Since the Hamas terrorist attack on Israel on 7 October 2023, large numbers of disturbing images, videos and allegations have been circulating on social media. As in the case of Russia’s war of aggression against Ukraine, much of this material cannot be independently verified. This makes it all the more important to refrain from sharing dubious content, make use of fact checks, obtain information from a range of different reputable sources and communicate respectfully.
The Hamas attack on Israel is having an impact on life in Germany, too. Below we have compiled information on the relevant legal background to the issues involved so as to put German policy into context.
Germany’s relationship with Judaism and Israel derives from the Shoah – the mass murder of 6 million Jews during the National Socialist era. Three quarters of a century ago, the countries of Europe lay in ruins after the Second World War, which was started by Germany. Jews who escaped the horrors of the Shoah and systematic persecution and cold-blooded murder by the National Socialists sought protection and security in a state of their own. They built their new home with confidence and vigour. To this day, Israel is the only Jewish state and a place of refuge for Jewish people from all over the world. Here, Jews can be sure that they will not become a persecuted minority from one day to the next.
That is why we are united in solidarity with Israel – both from our particular perspective as Germans and out of a universal sense of responsibility for humanity. What is more, Israel is the only democracy in the region. Israel’s security is Germany’s national interest – which means that for Germany, Israel’s existence is non-negotiable. In concrete terms, this means opposing any attack on Israel’s right to exist.
In the same way, we show zero tolerance of attacks against Jewish people in Germany. This is what makes our democracy robust: we defend our tolerant social order against attacks by those who are intolerant. Otherwise the tolerant will be destroyed, and tolerance along with them. Anti-Semitism has no place in Germany. For this reason, the Federal Government vouches to call out and condemn anti-Semitic hostility and attacks, Holocaust denial, Holocaust relativisation and Holocaust falsification. This is also reflected in Germany’s foreign and European policy. The fundamental notion of this German responsibility underlies the Federal Government’s policy in all international contexts.
All people in Germany are free to express their opinion and demonstrate peacefully. This is guaranteed under the German constitution – the Basic Law. This principle applies regardless of whether a person is currently mourning Israeli victims or victims in the Gaza Strip. However, there is one thing that everyone needs to bear in mind: gatherings are only protected if they take place “peacefully and without weapons”. A gathering is considered not to be peaceful if it turns violent or riotous or if there is wilful intent to make this happen.
Freedom of assembly is a precious good in Germany. Gatherings serve to allow people to engage in debate, dispute their points of view and exercise their right to dissent. Limitations on this freedom are subject to strict conditions. One important limitation here is the offence of inciting hatred. Gatherings can only be banned if public safety is directly jeopardised. Criminal law sets the limits on expressions of opinion at gatherings.
The federal states and municipalities decide on demonstration bans through their administrative authorities. Any ban on demonstrations must always comply with the principle of proportionality: once the basic civil rights in question have been taken into consideration, a demonstration may only be banned if no less severe means are available.
Limitations on solidarity are reached where violence is incited or where criminal offences such as murder, manslaughter, rape and hostage-taking – such as those committed by Hamas in Israel – are publicly condoned.
“Anyone who condones, denies or trivialises an act committed under the rule of National Socialism of the kind described in Section 6 (1) of the International Criminal Code in a manner that is likely to disturb public peace, either publicly or at a gathering, shall be punished.”
Trivialising the Holocaust covers both downplaying its extent as a crime against humanity (e.g. claiming that the gas chamber murders did not take place “in any case”) and trivialising what it involved (e.g. by describing the Holocaust atrocities as unavoidable acts of war). When comparing National Socialist injustice with the actions of other states, whether or not the statement amounts to an offence depends on the context of the statement: if the comparison is to be seen as a trivialisation, and therefore a trivialisation of the fate of Holocaust victims, this constitutes a crime.
Incidentally, anyone who calls for the destruction of Israel’s existence may also be liable to prosecution for incitement of hatred under Section 130 (1) No. 1 of the Criminal Code. The public prosecutor’s office and the police decide on investigative measures.
According to Section 86a (1) of the Criminal Code, the public display of Hamas symbols is a punishable offence: this includes flags, badges, uniform items, slogans and forms of greeting.
Hamas is listed as an organisation in Council Regulation (EC) No. 2580/2001 of 27 December 2001 on specific restrictive measures directed against certain persons and entities with a view to combating terrorism.
