“From the river to the sea” – Between freedom of expression and political offence

While the discussion about the criminal classification of the racist chants at the Pony Club on Sylt is still ongoing (we have already reported on this: Racist slogans on Sylt – punishable racism?, another debate is now being sparked around the topic of incitement of the people.

This debate is also about anti-Semitism, but in a completely different context. Since Hamas’ terrorist attack on Israel on 7 October 2023, there have been numerous demonstrations and protests in both Europe and North America by people showing solidarity with the Palestinians in the conflict.

So-called “Gaza protest camps” or “Palestine protest camps”, which mainly take place at universities, attract particular media attention. A few months ago, students in Germany also began setting up such Palestine protest camps. Among the numerous posters, one particular slogan always stands out: “From the river to the sea”.

And it is precisely this phrase that is now the subject of a criminal and constitutional dispute. While some invoke freedom of expression and freedom of assembly, others consider the statement to be a criminal offence of incitement to hatred.

But what exactly does this slogan mean?

It is actually an abbreviation for the statement “From the River to the Sea, Palestine will be free”. The political slogan refers to the area between the Jordan (“River”) and the Mediterranean (“Sea”). This area includes Israel as well as the West Bank and the Gaza Strip.

Now there are various ways of interpreting the statement: on the one hand, the statement is understood as a mere wish for peace and equality between the population groups in the territory between the Jordan River and the Mediterranean Sea. On the other hand, the statement is seen as a call for the violent annihilation of Israel – this interpretation is justified in particular by the fact that the terrorist organisation Hamas also used the statement.

Depending on the interpretation of the statement, criminal liability for various offences may be considered.

Due to the generous case law of the Federal Constitutional Court on freedom of expression (Art. 5 Art. 1 S. 1 Var. 1 GG), people who used this slogan before 7 October 2023 were largely spared prosecution.

The situation has been different since the Hamas attack, which reignited the debate about the slogan. The debate has become particularly heated since more and more Gaza protest camps have been set up in Germany.

In detail, criminal liability under § 130 StGB for incitement to hatred, under § 111 StGB for incitement to commit criminal offences, under § 140 StGB for condoning serious criminal offences and for using the emblems of terrorist organisations under §§ 86 para. 2, 86a para. 1 no. 1 StGB can be considered.

When and, above all, which offences are actually relevant has been highly controversial between the courts, especially since last year.

Most recently, the Bremen Higher Administrative Court (OVG) rejected criminal liability under § 111 StGB, § 130 StGB and § 140 StGB on the grounds that a non-violent interpretation of the slogan could not be ruled out. The court therefore ruled according to the well-known principle of “in dubio pro reo”.

However, criminal liability under §§ 86, 86a StGB was affirmed, as a variant of the slogan could be found in the organisational constitution of Hamas .

This view is largely due to a ban on activity that the Federal Ministry of the Interior (BMI) issued against Hamas on 2 November 2023. The order also extends to Hamas emblems and, among other things, to the slogan “From the river to the sea”. In this context, explicit reference was made to criminal liability under §§ 86, 86a StGB.

The question of criminal liability was judged differently by the Mannheim Regional Court; the judges explicitly stated that they were not bound by the BMI in their decision and set about interpreting the slogan themselves. To this end, they even read the Hamas charter in Arabic and came to the conclusion that the demands made by the organisation were not word-for-word identical to the slogan “From the river to the sea, Palestine will be free”. Furthermore, the chanting of the slogan would fall under the exception of Section 86 (4) StGB, according to which criminal liability is excluded if “the act serves civic education, the defence against unconstitutional endeavours, art or science, research or teaching, reporting or events of current affairs or history or similar purposes”. It remains to be seen how the law enforcement authorities will react to the Mannheim Regional Court’s decision and how the debate in case law and politics surrounding the slogan will develop. Until a final decision has been made, extreme caution should be exercised when using it.

If you have any further questions or are a defendant in criminal proceedings, please do not hesitate to contact us.