Hesse Seeks to Criminalize Denial of Israel's Right to Exist
Germany Moves to Criminalize Denial of Israel's Right to Exist Under New Law
Hesse's Minister-President Boris Rhein (CDU) presented a draft bill on Thursday at Frankfurt's Jewish Community Center that would make denying Israel's right to exist a punishable offense. The proposal is set to be introduced in the Bundesrat on May 8āa symbolic date marking the liberation from fascism.
Under the draft, anyone who publicly or in a gathering denies Israel's right to existāor calls for its eliminationāin a manner likely to incite antisemitic violence or arbitrary measures could face up to five years in prison or a fine. The provision would be added as a new paragraph (4) to Section 130 of the German Criminal Code, placing it alongside incitement to hatred and Holocaust denial.
According to the bill's justification, Hesse aims to penalize slogans such as "From the river to the sea, Palestine will be free" or "There is only one state, Palestine 48." It would also criminalize depictions of Israel's flag or the Star of David in a trash can with the demand "keep the world clean," as well as maps of the Middle East that omit Israel entirely.
Currently, denying Israel's right to exist is not a criminal offense. While the slogan "From the River to the Sea..." is prosecuted as a symbol of the terrorist organization Hamas, this remains controversial, as the phrase is used by groups beyond Hamas.
The draft clarifies that ultra-Orthodox Jews who reject Israel on religious grounds would not be prosecuted. Nor would political advocacy for a "one-state solution"āwhere all peoples of the region live peacefully in a single stateābe punishable, as such demands are not deemed likely to provoke antisemitic violence.
A Long Legislative History
In November 2023, the CDU/CSU faction in the Bundestag introduced a similar bill to criminalize denial of Israel's right to exist and calls for its elimination. However, experts raised serious concerns during hearings, arguing that under Article 5 of the Basic Law, freedom of expression can only be restricted by "general laws"āmeaning individual opinions cannot be singled out for prohibition.
The Central Council of Jews in Germany then proposed creating a new offense, "incitement to the destruction of states," to be codified in a new Section 103 of the Criminal Code. This approach would have avoided the legal pitfalls of a special law.
Hesse, however, is sticking to its original planāfocusing solely on protecting Israel's right to exist under criminal lawāwhile attempting to strengthen its constitutional justification. The state cites the Bundesverfassungsgericht's 2008 Wunsiedel ruling, which held that the ban on special laws does not apply to Nazi ideology, as the Basic Law was designed as an antithesis to National Socialism.
Bundestag Holds the Key
The draft now argues that denying Israel's right to exist is akin to Holocaust denial, as it undermines the Jewish people's claim to special protection. From Hesse's perspective, rejecting Israel's existence also amounts to rejecting the Basic Law as a counter-model to Nazi rule.
If the Bundesrat approves the bill by majority vote, it will proceed to the Bundestagāthe only body with the authority to amend the Criminal Code.
