By Genghiz Chen, originally posted at the L2 Games page on talk.consimworld.com, 13 December 2003.
I. Issue:
Under German law, is it legal to sell and distribute in Germany wargames containing Nazi symbols such as the swastika or SS runes?
II. Short answer:
No, because it would be a violation against Sec. 86a StGB. Although there is a certain gray area in German law surrounding the question, there is in reality little room for interpretation. An analysis of the existing case law concerning the use and distribution of Nazi symbols in public makes it appear more than likely that a use of Nazy symbols in wargames would be deemed illegal by German courts and government agencies.
III. Analysis:
A. What does the Law say?
The key provision applying to our question is Sec. 86a of the German Criminal Code (in German called Strafgesetzbuch or StGB). The offense penalized by Sec. 86a StGB is officially called “Using symbols of anti-constitutional organisations”. In English the text of the provision translates as follows:
“(1) A jail sentence of up to three years or a fine shall be the punishment for someone, who
1. within Germany distributes symbols of one of the political parties or organisations specified in Sec. 86 Par. 1 numerals 1, 2 and 4 [the latter explicitly refers to former National Socialist organisations], or publicly uses such symbols in a congregation or in scripts (as defined in Sec. 11 Par. 3 [wargames would clearly count as scripts]), or
2. manufactures, holds in stock, imports or exports objects, which represent or contain such symbols, with the purpose of distribution or usage within Germany or abroad in a manner as specified in numeral 1 above.
(2) Symbols within the meaning of Par. 1 are in particular flags, insignias, uniform pieces, slogans or forms of salutes. Symbols closely resembling the symbols named in the preceding sentence shall be treated equally.
Par. 3: Sec. 86 Par 3 and 4 apply mutatis mutandis.”
Sec. 86 StGB (the provision preceding Sec. 86a StGB) prohibits the distribution of propaganda material pertaining to anti-constitutional organisations. The provision would not apply to our question because it requires explicit propaganda directed against the liberal-democratic order, for instance in the form of texts or slogans supporting a neo-Nazi organisation, etc.
However, as quoted above, paragraphs 3 and 4 of the provision apply to Sec. 86a StGB.
Par. 3 provides:
“[The ban as set forth in Par. 1] does not apply if the propaganda material or the conduct serves the purpose of civic education, combatting anti-constitutional tendencies, or serves art or science (i.e. academia), research or education, or the coverage of contemporary or historical events, or similar purposes.”
Par. 4 provides:
“If the level of guilt is low the court may refrain from punishment under this provision.”
B. Purpose of the Law
Sec. 86a StGB is an abstract political offense, systematically located in the Criminal Code under the chapter “Endangering the democratic rule of law”. It is abstract in a sense that no concrete danger to the state or democratic order is required. The ratio of Sec. 86a StGB is that the public display of certain political symbols could create the impression in the public view that certain banned anti-constitutional organisations such as the former Nazi Party (NSDAP) continue to exist legally or are again accepted by the state and the society, thereby indirectly propagating such organisations [cf. Schönke/Schröder, 2001 ed., § 86a, Randziffer 1].
So the idea is to stop proliferation of anti-constitutional tendencies which could endanger the existing democratic state (note that only the German Federal Constitutional Court, not the Government, can officially declare an organisation anti-constitutional within the meaning of the Law, a rare occurrence to this date).
Typical cases of “using symbols of anti-constitutional organisations” as per Sec. 86a StGB are, for instance: visibly wearing an armband showing the Nazi swastika in public; printing flyers intended for distribution which contain Nazi symbols (except in the context of anti-fascist propaganda); showing the Nazi salute in public, etc.
There is no doubt that such conduct is penalized under German law. Sec. 86a StGB was specifically codified to prohibit such conduct.
Note that the purpose of banning Nazi symbols under the provision is not to protect individual persons from feeling offended by the use of the symbol. The offense of insulting someone as covered in Sec. 185 StGB sometimes concurs with the offense described in Sec. 86a StGB, for instance cases involving the Nazi salute or the denial of the Holocaust. Using swastikas and similar symbols in wargames alone would, however, not constitute an offense under Sec. 185 StGB, because it would not count as an expression of contempt against any individual or a group of people as required by the provision.
C. The Case with Wargames
With wargames the case may be different because wargames of the types we are discussing here are usually politically neutral, or at least do not intend to propagate Nazi ideology.
