The banality of definitions
In the German republic, old habits die hard.
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Rule of law is only as good as the rulers who make the law. Here’s what the Christian Union alliance (CDU/CSU), together the German republic’s largest and to date winningest party, is making of its desire to “combat antisemitism, terror, hatred, and hate speech” and “terminate residence and prevent naturalization of antisemitic foreigners.”
Those are the respective names of two draft bills that the opposition Union has submitted to the Bundestag. Germany’s parliament kicked off the legislative process last week by holding the first of a series of debates over the proposals. I use the word “debate” very loosely, as parliamentary groups across the spectrum were basically in agreement. From the far-right AfD’s we told you so, to the Greens’ hear, hear!, to the socialist Left’s what have we been waiting for?, German Officialdom appears rather united behind the belief that antisemitism is rampant in Germany — and the way to deal with it is tightening criminal law and keeping “imported” antisemitism out.
To summarize the bills with a broad brush, Germany could
deny asylum to, or deport those sentenced to at least six months in prison for an antisemitic crime;
deny citizenship to anyone with “factual, indisputable indications … of antisemitic attitudes”;
revoke citizenship of dual nationals sentenced to at least one year in prison for an antisemitic crime;
and grant citizenship only with the applicant’s “commitment to Israel's right to exist, and a declaration that the applicant for naturalization is not pursuing or has not pursued any efforts directed against the existence of the state of Israel.”
A candidate for naturalization who faces accusations of “antisemitic attitudes” will be afforded the “opportunity to refute the fact-based assumption in an interview,” but shown the door if unable to “credibly” do so.
On the criminal code side, the draft bill calls for an expansion of laws governing incitement and hate speech to specifically cover people who “deny the right of the state of Israel to exist or call for the elimination of the state of Israel.” Prison sentences for incitement extend up to five years — and as much as ten for “particularly serious cases,” which the proposed legislation defines specifically as perpetrators who “act in an antisemitic manner.”
Bear in mind that in Germany a “life sentence” is 15 years.
If you’re wondering how any of this complies with European or international, let alone German, law, not to worry. The Union makes sure to point out in the draft bills that its proposals are indeed “compatible.” So that should suffice in putting such pesky concerns to rest.
To the extent any of the Union’s ideas do violate existing law, it doesn’t matter. Regarding residency statutes, the changes to legal code “deliberately stand outside the system” in deference to the “legislator's overriding interest in the expulsion of a foreigner” convicted of an antisemitic act because the “protection of Jews and the fight against antisemitism in Germany are of such paramount importance to the German legislator.”
That importance supersedes just about everything else, including the 1951 Refugee Convention that was a response to the millions of refugees created by Germany’s effort to annihilate Europe’s Jews. Under the Union’s proposed legislation, Germany is well within its rights to deny legal protections to refugees convicted of “serious” antisemitic crimes because they “always constitute a danger to the general public.” In the Union’s view, that meets the standards laid out in the convention and corresponding European law.
You may be thinking, But isn’t this the country that once deported or revoked the citizenship of hundreds of thousands of people on the basis of them constituting a danger to the general public? Here, too, the Union has got you covered. Unlike, say, the Nuremberg Laws et al., the Union’s proposals claim to meet a “high requirement”: Protecting the state of Israel’s right to exist as a means of combating antisemitism in Germany. The punishment thus fits the crime, and the legal formulation “complies with the requirement of proportionality.”
All of this is prima facie insanity, but compatible with the Teutonic Imaginary’s foundational non-sequitur as stated in the draft text: “The protection of Jewish life is a state duty and non-negotiable. The security of Israel and its citizens are Germany’s reason of state.”
That German Officialdom does not appear to understand the differences between “Jewish life,” “Israel,” and “its citizens” — or intentionally conflates them — is, by its own definition, antisemitic. It reveals such a staggering and dangerous ignorance that it calls into question the state’s competence in the matter at all. Hearing the echos of German history ricochet off the walls of the German legislature leaves one to wonder if the current German republic is not much more than a Verschlimmbesserung of previous national iterations.
On its face, at least, it’s hard to argue with a proposal aimed at increasing a person or group’s safety. A state’s job is to secure the well-being of those living within its borders, enforce law, and prosecute offenders — and as Germany can itself attest, a country rife with antisemites is asking for trouble.
The thing is, the state already has ample means to do all this. A number of articles in the Basic Law, which stands in as Germany’s constitution, address violent groups and hateful acts. The criminal code builds on these protections against incitement and hate speech. The text is very clear:
“Anyone who, in a manner that is likely to disturb the public peace, incites hatred against a national, racial, religious, or ethnic group, against sections of the population, or against an individual because of his or her membership of the aforementioned group” is violating the law and faces up to five years in prison.
It goes on from there, including “attacks on human dignity” — a shoutout to Article 1 of the Basic Law: “Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority.”
On citizenship, applicants already go through a thorough criminal background check. Their naturalization includes an oath to “solemnly declare that I will respect the Basic Law and the laws of the Federal Republic of Germany, and will refrain from doing anything that could harm it."
Apparently that still isn’t enough, nor the existing exclusion criteria that covers hating on people because of the groups to which they belong. Earlier this year, the governing coalition specifically added “antisemitism” to that criteria, as part of the haggling process on the path towards “modern” naturalization. The much anticipated overhaul, which includes fully allowing dual citizenship, was a central promise of the current government and one that its CDU/CSU opposition was looking for any excuse to kill. To that end, Hamas has been a gift, as the reform appears to be shelved until the next ice age.
