public discourse, both supporters and opponents of the direction and shape of changes within the judiciary system have been referring to the concept of the rule of law to justify their views. It is because a fundamental dispute has arisen among lawyers on whether or not the reforms of the Polish judiciary system have violated the concept of the rule of law. Simultaneously, the conflict has gone beyond a professional dispute (among judges, scholars, officials, representatives of the authorities) and has become a public dispute, in which ordinary citizens are also involved.

Can a dispute be settled based on rational criteria? This question has always been contemplated. Therefore, the medieval Catalan mathematician Ramon Llull undertook the mission of creating a manner of settling disputes which, in principle, would allow the conflicting parties to dissociate themselves from the immediate content of their arguments. At the beginning of the fourteenth century, this was important insofar as there was a religious conflict in the Mediterranean basin at that time, and no Christian could convince a Muslim of their legitimacy based on the criterion of equity. A few centuries later, Gottfried Wilhelm Leibniz wrote a work titled “De arte combinatoria”, in which he postulated the creation of a universal language that would be equivalent to the set of principles and rules proposed by Llull5. However, he has not Gallie, W. B., Essentially Contested Concepts, “Proceedings of the Aristotelian Society” 1956; Gallie, W. B., Art as an Essentially Contested Concept, “The Philosophical Quaterly 1956. Por. Dyrda, A., Czy pojęcie prawa jest pojęciem z istoty spornym?, „Archiwum Filozofii Prawa i Filozofii Społecznej” 2013, no. 1, p. 56.

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Cf. Sopiński, M., Logika w służbie polityki –

The Concept of the “Rule of Law” – Between the Need of Interpretation and the Lure of Instrumentalisation succeeded, and the problem of disputes on the frontier between law and politics has remained until now and continues to bother contemporary researchers as well.

The modern literature accepts that any dispute can be either a genuine dispute or an idle one. A genuine dispute is on a defined thing or concept, and all parties thereto know what the dispute is about.

In an idle dispute, the parties think they are arguing about something, but in fact, they are only outtalking each other or are victims to a certain conceptual confusion.

Of course, the awareness of the subject matter of the dispute does not necessarily mean that it can be resolved, since even genuine disputes are not always rationally resolvable if the parties run out of sensible arguments. Nevertheless, there is a chance.

The situation is different in the case of an idle dispute – no resolution is possible here, because it is not dispute but rather a “différend”, defined by Jean-François Lyotard as “a case of conflict, between (at least) two parties, that cannot be equitably resolved for lack of judgement applicable to both arguments. The legitimacy of one side does not imply the legitimacy of the other side. However, applying the same rule of judgement to both parties to establish the “différend” a dispute would harm at least one of them (or both, where neither accepts the rule)”6.

Before one can refer to the dispute at all, they need to know its essence and internal structure. Thus, the current dispute between Warsaw and Brussels on Poland’s compliance with the rule of law may be regarded as an essential contestation, since its complexity stems from the fact that the very concept of the rule of law is contestable in the light of the idea of abovementioned essentially contested concepts.

Wzorzec dowodów politycznych Gottfrieda Wilhelma Leibniza i jego (nie)wpływ na elekcję roku 1669, „Dialogi Polityczne” 2017, no. 23.

6

Lyotard, J. F., Le différend, Paris 1983, p. 29.

The rule of law as an essentially contested concept

The idea of seeing the rule of law in terms of its contestability is not new. In his famous 2002 essay with the telling title “Is the rule of law an essentially contested concept (in Florida)?”, Jeremy Waldron – as he discussed the dispute over the concept of the rule of law after the controversy surrounding the 2000 US presidential election and the victory of G.W. Bush – argued that the concept of the rule of law as an essentially contested concept consists of two components: •

•

the core essence of the concept as a fixed set of rules relating to the questions referred to by that name; actual (and therefore contestable) specification of these rules as a reference to the system that could realise them best.7

The American author stated that Galli’s conceptual system may be utilised to analyse the concepts appearing in real political disputes, including the rule of law concept. Having adopted the hypothesis of Jeremy Waldron that the concept of the rule of law is an essentially contested concept, I argue that its fixed core is the “internal conditions of law’s morality” as described by L.L. Fuller: • • • • • • • •

the generality of law (so that law could be impartial); the openness of law (transparency); the principle lex retro non agit; the clarity of law; the capability of law to be obeyed by its subjects; the conformity of law; the stability of law over time; the consistency of actions and declarative norms of the governments.

See: Waldron, J., Is the rule of law an essentially contested concept (in Florida)?, „Law and Philosophy” 2002, no. 21.

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President of the European Commission Ursula von der Leyen delivering a speech next to Mateusz Morawiecki on the situation in Poland, Strasbourg, France, October 19, 2021. The notion of the rule of law is at the center of the conflict between Poland and the EU.

Of course, this standard definition of the formal content of “the rule of law” was made by L.L. Fuller, and therefore it is more or less arbitrary8.

Upon the acceptance of Jeremy Waldron’s hypothesis that, in the case of “the rule of law”, the essential contestability of exemplification of these requirements as a reference to the system which could best realise them, the concept gains a strong evaluative sense. It is because it assigns a value to a system X (usually an already existing one) due to the opinion of a group of people that it best realises the elements of the fixed conceptual core (essence) of the rule of law.

Cf. Fuller, L. L., Morality of Law, Warszawa 2004; Raz, J., The Rule of Law and Its Virtue, [in:] The Authority of Law: Essays on Law and Morality, Oxford 1979.

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© EPA/Ronald Wittek

Thus, a question arises here: does the attempt to make a change within such a system or to reform it institutionally breach the conceptual core of the rule of law? And can one speak of violating the rule of law at all in such a case?

Many lawyers answer “yes”, and thus confer universality to a particular system implementing the elements of the fixed conceptual core of the rule of law. In my view, however, the concept of the rule of law cannot be regarded this way, because it is highly associated with political – and therefore particularistic – assumptions underlying specific legal institutions that are supposed to do their best to implement a set of conditions of the internal morality of law. Therefore, the rule of law concept understood as a task of the realisation of that morality within a system has an implicit political

The Concept of the “Rule of Law” – Between the Need of Interpretation and the Lure of Instrumentalisation overtone, as it is historically linked to many conceptions of democracy and law.

not so much synonymous expressions as they are their equivalents12.

For example, according to Judith Skhlar, one of the most famous Anglo-Saxon conceptions of the rule of law by A.V. Dicey (assuming that the fundamental features of the rule of law are elements of the British institutional order) is archaic, as “both trivialized as the peculiar patrimony of one and only one national order, and formalized, by the insistence that only one set of inherited procedures and court practices could sustain it.”9 Notwithstanding this view, according to Martin Krygier, contemporary lawyers “often follow Dicey’s example, whether influenced by him or not, and identify the rule of law with what they like about their own legal orders.”10

All that means that, an a priori assumption is made at the normative level, arising from the constitutionalist tradition, namely the assumption that the concept of the rule of law is associated with the concept of democracy. The best example of the modern understanding of the notion of democracy which is considered not only as an attribute or a dimension to understanding “the rule of law”, but as the concept that is synonymous thereto – is the concept of a “democratic state under the rule of law”, which belongs to the principal concepts of constitutionalism.

Nowadays, the most general definition of the concept of the rule of law is considered to be that “the rule of law means that government and citizens are bound and constrained by law.”11 Then, with reference to the English constitutional tradition, the concept of the rule of law denies the arbitrariness and discretion of the rule of men. The adoption of such a definition of the rule of law entails the subordination of the whole range of activities of the state, its bodies and citizens to clear and predetermined rules established by law. In contemporary legal theory, in particular in the continental tradition, it is therefore predominantly stated that the concepts of the rule of law and the stated ruled by law (Rechtsstaat, État de droit, Estado del Derecho, Stato di diritto) are

Shklar, J., Political Theory and the Rule of Law, [in:] Hoffmann, S. (ed.) Political Theory and Political Thinkers, Chicago 1998, p. 26.

9

10

Krygier, M., op. cit., p. 67.

Tamanaha, B. Z., The History And Elements Of The Rule Of Law, „Singapore Journal of Legal Studies” December 2012, p. 233.

11

However, in my view, although the concepts of the rule of law and democracy are easily equated, the relationship between them is at best merely declarative, since the answer to the question “who is to govern?” is separate from the question “by virtue of what and within what limits?” I, therefore, believe that the modern concept of the rule of law is primarily a product of the imagination of lawyers. I agree with Martin Krygier, according to whom “the extent to which where we stand in relation to the rule of law often depends on where we sit” and “the concept has today become so protean, partly because people can have so many reasons for being interested in it.”13 Promoting the rule of law: the lure of instrumentalization

In the contemporary world, one can increasingly observe the phenomenon of new secular “evangelisation”, consisting in presenting and promoting the rule of law as the supreme value determining the framework in which individual societies function. This quasi-religious, even fideistic approach to the rule of law, that 12 Kmieciak, Z., O pojęciu rządów prawa, „Państwo i Prawo” 2016, no. 9, p. 21.

13

Krygier, M., op. cit., p. 65.

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Law has developed in recent years, finds many zealous followers, who are ready to give their own lives to convince the world that the meaning of the rule of law is genuinely universalistic, and not merely value-laden and particularistic. It is of no surprise then that Martin Krygier has ironically stated that: “benighted parts of the world are likely to be visited by numerous international rule of law promoters, for it has become fashionable to believe (…) that the rule of law is a necessary means to achieve various valuable ends beyond the rule of law itself.”14 In the literature, this approach is sometimes referred to as the “rule of law consensus”, equated with “the administration of justice” and consisting of the belief that “(...) the rule of law is essential to virtually every Western liberal foreign policy goal – human rights, democracy, economic and political stability(...)” and “the belief that international interventions, be they through money, people, or ideas, must include a rule-of-law component.”15 Another problem with the fideistic approach to the rule of law is related to the belief that the requirement of a universalistic interpretation of the concept constitutes a practical task for lawyers governing a given society. Thus, according to T. Ginsburg, “‘Rule of law’ programming has become shorthand for all interventions targeting legal institutions, a synonym for work on the ‘the justice sector’.” It means that the contemporary public discourse blurs the fundamental difference between the rule of law and the rule of lawyers, as the aggregate of actions of the latter may be described as “programming the rule of law.”16 14

Ibidem, p. 67.

Introduction [in:] Ch. Call (ed.), Constructing Justice and Security after War, Washington 2007, p. 4.

15

Ginsburg, T., In Defense of Imperialism n Defense of Imperialism? The Rule of Law and the State Building Project, [in:] Getting to the Rule of Law, New York 2011, as in: Krygier, M., op.cit.

16

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Indeed, modern lawyers are not only those appointed to be guardians of the meaning of the concept of the rule of law. On the contrary, more and more frequently they act as guardians, jealously guarding the proper sense, understanding and the possible scope of application of the concept of the rule of law. It is especially the case when one uses the concept in public discourse as a certain ideal, against which the existing institutions and legal solutions are compared and then ascertained whether or not they meet a certain standard.

Thus, I agree with Martin Krygier’s opinion that “the link between what rule of law promoters promote and the rule of law is too often assumed rather than demonstrated or even questioned.”17 In the case of the Polish dispute on the judicial reform evaluation, the concept of the rule of law (which was referred to by all parties to the conflict) has related primarily to the independence of the courts and judges as standard indicators of the rule of law. However, as Martin Krygier notes, “unless independence is assumed a priori to be good for the rule of law, the relationship between indicator and indicatee is altogether more problematic than it may seem at first blush.”18 It means that, from that perspective, the concept of the rule of law has a strongly value-laden aspect and assumes tacitly the obvious truth of the statement that the more independence judges have, the more there is rule of law.

A threat leading to the instrumentalisation of the rule of law concept is, for instance, the lawyers’ use of their familiar legal reasoning and methods of interpretation, whereby new principles – which contain duties or powers to defend particular political positions – are derived from the rule of law principle entirely ad casum19.

17

Krygier, M., op. cit., p. 75.

18

Ibidem, p. 74.

19

More about legal reasoning: Sopiński, M.,

In such cases, the concept of the rule of law is devoid of its original value related to ensuring law and order and becomes just another argument used by lawyers in political disputes.

William Shakespeare’s “The Merchant of Venice” may serve as a case in point here. However, is it possible to talk about the relationship between law and literary fiction at all? Conclusions from the reading of Act IV of the drama should convince us that it is not only worthwhile but even necessary, especially from the point of view of the theory and philosophy of law, namely the phenomenon of instrumentalisation of law, which in Poland is also described as “falandisation” (named after Polish lawyer Lech Falandysz).

A fragment of “The Merchant of Venice” may serve as a reference to the problem of the instrumentalisation of law, in particular the scene of the hearing before the Duke. It has been studied many times, and so has been the validity of Shylock’s motivation. However, readers of “The Merchant of Venice” rarely notice that the courtroom proceedings are a complete farce in the Shakespeare’s drama. The author has treated the law without any realism: not only in terms of formal procedures but also in regard to the essence of law. The alleged doctor of law who decided the dispute was not only an impostor, Portia in disguise, but has a vested interest in the trial, so he should not have ruled according to the principle of exclusion - nemo iudex in causa sua.