In the (hypothetical) case examined here, selling or distributing certain wargames in Germany would only be illegal under Sec. 86a Par. 1 Num. 2 StGB if
(a) the wargames show or contain symbols of a banned organisation such as the former Nazi Party; and (b) such wargames are manufactured, held in stock, imported or exported with the purpose of distributing or (publicly) using them in or outside of Germany; and (c) the wargames do not serve one of the purposes as specified in Sec. 86 Par. 3 StGB (civic education, research, etc.) or a similar purpose.
1. Banned symbols with possible relevance to wargames
There are many symbols representing the former NSDAP. Practically any form of the swastika falls under this category. It does not matter that the swastika in the national flag of Nazi Germany was officially meant to represent Germany, the state, rather than the Nazi party. I believe this needs no explanation. The same is true for the use of the swastika to depict Wehrmacht uniforms, Luftwaffe planes, etc., because the Wehrmacht adopted the party symbol. OTOH, the Wehrmacht cross (Balkenkreuz) is clearly not a symbol under Sec. 86a StGB.
Other banned symbols are the SS runes and also a single Siegrune (“victory rune”) as used by the Hitler Youth (both are clearly former Nazi organisations). However, a white on black color scheme is completely irrelevant in this respect, because one would normally not associate a white on black counter with the SS or other Nazi organisations.
Note that images of Hitler count as symbols banned under Sec. 86a StGB (so ruled by the German Federal High Court = Bundesgerichtshof or BGH, in a decision of 1965, cf. BGH MDR 1965, 923). Therefore, images of Hitler are not allowed in publications except for the named reasons (see below). For instance, if the image of Hitler is recognizably used as a political caricature, it would be protected as art and the freedom of opinion.
Also certain Nazi slogans (e.g. the motto of the SS) are deemed symbols within the meaning of the provision. They must therefore not be quoted (in the original) in a wargame.
For all symbols described above it is important to note that any symbol closely resembling an original symbol is treated equally. Therefore, it would not help to alter swastikas on counters if a third person could still recognize the symbol as what it means to represent. For instance, a swastika with shortened bars would not be a valid substitute. A dot as a substitute for the swastika in a German national flag of the period would be allowed.
Conclusion: wargame counters showing the national flag of Nazi Germany or SS runes on SS counters are by definition”symbols” within the meaning of Sec. 86a StGB.
2. Manufacturing, importing, etc. (“usage”) for the purpose of public distribution
First of all, any conduct penalized under the provision must take place in Germany (cf. Schönke/Schröder, 2001 ed., § 86a Rz. 9c). Therefore, the act of producing wargames or holding them in stock outside of Germany, even if the games are intended for sale in Germany is not punishable under German law and will not be prosecuted.
Moreover, using, purchasing, or possessing the games themselves is not illegal, no matter how blatant the use of Nazi symbols in the game is, provided, however, that the games are not shown in public (game conventions can be problematic here if they are open to anyone). Therefore, the customers in Germany who buy and play the games are usually not affected by Sec. 86a StGB.
However, importers, distributors and retailers of the games in Germany would have a problem when they import the game, hold it in stock or offer the game for sale in Germany. If this is done commercially (i.e. with the purpose of distributing the game to anyone interested), it would be a violation of Sec. 86a StGB.
It should be noted here that the extent of what is deemed “usage of symbols” under the provision is somewhat controversial. Opinions in the legal literature (e.g. the well-respected Schönke/Schröder StGB commentary) tend to narrow down the scope of the provision to the effect that such usage of Nazi symbols, which “obviously does not contravene the purpose of Sec. 86a StGB”, i.e. which is obviously not intended to propagate Nazism should not be illegal. Examples mentioned are the use of the Nazi salute in an obvious joke or as a form of protest against unlawful police violence.
The BGH (the highest court in Germany for criminal matters) has confirmed this in principle, but applies the concept more restrictively. The court interprets Sec. 86a StGB very broadly. In a decision of the court dating back to 1970 (BGH St 23, 267 = NJW 70, 1693) a defendant was convicted for producing and publicly displaying 16 plastic pigs, each with a swastika of 4.5 cm in length painted on it. The court stated in the decision:
“The purpose of this provision is and always was to protect the peaceful order of political life in the Federal Republic [of Germany] and to prevent possible disturbance of such order. Due to the fact that symbols of the kind specified in Sec. 86a Par. 1 and 2 StGB – in particular Nazi symbols – can easily disturb the political peace, regardless of the intent of the perpetrator, which in any event can be difficult to assess, it corresponds with the general purpose of thelaw that any use of these symbols is prohibited, to the extent that the exceptions listed under Sec. 86a Par. 3 (in connection with Sec. 86 Par. 3) StGB do not apply.”
