Room 101 of the Berlin district court is a gloomy place of grey linoleum, wooden panelling, grand brass lamps and a huge chandelier.
Sitting upright at the wooden defence table was a young woman with black hair and anxious dark eyes. Egyptian-born Aya (25) was here because, a year ago at a pro-Palestinian march in Berlin, she shouted: “From the river to the sea, Palestine will be free.”
For Aya, who has lived and studied here for three years, it was a statement of support for the Palestinian people. Hours before the protest, she heard from a Palestinian acquaintance that half of their family had been killed in Gaza.
But for the Berlin state prosecutor, acting on police reports from the May 2024 protest, Aya was using an expression that is a “hallmark” of Hamas.
That is how the “river to the sea” phrase was defined by Germany’s federal interior ministry (BMI) in an administrative order from November 2023.
A month after the attacks on Israel, where members of Hamas and other groups murdered 1,200 Israelis and captured 250 hostages, Berlin‘s federal government outlawed Hamas and proscribed the use of “hallmarks” it linked to the organisation, including a red triangle and the expression “from the river to the sea, Palestine will be free”.
Since then, courts around the country have delivered very different verdicts for using the term. Some cases have ended in acquittal but, last August, the Berlin district court found a 22-year-old activist guilty and fined her €600.
In court 101, Aya’s defence lawyer Benjamin Düsberg described the BMI order as “absurd”, saying that just because the interior ministry insists it is a hallmark of Hamas doesn’t automatically make it true – or even logical.
“If the IRA in Ireland had co-opted Ave Maria as its hallmark,” he said, “then, by this logic, the entire Catholic Church could be found guilty.”
An expert witness commissioned by the court, Swantje Meer, presented a report tracing the roots of the phrase to decades before Hamas was founded in 1987. Since then, her searches threw up seven examples of the expression used by, or displayed near, Hamas officials and events. Her cited examples have variations in word choice and order.
“A regular use by Hamas cannot be established,” said Meer, who works regularly as an expert witness for the criminal police.
Court attention then turned to whether someone using the phrase automatically supports the end of the state of Israel – an argument brought by critics of the phrase.
Meer pointed out that there are other meanings: for some it is an emotional call for a unified Palestinian state, or form of protest against further fragmentation through Israeli military action in Gaza and illegal Israeli settler occupations in the West Bank. The expression has been used in a Zionist context, too, by Israel’s Likud party. In other words: it’s complicated.
“And yet the federal interior ministry waves a magic wand and makes it illegal,” said defence lawyer Düsberg, responding to the expert testimony. “Thanks to the BMI’s claim that this is a Hamas hallmark, we think of Hamas every time we hear the expression though barely anyone came to this conclusion before.”
After an afternoon studying the expert report, and references to the phrase in the Hamas charter and blurry YouTube screenshots, the court announced an acquittal. The 25-year-old turned, with a relieved smile, to 10 supporters in the public gallery.
In a preface to her ruling, judge Paulina Holle said she was not questioning Germany’s definition of Hamas as a terrorist organisation, nor was she relativising the horrors of October 7th.
However, she rejected the prosecution’s argument that the “river to the sea” expression is clearly a hallmark of Hamas simply because the BMI mentioned it as such in its November 2023 administrative order.
“That Hamas uses the phrase as a hallmark has not been proven,” she said. “It is not enough for the court that Hamas has simply used it.”
Minutes later, outside the court, Aya was rolling a cigarette – and her eyes.
“This is their way of making us scared, I guess,” she said. “It is funny how they engage in three hours of cheap philosophical debate at a time when actually human disaster is happening.”
German debate, though, is shifting. Following the October 7th attacks, Israel’s military response prompted clear and almost unquestioning support in official Berlin circles. Critics of Israel Defense Forces (IDF) methods often faced regular accusations of anti-Semitism.
Like two Irish citizens, resident in Berlin, who face expulsion over their alleged role in violent pro-Palestinian protests last year. The two have no criminal record and no court date has been set but, in Die Welt newspaper last month, Berlin’s governing mayor Kai Wegner called them “anti-Semitic criminals”.
The Christian Democratic (CDU) mayor and his office have declined repeated Irish Times requests – by phone, in email and in person – to explain the accusation.
In the same article Burkard Dregger, a senior Wegner CDU ally, called for the two “criminals ... to be made an example of”.
Contacted by The Irish Times, Dregger insisted the two had been involved in “unacceptable levels of anti-Semitic violence” but did not provide evidence of any criminal convictions.
“It’s like in an Irish pub,” he said. “Whoever riots is kicked out – and rightly so.”
Nearly three months into Israel’s humanitarian blockade on Gaza, however, a shifting mood is palpable. In a recent public television poll, 80 per cent of Germans said the level of civilian casualties in Gaza makes the IDF war there unjustified.
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The media debate is shifting, too, since a Spiegel cover story last week: “Estranged? How the Gaza war strains the German-Israeli Friendship.”
It cited Middle East experts warning of “global reputational damage” because of uncritical German support for Israel, support which the magazine argued is “largely projectional”.
History – in particular the shadow of the Holocaust and Germany’s historic wish for reconciliation with Israel – has, Der Spiegel suggested, blinded the official gaze twice over in the present: to the diversity of the modern German population, including the largest Palestinian population outside the Middle East; and to how Israel under Binyamin Netanyahu is “heading for autocracy”.
The most significant shift has come from Germany’s new chancellor, Friedrich Merz. On the campaign trail the CDU leader promised a government to “stand firmly at Israel’s side, there will be no doubt about that”.
Merz sounded very different on Monday, hours after a reported 45 people were killed in an air strike on a school-turned-shelter which the IDF said was also used by Hamas.
Germany’s history required it to be more restrained than other countries towards Israel, he said, “but, frankly, I can no longer understand the goal of what the Israeli army is doing in the Gaza Strip”.
As Berlin politicians now line up to express concern, and even call for an arms embargo, federal commissioner against anti-Semitism, Felix Klein, said: “Starving the Palestinians and deliberately aggravating the humanitarian situation has nothing to do with safeguarding Israel’s right to exist.”
And what of the legal crusades against pro-Palestinian campaigners? The public prosecutor has filed a challenge to Aya’s “river to the sea” acquittal. Her defence lawyer, Düsberg, says he is ready for the next round.
“Citing Germany’s historical responsibility to Israel to crack down on expressions of Palestinian solidarity,” he said, “is an abuse of the memory of the Holocaust.”
