The Bundesrat, the upper house of the German parliament, has backed a legislative initiative that would impose criminal liability for publicly denying Israel’s right to exist or calling for its destruction. During its final meeting before the summer recess, representatives approved a bill submitted by the federal state of Hesse.
“We are deliberately introducing this bill now because it is time to move beyond discussions and take legislative action,” the statement said. According to the Bundesrat’s proposal, “anyone who publicly or at public gatherings denies the State of Israel’s right to exist or calls for its destruction” will face criminal penalties. However, the offense will only be punishable if the behavior is deemed capable of inciting anti-Semitic acts of violence or other forms of discrimination.
In Hesse, officials believe that current criminal laws are inadequate to effectively combat such expressions of anti-Semitism.
Hesse’s Minister of Justice, Christian Heinz, noted that after October 7, 2023 — the day of Hamas attacks on Israel — anti-Semitism has been openly displayed on the streets of Germany. Referring to the “stumbling stones” (Stolpersteine) that commemorate Jews killed during the Nazi era, the politician from the center-right Christian Democratic Union (CDU) remarked: “Masses are again marching over the brass Stolpersteine, which you all know from our streets and cities, openly shouting these slogans and this hatred of Jews.”
The bill and freedom of speech
Heinz emphasized that the bill is not intended to restrict freedom of speech or prohibit criticism of the Israeli government. It will also not impede discussions on a peaceful political resolution in the Middle East, as these are integral to a democratic society. According to him, the bill is “very deliberately drafted in narrowly defined terms” and targets only “calls that glorify violence” and deny Israel’s right to exist. The minister stressed that Germany should not “again stand helplessly aside” while hatred of Jews “unfolds on our streets.”
Before the vote, Heinz referenced the “Wunsiedel decision” of the Federal Constitutional Court in 2009, when the court in Karlsruhe upheld a provision criminalizing the glorification of the National Socialist regime, citing Germany’s unique historical responsibility. Hesse believes this justification can also apply to the current discussion, as there is a direct historical connection between the Holocaust, the establishment of the State of Israel, and the denial of its right to exist. For this reason, the bill’s authors argue that Israel’s right to exist is part of Germany’s “state raison d’être” (Staatsräson), and its denial undermines the country’s constitutional identity.
Criticism and constitutionality
However, the legislative initiative has already faced significant criticism. Around 30 law professors expressed concerns before the Bundesrat session that the bill could violate the Constitution, as a general law cannot be used to ban a specific opinion. Similar concerns were previously raised by the Research Services of the Bundestag.
In June, Daniel Cohn-Bendit, a Franco-German politician of Jewish descent who represented the Green Party in the European Parliament from 1994 to 2014, described Hesse’s initiative as “fundamentally wrong” in an interview with the newspaper Frankfurter Allgemeine Zeitung (FAZ). “There are many people who sharply criticize Israel, including Israelis themselves. Not all of them are anti-Semites,” he said, citing philosopher Judith Butler, a supporter of the BDS movement. Cohn-Bendit stated that while he considers BDS “stupid” and “ideologically absolutely wrong,” this does not imply that all its supporters are anti-Semites.
The core of the dispute revolves around balancing freedom of expression with the fight against anti-Semitism. According to Article 5 of the German Basic Law, freedom of speech can only be restricted by “general laws,” meaning those not aimed at a specific opinion. Critics argue that the proposed law violates this principle, as it would solely criminalize the denial of Israel’s right to exist, while similar statements about other states would go unpunished.
The path for such legislative initiatives from the Bundesrat to adoption is challenging. Although the transfer of bills to the Bundestag after the federal government’s conclusion is standard procedure, only a few become laws. During the current, 21st, legislative term of the Bundestag, which began in the spring of 2025, the Bundesrat has already approved 45 bills, but none have yet been enacted. From 2021 to 2025, out of 49 legislative initiatives from the Bundesrat, only two became laws, and in the previous legislative term, only 7 out of 66.
Political discussions surrounding the bill are likely to continue for several more months. Given that the dispute involves fundamental constitutional rights, the final decision may rest with the Federal Constitutional Court in Karlsruhe.
