The shaky legal ground of Deutsche Welle’s anti-Semitism probe

On Monday, 7 February, Deutsche Welle (DW) announced the findings of a two-month report into allegations of anti-Semitism within its Arabic-language news department.

Those tuning in were promptly told that five DW journalists had been sacked. The grounds for their termination, which the fired journalists were told about only hours earlier, were outlined in a report released the same day.

But lawyers who have since studied that report say there are serious faults with how the investigation was conducted.

“The report itself goes beyond the employees’ dismissals and tells journalists how they should report in future,” Alice Garcia, an advocacy officer at the European Legal Support Centre, told The New Arab. “That’s problematic for the freedom of the press and freedom of expression.”

The 56-page document, published in German, outlined the grounds for the dismissal of the five journalists: Farah Maraqa, Murhaf Mahmoud, Basil al-Aridi, Maram Salem and Dawood Ibrahim.

"To many familiar with the German media context, the decision to terminate the seven DW journalists is part of a much larger trend of censoring pro-Palestine content and limiting freedom of expression with regards to Israel"

Two additional Palestinian journalists, Zahi Alawi and Yasser Abu Muailek, were fired this week over social media posts made during the 2014 bombing of Gaza. Alawi had worked at DW for 17 years.

While the report found there was no structural anti-Semitism within the service, as had been alleged by some media, it concluded that some of these journalists had, in the past, indeed made statements that amounted to anti-Semitism. The report justified their earlier suspension and eventual sacking.

The fired journalists, who are all Palestinian or Lebanese, say they were unable to read the report before its release or even given a clear reason for their termination. They were also not given a chance to defend themselves against the report’s findings before it went public.

Accusations of censorship

Germany has seen a sharp increase in anti-Semitism in recent years, with almost all anti-Semitic incidents instigated by right-wing individuals and groups. Nonetheless, Arab and other journalists of colour are often singled out for alleged anti-Semitism based on statements made criticising Israel, often many years before.

Just a few months ago, Nemi El-Hassan, a prominent Palestinian-Lebanese journalist who grew up in Germany, was stood down from a position on public television after photos of her at a 2014 pro-Palestine rally were revealed in right-wing media.

To many familiar with the German media context, the decision to terminate the seven DW journalists is part of a much larger trend of censoring pro-Palestine content and limiting freedom of expression with regards to Israel.

There is a particular sensitivity to criticism of Israel in Germany, and anti-Zionism is widely conflated with anti-Semitism. In 2019, Germany became the first European country to denounce the Boycott, Divestment and Sanctions movement as anti-Semitic.

Within DW, employees have sounded the alarm on attempts to frame all criticism of Israel based on its violation of human rights as anti-Semitic. Last May, during the Israeli assault on Gaza, DW reportedly sent out an internal memo banning employees from using words such as “apartheid” and “colonialism” to describe Israel.

As part of the recent inquiry, Maram Salem said that her personal life was  scrutinised and she was asked questions about her childhood, political views, and perspectives on the BDS movement.

Concerns about the investigation

The two investigators behind the report were psychologist Ahmad Mansour, a Palestinian citizen of Israel once dubbed “one of Europe’s most outspoken critics of radical Islam”, and Sabine Leutheusser-Schnarrenberger, a former German federal justice minister in the Free Democratic Party.

This raised eyebrows, as neither investigator appears to have completed formal training in media analysis. 

“A report like this should be done by a senior journalist or media expert,” said Giovanni Fassina, the European Legal Support Centre’s programme director. “Why is a psychologist and Islamism expert telling Germany’s biggest news organisation the narrative they should develop on Israel-Palestine?”

The report based its findings on the IHRA working definition of anti-Semitism, which critics say is vague and allows the conflation of legitimate criticism of the Israeli state with anti-Semitism. It has been called “unclear and confusing" by leading British human rights lawyer Hugh Tomlinson.

Lawyers say DW’s use of the IHRA definition is problematic because it negates the lived experience of its Palestinian employees at the hands of Israeli state.

"The report based its findings on the IHRA working definition of anti-Semitism, which critics say is vague and allows the conflation of legitimate criticism of the Israeli state with anti-Semitism"

“The Germans may not understand that a Palestinian who’s been dispossessed may have different views on Israel,” said Giovanni Fassina. “They have their own perspective.”

In some cases, the report linked statements from journalists using the term “Holocaust” to describe the treatment of Palestinians with examples from the IHRA framework, which specifically mentions “drawing comparisons of contemporary Israeli policy to that of the Nazis.”  