Besides, the parties had no attorneys, there were no professional judges in Venice, Pojęcie rozumowania prawniczego i jego specyfika w świetle koncepcji rozumowania na grancie filozofii, logiki oraz retoryki, „Przegląd Prawniczy Uniwersytetu Warszawskiego” 2017, no. 2; Sopiński, M., Rozumowanie prawnicze jako rozumowanie praktyczne w świetle nowej teorii prawa naturalnego Johna M. Finnisa, „Archiwum Filozofii Prawa i Filozofii Społecznej” 2020, no. 1.

In the case of the Polish dispute on the judicial reform evaluation, the concept of the rule of law (which was referred to by all parties to the conflict) has related primarily to the independence of the courts and judges as standard indicators of the rule of law. and the civil case ended with a criminal verdict. Moreover, Portia’s reasoning itself was a political impudence circumventing the proper legal problem, namely the exceptions to the principle of pacta sunt servanda. However, the audience greeted it with applause, combined with the odium of foreign authority. Therefore, the whole thing is a caricature in terms of instrumental application of the law.

Luckily, it is only literary fiction

To sum up, I regard the “rule of law” as an essentially contested concept (this means that I believe that any possible disputes over the material understanding of the rule of law are unresolvable rationally). I also believe that the lawyers’ sweeping universalisation of the rule of law depreciates its proper meaning, and therefore, it constitutes a quasi-religious instrumentalisation of the concept.

Michał Sopiński December 2021

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German Problems with the Rule of Law Magdalena Bainczyk

The rule of law has had a long tradition in German-language legal doctrine and served a particular role in laying foundations for the German political system in the aftermath of World War II. It was considered a German export brand alongside the Constitution of the Federal Republic of Germany (or the Basic Law for the Federal Republic of Germany). Despite that, the state does not meet some rule of law standards in Europe amid the decisive role of the minister of justice in selecting, appointing, reviewing, and promoting judges. A link between the judiciary and the executive branch is more visible as judges are allowed to be affiliated with political parties.

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German Problems with the Rule of Law

Members of the second Senate of the German Constitutional Court.

Constitutional Court in Karlsruhe, Germany, April 16, 2019.

Political and historical background of the German rule of law

Huber noted: “the rule of law is, in addition to federalism, the most important contribution of the German state law to the creation of a modern constitutional state. Its roots, and those of federalism, reach back to the Middle Ages, with which Germany (and Austria) could develop a formal, legalistic state of law fully focused on subjective rights and their judicial protection. The rule of law is included in Article 79, Section 3 of the Constitution of the Federal Republic of Germany and is part of the German national identity1.”

The rule of law occupied a prominent role in setting up systemic foundations for the Federal Republic of Germany after World War II, when West Germany began efforts to establish its ethos from scratch2 Huber, P. M. § 6 Rechtsstaat, In: Herdegen, M., Masing, J., Poscher, R., Gärditz, K.F. (2021).

Handbuch des Verfassungsrechts. Darstellung in transnationaler Perspektive, München, nb. 1.

1

Rosenburg – Federalne Ministerstwo Sprawiedliwości Niemiec w cieniu narodowosocjalistycznej przeszłości.

2

© PAP/EPA/Ronald Wittek

while distancing itself from the Third Reich, its mentality, and people3, also the judiciary4. For this reason, the principle of national sovereignty did not play as important a role as did the guarantee of the rule of law-based state (Rechtsstaat)5.

Publication accompanying the exhibition, translated

by Bainczyk, M., (2019), p. 29, https://www. iz.poznan.pl/plik,download,3298,91f27b643892a e4937b2adafd6af61f2/BMJV%20Rosenburg%20 Katalog%20wystawy.pdf. (accessed: 27.07. 2021).

Frei, N. (2001). Hitlers Eliten nach 1945, Frankfurt am Main; Frei, N. (1996). Vergangenheitspolitik.

Die Anfänge der Bundesrepublik und die NSVergangenheit, München; Conze, E., Frei, N., Hayes P. et al. (2010). Das Amt und die Vergangenheit: Deutsche Diplomaten im Dritten Reich und in der Bundesrepublik.

3

An extensive elaboration on the legacy of staff and resources of the Federal Ministry of Justice of the Federal Republic of Germany: Görtemaker, M, Safferling, Ch. (2016). Die Akte Rosenburg.

Das Bundesministerium der Justiz und die NSZeit, München; Görtemaker, M. (2021) Federalne Ministerstwo Sprawiedliwości w latach 1949–1973 a okres nazizmu: ciągłość i demokratyczny nowy początek – retrospekcja historyczna, in: Bainczyk, M., Kubiak-Cyrul, A. (eds.) Odpowiedzialność państwa za zbrodnie międzynarodowe. Refleksje wokół wystawy „Rosenburg”, Poznań, p. 85 et seq.; also: Das Bundesministerium der Justiz und die NSZeit, op. cit.

4

Collings, J., (2015). Democracy’s guardians.

A History of the German Federal Constitutional Court, 1951–2001, Oxford. Dziadzio, A. (2019) Dispute over the essence of the rule of law in the

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Law This was especially the case of the Basic Law for the Federal Republic of Germany of 19496, imposed by the allies, and a set of fundamental rights it laid down as a new core for constitutional identity. The ethos of the German state relies upon the Basic Law7 and what is known as constitutional patriotism (Verfassungspatriotismus)8, where the Federal Constitutional Court is fundamental for shaping these values9.

However, these rights and the rule of law were applied rather selectively to victims of atrocities perpetrated in the Third Reich, their legal and material status10.

The very principle of the rule of law was conveyed only in Article 20, Section 3 of the Basic Law for the Federal Republic of Germany (cf. Article 2 of the Constitution of the Republic of Poland of 1997), where, due to the experience of Third Reich crimes, respect for human dignity and fundamental rights were stipulated in Articles 1–19 of the Basic Law11. The historical and contemporary context, in: Bainczyk, M. (ed.). Challenges for the application of the rule of law in the European States, Poznań, p. 25 et seq.

6 Bainczyk, M. (2019). 70-lecie Ustawy Zasadniczej RFN, Biuletyn Instytutu Zachodniego, No. 11 (385)/2019, https://www.iz.poznan.pl/ plik,pobierz,3048,9ecf4cdb42c0e374a735e07fef429c56/ Biuletyn%20nr%20385.pdf.

Basic Law for the Federal Republic of Germany of 23 May 1949, Grundgesetz für die Bundesrepublik Deutschland, Bundesgesetzblatt, (German Journal of Laws, hereinafter referred to as BGBI), BGBl. p. 1, as last amended by Act of 29 September 2020, BGBl. I p. 2048.

7

von Danwitz, Th. (2009). Wert und Werte des Grundgesetzes, Frankfurter Allgemeine Zeitung, p. 6.

concept of Rechtsstaat was not explicitly stated12: “The legislative branch is bound by the constitutional order while the executive and the judiciary are bound by right and law.” The rule of law, however, has been tied to the national sovereignty, or the principle of democracy, according to the German legal doctrine, and separation of powers – the latter practiced to a limited extent for the executive branch and the judiciary, as outlined in this article.

Both the Basic Law and its rule of law have been branded as a specialty of the country and its “export brand.” Von Danwitz, a judge of the Court of Justice of the European Union (CJEU) said the Basic Law was a “point of reference” for other countries: Spain and Portugal in the 1970s, and Central and Eastern European states in the 1990s13. He also added that as for the latter nations, their sustained development based on the rule of law was misjudged. According to von Danwitz, some European states are making efforts to enfeeble the libertarian rule of law, judicial autonomy, and independence, and thus to undermine the protection of fundamental rights, which constitutes one of the biggest challenges to the core values of the Federal Republic of Germany (sic!)14.

Germany still believes in the uniqueness of its constitutional solutions, an assumption common both in the country and abroad, mainly through means of legal diplomacy.

8

9

Collings, J., op. cit.

10 Perels, J. (2009). Recht und Autoritarismus,Beiträge zur Theorie realer Demokratie, Baden-Baden; Bainczyk, M. (2019), Asymetria odszkodowań dla obywateli Polski za szkody poniesione w II wojnie światowej w stosunku do odszkodowań wypłaconych obywatelom innych państw, Przegląd Zachodni 1, p. 83 et seq.

Tkaczyński, J.W. (2015). Prawo ustrojowe Niemiec, Kraków, nb. 77 et seq.; Góralski, W. M. (2009). Konstytucyjne ujęcie praw zasadniczych RFN, in: Góralski, W. M. (2009). Polska-Niemcy 1945–2009. Prawo i polityka, Warsaw, p. 108; Jarass, H. D., GG Art. 1 [Würde des Menschen, Grundrechtsbindung], in: Jarass, H. D., Pieroth, 11

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B (2020). Grundgesetz für die Bundesrepublik Deutschland. Kommentar, München, nb. 1; Bainczyk, M. (2008), Ochrona przyrodzonej godności człowieka a ustawy „antyterrorystyczne” na przykładzie wyroków FTK i TK w sprawie zestrzelenia samolotów typu renegade, Państwo i Społeczeństwo, 3, p. 7 et seq.

12

Huber, P. M., op. cit., nb. 14.

Cf. preamble to the Polish-German Treaty of Good Neighbourship and Friendly Cooperation of 17 June 1991: “aware of the community of their interests and shared responsibility for building a new, free and united Europe by human rights, democracy and the idea of the rule of law (...).”

13

14 von Danwitz, Th. (2009). Wert und Werte des Grundgesetzes, Frankfurter Allgemeine Zeitung, p. 6.

German Problems with the Rule of Law An institution in charge of passing the values of the German system outside the country is the German Foundation for International Legal Cooperation (Deutsche Stiftung für die internationale rechtliche Zusammenarbeit eV, or IRZ)15. It was originally founded in 1992 under the auspices of the Federal Ministry of Justice to sustain Central and Eastern European efforts to introduce systemic reforms. The Foundation still underpins this objective, which fits into its mission now. Its website says: “almost all transformation states were striving for a rule-of-law democracy, needed to set up a new constitution, and in some parts had to build an entirely new state governed by the rule of law on this basis. Since Germany had a model function for many of the states mentioned above, especially since it had made very specific experiences with the unification of the law with the former GDR, German legislative consultation was the first area that was in especially great demand.16” At that time, all legal professions began training schemes.

The Foundation has been supporting its partner countries in the establishment of an independent and well-functioning judicial apparatus (sic!), as well as in the harmonization of their national legal systems with European Union law.

Despite the political and historical context, Germany is now facing major challenges to the rule of law. They go back to the ‘clerical’ origin of the German judiciary in the 19th century17 and the wide-reaching 15 The German Foundation for International Legal Cooperation, Registered Association, IRZ. 16 The German Foundation for International Legal Cooperation, Registered Association, IRZ, www.irz. de/index.php/ueber-uns (accessed: 28.07.2021).

Cf. Case C-276/2020, Request for a preliminary ruling of 15 June 2020, pp. 8–9: “The close interlock in Germany between the judiciary and the executive and the hierarchical structure and institutional dependence of the judiciary are rooted in the authoritarian state of 19th century Germany and the Nazi principle of the ‘führer’. In terms of administrative supervision, the entire German judiciary is based on the president model (which 17

competencies of justice ministers capable of selecting, appointing, reviewing, and promoting judges. Ministers make the entire process political, especially for judges delegated for posts in the supreme courts and the Federal Constitutional Court18. Another reason behind these challenges is the fairly weak powers of the judicial self-governing authority.

However, the reform of the judiciary in Germany has not been the subject of any in-depth discussion in academic or political circles, nor has it been the object of much interest from EU institutions. The CJEU19 and the European Commission20 show a surprisingly lenient approach to any demands to separate the judiciary and the executive branch, which is also what the former and the federal prosecutor’s offices21 are filing for. Germany’s shortfalls under National Socialism was perverted and abused by applying the principle of the ‘führer’ to the courts) [...],” http://curia.europa.e/juris/showPdf.jsf?text=& docid=229881&pageIndex=0&doclang=PL&mode=l st&dir=&occ=first&part=1&cid=6641904 (accessed: 09.10.2020).

18 Rath, Ch. (2020). Anwalt gegen Uni Heidelberg: Streit um die Honorarprofessur von Stephan Harbarth, Legal Tribune Online, https://www.lto.de// recht/hintergruende/h/stephan-harbarth-anwaltgegen-uni-streit -um-honorarprofessur / (accessed: 25.07.2021).

