There was no alternative for the court except to hand down the maximum punishment of five years in jail to Ernst Zündel. Anything else would neither have been commensurate with the German legal system nor with the Germans' understanding of history. To make it clear from the outset: In Germany people are punished for incitement to hatred not only for denying the Holocaust, but for contesting the veracity of acts carried out under the Nazi dictatorship. All Nazi atrocities are dealt with equally.
The Holocaust is a historical fact -- which Zündel explicitly denies. It is the most intensively researched historical occurrence of the 20th century. Countless documents, photos and witness accounts prove it happened -- such as the Wannsee Conference protocol, which documents exactly how the acts of deportation and annihilation were organized. The films the Allies made in the immediate aftermath of the liberation of concentration camps are also contemporaneous documents. Additional details have also been established in numerous criminal trials and analyses by historians.
Thus, by denying the atrocities of the Nazi era Holocaust deniers like Ernst Zündel are not expressing an opinion -- which possibly would be defensible under the mantel of freedom of expression. Instead it is an allegation that is patently and consciously untrue. And there, jurisprudence is clear: According to Germany's Constitutional Court, allegations that have been proven to be false or that the speaker knows to be false are not protected by freedom of expression.
People who deny the Holocaust don't do it by accident. They do it willfully and with a particular aim: to portray the Jews' fate under the Nazi dictatorship as a cock-and-bull story, while connecting it to Germany's alleged exploitation for the benefit of the Jews.
Those ideas are consistent with the anti-Semitic ideology of the Nazis, who chose the Jews and other minorities as scapegoats. In those days, the majority of Germans' did not bridle against this ideology -- some tolerated it and looked away, others backed it.
Dealing with German history was a painful process. Nor can it be brought to a close, in view of the dimensions of the Nazis' crimes. Accounting for the past includes legal action against those who have failed to learn any lessons. Remembrance of the victims and their progeny should be protected as should confidence in the constitutional state which will never again allow such atrocities and their adulation.
Incidentally, denying the Holocaust is not only illegal in Germany, but also in France, Britain, Austria and Switzerland. But due to its history, Germany bears the greatest responsibility on the subject. If no punishment were handed down here, of all places, it would send a fatal signal abroad.
But is it right to grant people who use hate speech, such as Zündel and his lawyers -- some of whom are notorious right-wing extremists themselves -- a public forum such as a courtroom? Or is allowing them a public forum a reason in itself to avoid putting them on trial?
The answer is clear-cut: They should face a court, and they shouldn't be ignored. Since, turning a blind eye has already had devastating consequences in Germany.
Daphne Antachopoulos is a reporter for Deutsche Welle specializing in German domestic and foreign policy (ncy)