Prohibition of the rehabilitation of Nazism in international and foreign legislation: evolution and analysis

Bagandova Leila Zakirovna ORCID: 0000-0001-5060-9015 Junior Researcher of the Scientific and Organizational Department; Institute of State and Law of the Russian Academy of Sciences 119019, Russia, Moscow, Znamenka str., 10, room 207 leyla.bagandova@mail.ru Other publications by this author

The preservation of historical memory, according to the Constitution of the Russian Federation, is one of the main directions of our state's policy. In the context of a difficult international political situation, the flourishing of neo-Nazi ideology, formations based on it and propagandizing it, the presence of article 354.1 "Rehabilitation of Nazism" in the criminal legislation of the Russian Federation is a necessary tool for countering crimes against the peace and security of mankind. In the Russian doctrine, attention is paid to these issues in the works of N.A. Egorova ^[1], Y.S. Zharikov ^[2], A.Y. Ivanov ^[3], A.G. Kibalnik ^[4], R.S. Tsvetkov. The scientific novelty of this study lies in the fact that for the most effective application of the above-mentioned norm, a comprehensive analysis of international and foreign legislation is carried out for the presence of norms prohibiting the rehabilitation of Nazism.

The development of international legislation to counter the spread and revival of the ideology of Nazism began immediately after the Second World War. Such acts can be divided into two groups. The first group consists of international treaties of a universal, general nature, i.e. those that enshrine fundamental human rights and freedoms. For example, in 1948, the Universal Declaration of Human Rights was proclaimed, the main reason for the creation of which was genocide, mass humiliation of human honor and dignity. This document stipulates that all people are born equal and free, their treatment of each other should be based on the principle of the "spirit of brotherhood", and no one can be discriminated against on one basis or another (Universal Declaration of Human Rights: [adopted at the third session of the UN General Assembly by resolution 217 A (III) from December 10, 1948] // Russian newspaper. - 1998. - December 10 (No. 245). p. 3).

Further development of the institution of human rights and freedoms took place in the Rome Convention for the Protection of Human Rights and Fundamental Freedoms of 1950. It introduced a provision on the prohibition of abuse of law: according to article 17, no person (both public and private law) has no right to engage in activities aimed at abolishing, diminishing or restricting the rights and freedoms proclaimed in this Convention. Torture or other cruel treatment degrading to human dignity is also prohibited (Convention for the Protection of Human Rights and Fundamental Freedoms // PCA "ConsultantPlus"). The International Covenant on Civil and Political Rights, in addition to some of the rights already mentioned, enshrined a ban on propaganda of military actions (the International Covenant on Civil and Political Rights (adopted on 12/16/1966 by Resolution 2200 (XXI) at the 1496th plenary meeting of the UN General Assembly) // PCA ConsultantPlus), which formed the core of the doctrine of Nazism.

In our opinion, the second group should include special international legal acts and treaties, i.e. those designed to prevent genocide, racial discrimination and other manifestations of Nazism. Thus, the Convention on the Prevention and Punishment of the Crime of Genocide recognizes genocide as an international crime, which includes actions that are committed with the intention to destroy in whole or in part any national, ethnic, racial or religious group as such: killing members of such groups; causing serious bodily injury or mental disorder to members of such groups; premeditated creation of such living conditions for any group that are designed for its complete or partial physical destruction; measures to prevent childbearing in such a group; forcible transfer of children from one group to another (Convention on the Prevention and Punishment of the Crime of Genocide // SPS "ConsultantPlus").

The Holocaust, as one of the most massive genocide events, has received broad international legal protection. On November 21, 2005, the UN General Assembly adopted the resolution "Holocaust Remembrance", which rejects any manifestation of Holocaust denial as a historical event. It is noteworthy that the resolution specifically notes the prohibition of both complete and partial denial. The document establishes the International Holocaust Remembrance Day and emphasizes that it is necessary to develop educational programs that will help the future generation learn the lessons of the past and prevent such things in the future (UN General Assembly Resolution No. A/RES/60/7 of November 21, 2005 "Memory of the Holocaust" [Electronic resource]. URL: https://ru.unesco.org / (accessed 07/29/2024)). A similar provision is repeated in the UN General Assembly resolution of January 26, 2007, which states that "The Resolution condemns without any reservations any denial of the Holocaust ..." (UN General Assembly Resolution of January 26, 2007 No. A/RES/61/255 "Denial of the Holocaust" [Electronic resource] // URL: https://undocs.org/ru/A/RES/60/7 (date of application - 07/29/2024)).

