Germany’s historical struggle and the legal debate on Israel’s right to exist
· EUobserverFor the German government, protecting Israel isn’t just a policy. It’s part of their Staatsräson (state reason) due to the Holocaust (Source: German foreign ministry Twitter account)
Germany’s historical struggle and the legal debate on Israel’s right to exist
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By Elena Sánchez Nicolás,
Brussels
,
Denying Israel’s right to exist, be it through a chorus or slogans often heard in demonstrations across Europe following the war in Gaza, could soon become a criminal offence in Germany.
In April, the premier of the German state of Hessen, Boris Rhein, and its justice minister Christian Heinz, officially presented a bill to amend the existing hate speech provisions in the German Criminal Code.
Under this new bill, designed to change federal law and address the growing number of antisemitic incidents registered in the country, offenders could face up to five years in prison or a fine for questioning the existence of Israel.
The proposal is expected to be submitted to the Bundesrat (the upper chamber where Germany’s 16 state governments are represented) during a session on Friday (8 May).
If other German states vote in favour by an absolute majority (which seems highly likely), it moves to the federal government and later on to the Bundestag for debate and approval.
Legal loophole?
The idea is to close what the Hessian government sees as a legal loophole because while incitement to hatred is already punishable under German law (known as Volksverhetzung), the act of explicitly denying Israel’s right to exist is not.
Critics argue the law conflicts with freedom of expression (also protected by German law), and previous case law doesn’t offer clarity.
The top administrative court in North Rhine-Westphalia ruled in November 2025 that questioning Israel’s right to exist does not constitute a criminal offence. The ruling partially overturned a decision by Düsseldorf authorities to ban a peaceful pro-Palestinian demonstration.
The court also ruled that the slogan “There Is Only One State — Palestine 48” (which rejects the legitimacy of the creation of Israel in 1948) could not be banned, while the bans on the slogans “Yalla, Yalla, Intifada” and “From The River To The Sea” were upheld.
Earlier, in August 2024, a Berlin court fined €600 a protester for leading a chant of the slogan “From The River To The Sea, Palestine Will Be Free” during a demonstration in the German capital days after the Hamas attacks on Israel in October 2023. She was then condemned for condoning a crime.
But last October, UN experts said the slogan is “widely used” by the global Palestine solidarity movement. They argued that German authorities have interpreted it as support for Hamas, which the experts see as part of an “apparent suppression of Palestine solidarity activism” in Germany.
Let’s recall that Benjamin Netanyahu has also used the Jordan River to the sea reference to define Israel, and so does his son publicly on his social media.
For the German government, protecting Israel isn’t just a policy. It’s part of their Staatsräson (state reason) due to the Holocaust. It has been for years, as seen with new citizenship laws that require applicants to explicitly affirm Israel’s right to exist.
But should Germany’s historical responsibility justify everything?
Deciding where to draw the line on free speech is never easy.
In a democracy, one should be entitled to have “wrong” or “radical” opinions. A person can legally argue (and chant) that the United Kingdom should be abolished, or that Taiwan isn’t a state, or that East and West Germany should never have reunited. They will not face five years in jail for that.
There is also another question. Does any country have a right to exist? Theoretically, not.
“There is no such thing in international law, like a right of a state to exist,” said UN special envoy Francesca Albanese in November 2024 during a press conference, referring to Israel and pointing out that the existence of Israel cannot “justify the erasure of another people” [Palestinians].
This statement drew criticism and backlash, particularly from Israeli officials who often frame it as an existential question.
But the legal discussion is not straightforward, least so in the Israeli-Palestinian context. Think about “sovereign equality” or “territorial integrity” and the situation in the West Bank.
It seems clear that making it a crime to deny a state’s right to exist sends a strong message. It puts the legitimacy of one country off-limits for public debate, which can be problematic in a democracy like Germany.
US president Barack Obama said in mid-2009, after the war in Gaza (the one back then), that “Israelis must acknowledge that just as Israel’s right to exist cannot be denied, neither can Palestine’s.”
Let’s take that logic seriously in Europe. It’s not just rhetoric, it’s international law.
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For the German government, protecting Israel isn’t just a policy. It’s part of their Staatsräson (state reason) due to the Holocaust (Source: German foreign ministry Twitter account)
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Elena Sánchez Nicolás is EUobserver’s editor-in-chief. She joined EUobserver in 2019.