“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.