19 Judgment of CJEU of 9 July 2020, VQ v Land Hessen, ECLI: EU: C: 2020: 535.

20 Sprawozdanie na temat praworządności (2020).

Rozdział dotyczący sytuacji w zakresie praworządności w Niemczech, https://eur-lex.europa.eu/legal-content/ PL/TXT/PDF/?uri=CELEX:52020SC0304&from=EN; Bainczyk, M. (2020), Sprawozdanie Komisji Europejskiej na temat praworządności w RFN ‒ krytyczny komentarz, Biuletyn Instytutu Zachodniego, No. 30 (450)/2020, https://www.iz.poznan.pl/plik,pobierz,3960,bc13952e2610de38ae3cf05ca0da45d0/ Biuletyn%20Instytutu%20Zachodniego%20nr%20 30(450)2020.pdf.

21 The website of Neue Richtervereinigung contains three tabs: Prosecution – giving instructions, judicial autonomy, and judicial independence. It also features a Berlin urge for a judiciary conform to EU standards, Berliner Appell 2017 für eine europakonforme Justiz in Deutschland, https://www.neuerichter.de/ fileadmin/user_upload/BuVo-2017-09_Berliner_Appell.pdf; see also: website of Deutscher Richterbund, Die Dritte Gewalt muss sich selbst verwalten, https:// www.drb.de/positionen/themen-des-richterbundes/ selbstverwaltung-der-justiz (accessed: 25.07.2021).

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The Basic Law for the Federal Republic of Germany.

in the rule of law are the issue that is slowly getting through to the public in Germany and Europe.

Despite this, or perhaps because of this, the Federal Ministry of Justice and Consumer Protection concluded a pact for the rule of law (Pakt für den Rechtsstaat)22 , launching a campaign to consolidate the belief that Germany is a country of the rule of law (Wir sind Rechtsstaat, which means “We are a country of the rule of law”)23. One of the tabs on the ministry’s website is dedicated to the independence of the judiciary. Seeking to reinforce the German legal brand, Forum Rechtsstaat is now building two huge facilities in Lipsk and Karlsruhe24. Last but not least, German politicians are lobbying for what they call ‘European values’, notably the rule of law, in EU institutions.

It is surprising that there is the increased activity given some shortcomings in the German rule of law that include: 1. the decisive role of the justice minister in selecting, appointing, reviewing, and promoting judges, 2. political Pakt für den Rechtsstaat – Bund und Länder ziehen positive Bilanz, https://www.bmjv.de/ SharedDocs/Artikel/DE/2021/0610_Rechtsstaat. html?nn=6704238.

22

23 Wir sind Rechtsstaat, https://www.wir-sindrechtsstaat.de (accessed: 30.07.2021).

Stiftung Forum Recht, https://stiftung-forumrecht.de/ (accessed: 30.07.2021).

24

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© Source: Pixabay

party affiliation of judges, 3. no real powers for judges and self-governing bodies for prosecutors25, 4. managing judges’ workload through the PEBB§Y system26, 5. non-published common court judgments27, 6. The dependence of the public prosecution on the justice minister, allowed to issue binding recommendations for pending proceedings28. The link between the judiciary and the executive branch in Germany is examined below.

Judges and the executive branch in Germany

The Basic Law for the Federal Republic of Germany stipulates both separation of powers (Article 20) and judicial independence (Article 97)29. Nonetheless, 25 Bainczyk, M. (2019) Wybrane aspekty prawne niezawisłości władzy sądowniczej w RFN/Selected Legal Aspects of Judicial Independence in the Federal Republic of Germany, IZ PP, No. 30, p. 45 et seq.; https://www.iz.poznan.pl/plik,pociąg,3026,1cf079cc57 256ac2eeaa534c581c132a/IZ%20Policy%20Papers%20 30.pdf (accessed: 28.10.2020).

26 Personalbedarfsberechnungssystem, https:// amtsrichterverband.net/themen/pebbsy.html (accessed: 31.07.2021) 27 Hamann, H. (2021). Der blinde Fleck der deutschen Rechtswissenschaft – Zur digitalen Verfügbarkeit instanzgerichtlicher Rechtsprechung, JuristenZeitung (JZ), Issue 13, pp. 656–665.

28 Judgment of the ECJ of 27 May 2019 in joined cases C-508/18 OG (Parquet de Lübeck) and C-82/19 PPU, ECLI: EU: C: 2019: 456.

29 Article 97 (1) Judges shall be independent and subject only to the law. (2) Judges appointed permanently to positions as their primary

German Problems with the Rule of Law provisions of the Basic Law that relate directly to the judiciary – Article 95 (on supreme federal courts) and Article 98 (on legal status of federal and Land judges) – contain clauses based on the German view of the judiciary as a state apparatus, where the federal justice minister and their Land counterparts wield power. On the one hand, in its Constitution, Germany specifies separation of powers and judicial independence, but on the other, it provides for a strong bond between the judiciary and the executive branch30, an example of which are some provisions on selecting and appointing judges as discussed further in this article.

As competencies were split between the Federation (Bund) and federal states, or Länder, any regulations for electing, appointing, reviewing, and promoting judges were adjusted for Land constitutions and their legislation alongside lower-order legal acts. Due to its size constraints, this article does not provide an insight into regulations in Germany’s federal states31, a responsibility that should fall on the European Commission seeking to thoroughly assess adherence to the rule of law in Germany, aside from the bloc’s occupation may be involuntarily dismissed, permanently or temporarily suspended, transferred or retired before the expiry of their term of office only by virtue of judicial decision and only for the reasons and in the manner specified by the laws. The legislature may set age limits for the retirement of judges appointed for life. In the event of changes in the structure of courts or in their districts, judges may be transferred to another court or removed from office, provided they retain their full salary.

30 Nešković, W. (2010), Sine spe ac metu, Verfassungsrechtliche Fragen zur Selbstverwaltung der Justiz. Vortrag während der Tagung, Ökonomisierung der Rechtspflege – Risiken und Nebenwirkungen der Evangelischen Akademie in Bad Boll, pp. 17–19, pp. 1, 4, https:// www.ev-akademie-boll.de/fileadmin/res/otg/ doku/520910-Ne_kovic.pdf, (accessed: 16.07.2018); for another perspective see: Kramer, B. (2009). Die Selbstverwaltung der Dritten Gewalt, Neue Juristische Wochenschrift, p. 3081 et seq.

Bainczyk, M. (2019) Przegląd przepisów ustaw krajów związkowych, in: Wybrane aspekty prawne niezawisłości władzy sądowniczej w RFN, op. cit., p. 30 et seq.

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competence in this respect. In its ad casum ruling, the CJEU might have examined the regulations in Hesse, albeit the institution has not analyzed them thoroughly. The judgment of 20 July 2020 contained no answer to a request for a preliminary ruling from a judge from the Administrative Court in Wiesbaden whether the referring court is an independent and impartial court or tribunal within the meaning of Article 267 TFEU read in conjunction with the second paragraph of Article 47 of the Charter. In justification for a superficial, and thus flawed analysis, the CJEU ruled that even though the Constitution of Land Hesse grants the justice minister power to appoint, review performance, and promote judges, the German administrative court that filed for a preliminary ruling was ensured independence32.

The New Judges Association (Neue Richtervereingung) expressed hope to the public that a debate on reforming the German judiciary would begin. It should eventually free the judiciary from the executive branch and remodel the former’s highly elaborate and hierarchical structure while making it accountable to the parliament33. Unfortunately, German judges’ associations eventually gave up their hopes, as neither Advocate General Maciej Szpunar nor the adjudication panel of the CJEU noticed some flaws in the German judiciary, which is what federal associations of judges and prosecutors have signaled for decades now.

What is also worth mentioning is the position of a longtime judge who has 32 Judgment of the Court of Justice of the EU of 9 July 2020, C-272/19, VQ v. Land Hessen, ECLI: EU: C: 2020: 535, theses 48–61; analysis of Hesse regulations in: Bainczyk, M., Report of the European Commission..., op. cit., pp. 6–7.

33 Es ist an der Zeit, über Justizstrukturen in Deutschland zu reden!, https://www.neuerichter. de/details/artikel/article/es-ist-an-der-zeit-ueberjustiz Konstrukturen-in-deutschland-zu-reden-635 (accessed: 30.07.2021).

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Law lobbied for years for reinforced judicial independence within the association of judges. Löbbert compared the system for performance review and promotion to a bridle, with its reins remaining in the hands of authorities. Although the judiciary is tasked with overseeing the executive branch, the latter can determine whether the former performs this duty correctly. Thus, the controlled body is overseeing the supervising authority. The performance review system of the justice minister is growing in importance because in Germany there are more than a dozen grading categories for all levels of court, additionally linked to the salary range34.

Although the Wiesbaden Administrative Court lost the case, German judges have no intention of giving up. A request for a preliminary ruling was submitted to the CJEU from an Erfurt judge35. According to Judge Borovsky, who delivered a negative opinion on the structure of the regional judiciary, “the national constitutional situation in Germany and in Thuringia does not meet those standards (on the lack of independence of the German prosecution service, see judgment of 27 May 2019, C-508/18). It only recognizes functional judicial independence in the key area of judicial activity, which is personal independence. However, that is not sufficient to protect judges from all forms of external influence. The additional institutional independence of the courts required for that is by no means guaranteed. However, the independence of individual judges is guaranteed by the independence of the judiciary as a whole.

The organization of the judiciary and the case-law of Thuringia do not meet the standards of judicial independence Löbbert, C. (2012). Verfassungsrechtliche Fragen zur Selbstverwaltung der Justiz. Die Justiz im System der Gewaltenteilung, Neue Richtersvereinigung- Info, 6, Hessen, pp. 19–20.

34

35 Request for a preliminary ruling of 15 June 2020, C-276/2020, op. cit.

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demanded under European constitutional law and by the European Court of Justice (see judgments of 19 November 2019, C-585/18, Paragraph 121 et seq.; of 24 June 2019, C-619/18; and of 25 July 2018, C-216/18). More precisely: a) In Thuringia, as in every other federal state in Germany, the executive is responsible for the organization and administration of the courts and manages their staff and resources. The Ministries of Justice decide on the permanent posts and the number of judges in a court and on the resources of the courts. In addition, judges are appointed and promoted by the Ministers of Justice. The underlying assessment of judges is the responsibility of the ministries and presiding judges, who, aside from any judicial activity of their own, must be regarded as part of the executive. The Ministers of Justice and the presiding judges who rank below them administratively and are bound by their instructions act in practice as gatekeepers. In addition, the presiding judges exercise administrative supervision over all judges36.”

According to Article 89, Section 2 of the Constitution of Thuringia37, “the Minister for Justice decides on the provisional appointment of judges and, with the consent of the Judge Selection Committee, on their lifelong appointment. Two-thirds of the Committee members are Landtag deputies, elected upon a two-thirds majority vote. Each parliamentary group shall be represented by at least one person.”

Under Paragraph 51 of the Thuringia Act on the Legal Status of Judges and Public Prosecutors in Land Service38, the Judge Selection Committee consists of twelve 36 Request for a preliminary ruling of 15 June 2020, C-276/2020, op. cit., p. 7.

37 Constitution of the Free State of Thuringia of 25 October 1993 (GVBl. p. 625), as last amended by Act of October 11, 2004 (GVBl. p. 745).

Thüringer Gesetz über die Rechtsverhältnisse der Richter und Staatsanwälte im Landesdienst (Thüringer Richter- und Staatsanwältegesetz - ThürRiStAG -), as of 14 December 2019, GVBI 2018, p. 677.

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German Problems with the Rule of Law Landtag members and five judges. In the light of the above, the provisional appointment of judges is defined as the appointment for a probationary period within the meaning of Paragraph 12(1) of Federal Law on the Legal Status of Judges39, which occurs prior to lifelong appointment following a probationary period of five years maximum. Under the Constitution of Thuringia, the justice minister has the right to make the preliminary selection of candidates. At the same time, in the first two years of this period, as stipulated

by Paragraph 22(1) of the Federal Law on the Legal Status of Judges, the justice minister is entitled to impeach a judge for convenience. The minister plays their role in judicial performance evaluation pursuant to Paragraph 10 of secondary legislation to the Judicial System Act while the reviewing committee consists of the justice ministry and chief judges40 with regard to the administrative rules of the Ministry of Justice of Thuringia41.

Therefore, it is impossible not to agree with Judge Borovsky’s stance on the minister’s profound intervention into courts.

Although the country’s federal states differ in procedures for selecting, appointing, reviewing, and promoting judges, they have one in common, which is that the justice minister is always present for these proceedings. According to Article 98, Section 4 of the Basic Law for the Federal Republic of Germany, “the Länder may provide that Land judges shall be chosen jointly by the Land Minister of Justice and a committee for the selection of judges.” It 39 Deutsches Richtergesetz DiRG in the wording of 19 April 1972 (BGBI. I p. 713), last amended by Act of June 25, 2021 (BGBl. I S. 2154).

Thüringer Gesetz zur Ausführung des Gerichtsverfassungsgesetzes (ThürAGGVG) in the wording of 12 October 1993 (GVBl. 1993, 612), as last amended by Act of 10 October 2019 (GVBl. P. 382).