A number of international documents deal with issues of racial discrimination. The UN Declaration on the Elimination of All Forms of Racial Discrimination of November 20, 1963 establishes that discrimination against people based on race, ethnicity or skin color is an attack on the dignity of the human person and negates the principles set out in the UN Charter. It is emphasized that the State should not promote, protect or support any discrimination carried out by any groups, institutions or individuals (Part 2 of Article 2) (United Nations Declaration on the Elimination of All Forms of Racial Discrimination (adopted by resolution 1904 (XVIII) of the UN General Assembly on November 20, 1963 G.) [Electronic resource] // URL: https://www.un.org/ru/documents/decl_conv/declarations/r18_1904.shtml (date of application - 07/29/2024)).

The International Convention on the Elimination of All Forms of Racial Discrimination notes that any form of discrimination hinders the friendly and peaceful development of relations between nations, which can lead to a violation of peace and security of coexistence not only in the world, but even within one State. Any propaganda of the superiority of one race or one group of persons with certain racial or ethnic characteristics over another is condemned, as well as organizations based on such theories and ideas (Article 4) (International Convention on the Elimination of All Forms of Racial Discrimination (adopted by General Assembly resolution 2106 (XX) of December 21, 1965) [Electronic resource] // URL: https://www.un.org/ru/documents/decl_conv/conventions/raceconv.shtml (date of application - 07/29/2024)).

Within the framework of the Council of Europe's activities in the field of combating racism and intolerance, the situation is periodically discussed in the Committee of Ministers of the Council of Europe, the European Commission against Racism and Intolerance, the Advisory Committee of the Council of Europe Framework Convention for the Protection of National Minorities and the Council of Europe Commissioner for Human Rights. The result of discussions is often the development of an act of organization on a particular issue. Thus, one of these documents is the Framework Convention for the Protection of National Minorities (hereinafter referred to as the Framework Convention), which contains a reminder of the events that shook European history and demonstrated that respect and protection of the interests of national minorities are a prerequisite for the development of a democratic society, as well as for peaceful coexistence on the European continent (Framework Convention on the protection of national minorities dated February 01, 1995, ETS No. 157 [Electronic resource] // URL: https://docs.cntd.ru/document/1902948 ?ysclid=ldh8m652g1133560890 (accessed 07/29/2024).).

Another tool for combating Nazism and its manifestations is the creation of international or integration bodies, specialized committees whose competence includes monitoring, evaluation, development of recommendations and other measures to counter xenophobia, racism and Nazism. In the Council of Europe, such a body is the European Commission against Racism and Intolerance, which monitors and evaluates legislation and law enforcement practices of member States to combat racial discrimination and anti-Semitism, studies international instruments for their possible development and application at local, national and European levels, and makes general recommendations.

An Advisory Committee to the Framework Convention has also been established under the Council of Europe. This body monitors compliance with the terms of the relevant document, and also has a mandate to address issues of combating racism in relation to non-titular groups of the population. As a result of the monitoring, special conclusions are created, which become the subject of resolutions by the Committee of Ministers of the Council of Europe.

The largest regional organization dealing with security issues is the Organization for Security and Co-operation in Europe (OSCE). The participating countries have made a number of political commitments related to the eradication of racism, anti-Semitism and aggressive nationalism: The New European Charter of Paris of 1990, the document of the 1991 Krakow Symposium on the Cultural Heritage of the CSCE member States and the European Charter of Security of 1999. The Security Charter is aimed at countering the rise of neo-Nazism.

The fight against neo–Nazism is reflected in two decisions of the Council of Ministers, one of which was adopted in Brussels in 2006 and the other in Madrid in 2007. In the Brussels Decision of the Council of Ministers "Combating intolerance and discrimination and promoting mutual respect and understanding", the Council of Ministers expressed concern, stating that it was "alarmed by the strengthening of political parties, movements and groups promoting violence", "in this context, manifestations of violent extremism related to racism, xenophobia, anti-Semitism, aggressive nationalism and neo-Nazism." In Madrid, the Council of Ministers called on politicians to prevent and condemn manifestations of intolerance on any principle, as well as neo-Nazism, without violating the principle of freedom of opinion.

