The draft law, which aims to make it a criminal offense to deny Israel's right to exist, is moving into the next round. Hesse presents a hypocritical report that is intended to justify the planned repression. – A comment from Fynn Weber.

In theJulyThe Federal Council decided on one introduced by the Hessian state governmentDraft law: Denial of Israel's right to exist should become a criminal offense.

The draft is the second attempt at such a regulation. A similar draft law from the CDU from 2023, which also intended to criminalize the denial of Israel's right to exist, was not pursued further by the federal government. Hesse seems to be sure that it will work on the second attempt.

The direct reaction from politicians, lawyers and many well-known Jewish personalities was similar. It was repeatedly questioned whether the draft was compatible with the Basic Law, as it significantly restricts freedom of expression.

“Freedom of expression” and raison d’etre: New law aims to make criticism of Israel’s “right to exist” punishable

The report is intended to legitimize the draft law

To counteract this, Hesse's government is now presenting a self-commissioned oneconstitutional opinion, which she commissioned herself to prove constitutional conformity. It was written by Dr. Steffen Augsberg, law professor at the University of Giessen.

The professor has a big task to deal with with his report, because freedom of expression is anchored in the constitution and can only be restricted to a limited extent. Above all, only a “general law” may restrict the right to freedom of expression. This means that, for example, insults or incitement to hatred may be banned in general, but specific opinions such as whether the state of Israel should exist are generally not.

Augsberg's argument is based on thisthree pillars. On the one hand, he refers to the Wunsiedel decision of the Federal Constitutional Court, which confirmed an exception for special provisions in anti-Nazi laws. In this sense, a denial of Israel's right to exist could also be made punishable, since the state of Israel is a direct result of the Holocaust. According to Augsberg, a denial of Israel's right to exist would be close to a denial of the Holocaust and would therefore contradict the Basic Law as a counter-proposal to Nazi rule.

His other justifications are similarly far-fetched. He refers to the protection of general “legal interests” such as life and limb, as well as “conflicts of constitutional law” – i.e. the protection of people who are threatened by anti-Semitic violence. Both justifications are based on the same argument: denying Israel's right to exist promotes violence against Jews and because the constitution is obliged to protect this, a ban is possible.

Not only is this derivation fundamentally unproven, Dr. Christian Rath points outLegal Tribune Onlinealso points out another problem with this justification: "Both approaches have the disadvantage that not much would remain of the previously assumed meaning of the term 'general law'. Ultimately, freedom of expression could then be interfered with for almost any purpose. A general legal interest or a conflicting constitutional value can ultimately be found almost always."

The Central Council of Jews wants to go one step further

The report is ultimately just an individual opinion. If the law is actually passed, the Federal Constitutional Court would ultimately have to decide whether it is compatible with the constitution. However, there are still major doubts about this.

This doubt also seemsJoseph Schuster, the Central Council President of the Central Council of Jews. Although he welcomed Hesse's initiative on Monday, he sees major risks in the draft law. If the Federal Constitutional Court considers this to be a violation of the Basic Law, it would, in its opinion, lead to even more incitement against Israel and Jews.

The Central Council of Jews, on the other hand, is calling for a much more drastic measure. Instead of just protecting Israel's right to exist, this should simply apply to all states with which Germany has diplomatic relations. When asked, he even explained that this should also apply to Palestine.

What Schuster is proposing here is, in a sense, a ban on denying Israel's right to exist through the back door. Since such a law could be formulated as a “general law,” it would probably be easier to get past the Federal Constitutional Court.

No freedom of expression: Federal Council wants to cast reasons of state into law

Reasons of state should become law

The Prime Minister of HesseBoris Rhinesaid when he introduced the bill in April: “The protection of Jewish life is more than just a creed, it is German reasons of state.” At aFederal press conferenceOn Monday, Justice Minister Heinz supported this statement and spoke of giving the reason of state a “necessary legal outline”.

This exact sentence actually describes the CDU's plan. The German reason of state should be raised to a new level. Instead of just being a political guideline for the federal government, it should gradually become involved in criminal law and become a benchmark for German jurisprudence.