According to the court, basically any conceivable use of Nazi symbols in public is covered by the provision, even if seemingly harmless.
In a BGH-decision dating back to 1979 (BGH 28, 394 = NJW 79, 1555) a shop owner was convicted (actually an appellate court decision acquitting the defendant was overturned) for selling in his shop plastic model kits of WWII airplanes, some of which displayed the swastika on the box cover and contained corresponding water decals inside. The court confirmed that as an exception it is not illegal to use a symbol which obviously does not contravene the purpose of Sec. 86a StGB. It then stated in the decision:
“Such an exception is not to be seen in the present case. Tolerating the production and distribution of such airplane models and the mass public sale intended thereby would contravene the purpose of Sec. 86a StGB of generally banning the use of such symbols in public. It could be understood by observers of events in the Federal Republic that inner political life is characterized by the tolerance of tendencies associated with the swastika. This is especially true with respect to the possible consequences of such tolerance in the present case.”
Note: Although Germany is a civil law jurisdiction (meaning case law is generally not as binding as it is in the US, for example), in practice, opinions stated in court rulings of the BGH clearly outweigh opinions held in the legal literature.
Conclusion: importing, distributing and selling wargames containing Nazi symbols in Germany with the purpose of commercial distribution is a conduct penalized by Sec. 86a StGB. However, manufacturing such games outside of Germany and playing the games is not.
3. Exceptions under Sec. 86a Par. 3 StGB
As an exception, a use of normally forbidden Nazi symbols in wargames would not constitute an offense if the wargame serves the purpose of
(a) civic education, or (b) combatting anti-constitutional tendencies, or (c) art, or (d) science (i.e. academia), or (e) research or education, or (f) coverage of contemporary or historical events, or (g) similar purposes
In theory, one could argue that wargames fall under one of the above categories or at least have a “similar purpose”. However, it is quite obvious that none of the above exceptions really fit wargames. Even if game companies started equipping their games with critical historical commentaries, therein stressing the evil nature of the Nazi regime, etc., a judge would still see wargames primarily as games, not tools for education, no matter how educational the games are in reality. By contrast, books are treated much more liberally. Wargames (not unlike computer games) are also unlikely to be recognized as an art form, unlike films, for example.
One also has to keep in mind that playing wargames in Germany is almost like breaking a taboo. The Germans (rightly so) are a very self-conscious society when it comes to their country’s Nazi and WWII past. The idea alone of making a game about WWII would be unacceptable to the average German. There is not a lack of interest in the history, though. In fact, there are frequent documentaries about various aspects of WWII and German involvement in it on German public tv. Most are quite good and as a rule very critical of the Nazi past. However, WWII wargames are problematic because they force one of the players to take sides with Nazi Germany, which quite naturally is a sin for any German. With this in mind, an average German judge would surely be opposed to the use of Nazi symbols in wargames, probably without even seriously considering any of the named exceptions. For instance, in the 1979 BGH-decision quoted above, the Court clearly ruled that the “distribution of authentic toys” is not a purpose constituting an exception under Sec. 86 Par. 3 StGB.
As has been mentioned, there are no known cases involving wargames. But considering the above, one must expect that courts even today would handle wargames very conservatively. Therefore, any sort of disclaimer on or inside the game, stating that the game serves the purpose of research of military history, etc. must be deemed useless.
4. Intent
Only an intentional act of using Nazi symbols is punishable under Sec. 86a StGB. That means that the person importing or distributing the game in Germany must positively know of the existence of such symbols in the game. Negligence on the part of the importer/distributor would not suffice for an offense. In practice it would arguably be difficult to convict a distributor of games if it cannot be proven that the distributor had such specific knowledge about the contents of the game. The box art may have significance in this regard.
D. Conclusion
Publishing wargames that contain Nazi symbols such as the swastika in Germany is clearly prohibited under German law. German importers and distributors of such games face the risk of prosecution under Sec. 86a StGB. Also note that according to Sec. 74d StGB, scripts (including wargames) which have a content, the intentional distribution of which would constitute an offense under the criminal code are to be confiscated by the authorities. Ownership of such objects would be lost to the German state without any right to compensation.
DISCLAIMER: The above memo is for information purposes only. It does not constitute legal advice and shall not be considered as such by anyone.