There is an interesting debate going on within legal circles in Germany as to whether the slogan, “From the river to the sea”, regularly used during anti-Israel protests, should be declared illegal on the grounds that it advocates the destruction of the Jewish state of Israel. Two district courts in Bavaria have ruled in two separate cases that it should be punishable under law, the same as pro-Nazi expressions are illegal in Germany.
The below
article by Frederik Schindler in
WELT is translated by Fousesquawk. I will be writing about this question in more detail in the very near future.
Israel-hate
“The Hamas slogan is treated no differently under criminal law than the Hitler salute, for example”.
By Frederik Schindler
Political editor
Posted 13:27 (November 29, 2024)
The first two court decisions that classify the slogan, “From the river to the sea,” as a symbol of the Hamas terrorists are legally binding. The judiciary in Bavaria declares that their “clear position” on this issue” is having an effect. The criminal liability of the slogan is controversial.
It is the most well-known slogan that has been used for decades by anti-Israel activists. “From the river to the sea, Palestine will be free“. In this slogan, there is no more room for the state of Israel, which, in addition to the West Bank and the Gaza Strip, extends over 78% of the territory between Jordan and the Mediterranean. Now the first two court decisions have become legally in force, in which the use of the slogan is punishable.
This regards two criminal rulings from district courts in Sonthofen and Fuerstenfeldbruck. Both are available to Welt am Sonntag. It regards postings on the X platform from November of last year. A few weeks after the terror attacks by Hamas on Israel, an (X) user used this slogan on November 3. Ten days later, another posted: “No, never recognition of a genocidal state like Israel. From the river to the sea, no Israel territory!”
The State Prosecutor’s offices in Kempten and Munich see this as the use of symbols of anti-Constitution and terrorist organizations, punishable under Paragraph 86a of the Criminal Code-and applied to the district court to issue an order of punishment (sentence). In the first case, it was 4,200 euros to be paid- 60 euros a day for 70 days. In the second case, it was 5,400 euros, equivalent to 60 euros a day for 90 days. Since no objection was filed, these became legally binding in mid-July and the beginning of October. Otherwise, the penalty order would have been in an indictment in a principal court hearing.
“They knew, or at least accepted that it was the expression of a slogan of Hamas,” the District Court of Sonthofen found in its decision in the penalty order. In Fuerstenfeldbruck, the document reads: “The expression symbolizes in a catchy (phrase) the proclaimed goal in the Hamas Charter that Israel should be fully incorporated into a Palestinian state. This goal assumes the logical destruction of the state of Israel.”
The Commissioner for Anti-Semitism in the Bavarian judiciary, senior public prosecutor Andreas Franck, assesses the (sentences) positively: ”Our clear position on this issue is showing an effect. There have hardly been any cases in public space in Bavaria where the Hamas slogan has been reported.”
Criminal penalty for the slogan is controversial
On November 2, 2023, the Federal Interior Ministry banned Hamas. A portion of the decree is the ban on using their symbols publicly. The slogan, “From the river to the sea” is also named. Since 2017, it stands in the charter of the Islamist terror organization, where it states: “Hamas rejects any alternative to the complete and unrestricted liberation of Palestine from the river to the sea.” However, it was already used by the Palestine Liberation Organization (PLO) in the 1960s, so it is clearly older than the 1987-founded Hamas. On the contrary, the 1977 election platform of the current Premier, Benjamin Netanyahu, states: “Between the (Mediterranean) sea and the Jordan (river), there will only be Israeli sovereignty.”
The criminal liability of the slogan is controversial. Some activists point out its ambiguity and stress that they are demanding not the eradication of Israel or Jewish life, rather the “liberation of Palestine from Israeli occupation”- or a secular and democratic state, in which Jews and Palestinians could live equally. Other courts have interpreted the expression as covered under freedom of expression.
In March of this year, the Hessian Administrative Court threw out the demonstration requirements of the city of Frankfurt, with which it wanted to ban the slogan. The court stated that criminal liability was “extremely doubtful”. The main principle says nothing about how the goal of “a free Palestine, including the territory of Israel,” should be reached- for example, either through armed struggle or treaties under international law. There are no visible concrete indications that the use (of the slogan) must be understood as a mandatory call to violence and terror. The Bavarian Administrative Court decided in June that the city of Munich could not ban the slogan from demonstrations across the board if there was no “recognizable reference to Hamas”.
The Federal Administrative Court has not yet dealt with it. In addition, there is not yet a Supreme Court decision in existence in criminal law. In November of this year, for the first time, a state court classified the slogan as a terrorist organization symbol. A Berlin superior court based this on case law of the Federal Court of Justice (BGH) in which it is stated that a symbol does not have to be used exclusively by a terrorist organization and when it is founded to be counted as such a symbol. It is sufficient that Hamas, “through its constant use of the slogan, makes it its own”. Since an appeal against the verdict has been filed the BGH must now handle it.
In its case law, the Federal Court of Justice consistently describes freedom of expression as “absolutely established in free and democratic order”. It is a violation against the fundamental right of freedom of expression, it stated in an earlier decision in 1995, if a court, in the case of ambiguous statements, “relies on the meaning that leads to conviction without first having excluded the other possible meanings with conclusive reasons.”
Constitutional law professor Anna-Katharina Mangold, who teaches at the University of Flensburg, says, “The possible interpretation of the slogan as a mere demand for democracy and equality must be accepted as a legal basis, when in a specific case, it is not completely implausible”. It is “really regrettable that the Bavarian district courts did not consider the Karlsruhe* case law.”
* Karlsruhe is the seat of the Federal Supreme Court in Germany (translator).
Justice Anti-Semitism Commissioner Franck is of a different opinion. The leeway for the slogan,”From the river to the sea”, in light of freedom of expression, is significantly narrowing. “The Hamas slogan is treated no differently under criminal law than the Hitler salute, for example. It takes very special circumstances, for one or the other, to go unpunished,”
Political Editor Frederik Schindler reports for WELT on the AfD (Alternatif fuer Deutschland party), Islamism, anti-Semitism, and Justice themes. His column “Counter Speech” appears biweekly.
Source:
http://garyfouse.blogspot.com/2024/11/germany-bavarian-courts-rule-on-from.html
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