40

Dienstliche Beurteilung von Richtern und Staatsanwälten. Verwaltungsvorschrift des Thüringer Justizministeriums of 1 July 1994 (2000 4/94), JMBl. No. 7, p. 104.

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is unconstitutional to appoint judges only through the committee only or without consent from the justice minister. This provision is optional, so the Länder could invoke it while appointing judges through the committee or delegate this decision to the executive. The committees now operate in 9 out of 19 federal states in Germany42.

Although Article 98, Section 4 of the Basic Law enacts provisions regarding the appointment of judges, it also provides for promoting proceedings. Any decisions by the minister alone or along with the committee are subject to judicial review, but as these do not need any justification, their possibility for control is restricted43.

Article 98, Section 4 of the Basic Law contains no mention of the committee composition, but its authors believed that these should be members of the Land parliament. Hillgruber states that non-parliamentary committee members cannot be nominated by professional groups: judges, lawyers, or prosecutors.

Judges take part in appointing new ones by co-option, which, according to the author, is incompatible with the Constitution and the principle of democratic legitimacy as enforced by the committee. The chain of democratic legitimacy is closed as long as the non-parliamentary committee members were either elected by the latter or appointed by the Land government.

Non-parliamentary members of the committee for the selection of judges shall be nominated by their professional group, while their candidacy shall be approved by the parliament. These proposals are not binding for lawmakers, while the number of candidates shall exceed the number of seats in the committee44.

42

Cf. Witrreck, F., op. cit., pp. G-96 et seq.

Morgenthaler G., GG Art. 98 [Rechtsstellung der Richter] in: Epping, V., Hillgruber, Ch. (2018).

BeckOK Grundgesetz, München, 37th Ed., nb.

18–19.

43

44 Hillgruber, Ch. (2018). Art. 98 GG, in: Maunz, Th., Dürig, G. (eds.). Grundgesetz. Kommentar, München, 82th Ed, nb. 60–64.

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Law Party affiliation of judges

In addition that the justice minister has a decisive influence on appointing judges, in Germany judges are allowed to be members of political parties. These two premises raise doubts about whether the procedures for the selection, appointment, and promotion of judges are transparent.

Twenty years ago, Sendler, a former president of the Federal Administrative Court, shared this uncertainty: “How many federal supreme judges affiliated with some political parties (...) joined them for their beliefs, and not for their opportunistic stance?45” Similar objections were featured in a justification for the preliminary ruling referred by a court in Erfurt, with proceedings now pending in the CJEU: “the formal and informal blurring of numerous functions and staff exchanges between the judiciary and the executive are also typical of Germany and Thuringia. For example, judges may be entrusted with acts of administration of the judiciary. The traditional practice of seconding judges to regional or federal ministries is one particular concern.

Seconded judges are often integrated into the ministerial hierarchy for years. It is also not unusual for them to switch back and forth between ministries and courts and even between the status of judge and the status of civil servant (...)46.”

The close link in Germany between the judiciary and the executive and the hierarchical structure and institutional dependence of the judiciary are rooted in the nineteenth century; it was not interrupted past 1945 although the judiciary served a pivotal role in the Third Reich policy47. This solution was based Sendler, H. (1995). Unabhängigkeit als Mythos?, Neue Juristische Wochenschrift, p. 2467.

45

46 Request for a preliminary ruling of 15 June 2020, C-276/2020, op. cit., p. 8.

Cf. Kulesza, W. M. (2021). Przestępcze naginanie prawa przez niemieckie sądy specjalne w okupowanej Polsce. Przyczynek do badań, in: Bainczyk, M., Cyrul-Kubiak, A. (2021). Odpowiedzialność państwa 47

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on the belief that judges and prosecutors belong to the intellectual and social elite of the state, which predestines these particular professional groups to play an active role in political decision-making processes48.

The legacy of this tradition was included in Section 9(2) of the Federal Law on the Legal Status of Judges, according to which any person appointed as a judge would serve for a free and democratic order within the meaning of the Constitution49.

Nonetheless, the provisions contained in Section 39 of the Federal Law on the Legal Status of Judges partially restrict the political activity of judges, stipulating that they shall not breach the confidence in their independence within their office or beyond.

The procedure for selecting judges, mostly those in federal courts, is receiving increasing criticism from media outlets.

In an extensive press article, Janisch discusses details of how judges are elected to the Federal Supreme Court (Bundesgerichtshof), saying the committee voting was nothing but a “democratic ritual” closing more than six-month efforts to secretly compose a list of candidates by the CDU and the SPD, where the Green Party and the FDP win one seat or two. The informal procedure of drafting lists of candidates also involves justice officials, minister presidents, presidents of federal courts, and high courts in Länder, appointed through a politically determined formula. In addition to the judge’s being close to any political party or their membership, gender parity is taken into account, as well as equality is guaranteed for federal states. Although za zbrodnie międzynarodowe. Refleksje wokół wystawy „Rosenburg”, Poznań, p. 25 et seq.

Burghardt, M. (2010) Richter und parteipolitisches Engagement - Versuch einer Betrachtung aus ethischer Sicht, Deutsche Richterzeitung, No. 10, p. 352, https://www.drb.de/fileadmin/DRB/pdf/ Ethik/Burghardt_DRiZ_2010_351_Richter_und_ parteipolitisches_Engagement.pdf.

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49 Schmidt-Räntsch, J. (2009). Deutsches Richtergesetz: DRiG, 6th Ed., München, § 39, nb. 18.

German Problems with the Rule of Law the registers include only candidates priding themselves on top professional skills, from a democratic point of view, it is problematic to limit the list to judges affiliated with a political party50. In recent months, judges of the Federal Fiscal Court (Bundesfinanzhof) opposed the procedure of selecting candidates closely linked to the CDU and the SPD51.

Conclusions

There is a profound link between the judiciary and the executive branch in Germany, where a Land minister of justice decides on selecting, appointing, and promoting judges, as well as on structuring courts, the number of staff, and available resources. These solutions have been met with criticism from representatives of the judiciary in legal associations, including Neue Richtervereinigung and Deutscher Richterbund. Judges who claimed separation of power and introduction of some elements of justice self-governing body (there is no equivalent of Poland’s National Justice Board in Germany) resort to the final solution, which is a request for a preliminary ruling undermining their judicial independence (sic!). Nonetheless, as was the case of the Judgement of the CJEU in Case 272/19 and the 2020 Rule of Law Report – Country Chapter Germany, so far EU institutions failed to notice any rule of law shortfalls in Germany, perhaps due to the country’s highly experienced and efficient diplomacy, also in legal aspects.

A specific test for judicial independence (sic!), or perhaps the jurisprudence of the CJEU, will undoubtedly be the judgment in that case referred by a judge from a court 50 Janisch, W. (2019). Parteien machen Richterwahl unter sich aus, Süddeutsche Zeitung, https://www. sueddeutsche.de/politik/bundesgerichtshof-bghrichterwahl-richter-1.4362214?print=true. (accessed: 28.07.2021).

51 Sehl, M., Dietrich, P. (2021). Drohen im Streit um BFH-Spitze nun Konkurrentenklagen?, Legal Tribune Online, https://www.lto.de/recht/nachrichten/n/ bmjv-trifft-auswahlentscheidung-fuehrungpraesident-vizepraesident-bundesfinanzhof-bfhpolitische-motivation/ (accessed: 29.07.2021).

There is a profound link between the judiciary and the executive branch in Germany, where a Land minister of justice decides on selecting, appointing, and promoting judges, as well as on structuring courts, the number of staff, and available resources. in Thuringia (C-276/2020). The process of interfering with the judiciary in Germany, which is based on the law that has been in force since the late 1970s52, cannot be of an ad casum nature, depending on a set of criteria from the European Union and the CJEU. Is Europe ready, however, to adopt even a harmonized judiciary system? And is it necessary for the EU and its member states, the latter having their democratic principles, which are robust, but intrinsically linked to history and national traditions? Will the dispute over the justice system in Germany, which will occur sooner or later, become a new flashing point after the contention amid the FCC judgment of 5 May 2020 between the CJEU, the European Commission, and Germany?

Magdalena Bainczyk December 2021 The Act of 27 January 1877 on the system of courts (Gerichtsverfassungsgesetz, GVG), in the wording of 9 May 1975 (BGBl. I p. 1077), last amended by Act of 7 July 2021 (BGBl. I, S. 2363).

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Establishing the rule of law in Poland Marcin Romanowski, Jarosław Szymanek

The political reforms which started in Poland at the end of 2015, following the alternation in power and taking over the rule by the so-called Unified Right, provoked a determined resistance of the circles well-rooted in what might be referred to as “small democratic stability”. It resulted directly from the systemic transformation process and was also a form of the unfinished revolution started in the 1980s.

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Establishing the rule of law in Poland

The seat of the Constitutional Court in Warsaw.

T

he uprising of the proindependence environments led to the Round Table talks in 1989. The agreement reached there formed the basis for slow systemic transformations, but it also guaranteed, to certain groups, the possibility to last in the new order with no consequences of their earlier actions.

Those included the groups which, in the period of the Polish People’s Republic, were oriented towards the Soviet Union and the construction of socialism; at the same time, they torpedoed all forms of striking out for independence. After 1989, for a great part of those circles, the earlier alliance with the USSR and the promotion of the Marxist views have been replaced with a clear pro-western option, while the construction of socialism has been substituted with the establishment of the “democratic rule of

© PAP/Radek Pietruszka

law”, though with a very low awareness of what democracy is and what the rule of law should look like. This can be seen clearly in the Polish higher education system, where the former faculties of scientific socialism were renamed to become faculties of political sciences. The faculties of law, which promoted socialist egalitarianism and the Marxist and Leninist vision of law as the superstructure for the proletariat foundations, have become a breeding ground for experts in selectively understood and interpreted democratic constitutionalism.

Biographies, and in particular the biographies of many “scholars”, are good examples of quick reorientation of views.

As a result, before 1990, they condemned bourgeois doctrines, but later they turned into apologists of the so-called bourgeois 4/2021

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Law science which, for the marketing purposes, they dubbed “democratic”. That may somehow be explained by the fact that it was those circles which, with rather inept zealotry, became the greatest “defenders” of the rule of law, recognizing that the reforms started after 2015 dismantled the rule of law both de iure, and de facto, destroyed democracy, and squandered the achievement of the Polish systemic transformation. In reality, it is all about the fact that the changes introduced laboriously in the Polish legislation were not so much an alleged attack on the rule of law but rather an attempt, unfortunately belated, at reversing the logics of the negotiated 1989 revolution, which resulted not so much in the democratization of the Polish system, as is commonly believed, as in the distribution of capital and influence between the former communist establishment and some of the opposition leaders from the Polish People’s Republic. That distribution was supposed to be guaranteed by the rule of law as an essentially unchangeable principle – to prevent any attempts at questioning the settlement which became the foundation for the system of the Third Polish Republic.

That may be proved by the apology of constitutional changes negotiated at the Round Table as demonstrated by the mainstream environments – changes that at the time were in fact ratified by adopting the formal amendment to the constitution of the Polish People’s Republic in April 1989. What dominates in the official narration of the Third Polish Republic is the opinion that that very change began the democratisation process, was the departure from the socialist models, and opened the transition to the new system.

The opposite interpretations are mostly recognised as aberrations. Nevertheless, it remains true that the April 1989 amendment was designed to petrify the political order. It was a democratic opening, a sort of foundation stone for the Polish transformation in the official 96

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propaganda. However, one should agree with the opinion which says that it is more appropriate to call it an authoritarian closing, as its essence consisted in a specific distribution of power between the former communist establishment and new Solidarity elites, which were in fact given access to power – according to very strict rules – under the Round Table agreement. What proves it best is the essence of the contract election which, after all, guaranteed that the communists would receive the whole power – it was predicted that as much as 65 per cent of parliamentary seats would be reserved for them in advance. That meant that the election in the Polish conditions of the rule of law was supposed to be democratic only in the remaining segment of 35 per cent, which was open to a free election game.

According to the Round Table agreement, free competition between the supporters of the old and the new order was meant to take place with regard to that pool. The thesis saying that the 35 per cent of seats were allocated for the Solidarity opposition, one that is promoted in the narration of the Third Polish Republic, is not true. As can be seen, the democratic opening was no more than a crack in the door.

The April amendment also introduced the new (or rather revived in the Polish system) institution of the Senate. However, it was, in delicate terms, imperfect from the very beginning. It was not included in the election contract. The election to the upper house of the Parliament was held according to the free competition rule.

