Germany Wrestles "From the River to the Sea"

 This article first appeared in Times of Israel Blogs.

Federal Court of Justice, Karlsruhe, Germany

There is an interesting legal contest going on in Germany as the country tries to deal with the explosion in anti-Semitism brought upon mostly by its immigrant population.

Two Bavarian courts have ruled that the phrase, “From the river to the sea, Palestine will be free,” is a symbol of Hamas, designated in Germany as a terrorist state, is a call for violence against Jews in Israel, and should be illegal and subject to criminal penalties. The case appears headed for the German Supreme Court to be settled since other courts in the country have taken a different view. While the two Bavarian courts consider the phrase a clear call to genocide and the destruction of the Jewish state, others feel it is ambiguous and/or covered under the country’s freedom of expression laws.

Germany has made great efforts, at least in the past several decades, to atone for its crimes under the Nazis, most of all, the Holocaust, for which total atonement is impossible. While the country is a democracy, Germany does not enjoy the same freedom of expression as we do in the US. Hate speech, or what the authorities judge as hate speech, can land you in court. In addition, Germany has a federal intelligence agency within the Ministry of Interior called the “Federal Office for the Protection of the Constitution”(Bundesverfassungsschutz) which investigates those who would try to undermine the country’s democracy, which would include extremist groups on the right or left, as well as Islamic extremists. In addition, the country is very sensitive to anti-Semitic speech, for obvious reasons, and speech against Muslims, largely due to its restive Muslim population.

That presents an interesting quandary since the country’s Muslim population numbers have exploded since then-Chancellor Angela Merkel opened the floodgates to refugees from the Middle East in 2015 due to the Syrian civil war, refugees consisting largely of young, unaccompanied men who brought with them a religiously-instilled hated of Jews. The latest fighting between Israel and Hamas and Hezbollah has made that situation infinitely worse. This has obviously undermined Germany’s efforts to erase anti-Semitism. Attacks upon Jews in Germany, mostly at the hands of Muslim immigrants, migrants, and asylum-seekers have brought back images reminiscent of the 1930s and 1940s.

So the question begs: What do the German courts do about the Palestinian ditty that advocates the destruction of all of Israel? From an American point of view, while I certainly consider the phrase to advocate the destruction of Israel and to be part and parcel of Hamas, I doubt it would be outlawed in the US because our laws regarding speech and expression allow for far worse things to be said than Germany would allow. Hate speech in the US is also considered protected speech unless it directly incites a violent attack. It can also be considered as evidence of a hate crime, for example, if an attacker uses hate speech during an attack against a member of another ethnic group. That might result in an enhanced charge for a “hate crime”, which makes the offense more serious. Use of offensive speech in itself is generally considered protected speech.

As to “From the river to the sea,” I have heard this phrase used constantly over the years in the US. Now it is being seriously challenged as a call for genocide. Whether that would ever lead to its criminalization in the US, I have serious doubts. That doesn’t mean that it should not be called out for what it is by Israelis and supporters of Israel. In essence, it is a call for a “Judenrein Palestine” in what is today Israel. The international Palestinian movement has been very effective over the years in swaying public support against Israel in the West. The good side needs to use every argument to win the public relations war in places like American universities.

As for Germany, however, ultimately, their courts decide to do with, “From the river to the sea”, I’m glad the subject is up for discussion, both in the courts and the public. If their highest court decides to ban it, far be it from me to tell them how to run their country. Even if the courts won’t condemn it criminally, we can still-and must-condemn it morally.