The Union’s latest proposals, which are not too distant from the ideas of other parties, blindly undermine a central legal concept that emerged from the Holocaust: the novel idea that Jews are human. That’s why Nazis were tried for crimes against humanity, because their efforts to exterminate Jews was a concern for the human race, not just the Jewish one. In putting Jews über alles, the Union and likeminded efforts simultaneously shortchange universalist claims to Jews’ humanity and violate equal protection essential to rule of law in a liberal democratic context. In other words, it is an initial descent into Arendtian totalitarianism, which attributed the “long history of Jew-hatred and antisemitism" to "only the choice of victims [and] not the nature of the crime."
This time, the “choice” is the “imported" antisemitism alleged to fester within Arab and Muslim communities, and specifically people fleeing their countries of origin in the Middle East who might — after 56 years of Israeli occupation widely at odds with international law — sympathize with the Palestinian experience and have a bone to pick with Israel. The rhetoric and positioning of proposals such as the Union’s then extend that bone to all Jews.
That makes life for Jews more dangerous, not less. Despite the Union’s claims to the contrary, “Jew” or “Jewish” actually get very little mention in the proposed legislation. It seeks not to protect people, but first and foremost a foreign state based on an assumed “right to exist” that international law is hardly clear on.
The overriding conclusion to draw is that Germany is voluntarily turning itself into a vassal state, putting Israel’s interests above its own or adopting them as its own, thus subordinating its national security to that of another. In so doing, it comes close to fulfilling the worst fear of Thilo Sarrazin, whom the Social Democrats ousted for his xenophobic views: “Germany abolishing itself,” only not by letting Muslims in but by explicitly trying to keep them out.
An additional paradox here is that the Union, at least symbolically, sides with a central argument of the Palestinian cause: Germany killed the Jews. The Jews are from Europe. The resulting guilt is European. So leave us alone in the Middle East and atone for that instead by handing Germany over to the Jews. After all, “Jews must feel safe” — goes the draft bill — and safety runs through sovereign self-determination — goes Zionist logic behind the Jewish state, which Germany sees at its “reason of state.”
I expect the keys to the chancellery to arrive in my mailbox any day now.
The absurdities pile up. What is “Jewish life” (more than twice as many Jews don’t belong to Jewish communities in Germany as do)? Which “Jews” get protection, and how (a Jewish-born cantor in Berlin was fired last year for publicly criticizing the number of German converts taking over communities)? Who decides what Israel’s “security” means (Benjamin Netanyahu’s Likud party was founded on the assertion that “between the Sea and the Jordan there will only be Israeli sovereignty”)? Who are the Israeli “citizens” who fall under the protection of Germany’s Staatsräson (25% of them aren’t Jewish and might hold views that, in the Union’s opinion, would get them imprisoned in, or expelled from Germany).
Even many Jews, Israeli and not, could qualify for deportation, or denial or revocation of German citizenship if they support the BDS movement, oppose Zionism, or call for a free Palestine — all of which the CDU/CSU, and much of the Bundestag, consider antisemitic or very close to it. From the draft text it is completely unclear how antisemitic “attitudes” or “assumptions” get defined, what constitutes a “serious” antisemitic offense, or how one might “credibly” defend himself against such accusations. Unfortunately, the CDU/CSU has not yet responded to any of my questions seeking to clarify these vague concepts.
Most in need of clarification: What is “antisemitism”? The draft bills, like German Officialdom pretty much across the board, throw the term around as if its understanding is universal and meaning is specific. They are not. Those tasked with monitoring, reporting, and prosecuting antisemitic offenses are all over the place, and very easily slip into Islamophobia and antisemitism targeting the other Semites — Arabs. Germany adheres to the IHRA definition, which spends a lot of time covering for the state of Israel rather than looking out for Jews.
Perhaps I am making a Sinai out of a molehill. The Union’s draft bills face a long legislative process, during which they may change or die outright. Yet the political climate has led to general suspicion of whole groups, as everyone tries to out-law-and-order the other. Following more than 20 raids this week targeting alleged sympathizers of Hamas and Samidoun, which the interior ministry recently banned, Interior Minister Nancy Faeser said, "islamists and antisemites cannot and must not feel safe anywhere here. These extremists must expect the full force of the rule of law."
A chilling and escalatory obfuscation, happening before any formal changes to existing law take place. Authorities in Bavaria have already raided homes on suspicion of antisemitic comments online, while in Berlin “accelerated court proceedings” have handed out the first verdict against a suspect accused of participating in antisemitic protests. For comparison, prosecutions of neo-Nazis in cases that present a far clearer and more present danger can drag on for months, if not years, and end inconclusively. When police get caught swapping hate speech in a private chat, a court dismisses it as mostly “satire.”
The people now in the state’s sights may very well be guilty of criminal behavior that puts lives and livelihoods at risk, or threatens the peace and stability of Germany’s democratic order as outlined in the Basic Law and subsequent penal code. In light of the rapidly moving legal goalposts, however, we just don’t know and only have the authorities to trust. Yet the last several weeks alone show just how little credibility German authorities have on the issue.
Far-reaching bans of Palestinian solidarity protests, heavy-handed police tactics to silence activists including Jewish ones, and the uneven prohibition of certain words and terms — including “genocide” — that have in some cases led to arrests all suggest that the state either doesn’t know how to protect Jews from actual threats, doesn’t want to, or doesn’t know what those threats are. A legal scholar and judge has called the interior ministry “careless” in the broad way it criminalized “from the river to the sea” earlier this month.
These laws, and the definitions they rest on, form the legal justification for how police and intelligence services go about doing their jobs. So far, they still acknowledge the differences between an activist and an extremist, and an Israel critic and a dangerous antisemite, even as their reports regularly admit the difficulties in doing so. The lawmakers who guide them seem intent on making that harder, if not outright encouraging them down a particular path that ends poorly for everyone.
As they should know because the Union references German history in its proposed legislation: Abuse of power and crimes of state don’t happen in the absence of law, but precisely within its warped presence.