The new § 130 is a danger for the critical discussion

Lying is not a crime in itself. Until now, false claims about political decisions or historical events could be spread without the courts being interested. There was one exception: Holocaust denial. The fact that approving, denying and playing down the genocide of the Jews under National Socialism is a punishable offense is undoubtedly justified in view of German history. What the Bundestag decided last Thursday around 11 p.m. (!) without any public hearing (!) is therefore nothing less than a minor revolution in criminal law.

According to the new paragraph 5 in Section 130 StGB, denying or grossly trivializing any genocide, crime against humanity or war crime will be punished with a prison sentence of up to three years or a fine - and initially regardless of where or when the disputed war crime took place. The statement only has to be capable of inciting hatred against, for example, a national or ethnic group and disturbing the public peace. A historian who downplays the Napoleonic wars should not be liable to prosecution. If the pogroms against Jews in the Middle Ages were denied, things might look different, and even more so in current conflicts, especially since the "peace disturbance" is not empirically examined by the courts and has rarely constituted a serious corrective so far.

A major problem with the new regulation is that it punishes the denial or downplaying of war crimes, for example, which have not yet been determined as such by a court. If someone writes on Facebook that the acts in Bucha were staged by the West, the public prosecutor's office would have to investigate the new criminal offense. The responsible district court would then have to examine whether war crimes actually took place, because after all the accused denies the crimes under international law. Exactly this clarification actually happens at the International Criminal Court, equipped with specialized investigative teams and the best technology, in proceedings with sometimes hundreds of witnesses from the war zones. The proof of crimes under international law is highly complex. Rarely is there so much lying as in war, evidence is covered up or manipulated, witnesses are difficult to find, and legal classification is not always easy. It is a mystery to me how a German district court is supposed to handle this task.

And there is one more factor: as long as an international crime has not been established as such by courts, why should it not be allowed to be "denied"? The past has shown us that many things that are untrue are reported about war crimes. Perhaps some readers still remember the "incubator lie" in the Iraq war. The story of the Iraqi soldiers who are said to have ripped premature babies out of incubators and left them to die on the ground during the invasion of Kuwait in August 1990 has even been discussed in the UN Security Council. It later turned out: everything was a lie, part of a PR campaign commissioned by the Kuwaiti government-in-exile. Especially in war, which is particularly prone to untruths, critical questioning of information is mandatory – at least for journalists. And if allegations have not yet been examined and confirmed by a court, no one should be punished who does not recognize them.

It would also be interesting how the new German law intends to deal with the work of international criminal defense lawyers who dispute war crimes in the interests of their clients or at least put them into perspective. Or what about the professor of international criminal law who "denies" war crimes because her legal assessment shows that they are civil crimes (because not every crime committed in war is a war crime)?

The legislator explains the new regulation by saying that it had to implement EU law. But that is only partly true. It is correct that there is a “Framework Resolution on the Criminal Law Combating of Certain Forms and Expressions of Racism and Xenophobia”, the provisions of which Germany is said to have only insufficiently transposed into German law. The fact that European law is increasingly interfering with national criminal law is a significant problem. But here there would at least have been the possibility of meaningfully limiting the required criminal liability. According to paragraph 4 of the framework decision, the member states may limit criminal liability to denying or grossly trivializing such international crimes that an international court has "conclusively determined".

Without this restriction, a critical debate about war crimes in smoldering conflicts will in future be subject to criminal prosecution under the sword of Damocles. The legislature should urgently improve this - in a public procedure that does justice to the scope of the decision for stricter criminal law. As a society, we need to consider how political our criminal law should be and whether we are not able to endure inappropriate and critical statements without calling for the prosecutor's office.

Elisa Hoven is a professor of criminal law at the University of Leipzig and a judge at the Constitutional Court of the Free State of Saxony.