Staatsräson versus Civil Rights

Germany, like many other countries, is now seeing widespread protest against Israel’s assault on the Gaza Strip. War has raged since Hamas’s murderous attack in Southern Israel on 7 October, which resulted in over 1,200 deaths. As a result, more than 37,000 people living in Gaza have been killed, 15,000 of whom were children. The UN has called it the most destructive wars for homes and infrastructure waged in a small area since 1945. Debate around the war has been just as fiery, with antisemitism and anti-Palestinian sentiment on the rise.

In Germany, where Israel’s security is officially seen as part of the Staatsräson, or reason of state, many demonstrations have been banned or strictly regulated, conferences have been prohibited, and specific slogans outlawed. But what are these prohibitive practices really about? Just how novel and sustainable are the underlying policies of the state and its laws, courts, and police? Henning Obens, Head of Political Communication at the Rosa Luxemburg Foundation, spoke to Peer Stolle of the Republican Lawyers’ Association about the level of repression in Germany since 7 October, how it compares to previous eras, and whether fundamental civil rights could be in danger in Germany.

Directly after the attack on 7 October, we saw some unsettling celebratory gatherings followed by substantial restrictions on the right to assembly. What ensued was a series of controversies concerning the restriction of fundamental rights in the context of this war. Where does the right to assemble stand in Germany today?

Banning public assembly is fundamentally a huge problem. The right to assemble freely is first and foremost a fundamental right that allows minority groups to have their voices heard — it is a fundamental political right alongside freedom of expression and is a means of critiquing authority. The right to assemble offers the opportunity for minority groups to collectively express their views on political issues, to voice their opinions, even in a controversial or provocative manner. As such, it is an enormous problem for democracy when these fundamental rights are curtailed or even totally revoked — especially when it is the rights of a marginalized group that are under attack.

In Berlin, total demonstration bans were issued, especially last year and immediately following 7 October, where we saw extensive bans targeting the right of pro-Palestine groups in Berlin to assemble. This has changed now. Today the authorities who govern assembly tend to reduce the rights of demonstrators by imposing more restrictive conditions on demonstrations instead of fully banning them.

In general, total bans are also completely disproportionate. The fundamental right to assembly can only be curtailed when there is an immediate threat to public safety. The term “public safety” refers to the inviolable nature of the legal order and of the subjective legal interests of the individual, like life, limb, and freedom. It is only when a threat is imminent that the state can interfere. In such an instance, the state is obliged to counter this “danger” using the mildest possible means.

A ban on assembly is disproportionate when conditions are not dangerous, or when the assembly overall is not dangerous, or when action taken against an individual participant is sufficient to remove the danger. A ban on an entire assembly is, as lawyers would say, the ultima ratio, the last resort, and should only be undertaken when there are no other options to prevent the predicted danger, such as imposing specific conditions on assembly or taking police action.

When it comes to statements made at demonstrations, which is the primary issue here, the standard we refer to is the fundamental right to freedom of expression. Freedom of expression can only be curtailed in this context when criminal statements, like inciting hatred, the committing of criminal acts, and slurs, etc., are expected to be a feature of the demonstration. In principle, these dangers can be countered by imposing conditions on assembly, such as prohibiting certain slogans that are considered criminal, for example. Against this backdrop, complete and total bans on assembly are disproportionate.

The Federal Ministry of the Interior banned the slogan “From the river to the sea, Palestine will be free”. How can they justify banning a slogan that can be interpreted in so many different ways?

The justifications have varied. This slogan is a very old one. I believe it’s been around for at least 60 years. It was and still is used by a range of organizations in different contexts and as such can take on many different meanings, such as “equal rights for everybody in the geographical region”, “the founding of a Palestinian state”, or “a collective state for Jewish and Palestinian people”.

However, it was also used after 7 October to justify the massacre perpetrated by Hamas and in this context was seen as an endorsement of a criminal act. In principle, however, and according to the Federal Constitutional Court, the authorities are obliged to interpret all ambiguous expressions of opinion in a way that gives the most expression and weight to freedom of expression. Therefore, in unclear cases this slogan should be permissible.

These are the kinds of measures we can expect to see if power continues to shift further to the right and more Alternative für Deutschland politicians gain political influence.

