26 May 2023

And Then the Cops Arrive

In a report by the Israeli newspaper Haaretz on the dispersed Nakba demonstration at Berlin’s Oranienplatz last weekend, a spokesperson for the Berlin police is quoted as saying:

Explaining their entry into the crowd, Halweg said that “during the permitted demonstration, the phrase ‘From the river to the sea, Palestine will be free’ – which is banned in Germany – was shouted. The person shouting was arrested by the police. Preliminary proceedings were initiated against the man on suspicion of using signs and symbols of unconstitutional and terrorist organizations.”

Banned in Germany? That was news to me. Yesterday afternoon I sent an email to the press office of the Berlin police headquarters asking whether the quote was correct, and if so, on what legal basis this phrase should be banned and what unconstitutional and terrorist organisation was being referred to. This morning at 7 a.m., Mr. Halweg called me and explicitly confirmed: Yes, the quote was absolutely correct and the legal basis was § 86a of the German Criminal Code. Ah, I said sleepily. That’s how it is. I see. Thank you very much!

§ 86a is the norm that bans showing the Hitlergruß and the swastika and SS runes. It criminalizes the dissemination of the symbols of Nazi organisations and legally banned parties and associations, including their slogans, such as those of the HJ, SA and SS, but not, for example, the Neo-Nazi exclamation “Ruhm und Ehre der Waffen-SS” (Glory and Honour to the Waffen SS): according to the Federal Supreme Court, with the approval of the Federal Constitutional Court, this is a fantasy slogan of today’s Nazis, neither identical nor confusable with any symbols of the actual HJ or SS, and thus not illegal.

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What about the river-to-the-sea slogan? It is undoubtedly extremely problematic. It can be understood, and it is certainly often used, as a call for the annihilation of Israel. It can be read as code for the most abominable anti-Semitism, not least in parts of the German left, which has given in far too often, for far too long and sometimes with murderous consequence to the temptation to make German guilt for the Holocaust the problem of other people through the most primitive perpetrator-victim reversal at the expense of Jews. Terrorist organisations such as Hamas or the PFLP are known to use that phrase; in the 2022 Verfassungsschutzbericht, it is mentioned in connection with Hamas and Hezbollah (p. 77). These are terrorist organisations, but – unlike the “Islamic State“, for example – they are not associations banned in Germany. There is no ban on their activities in the legal sense. The fact that Section 86a of the German Penal Code comes into play at all is due to an amendment to the law that is not yet two years old and that was enacted during the final days of the last CDU/CSU/SPD coalition as a kind of annex to an already ongoing and much more high-profile amendment procedure to the German Penal Code, virtually without any public attention or parliamentary debate. Since then, the ban on showing signs and slogans includes also organisations that are not banned but are on the EU terror list.

I called the Berlin police again. Which terrorist organisation exactly do they think that phrase is a sign for? Turns out: they don’t even know. Nor do they seem to care. “Whoever used this exclamation is beyond my knowledge,” the spokesperson told me. The phrase “stands for the negation of Israel’s right to exist. And that is forbidden in Germany.”

Ah. That’s interesting. So the phrase is forbidden without being forbidden.

Assuming one were to make a law that actually forbids and makes it a punishable offence to express the opinion that Palestine should be free from the Jordan River to the Mediterranean Sea: I don’t imagine it would be trivial to do that without getting into serious trouble with the political liberties that constitute the democratic fundamental order of Germany. In any case, and at the very least, if the government considers a ban to be necessary, suitable and proportionate for the protection of specific constitutional rights, it would have to spell out and prove this and take responsibility for it under the rule of law.

But as it is, it doesn’t. There is no ban of any expression of opinion per se, just the dissemination of symbols of terrorist organisations. Just as in the case of flag burning, a bypass is built so that the punishable act is not the expression of an opinion but something else, which amounts and is supposed to amount to a ban of the unbanned opinion. One must be downright grateful to the police spokesperson for at least being so candid about that.

Such responsibility bypasses are abundant in German anti-anti-Semitism policy, as evidenced by the staggering number of anti-Semitism commissioners on all levels of government, who, mostly on the basis of a very sparsely defined mandate, exert a discourse-cultivating influence on the formation of public opinion and the provision of spaces and funding for cultural and other events, without exercising direct executive powers for which they would have to answer under the rule of law. The anti-BDS resolution of the Bundestag is merely that, a resolution, not a law, not binding at all, because if it were, it would be unconstitutional. It’s all just discourse. Just opinions.