In 2014, during the session of the UN General Assembly, at the initiative of the Russian Federation, a resolution was adopted on the prohibition of the glorification of Nazism, neo-Nazism and other practices that contribute to the incitement of modern forms of racism, racism, xenophobia and related intolerance. The document was co-sponsored by 44 countries from all regions of the world: 133 countries voted in favor of the resolution, four delegations (Canada, Palau, USA, Ukraine for the first time) voted against, 51 countries abstained. The initiative of the Russian Federation was associated with deep concern about the growth of various extremist groups, such as neo-Nazis and skinheads, who advocate acts of violence against people of different skin color, religion, as well as migrants. The resolution is focused on cooperation and dialogue and does not aim to "hold specific States accountable." This is a modern and very dangerous manifestation of racism, which must be combated both at the national and international levels. As the UN Human Rights Council's Rapporteur on contemporary forms of racism has repeatedly noted, this phenomenon is found all over the world. Russia is no exception in this regard. In Russia, concern about this issue has been repeatedly expressed at the highest state level, and law enforcement agencies consider countering such phenomena to be one of the priorities. With reference to the decisions of the Nuremberg Tribunal and the outcome documents of the World Congress against Racism and the Durban Conference, serious concern was expressed about the dynamics of the growth of movements, including political parties, promoting racism, ethnocentrism and xenophobia and spreading the ideology of racial superiority of fascism.

In 2021, the UN General Assembly adopted another Russian resolution on combating the glorification of Nazism, neo-Nazism and other practices of escalation of modern forms of racism, racial discrimination, xenophobia and other types of intolerance. The initiative of the Russian Federation was supported by 130 States, 49 countries abstained. Only two delegations voted against it – Ukraine and the United States. The text of the resolution contains recommendations to the international community to take appropriate measures "... to prevent the revision of the outcome of the Second World War and the denial of crimes against humanity and war crimes committed during the Second World War." The spread of Nazism in any form is condemned, including through the desecration of monuments to the victims of World War II and the application of graffiti and other drawings of a pro-Nazi nature.

The resolution under consideration pays special attention to the issue of education. Thus, the authors propose to take measures in the field of education in order to prevent revisionism and the commission of crimes against humanity, while criticizing the use of such materials and rhetoric in educational activities that promote discrimination, racism, and other types of harassment.

The considered international acts required the implementation of their provisions into national legislation. Most European countries have relevant norms or even constitutional and federal laws in their legal system. At the same time, in the legislations of many European countries there is a legal prohibition not so much on the revival of Nazism as an ideology through the development of its forms, as on the justification of the specific event of the Holocaust.

Israel was one of the first States to issue special regulations prohibiting these acts. According to the Law on the Prohibition of Holocaust Denial, for praising, approving acts committed under the Nazi regime, as well as belittling the results and horror of these events, it is punishable by imprisonment (Law on Holocaust Denial 5746-1986 [Electronic resource] // URL: https://www.nevo.co.il/law_html/law00/71846.htm (date of application – 08/10/2024)). Later, other countries followed Israel's example. For example, Belgium has adopted a law on Holocaust denial (Belgian Holocaust Denial Law // WordDisk, 2018-2020. URL: https:// worddisk.com/wiki/Belgian_Holocaust_denial_law / (date of appeal – 08/10/2024)), and the Criminal Code of Liechtenstein provides for responsibility for denying acts of genocide and other crimes against humanity (Criminal Code of Principality of Liechtenstein [Electronic resource]//Legislationline, URL: https://www.legislationline.org/download/id/8268/file/Liechtenstein_Criminal_Code_1987_am2017_en . pdf (accessed 08/10/2024)).

After the Second World War, norms prohibiting the ideology of Nazism and manifestations of activity within this ideology appeared in German criminal law. Thus, paragraph 4 of Part 1 of §86 of the German Criminal Code contains a norm criminalizing the dissemination of propaganda materials "which, in their content, are aimed at continuing the aspirations of former National Socialist organizations," and part 3 of § 130 prohibits public "approval, challenging or belittling the danger committed during the rule of the National Socialist regime acts."

On May 8, 1945, the Republic of Austria adopted the Constitutional Law "Verbotsgesetz 1947", aimed at denazification of Austria, as well as at suppressing the potential revival of Nazi ideology in the state. In accordance with section 3 of this Act, no one can act in favor of the NSDAM in any way, achieve its goals even outside the boundaries of this organization, publicly deny, downplay, approve or justify the crimes of National Socialism. Until 1992, this law did not contain provisions prohibiting Holocaust denial, and Austrian judicial practice was not uniform in this regard: the courts considered Holocaust denial only as a special case of the revival of Nazism. In 1992, a number of amendments were made to this law, some of which concerned the complete prohibition of any refutation, justification or denial of the Holocaust (National Socialism Prohibition Act 1947 [Electronic resource]//URL: https://www.ris.bka.gv.at/Dokumente/Erv/ERV_1945_13/ERV_1945_13.pdf (accessed 08/11/2024).