However, the importance of the Senate in the system has been reduced so much that in fact it has no importance at all. That can be seen best in the legislative process, where the role of the Senate has been defined as the house of “reflection and consideration”, whose opposition does not prevent the law supported in the Sejm from being adopted. That weak

Establishing the rule of law in Poland competence and role of the Senate, which does not participate in the political control over the government either, was consciously planned from the very beginning. In short, the fact that there was no election contract made that house uncertain from the political point of view, which had to result in its incapacitation with regard to its competences. In the adopted system, it was the controlled and predictable Sejm that was the “leading and dominating house”, as has once been nicely put by the Constitutional Tribunal.

The Senate, on the other hand, which was a post-election unknown, was the symbol of the Polish independence, the reference to the systemic traditions of the interwar Poland, and nothing more.

The decision to restitute the Senate was motivated, most of all, with the need to legitimise the new constitutional architecture, i.e. by making a reference to the heritage of the interwar Poland and the statement that “it is going to be normal now”. However, it was the socialist syndrome with its inherent unicameral system that still dominated in political calculations. Therefore, the vision of the Sejm as the highest authority (with the power to make political decisions) and the Senate as the legitimising authority (proving the essential change of the system and departure from the solutions typical for the Polish People’s Republic) clashed in the constitutional model of the Polish parliament.

However, the fact that the April amendment was supposed to be a manner of an authoritarian closing rather than democratic opening, as the modern propaganda like to state, is best proven by the institution of the president. It was supposed to legitimise, in a sense, the introduced changes, referring to the heritage of the interwar Poland. In fact, the institution of the president was designed as

a watch dog of the transformation and meant not to “get out of hand” of those who created it and thought that they would control it. That was demonstrated by two circumstances. The first of them was the manner of electing the president by two houses of the Parliament (i.e. Sejm and Senate), which was supposed to guarantee that it was the communist leader or a person trusted by the communists that would become the president. The second one was the scope of the president’s powers, which occurred to be completely disproportionate and so wide that one could even speak about at least a quasi-presidential system. It should be enough to say that the president had both the right to dissolve the Sejm at any moment (and one of the grounds for dissolving the Sejm was the adoption of a resolution by the Sejm which would prevent the president from performing his tasks) and a free legislative initiative (still vested in the president of Poland, while it is not granted even in the US presidential system). What is more, the president was, in fact, freed from the need to obtain a countersignature and, what follows, from accountability (to tell the truth, the constitution di introduce the requirement of a countersignature, but stated that the list of acts to be counter-signed would be specified in a legal act, which was never done). Therefore, the presidency model adopted in the April amendment was a guarantee of the Round Table agreement.

The April amendment quickly became outdated, mainly as a consequence of the 1989 election, which showed that life went ahead of the adopted constructions. The magnitude of Solidarity’s victory and, on the other hand, the scale of the failure suffered by the communists, who did not manage to put any of their representatives in the Senate, forced other changes. As a consequence, an amendment to the constitution (the December amendment), which was of significant importance for 4/2021

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Law the Polish transformation, was adopted in December 1989.

That amendment finished the period of the Polish People’s Republic de iure and opened the era of the Third Polish Republic. In the December amendment, not only the official name of the state was changed from the Polish People’s Republic to the Republic of Poland but also, most importantly, the axiological redefinition of the state was effected. There, the former provision defining Poland as a socialist state was replaced with a regulation pursuant to which “the Republic of Poland shall be a democratic state ruled by law.”

The regulation guaranteeing the monopolist position of the Polish United Workers’ Party (PZPR) was replaced with the one pursuant to which “the Republic of Poland shall ensure freedom for the creation and functioning of political parties.” To finalise the changes regarding the essence of the state system and its values, a regulation was introduced which guaranteed private property and freedom of economic operations in the place of public property. In many points those changes turned out to be superficial, which may best be proven by the fact that in most cases the substantiation therefor was provided by those same constitutionalists and political scholars who had proved the uselessness of bourgeois democracy before.

They also demonstrated the superiority of the proletariat dictatorship and the so-called socialist rule of law as fundamentally better or more true than the allegedly false rule of law in western democracies.

It is worth considering that when searching for the sources of the weakness in the Polish democracy and discussing that issue. No real change is possible if promoted by proselytisers, who preached totally opposite beliefs a while before – people who perceived bourgeois or capitalist doctrines as the cradle of 98

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backwardness and reactionary attitudes in the 1980s, and who conceived glowing visions of future for socialism. What fills one with horror is the fact that Marxist doctrines were still taught in many faculties of political sciences in the mid-1990s as a result of a belief that “everything may be still reversed”. When it turned out that it rather would not, Marxist doctrines were renamed to become departments of genderism and political marketing. Therefore, all those are right who, like e.g. Professor Ryszard Skarzyński, state that political studies as taught in Polish universities today resemble a popular knowledge of politics rather than authentic political sciences with their deep examination of the sources and issues of politics.

As a result, it may be said that the axiological changes which were introduced in the Polish system in the early 1990s were a change of a signboard rather than a transformation of the essence of things.

And so, the Polish People’s Republic was replaced with the Republic of Poland; the socialist rule of law with the democratic rule of law; the monopoly of PZPR with the pluralism of political parties; and the fundamentals of Marxism-Leninism with political sciences, which replaced the apology of socialist democracy with the apology of liberal democracy. By the way, a similar thing happened in e.g. constitutional law. The theory of the single power was replaced with the theory of separation of powers, with no deeper thought on what that separation in fact is and whether it should be understood a bit differently than Montesquieu understood it over two hundred years ago.

Montesquieu has become a symbol of the separation of powers theory despite the fact that his version of the separation seems outdated in the 21st century.

To go further, the doctrine about the international alliance of Poland and the

Establishing the rule of law in Poland Soviet Union was replaced after 2004 with the doctrine about the membership of Poland in the EU and the resulting obligations. However, those superficial changes were not accompanied by any deeper reflection. That resulted in the inertia in solving some specific problems, e.g. the issue of transitional justice, which is fundamental for most postauthoritarian systems and which is related to the settlement of the issue of the non-democratic past and the accountability of those standing behind it. Settlement mechanisms, including legal ones, were introduced in East Germany, Chile, Spain, Romania, or the Czech Republic, while in Poland each attempt to make people related to ancien régime accountable was recognised as a violation of the rule of law. Transitional justice, which is an important element of constructing each democratic system on the ruins of former authoritarianism, has been replaced in Poland with the ideology of putting the past behind. That was supposed to put an end to discussions on the past and the need to account for communist crimes, including the massacre of workers on the coast in December 1970, the massacre of miners in the Wujek mine during the martial law, or the brutal murder of priest Jerzy Popiełuszko committed in 1984 by the Security Service (SB). The voices speaking about the need to settle the past were silenced with the statement that such settlements are unnecessary or even socially harmful in the stated ruled by law as they heat up emotions and return to the past pointlessly. As a result, for the majority of the communist establishment, the rule of law became a smokescreen guaranteeing impunity. Touching the past, if only to learn the truth, is often recognised as an irrational and primitive retaliation. That may be seen e.g. in the discussions concerning the Institute of National Remembrance, which is sometimes seen as a right-wing

fundamentalist institution lusting for revenge.

That same inertia pertains to fundamental and real reforms in the area of the political system. What attracts one’s attention here is, most of all, lack of wider discussion on the systemic position of courts and the third pillar of power in general. The solutions implemented in the Polish constitutional system throughout the 1980s were in fact petrified, with no greater modifications at all. The introduced institutions, hailed as democratic at the close of the Polish People’s Republic, were simply recognised as such and enjoyed unlimited trust in the later period, which eliminated any and all discussions about them. What is more, in majority they were treated as the institutions which, slowly but effectively, led to the political transformation of 1989, which legitimised them in itself and released them from the whipping post of discussion and possible adjustment.

That was the situation with e.g. the Supreme Administrative Court established in 1980 or the Constitutional Tribunal established formally in 1982 but in fact created three years later. That also happened to the National Council of the Judiciary established in 1989 under the April amendment. The establishment of the latter institution may be the best piece of evidence to confirm that the meaning of the April amendment was the authoritarian closing rather than, as some may insist, the democratic opening of the Polish system. After all, it was decided at the Round Table that systemic modifications may apply to the executive power and the legislative power, but the judiciary should be moved away from all political disputes and hidden behind the screen of the National Council of the Judiciary in the name of respect for the rule of independence of courts and the judiciary.

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Therefore, it is paradoxical that the image of the third power with all its democratic benefits, i.e. separation, independence, and apolitical nature, has been constructed in the conditions of the single state power and was not guaranteed with the principle of the separation of powers and the rule of law until much later.

The National Council of the Judiciary was perfect for this role. Firstly, it was because as a new institution it was not burdened with the discrediting past after 1989.

Secondly, it was fitted prematurely into the constitutional reality for which even the very concept of the third power was alien.

Last but not least, it was because it provided the grounds for nonchangeability when creating the new constitution, as that institution was not burdened with the socialist baggage and it was, even intuitively, associated with the democratic transformation. The issue of possible pathologies of the judiciary was shrugged off with the slogan of “selfcleansing”, which definitely closed the discussion on the need for more extensive changes, which would also include the third power. The result of such an approach was the fact that the judiciary, which was where the most distinguished and proven communist regime officials worked in the period of the Polish People’s Republic, was excluded a priori from the 100

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discussion on the system. Establishing the National Council of the Judiciary as the institution responsible for selecting the human resources was supposed to guarantee that no greater changes in the judiciary would ever take place. What should be emphasised here is the fact that such democratic staffage of the judiciary took place even before the introduction of the rule of law (which was effected in December 1989) and, most of all, before the introduction of the principle of separation of powers to the Polish constitutional law, which did not take place until the “Small Constitution” adopted in October 1992. As a consequence, the signboard of the democratic, independent, and apolitical third power was suspended long before that category became a systemic fact and it was done in the conditions of the single state power. No attention is paid to that today, while it has a great importance for the understanding of the grammar of the Polish judiciary.

Therefore, it is paradoxical that the image of the third power with all its democratic benefits, i.e. separation, independence, and apolitical nature, has been constructed in the conditions of the single state power and was not guaranteed with the principle of the separation of powers and the rule of law until much later. People were also perfectly aware of that fact later, when the weaknesses of the Polish judiciary were diagnosed after years. Most of those diagnoses, which were in fact correct, saw the essential flaw of the position of the courts of law in the National Council of the Judiciary, which began to be shaped at the Round Table and whose actual operation was an obstacle for real changes in the judiciary.

Both politicians and lawyers, e.g. Andrzej Rzepliński, President of the Constitutional Tribunal, or Professor Małgorzata Gersdorf, First President of the Supreme

Establishing the rule of law in Poland

The National Council of the Judiciary is one of the targets of the ongoing reform of the judiciary.

Court, who even prepared a new draft act concerning the National Council of the Judiciary, have spoken about the need to reform the Council. All of them underlined that the Council petrified the system, that it was not representative, as before the changes it was composed of only several percent of district court judges, while district courts make 65 percent of the Polish courts, and was dominated by Supreme Court judges, who make less than 5 percent of Polish judges. All of them agreed that no important reforms of the Polish judiciary are possible without changes in the National Council of the Judiciary. The essence of that issue was captured in simple words by A. Rzepliński, when he said: “If we do not take the National Council of the Judiciary away from the judges, nothing can be done with the Polish judiciary”. Donald Tusk, the leader of Civic Platform, stated explicitly in 2007: “A thorough reform of the National Council of the Judiciary should be introduced. The Council should stop being a body of the judicial corporation and should become a guardian of the citizens’ right to justice. Members of the National Council of the Judiciary should be elected

© PAP/Leszek Szymański

by the Sejm from among the candidates nominated by the senates of higher education institutions. Those should be people of impeccable character, with higher education, and outstanding professional achievement. It is necessary to introduce, to the Council, people with the moral and professional authority from outside the judiciary, not only to make the Council a representative of the interests of citizens – court clients but also to make it an effective institution of the civic insight in and control over the process of selecting and nominating judges, who hold a very important portion of power in Poland. At present, that process does not meet the requirements of a democratic order, as the selection of judges in practice takes place in a circle of corporate co-optation closed to citizens”1. Of course, pointing out the need for reforms in the National Council of the Judiciary was only one of many elements of the desired court reform. However, the reform still remained under discussion, which in fact was rather a discussion of secondary importance. The proposals of Szymanek, J., The context and meaning of judicial reforms in Poland after 2015, “The Warsaw Institute Review” 2021, no. 1, p. 95.

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Law changes were effectively torpedoed with the statement that the National Council of the Judiciary is the result of the Round Table, which is invariably the cornerstone of the Polish democracy.