Now we are also faced with a unique problem in that the Federal Ministry of the Interior (BMI) has classified this slogan as a symbol of a banned organization, namely Hamas. To make matters worse, the BMI does not consider the entire phrase to be a Hamas slogan, but only the first clause “from the river to the sea”. This means that all variations of the slogan, including “we demand equality”, can be considered a symbol of Hamas and thus potentially criminal.

In so doing, the BMI has not only deliberately expanded the scope of what is considered criminal, but also provided introduced an element of ambiguity. This means public prosecutor’s offices and courts will not only have to clarify whether this classification as a Hamas slogan is correct, but also if so, which variants of the slogan are to be regarded as related to Hamas. Until this is clarified by the high courts — and they make take some time, their decisions are currently very inconsistent — the police will be able to take action against anyone who shouts the slogan. In the context of public demonstrations, this can give rise to police intervention, which in our experience often leads to an increase in injuries to demonstrators and can result in further legal proceedings, for example for resisting the interventions of law enforcement officers.

It really seems like there is a double standard here with regard to the slogan “Between the Sea and the Jordan, there will only be Israeli sovereignty”, which can be found in the Likud Party programme from 1977. When can we expect a ruling on this?

It’s hard to predict when the legality of this phrase will be decided by the highest court here. So far, the only verdicts we have seen on this issue have been emergency rulings handed down by administrative courts, and these have varied greatly across Germany. So far, criminal court decisions have been the exception.

To the question of “double standards”: If the slogan “from the river to the sea” were to be classified by the high court as a criminal phrase belonging to a banned association, its use by Likud supporters would also be considered a criminal offense, and the position or background of the slogan’s speaker or writer would no longer be relevant. However, since in that case a slogan would have to be a unique feature of an organization that distinguishes it from other organizations, this slogan does not meet these requirements: its classification as an emblem of Hamas would not actually have any legal standing.

But the restrictions don’t just applied to open-air assemblies. The Palestine Conference was meant to take place in Berlin, but was broken up by the police at very short notice, and those gathered there were dispersed. What was the rationale of the authorities in this instance?

From what I know so far about the preparation of this conference, it was clearly a case of a strategy to prevent assembly. The organizers were extremely cooperative with the authorities and sought contact with the police from the outset. The talks that were planned for the conference were also submitted in advance for review, and neither the organizers nor the authorities reported any complaints in advance of the event.

The police only sprang into action in the days leading up to the conference, practically restricting the organization at short notice: addressing the landlord, fire safety checks, limiting the number of participants. The police interrupted the first talk, then prevented the conference from continuing, although it was supposed to run for three days. The entire operation was obviously designed to ensure that the event could not take place, and the measures to shut it down were made public at such short notice that it was practically impossible to secure legal protection of the conference from an administrative court.

Regardless of how you might feel about the content and aims of the conference, this was a very serious encroachment on both freedom of assembly and freedom of expression. From this perspective, provided the threat of criminal statements was justified, certain parts of the conference could have been objected to in advance, or banned statements could have been censored while they were being made. Neither of these things happened. Clearly, the decision to ban the conference was politically motivated and not a legal one.

Other measures were also imposed, such as bans on certain activities or certain people entering the country, including against Yanis Varoufakis, the former Greek finance minister. How do you assess this from a legal perspective?

It’s also remarkable that for a long time it wasn’t at all clear what was actually happening — which official measures had been taken against which speakers. Later it became known that Mr. Varoufakis had been the subject of a preliminary order to an entry ban in advance of the conference, with the proviso that if he tried to enter the country, he would be denied entry and banned from engaging in any activities here.

This did not happen because he had no intention of entering the country at that time. However, there is no legal provision for imposing a ban on the political activity of an EU citizen. There are only entry bans, which are only permissible in the event of an actual threat to public safety. This criterion is interpreted very strictly — and rightly so. Within the EU, the right to freedom of movement is paramount and can only be restricted if serious criminal offenses are either imminent or have been committed in the past.

The public discussions that are currently taking place are counterproductive. What we’re experiencing often seems like an externalization of the still very threatening and virulent antisemitism produced by both the political right and the middle class here in Germany

In the case of Varoufakis, it is entirely unclear what criminal offences he was expected to commit, and what the German authorities were anticipating. The fact that he is also a prominent candidate in the upcoming EU elections makes these measures all the more problematic. Varoufakis is already taking legal action against the ban. The entry ban issued for another speaker, Ghassan Abu Sittah, has already been overturned by the Administrative Court of Potsdam.