In France, Law No. 90-615 of July 13, 1990 amended the Criminal Code and other laws in order to suppress any manifestations of racism, anti-Semitism and xenophobia. In addition to prohibiting all forms of discrimination, the law also prohibits the denial of crimes against humanity established by the decisions of the Nuremberg Tribunal (Memory Laws in France and their Implications: Institutionalizing Social Harmony [https://humanityinaction.org/knowledge_detail/memory-laws-in-france-and-their-implications-institutionalizing-social-harmony/?lang=nl ] // URL: (accessed 04/16/2024)).

In Romania, Emergency Decree No. 31 was adopted "On the prohibition of fascist, racist or xenophobic organizations and symbols, and the promotion of worship of those guilty of crimes against peace and humanity" (See: Ordonanţa de urgenţă Nr. 31 din 13 martie 2002 [Electronic resource] // URL: https://legislatie.just.ro/Public/DetaliiDocumentAfis/34759 (accessed 08/25/2024)). This law elaborates in detail the conceptual apparatus: for example, an organization of a fascist, racist or xenophobic nature means groups of three people promoting relevant ideas, concepts and doctrines about hatred, violence on various grounds, as well as in order to change the constitutional foundations of the state, about the superiority of some races and the inferiority of others. Propaganda of the cult of personality of persons found guilty of committing crimes against the peace and security of mankind, public denial or contestation of the Holocaust or its consequences, creation and support of fascist, racist or xenophobic organizations are recognized as crimes.

In 2010, a law was passed in the Republic of Hungary providing for criminal prosecution for Holocaust denial in the form of punishment for up to 3 years in prison ^[5]. At the same time, similar to Czech legislation, in June 2010, crimes of communists were also added: punishment for those who deny genocides committed by the national socialist or communist systems, or deny other facts of crimes against humanity ^[6].

The countries of the Commonwealth of Independent States have somehow provided for norms in their criminal laws prohibiting the revival of Nazism. Thus, the Criminal Code of the Republic of Armenia in the chapter "Crimes against the peace and security of mankind" contains a norm on the prevention of refutation, mitigation, approval or justification of genocide and other crimes if it was committed on the basis of religious affiliation, ethnic or racial origin in order to provoke hatred or discrimination (Criminal Code of the Republic of Armenia [Electronic resource] // URL: https://base.spinform.ru/show_doc.fwx?rgn=144695 (date of appeal – 08/25/2024)). The Criminal Code of the Republic of Kazakhstan in the same chapter establishes the corpus delicti providing for deliberate actions to promote the exclusivity, superiority or inferiority of people on the grounds of race, religion, nationality, committed in public, either by producing or distributing literature promoting discord, or with the use of mass media or telecommunications networks (art. 174) ()The Criminal Code of the Republic of Kazakhstan [Electronic resource] // URL: https://online .zakon.kz/Document/?doc_id=31575252&pos=2661;-57#pos=2661;-57&sdoc_params=text%3D%25D0%25BE%25D0%25BF%25D1%2580%25D0%25B0%25D0%25B2%25D0%25B4%25D0%25B0%25D0%25BD%25D0%25B8%25D0%25B5%26mode%3Dindoc%26topic_id%3D31575252%26spos%3D1%26tSynonym%3D1%26tShort%3D1%26tSuffix%3D1&sdoc_pos=0 (accessed 08/25/2024)).

In the criminal legislation of Uzbekistan, the chapter on crimes against the peace and security of mankind includes norms prohibiting the commission of extremist actions and propaganda of war. Thus, it does not contain norms directly enshrining the prohibition on the revival of national socialist ideology (Criminal Code of the Republic of Uzbekistan [Electronic resource] // URL: https://online .zakon.kz/Document/?doc_id=30421110&pos=1798;7#pos=1798;7&sdoc_params=text%3D%25D0%25B2%25D0%25BE%25D0%25B7%25D0%25B1%25D1%2583%25D0%25B6%25D0%25B4%25D0%25B5%25D0%25BD%25D0%25B8%25D0%25B5%26mode%3Dindoc%26topic_id%3D30421110%26spos%3D1%26tSynonym%3D1%26tShort%3D1%26tSuffix%3D1&sdoc_pos=2 (accessed 08/25/2024)).

