Denial of war crimes: Germany tightens criminal law

Professor Engländer, the German Bundestag recently tightened the so-called incitement paragraph 130. In future, anyone who publicly approves of, denies or grossly downplays genocide, crimes against humanity and war crimes can be sentenced to imprisonment for up to three years. So, in Germany, does anyone who denies Russian war crimes in Bucha, for example, have one foot in prison?

If the denial or gross belittlement happens in public or in a meeting, then it can actually be punished in the future. A corresponding statement when eating with friends, however, does not fall under this category.

The approval of war crimes or crimes against humanity has always been punishable.

That’s right. This is governed by paragraph 140 of the German Criminal Code. According to this, not only the approval of war crimes that have already occurred or crimes against humanity is punishable, but also future ones. So anyone who approves of renewed Russian crimes in Ukraine in the future and publicly announces this could already be prosecuted.

What is new now, however, is the punishment of denial and gross trivialization of actual events. When do you grossly downplay it?

It’s actually not a very clear term. The German penal code also uses it elsewhere. And there it means something like essential or very significant. With regard to Butscha, for example, this would mean that a person would not deny that there were any deeds there at all. However, she would claim that these were only isolated or less serious incidents, and thus deny the nature and extent of the crime.

Until now, only denial of the Holocaust was punishable in Germany, denial of other historical events was not. However, the expanded law knows neither a local nor a temporal reference. That means that denial of ancient massacres could also result in criminal prosecution in the future, right?

In fact, the law itself knows no such local or temporal limitation. Theoretically, it would be conceivable that denying events that happened a long time ago could also be punished. However, the law ties criminal liability to the fact that denial or trivialization is likely to incite hatred against individuals or groups and endanger public peace in Germany. This tends not to be the case with the denial of ancient massacres.

In the case of the genocide of the Armenians during the First World War, however, that would be conceivable. In 2016, the Bundestag recognized it as genocide. Turkey and many people of Turkish origin in Germany deny or play down the events of that time, to the annoyance of Armenians living in Germany. So is this a case for the prosecutor in the future?

That is conceivable. Here too, however, mere denial would not be enough; as I said, it would have to be capable of disturbing the public peace.

And who determines this suitability?

The court that decides criminal liability under Section 130. It would put the utterance in context. The degree of dissemination of the statement would play a role and the addressees. It would also be assessed whether or not it is about a historical or contemporary phenomenon that is actually causing a stir in Germany.

Who actually determines what a war crime or a crime against humanity is? This is sometimes controversial.

Also the court that decides on criminal liability under Section 130. This is indeed a problem with the new amendment to the law. This was triggered by an EU framework decision from 2008, which the EU Commission believes Germany has not yet sufficiently implemented.

Therefore, there was even a threat of infringement proceedings, which is why the legislature has now taken action.

Exactly. The framework decision of the EU “on the criminal law fight against certain forms and expressions of racism and xenophobia” provided for the possibility that the respective member state made criminal liability for the public approval, denial or trivialization of the crimes mentioned dependent on national or international courts crimes have already been definitively established. However, the German legislature has not made use of this possibility.

Why?

Because it was said that this previous judicial determination was not required when approving crimes under Section 140.

But it makes a difference whether I condone a crime or deny it and play it down. Doesn’t the expanded law put the courts in an impossible situation?

To a certain extent yes. They must satisfy themselves that a particular historical or contemporary event constitutes a war crime or genocide.

Shouldn’t that overwhelm the courts? For example, what if history disagrees?

In principle, the court is not bound by the state of historical science. There is no rule of evidence that states that the court may not come to a different conclusion. In practice, however, one would orientate oneself on research. And where there is no consensus and the court is not conclusively sure whether an event was a war crime or not, the principle in dubio pro reo would apply.

Doesn’t the expanded law pose an inherent threat to free speech from overzealous prosecutors?

That would be corrected at the latest at the level of the Federal Constitutional Court. Probably before. Because German courts tend to give a lot of weight to freedom of expression in the light of the case law of the constitutional court. Take insulting statements in the political sphere, where there is a conflict between freedom of expression and the protection of honor.

From the lawyer’s point of view: Is the extension of paragraph 130 well done?

No, the law is not well made. This is because the legislature did not seek discussion with the public or with experts. However, the area of ​​political crimes is naturally a sensitive area. One has unnecessarily neglected to take this into account. I don’t understand why. The EU regulations were neither new nor did Brussels threaten infringement proceedings just last week.

Aside from the procedure, would you have worded the law differently?

I would have tied criminal liability to the fact that national or international courts must have already definitively established the crimes. The fact that paragraph 140 does not do this when condoning war crimes or crimes against humanity is also due to the fact that the condoning of future acts should also be recorded there. This cannot be transferred to the new regulation in the incitement paragraph.