Germany's pro-Palestine movement and the legal battle for free speech

In recent months, the European Legal Support Center (ELSC), an NGO that provides legal support to pro-Palestine activists across Europe, have celebrated a series of legal victories in Germany.

In May, lawyers overturned a Schengen-wide travel ban that Germany had imposed on Dr Ghassan Abu Sittah, who was scheduled to appear at Berlin’s Palestine Congress before it was shut down by police.

On June 11, ELSC announced that dozens of cases against activists had been dropped because the charges lacked legal backing.

On June 26, lawyers won the first in a series of cases related to violent arrests at spontaneous rallies on October 7.

Activists hope this win will set a precedent for several similar trials scheduled this summer.

For years, but especially since October 7, pro-Palestine demonstrations in Germany have been met with assembly bans, police violence and widespread arrests.

ELSC lawyers are currently working on 80 cases related to arrests since October, a small proportion of the thousands affected.

Prosecutors told Al Jazeera they had registered 2,140 possible criminal cases and launched more than 380 investigations between October and February.

“The German state’s response to the movement has been exceptional and unprecedented,” says ELSC partner lawyer Alexander Gorski.

“The state uses every pillar of repression it has in its arsenal to silence pro-Palestinian voices and to make the dissent against German complicity in the genocide as invisible as possible," Gorski added. 

“Germany uses assembly law to ban or obstruct assemblies; criminal law to criminalise unrest at demonstrations; labour law to facilitate the firing of people; subsidy laws to shut down institutions; and in particular migration law to spread fear among migrant communities.”

For those with court dates in the next few months, the atmosphere remains one of confusion and fear, driven by the wild inconsistencies between Germany’s constitution, its court rulings, and the actions of the police. 

“The state has no consistent line” Gorski explains, “while some cases are dropped, similar cases result in convictions.”

At the end of May, a regional court in Mannheim ruled, similar to courts in other regions, that slogans like ‘from the river to the sea, Palestine will be free’ were legal.

Then, three weeks later, an administrative court delivered the opposite verdict in the same case.

“Ultimately this is not something you win in court,” Gorski continues. “The question of whether saying ‘from the river to the sea’ is legal or not, is a political question. It depends on the power relationships within society. Courts are merely a reflection of this.”

New measures target those vulnerable to deportation

As support for the far right swells across Germany, politicians are implementing a range of new laws that could give the state even greater powers to deport and criminalise the country’s 300,000+ Palestinian population and other migrant groups.

On June 25, a new citizenship law finally came into effect that made affirmation of Israel’s right to exist a prerequisite for German citizenship. 

Interior minister Nancy Faeser also announced new legislation that would deem social media activity, including “liking” posts that glorify “terrorism” or endorse “disturbance of the public peace”, a serious reason for deportation.

“Islamist agitators who are mentally living in the Stone Age have no place in our country,” Faeser told the press.

Speaking on behalf of the ELSC, Gorski said the move would “practically abolish the right to freedom of expression for foreigners in Germany.” 

The idea of what constitutes extremist expression is also rapidly widening, as shown by the revelation in June that the Boycott, Divestment, Sanctions (BDS) group had been designated an “extremist organisation” and could now face secret service surveillance.

Activists say that many are receiving expulsion notices, in some cases implicating entire families.

A spokesperson from Palaestina Kampagne, who works alongside the ELSC, said they were “appalled but not surprised” to see numerous cases of “refusal to renew residency permits, refugee statuses being revoked or downgraded… and people being threatened with deportation.”

The new legislation, while shocking, represents a hardening of laws that already exist, Gorski explains: “The state is not struggling to prosecute cases. People are already getting expulsion orders because of what they like on social media.

“What is happening is that the government are seizing the moment to introduce even more authoritarian measures. It’s about seizing the moment to shrink spaces even further, and in particular, to threaten migrant communities.”

Police acting with impunity

In November 2023, activist Aya (name changed) established a legal fund in Berlin to support those facing violence and arbitrary arrest.

“My comrade and I started the fund because we had already been arrested three times each in a month. We quickly understood the magnitude of the repression and knew that we had to act fast.”

While demonstrations are no longer routinely banned, as was the case in October and November 2023, police violence at legal demonstrations is escalating.

Last week, journalist Hebh Jamal reported multiple cases of children as young as seven being arrested, punched and restrained with ‘pain grips’. 

While high-profile events like the protest camp and campus occupation evictions have brought international attention to Germany’s police violence problem, Aya says that the worst police violence she’s witnessed takes place at other demonstrations primarily attended by local Palestinians and Arab families.

Outside of demonstrations, activists are subject to surveillance, apartment raids and other forms of repression and intimidation.

“Recently, I’ve been followed by police twice,” Aya says. “At protests, some people are having their phones taken – it’s unclear what the police are doing with them. I’ve also noticed that some cops have developed a kind of obsession with certain individuals, who are targetted.

“How you feel about the situation completely depends on how you wake up. If I slept well or if I had a nice day in the park, I feel secure. But other days I wake up and I think, ‘what am I doing, I'm going to lose everything, I'm going to unrightfully end up in jail.’”

Racism and islamophobia within the police are widely acknowledged. In April, the Interior Ministry reported that over 400 police officers were being investigated for holding far-right views.

And while German mainstream media largely fails to take notice of the excessive force being used against protesters and activists, the police remain free to act with impunity.

For Gorski, police behaviour also reveals political motives implemented from above.

“The police is a political institution that always has a directive, and you see this very, very clearly at demonstrations. The directive is to establish a hard line, to be very tough," Gorski explains. 

“Arrests are violent and arbitrary because the goal is not to get as many convictions as possible. The goal is intimidation.”

Max Graef Lakin is a journalist and cultural worker based in Berlin

Follow him on X: @graeflakin