The state government of Hesse considers its proposed law criminalizing the denial of Israel’s right to exist to be constitutionally sound. This determination follows a legal opinion presented in Berlin on Monday. Minister-President Boris Rhein and Justice Minister Christian Heinz (both CDU) formally appealed to the Federal Government, urging them to approve the legislation in the Bundestag.
The Federal Council (Bundesrat) had already approved the Hessian legislative draft in July, signaling its readiness to be put forward to the Bundestag. Should the law pass, it would amend Paragraph 130 of the German Criminal Code (StGB). The change would penalize anyone who publicly or in a gathering denies Israel’s right to exist or advocates for its elimination, provided the statement is considered likely to encourage antisemitic acts of violence or arbitrary measures. The potential punishment ranges from five years in prison to a monetary fine. The ministry believes this regulation logically fits into existing criminal law, serving as a “meaningful” addition to the existing hate speech provisions.
Steffen Augsberg, a legal scholar from Gießen who prepared the advisory opinion, pointed out that anyone who rejects this similarly structured new regulation would, by necessity, also have to challenge existing laws regarding the approval, denial, or minimizing of Nazi crimes. Rhein argued that anyone negating Israel’s right to exist is endangering Jewish lives and attacking the fundamental liberal order. Heinz emphasized that an overwhelming majority of the states had supported the draft in the Federal Council, and encouraged the Federal Government to align with the states’ vote.
However, Josef Schuster, president of the Central Council of Jews in Germany, expressed his gratitude for the initiative but questioned whether Section 130 of the Criminal Code was the appropriate venue for this law. He suggested that the core issue pertains to calling for the violent destruction of another state, which might be better handled within the scope of crimes against foreign nations. He called upon the Federal Government to propose a “legally sound draft” to parliament.
Uwe Becker, the Hessian representative for Jewish life and the fight against antisemitism, stated that Israel-specific antisemitism has evolved into the defining form of hatred toward Jews in Germany. He argued that the elimination of Israel has become synonymous with an “incitement to murder of Jews.” He asserted that the life realities, security, and future prospects of Jews in Germany have “massively deteriorated,” necessitating the closure of the “existing legal loophole.” The draft law is grounded, according to the state government, in the 2009 Wunsiedel ruling by the Federal Constitutional Court, which permits sanctions against statements that contravene the constitutional identity of the Federal Republic. Heinz concluded by stating that Israel’s security constitutes a German state imperative.