According to the IHRA framework, anyone making those statements is anti-Semitic. And while such analogies may be clumsy, it’s not certain that these would be suitable grounds for an employee’s dismissal in Germany.

“This proves why using the IHRA definition in such a context is a problem,” said Giovanni Fassina. “The definition is so vague.” 

Overstepping legal boundaries

DW’s report came two months after a series of German-language news articles highlighting years-old social media activity from Arab journalists. These news stories, beginning with a piece in Süddeutsche Zeitung on 30 November, suggested the existence of such activity was evidence of structural anti-Semitism at the broadcaster.

The investigation trawled through social media activity of the seven journalists going back a decade.

In posts stretching back up to 2012, most of which are long deleted, journalists had “liked” or made statements that “amounted to anti-Semitism, Holocaust denial or Holocaust relativism, as well as statements that denied Israel's right to exist," the report stated.

But lawyers say that, even if this was the case, employment contracts rarely work retroactively, meaning that tweets sent years before you enter a contractual relationship with an employer are generally not grounds for dismissal.

“It could be the case that a journalist once wrote something problematic,” said Giovanni Fassina. “But you need to take into account there was no contractual relationship in place during that period.”

"DW is known for keeping many of its full-time employees on freelance contracts, which provide less protection, so it’s unclear what kind of legal protection the sacked employees can expect"

Some of the social media activity uncovered by German media and the DW report, such as referring to global Zionist plots, was blatantly anti-Semitic, and would be enough for any journalist in Germany to lose their job.

But the report goes far beyond identifying and analysing these tweets. It sets forward DW’s editorial policy on writing about the Nakba (the 1948 expulsion of 700,000 Palestinians by Zionist militias), armed Palestinian resistance in Gaza, and even states the hashtag “#SaveSheikhJarrah” is “Palestinian propaganda”.

“If the report would’ve stuck to what these people tweeted, there isn’t much we [as lawyers] could’ve said, because some of it isn’t defensible,” explains Giovanni Fassina. “But it goes beyond that and speaks about Sheikh Jarrah and the problem with journalists using the term ‘occupier’. That term is appropriate under international law, by the way.”

The report also said Palestinian Ma'an News Agency’s repeated use of the term “occupier” to describe the Israel state was an example of anti-Semitism.

Against Germany’s strict labour laws, which protect employees from unfair dismissal, the use of the IHRA definition appears even less sound.

A dismissal based on public anti-Semitic activity by a journalist could, in theory, be possible. “But you need to show an anti-Semitic intent, which is manifested in the examples,” explained Giovanni Fassina. “Deutsche Welle even failed to do that.”

Contracted German employees can only be terminated with immediate effect for “serious” causes, such as theft or refusal to work. Termination notices of this kind must be served within two weeks of the employer learning about the alleged breach of contract.

DW is known for keeping many of its full-time employees on freelance contracts, which provide less protection, so it’s unclear what kind of legal protection the sacked employees can expect.

At least one journalist, Farah Maraqa, was a contracted employee, and will legally challenge her dismissal, which will mean DW’s findings may be tested in court – assuming it gets there, that is. Most labour disputes in Germany are settled before they reach a courtroom.

DW spokesperson Christoph Jumpelt told The New Arab that he would not comment on personnel matters when asked why journalists had been fired for actions that took place before they were employed at the broadcaster.

When questioned why DW appointed investigators with no obvious relevant experience to write a report that would influence future coverage on Israel-Palestine, Jumpelt said: “DW remains independent and objective in its reporting. The assumption [that] an external commission might be dictating coverage is wrong.”

"The silver lining to the DW case is the lengthy report accompanying the dismissals, lawyers say, giving them more scope to fight the allegations"

Outside Germany, there are numerous cases of dismissals based on the IHRA definition of anti-Semitism being overturned after challenges. Most recently, Sheffield researcher Shahd Abusalama successfully challenged her dismissal after being targeted by pro-Israel groups.

The silver lining to the DW case is the lengthy report accompanying the dismissals, lawyers say, giving them more scope to fight the allegations. Other targets of such attacks rarely have such an opportunity.

“The report did us a favour,“ said Giovanni Fassina. “It shows the bad faith of the investigators and the overarching framework of how these allegations are used.”

Matt Unicomb is an Australian journalist based in Berlin. He was previously the online editor of the news, politics and culture magazine Exberliner.

Follow him on Twitter: @MattUnicomb