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Discussion anti-Semitism and justice: Is it a criminal offense?

It became clear at an event in Berlin that the police and judiciary still have some catching up to do when it comes to anti-Semitism.

The controversial slogan, which implies the annihilation of Israel, in Frankfurt am Main at the beginning of November Photo: Boris Roessler

“For years, the waves of hatred of Jews have been surging into the courtrooms and forcing our association to expand its defensive dams in this area as well.” The little-known Jewish lawyer Ludwig Foerder wrote this appeal in a specialist essay in 1924. A sentence, which seems oppressive in its topicality. The police and judiciary are still struggling with anti-Semitism today – with how to deal with it legally and with how it appears within their own ranks.

There are numerous examples of this: In Hesse, the public prosecutor’s office and the courts are arguing about whether the partly anti-Semitic content shared in an internal chat group by police officers from the Frankfurt city center police station is punishable. The Frankfurt regional court said no in February 2023, because, among other things, the publicity of the statements is important for criminal incitement; and this is not the case with internal chats.

The public prosecutor filed a complaint against this. Now the next higher authority has to decide. Or Lower Saxony: There there is disagreement as to whether the slogan “Israel is our misfortune! Stop it!” is punishable or not. The Hanover public prosecutor did not recognize any sedition and spoke of legitimate criticism of the State of Israel. The higher-level public prosecutor’s office saw it differently, but failed in the courts.

But the crimes have to end up in court; the dark field is huge. The journalist Ronen Steinke At a discussion event in the Topography of Terror on Monday in Berlin, points out studies according to which only 24 percent of anti-Semitic acts in Germany are even reported. So only a few cases come to the judges. This in turn means that lawyers are less likely to take further training on the topic, adds Ulrike Lembke, state constitutional judge and former law professor in Berlinadded.

A late science

There are also a few things wrong: “German law as a whole is a late science when it comes to coming to terms with the Nazi era,” says Lembke. She conducts research in the joint project “Anti-Semitism as a Judicial Challenge (ASJust)” and identifies several challenges that the judiciary faces in the area of ​​anti-Semitism. There is almost no legal literature on the subject; you can only read about it in trace elements.

There is still a lack of transfer of research results into legal science and practice. Lawyers have “no professional culture in which self-reflection is at the top.” Until a few years ago, important legal commentaries were named after National Socialist lawyers.

An Americanization of freedom of expression can also be observed in law enforcement: “German freedom of expression has limits,” but this realization often slips away when it comes to anti-Semitic content. Her appeal at the end of the event: There is a need for “more professionalization in the civil service”.

Recently, the focus has been on the slogan “from the river to the sea,” often chanted at pro-Palestinian demonstrations the public debate. How this should be dealt with criminally is still unclear. What is criminal incitement, what is still legitimate expression of opinion? That’s what lawyer Foerder was already doing in the Weimar Republic, because: “The habitual anti-Semitic agitators have gradually become clever enough to express themselves in a tortuous manner.”

Give effect to the laws

Unfortunately, little was said about this at the event. This is one of the core problems today. Anti-Semites can often outsmart the liberal approach of the Basic Law by speaking in codes and ciphers. The judiciary then sometimes refuses to convict because the wording of the relevant criminal laws does not cover what has been said.

The legislature can change this, but it cannot explicitly criminalize every single statement. In the end, it is the people in the police and judiciary who have to enforce the laws.

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