We are also seeing a range of administrative measures aimed at increasing pressure on pro-Palestinian voices. Here in Berlin, a social work organization has had its public funding contracts cancelled because of statements made by its managing director on Instagram.

I find what happened to the two youth recreation centres you are alluding to incredibly dangerous and completely disproportionate. These are the kinds of measures we can expect to see if power continues to shift further to the right and more Alternative für Deutschland politicians gain political influence: certain institutions will be closed down on spurious pretexts, without warning, and without any transition period. These two facilities are closed for now, but the management team can take legal action against this closure.

However, it is unclear whether they would be able to carry out the same work again, even in the event of a favourable court decision. There is a high likelihood that the groundwork they laid will have already been destroyed. We know how important it is to build trust and ensure continuity, particularly in the fields of social work and youth work. When a service like this is closed down —in this case a vital service that provides support from a queer-feminist perspective to young women with migrant backgrounds — the resulting damage is virtually impossible to repair.

The offending issue in this case was just a statement posted by their managing director on a private social media account — in other words, unrelated to her work for the organization. You can criticize this and still find her statement wrong. But that’s not the point. There was no evidence to suggest that her private opinions had any effect on her work. It would be a different matter if she had expressed criticism of the organization’s professional work with children, but no such criticism materialized.

At the very least, the organization's management should have been given a deadline — like for example until the end of the year — to make any necessary changes to its work policies. But to simply close a social-work organization overnight and foreclose on its ability to continue this work is completely disproportionate to what happened. I have the impression that this is not about combating antisemitism in youth work, but that it was just a pretext to pursue other goals entirely.

The reality is that many Jewish and Israeli people who live here in Berlin are afraid of the increase in various forms of antisemitism. So far we’ve seen incidents including antisemitic graffiti, physical assaults, the firebombing of a synagogue, and stones being thrown at a Jewish hospital. How can we deal with this?

Since 7 October we have seen a stark increase in antisemitism of various forms. I think it’s important to wage much more vigorous debates about this, both in society and also within our public institutions. What is antisemitism? What forms does it take? How can we respond to it, and what kind of measures can be taken to prevent it? In Germany, many Jewish establishments — synagogues, community spaces, schools, restaurants, and kindergartens — require police protection. This is the sad reality.

In my opinion, the public discussions that are currently taking place are counterproductive. What we’re experiencing often seems like an externalization of the still very threatening and virulent antisemitism produced by both the political right and the middle class here in Germany. Antisemitism is depicted as a problem affecting other people — it’s a migrant problem, and therefore labelled an imported problem.

Of course, there are incidents of antisemitism, antisemitic attacks, and antisemitic statements made by participants in the Palestinian solidarity movement, which must also be identified and critiqued, no question. However, the way the discussion is being conducted at present distracts from the very real and still very active antisemitism of the German middle class, which is completely decentred in these debates. When you consider Germany’s history, this is not only absurd — it’s also dangerous.

The government has made it clear that the ongoing defence of Israel is its Staatsräson. To what extent does this conflict with the constitutionally guaranteed rights of freedom of expression and freedom of assembly?

Fundamental rights can only be curtailed based on laws and not on the basis of voluntary compliance. The Staatsräson cannot justify encroaching on anyone’s fundamental rights. It would seem that this Staatsräson has become a vehicle for ignoring legal obligations and enforcing measures that are not actually legally tenable, like what happened with the cancellation of the Palestine Congress. This move had nothing to do with the law or with respecting the constitution and its principles of proportionality.

This discursive repression, which is epitomized by the BILD newspaper and many other German media channels, affects non-German-passport-holders to a much greater extent.

Another example was provided by the Federal Minister of Education, Bettina Stark-Watzinger, who expressed her “dismay” at an open letter from lecturers and researchers at German universities. The signees and authors of this letter expressed their criticism of the eviction of the student occupation at the Free University of Berlin on 7 May 2024. In the words of the education minister, the authors and signatories of this letter are guaranteed no constitutional protection according to German Basic Law. That’s extremely dangerous.

Of course, signatories can claim protection under Article 5, freedom of expression, and also academic freedom as a fundamental right. The acts of writing an open letter and co-signing it are of course protected by freedom of expression and, because this took place in a university context, also by academic freedom. These are some of the core components of German Basic Law.

