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Despite banning Nazi symbols, Germany’s constitution and legal tradition complicate cases against neo-Nazis

BERLIN, Germany — The government of the state of Bavaria has said it will soon request that Germany’s highest courts ban the country’s largest far-right party, the National Democratic Party (NPD), for subverting the tenets of the national constituti

BERLIN, Germany — The government of the state of Bavaria has said it will soon request that Germany’s highest courts ban the country’s largest far-right party, the National Democratic Party (NPD), for subverting the tenets of the national constitution.

It’s a policy that is popular among most of the public, and has earned backing from both of the country’s major parties. But it’s also a course of action that most political elites acknowledge has little chance of success.

“There’s very little chance of the courts accepting this argument,” said Wolfgang Hoffmann-Riem, a former justice on Germany’s Constitutional Court.

This is not the first time the German government has considered how to position itself toward the crimes of the country’s past. Indeed, the history of post-World War II Germany is fraught with morally dubious decisions toward the legacy of Nazism — from Konrad Adenauer’s choice in the 1950s to avoid a thorough de-Nazification of his government, to the Red Army Fraction’s campaign in the 1970s to purify West Germany of its Nazi-era sins by means of terrorism and murder.

Nonetheless, the contemporary German state has mostly tried in good faith to feel its way toward an ad hoc accomodation of its Nazi past, one that acknowledges the unique scourge of the Third Reich, while protecting the core freedoms of a liberal democracy. Symbols from the Nazi-era, such as the swastika or the “Heil Hitler” salute, are illegal in Germany, but far-right political groups have also been granted equal right to hold demonstrations to air their views. Holocaust denial is punishable by imprisonment, but neo-Nazi parties have been tolerated as long as they draw no explicit links with the Nazi regime.

The policies might sometimes may seem contradictory, but they are meant to hang together as a carefully managed compromise, one that pays respect both to the tragic origins and the decades-long success of the modern, democratic German state.

But, when it comes to the NPD, the country’s largest far-right party, many Germans insist that the government redraw the boundaries between freedom of expression and historical deference. Indeed, the calls for action against the NPD have gotten louder in recent years, a development coincident with the party’s increasing  successes, especially in eastern Germany.

The party has earned seats in a number of state legislatures by winning more than 5 percent in several state-wide elections, which has also given it the right to receive government campaign financing. Charlotte Knoblauch, head of the Central Council of Jews in Germany, supports the renewed effort to ban the party, insisting that it’s unacceptable that the party receives tax money to spread its “racist propoganda.”

However personally sympathetic German judges may be to such pleas, they say they can’t do anything about the party unless the state can conclusively prove that it is explicitly subverting the German constitution. That sets the bar very high: Party leaders would have to be documented laying out plans to install a dictatorship, or belittling the victims of totalitarianism. Gathering such evidence in the public sphere is a madenning process, as NPD lawyers carefully monitor party rhetoric so that it tiptoes up to, without crossing, the legal boundaries.

The German government has tried other methods to gain damning evidence against the NPD, but those have only led to other legal difficulties. Indeed, an attempt by the federal government in 2003 to ban the party relied heavily on evidence gathered by government agents who operated as undercover spies within the NPD organization. The Constitutional Court claimed it couldn’t distinguish between the government agents’ observations of the NPD activities, and their own participation and possible instigation of those activities. Legal experts, including former justice Hoffmann-Riem, have suggested that the very fact that undercover government agents are still in force in the NPD organization means that any legal case against the party would be weakened from the get-go.

Interestingly, it’s primarily politicians from eastern Germany, where the NPD is strongest, who have most strongly resisted calls to ban the party. They argue that the only sustainable way to combat neo-Nazi radicalism is through the normal channels of the liberal state — namely, open debate and argument. “Even if you banned the NPD party, they would just rename themselves and come back the next week,” said Andreas Adammer, a resident of Potsdam in the state of Brandenburg, where the NPD has enjoyed success in past elections.

Of course, the contrasting strategies for dealing with the NPD can and will most likely be pursued in parallel. Indeed, while Bavaria pursues its case against the NPD, some 8000 neo-Nazis are expected to gather in Dresden Saturday to mark the 65th anniversary of the Allied bombing of that city in the final year of World War II. A police presence will be on hand to ensure that the Nazi sympathizers have the opportunity to air their slogans, which compare Allied firebombing to Nazi atrocities. But, they are also expected to be met by a group of counter-protesters whose numbers will double their own.