Post by Dan Dare on Apr 21, 2023 11:34:33 GMT
This topic arose out of another conversation about the intersection of national legislation and EU Law. Contrary to some opinion, the EU does not have jurisdiction over criminal offences like incitement to racial hatred or Holocaust denial so these remain the prerogative of individual member states. That may change, however, as the EU extends its reach into anti-racism and associated legislation as announced by Commission President Ursula von der Leyen in her 2020 ‘State of the Union’ speech to the European Parliament. It would not be at all surprising to find forthcoming EU legislation intended to eradicate racist expression includes an ‘add-on module’ specifically to tackle to Holocaust denial. In fact it’s very likely if not highly probable, given who is running the show, that the German legislation will be taken as the template. It might also be well within the bounds of possibility that the UK might elect to take this particular EU into its domestic legislation, since it does not have an equivalent of its own.
The principal legal tool now used by the German authorities to deal with instances of Holocaust denial is Article 130 of the Federal Penal Code, often cited as § 130 StGB (Strafsgesetzbuch). § 130 StGB has existed since the very early days of the Second Reich, although in its original form it was quite brief and precisely crafted to deal with one and only one type of offence, namely publicly violent acts of sedition. Here it is in full (my translation, usual disclaimers apply):
§ 130. Whoever publicly causes a breach of the peace through inciting different classes of the population to violence against each other shall be punished by a fine of up to 200 thaler or two years in prison.
And that's it, in full. We'll get a chance to compare it with the 2022 version a little later, however it is important to understand that § 130 StGB remained on the statute book, essentially unaltered, for almost ninety years - right through WW I and the collapse of the monarchy, the violent revolutionary disturbances in the 1920s, the entire NS era and the period of post-war military government, and eve n for the first ten years of so of the Federal Republic. Somewhere along the way the 200 thalers got changed to 600 marks but that was the only difference between the law as it stood at the beginning of 1960 and as originally enacted in 1871.
In 1960 the first significant change to § 130 StGB occurred and it may be instructive to review a little of the background to that development, but first here is the article as amended in full:
§ 130 Whosoever acts in a manner capable of causing a breach of the peace by assailing the human dignity of others by:
(1) Stirring up hatred against a section of the population,
(2) calling for violent or arbitrary measures to be taken against them or
(3) acting in an insulting, maliciously contemptuous or defamatory manner,
The law as revised in 1960
(1) Stirring up hatred against a section of the population,
(2) calling for violent or arbitrary measures to be taken against them or
(3) acting in an insulting, maliciously contemptuous or defamatory manner,
shall receive a prison sentence of not less than three months. Additionally, a monetary fine may also be imposed.
Already we can see that the focus and intent of the law has changed radically from the original Prussian version. The emphasis has shifted from deterring incitement to violence between societal classes to protection of the 'human dignity' of identifiable population groups, and begins to presage the language of 'human rights', 'anti-discrimination', 'equality' and 'diversity' with which we all become all too familiar in recent times as a by-product of the multicultural state. However Germany in the early post-war period was neither multiracial - Turkish and Maghrebi Gastarbeiter did not start to arrive in large numbers until the early sixties - nor multicultural, notwithstanding the large-scale population transfers which took place in the aftermath of the war. The impetus for change in Germany came not from the need to deal with post-war immigration but rather, as one might expect, from the continuing legacy of the NS era, and in particular from complications arising from the experiences of its erstwhile Jewish population under the Third Reich.
The catalyst for Germany's turn towards group rights, as exemplified by the 1960 revision to § 130 StGB, is widely held to the "Zind Affair", a criminal trial which took place in 1958. Ludwig Zind was an ex-SA trooper and later Wehrmacht officer who got into an argument with a Jewish business man in an Offenburg pub. He was said to have offered up all manner of anti-Semitic utterances such as: 'Jews were responsible for Weimar and the Nazis were right to bump them off', ' 'They should have sent you up the chimney like the rest of them ' and 'Israel is a plague-pustule which should be obliterated'. Zind was sentenced to 18 months in prison, but managed to flee before the appeal and found asylum and support in Egypt. He managed to evade incarceration up to his death in 1973, despite being apprehended in Düsseldorf in 1970 while on a clandestine visit. German Wikipedia has a good account of the case here, including a link to a contemporary (paywalled) article in English from Time magazine.
The Zind Affair played out against a backdrop of increasing political anxiety and media ‘outrage’ about what seemed to be a dramatic rise in of anti-Semitic expression across West Germany in the late 1950s. There were repeated incidences of desecration of Jewish grave stones, daubing of slogans on Jewish-owned business and swastikas on synagogues. In its article on § 130 German Wikipedia takes up the story in the aftermath of the Zind trial:
At the trial he [Zind - Ed.] elaborated on his national-socialist outlook and in so doing received considerable vocal support from the audience in court. In July, the former concentration camp doctor Hans Eisele fled abroad, while another former camp doctor, Herta Oberheuser, was released early from detention and was able to resume her profession as a physician.
It's now known that many of the so-called anti-Semitic incidents which occurred in the late 50s were in fact instigated by provocateurs under East German instruction whose mission it was to raise exactly that spectre of a resurgent Nazism aided and abetted by complaisant politicians in the West, many of whom had themselves (by some lights) a dubiously murky past.
Continuing from Wikipedia:
Accordingly, on January 22nd, 1960 a major legislative debate took place in the Bundestag under the auspices of the SPD. The opposition (i.e. the SPD - Ed.) rejected the government's proposal for a special statute. Adolf Ardnt referred to it as a 'Jewish Star' law that would single out the Jewish minority as being specially privileged in a legal sense [Ardnt was himself half-Jewish, and had been a forced labourer during the war - Ed.] Instead, the denigration of any minority must be treated as an assault on common human dignity. Ardnt's view eventually prevailed, and the 1960 Law thus came to create not an offence of 'Stirring up Racial Hatred' but rather one of 'Assaulting the Human Dignity of Others'.
It doesn’t take much imagination to understand why West German lawmakers shied away from creating a law based on the identification of discreet racial groups since in Germany in 1960 that could only have turned the spotlight on one minority group in particular, a situation best avoided in a society desperately anxious to lay its ghosts to rest.
It just remains to note that Zind's prosecution, or more correctly stated, the media scrutiny that the case and its background received particularly abroad served to act as the essential impetus for the re-purposing of § 130. In fact, Zind's case was not brought under § 130, but rather under a set of other provisions dealing with slander and definition, the key one being § 189 Verunglimpfung des Andenkens Verstorbener (Denigration of the Memory of the Deceased), itself another relic of the old Prussian Penal Code. We'll take a closer look later on at § 189, which also has an interesting history if a less convoluted one than § 130. Suffice to say, the fact that the authorities had to wheel out such an elderly war-horse to deal with Zind et al (and continued to do so for years after) highlights the urgency with which they attended to the 'upgrade' of § 130.
I'll pause here to allow for interim thoughts and comments before taking up the second part of the story, from 1994 to the present.