Serious discussion on the Polish judiciary was not undertaken during the works on the new Constitution, which was finally adopted in 1997, either. At that time, all talks focused on completely different issues, such as the bicameral parliament, the right to life and its scope, the rights of the president, and the local governments. The issue of the third power was recognised as finally settled at the Round Table, and the only disputable elements were issues regarding the Constitutional Tribunal. It was considered whether it should be a part of the judiciary or maybe it should have the status of a separate power; the issue of the finality of the Tribunal’s rulings was also debated upon. What is striking is the fact that no wider discussion on the third power was held during the serious talks on the new Constitution of the Third Polish Republic. Many rudimentary constitutional issues were already deemed as settled beforehand, including the rule of law or the separation of power. As a matter of fact, the latter one was not particularly discussed either. It was recognised that the scheme proposed by Montesquieu should be adopted with regard to the separation of power (tripartite system), while other variations and possibilities which have appeared for the last two hundred years were completely ignored. And so, no one seriously considered whether the Constitutional Tribunal belonged to the judiciary or maybe, as Hans Klesen, father of the constitutional courts himself wanted, it was a legislative power with an eliminating effect on the legal system, i.e. a negative legislator. The issue of the status of the president was not discussed either, i.e. whether he is actually an element of the executive power or maybe he is closer to the arbitrage or moderation power as 102

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propounded by Benjamin Constant. No one initiated a serious discussion on the so-called duopoly of power either, i.e. the separation of power between the government and the opposition.

Meanwhile, today it is that duopoly that defines the most important relationships in the state system and requires e.g. the institutionalisation of the rights vested in the opposition.

The issue of the mass media was not raised either, which have been hailed the fourth power by western political scientists long time ago, as they are able to manipulate and influence the public opinion. Today, quite understandably, the position of the mass media is even stronger and more dangerous.

Today’s mass media have nothing in common with those spoken about by John Stuart Mill, when he wrote about the freedom of speech as a value and the necessary condition of democracy as well.

The mass media have lost their fundamental function, i.e. that of providing reliable and objective news, long time ago and have become identity media instead.

They have become involved in political disputes, impose their own vision and opinion, and hide behind the general watchword postulating the freedom of speech once accused of partiality or bias. As a result, the media have abandoned the role of an impartial observer long time ago, to transform into an involved participant in the game of power, and thus have become the holder of that power par excellence.

However, they are completely omitted on the systemic level. As a consequence, the issues of the monopoly of the mass media, their capital structure, or the limits of exercising the freedom of speech are not the focus of deeper reflection. At the same time, with regard to the actual authorities, continuously advancing de-concentration and evaluation is demanded therefrom in the name of the alleged democracy and rule of law, which in consequence would mean

Establishing the rule of law in Poland pauperisation, as in frequently repeated Lord Acton’s conclusion that power tends to corrupt and absolute power corrupts absolutely. However, in the conditions of the modern mediocracy, the issues which are sometimes raised, e.g. the de-concentration of the media, control over the media, limits to the freedom of speech, or nature of the capital standing behind the media, are deemed an attack on the mass media, attack on the rule of law, attack on the freedom of speech.

The rule of law, which is rightly the supreme principle of the Polish constitution, is very distorted in our systemic conditions. It is difficult to speak about its atrophy, erosion, degradation, or retreat, when from the very beginning it has been understood in a selective and very instrumental manner and, most of all, with no consideration of the complexity of doctrinal constructions which have grown around the idea of the state ruled by law. After all, it may not be equalled today with a primitive tripartite system, without taking into account independent agencies (agency power), the mass media (media power), political opposition, or an extensive control system (in accordance with the well-known system of the control power). The separation of power may not be considered without the judicial activism and the increasing role of the courts of law, which for Montesquieu were only “the mouth of the law”, but which today are a legitimate holder of power which in addition has an appetite to become the supreme pillar of power. For some, this proves that for many acolytes of the idea of the rule of law, the later is rather the idea of the rule of lawyers. The separation of power may not be separated from the demand for the balance of power. It is actually a direct part of the Polish constitution but is not a subject of any serious interest of lawyers or political scientists. Those who mention it are responded to with aggressive retorts. In fact – and unfortunately – such selective and very superficial treatment of the rule of

law also excludes certain issues from the public discussion which is, as a matter of fact, the essence of democracy. It is in that manner that debates on the reform of courts of law, the status of judges, or the need to bring order to the mass media are brought to an end. Any discussion on those issues is most often ended with the accusation of attack on the rule of law and its separate parts (judicial independence, freedom of speech, access to information).

Meanwhile, the most general and, at the same time, the fundamental meaning of the rule of law is the building of trust between the rulers and the ruled. We have departed from the scheme that the trust is present only in the act of election (the so-called electoral democracy) a long time ago.

Today, the trust in the public sphere is present only in the concept of accountability of each authority, regardless from the fact whether it is the authority of a deputy, a minister, a judge, or a journalist.

Each of them participates in power, albeit according to other principles and in a slightly different way, and each should be held accountable for it and, at the same time, be subject to simple and clear rules, which is the fundamental directive of the state ruled by law. If that does not happen, if separate elements of the rule of law are treated selectively and instrumentally, depending on political needs, sympathies, and antipathies, the rule of law may not be invoked. The rule of law does not exclude certain areas, e.g. the judiciary or the mass media, from the public discussion and legible and transparent game rules.

Unfortunately, that is what has been missing in Poland, where political history shows that the transformation process was a process of selective changes and a selective approach to the rule of law.

Marcin Romanowski, Jarosław Szymanek December 2021

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Józef Piłsudski's Exile, Imprisonment, Missions, and Peregrinations All Over the World (Part IV – The Last)

Sławomir Moćkun

38 HOURS IN GENEVA

D

espite the primacy of bilateral formats in international politics and publicly showing distance to the League of Nations, Piłsudski, convinced by August Zaleski, noticed the potential of the League in the global security architecture.

He decided to use it to improve relations with Lithuania, which was one of the most pressing problems in terms of liaisons with Poland’s neighbors. After the military coup d’état, when Antanas Smetona and Augustinas Voldemaras came to power, and the declaration of the state of war

by Kaunas, fueled by anti-Polish policy,

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Piłsudski was forced to take decisive action. After the initial propaganda campaign carried out in Warsaw, Vilnius, and other places, it was concluded, based on unambiguous analyses, that the best arena for the diplomatic offensive would be the League of Nations, where Kaunas filed a complaint against the Polish conduct toward the Lithuanian minority in the Vilnius region.

Piłsudski set off to Switzerland on December 7, 1927, at 20.45 by train, through Saxony, deliberately omitting Berlin. Arriving in Geneva on December

Józef Piłsudski's Exile, Imprisonment, Missions and Peregrinations All Over the World (Part III)

Józef Piłsudski (C), next to Polish Foreign Affairs Minister August Zaleski (L) and French Foreign Affairs Minister Aristide Briand (R), during a League of Nations meeting, Geneva, Switzerland, December 1927.

9, 1927, before noon, exceptionally dressed in a suit (which had to be bought for that occasion because, before that, Piłsudski would only wear uniforms), he had one goal. He wanted to end the state of war with Poland declared by Kaunas, saying that he intended to leave the following day to return on time for his wife’s name day. “Peace or war?,” he asked this question for this very purpose.

The Lithuanian Prime Minister’s answer could be only one: a formal renunciation of the state of war between Lithuania and Poland. It was concluded in the text of the resolution agreed on the same day with the assistance of Briand. The following day, during a League of Nations

© Source: wikimedia commons

Council meeting behind closed doors, Voldemaras, under pressure exerted

by Piłsudski, personally confirmed the announcement about the ‘nonexistence of the state of war’, which Aristide Briand, Austen Chamberlain, Frans van Blokland, and Gustav Stresemann commented on as ‘the domination of peace’. In fact, this concise report could summarize the whole stay in Switzerland. After the meeting, Piłsudski went for a walk at Lake Geneva.

The final text of the resolution on the dispute between Lithuania and Poland was presented late in the evening by the Council’s rapporteur Frans van Blockland, a Dutch minister. It was approved by acclamation. Before midnight, Piłsudski 4/2021

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Piłsudski, in an excellent mood, talked about his imprisonment in Magdeburg, asking Stresemann to give regards to the commander of the Wesel fortress, who, opposing the unlawful detention without a court judgment, turned out to be a real gentleman. hands with Voldemaras. Although the Lithuanian politician did not utter the word ‘peace’, Piłsudski achieved his goal. He also started to be perceived as a propagator of peace in the international political arena1.

On the sidelines of the League of Nations Council meeting, Piłsudski held several other longer encounters. One of the meetings took place in the afternoon that day and was attended by Foreign Ministers of Poland, France, Great Britain, Germany, as well as Italian and French delegates of the League of Nations. Łossowski, P. (1997). Stosunki polsko-litewskie 1921–1939 [Polish-Lithuanian Relations 1921–1939], Warsaw, pp. 100–109; Jędrzejewicz, W., Cisek, J. (2006–2007). Kalendarium życia Józefa Piłsudskiego 1867–1935 [The Calendar of Józef Piłsudski’s Life], 4, Cracow, pp. 61–63; Piłsudski, J. (1937–1938).

Pisma zbiorowe [Collective Works], 9, Warsaw, p.

102; Sierpowski, S. (1990). Piłsudski w Genewie.

Dyplomatyczne spory o Wilno w roku 1927 [Piłsudski in Geneva. Diplomatic Dispute about Vilnius in 1927], Poznań, pp. 96–102; Suleja, W. (2009). Józef Piłsudski, Wrocław, p. 370.

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Piłsudski, in an excellent mood, talked about his imprisonment in Magdeburg, asking Stresemann to give regards to the commander of the Wesel fortress, who, opposing the unlawful detention without a court judgment, turned out to be a real gentleman2. Then, to the dismay of French politicians, Piłsudski began to praise the German army, and thus dominated the meeting, as he intended. The Marshal also had an hour-long conversation with Gustav Stresemann. Renouncing the use of force, a sincere assessment of the state of Polish-German relations was made, including disputable issues (customs war, minority situation), as well as discussing the international situation and explaining quite vast amounts of hearsay. His stay in Geneva was also used for the bilateral talks conducted in private, not only with the German Minister of Foreign Affairs.

Aristide Briand, Austen Chamberlain, and Vittorio Scialoja also held hour-long talks with Piłsudski. It is not surprising that the Polish press used the League of Nations meeting to strengthen the image of the Marshal as an important figure in the international arena3.

Józef Piłsudski left Geneva at about 1 a.m. On the way to Warsaw, he visited Vienna, where he spent several hours walking around the city. On the train, he gave an interview to the correspondent of “Le Matin”. Piłsudski was happy to be going back home having heard the In May 1925, Piłsudski gave a lecture entitled “Psychology of the Prisoner”, in which he characterized, based on his own experiences, Russian and German prisons during the period of servitude.

The prison was part of Polish culture. Piłsudski, J. Pisma… [Works…], 8, pp. 173–187.

2

Jędrzejewicz, W. (1976). Rozmowa Marszałka Piłsudskiego ze Stresemannem w Genewie w 1927 roku [J. Piłsudski’s Conversation with Stresemann in Geneva in 1927], Niepodległość [Independence], X, London/New York, pp. 141–143; Jędrzejewicz, W., Cisek, J., op. cit., pp. 63–64; Sierpowski, S., Piłsudski w Genewie. Dyplomatyczne spory o Wilno w roku 1927 [Piłsudski in Geneva. Diplomatic Dispute about Vilnius in 1927], Poznań 1990, pp. 103–114; Suleja, W., op. cit., p. 370.

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Józef Piłsudski's Exile, Imprisonment, Missions, and Peregrinations All Over the World (Part IV – The Last)

Józef Piłsudski in Egypt, on his last visit by the Qarun Lake.

word ‘peace’, which meant that he had achieved his goal. ‘Sometimes one may have the illusion that great disputes have been resolved, whereas they have not been settled between nations. You have to pay close attention to this underwater reef,’ he answered the question about his impressions of the League of Nations meeting, probably knowing that the success in Geneva will not translate into a rapid improvement of PolishLithuanian relations. It took another ten

years and one more crisis to establish diplomatic relations between Kaunas and Warsaw4.

THE TRIP TO THE BORDERLINE OF EUROPE AND A VACATION ON THE ‘PARADISE’ ISLAND

In the autumn of 1930, after a nervous political period of the parliamentary elections, Piłsudski decided to rest.

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Piłsudski, J. Pisma [Works], 9, pp. 103–104.

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© Source: wikimedia commons

a traveler than a soldier. It was their shared passion for travel that led Lepecki to become the adjutant of Piłsudski, who humorously called him a vagabond.

Józef Piłsudski (C) with Polish diplomats in Istanbul, Turkey, on the way back from Egypt, April 11, 1932.

Distance was the most reliable barrier against multiple issues that the Marshal had to face. Piłsudski thoroughly prepared for this trip, reviewing the guides, and getting acquainted with the literature. Ultimately, Egypt and Madeira were shortlisted as preferred destinations.

The Marshal decided to entrust the choice of vacation destination to his daughters, who, however, did not accompany their father to Madeira. Piłsudski took only his friend, Dr. Colonel Marcin Woyczyński, a proven partner in the game of chess, and Dr. Eugenia Lewicka, who, for unknown reasons, returned to the country earlier. The person responsible for the Marshal’s safety was Mieczysław Lepecki, who revealed his stay on the island to Piłsudski only after a few weeks.