Violation of citizens' rights by propaganda of fascism, racism and xenophobia and denial of the Holocaust is criminalized in the Republic of Moldova. According to Articles 176-1 of the Criminal Code, it is criminally punishable to create organizations promoting fascism and xenophobia, join them and support them; deny or challenge the Holocaust; manufacture, sale, distribution, as well as storage for the purpose of spreading fascist, xenophobic, racist symbols, as well as propaganda of fascism and the cult of personality of persons convicted by the international military tribunal. A distinctive feature is that this norm is enshrined in the chapter "Crimes against political, labor and other constitutional rights of citizens" (Criminal Code of the Republic of Moldova [Electronic resource] // URL: https://base.spinform.ru/show_doc.fwx?rgn=3835 (date of application – 08/25/2024)).

Despite the large array of international legal acts that prohibit the revival of Nazism to one degree or another, there is still no single international treaty regulating the prohibition of all aspects of the development of manifestations of Nazi and neo-Nazi ideologies, which, in our opinion, is a gap in international law. Some states – Ukraine and the United States – are directly avoiding the adoption of relevant laws at the international level due to the contradiction of the principle of freedom of speech. A striking example of such activity is the vote of the United States and Ukraine against the adoption of a resolution banning the glorification of Nazism in December 2021. The ECHR, however, in the case of Parsons v. Germany explained that freedom of speech is an expanded, but not unlimited protection of the content of speech or speech of a person, and justifying support for Nazism by freedom of speech is not correct (See: Case of Pastors v. Germany. Application no. 55225/14. Judgement of 3 October 2019. URL: https://hudoc.echr.coe.int/eng#{«itemid»:["001-196148"] (accessed: 08/25/2024)). The criminal laws of certain states of America also do not contain norms prohibiting the revival of Nazism, and the Criminal Code of Ukraine includes a norm prohibiting propaganda of communist and Nazi symbols, but to a greater extent this prohibition is specified in relation to Soviet paraphernalia, including the anthems of the constituent parts of the USSR (See: Criminal Code of Ukraine [Electronic resource] // URL: https://urst.com.ua/ru/uku/st-436-1 (date of application – 08/27/2024)). It seems appropriate to correlate this norm with the Law of Ukraine "On the condemnation of Communist and National Socialist (Nazi) totalitarian regimes in Ukraine and the prohibition of propaganda of their symbols", where propaganda of the regime means the denial of the criminal nature of totalitarian regimes, their justification, manufacture, distribution of appropriate symbols, the establishment of Soviet power both throughout Ukraine and and in some of its regions (The Law of Ukraine of April 9, 2015 "On the condemnation of the Communist and National Socialist (Nazi) regimes in Ukraine and the prohibition of propaganda of their symbols" [Electronic resource] // URL: https://kodeksy.com.ua/ka/ob_osuzhdenii_kommunisticheskogo_i_natsistskogo_rezhimov.htm ?ysclid=lgp3jxcxfo814240229 (date of appeal – 08/27/2024)). Criminal liability, as discussed above, however, is established only for propaganda of the symbols of Nazism, but not for other actions provided for in the definition. The social danger of two ideologies of different philosophical and social nature is identified, which seems to be a political solution.

Thus, based on the conducted research, it can be concluded that in modern foreign criminal legislation there are three main types of regulation of criminal liability for the rehabilitation of Nazism:

a) the norm prohibiting the rehabilitation of Nazism in one form or another is independently enshrined in criminal legislation (Liechtenstein, Armenia);

b) criminal liability is established by separate legislative acts (Belgium, Israel);

c) criminal liability for acts - forms of rehabilitation of Nazism, is provided for in the norms on extremist crimes, crimes against violations of constitutional human rights (Republic of Moldova, Croatia).

As a result of our analysis, we also revealed a tendency that the criminalization of the manifestation of Nazism in foreign countries mainly occurs in the form of consolidation of norms on crimes of denial, justification of the Holocaust, or as one of the factors of inciting social discord.

The role of international law in condemning Nazism, as well as in the post-war world order, is extremely great. As Russian President Vladimir Putin noted, "international relations can be most fully realized precisely through the system of international governance, a system based on the common goals and interests of states, the universal means of ensuring which should be international law. However, in order to accept these peacemaking ideas and bring them to life, humanity had to go through the horrors of two world wars" ^[7].