By making her statement, Ms. Stark-Watzinger excludes people with dissenting opinions from democratic discourse — she marks them as enemies of the constitution and exposes them to hounding by the tabloids. This is completely unacceptable behaviour from a government representative.

Are we dealing with a new form of repression, or is this kind of repression a practice that was already common in Germany?

Strategies aimed at preventing people from assembling are nothing new in Germany. We’re familiar with the measures we’re currently experiencing from past events like the G20 protests in Hamburg, the Blockupy protests, and in connection with demonstrations waged by Kurdish groups. We know from the protests at the G20 summit in Hamburg, for example, that the police prevent people from gathering, that “facts” are generated to serve this purpose, and legal protection is rendered virtually impossible. Excessive police violence is also nothing new.

What is exceptional here is the pointed nature of the public discourse, which allows little room for nuance. We’ve seen where this polarizing discourse leads, and not just in the reactions to the evicted protest camp and the open letter from university lecturers. The polarizing discourse has far-reaching consequences, especially when state authorities and government representatives can no longer differentiate between truth and fiction.

This discursive repression, which is epitomized by the BILD newspaper and many other German media channels, affects non-German-passport-holders to a much greater extent. When everyone who attends demonstrations about the situation in Gaza are indiscriminately characterized as “antisemites” and “Israel haters”, the effects go far beyond police restrictions on gatherings. For migrant groups in society in particular, this stigmatization leads to a stark sense of intimidation and insecurity.

You can clearly see the uncertainty that exists when you talk to academics and cultural workers. They’re asking themselves: what can I actually say, how can I express myself? What does it actually mean for my position, what does it mean for my job, for my employment, if I am seen in the context of this polarizing characterization, if I express myself in this context?

In Berlin especially, where there is a very large Palestinian community, and also a very diverse international scene, spaces for exchange and discourse are incredibly important. Oyoun, a post-migrant cultural space in Berlin that took a very clear stance on the Hamas massacre after 7 October 2023, was stripped of its funding because it organized events with the group Jüdische Stimme, the Jewish Voice for a just Peace in the Middle East. You may criticize this event and disagree with its perspective, but if places like this are closed, it will no longer be possible to communicate and exchange ideas, even on a critical level.

We can’t say that we perceive only one or the other. We have to see and name all forms of oppression and injustice.

This also influences similar projects and cultural institutions, which is where I see the main problem with the current situation. In Germany, and particularly in Berlin, a considerable proportion of society is international and made up of migrants, with vastly different experiences and backgrounds to the non-migrant German population. Their perspectives cannot simply be silenced with a nod to an ostensible German Staatsräson. The shrinking or closing of spaces and services for exchange and understanding presents a very real danger for a multicultural society.

This does not mean accepting or understanding racism or antisemitism. But it does mean recognizing people’s suffering and experiences based on a universal humanism. How can we come to recognize the suffering of others and make this the basis of our common political practice? I have the feeling that these spaces are being closed en masse.

I get the impression that in Berlin, a city with sizeable Palestinian and international communities, the debate has really come to a head. Here, the Staatsräson justification clashes with the reality of life in a multicultural society. It seems to me that people are closing ranks, rather than engaging in debate and disagreement. Would you agree with this assessment?

Yes, and I believe that society needs common understanding, especially in regard to this conflict. It is important that we reflect on universalist humanist ideas that respect human rights for all, not just for a specific group. And which also take the suffering, persecution, and injuries inflicted upon certain groups seriously, and include these groups in public debate.

This includes considering what 7 October means for Israelis and for Jews worldwide, how this attack affects their identity, sense of security, and personal prospects. We must name the rising tide of antisemitic attacks and oppose it resolutely.

A universalist humanist approach would also encompass the situation in Gaza. The unimaginable situation to which the inhabitants of Gaza are currently being subjected, the extreme destruction wrought by the Israeli military, the famine, and the blatantly high number of civilian victims: all of this has an impact on people here, who are seeking to express their grief and sadness, and also their anger. We are seeing an increase in racism towards migrants here in Germany and an increase in state repression. It’s all happening at the same time.

We can’t say that we perceive only one or the other. We have to see and name all forms of oppression and injustice. I think it’s extremely important to have the opportunity to engage in dialogue and discussion in society. We need to create and maintain spaces for this, and I think we still have a long way to go on this front.

Translated by Louise Pain and Eve Richens for Gegensatz Translation Collective.