It was the second contact of the legion soldier with Piłsudski, though, as Lepecki described himself more as a writer and 108

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A journey to a remote island, a popular British vacation destination, but also the place of the demise of the last ruler of the Austro-Hungarian Empire, had two stages. On the evening of December 15, a special train with an attached saloon car set off from the main station towards the country’s western border. In Vienna, as well as on the Swiss, French, Spanish, and Portuguese borders and during stops (Lyon and, above all, Bordeaux, where Piłsudski visited the city and the port), Polish diplomats, government representatives, and local officials awaited the Marshal.

Piłsudski arrived in Lisbon on December 19 in a special carriage supplied by the Spanish government (due to the revolutionary atmosphere in that country, the train did not stop there). At the Rossio station, the ‘Bolshevik tamer’ was welcomed by the crowds. The following day, Piłsudski paid an official visit to General António Óscar Carmonie, Head of State, who awarded the Marshal with the Military Order of the Tower and the Sword and soon received the Order of the White Eagle. During breakfast in a small group of people, the political situation was discussed. Piłsudski, accompanied

by Luiz Vieira de Castro, editor-in-chief of the Madeira journal “O Jornal”, who during the stay of Piłsudski was appointed Honorary Consul of the Republic of Poland in Madeira, visited the city center.

In the evening, greeted by the honorary company of riflemen with an orchestra and the local Polish community, he left on the “Angola” ship for Funchal, the capital of Madeira, where he arrived on December 225. Taking advantage of the 5

Jędrzejewicz, W., Cisek, J., op. cit., 4, pp. 214–216;

Józef Piłsudski's Exile, Imprisonment, Missions, and Peregrinations All Over the World (Part IV – The Last) soothing air, Piłsudski spent time walking and playing his favorite game, chess.

His pondering and reading resulted in numerous notes, which he used to write his last major work entitled “Historical Corrections”. The two meetings with the island’s governor were the only official points of his stay. Piłsudski also received visits from correspondents of a Brazilian daily “Corveio da Manha”, who discussed with him the issue of the Polish community living on the island. Piłsudski maintained contact with Warsaw using telegrams. On Piłsudski’s name day, the local post office faced a small apocalypse due to the number of greetings sent to the Marshal. One million greeting cards were sent to the Portuguese island.

Farewelled by the local authorities, assisted by reinforced troops, which was necessary due to the riots that had been going on for several days, Piłsudski set off on the destroyer “Wicher” (‘Gale’) on 23 March, in bad weather, in the direction of Gdynia.

In conversations with Commander Tadeusz Podjazd-Morgenstern, he recalled ship travels during storms, from Rotterdam to London and from San Francisco to Yokohama. At the request of Piłsudski, on the way, the ship approached the island of Porto Santo, where Christopher Columbus lived for several years. The ‘Gale’ came to the French Cherbourg to refuel. The Marshal was greeted by an artillery salute from the coastal fortifications.

Ambassador Alfred Chłapowski and the military attaché appeared on the ship.

The sailing through the Kiel Canal was not so spectacular. On March 29, 1931, his closest family and a large part of the government, including Prime Minister Walery Sławek, were waiting for the Marshal in Gdynia. Józef Piłsudski had Lepecki, M. (1987). Pamiętnik adiutanta Marszałka Piłsudskiego [The Diary of Marshal Piłsudski’s Adjutant], Warsaw, pp. 24–44.

been away from the country for 104 days 6.

ACROSS FOUR SEAS AND FOUR COUNTRIES

The Marshal’s last foreign trip was a sixweek escapade across four seas (the Black Sea, the Sea of Marmara, the Aegean, and the Mediterranean) and four countries (Romania, Turkey, Greece, and Egypt).

As decided by the Marshal, owing to the most suitable climate at that time of year, or perhaps to some degree a desire to follow the legend of Napoleon, the destination was Egypt.

Piłsudski set off from Warsaw to the Romanian city of Constanta. In Buzau, the Marshal was greeted by the Prime Minister of Romania, Nicolae Iorga, with whom he had a cordial conversation.

The next stage of the journey began on the evening of March 3 on the ship ‘Romania’, through the Black Sea and the Mediterranean to Alexandria, with short stopovers in Istanbul and Piraeus.

During the trip from Istanbul, the crew of the military ship ‘Niemen’ provided security for the Marshal. The villa belonging to Prof. Bohdan Rychter and Jerzy Kolbiński, located in the town of Helwan, thirty kilometers south of Cairo, served as a vacation base. The terrace of the villa, located two kilometers from the Nile valley, looked onto the pyramids of Giza and Sakkara. Above all, the villa ‘Jola’ had one advantage, it had the only garden in the village, which, due to Piłsudski’s habits, such as love for flowers, reading, and walks, was important. He was spending his free time ‘slacking’, as he called it, avoiding being in the sun, which was harmful to him. The books he had chosen to read were mostly devoted to the world war and the Polish fight Jędrzejewicz, W. Cisek, J., op. cit., pp. 214–221; Lepecki, M., Pamiętnik… [Diary…], pp. 44–51; Iłłakowiczówna, K. (1939). Ścieżka obok drogi [A Path Next to the Road], Warsaw, p. 186.

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History for independence. They were of Polish, French, German, and Russian origin and were supplemented with maps. Current news was provided by the French and English press in Cairo (“La Bourse Egiptienne”, “Le Journal du Caire” and “The Egyptian Gazette”).

Despite the exotic surroundings, the Marshal kept his daily routine and habits. In addition, even the cuisine did not differ from that served in Warsaw.

During his stay in Helwan, the Marshal celebrated his name day, but this time, instead of receiving postcards and telegraph wishes, he flew to Egypt. In the villa, as well as in the Polish outpost in Cairo, the books were on display. At the local Catholic church, the bishop ordered the post of Polish and papal flags. White and red flags could also be seen at the homes of Egyptian Polonia and friends of Poland7. Following the protocols, the Marshal met with the King of Egypt and the King of Sudan Fuadu I. The greeting in the courtyard of the Abdine palace, which was the representative residence of the monarch, took place according to the royal ceremonial, with the participation of the guard of honor, chamberlains, and officers of the king’s military cabinet.

After a courtesy conversation, the king invited the Polish delegation to dinner.

The discussion was carried out in French.

Guests from Poland, Christians, were served wine. Lepecki noted that the menu included dishes such as Warsaw spiny lobster and Polish asparagus. General conversations were rather courteous because the Egyptians did not even have basic information about Poland.

The conversation between the Marshal Lepecki, M. Pamiętnik… [Diary…], pp. 103–107; Lepecki, M. (1938). Z Marszałkiem Piłsudskim w Egipcie [In Egypt with Marshal Piłsudski], Warsaw, pp. 29–43. Idem, (1932). Podróż do Egiptu. Wrażenia z podróży odbytej w roku 1932 z Marszałkiem Piłsudskim [Journey to Egypt.

Impressions from the Journey taken in 1932 with Marshal Piłsudski], Warsaw, pp. 33–50.

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and King Fuad I, who had military preparation and first-hand familiarity with European capitals, was very lively. After dinner, they had one more conversation. During his stay in Helwan, Piłsudski also met with Prime Minister Ismail Sidki and the delegation of the head of the Coptic church.

During the trip, Piłsudski looked at the pyramids of Giza, Sakkara, and the ruins of Memphis. However, they did not impress him. He only admired them through the windows of the car during a two-day trip to the south of the country.

Piłsudski, delving into books and guides, considered Faiyum Oasis and Lake Moeris, located on the edge of the Libyan Desert, more attractive destinations.

He also appreciated the already badly damaged pyramid of Amenemhat III in Dahshur. The sight was to be described

by Piłsudski with the words “the amount of work put into this senseless building is impressively large.” He showed more interest in the life of modern Egypt (life of the inhabitants, ways of work, agriculture) than the remnants of the civilization of pharaohs that had not existed for centuries. In turn, the local population observed the ‘Polish Sultan’ with admiration8.

Piłsudski, who found the Egyptian climate and peaceful leisure very beneficial, left Helwan on April 8. At the Cairo train station, the Egyptian authorities prepared a farewell ceremony following the protocol for the heads of states. He arrived in Alexandria in a royal car. Here, the greeting was similar (participation of dignitaries, rows of soldiers, carpets, separate reception rooms) and similar assistance waited in Lepecki, M. Pamiętnik [The Diary…], pp. 103–119; Lepecki, M. Z Marszałkiem Piłsudskim… [The Journey…], pp. 55–64, 77–105; Idem, Podróż do Egiptu…[Idem, The Journey…], pp. 61–70, 81–110.

Jędrzejewicz, W., Cisek, J. op. cit., pp. 258–261.

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Józef Piłsudski's Exile, Imprisonment, Missions, and Peregrinations All Over the World (Part IV – The Last) the port, before boarding the “Romania”.

Good health, despite the stormy weather, and probably the insufficiency of visited monuments, made the Marshal decide to visit Athens during a stopover in Piraeus.

He took a guided tour of the Acropolis with great attention, accompanied by a Polish MP, focusing his questions on the Ottoman period and the OttomanVenetian wars. He was very impressed by the Panathenaic Stadium, restored to its role in the 19th century. His general opinion of Athens was positive, although he did not find the city particularly attractive. “Acropolis without Athena, Salamis without the fleet, Olympus without the gods, Greece without Themistocles (...)” the Marshal was to say, returning to “Romania” after a two-hour tour9.

His next 24-hour stop took place in Istanbul, which Piłsudski also decided to visit. Unlike the ‘anonymous’ trip to the Greek capital, on 11th April in Istanbul, the press reported on Piłsudski’s visit, accompanied by Polish diplomats (representatives of the Government Administration welcomed the Marshal at the port). Interestingly, Piłsudski did not decide to visit Hagia Sophia but admired the building only from the outside.

Instead, he visited in detail the military museum, which at that time was located in the former church of Hagia Eirene.

Another site was the Dolmabahçe Palace, where he saw up close the former office of President Ataturk. The Marshal also planned to see the Galata Tower and the High Port gate. He spent the night on the ship10.

Lepecki, M. Pamiętnik… [Diary…] pp. 120–121; Lepecki, M. Z Marszałkiem Piłsudskim…[In Egypt with…], pp. 123-151, Idem, Podróż do Egiptu…

[Journey to Egypt…], pp. 127–154.

9

10 Lepecki, M. Pamiętnik… [Diary…] pp. 121–123; Lepecki, M. Z Marszałkiem Piłsudskim…[In Egypt with…], pp. 161–165; Idem, Podróż do Egiptu…

[Journey to Egypt…]. pp. 155–170, Jędrzejewicz, W. Cisek, J. op. cit., pp. 261–263.

“Romania” came to Constanta at night, on April 13, where Polish diplomats and representatives of the Romanian authorities were already waiting for Piłsudski. At the Bucharest train station, although it was not an official visit, the great marshal of the royal court, Prime Minister Nicolae Iorga, military authorities along with the guard of honor, all decorated with Polish colors, were waiting for Piłsudski. The Marshal also paid a visit to King Carol II, who an hour later revisited Piłsudski in the building of the Polish legation. In Bucharest, Marshall held a series of talks with Prime Minister Iorga, Foreign Affairs Minister Dimitrie Ghik, and others. On April 15, he went to Kishinev for a short time, where he stayed at the home of consul Marian Uzdowski. During the next series of talks in Bucharest, he visited the king, also conducting talks with Romanian ministers on potential military, economic, and political cooperation, including the concept of Intermarium.

Topics evoking more emotions were also discussed. They included the question of finalizing Poland’s non-aggression pact with the Soviet Union and the possible participation of Romania in similar negotiations and simultaneous ratification of both pacts. Being given a solemn farewell in Bucharest, already on the way back to Poland, the Marshal visited Falticeni, where the already mentioned 16th Infantry Regiment was stationed, of which he was an honorary commander. Piłsudski was welcomed by the entire city with full honors, including beautiful decorations, military honors bread and salt, sublime speeches, triumphal gates, and decorated houses, review of the regiment and the parade to tune of the First Brigade, meeting with soldiers and memorabilia, such as regiment uniforms, so in a nutshell, that was Piłsudski’s stay in Falitceni.

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History SUMMARY

Piłsudski knew and understood the world well, saw its complexity, appreciated its diversity, studied the secrets of nature and culture, and, above all, appreciated history, including its military aspect. uniforms. The function in the casino and the proposed toasts to the allied armies being ‘a watchful guard at the gates of the East,’ perfectly presented the level of Polish-Romanian friendship, expressed in a strategic alliance. This good atmosphere was maintained until the very border as the stations were decorated in Polish colors and filled with crowds greeting the Marshal. Even before returning to Poland, Piłsudski had many current affairs to handle. Compared to his first visit to Romania, this 10-day stay tired him. “It’s nice to travel, but there is no place like home,” he said to his travel companions. Piłsudski arrived in Warsaw on the morning of April 22, 193211. It was his last foreign expedition12.

