German laws on burning the Israeli flag: What you need to know | Germany| News and in-depth reporting from Berlin and beyond | DW | 11.12.2017
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German laws on burning the Israeli flag: What you need to know

By setting symbols of Israel on fire in recent days, demonstrators have raised a legal issue. The burning of national symbols is not forbidden in all cases, although incitement to violence against Jewish people is.

Germany's leading politicians have universally condemned the burning of Israeli flags and symbols in Berlin amidst recent demonstrations sparked by US President Donald Trump's recognition of Jerusalem as Israel's capital. But are such acts actually illegal in Germany?

"As to whether the burning of flags on Friday and Sunday can be prosecuted, that's a question for the prosecutor's office in Berlin," a spokesperson for the Ministry of Justice said on Monday. "I can only draw attention to the fact that there is a passage in the criminal code, Paragraph 104, concerning damage to foreign countries' and other national symbols."

Paragraph 104 reads: "Whosoever removes, destroys, damages, renders unrecognizable or insults by mischief a flag of a foreign state, which is displayed according to legal provisions or recognized custom, or a state symbol of such a state which has been publicly installed by a recognized mission of such state, shall be liable to imprisonment not exceeding two years or a fine."

But Berlin police say that this law did not apply to what happened in the city last week, when protesters burned at least two Israeli flags in front of the Brandenburg Gate on Friday.

"Burning a flag is not a crime, whether it be Israeli or American or from any other nation" Berlin police spokesman Thomas Neuendorf explained to DW. "The only exception is, for instance, when a flag is taken from an official building like an embassy and burned."

Burning any kind of objects is forbidden at demonstrations but is only a misdemeanor. Neuendorf said that 10 people were detained at demonstrations over the weekend for throwing bottles and comparable offenses.

Demonstrators burning Star of David (picture alliance/dpa/Jüdisches Forum für Demokratie und gegen Antisemitismus e.V.)

Demonstrators burned symbols of Israel, causing outrage among politicians

Not necessarily incitement

Demonstrators were reported to have chanted anti-Semitic slogans, and Berlin's mayor Michael Müller has promised that further protests will be kept under close observation. Government spokesman Steffen Seibert said that anti-Semitism was not protected under German freedom of speech laws.

Read more: German government adopts international anti-Semitism definition

"Our freedoms of speech and assembly guarantee everyone the right to peacefully protest," Seibert said on Monday in Berlin. "But this is not a free pass for anti-Semitic excesses, for incitement and violence."

But while protesters may have chanted "Israel, murderer of children," they did not necessarily violate Paragraph 130 of the German criminal code, which prohibits "incitement to hatred."

"Individual people have to be insulted or threatened for there to be a case made for incitement to hatred," Neuendorf said.

A hypothetical example of incitement, Neuendorf explained, would be if someone pointed to a Jewish man wearing a yarmulke and encouraged a crowd to do him harm.

"Chants like 'Israel, murderer of children' are covered by freedom of speech," Neuendorf added.

Because of Germany's past, statements and acts that can be interpreted as anti-Semitic will always be explosive in the country. But in the recent cases, Berlin police say they do not actually violate criminal law.

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