German government wary of criminalizing Israel denial, citing constitutional risks

The German federal government has voiced skepticism regarding a proposal to explicitly criminalize the denial of Israel's right to exist. In a statement approved by the cabinet, the government indicated it would review the draft legislation but believes the proposed amendment to the criminal code carries "significant constitutional risks."

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significant constitutional risks

The proposal, initiated by the state of Hesse and passed by the Bundesrat (Federal Council) in July, seeks to impose a prison sentence of up to five years or a fine on individuals who publicly or in assemblies deny Israel's right to exist or call for its elimination. However, the law would only apply if such actions are deemed likely to "promote readiness for antisemitic acts of violence or arbitrary measures."

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The protection of the state of Israel's right to exist is of fundamental importance for the realization of this responsibility.

Despite its reservations, the federal government affirmed its full agreement with the underlying sentiment of the proposal. It stressed Germany's "special responsibility" in combating antisemitism and protecting Jewish life, stating that safeguarding Israel's right to exist is "of fundamental importance" in fulfilling this duty. The government also noted that calls for Israel's elimination may already be punishable under existing laws, depending on the specific circumstances, citing potential charges like public incitement to commit crimes, incitement to hatred, or condoning criminal acts.

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The proposal is balanced and constitutional.

Hesse's Justice Minister Christian Heinz (CDU) has pushed back against the government's concerns, calling the proposal "balanced and constitutional." He urged the federal government to take the states' will seriously, arguing that supporting Israel's security as a homeland for Jewish people is part of Germany's "Staatsräson" (reason of state) due to historical responsibility. This concept, previously articulated by former Chancellor Angela Merkel, has faced criticism from some legal scholars for its legal ambiguity.

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The commitment to the security of the state of Israel as a safe haven for Jews is part of German Staatsräson due to historical responsibility.