The justice minister of a German state on Monday presented a legal opinion in favor of draft legislation that would make it illegal to deny Israel’s right to exist.
The defense was of a draft amendment to the German penal code that the State of Hessen submitted last year to the Federal Council of Germany for a vote in the Bundestag, the German parliament. If passed, the draft amendment would become part of federal law.
The draft amendment “fits seamlessly into the existing regulatory framework and systematically complements them in a meaningful way,” constitutional law expert Steffen Augsberg wrote in the legal opinion, according to the Stagecoach news site. Germany already has federal laws against displaying Nazi imagery and praising Nazi ideology.
Hessen’s justice minister, Christian Heinz of the CDU party of German Chancellor Friedrich Merz, said at a press conference in Berlin on Monday, according to Tagesschau, that the legislation was necessary also because of the increase in antisemitic attacks in Germany since Oct. 7, 2023, when Hamas terrorists murdered some 1,200 Israelis during a cross-border invasion.
Under the draft amendment, anyone who “publicly or in a gathering denies the right of the State of Israel to exist or calls for the elimination of the State of Israel” would be punishable by imprisonment of up to five years.
Before the draft amendment is brought to the Bundestag, it needs the federal government’s support for the move. However, Merz’s government expressed reservations about the draft amendment in August, prompting the Hessen government to seek the legal opinion.
The federal government had said that Hessen’s proposal carried a “significant constitutional risk,” and that existing laws already cover the acts that the draft amendment seeks to target. The Bundestag’s research service has raised concerns that the draft amendment was unconstitutional in that it would restrict the freedom of expression protected by the Basic Law. The Left Party, Die Linke, commissioned that Bundestag report.
The president of the Central Council of Jews in Germany, Josef Schuster, attended the press conference in Berlin alongside Heinz, Hessen’s justice minister, and expressed support for it. However, Schuster also doubted whether the draft amendment would pass, dpa reported on Monday.
“The hurdles our constitution places on this are rightly high. Doubts about its feasibility are permissible,” dpa quoted Schuster as saying. Even if passed, the amendment “could be struck down by the Federal Constitutional Court,” he added. The amendment might be counterproductive, he also said, as “it might motivate hate-mongers to then call for the destruction of Israel even more openly and blatantly.”
