The story of why Holocaust denial is a crime in Germany

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.

Holocaust denial Germany
© pixabay

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.

13 responses to “The story of why Holocaust denial is a crime in Germany”

  1. Hello, I really like your point and would find it useful for my debate regarding Holocaust denial in my class. I will of course, change the wording, thus would it be okay for me to use it?

    • Hi, I do not allow the use of this text in such a manner. It is a far too delicate topic and I have no control over what you show of it and how you are about to present it. This is also not a scientifically nor a historically relevant source of information. If you found valid points in this article that you want to discuss in your classroom, that’s nothing I can nor would want to prevent. Just don’t use the article. Viel Erfolg.

  2. We are so confused… we have seen the Camps, have met with survivors, have seen the aftermath… How can anyone, a live or dead, say the Holocaust did not happen? Jews, Gays, Gypsies… anyone that did not tote “The Party Line” was persecuted. Is it not the same *now*, yet not to the same extent? Those who oppose “The Party Line” are seen as bigots, dissenters, excommunicated from the “Party”. Is it not our duty, as citizens of the World, to stand up and say “This is what I believe, do with it what you will” ?
    We lose only if we allow them to take our voice.

    • It is interesting how many “survivors” have admitted they were lying. Just because someone builds a museum and says something happened doesn’t mean they know what happened.

  3. the truth needs no law to protect it and the truth will always find its way to the light. Anybody with half a mind knows this law is a gag order and only adds credibility to the truth of whats being kept from the people. But now as we know jesus our lord has brought us the internet and we can all find the truth.

    • No that is what the Holocuastd deniers use to justify their feelings of being victimised. But you do not possess the truth, same as Hitler never possessed the truth. What you possess is an idea that your notions of free speech trump the rights of certain minoritiies and ethnicities to be protected and be allowed to live in peace without their existence being impinged upon and demeaned by bigots and fools. We see in the majority of holocuast deneirs a sense of persecution which would not exist if they did not seek to impose thier version of history on thsoe people who were affected by it and whose ancestors were murdered in the death camps of Germany, including many Germans. The national trauma imposed on the Germans by the Nazis is the reasons they do not want these ideas to resurface. People do not want their society reinfested with a hateful and destructive ideology nor to allow nazis and rightwing ideology apologists to flourish and take root. You do not kill a weed by feeding it fertilsier, you kill it by using weed killer and Nazism is a noxious weed.

      • You don’t get to arbitrarily define what is truth and what is not. I could just as easily say that (REDACTED) and (REDACTED), to simply say that I don’t “hold the truth” doesn’t refute my points.
        Throughout history, there have been countless governments explaining away censorship with “Noble” reasons for the population, China for instance calls what it censors “harmful”.

        You either have free speech or you don’t, and in Germany you don’t. There are much better ways of dealing with deniers, instead of driving them underground, that is to actually debunk what they’re saying. But since they can’t say anything, their points will just continue to foster. I personally find it creepy that the government gets to define what I can and can’t think.

  4. legally, no-one may include the truth in their comments here, because they would end up in jail…so what do you expect…my question is ‘When did the German PEOPLE vote for these laws’? The implicit question is WHO imposed these laws on the German people. It would be defined as hate speech to answer this question, so no-one is going to. So much for German democracy.

    • Those farthest from “the truth” are those that claim to know it. (you can quote me in the future if you meet those people that share their “truth” with you).
      The facts regarding the holocaust though are very clear and have been researched and documented by many independent people and institutions worldwide and you still claim to know better based on what qualification exactly?

      • Yes, but no one can outlaw Holocaust denial because concepts, whether based on logic, on fact, o fiction, on myth, on hatred, whatever, cannotbe banned. In any case, from a practical point of view, today we have the internet, where people around the world can say what they want anonymously and with impunity. The fact is that, at least on the internet, the world does have freedom of speech. Holocaust deniers ask, what do we have to hide, that we ban denial? In addition, when you make this kind of law, many people may prefer to avoid the topic of the Holocaust altogether for fear of misspeaking and being perceived as holocaust deniers – which does not serve the interests of educating people about the effects of intolerance.

  5. Als Deutscher pflichte ich der Bestrafung Holocaustleugner hundertprozentig bei, KEINE AUSNAHMEN!

    Dass sogenannte “gebildete” Menschen unter uns die unaussprechbaren Greueltaten der Hitlerzeit verharmlosen, ja, in mehreren Laendern sogar legal duerfen, ist mir schleierhaft.

    Die Nazis sind kein Witz, stehen m.E. jenseits des Humors.

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