Germany: Denying Israel's right to exist soon to be punishable?

Slogans challenging Israel's right to exist can, for example, be seen again as graffiti in Berlin, and corresponding cries can be heard at demonstrations of solidarity with the Palestinian civilian population. It is about rejecting the state of Israel, about its destruction. Until now, such situations have generally not had any criminal consequences. Now the Bundesrat, the second house of the German parliamentary system, is insisting on a legal ban.

Representatives of 16 German states adopted a bill submitted by Hesse in their last session before the summer break. "We are now submitting this bill with full awareness, because we finally have to move from words to legislative action," said Hesse's Justice Minister Christian Heinz before the vote.

"Whoever publicly denies Israel's right to exist..."

According to the Bundesrat proposal, “anyone who publicly or in a gathering denies the right of the State of Israel to exist or calls for its abolition” should be punished. However, this should only be punishable if it is done in a way that incites readiness for anti-Semitic violence or arbitrary measures. The existing criminal provisions of German law, which, for example, relate to inciting hatred against sections of the population or the use of symbols of terrorist organizations, are not sufficient, according to the explanatory memorandum to the bill.

Hessian Justice Minister Heinz said that since October 7, 2023, since Hamas's "barbaric attack" on Jewish men and women, this hatred has "spilled over" the entire world, including Germany. Anti-Semitism is "publicly manifested on our streets." The Christian Democratic Union (CDU) politician continued: "Across the golden stumbling blocks (the cubes built into the street are reminiscent of Jews killed during National Socialism, ed.), which you all know from our streets and cities, today the masses are marching again, openly shouting these slogans and this hatred of Jews."

Heinz said that the bill is not explicitly directed against freedom of expression or criticism of the Israeli government. It also does not prevent discussions about a peaceful political solution in the Middle East. All of this belongs to a libertarian democracy. He described the bill as “very deliberately formulated in a very narrow way.” It is about “calls that glorify violence” and incite the destruction of Israel. The rule of law must remain able to act. The country must not “again stand by helplessly” when hatred of Jews “is manifested on our streets.”

In the House of States, Minister Heinz was the only one to speak out on this agenda item. When Hesse presented its initiative for consideration in May, the then Minister of the Interior of the Baden-Württemberg state government, Thomas Strobl (CDU), also took the floor and supported the intention. He then explicitly mentioned the slogan "From the river to the sea".

Now, during the vote in July, several German states have made a statement for the record that the German government should propose a solution so that the Bundestag, as the legislator, can adopt a law that is "legally reliable and in accordance with the constitution." This ultimately supports Hesse's insistence on enacting regulations, but without taking over its details.

Laws from the Bundesrat

It happens from time to time that a draft regulation from the Bundesrat, after the German government has given its opinion, is sent to the Bundestag. It is extremely rare, however, that such a proposal is actually implemented to the end. In the current, 21st convocation of the Bundestag, which runs from spring 2025, the Bundesrat has adopted 45 draft laws and forwarded them to the government – ​​none of these proposals have become law so far.

In the 20th legislature (2021–2025), the House of States introduced 49 bills, two of which were adopted. Between 2017 and 2021, 66 bills originated in the Bundesrat, seven of which became law. By comparison, these seven represent only a very small fraction of the 542 bills that entered into force during that period.

Calls for legal regulation of this issue are heard from time to time. The Central Council of Jews has been insisting on taking measures for some time. The federal government's decisions to criticize the Israeli government "are absolutely legitimate," said the president of the Central Council of Jews, Josef Schuster, in an interview with Deutsche Welle in mid-June. But it is no longer legitimate "when Israel's right to exist is called into question or when the country is demonized."

Even before the Bundesrat session, around 30 law professors – which is quite unusual – spoke out, calling the move unconstitutional. According to them, concerns about the rise of anti-Semitism and anti-Semitic violence are understandable, but a certain opinion cannot be banned by general law.

In the meantime, an expert opinion from the Bundestag's Scientific Service has raised doubts about whether this initiative is in accordance with the constitution.

Cohn-Bendit says no

In mid-June, Daniel Cohn-Bendit, himself Jewish and a German-French Green politician who was a member of the European Parliament from 1994 to 2014, spoke out in an interview with FAZ about the Hessian state government's intention and described the bill as "fundamentally wrong."

"Many people criticize Israel harshly, including Israelis themselves. Not all of them are anti-Semitic," Cohn-Bendit said. He pointed to philosopher Judith Butler, who supports the anti-Israel boycott movement BDS. In his opinion, Cohn-Bendit said, BDS is "stupid" and represents "ideologically completely wrong. But Butler is not an anti-Semite."

In essence, it is a dispute between freedom of thought and anti-Semitism. According to the Basic Law (Article 5), freedom of thought can only be restricted by “general laws”, which are therefore not directed against a specific opinion as such. According to critics, however, this would now be the case. The proposal only punishes the denial of Israel’s right to exist. Anyone who challenges the right of other states to exist would go unpunished.

Ahead of the vote, Justice Minister Heinz pointed to an unusual ruling by Germany's highest court in 2009, the so-called "Wunsiedel ruling." The Bavarian town had been the scene of far-right marches glorifying Rudolf Hess for years. At that time, judges in Karlsruhe declared a provision punishing the glorification of the National Socialist regime constitutional. The reasoning was that Germany had a special historical responsibility.

German state budget

This argument, Hessen now believes, can also be applied to the current debate: there is a historical-political connection between the National Socialist regime, the Holocaust, the founding of Israel and the denial of its right to exist. Israel's right to exist is a German state rationale. Anyone who denies this right to exist is simultaneously opposing Germany's constitutional identity.

It is now clear that the political debate will last for months. It is possible that the dispute, over the question of whether such a law would infringe on fundamental rights and freedoms, will at some point find its way before the constitutional judges in Karlsruhe.