Germany may make it illegal to deny Israel's right to exist

The Bundesrat, the upper chamber of Germany's parliament, is pressing for a statutory ban on slogans that members say deny Israel's right to exist.

During their final session before the summer recess, the representatives approved a bill put forward by the state of Hesse. "We are introducing this bill now deliberately because the time has come to move beyond discussion and take legislative action."

According to the Bundesrat's proposal, "anyone who publicly, or at a public assembly, denies the State of Israel's right to exist or calls for its destruction" would be subject to criminal penalties. However, the offense would be punishable only where the conduct in question is capable of encouraging antisemitic acts of violence or other forms of discriminatory treatment. According to the explanatory memorandum accompanying the bill, the existing provisions of German criminal law — including those addressing incitement to hatred and the use of symbols associated with terrorist organizations — are insufficient.

Antisemitic attacks in Germany rise sharply amid Gaza war

To view this video please enable JavaScript, and consider upgrading to a web browser that supports HTML5 video

Freedom of expression

Hesse's justice minister, Christian Heinz, said that, since October 7, 2023 — the day of the Hamasattacks within Israel — antisemitism had "spilled over" into the wider world and into Germany as well. Antisemitism, he said, occurs "openly on our streets." Referring to the "stumbling stones" that commemorate Jews murdered during the Nazi era on German sidewalks, the politician for the center-right  Christian Democrats (CDU) said: "Masses are once again marching across the brass Stolpersteine that you all know from our streets and cities, openly shouting these slogans and this hatred of Jews."

Heinz said the bill was not desgined to infringe on freedom of expression or prohibit criticism of the Israeli government. Nor, he said, would it preclude debate about a peaceful political solution in the Middle East. All of that, he said, is part and parcel of a free democracy. He described the draft legislation as "very deliberately drafted in narrowly defined terms." The aim, he said, was to address "calls glorifying violence" aimed at Israel's destruction. Germany must not "once again stand by helplessly" while hatred of Jews "is unfolding on our streets."

At the vote in July, a number of federal states entered a statement into the official record calling on the federal government to present a proposal so that the Bundestag could enact a law that is "legally sound and constitutionally compliant." In doing so, they signaled support for Hesse's push for such legislation while stopping short of endorsing every detail of the proposal.

An unusual procedure

The introduction of a Bundesrat bill into the Bundestag following the federal government's formal opinion is fairly common. What is rare is for such a proposal to complete the legislative process and become law. During the current, 21st legislative term of the Bundestag, which began in spring 2025, the Bundesrat has approved 45 draft bills and forwarded them to the federal government — yet not a single one has been enacted into law.

From 2021 through 2025, the Bundesrat initiated 49 draft bills, of which only two ultimately became law. Between 2017 and 2021, meanwhile, the Bundesrat introduced 66 draft bills, seven of which were enacted. Those seven measures represented only a tiny fraction of the 542 legislative proposals that entered into force during that period.

Josef Schuster: 'Jewish life is flourishing' in Germany

To view this video please enable JavaScript, and consider upgrading to a web browser that supports HTML5 video

Calls for legislative action in this area are long-standing. The Central Council of Jews in Germany has been pressing for such a response for some time. Criticism of the Israeli government by the German federal government is "absolutely legitimate," Josef Schuster, president of the Central Council, told DW in mid-June. What is not, he added, is "when Israel's right to exist is called into question or the country is demonized."

Before the Bundesrat session, about 30 law professors argued that the proposal was unconstitutional. Concern about rising antisemitism and antisemitic violence, they acknowledged, is understandable. However, a generally applicable law cannot be used to outlaw a particular opinion.

A legal opinion prepared by the Bundestag's Research Services also at one stage expressed doubts as to whether the proposal was compatible with the German Constitution.

Critics call legislation 'misguided'

In June, Daniel Cohn-Bendit, a Franco-German who served in the the European Parliament for the Greens from 1994 to 2014 and is of Jewish descent, described Hesse's initiative as "fundamentally misguided" in an interview with the German daily, Frankfurter Allgemeine Zeitung (FAZ).

"There are many people who are sharply critical of Israel, including Israelis themselves. Not all of them are antisemites," Cohn-Bendit said. As an example, he cited the philosopher Judith Butler, who supports the anti-Israel BDS boycott movement. In his view, BDS is "stupid" and "an ideologically completely misguided position." "But Butler is not an antisemite, nonetheless," he said.

At its core, the dispute concerns the tension between freedom of expression and antisemitism. Under Germany's Basic Law (Article 5) , freedom of expression may be restricted only by "general laws" — that is, laws that do not target a particular opinion as such. According to the proposal's critics, the draft bill falls foul of this principle. It would criminalize only the denial of Israel's right to exist, whereas denying the right of any other state to exist would remain lawful.

'Lack of empathy towards Israel,' ambassador to Germany says

To view this video please enable JavaScript, and consider upgrading to a web browser that supports HTML5 video

In the run-up to the vote, Heinz pointed to the 2009 "Wunsiedel decision" by the Federal Constitutional Court. In that case, the judges in Karlsruhe upheld as constitutional a provision criminalizing the glorification of National Socialist rule through violence. They based their reasoning on Germany's special historical responsibility.

Hesse said this reasoning could be applied to the current debate: There is a historical and political connection between National Socialist rule, the Holocaust, the founding of Israel, and the denial of Israel's right to exist. Thus, Israel's right to exist forms part of Germany's reason of state. To deny that right, the argument goes, is at the same time to challenge Germany's constitutional identity.

The political debate will continue for months. Because fundamental rights lie at the heart of the dispute, the constitutional judges in Karlsruhe may ultimately be called upon to decide the matter.

This article was originally written in German.