Plans of the Hessian state government: Israel's right to exist may be protected

“The constitutional concerns have been eliminated,” explained Hesse’s Justice Minister Christian Heinz (CDU). The law professor he commissioned, Steffen Augsberg, presented a report this Monday according to which it is compatible with the Basic Law to protect Israel's right to exist in Germany under criminal law. However, Josef Schuster, President of the Central Council of Jews in Germany, is not convinced by the idea, as he emphasized on Monday.

Hesse's state government wants denial of Israel's right to exist to soon be punishable as "incitement to hatred". Slogans like “From the River to the Sea, Palestine will be free” could then be punished with a fine or prison for up to five years – if they encourage the willingness to engage in anti-Semitic violence in Germany. However, State Justice Minister Heinz is less concerned with punishing individuals; he sees the criminal paragraph primarily as an instrument with which anti-Semitic demonstrations can be banned.

In July, a surprising 14 out of 16 federal states voted in favor of the Hessian bill in the Bundesrat. However, the federal government is currently still skeptical. She sees a “significant constitutional risk”. That's why Heinz commissioned the report.

The Basic Law does allow interference with freedom of expression, but only through a “general law”. This means that insults and incitement to hatred may generally be punished, but individual opinions such as “Israel should no longer exist” may not actually be banned.

Law professor Augsberg nevertheless believes that a law to protect Israel's right to exist is constitutional. In his report he made three suggestions for the justification. Firstly, according to the Federal Constitutional Court, there is an exception for anti-Nazi laws, which also applies to the protection of Israel, since the State of Israel was a consequence of the Shoah. This is what the state of Hesse argues in its draft law, and Augsberg considers this to be justifiable.

However, the professor tended towards two other arguments: the protection of general “legal interests” such as life and limb makes a law a “general law”. “Conflicting constitutional law”, such as the protection of people who are threatened by anti-Semitic violence, could also justify the actually inadmissible special law. Ultimately, according to Augsberg, the Federal Constitutional Court must decide whether and how the Israel Protection Act is compatible with the Basic Law.

Central Council President Josef Schuster is not convinced. He said on Monday: “If the Federal Constitutional Court overturns the law, the agitators will agitate even more blatantly.” He welcomes the Hessian initiative because he shares the diagnosis of increasing anti-Israeli anti-Semitism. However, Schuster suggests a different solution: not only the existence of Israel should be protected, but the existence of all states. When asked, Schuster said that the existence of Palestine should not be denied with impunity.

Currently, the formula “From the River to the Sea…” is only punishable as a symbol of the terrorist organization Hamas. However, some courts acquit defendants because the slogan is older than Hamas. The Federal Court of Justice and the Federal Constitutional Court have not yet decided.