It is only recently that I have reflected on international criminal law as an instrument of political arbitrariness. I have shown, using the example of Austria, how states abuse the criminal prosecution of alleged war crimes or genocide in order to impose their will as a hegemonic power.

The Federal Republic of Germany now strengthens the crime of approval, denial or gross minimisation of genocide, crimes against humanity and war crimes.

This amendment initially went almost unnoticed by the public. In a so-called "omnibus procedure" [1], an extension of the hate crime offence was adopted without lengthy deliberation.

The sword of Damocles of criminal law

It was only a few days later that isolated critical reactions were voiced. On closer inspection, this is a radical change in the law: in future, statements made during a rally or demonstration may also fall under the extended offence. An open discussion about possible war crimes in latent conflicts is thus now under the sword of Damocles of criminal prosecution.

But why all this? This is what the Bundestag says: "(It) must now be made clear that public approval, denial and gross minimisation of genocide, crimes against humanity and war crimes are punishable under German law if the act is committed in a way that is likely to incite hatred or violence and disturb the public peace."

The argument put forward for the rapid amendment of the law is an infringement procedure initiated by the European Commission in December 2021 against the Federal Republic. The Commission had criticised Germany for not having sufficiently transposed the "COUNCIL FRAMEWORK DECISION 2008/913/JHA of 28 November 2008 on combating certain forms and expressions of racism and xenophobia by means of criminal law".

The government thus justifies the amendment on the grounds that public approval, denial and minimisation - with the exception of the reference to acts committed during the reign of National Socialism - were not explicitly mentioned in a German criminal law provision until now. The Federal Government also seems to attach importance to explicit criminalisation: acts can be punished with imprisonment of up to three years or with a fine.

A state-ordered attitude?

This is a particularly sensitive issue. Who determines whether an act incites hatred or violence or disturbs the public peace? Who determines, especially in latent conflicts, whether a crime against humanity is actually committed? How can a German court judge here and now facts that the International Criminal Court may have to investigate for many years?

The norm, as an ethical imperative and ideal of behaviour, necessarily presupposes facts. Facts must always be available for verification. A norm that is not linked to facts does not fulfil the basic requirement of legal ethics. It is unethical.

Therefore, linking behavioural obligations to opinions or ideologies is an expression of a sovereign terror of opinion, because the normative ethical conditions for such obligations are lacking. This is all the more critical in a country that claims the Holocaust and German guilt as a "common historical denominator".

The amendment of the criminal law of the Federal Republic of Germany appears, on closer inspection, as a state-ordered conviction under threat of coercion and punishment. This is a shift from an individual criminal law of guilt to a collective criminal law of conviction. These are the usual characteristics of the collapse of open democratic societies and the emergence of totalitarian systems.