Concept and Meaning of the ‘Auschwitz Lie’
The so-called ‘Auschwitz Lie’ refers to the deliberate claim that the National Socialist genocide of European Jews, particularly in the Auschwitz concentration and extermination camp, did not occur or has been greatly exaggerated. This form of Holocaust denial is a particular manifestation of so-called Holocaust denial and is a criminal offense in Germany and other countries.
Historical Background
Origin of the ‘Auschwitz Lie’
The denial of the systematic murder of millions of Jews during the National Socialist era was propagated in the postwar period chiefly by far-right circles. From the 1970s on, the term ‘Auschwitz Lie’ was used primarily in connection with publications and public statements that unjustifiably questioned the existence of gas chambers or the mass murder in the camp.
Coinage of the Term
The term ‘Auschwitz Lie’ was originally coined by opponents of Holocaust denial to label as such the absurd and demonstrably false claims of denial. Today, the term is predominantly used in academic and political literature to designate this specific form of historical falsification.
Legal Classification in Germany
Statutory Provisions
Section 130 of the German Criminal Code (StGB) – Incitement of the People
In Germany, the dissemination of the ‘Auschwitz Lie’ is specifically addressed under section 130 of the German Criminal Code (StGB) – Incitement of the People. According to section 130 paragraph 3 StGB, it is a criminal offense to publicly or at an assembly approve of, deny, or downplay the Holocaust (‘the acts committed under the National Socialist regime of tyranny and arbitrary rule’ against a national, racial, religious, or ethnically defined group). The penalty is imprisonment of up to five years or a fine.
Protected Legal Interest
This provision is primarily intended to protect public peace. Criminal liability in particular requires that the denial is likely to disturb public peace, for example, by inciting antisemitic hatred or injuring the memory of the victims.
Extended Offense Elements
In addition to incitement of the people, related criminal offenses have been considered in case law and through legal reforms, such as insult (section 185 StGB), where denial of Nazi crimes disgraces the memory of the deceased.
Prohibitions in the Context of Freedom of Expression
Criminal liability for Holocaust denial regularly conflicts with the fundamental right to freedom of expression pursuant to Article 5 paragraph 1 of the Basic Law (GG). However, the Federal Constitutional Court has repeatedly ruled that denial of the Holocaust or facts referred to as the ‘Auschwitz Lie’ is not protected by freedom of expression, as it concerns demonstrably untrue statements of fact, not mere expressions of opinion.
Federal Constitutional Court Jurisprudence
With the so-called ‘Auschwitz Lie Decision’ of April 13, 1994 (BVerfGE 90, 241), the Federal Constitutional Court made it clear that Holocaust denial is not within the scope of protection of the fundamental right to freedom of expression, because the Basic Law does not protect knowingly untrue statements of fact. The Court stated that the deliberate denial of established historical facts is not worthy of protection, even in the most extreme form of expression.
International Legal Situation
European Framework
Many European states have enacted similar criminal laws to prohibit denial or gross trivialization of the Holocaust—and consequently the ‘Auschwitz Lie.’ This is often based on the ‘Council Framework Decision on combating certain forms and expressions of racism and xenophobia by means of criminal law’ from 2008.
Legal Situation in Other Countries
Austria, Switzerland, Belgium, France, Poland, and other countries have their own criminal provisions dealing with denial of National Socialist crimes, sometimes explicitly in relation to Auschwitz. In other countries—especially the USA—dissemination of the ‘Auschwitz Lie’ is often protected by freedom of expression, as long as no other criminal offenses are committed.
Case Law on the ‘Auschwitz Lie’
Key Decisions of German Courts
Federal Court of Justice (BGH)
The Federal Court of Justice has repeatedly confirmed the criminal liability of the ‘Auschwitz Lie’ within the meaning of the criminal offense of incitement of the people. For example, publicly questioning the existence of gas chambers in Auschwitz was classified as ‘denial subject to penalty.’
Administrative Courts
Administrative court decisions, for example regarding assemblies or publications, also regularly confirm the inadmissibility of statements attributable to the ‘Auschwitz Lie.’ In this context, a clear distinction must be drawn between prohibited denial and, where applicable, permissible scientific debate.
‘Auschwitz Lie’ on the Internet and Digital Dissemination
With increasing use of the Internet, the dissemination of Holocaust denial content—including the ‘Auschwitz Lie’—has shifted to digital media and social networks. This has led in Germany and Europe to the expansion of criminal protection (the ‘Network Enforcement Act’), which obliges platform operators to act swiftly against criminal content.
Sanctions and Legal Consequences
The dissemination of the ‘Auschwitz Lie’ is an ex officio offense in Germany, i.e., the authorities are obligated to take action ex officio upon becoming aware. Sanctions range from fines to multi-year prison sentences in severe cases. In addition to criminal consequences, civil claims for violation of the personal rights of victims or their descendants as well as regulatory actions—for example, prohibition of assemblies—may also arise.