The state should not only be a military, diplomatic and economic ally of Israel. In the future, he should also increasingly ensure that his own population does not speak out against Israel's actions. Thanks to the draft law, anyone who does not comply can face new and more severe reprisals.

Anti-Semitism as a cover

The CDU publicly justifies its actions and the draft law again and again by saying that it is trying to combat rising anti-Semitism in the country. In recent years, the term anti-Semitism has been thrown around again and again in various contexts and its meaning has been greatly diluted. For this very reason it is important to distinguish between hatred of Jews and criticism of Israel.

The draft law, on the other hand, proposes to supplement the section on incitement to hatred (Section 130 of the Criminal Code). Anyone who publicly denies Israel's right to exist or calls for its elimination should be punished with a fine or up to five years in prison.

This would, for the first time, equate the protection of a state with the protection of a people and thus relativize the concept of anti-Semitism and the actual hatred of Jews. The planned law is not about protecting Jewish life. It's about criminalizing political statements.

Ban on Palestine e. V. in Hesse: The state continues to fight against Palestine solidarity

What is legitimate criticism and what constitutes a criminal offense?

If the Hessian draft law is well received in the Bundestag, the question will have to be asked again and again as to when someone expresses legitimate criticism and at what point the statements meet the requirements of the new Section 130 of the Criminal Code. The CDU repeatedly argues that criticism of the Israeli government should remain permitted. At the same time, the law should enable the state to drag people to court for their position.

Criticism of Israel is not an attack on the people who live there. Rejection of Zionism is not anti-Semitism. The demand for a common state for Israelis and Palestinians with equal rights for all people who live there has nothing to do with hatred of Jews.

But it is precisely these differences that become blurred when any criticism of the Israeli state can be criminalized. When people are forced to think twice before expressing their opinions for fear of persecution and repression.

ThePrime Ministersaid himself: “Freedom of expression is a valuable asset.” At the same time, the CDU is trying to restrict this. Freedom of expression does not only protect opinions that are pleasant to the CDU or the federal government. It protects all subjective opinions and questioning Israel is one of them.

Further repression against Palestine solidarity

Since the beginning of the genocide in Gaza almost three years ago, we in Germany have experienced increasing repression against Palestine solidarity. Demonstrations are repeatedly banned or beaten up by police officers. Activists are persecuted because of slogans and demonstrators are defamed as anti-Semites.

The new criminal offense would provide the state's repressive apparatus with another tool with which to take action against activists. Slogans, speeches, signs - these things could always be tested in court because they could constitute a denial of Israel's right to exist.

This would make it easy for the German state: political opponents who do not want to submit to the reasons of state can easily be criminalized. Police violence, arbitrary law enforcement and bans on demonstrations and actions can be more easily justified and easily implemented.

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Ongoing Gaza genocide and occupation in the West Bank

This is all happening as the genocide continues in Gaza. While politicians in Germany are discussing how far freedom of expression can be restricted in order to support a geopolitical ally, the same one is destroying hospitals, schools and homes in Gaza.

Israel has killed tens of thousands of people and displaced even larger parts of the population and is permanently blocking humanitarian aid in the Gaza Strip. While Israel is constantly committing crimes under international law and destroying the livelihoods of Palestinians, German politicians have nothing better to do than discuss which slogans are still allowed and which “go too far”.

Israel's violence does not stop in the West Bank either. Netanyahu's government has massively supported settlement construction in the West Bank in recent years and, for example, has passed laws that are intended to make it easier to establish Israeli settlements and annex the West Bank. The increasing presence of Israeli settlers is accompanied by more and more attacks on Palestinians and the destruction of their homes and villages. A large part of the population has already been displaced by settlers and the Israeli military.

Destruction, expulsion, genocide: Israel's settlement and expansion policy continues to progress

At the same time, the Israeli government is pursuing its dream of a Greater Israel and is further expanding its own territory in preparation for this. In recent years, more and more areas in the West Bank and recently also in southern Lebanon have been illegally occupied and are now under the control of the Israeli military.

Israel is pursuing its own policies more and more openly. At the same time, Germany is working to further limit political criticism of precisely this approach. This is no coincidence - this is German reasons of state.

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