And then the cops arrive.

And in they go in heavy combat gear right into the middle of the peaceful Jewish-Palestinian demonstration on Oranienplatz, and Jewish demonstrators who are outraged by this are wrestled to the ground and arrested by German police officers, presumably for their own protection against anti-Semitism. Other demonstrations on the occasion of the 75th anniversary of the expulsion of 700,000 Palestinians from what is now Israel, known in Arabic as al-Nakba = catastrophe, had previously been preemptively banned by the Berlin police on the grounds that “younger people from the Arab diaspora” could unfortunately not be entrusted with the basic right to freedom of assembly because of their “emotionality”:

“The participants in the assembly will therefore largely consist of younger persons from the Arab diaspora, especially those with a Palestinian background. In addition, other Muslim-influenced groups of people, preferably from the Lebanese, Turkish and Syrian diasporas, will take part in the march. Most of the participants will be youths and young adults. In view of the number of participants and the expected large number of younger participants, there are concerns about the chanting of criminal slogans and the display of prohibited symbols. These violations are likely to increase with rising emotionality due to spontaneous events in the Israel/Palestine conflict. In addition, experience shows that there is currently a distinctly aggressive attitude among this clientele and that they are not averse to violent action. When police measures are necessary, expressions of displeasure and, as a consequence, physical attacks to the detriment of the police forces deployed, also in the form of pyro, bottle and stone throwing, are to be expected.”

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Sophie Schönberger recently wrote a highly intelligent book about the imposition of democracy to endure the other. There are many reasons why the imposition to put up with “Muslim-influenced groups of people” and their alleged “aggressive attitude” and “expressions of displeasure” is found hard to to endure, and not all of them deserve the same respect. Of course, concern for the physical integrity of Jews everywhere and at all times deserves all respect. Racism, islamophobia and the urge of many German Nazi descendants on both the left and the right to no longer be disturbed in their relieving Israel-related philosemitism by those irksome Arab troubles – not so much.

Enduring the imposition of the other is not achieved through appeasement, not through a circle of chairs and not through rational discourse, but – according to Schönberger – through encounter. Through the physical, emotional experience that there are others nearby who are quite different from oneself, and that their presence can be endured. This requires public spaces in which this encounter can take place. And public safety, so that I can dare to go there, go out into the public space without fear for my physical integrity, and so can the other. And a police that provides for this public safety. A police that enables encounters, not prevents them. A police that secures public space, not closes it.

That, however, doesn’t seem likely to happen in Berlin anytime soon.

The past two weeks on Verfassungsblog

… summarised by PAULA SCHMIETA:

After this week’s raid, the question is whether the Last Generation is a criminal organization according to §129 of the German Criminal Code (StGB). KLAUS FERDINAND GÄRDITZ warns against privileging political motives in criminal prosecution, FYNN WENGLARCZYK considers what effect the raid has on shaping public opinion, KATRIN HÖFFLER believes that the attempt to “punish away” climate protests inevitably weakens the rule of law. MICHAEL KUBICIEL sees the raid as a borderline case, and THORSTEN KOCH believes §129 StGB to be unconstitutional.

On May 09, 2023, the draft bill for the Self-Determination Act (SBBG) was published. In view of paternalistic features and diffuse fears of abuse, RONJA HEß sees a need for improvement. LUCY CHEBOUT speaks of a Trojan horse, as the partial reform of the law of parentage contained in the SBBG would make the parent-child assignment for queer persons in the future not easier, but more difficult.

Last year, the first Benin bronzes were handed over to the Nigerian state by the German federal government. Now the Nigerian president has transferred them to the Oba of Benin – thereby making the bronzes private property. CAROLIN DEHM thinks that this does not change the rightness of the restitution but rather shows the current debate’s postcolonial arrogance. FREDERIK ORLOWSKI, moreover, examines the similarities and differences with the “Hohenzollern debate”.

Bahar Aslan was a lecturer for intercultural competence at the University of Public Administration and Police of North Rhine Westphalia – after a tweet about ‘brown filth within the security authorities’ (an allusion to institutional racism) she is no longer. THOMAS FELTES provides a legal analysis of the incident.

