Shielding Israel: Germany is still drawing the wrong lessons from the Holocaust

Berlin’s own history with genocide suggests it should know better than to shut down any protest against the mass deaths in Gaza

On 6 August, a court in Berlin sentenced a young woman called Ava Moayeri to a fine of €600 for shouting “From the River to the Sea, Palestine will be free.” One of Moayeri’s lawyers, Alexander Gorski, deplored this as “a rather dark day for freedom of expression in Germany.”

He’s right, even if his comment is an all too understated response to a scandalous miscarriage of justice. Indeed, it is hard to answer the question of what is wrong with this sentence, because, quite literally, everything is. Judge Birgit Balzer’s reasoning, for one thing, was embarrassingly shoddy, irresponsibly misinformed, and ethically and legally misguided, about which more below.

Beyond Balzer’s failure to do justice to the important issue she had to adjudicate, the case and sentence also represent a larger problem, in Germany and beyond: the West’s perverse pampering of Israel. One form taken by this pampering is to allow the Israeli regime to abuse the memory of the Holocaust, a genocide targeting Jews, to claim impunity for its own crimes against humanity, including genocide targeting Palestinians.

Balzer, too, explicitly invoked the Holocaust to justify her sentence. Yet Moayeri, the daughter of Communists from Iran, made clear that she has nothing to do with either glorifying violence or antisemitism. On the contrary, her concern is with showing solidarity to the Palestinian victims of Israeli violence and standing up for their rights. Balzer felt entitled to disregard this perfectly plausible position, attribute entirely unproven motives to Moayeri, and, on that fundamentally flawed basis, punish her. In effect, it is clear that Moayeri’s right to peaceful protest and a perfectly legitimate political position was suppressed to protect Israeli narratives from any challenge. And these narratives, in turn, are used to shield Israel from accountability for its crimes, and thus they also withhold help from Israel’s victims.

The facts of Moayeri’s case are not complicated. On 11 October 2023, she participated in a small protest outside a Berlin school, where she used the slogan “From the River to the Sea, Palestine will be free.” There was no violence – indeed, the demonstration explicitly criticized violence that had occurred at the school – and she was not charged with anything else. The prosecution argued that merely by shouting these words, Moayeri committed the crime of condoning another crime. By that, the prosecutor was referring to the Hamas attack on Israel on 7 October.

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Yet, in reality, Palestinians have an incontestable right to armed resistance under international law. While the attack also involved crimes – though far fewer than claimed by Israel (see below) – Palestinians do not commit a crime when fighting Israeli soldiers, which is what Hamas did to a large extent on 7 October. In Berlin, neither the prosecution nor the judge, however, seemed to care about this legal fact.

Judge Balzer instead agreed with the prosecution and added several arguments of her own: According to Balzer, the slogan “From the River to the Sea” denies “Israel’s right to exist.” Balzer also believes that the context of Moayeri’s use of the slogan – a few days after the Hamas attack – allows for only one interpretation, namely that Moayeri meant to condone the attack and “downplay its monstrous quality.” Balzer’s argument about context is not only absurd but astoundingly complacent, betraying an almost pitiable lack of self-awareness, but we will get back to that.

First, let’s look more closely at her other points: One issue that should surely have complicated Balzer’s simplistic approach is the fact that we by now know – including from Israeli media – that, on 7 October, many Israelis were deliberately killed not by Hamas but by Israeli forces, in an application of the so-called “Hannibal Directive”. A typically perverse and cynical policy, originally designed to allow Israeli soldiers to kill other Israeli soldiers so that they cannot be captured by Palestinian resistance fighters, on 7 October the Directive was used indiscriminately – in effect, against Israeli civilians, too. Therefore, much of Balzer’s “monstrous quality” of the events on 7 October actually came from the Israeli military. That is a well-established fact, not an opinion. So, basing her sentence on a biased, uninformed, and one-sided attribution of all the violence to Hamas alone already undermined its plausibility.

Regarding Israel’s “right to exist,” it is astounding to hear a judge dare advance this argument. Every jurist knows – or should know – that it is an incontrovertible fact of international law that states do not have such a right. Diplomatic recognition by other states is a matter of maintaining international relations, but it confers no “right to exist” to the recognized state. For instance, while one may regret their disappearance, absolutely no such “right” was infringed when, for instance, the former East Germany, the Soviet Union, or Czechoslovakia ceased to exist. In reality, peoples or nations – not states – have a right to self-determination. And it is Israel that has violently deprived the Palestinian people of that – actually existing – right as well as, of course, their land, and often lives.

