It took a few days, but now there is public debate and uproar about the almost secretive passing of a very ominous German law. “Public trivialization of war crimes” will be punishable in the future in Germany, a very vague expansion of the already existing law against incitement and the denial of the Holocaust. Anyone who publicly “grossly” trivializes genocide or war crimes will in future face up to three years in prison for incitement of people. A corresponding expansion of § 130 StGB was decided by the governing “traffic light coalition” in the Bundestag. It passed on Thursday evening almost unnoticed and without any longer deliberations in the so-called omnibus-procedure, in addition to an unrelated other law (in this case a change of the Federal Central Register law).
LTO legal editor and lawyer Hasso Suliak (Wolters Kluwer Deutschland firm) writes: “A new paragraph § 130 Abs.5 StGB puts in the future the public approval, denial and gross trivialization of genocide, crimes against humanity and war crimes under punishment, if the act is committed in a way that is likely to incite hatred or violence and disturb the public peace.” In his view, “in the future, this could also include statements made during a meeting, for example as part of a demonstration. According to legal policymakers, this means that it cannot be ruled out that, for example, at pro-Putin rallies, when people from Ukraine are being incited against to violence, criminal offenses will be committed on the basis of the new provision.”
This act was apparently created as a response to an infringement proceeding brought against the Federal Republic by the EU Commission in December 2021, demanding that Germany more adequately implement the “Council Framework Decision 2008 / 913 / JHA of 28 November 2008 on combating certain forms and expressions of racism and xenophobia by means of criminal law,” particularly with regard to public denial and gross trivialization. However, the new law formulation goes beyond the EU framework decision, supposedly to to avoid “systematic contradictions” referring to the already existing punishments for approval, denial and trivialization of the Holocaust.
Clara Bünger, lawyer and expert for legal affairs for Die LINKE explained the rejection of their parliamentary group to this change in law, among certain legal specifics with the fact that the reorganization carries the danger of limiting the liberty of opinion and/or being arbitrarily applied. According to the current wording of the regulations, “even an endorsement of Russia’s attack on Ukraine — depending on the exact circumstances of the crime — is punishable under the new provision,” according to Bünger.
AfD legal policy expert Stephan Brandner told LTO that his parliamentary group is fundamentally critical of the “systematics” of Section 130 of the Criminal Code. He criticized the legislative omnibus procedure and the “further inflation of the paragraph with vague legal terms such as ‘grossly trivialized'.” According to Brandner, the applicability in the context of the war in Ukraine is given, “although the vagueness leaves the application possibilities of the provision largely open.”
From the opposite end of the political spectrum, the Green Rapporteur on this issue, MdB Canan Bayram confirms, that under this law, there can be “constellations” under which “expressions can fall, which whitewash Putin’s war of aggression against Ukraine.” However, she pointed out that “the provision covers the trivialization, denial or approval of genocide, crimes against humanity or war crimes, but not the crime of aggression under Section 13 of the International Criminal Code.”
The responsible rapporteur of the FDP parliamentary group, Thorsten Lieb, claims that the amendment to Section 130 of the Criminal Code is “primarily of a clarifying nature in order to meet the requirements of the treaty infringement proceedings.” He denied that this is a “lex Putin” and claims that “the extent to which Section 130 of the German Criminal Code (StGB) can have a penal effect for condoning, denying and grossly trivializing these acts is left to the courts.”
Legal linguistics aside, this is obviously targeted at assaulting freedom of expression and intimidating the German population. But this will not work, as protests are now erupting all over the place in response to the underlying economic and social reality. And, interesting questions remain. For example, will this law also be applied to protect those who have been targeted by Ukrainian secret services with black lists, inciting to hatred and violence? What about Russian citizens living in Germany and their rights, who have already become targets of scorn and attacks by the one-sided German media and political system? Not to mention the systematic witchhunt against Russian culture and representatives.
