Could supporters of Russia’s war in Ukraine menace legal consequences in Germany in the future? Since Russia’s attack on February 24, 2022, on Ukraine, many demonstrations have occurred in Germany, mostly in solidarity with the Ukrainian people. But there are also demonstrations organized by members of the huge Russian community in Germany (around 2 million people) and other parties, which support Putin’s side in the war.
Organizing and participating in a public gathering is both in Germany and in the U.S. a constitutional right, even if it occurs in favor of a country that has initiated a war of aggression. But what happens, if pro-Russian demonstrators in Germany start to deny the war crimes that take place in Ukraine?
As a result of German’s WWII reckoning, there is already a criminal law in Germany that prohibits condoning, denying, or trivializing the Holocaust in public or during a public gathering in a way that is likely to disturb the public peace (§ 130(3) Strafgesetzbuch (StGB); German criminal code). Other nations, which penalize the denial of the Holocaust, are Israel and Austria. A similar criminal law does not exist in the United States but such action may constitute grounds for a cause of action under civil law in certain circumstances.
On October 20, 2022, the German parliament voted to amend and extend § 130 StGB. Passage 5 thereof now penalizes condoning, denying, or trivializing genocide, crimes against humanity, or war crimes publicly or during a public gathering. To be punishable under the amended § 130(5) StGB, an act must relate to a certain national, racial, religious, or ethnic group in a way that is likely to incite someone to hate or act with violence against this group or members of this group or to disturb the public peace. The passed bill provides fines and imprisonment up to three years, whereas the maximum imprisonment for sanction regarding the Holocaust in § 130(3) StGB is five years. The rationale behind this discrepancy is the significance of the Holocaust in German history, which justifies more severe penalties.
According to statements by politicians with expertise in law, it is now possible that pro-Russian supporters could be penalized based on this new law if they, for example, condone or deny war crimes committed by Russian soldiers during a demonstration.
Notably, the new law does not prohibit a person from denying that a specific war constitutes a crime of aggression. The crime of charge, which is aggression that constitutes a manifest violation of the Charter of the United Nations as determined by its character, gravity, and scale, is penalized as a crime under international law (§ 13 Völkerstafgesetzbch (VStGB); Code of Crimes against International Law). As such, whether a war constitutes a crime of aggression under § 13 VStGB is, to some extent, a subjective assessment. Because the new § 130(5) StGB does not prohibit a person from denying that war is a crime of aggression, such assessments should not be stymied and will not be punished.
Despite possible consequences to pro-Russian demonstrators, the war in Ukraine did not cause the amendment to § 130 StGB. Instead, the amendment to § 130 StGB results from the European Commission’s initiation of initiated treaty violation proceedings against Germany in December 2021. In the European Commission’s opinion, Germany violated the EU resolution 2008/913/J1 from November 28, 2008, which aimed to fight specific forms and expressions of racism and xenophobia.
Although the newly-amended law might affect upcoming demonstrations, the actual coverage of § 130(5) StGB will be determined by the court’s decisions.