11 Lepecki, M. Pamiętnik… [Diary…], pp. 123–125; Lepecki, M. Z Marszałkiem Piłsudskim… [In Egypt with…], pp. 167–185.

In the winter of 1935, Piłsudski was already ill and was considering a visit to warm countries. From the proposals put forward by Lepecki, he rejected Corfu (because Emperor Wilhelm II had been going there), Cyprus (humorously due to deficiencies in teeth which did not allow for carob bean consumption), the Canary Islands (due to the then ongoing Spanish revolution), Malta (he did not feel like going there).

Eventually he chose the Balearic Islands, because 12

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Already at the age of 7, after a fire at his manor in Zułów, Józef Klemens Piłsudski found himself “on the move”, traveling almost until his last days. Knowing nearly the whole northern hemisphere, he found his place in the independent Polish Republic, never deciding to go into political exile. Piłsudski’s perception of the world resulted not only from his interests and insightful reading but also from his own experiences and observations. The exiles, imprisonments, missions, and peregrinations not only built his legend, broadened his horizons, provided a basis for the resistance movement and his later activity within the state, but also served his health goals, and, as perhaps few people know, fulfilled his curiosity about the world. Piłsudski knew and understood the world well, saw its complexity, appreciated its diversity, studied the secrets of nature and culture, and, above all, appreciated history, including its military aspect. At the same time, his knowledge of the world had a great influence on his courage. Long expeditions to Japan, Egypt, or Madeira, as well as an exile in Siberia, became the subject of numerous anecdotes.

In England, France, Russia, and even in Japan, he met prominent political activists who in 1918 assumed rule in the independent Polish Republic. Already as Marshal, Chief of State, or Prime Minister of the Second Republic, he sealed alliances with Paris and Bucharest by traveling to France and Romania, and, in Geneva, he set an example of effectiveness in international politics.

Sławomir Moćkun December 2021

Fryderyk Chopin once rested there. Lepecki, M., Pamiętniki…[Diaries], p. 265.

The (Real) Faces of the Independence Day March

I

do not assign titles to the various images in this reportage. This is because I do not want to push my own view or limit their reading and experience options.

My mission is to reveal... the truth. Despite the fact that, in my opinion, this is the only conceivable strategy, I am well aware that it exposes me to the dissatisfaction and criticism of each side of the dispute surrounding the March. After all, a photographic report can also manipulate viewers by, for example, displaying just one sort of attitude presented on a given day.

Because I do not believe in taking a onesided approach, this series of images depicts the reality as I saw it and captured it: white,

© Radek von Hirschberg

Radek von Hirschberg

black, and everything in between. It was simply the way things were out there.

I am delighted that, on this day, individuals representing often diametrically opposed worldviews, religions, and so on, peacefully gathered together. There were no acts of aggression this year, unlike prior years, however, I did spot and picture burning flares and masked individuals. At the same moment, in the same March, children, veterans (some in wheelchairs), Poles, and people of different nationalities and skin colors walked hand in hand. And this, in my opinion, is patriotism and Independence Day celebration.

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Author Biographies Stefan Gullgren Ambassador of Sweden to Poland since September 2017. He served as Deputy Director-General and Head of Department for Eastern Europe and Central Asia in the Ministry for Foreign Affairs of Sweden 2013-2017, and as Ambassador of Sweden to Ukraine 2009– 2013. He was posted to the Embassy of Sweden in Moscow 19941998 and 2002-2009. p. 6

Wojciech Lorenz, PH.D. analyst of The Polish Institute of International Affairs (PISM) in the International Security Programme. His research area includes NATO, nuclear and conventional deterrence and Polish security and defence policy. Former journalist of the Polish Radio, BBC World Service in London (Polish Section) and national daily newspaper Rzeczpospolita.

Served as a civilian specialist in the ISAF mission in Afghanistan (2013/2014).

Coordinator of research program on cybersecurity for critical infrastructure (NATO SPS, 2014). He received his Ph.D. with honours in political science (Warsaw University, 2019). He holds M.A. degree in English Philology (University of Wrocław) and completed a postgraduate course in International Relations and Diplomacy (Collegium Civitas). p. 14 Prof. Przemysław Żurawski vel Grajewski Professor at the University of Łódź in the Department of Theory of Foreign and Security Policy. In 2005 and 2006, he was an EPP-ED expert at the European Parliament, where he was responsible for monitoring Eastern policy of the EU. From 2006 to 2012, he was an analyst at the Natolin European Centre. From 2006 to 2009, he was a visiting professor at the Belarusian European Humanities University in Vilnius. In 2015, he was 124

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a member of the National Development Council appointed by President Andrzej Duda. Moreover, he was a member of the political cabinet of Foreign Minister Witold Waszczykowski. Author of many books and scientific articles. p. 26 Beata Górka-Winter, Ph.D. analyst, holder of a doctorate in social sciences in the field of political science, assistant professor at the Center for Europe, University of Warsaw. Founder and long-time coordinator of the International Security Program at the Polish Institute of International Affairs (PISM). From 2016 to 2017, Deputy Director of Strategy at the Polish Armaments Group (PGZ). Cofounder of the Polish branch of Women in International Security. Author of numerous publications on the security policy of NATO and EU member states, peace operations, and security sector reforms. Lecturer at the University of Warsaw, Vistula University, European Security and Defence College, PISM Diplomatic Academy, National School of Public Administration (KSAP), European Diplomatic Academy. OSCE election observer in Kosovo and Ukraine. Member of the expert group ‘Security Sector Reform in the Southern Caucasus’ in the International Visegrad Fund project.

She graduated from the University of Warsaw and Jagiellonian University.

Scholarship holder of the U.S. Department of State (International Visitor Leadership Program), George C. Marshall European Center for Security Studies, Institut des Hautes Etudes de Défense Nationale (IHEDN), Swedish National Defense College. p. 38

Grzegorz Kuczyński graduate of history at the University of Białystok and specialized Eastern studies

Author Biographies at the University of Warsaw. Expert on Eastern affairs. For many years a journalist and analyst. Author of many books and publications on Russian politics. p. 45

Mikołaj Rogalewicz enior analyst at the Demagog Association, a fact-checking organization. Author of numerous articles and analyses devoted to international relations, fact-checking, and disinformation. Participant of Kremlin Watchers Movement project, in which he deals with Russian disinformation.

At various conferences, he presented papers on disinformation, cyberterrorism, Russian-Ukrainian conflict, and efforts to solve it, as well as actions of the EU aimed at combating terrorism. He is a mentor of the Akademia Fact-Checkingu (Fact-Checking Academy), he organized several workshops and training events on fact-checking and fighting disinformation, including for the volunteers of the European Parliament and Facebook.

Additionally, he conducted workshops on climate-related fact-checking during the Open Climate Change event in Zagreb.

Graduate of international relations at the University of Warsaw. p. 53

Wiktor Sędkowski security solutions architect and independent security researcher. Certified (CISSP, CCSP, OSCP, OSWE, MCTS) expert in digital threats. Worked as an engineer and technical manager for leading IT companies. He specializes in security vulnerability analysis, writing, and analyzing exploits. Graduated in computer science at the Wroclaw University of Technology, a Ph.D. student at the Faculty of Electrical Engineering, Automatic Control and Computer Science at the Opole University of Technology. Conducts research in the field of application of artificial

intelligence solutions in the process of threat modeling. p. 60 Daniel Pogorzelski correspondent and expert to the European Foreign Affairs. He regularly appears as a political analyst with Cook County Democratic Party Executive Director Jacob Kaplan as one of the “Political-Know-It-Alls” on The Ben Joravsky Show. He is a writer and editor for the blog “Forgotten Chicago”, Vice President of the Northwest Chicago Historical Society, as well as co-author of four history books. p. 68

Michał Sopiński, PH.D. candidate and lecturer in Legal Theory & Jurisprudence at the Faculty of Law and Administration - University of Warsaw.

p. 76

KAAFM Prof. Magdalena Bainczyk holds a Ph.D. in law from the University of Heidelberg. She is a professor at the Faculty of Law and Administration of the Krakow Academy of Andrzej Frycz Modrzewski. She works as the chief analyst at the Institute for Western Affairs as a specialist in German public law and EU law. She authored numerous publications (in Polish, English, and German) on the jurisprudence of the EU CJEU and constitutional courts on European integration, the German judiciary, and legal aspects of PolishGerman relations.

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Marcin Romanowski, Ph.D. Undersecretary of State at the Ministry of Justice, Doctor of Laws. Awarded the Master of Laws degree at the University of Regensburg (Germany). Head of the Institute of Justice (2016–2019); Plenipotentiary of the Minister of 4/2021

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Author Biographies Justice for Information Technology and Cybersecurity and for the Justice Fund (2018–2019). His main research interests include the law of settlements with the past of lawless countries, the natural law, and the non-positivist concepts of law, the theory of global law, as well as legal anthropology and its applications in the creation and application of law. Author of publications and scientific papers. p. 94 Jarosław Szymanek, Ph.D. expert at the Bureau of Research at the Chancellery of the Sejm, academic excursionist, member of the European Committee on Democracy and Governance (CDDG), author or co-author of several hundred publications. Recently published, among others, Introduction to the Constitution of the Republic of Poland, Legal dispute over the judiciary of Poland, Legal dispute over the Constitutional Court in Poland, Division of power: continuity and change. p. 94

Sławomir Moćkun employee at the European Parliament in Brussels. His research interests focus on 20th-century international relations and local issues in the history of the Suwałki region. His major published monographs include: “Safe haven. Canada and the Canadian Polish community towards Poland and Poles in 1939–1945” (“Bezpieczna przystań. Kanada i Polonia kanadyjska wobec Polski i Polaków w latach 1939–1945”), Warsaw, Neriton (2015) and “Editor Albert Morski. In the service of communism on both sides of the ocean” (“Redaktor Albert Morski.

W służbie komunizmu po obu stronach oceanu”) in: “Not only the enduring and collaborators. Attitudes of journalists domestically and in exile from 1945 to 1989” (“Nie tylko niezłomni i kolaboranci.

Postawy dziennikarzy w kraju i na emigracji 126

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1945–1989”), Wolsza, T., & Wójtowicz, P. (Eds.), Warsaw, IPN (2014).

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Radek von Hirschberg (Radosław Kwaśnicki) As a photographer and art animator affiliated with the Nova Ars Poloniae Foundation (www.novaars.org), I use the pseudonym Radek von Hirschberg. I participate in a variety of creative activities, and my passion for experimenting allows me to push the boundaries of photography as well.

I returned to this hobby after a thirty-year break, mixing it with freelance work.

My interest in photographing mountains and landscapes stems from my background and upbringing in the Giant Mountains. Natural light is something I adore. I mostly photograph in a creative manner, telling stories about how I see reality or constructing undiscovered narratives through what is in the frames. I do not only photograph landscapes; human beings also feature in my photographs, resulting in interesting portraits. Because the camera is an indispensable element of my daily life, I use it in my job to do street photography and reportage.

Almost everyone nowadays owns a camera and, in terms of technical ability, can take decent photographs. What matters to me is being able to express myself through photography in a specific place and time.

Sometimes there is more profound content in it, and sometimes it is mostly about form. www.radekvonhirschberg.eu/ www.facebook.com/RadekvonHirschberg/ https://instagram.com/radek_von_ hirschberg_photo?utm_medium=copy_ link p. 113

World Bank “The unprecedented support that the authorities delivered to protect incomes, to protect jobs is quite important here. And the role both of the National Bank of Poland as well as the government should be recognised.”

WE PROTECT THE VALUE OF POLISH MONEY

Gallina Vincelette, World Bank’s Country Director for the European Union, for “Obserwator Finansowy” – November 2021

ECONOMIC AWARD OF THE PRESIDENT OF THE REPUBLIC OF POLAND Special award for maintaining the stability of the banking system

“Polski Kompas” – October 2021

“I have decided to present this award because the last two years – in particular last year, but a large part of this year as well – were a very difficult time, also for me as the President, who is concerned about the security of the Republic of Poland. This also refers to economic security, and the security of the banking system is its extremely important part.”

President of the Republic of Poland Andrzej Duda – November 2021

Governor of NBP Prof. Adam Glapiński is the winner of the main “Polski Kompas 2021” award “Award for the uncompromising, considered and effective decisions taken by Narodowy Bank Polski during the crisis, for the purchases of gold – whose holdings continue to grow in the bank’s vault – and for the independence and calm worthy of the country’s financial authority.”

Capital Finance International (CFI.co) The justification of The Best Central Bank Governance Europe 2021 award reads – “Under the leadership of Professor Adam Glapiński, NBP responded to the pandemic in a swift manner securing the Polish economy from the worst scenario of deep recession and high unemployment. Narodowy Bank Polski, and thereby Poland, is at the forefront of the fight with the economic consequences of the pandemic.”

Capital Finance International – April 2021