Germany criminalizes denying war crimes, genocide

Holocaust denial has long been illegal in Germany, but a new amendment also criminalizes the denial of other war crimes and genocides — wherever they happen.

[AP]

War crimes in Rwanda. Genocide of the Yazidi. Human rights violations against Uyghurs in China. The list of atrocities in conflicts around the world is long. Yet many people still downplay or deny these crimes ever happened.

Lawmakers in Germany no longer want to tolerate this state of affairs and want to make such statements punishable by law if they are used to stir up hatred or disturb the public peace.

The German parliament, the Bundestag, voted for an amendment at the end of October, which has now passed the upper house, the Bundesrat. The approval, denial, and "gross trivialization" of war crimes and instances of genocide now falls under the criminal offense of "incitement of the people" in a newly created Paragraph 5 of Section 130.

"It was about giving law enforcement a stronger guideline about how and what they can investigate," Michael Kubiciel, a legal scholar at the University of Augsburg, told DW. "But above all, it was about meeting the demands of the European Commission. And that has now been done."

[Maksin Levin | Reuters]

"The Russian army does not strike at civilian facilities," Vladimir Putin said in June. But independent observers disagree. UN figures estimate that, as of August 22, the civilian toll of Russian attacks had reached 5,500 deaths and 7,800 injuries since the war began. Here, a destroyed shopping center in Kremenchuk on June 27. [Efrem Lukatsky | AP | Picture Alliance]

A huge crater in the eastern Ukrainian town of Chaplyne, population 3,800, which was targeted in a Russian attack o August 24. The Defense Ministry in Moscow later said a weapons transport train had been hit. But, according to the Ukrainian railway, 25 civilians, including two children, were also killed. [Dmytro Smolienko | Ukrinform | IMAGO]

With a missile attack on July 14, the Russian army aimed to hit the "House of Officers" in Vinnytsia, where "preparations by Ukrainian armed forced were underway," said Evgeny Varganov, a member of Russia's permanent UN mission. As a result, 28 people died in the city southwest of Kyiv, including three children and three officers. More than 100 people were reportedly injured. [State Emergency Service of Ukraine | Reuters]

On the evening of July 9, the small eastern Ukrainian town of Chasiv Yar came under fire. Uragan multiple-rocket launchers took aim at residential areas, media reported. A five-story apartment building was hit particularly hard, with 48 bodies later recovered from the rubble. [Nariman El-Mofty | AP | spa | Picture Alliance]

At least 21 people were killed in a missile attack in Serhiivka on July 1. the town near the Ukrainian port city of Odesa was apparently hit with cruise missiles by night, injuring at least 35, Amnesty International reported after on-site investigations. Serhiivka is a popular resort town, especially among Russian tourists. [Maxim Penko | AP |Picture Alliance]

Horrific images from Kramatorsk went around the world on April 8, after several Russian missiles hit the crowded train station in the eastern Ukrainian city. Some 61 people were killed, including seven children. Ballistics experts found that the missiles were fired from the Russian controlled territory of Ukraine. [Ukrainian President Volodymyr Zelenskyy's Telegram channel | spa | Picture Alliance]

Bucha has become emblematic of the Russian army's brutal war crimes in Ukraine. When Russian troops withdrew from the Kyiv suburb on March 30, numerous corpses lay in Yablunska Street. A total of 1,316 bodies were found in and around the city, with international investigative teams citing evidence of civilian executions by Russian soldiers. The Kremlin denies the reports of a massacre. [Zohra Bensemra | Reuters]

On March 29, an airstrike hit the Mykolaiv regional administration building, killing 36. The central part of the building was completely destroyed from the first to ninth floor, with only fragments left standing. the explosion also damaged several other nearby residential and administrative buildings. [Vincenzo Cirosta | ZUMA Press | Picture Alliance]

On March 16, a bombing destroyed a theater in the center of Mariupol where civilians were sheltering. The word "children," written in huge white letters both in front of and behind the building, did not deter the attack. The city reported that 300 people died. However, an AP investigation in May estimated that the number may have been closer to 600. [Pavel Klimov | Reuters]

A Russian air strike destroyed a children's hospital with a maternity ward in Mariupol on March 9. At least four people died, including a pregnant woman and her baby. At least 17 were inured. Though Russia's Defense Ministry accused Ukraine of a "staged provocation," top EU diplomat Josep Borrell called the bombing a "war crime." [Evgeniy Maloletka | AP | Picture Alliance]

A missile that hit a regional administrative building in Kharkiv killed 24, including passersby, on March 1. Ukraine's Foreign Ministry alter released a surveillance video that showed the powerful explosion in the city's central Freedom Square, which was heavily damaged in the attack. [Pavel Dorogoy | AP | Picture Alliance]

As of August 26, more than 29,000 war crimes had been committed since the war began, according to Ukrainian officials. Independent investigations are underway, and the International Criminal Court has sent teams of experts to gather evidence. Under the Geneva Conventions, deliberate attacks on civilians are war crimes. Russia, however, does not recognize part of the treaties. [Remko de Waal | ANP | Picture Alliance]

Berlin forced to act

Indeed, Germany has been in no hurry to pass the measure. An EU directive to combat racism was made in 2008, and the German government was forced to react now because of the threat of EU infringement proceedings.

