In today’s Germany, the outright denial and even the trivialization of the Holocaust in public is a federal crime, punishable by up to 5 years in prison. Why is that? And since when do these legal provisions exist?
The decades after World War II
Before we get into the history of the laws against Holocaust denial, we must take a brief look at how post-war German society coped with its criminal past. In the years and decades after World War II, the German society – while overwhelming rejecting Nazi ideology after the traumatic experience of the war – chose not to deal with the specific Nazi crimes too intensively.
As the conflict between the Soviet Union and the United States and their respective allies, the so-called Cold War, began to heat up in the late 1940ies, the pressure of the Allied powers on Germany to reform and transform their society and punish all Nazi perpetrators decreased: (West)Germany was now desperately needed as an ally in the struggle against the communist takeover of Europe.
As a consequence, it was mostly up to (Jewish) individuals like Fritz Bauer, Attorney General in the German state of Hessia, to remind Germans of their all to recent past and to at least try to, for example, bring some of the guards at the Auschwitz concentration camp to justice. Generally speaking, the Holocaust, or what the Nazis had euphemistically called ‘the final solution’, was a taboo topic in West Germany in the 1950ies and 60ies. It was rarely talked about publicly and not taught in school extensively like today. In that atmosphere, trivialization and belittling of Nazi crimes could fester.
History of laws agaings Holocaust denial
Therefore, it comes as no surprise that in 1960 the first law against Holocaust denial was passed as a reaction to the re-emerging anti-Semitism in German society: On Christmas Eve 1959, just a couple of months after its widely celebrated re-opening, the synagogue in Cologne was besmeared with swastikas and anti-Semitic slurs by two members of a right-extremist party. In the following months an entire wave of anti-Semitic acts swept over Germany. The administration of chancellor Konrad Adenauer (CDU: Christian Democratic Union) saw itself under considerable pressure to act and therefore decided to pass a law against ‘incitement’ (Volksverhetzung). The purpose of this law was to, among other things, make the denial of Nazi crimes against Jews a crime. The mind-set of the deniers was seen as the foundational myth of new forms of anti-Semitism that focused on the state of Israel and its alleged moral blackmailing of the German state based on the – in the eyes of these anti-Semites – ‘historical lie’ of the Holocaust. Once passed however, the law was never really used to sentence Holocaust deniers as the judicial qualifications necessary for a conviction were set very high. Furthermore, the German judicial system was still full of officials who started their careers in the Third Reich and in most cases were not willing to really confront their, and their country’s past. That does not necessarily mean that they still held on to their old beliefs – even though that could be found too – but they were very reluctant to address the topic of Vergangenheitsbewältigung (the process of coming to terms with one’s past) and therefor bring charges against Holocaust deniers.
In the 1970ies and 80ies various liberal and conservative administrations made half-hearted attempts to pass a more efficient law against Holocaust denial. In 1985 the Bundestag, the German Parliament, passed a law to make it easier to prosecute deniers via libel law. At the same time, this very law also made it a crime to deny the historical fact that German speaking people were expelled and deported from Eastern Europe in the aftermath of World War II, often having to leave all of their belongings behind. This problematic parallelization of crimes was heavily criticized, and many on the Left saw it as an act of revisionism itself.
In 1994 the incitement law of 1960 was amended to guarantee a more efficient prosecution of Holocaust deniers (once again) by reducing the necessary legal qualifications. The law came as a result of the election success of small far-right parties all over Germany. It was part of a legislative package that included severe restrictions on asylum seekers and their rights – not much different then today – in the hope of thereby reducing the appeal and the election chances of the far-right parties.
Overall, there were never that many individuals who openly and publicly denied the Holocaust in Germany over the years – in fact, they are mostly (old) white men with not much else to do – but the immense symbolic effect of these few and the image of Germany they evoked especially abroad made the German state react to them with ever stricter laws. These actions came as an result of the lesson learned from the National Socialists rise to power: ‘Wehret den Anfängen’ (‘Nip it in the bud’; Literally: ‘Beware of the beginnings’).
Today’s handle in Germany and other countries
Today the German state has a variety of legal ways to deal with Holocaust deniers. Because of the severity of the potential sentence for Holocaust denial it comes as no surprise that the right wing discourse in Germany has moved on, from the revisionism of Nazi crimes to the focus on migration, asylum seekers and Muslims/Islam in general. The legacy of these laws, however, lives on: In the last two decades many, in fact most, EU-countries have passed similar laws in the name of the fight against xenophobia and racism.
Only the United Kingdom and the Scandinavian Countries oppose such laws on the basis of their understanding of free speech and a free society. In countries with a radically different understanding of freedom of speech, like in the US, such laws would be unthinkable.
As a matter of fact, in 1977 the US Supreme Court found it within the limits of the First Amendment, which, among others things, guarantees freedom of speech and freedom of assembly, for the members of the National Socialist Party of America to march through a Jewish neighborhood with a large population of Holocaust survivors with swastika signs. But then again, National Socialism managed to rise to power only in Germany.