Hesse calls for the denial of Israel's right to exist to be punishable

When pro-Palestine activists gather at the Silesian Gate in Berlin on October 7th, the focus should not be on the Israeli victims of the Hamas massacre of 2023 - but on the attackers.

Protesters are planning a “Total Liberation Demonstration” to celebrate October 7 as a “beacon of fortitude.” Demonstrations are also being called in other cities. Slogans are to be expected in which many see a call for the destruction of Israel - such as “From the River to the Sea, Palestine will be free”. So far, such slogans have not always been punishable as incitement to hatred - but if Hesse has the will, this should change.

“Israel-related anti-Semitism is being expressed and spread more and more openly,” complained Prime Minister Boris Rhein (CDU) on Monday. We can't continue to accept this. It is now being proposed again to criminalize public denial of Israel's right to exist. A corresponding draft law has been available for some time, and in the spring the majority of the other states in the Federal Council supported it. But the federal government has so far hesitated – due to “significant constitutional” concerns.

Because it's a delicate interference with freedom of expression - and the question of how far the state can go to prevent such statements. Hesse wants to tighten the controversial sedition law. It already criminalizes certain statements, for example if they incite hatred against population groups or if they trivialize National Socialist deeds. According to Hesse's wishes, anyone who publicly denies the right to exist of the state of Israel or calls for the elimination of Israel should be punished with a prison sentence of up to five years.

However, the federal government considers this very move to be constitutionally risky. Such a tightening entails “a significant constitutional risk,” according to a statement from August. In addition, cases of denial of Israel's right to exist are already covered by criminal law. Anyone who incites a “crime of aggression” can already be punished today. Anyone who uses Hamas symbols could be prosecuted for using the symbols of unconstitutional and terrorist organizations.

But the courts have so far ruled inconsistently on such slogans. While some saw them as a hallmark of the banned terrorist organization Hamas and condemned such statements, others did not consider them punishable. In 2024, the Mannheim Regional Court decided that the slogan was not punishable in a specific case - also because it was ambiguous and did not necessarily mean the destruction of Israel.

On Monday, Hesse presented a report that considers its own draft law to be constitutional. It says that freedom of expression also protects “deviant statements from minorities that disrupt the majority and possibly disturb them.” However, freedom of expression is already being interfered with today, said Steffen Augsberg, professor of public law at the Justus Liebig University in Giessen, who prepared the report. In certain constellations it is necessary to limit freedom. Such a case exists here.

Israel is not about any country, but about the country that was created in response to the experiences of the Shoah, said Augsberg. Anyone who turns against the right to exist is attacking Germany's darkest past. Incidentally, the legislature is not interested in banning criticism of Israel, but only that which has the potential to increase violence.

The President of the Central Council of Jews in Germany, Josef Schuster, expressly supported the Hessian goal of punishing anti-Semitism more severely, but still expressed skepticism about the specific draft. With the punishment, the legislature would create another speech offense, said Schuster on Monday.

"The hurdles that our constitution sets for this are rightly high. Doubts about its feasibility are permitted," he said and warned that such a change in the law "could be overturned by the Federal Constitutional Court." Schuster said: “That would not help the cause, as agitators could find themselves motivated to then call for the destruction of Israel even more openly and blatantly.”

He thinks the Hessian proposal is extremely good at its core, but it operates in the wrong place. “It seems more sensible to me to regulate the ban on calling for the destruction or elimination of another state with which the Federal Republic of Germany has diplomatic relations in the area of ​​crimes against foreign states,” said Schuster. The federal government is obliged to further develop the Hessian initiative with its own proposal.