For Josephine Ballon, chief lawyer for the organization HateAid, which supports victims of online hate, the change comes at the right moment.

"I'm interested to see how the amendment will play out," Ballon told DW. "And I definitely see a practical scope for it. Right now, in the context of the Ukraine war, we see some things that could fall under it. I would say the amendment comes at a time when it can be quite relevant."

The amended law also applies offline, of course. though it does not affect the factual discussion of possible crimes under international law, according to Aziz Epik, assistant professor of criminal law at Hamburg University.

"But if you have a meeting, for example, where there's agitation against Ukrainians, or talk of the 'fascist regime' in Kyiv and such things … or there's a trivialization of what happened in Bucha, then we could well end up in situations where the new paragraph could apply," Epik adds.

The proposed amendment would apply to denial of ongoing war crimes [Jens Krick | Flashpic | Picture Alliance]

Much criticism after change

There has been criticism of the amendment, including from legal scholars and historians. Some complained of a lack of transparency because the amendment was passed in the Bundestag without notice, late in the evening, and without prior debate. Others think the paragraph curtails freedom of expression unnecessarily.

Kubiciel disagreed: "I think the whole discussion is a prime example of the old saying: much ado about nothing. There is no scandal either behind the procedure, or with the amendment as such."

He pointed out that even before this new measure, publicly approving of a genocide was also punishable in Germany under the laws against "Volksverhetzung," or "hate speech against a people."

Kubiciel does not see any significant infringement of freedom of speech. "It's about whether private citizens can speak out. They are still allowed to do that," he said. "They are also allowed to deny, as long as they're not inciting hatred. And then, of course, only if the court … can legally prove that the denial was not true."

The fog of war

But he can understand one criticism: The reference to ongoing conflicts. The German amendment explicitly allows the denial of war crimes in current conflicts to be punishable — even though the EU left open the option of limiting the offense only to past war crimes that have been investigated and proven in court.

This could have made sense because the truth is rarely clear during a war, and allegations made during a war have often turned out to be untrue.

Kubiciel sees this problem, but, in such cases, he does not expect charges to be brought under the new paragraph.

"I think the courts will only become active at a time when the fog of war has lifted somewhat," he said. "When the facts become so clear that prosecutors actually believe they have enough evidence as well."

In a statement to DW, the Justice Ministry said that it had "good reasons" not to limit itself to past war crimes. "After all, the EU Framework Decision only allows such a limitation for the acts of denial and gross trivialization, but not condoning," the ministry said, arguing that this would mean too much inconsistency.

Fighting between pro-Russian separatists and the Ukrainian army has intensified around the cities of Luhansk and Donetsk. The situation for the local population keeps getting worse, the UN Human Rights Commission finds. It especially accuses the pro-Russian separatists of severe crimes. [Picture Alliance | dpa]

More than 1,100 people have been killed in the fighting since mid-April, according to the UN. Not just armed fighters, but also countless civilians, among them many children, have lost their lives. These people grieve for a father and his little son who died in artillery fire near Luhansk. [Picture Alliance | dpa]

Civilians often get caught in the crossfire, according to the UN. Heavy weaponry is being employed in densely populated areas not just by the separatists, like here in Donetsk, but also by the Ukrainian army. The United Nations urge all sides to exercise better measures of precaution to protect civilians’ lives. [Getty Images]

The report accuses the pro-Russian separatists of abducting, torturing and executing people. The separatists are "rough and brutal" as well as "well-equipped and organized" and often under the command of Russian nationals, according to the UN Human Rights Commission. The UN body has 39 observers on the ground and has documented more than 800 cases of abductions by separatists since mid-April. [Picture Alliance | AP]

More than 100,000 people have had to leave their homes. Many live in emergency shelters, like here in Kharkiv, to escape the terror of the separatists and the fighting. There are also reports about Russian-speaking residents of eastern Ukraine who have fled to neighboring Russia. [DW/A. Ainduchowa]

On July 17, a Malaysia Airlines Boeing 777 crashed in eastern Ukraine. All 298 people on board were killed. The passenger jet was most probably shot down by pro-Russian separatists. That could be interpreted as a war crime, said UN Human Rights Commissioner Navi Pillay. [Picture Alliance | dpa]

Those responsible could face charges before the International Criminal Court. The UN Human Rights Commissioner warns: anybody violating international law will be brought to justice. That also applies to foreign fighters involved in the conflict [AP]

Foreign policy tensions possible

But there may be political implications. Aziz Epik points out that the amendment, if passed, could create "delicate foreign policy situations" for the German government. This would apply, for example, if German district courts had to indirectly pass judgment on, say, Chinese crimes under international law. The German government could then find itself in having to position itself more clearly than it has done so far.

Effectively, German courts will now be able to rule on current war crimes. For Josephine Ballon from HateAid, it is important that this happens "with a sense of proportion." But she assumes that it will because "incitement of hate" is a highly complex offense. Many terms in it leave considerable room for interpretation, which is why public prosecutors and courts are already very cautious and only allow charges and trials to be brought in a small number of well-proven cases.

Whether these will now increase, whether civil society organizations and individuals will also make use of the new Paragraph 5 will only become apparent in months and years.

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(c) 2022, DW

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