Israel has, it is true, blanketed the global public sphere with such a barrage of disinformation about this basic fact (as about so many others) that ordinary mainstream media consumers are likely to be confused. Yet anyone with a claim to keeping informed and certainly a trained judge must know that this is merely an Israeli talking point, not a right.

Generally, Balzer, it seems, has a severe problem keeping political categories out of what should be her legal reasoning. She also brought that notorious German “Staatsräson” (reason of state) into play. In particular, she invoked the idea, formulated in public speeches in 2007 and 2008 by former Chancellor Angela Merkel, that, for Germany, what it misunderstands as Israel’s “security” and protecting Jews in Germany are part of that “Staatsräson.”

Yet while that notion has influenced several German laws, it has still no place in a court of law. For speeches, even by a state’s leader, do not establish law. Even the German parliament recognizes that “the concept of ‘Staatsräson’ is not employed either in the Basic Law [that is, the German constitution] nor in elementary legal precepts of German law. Therefore, it cannot be construed as a legal term. Rather, in German state practice today, it is understood as a political key principle.”

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Balzer even regurgitated Israeli propaganda about decapitated babies and systematic mass rape by Hamas. Both stories are untrue and have been comprehensively disproved, as has been widely reported even in mainstream media. In fact, even US President Biden had to “walk back” his reckless repetition of these false atrocity tales. It is shameful to see a German judge not only repeat them but make them part of her reasoning in a legal finding. For these are not “merely” untruths but what we now call “weaponized disinformation” – or deliberate lies – that have been used to generate political cover and support for Israel’s Gaza genocide.

Finally, Balzer claimed that demanding a free Palestine on all its territory is necessarily the same as calling for the end to Israel. Frankly, and so what? Interestingly enough, the incoming head of EU foreign policy, Kaja Kallas from Estonia, has, in effect publicly and recklessly called for the end of Russia as a state, which seems not to provoke any objections in the West. And while Kallas is a catastrophe of incompetence and Russophobia, it is, actually, not a criminal offense to call for the end of a state because states do not have any right to exist (see above).

Moreover, in reality, the call for a free Palestine can also be understood as demanding not an end to Israel but a very different Israel, one that has abandoned its horrific racist and murderous regime and been absorbed into a successor state Palestine in which all inhabitants will have equal rights. Among well-informed and dispassionate contemporaries, we call this the one-state solution, and it has nothing to do with ethnic cleansing or antisemitism. It is also, in reality, the only way forward, because Israel’s endless bad faith and horrendous crimes have discredited all other models.

In sum, the sentence against Moayeri is a narrow-minded, politically motivated absurdity, and a disgrace for a country that prides itself on being a “Rechtsstaat,” a state of the rule of law. The law requires reason and abstention from bias. Both have been sorely lacking here. Fortunately, this sentence can be appealed, and it is as good as certain that it will be. Let’s hope that higher German courts won’t let this shameful gagging order pass.

Yet there is a larger point, an absurdity overshadowing all the other absurdities: Balzer, recall, based much of her unjust speculation about Moayeri’s motives on context. For the judge, the fact that Moayeri shouted “From the River to the Sea” several days after the Hamas attack of 7 October was proof that Moayeri must have meant it as supporting atrocious violence. Of course, that is nonsense. But, for a moment, let’s accept the judge’s flawed premise and apply it to Balzer herself: What is the context of her sentence, then? She has punished a young woman for daring to show solidarity with victims of Israel’s settler-colonial land stealing, its apartheid, and many other atrocities. But not just at any moment, but in the context of the ongoing crimes against humanity, transmitted from Gaza in real time into every home with a TV set and an internet connection.

Punishing those siding with victims of ongoing mass killings? Quite some context there for judge Balzer herself. One that a German should have recognized, precisely because, historically, Germany is also, historically, a country of genocide perpetrators. Because of that guilt, Germany’s “Staatsräson” should be to always side with the victims and never with the killers, not even indirectly. A pity Germany’s elites still can’t grasp even that much.