In Germany it is a punishable offense to deny the Holocaust. Clear. That is known. But why isn’t it also a criminal offense to deny the German genocide of the Herero and Nama? So the massacres in today’s Namibia in the years 1904 to 1908? Or the massacres to suppress the Maji Maji uprising in German East Africa from 1905 to 1907? Or the genocide of Native Americans in the 16th century? What right can one in Germany actually cheerfully deny the horrors of Stalinism, as well as the crimes of colonialism – just not the Holocaust?
In a newly flared up debate about the singularity of the Holocaust, which has been called for for some time by historians of postcolonial studies such as Achille Mbembe, a surprising response from the German legislature has now burst. This answer is: In Germany it will also be punishable in future to deny or “grossly” downplay war crimes and crimes against humanity that took place in other regions of the world. A connection to Germany is not necessary.
The Bundestag has just passed a corresponding amendment to the provision against hate speech, Section 130 of the Criminal Code. Anyone who approves, denies or grossly downplays such a crime in a way that is likely to “disrupt public peace” now faces up to three years in prison.
Farewell to the exclusive focus on the “Auschwitz Lie”
This new threat of punishment is “very extensive,” says criminal lawyer Martin Heger, who teaches at Berlin’s Humboldt University and specializes in hate speech crimes. With that, the Federal Republic of Germany is saying goodbye to its previous exclusive focus on the “Auschwitz lie”, i.e. the claim that the Holocaust never took place, as the only justiciable case of historical revisionism. In other words, the legislator is asking local public prosecutors to get involved in more historical debates than before.
“Armenia would be loosely recorded,” says Martin Heger, referring, for example, to the Turkish genocide of the Armenians in 1915 and 1916. In other words, the next time there was a dispute as to whether this genocide was a genocide, the Turkish supporters of the Erdoğan government in this country, for example can agitate and thus endanger the “public peace”, criminal charges could be filed for denial.
This is also conceivable in a dispute about current Russian war crimes in Ukraine. After all, anyone who denies massacres like the one in Butscha or even applauds them, says the lawyer Heger, could endanger the peace “between Russian and Ukrainian emigrants in Germany.” Theoretically, that would also be a case for the public prosecutor.
Germany is merely implementing an EU requirement
What is remarkable is how quietly this change has come. There was no major announcement; instead, Marco Buschmann’s (FDP) Ministry of Justice initially gave a non-public “formulation aid” to the legal committee. The committee then attached the text to an inconspicuous reform law on the federal central register on Wednesday. This is how it could happen quickly: on Thursday evening shortly before 11 p.m., the traffic light groups in the Bundestag, together with the Union, already finally agreed. From the ministry’s point of view, however, nothing dramatic has happened. Germany is merely implementing a requirement of the European Union.
In fact, since 2008, an EU framework decision has required member states to take action against historical revisionism. At the time, the initiative came from Eastern Europeans who wanted to oppose the glorification of Stalinist crimes. However, the new German legal situation is now even stricter than the EU requires. The EU only required that “court-founded” war crimes be protected against denial. Germany waives this restriction. The EU only demanded that “public” denial be made a criminal offence. Germany now goes further and also penalizes if this happens at a non-public meeting, for example in a hall.
However, the singularity of the Holocaust will continue to be emphasized even after the law has been tightened, which the Federal Council will have to decide on on November 25th. In this way, German public prosecutors can prosecute any “trivialization” in relation to the Holocaust – but only “gross” trivialization in the case of the other worldwide war crimes. Also, the penalty for Holocaust denial continues to be higher. It is up to five years in prison, while denial of all other war crimes worldwide is now up to three years in prison.