Appeal filed against Berlin court verdict: "From the River to the Sea" Finds its Way to Ger­many's Federal Court of Justice

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Does the phrase "From the River to the Sea" constitute a criminal offense? Is this geographical part of the full pro-Palestine slogan enough? Or is it only punishable in conjunction with the demanding addition "Palestine will be free" – if and because this is understood as a call for the extermination of Israel and the violent expulsion of the Israeli population?

Criminal and administrative courts have been arguing about these questions since the German Interior Ministry deemed the slogan a Hamas symbol as part of a Hamas ban over a year ago. Now there is unexpected momentum in the undecided case law: the Federal Court of Justice (Bundesgerichtshof) will decide – on an appeal against a ruling by the Regional Court of Berlin (Landgericht Berlin I) in early November.

The court imposed a fine on a 42-year-old Berlin woman for using symbols of terrorist organizations, punishable under Section 86a (1) no. 1 of the German Criminal Code (Strafgesetzbuch), because she had shared the slogan twice on Instagram, in November and December 2023. Additionally, by posting a photo of a spokesperson from Hamas' Qassam Brigades with approving comments and emojis, she also violated Section 86 (2) of the German Criminal Code, the court found (judgment of Nov. 8, 2024, Case No. 502 KLs 21/24). This was the first time a criminal chamber of a Regional Court deemed the slogan a Hamas symbol.

Non-stop to Karlsruhe

A notable aspect of this case is its procedural path. Under Section 74a (1) No. 2 of the German Courts Constitution Act (Gerichtsverfassungsgesetz), the Regional Court is the court of first instance for cases involving an offense under Section 86 Criminal Code as a "threat to the state." This will, if the conviction holds, result in a hefty fine of 130 daily rates of ten euros each for the defendant, which will appear on her criminal record. 

For the public interested in legal certainty, however, it has a positive side effect: the only appeal available against first-instance judgments of the Regional Court is a Revision to the Federal Court of Justice. Normally, these cases are heard by the district court in first instance due to the low expectation of punishment. The appeal process then ends at the Higher Regional Court (Oberlandesgericht).

Many had therefore expected that the Federal Constitutional Court (Bundesverfassungsgericht) would first decide on the extent to which the slogan may result in a criminal conviction and only later, if at all, the highest criminal court. But now things are different. Dr. Frank K. Peter, the defence lawyer of the accused Berlin woman, lodged the appeal on Monday last week, as he confirmed to LTO. The Federal Court of Justice should clarify the extent to which the individual context of the statement must also be taken into account within the framework of Sections 86 and 86a Criminal Code. This is the key question that the courts have been wrestling with for over a year. 

Prior to the Interior Ministry's Hamas ban of November 2, 2023, the slogan was, with a few exceptions, not prosecuted under Sections 86 and 86a Criminal Code – although it could have been attributed to Hamas even then using the arguments now being used. The main one is that Hamas had appropriated the slogan in its 2017 charter and through other communications in recent years.

Context and Symbolism

From 2022 to October 7, 2023, criminal liability for incitement to hatred (Section 130 Criminal Code) was primarily discussed but largely rejected. After the Hamas attack on Israel, the focus shifted to condoning criminal offenses under Section 140 No. 2 Criminal Code. According to the former Federal Court judge Prof. Dr. Thomas Fischer on LTO, this is clearly the case when people cheer on the Hamas terror attack, as happened on the afternoon and evening of October 7 on Berlin's Sonnenallee.

The Berlin-Tiergarten District Court also applied this criminal provision against a woman who chanted "From the River to the Sea" four days after the terrorist attack, on October 11, in front of a school also located on Sonnenallee. In the ruling, which LTO reported on, the court found that the temporal proximity to October 7 did not allow for a non-violent interpretation of the slogan – for example, as a demand for equal treatment of Jews and Palestinians in the area between the Jordan River and the Mediterranean Sea.

The District Court thereby applied the standard that the Federal Constitutional Court has developed in relation to expressive offenses in order to take into account the importance of freedom of expression: Is a non-punishable interpretation conceivable according to the context of the statement, and is that interpretation not completely remote?

This standard follows directly from the German Constitution (Grundgesetz) and therefore applies regardless of which provision of the Criminal Code is at issue in the specific case – even if this is not always immediately clear. It is obvious that the court must interpret the statement if it is to examine whether it incites hatred against sections of the population (Section 130 (1) No. 1 Criminal Code), condones a specific criminal offense (Section 140 No. 2) or publicly calls for such an offense (Section 111 Criminal Code). It is, however, less clear if a person is accused merely of using symbols of a banned organization. For example, if someone makes an image of the swastika available to the public, courts do not ask about the content of this "statement." Using the symbol publicly is punishable without further context because Hitler's Nazi party NSDAP had made it its own.

