Is it legal to say the words “From the river to the sea, Palestine will be free” in Germany? The answer appears to be yes: you can shout them from the rooftops in German, English, Arabic or Hebrew, so long as a court accepts that you are not doing so to indicate support for Hamas or its murderous assault of 7 October.
This distinction came to bear on the activist Ava Moayeri last week, when she was convicted of “condoning a crime” for leading a chant of the slogan at a Berlin rally on 11 October. If the speaker of the phrase is understood to mean, for instance, that they support the peaceful liberation of Palestinians, then the utterance would be protected. But the presiding judge, Birgit Balzer, didn’t think that was possible in this case, citing the date of the protest in her decision. Moayeri is expected to challenge the verdict in a higher court.
The slogan has come to symbolise a rift running through German society amid Israel’s war in Gaza. For some people, the expression is implicitly genocidal, especially because of its long history of use by Hamas and other terrorist organisations. The judge reportedly said that it was clear to her that it “denied the right of the state of Israel to exist”, while Germany’s interior minister, Nancy Faeser, has declared it to be a Hamas slogan. Others see it as a simple call for freedom for the Palestinian people, which the speaker might envision in a number of ways. (Moayeri’s legal team said the slogan must be seen as a “central expression of the global Palestine solidarity movement” with a historical origin predating Hamas.) While there have been widespread attempts by prosecutors, police and Germany’s “antisemitism tsars” to enforce the former interpretation, courts have tended towards the latter.
The judge’s decision last week was “surprising and in tension with others”, Ralf Michaels, a director of the Max Planck Institute for Comparative and International Private Law, told me in an email. Similar cases in Mannheim and Münster had found that the phrase could be used in senses protected by German law.
As questionable as the verdict may be, the episode helps to reveal the dimensions of the social and political crisis facing Germany. A country that still stands to the same melody used as a national anthem by the Nazis might be a little more circumspect about the ways in which political symbols can mean different things to different people at different times.
Moayeri, who was accused of expressing her support for Hamas, has said that she comes from a family of (presumably secular) Iranian communists. She has been in the news before, for her work trying to bring the resources of the German state to bear to prevent honour killing in Islamic communities. She hardly seems like a supporter of religious fundamentalists.
Activists have also faced arrest for using variants of the expression, such as “From Risa to the Spree”, referring to a popular fast-food restaurant in Berlin and the river that bisects the German capital. Perhaps most remarkably, Berlin police have banned singing, chants and speeches in languages other than German and English at some demonstrations.
But in many ways, the slogan is hardly even an important part of the story. Accusations of antisemitism in Germany have provoked calls for deportation from the highest political offices. In the current climate, funding for social spaces, higher education, cultural centres and artists has been withdrawn or called into question – often with little regard for democratic norms, due process, or the important work these institutions and individuals often perform.
For many German leaders bent on preventing the spread of antisemitism, the objections rendered by courts and legal observers in favour of free speech seem only to be evidence that better laws are needed. The most troubling among them is almost certainly a draft resolution being debated in the Bundestag. If passed, it would enact a wide range of measures that critics fear would have a broadly chilling effect on speech in Germany, including a provision that would require anyone seeking federal funding to submit to a background check conducted by Germany’s domestic intelligence service. The bill enjoys broad support across the political spectrum.
It is perhaps hard not to hear echoes of Freud in the German propensity to see the spectre of genocide in a call for freedom. For many Germans, as Alexander and Margarete Mitscherlich pointed out in their influential 1967 work, The Inability to Mourn, the end of the second world war meant a repression of the suffering of defeat and of the intensity of their attachment to Hitler. It is hard to think that repressed mourning for Hitler is widespread in Germany today, but it’s equally hard to escape the conclusion that there is still some kind of widespread psychic distortion in place when it comes to questions of Jews and Jewish life. Hence the absurdity of the German police arresting Jewish activists and prohibiting a demonstration by a leftwing Jewish group out of a supposed concern for Jewish welfare.
There are legitimate concerns that the “from the river” slogan of Palestinian liberation holds close and painful associations with the terror of Hamas. Germany could address these by talking openly. Everyone’s pain deserves respect and consideration, and if people feel traumatised by something, that should matter. But we can’t let our traumas define our view of the world. There are plenty of ways to imagine a free Palestine that don’t involve genocide. Even if the slogan was once associated with Hamas, it doesn’t have to be today. There are people in Germany who are investing “from the river to the sea” with the accumulated dignity and hope of nonviolent protest movements. But they have to be allowed to talk, and Germany has to start listening.
Peter Kuras is a writer and translator based in Berlin
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