For the last 19 months, Berlin has seen a wave of unprecedented police violence against pro-Palestinian protests, as documented by human rights organizations. The legal basis for this is complicated. Germany’s Basic Law does not allow cops to beat up people for expressing disagreement with government policy. Instead, they often accuse Palestinians and their allies of violating Paragraph 86 of the German Criminal Code: “spreading propaganda material of anti-constitutional and terrorist organizations.”
This is the law used to prohibit swastikas and other Nazi symbols. Since November 2, 2023, Germany’s Interior Minister has claimed that this applies to a popular English-language slogan: “From the river to the sea, Palestine will be free.” Supposedly, this is an unmistakable symbol of Hamas.
As I’ve written before, this is ridiculous. The slogan is not banned in any other country, including Israel. How can a slogan dating back to the 1970s, used by myriad factions in different countries, be a clear marker of an organization founded in 1987?
In the last few months, Berlin courts have started to agree. Cargo Vargas, a student at the Free University and a member of the student council’s BIPoC department, was arrested at International Women’s Day in 2024 and charged with supporting a terrorist organization. In November of that year, the Tiergarten District Court in Berlin acquitted her, ruling that the slogan she shouted “is not exclusively a Hamas slogan,” and went further, declaring that even if it had been used specifically as a Hamas slogan, “this would be covered by the basic right to freedom of speech” in the concrete case.
The prosecutor’s office appealed, and in April, the Berlin Regional Court confirmed that, “in light of the fact that the phrase is an ongoing part of an international and heterogeneous protest movement against the actions of the Israeli armed forces and government in Gaza,” it is “doubtful” that it is a “hallmark of Hamas.” They added: “not every use of this phrase by a banned political organization can lead to the phrase being a characteristic object of identification” for said organization. This phrase is used by “various political actors to criticize Israel’s actions in Gaza.” (I am not a lawyer, and I’m translating these rulings freely.)
Put simply: Even though Nazis sing the German national anthem, the German national anthem is not banned as a Nazi symbol.
In practice, the entire legal framework of the anti-Palestinian repression is even more ridiculous than the courts are making it sound. The first activist convicted for using this slogan in August of last year was from a family of exiled Iranian communists. In court, she called for a democratic Palestine with equal rights for all. Is this seriously supposed to be a Hamas member? Does Hamas even use slogans in English as in-group signifiers?
Two weeks ago, the Tiergarten District Court again ruled in favor of someone arrested for shouting the slogan “From the river to the sea…” at a protest at the Free University a year previously. This was reported extensively in the Irish Times. Once again, the prosecutor’s office is appealing. Lawyer Benjamin Düsberg says that although the written ruling has not yet been published, he expects this case will be a “game changer,” as the court spent three full days listening to evidence from experts and could produce a lengthy and precise ruling that “will convince other courts.”
At the moment, German courts have not ruled consistently—some are convicting, and others are acquitting. Ultimately, the Federal Court will have to decide.
So far, the court decisions have had no noticeable impact on Berlin police, who continue meting out unhinged violence against peaceful protestors. Even if they are eventually instructed that they can no longer use Paragraph 86, they will just try other laws, like Paragraph 140 or Paragraph 130. Politicians, especially Berlin mayor Kai Wegner, have been cheering for every beating.
At the moment, Israel is committing genocide in order to establish complete control of all territories between the Jordan River and the Mediterranean Sea. In Germany, there are no legal restrictions on Zionists advocating ethnic cleansing. Yet demanding democracy, human rights, and equality “from the river to the sea” (in the form of a single socialist Palestine, for example) can justify state violence.
We are in the middle of the Great German Reputation Laundering of 2025, when politicians and journalists who stridently defended the genocide are claiming they suddenly noticed the suffering of the Palestinian people. Even as the discourse shifts, however, these same politicians intend to continue shipping weapons to Israel—and they will keep beating up anything that disagrees.
These court decisions are a reflection of the fact that in polls, up to 80 percent of people in Germany don’t agree with the government’s unconditional support for Israel. We need to transform this passive support into action on the streets—that’s the only way to stop the repression.
Red Flag is a weekly column on Berlin politics that Nathaniel Flakin has been writing since 2020. After moving through different homes, it now appears at The Left Berlin.