Summary and Legal Assessment
The ‘Auschwitz Lie’ is a specific form of denial of National Socialist crimes, the dissemination of which is a criminal offense in Germany and many other European states. Courts have repeatedly confirmed the compatibility of these criminal provisions with the Basic Law and European law. Even in the digital context, combating this phenomenon is the subject of current legislation and case law. Criminal liability expresses the social and legal interest in protecting human dignity, the memory of the victims, and public peace.
Literature and Case Law Sources (Selection)
- Federal Constitutional Court: Decision of April 13, 1994 – 1 BvR 23/94 (‘Auschwitz Lie’ Decision)
- Section 130 of the German Criminal Code (StGB) – Incitement of the People
- Council Framework Decision 2008/913/JHA of the EU on combating racism and xenophobia
- Federal Court of Justice, various judgments on Holocaust denial
- Network Enforcement Act (NetzDG)
- Federal Ministry of Justice: Guide to Criminal Prosecution of Holocaust Denial
Note: This article serves the purpose of objective information and does not trivialize or relativize historical facts.
Frequently Asked Questions
Is the dissemination of the so-called ‘Auschwitz Lie’ a criminal offense in Germany?
The dissemination of the so-called ‘Auschwitz Lie,’ that is, the denial or significant trivialization of National Socialist crimes, particularly the Holocaust, is expressly a criminal offense in Germany under section 130 (3) of the German Criminal Code (StGB)—the so-called incitement of the people provision. Legislators specifically criminalize the public denial, approval, or trivialization of the genocide committed under National Socialism, provided it is likely to disturb public peace. Victims of the Holocaust and their relatives enjoy special protection. The penalty ranges up to five years’ imprisonment or a fine. The main legal good protected by this provision is public peace as well as the human dignity of the victims.
What legal consequences can result from violating the prohibition of the ‘Auschwitz Lie’?
Persons who publicly or in an assembly deny, significantly trivialize, approve, or justify the Holocaust must expect criminal prosecution and a severe custodial sentence or fine. This applies in particular to publications on the Internet, on leaflets, or speeches at events. In practice, prosecution also extends to multimedia content such as videos, podcasts, or social networks. Furthermore, the use of corresponding symbols (e.g., Nazi symbols) can also result in criminal consequences, provided there is a connection to National Socialist crimes. Repeat offenders or particularly serious cases are punished more severely.
Does the prohibition of the ‘Auschwitz Lie’ also apply to foreign nationals in Germany?
Yes, the prohibition applies regardless of nationality. As soon as an act is committed within Germany or perceived there (e.g., publication of a relevant article on a website accessible in Germany), German law may apply and criminal prosecution can be initiated. Visitors, tourists, or guest workers are also subject to German criminal jurisdiction regarding these offenses, as long as the act is committed or has an effect within the federal territory.
Are there any exceptions or justifications that exclude criminal liability for the ‘Auschwitz Lie’?
German criminal law, in principle, provides no grounds of justification for the public dissemination of the ‘Auschwitz Lie.’ Neither the right to freedom of expression nor scientific or artistic engagement can justify denial or trivialization of the Holocaust if it takes place publicly and not in a closed, unambiguously academic context in such a way as to create the impression of actual denial or trivialization. Exceptions could arise only in the very narrow realm of academic freedom, but case law is very restrictive and regularly affirms criminal liability.
How do courts distinguish between punishable ‘Auschwitz Lie’ and permissible historical debate?
Courts examine whether a statement crosses the line from an objective, historical discussion into the realm of denial, trivialization, or approval of Nazi crimes. While critical academic examination of details, such as discussions about victim numbers or procedures, is generally permissible, statements that dispute or significantly relativize the existence of the Holocaust, the use of gas chambers in Auschwitz, or the systematic killings are criminal. Case law in particular considers how the statement is to be understood in the social context and by an average recipient (the so-called objective recipient horizon).
What role does the Internet and international reach play in prosecution in Germany?
With the advent of the Internet and social media, prosecution of the ‘Auschwitz Lie’ has become highly significant. German courts already establish a domestic connection if such content is made available in German online worldwide and has relevance to Germany. As a result, Holocaust denial content posted online from abroad but accessible in Germany is, in principle, prosecutable. Prosecuting authorities work in international networks, but may encounter practical enforcement hurdles abroad, particularly if the country of origin does not criminalize such statements.
What is the position of the German Federal Constitutional Court regarding the compatibility of the prohibition of the ‘Auschwitz Lie’ with freedom of expression?
The Federal Constitutional Court has repeatedly clarified that the fundamental right to freedom of expression under Article 5 of the Basic Law is not violated by the prohibition of the ‘Auschwitz Lie.’ Holocaust denial does not fall within the scope of protection of freedom of expression, because it involves a serious violation of the human dignity of the victims and endangers public peace. The dissemination of factual claims that are patently untrue and likely to disturb social peace or incite hatred is expressly not protected by freedom of expression. The Court emphasizes the character of the Federal Republic of Germany as an anti-fascist constitutional state and sees the criminalization as a necessary protection mechanism against antisemitic propaganda.