Section 111 of the Criminal Code can also be relevant in this context since it covers public incitement to commit criminal offences. The call to extinguish Israel’s existence by force may be punishable under this provision. The same applies to calls to display the Hamas flag in public.
If Hamas attacks are publicly cheered and celebrated, this may also be a punishable offence. When people cheer on the actions of Hamas or publicly express their approval of the attacks, this therefore may constitute the offence of “endorsement of criminal acts” under Section 140 of the Criminal Code.
By contrast, the mere display of Palestinian flags is not relevant under criminal law. The law enforcement authorities decide on investigative measures.
One thing is clear for the Federal Government: based on our history, we in Germany bear a special responsibility for the safety of Jews in Germany and around the world. For the Federal Government, responsibility for the Shoah is a legacy that it actively embraces under the imperative that nothing like it may ever happen again. This legacy applies to everyone living in Germany. In a robust democracy, the state must guarantee equal rights for everyone at all levels. Anti-Semitism is unacceptable everywhere in the world, but especially in Germany. More information is available here: What the Federal Government is doing to combat anti-Semitism National Strategy against Anti-Semitism and for Jewish Life.
In Article 9 and Article 2 (1), the Basic Law protects freedom of association, including the right to join together for a common purpose and pursue this purpose jointly. Associations can be banned in particular if their aims or activities run counter to criminal laws, or if they are directed against the constitutional order or the general idea of understanding between nations. One of the consequences of this is that the association or group may then no longer be active in Germany and may no longer organise meetings.
On 2 November 2023, the Federal Minister of the Interior and Community banned the activities of the terrorist organisation Hamas and the international network “Samidoun – Palestinian Prisoner Solidarity Network” in Germany. The sub-organisation “Samidoun Deutschland”, also operating under the names “HIRAK – Palestinian Youth Mobilisation Jugendbewegung (Germany)” and “Hirak e.V.” has been banned and dissolved.
The activities of Hamas in Germany contravene criminal law and are directed against the idea of international understanding within the meaning of Article 9 (2) of the Basic Law. In addition, their purpose and activities are to the detriment of significant interests of the Federal Republic of Germany (Section 14 (2) (1), 4th Variant VereinsG – Associations Act).
The association “Samidoun – Palestinian Solidarity Network” along with its sub-organisation in Germany, “Samidoun Deutschland”, also operating under the names “HIRAK – Palestinian Youth Mobilisation Jugendbewegung (Germany)” and “Hirak e.V.”, fulfils the grounds for a ban set out in Art. 9 (2) Basic Law, Section 3 (1) (1), and Section 14 (1) and Section 14 (2) VereinsG (Associations Act).
Hamas is a foreign organisation that has also been classified as a terrorist organisation by the EU since 2003. The European Court of Justice has reviewed and confirmed this categorisation. The Federal Administrative Court has consistently held that Hamas as a whole is directed against the idea of international understanding, regardless of whether it appears as a political, social or terrorist entity in individual cases.
The aim of banning an association is to break it up completely. This is possible in the case of domestic and foreign associations that have verifiable substructures in Germany. Neither Hamas nor the Samidoun network have such organised structures in Germany, however. Nonetheless, such foreign organisations that are active in Germany may be prohibited from operating even if they have no fixed structures. As a collective ban on activity, such a prohibition can in principle be directed against all activities of an association. However, it can also be limited to certain actions or persons as a so-called individual ban on activity. Such a ban on activity is an affirmation of provisions already in force, underlining the fact that the state does not accept any kind of support for such organisations from Germany, including financial support.
Germany and Israel are united by the fact that they are democratic constitutional states. This means that our actions are based on law and order, even in extreme situations. This is another reason why we are not indifferent to the humanitarian plight of people in the Gaza Strip.
In addition to continuing to provide humanitarian aid, the Federal Government is therefore committed to ensuring humanitarian access to the Gaza Strip. It has even boosted aid provision.
The development partnership is currently being reappraised, however. This means that until this assessment has been completed, we will not provide any new funds for development cooperation.
Social media and disinformation
It is not only since the Hamas attack on Israel that targeted misinformation has been spreading on social media. How can it be identified? What is the role of artificial intelligence? What do you need to know when dealing with social media? These and other questions are addressed by NETTZ, the networking centre against hate speech.
Belltower News is part of the Amadeu Antonio Foundation and also provides answers regarding targeted misinformation.