Germany’s struggles to balance freedom of expression rights with moral obligation to Israel

It was a summer 2015 and I was following Angela Merkel around eastern Germany at the height of the refugee crisis. One sunny morning in the northeastern city Rostock, she was the star attraction at a town-hall meeting titled Living Well in Germany.

Near the end of the event, the chancellor was challenged gently by a 14-year-old Reem Sahwil. She was not living well in Germany: her Palestinian family had arrived from Lebanon four years previously but, pending a final asylum decision, had no certainty about their right to remain.

“I don’t know what my future looks like if I don’t know if I can stay,” said Reem, who began to weep.

Footage of Merkel trying to comfort the teenager went viral on social media and in 2017 her asylum status – and her right to remain – was confirmed.

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Now Reem Sahwil has gone viral once more after posting on Instagram an image of the map of Palestine and the slogan: “from the river to the sea #freepalestine”.

With that, a teenager who highlighted the human cost of Germany’s slow-moving asylum bureaucracy has become the personification of Germany’s post-October 7th dilemma: how to balance freedom of expression rights with Germany’s moral obligation to Israel and its security, given the history of the Shoah?

In the last month twice as many pro-Palestine demonstrations have been registered with police as pro-Israel gatherings, according to Der Spiegel magazine. While most pro-Israel gatherings were allowed to go ahead, one in four pro-Palestine gatherings has been banned.

For three days in October, police in Hamburg banned all pro-Palestine demonstrations, citing “a very high risk of crimes and an incalculable risk situation”. Other cities followed its lead.

Even after the blanket bans were lifted, those who want to protest in public against Israel’s bombardment of Gaza complain of arbitrary harassment. Some have been rounded up and fined simply for remaining in the area of demonstrations that were banned at the last minute.

What they see as skewed treatment of their demonstration right reflects, for them, official Germany’s asymmetric view of the Middle East tragedy.

“The right of assembly in Germany is one big lie,” said Ahmed, a 25-year-old Syrian man detained at a banned Hamburg march. “They want to correct their historical mistake at our cost.”

The protesters point out that it was Nazi-era crackdowns against its opponents that motivated articles five and eight of the postwar constitution, guaranteeing the right to demonstrate and assemble peacefully.

While those rights have always come with conditions, some legal experts are concerned by pre-emptive march bans, a trend that spiked with vaccine critics and conspiracy theorists in the Covid-19 pandemic, on the suspicion that something illegal might be said or done.

At the same time, however, its history has left Germany anxious to crack down on anything that threatens its Jewish citizens or generates negative headlines in Israel. Many marches have seen arrests for illegal shouts and slogans.

Meanwhile, harassment of Jews in Germany – on the fringes of marches and elsewhere – is very real, too. Last Saturday night, two Libyan asylum seekers were detained by police after allegedly setting fire to a memorial plaque outside a synagogue in the eastern city of Erfurt. A month earlier in Berlin, two petrol bombs were tossed against the facade of a Jewish community hall.

Last week, Chancellor Olaf Scholz visited that community’s synagogue and acknowledged that Germany’s postwar promise of “never again” was being tested and required “police and judiciary to consistently enforce applicable law”.

“We will prosecute anyone who supports terrorism or engages in anti-Semitic agitation,” he said.

In an unscripted addition, the chancellor promised that his government’s current revision of the country’s naturalisation laws will “clearly regulate that anti-Semitism stands in the way of naturalisation”.

The same day, his federal interior minister Nancy Faeser published legislation banning all German offshoots of Hamas, its logos and symbols as well as the phrase “from the river to the sea”.

With roots in the 1960s movement around Palestinian leader Yasser Arafat, the slogan refers geographically to the area between the Jordan river and the Mediterranean Sea, which currently includes the State of Israel and the Palestinian territories.

Where some see the phrase as a freedom slogan and a wish for a peaceful Palestinian state with full rights for its citizens, critics say the phrase – subsequently adopted by Hamas – supports the use of violence to wipe Israel from the map.

Faeser appears to have followed this second interpretation. State prosecutors, who previously viewed “from the river to the sea” as a freedom slogan, say they are now obliged to change their approach – even if a court challenge to the law is likely.

Even after her recent Instagram post, however, Reem Sahwil need not fear being deported under the new rules. Last February, she became a German citizen..