Coinciding with the third anniversary of the Hamas terrorist attack on Israel, voices calling for a ban on denying Israel's right to exist are becoming louder in Germany.
On Monday, the government of the German state of Hesse announced that “Whoever denies Israel’s right to exist puts Jewish life in danger, and whoever attacks Jewish life attacks our free system.” The state government spoke about the existence of a loophole in the German penal code that must be filled.
Slogans denying Israel's right to exist often appear, for example graffiti, in Berlin, and similar chants are heard at demonstrations in solidarity with Palestinian civilians. There are also slogans related to the rejection of the State of Israel and the call for its elimination.
The intensity of the debate has also increased due to statements in recent days from some Left Party politicians. So far, there are no criminal consequences in such cases.
Demand from the German Staten Council to impose a legal ban
At the beginning of July, the German Federal Council of States (Bundesrat), which is the second legislative body in the German parliamentary system, approved a draft law submitted by the state of Hesse to impose a legal ban on denying Israel's right to exist.
The law aims to include “denying Israel’s right to exist” among the crimes of incitement. The law punishes anyone who publicly - or in a public gathering - denies Israel's right to exist or calls for its elimination if his statement "promotes a willingness to engage in anti-Semitic violence or arbitrary acts" with imprisonment for up to five years or a fine.
But since the spring, experts have clearly criticized Hesse's request. Early on, about 30 male and female law professors expressed their opinions on the draft law and considered it to be in violation of the constitution. In their view, concern about increasing anti-Semitism and anti-Semitic violence is understandable, but a specific opinion cannot be prohibited by general law.
Meanwhile, a report issued by the research service of the German Parliament (Bundestag) also raised doubts about the constitutionality of the draft law. In mid-June, Daniel Cohn-Bendit - a Jew and German-French politician from the Green Party who was a member of the European Parliament from 1994 to 2014 - spoke about this issue. In an interview with the Frankfurter Allgemeine Zeitung newspaper, he described the Hesse state government's demand and the draft law as "completely wrong."
Federal government reservations
At the end of August, the Federal Government expressed its opinion - as scheduled in parliamentary procedures on draft laws submitted by the Federal Council of States.
The government expressed its criticism of this law, which was planned to be passed, and spoke of the existence of a "major constitutional danger." The government emphasized that it must - upon further examination - take into account that cases of denying Israel's right to exist and calling for its elimination are included in the applicable laws.
In addition, two prominent German jurists, Christoph Müllers and Christian Neumayer, recently expressed doubts about the possibility of taking criminal proceedings against the denial of Israel's right to exist in a magazine article. They stated that this is essentially related to the high status of freedom of expression.
At a federal press conference, the Minister of Justice of the state of Hesse, Christian Heinz (from the Christian Democratic Party), stressed that there was a “very clear” need for regulatory legislation. Heinz said that judicial rulings in Germany are “ununiform at best,” noting that judicial evaluations of the slogan “From the River to the Sea” differ. Also, some courts considered, for example, displaying the “Star of David” in a garbage container legally permissible.
But for Heintz, it is primarily about giving the authorities responsible for organizing gatherings a means to ban similar gatherings or impose necessary conditions and restrictions on them.
He pointed to the sharp rise in the number of anti-Semitic crimes since October 7, 2023, and the subsequent feeling of insecurity among Jews in Germany.
“The State’s Commitment to Protect the Jews”
On this subject, law professor Stephen Augsburg from the University of Giessen prepared a report for the Hesse state government and presented it now. He expressed his conviction that the law that the state of Hesse seeks to pass “is consistent with the constitution.”
He added that the constitution stipulates "the German state's obligation to protect" Jews. Augsburg stressed that freedom of expression in Germany is "not absolute" even today.
Augsburg referred to an unusual ruling issued by Germany's highest court in 2009, known as the "Wunsiedel decision" issued by the Federal Constitutional Court. At that time, the judges of the court in the city of Karlsruhe recognized the constitutionality of a legal rule criminalizing the glorification of Nazi rule. This decision was justified by Germany's special historical responsibility. Augsburg said this is similar to the issue at hand now.
Sitting on the podium was the head of the Central Council of Jews in Germany, Joseph Schuster, alongside Heinz and Augsburg. Schuster thanked the Hesse state government and expressed his agreement, in principle, with its request to ban the denial of Israel's right to exist and criminalize it.
But he expressed his fear that the state of Hesse was "working in the wrong place" with its draft law. Schuster called for this law to be included among the articles related to “crimes committed against foreign countries” (in Articles 102-104 of the Criminal Code), and not within Article 130, which punishes incitement to hatred.
Schuster stressed that the terrorist events of October 7, 2023 constituted a turning point for the Jewish community, not only in Germany. This massacre, committed by the Islamist Hamas movement and other extremist groups in Israel, resulted in the killing of about 1,200 people and the injury of thousands. Also, about 250 people were kidnapped as hostages to the Gaza Strip. This was followed by the Gaza War, which has so far led to the killing of tens of thousands of Palestinians and the injury of large numbers of others as a result of Israeli attacks.
"Anti-Zionism: Ancient Jew Hatred"
Regarding this, Schuster said: “There is no return for us to normal life.” He added that what is known as "anti-Zionism" in most cases represents "nothing other than ancient hatred of Jews." He pointed out that behind these slogans lies a "call to destroy the Jewish State of Israel."
A few minutes after the press conference in the state of Hesse, Eike Hausmann, spokesman for the Federal Ministry of Justice, made it clear that the federal government was skeptical about restricting freedom of expression.
Within the framework of the regular government press conference, he explained the federal government’s concerns about trying to criminalize and punish the expression of opinions. He emphasized that "something like this is not possible under the Basic Law."
Hausmann also took issue with comparing this law to the 2009 “Wunsiedel decision,” which remains “a very special exception.” He said the government sees the draft law as “major constitutional risks” and considers the Hesse state initiative “risky.”
Accordingly, it is clear that the political debate will continue, as the Hesse state initiative supported by the Federal Council of States faces reservations from the federal government. In the next step, the draft law will be included on the agenda of the Federal Parliament. It will certainly spark controversy there as well. It is possible that one day this dispute over the question of fundamental rights will be brought before the judges of the Constitutional Court in Karlsruhe.
Prepared by: Raed Al-Bash