Under Section 362 of the German Code of Criminal Procedure, criminal proceedings that have been concluded with a final judgment may be reopened under certain circumstances. But how does this relate to Art. 103 III GG, the prohibition of double jeopardy? This week, there has been a hearing before the Federal Constitutional Court. ALEXANDER BRADE reports and comments.

After the BVerfG refused already in January to scrutinize the repetition of the Berlin state election, now the reasons for this decision have been published. HEIKO SAUER finds the core of the reasoning convincing.

TARIK TABBARA takes a close look at the recently published draft of the law on the modernization of citizenship law. His conclusion: much will be better, some will be worse, and there is still no citizenship law that does justice to the realities of the post-migration society.

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The German coalition government has adopted a restrictive negotiating position on the reform of the Common European Asylum System (CEAS). MAXIMILIAN PICHL sees the German government’s position as a dismissal of fundamental human rights positions and explains what consequences this could have. DANIEL THYM, on the other hand, pleads for a pragmatic approach and believes that there is no danger of a sell-out of human rights.

Last summer, the EU parliament called for an alteration of the EU Treaties, yet so far, little has happened. MARK DAWSON, in favour of reform, presents four arguments why member states should (in their own interest) endorse the change.

The proposal for an EU Corporate Sustainability Due Diligence Directive (CSDDD) is about to pass into law. LEÓN CASTELLANOS-JANKIEWICZ & MELANIE SCHNEIDER argue that the CSDDD could drastically change the regulatory makeup of the arms industry in Europe and thereby prevent European arms to end up in conflict zones.

The EU Commission took a leading role in developing the Digital Services Act (DSA). Now, however, it takes up a new role – that of the DSA’s enforcer.  SUZANNE VERGNOLLE explores the challenges this transformation brings along and analyses the trend that authorities are granted judicial enforcement powers (thereby substituting courts).

At the beginning of last week, the ECtHR decided the case of Sanchez v France concerning hate speech. JANNIKA JAHN’s analysis is that it might strengthen individual rights but risks weakening free political debate.

The EU is planning a new Media Freedom Act (EMFA) – raising the allegation that the EMFA is an attempt by Brussels to exert political influence in Eastern Europe. JUDIT BAYER rejects this accusation as ‘simply ahistorical’ and explains the background of the EMFA and what is at stake.

Poland’s Broadcasting Council (KRRiT) imposed a fine on the independent TOK FM radio station for criticizing a controversial – and government-supported – history textbook.  DOMINIKA BYCHAWSKA-SINIARSKA investigates the case and analyses the systemic problem concerning the (lacking) independence of the Polish media watchdog.

A couple of months ahead of general elections, Slovakia is experiencing a governmental crisis. MAX STEUER elucidates how Slovakia’s constitutional design fuelled this crisis and reflects on what other parliamentary systems with a directly elected president may learn from Slovakia’s malaise.

In Bosnia and Herzegovina, Christian Schmidt, the High Representative, has used his ‘Bonn powers’ to override the veto of the largest Bosniak party against the appointment of a new government. TAHIR HERENDA asks whether this move sacrifices political pluralism for short-term stability.

105 years ago, Georgia declared its independence from Russia and founded its first democratic republic. TINATIN ERKVANIA shows how the heritage of Georgia’s 1921 constitution is still relevant today.

On Sunday, the run-off vote of the Turkish presidential elections will take place and excitement fills the air: could the opposition win? MICHAEL MEYER-RESENDE warns of the danger behind the narrative of possible change in a supposedly neck-to-neck since it is this which generates public legitimacy for what really is a flawed vote.

In Greece, the Court of Cassation (Areios Pagos) refused to certify the Hellenes National Party – a party widely regarded as the political successor of the neo-Nazi Party Chrysí Avgí (Golden Dawn) – for the upcoming parliamentary elections. ANDREAS SAMARTZIS & NICHOLAS VADIVOULIS speak of a constitutional transformation and a tentative (yet incomplete) step towards a militant democracy.

Following Teresa M Navarro’s penultimate week’s blog post, SANTIAGO ÁLVAREZ shares more insights on the proposed Andalusian irrigation law which threatens Spain’s Doñana National Park. According to Álvarez, the crisis is a culmination of federal failures and violation of EU law.

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