The 2008 Federal Court ruling on the "Keltenkreuz"

The Regional Court of Berlin applies the same logic to "From the River to the Sea" and Hamas. A criminal chamber at Mannheim Regional Court, however, took a different view in a decision in May, in which it refused to issue a penalty order. LTO reported, among many other media outlets.

According to a statement from the court, the Berlin judges referred to a ruling by the Federal Court of Justice from October 1, 2008 on the "Keltenkreuz", which translates to "Celtic cross." This is a medieval sacred Celtic symbol with different variants, one of which was used by the right-wing extremist party Volkssozialistische Bewegung Deutschlands / Partei der Arbeit, which was banned in 1982, as its symbol. The 3rd criminal division of the Federal Court of Justice ruled that it was sufficient for a symbol to be associated with a banned or terrorist organization if the organization appropriated it through constant use. The court deemed it irrelevant whether the symbol "is also used innocuously in other contexts and has merely been adopted by the organization" (case no. 3 StR 164/08).

It will now be interesting to see what the Federal Court of Justice will derive from its former rulings for the criminal liability of "from the River to the Sea." Probably the Berlin case will again fall within the jurisdiction of the 3rd criminal division.

While the Celtic cross ruling refers to a mere symbol, the Palestine slogan is a word sequence that is generally open to interpretation. Therefore, it is questionable whether the Constitutional Court's case law on freedom of expression allows a criminal court to simply omit a possible search for the content of the statement. At best, this may be permissible if the symbolic power of the slogan is particularly clear, i.e., the accused statement is completely identical to the wording used by the banned organization. This is questionable in this case – also due to differences between Arabic and English.

It should also be noted that in the "Keltenkreuz" ruling, the Federal Court of Justice primarily addressed the question whether the symbol can be attributed to the banned organization.

However, this is not the only controversial subject. The Mannheim Regional Court did also take notice of the "Keltenkreuz" ruling in its decision not to open criminal proceedings. Nevertheless, it concluded that "From the River to the Sea" was not a Hamas symbol. The court did that by focusing on two issues the Regional Court of Berlin, to the contrary, has not yet addressed, neither in its press release nor – according to concurring statements made to LTO by a court spokeswoman and defense lawyer Peter – in the oral reasoning.

The three legal sticking points

First, in the opinion of the Mannheim Regional Court, the geographical part "from the River to the Sea" is not a slogan in a legal sense. This would require a "motivating slogan", the court found.

Second, the slogan – at least with the addition "Palestine will be free" – could not be attributed to Hamas. A passage in Article 20 of the 2017 Hamas Charter is cited – for example by the Higher Administrative Court of Baden-Württemberg and the Berlin Regional Court – to support the attribution of the slogan to Hamas. It reads in English: "Hamas rejects any alternative to the full and complete liberation of Palestine, from the river to the sea."

The Mannheim Regional Court is the only court so far to point out that this wording differs from the slogan "from the River to the Sea, Palestine will be free", as chanted at pro-Palestine demonstrations. It also points out that the Arabic version reads: "from its river to its sea." This may be considered identical in content compared with the slogan chanted at demos, although it should be noted that Article 20 of the Charter refers to the 1967 borders. However, the versions are certainly not identical in wording whereas the Berlin Regional Court's press release states that Hamas has "included the slogan in question in its charter since 2017." Only the written reasons for the decision will show whether there is an awareness of the discrepancy. The federal judges are likely to take a closer look here.

A third obstacle could also be decisive, which caused the Mannheim Regional Court to reject criminal liability: statements that are clearly not contrary to the protective purpose of Sections 86 and 86a Criminal Code are not punishable under these sections, according to the Federal Court of Justice. The highest criminal court developed this exception, among other cases, in its "Keltenkreuz" decision. However, it has so far only been recognized – apart from the purposes of education, science, press reporting and art – if the use of the symbol is an obvious criticism of the banned organization or its ideology. This has become particularly relevant in the case of Nazi symbols. The standards are strict, as a critic of protective measures against Covid recently learnt the hard way: when the Berlin Court of Appeal (Kammergericht) found him guilty pursuant to Section 86a Criminal Code for the depiction of a swastika on a face mask.

How these standards can be applied to the River-Sea slogan is an open question. According to the Higher Administrative Court of Hessen and the Mannheim Regional Court, the expression of the slogan should only be punishable if it has a clearly recognizable connection to Hamas's ideology. In two decisions with different outcomes (here and here), the Higher Administrative Court of Bavaria emphasized the obligation of police and authorities to at least substantiate the ideological proximity of the demonstration participants to Hamas. The Higher Administrative Courts of Bremen and Baden-Württemberg, on the other hand, only dismiss criminal liability if there are exceptional indications of a lack of organizational affiliation. However, the Berlin case is probably clear in this respect: anyone who adds approving emojis to photos of members of the Qassam Brigades and operates an Instagram profile under the name "Hamas Lounge" can hardly argue that they do not (or did not) sympathize with Hamas.

This text is a translated and slightly revised version of the article published in German on November 14, 2024.