Early in January the deputy chairman of the Bundestag’s center-right CDU/CSU fraction, Stephan Harbath, announced a new proposal to counter rising anti-Semitism in Germany. Slated to be released in time for Holocaust Remembrance Day, January 27th, he told Die Welt that it would allow for the expulsion of migrants who express an anti-Semitic worldview. He emphasized that the law was especially targeted at migrants from Africa and the Middle East.
“We must also resolutely oppose the anti-Semitism of migrants with an Arab background and from African countries.” – Stephan Habarth, CDU/CSU
The final resolution, passed by the Bundestag in mid-January with support from all parties except for Alternative für Deutschland (AfD) and Die LINKE, lays out a range of new measures meant to fight the alleged rise of anti-Semitism, including the appointment of a new minister responsible for anti-Semitism (Antisemitismusbeauftragte/n) to coordinate activities across the different ministries and states. While the resolution points out that anti-Semitism can come from different backgrounds, it also highlights that it has “a special breeding ground” in Africa and the Middle East, which would seem to be a reference to the people who have immigrated from those regions to Germany in the last few years. The resolution thus, in number six, calls for a strengthening of the ability to expel immigrants on the basis of anti-Semitism.
German states should “ensure that the possibilities of § 54 (1) no. 5 of the Residence Act are consistently applied to foreigners who call for anti-Semitic hatred. It is the will of the German Bundestag to counter the call for hatred against sections of the population and the endangerment of peaceful coexistence by intellectual arsonists early on by classifying this behavior as a particularly serious expulsion interest.”
In other words, the Bundestag is calling on states to expel non-German individuals if they incite anti-Semitic hatred. Can they do that? Let’s take a closer look at the provision being referred to.
Expulsion for Incitement: Is that legal?
Rather than proposing a new law, the Bundestag is calling for an expanded interpretation of current law, specifically, a provision of the Residence Act.
There shall be a particularly serious public interest in expelling the foreigner […] where the foreigner incites others to hatred against sections of the population; this shall be assumed to be the case where he or she exerts a targeted and permanent influence on other persons in order to incite or increase hatred against members of certain ethnic groups or religions, or he or she publicly, in a meeting or by disseminating writings in a manner which is suited to disturbing public safety and law and order,
- a) incites others to undertake arbitrary measures against sections of the population,
- b) maliciously disparages sections of the population and thus attacks the human dignity of others or
- c) endorses or promotes crimes against peace, against humanity, war crimes or acts of terrorism of comparable severity,
unless the foreigner recognizably and credibly distances himself or herself from his or her actions.
The language of this act is vague. For instance, what does “targeted and permanent” mean? What would constitute “credible distance”? And most importantly, why hasn’t this law already been used for anti-Semitic incitement, since nothing in the law as it is written rules that out?
A review of the case law on section 54(1)(5) makes two things clear: 1) This law has almost exclusively been used to expel people on basis of suspicion of “Islamist terrorism” and 2) the standards for expulsion are quite high.
All of the cases we reviewed related to expulsions of individuals on suspicion that they were members of a terrorist group from their own home country. (See, for instance, here, here, here). These suspicions were often based on their associations with other alleged members, their having donated money to alleged terrorist causes, or possession of materials related to a terrorist group. Often, German courts found this type of evidence was not enough to warrant expulsion.
German courts have repeatedly held that expulsion can only be justified by facts that support a “high probability” that the person is “present danger”. Past membership in a group, past statements, and previous behavior are only indicators in so far that meet this burden. A person who has since distanced him/herself or cut off contacts with the group in question effectively counters the suspicion of present danger.
Also worth noting: There is no case where an individual’s statements were enough to have them expelled (and one showing that statements were not enough). The use of 54(1)(5) seems obvious to officials only in the context of membership in a dangerous group constituting a current threat of violence. It’s difficult to imagine how this can be applied to an individual based on anti-Semitic statements views or speech, although it can’t be ruled out.
There have been instances in the past of terror groups with an anti-Semitic worldview committing violence and murder in Germany, but the members could not possibly have been subject to expulsion because they were German nationals (see, for example, the 2011 case of the National Socialist Underground, a neo-nazi terror group who murdered ten People of Color and migrants).
In fact, the vast majority of illegal anti-Semitic acts in Germany appear to be committed by German nationals with inspired by a right-wing worldview.
Anti-Semitic Crime and Migration: No Convincing Connection
The German Federal Office for Protection of the Constitution (Verfassungschutz) collects statistics on anti-Semitic crimes in Germany. These are divided into several different categories (that deserve more critical attention another time):
These are further divided into criminal offenses and violent offenses. The first might refer to anti-Semitic graffiti or attacks on property, the second to violent hate crimes (such as assault).
As the above chart from the Ministry of Interior‘s expert report on anti-Semitism shows, the overwhelming majority of anti-Semitic crimes since 2001 have been committed by right-wing motivated individuals. In 2001, right-wing motivated anti-Semitic crime accounted for 96% of all cases, by 2015, the percentage was 91% (however, the number of overall crimes had also fallen by 18%). According to information recently obtained from a Bundestag inquiry from Petra Pau, a politician from Die LINKE, 2017 saw a total of 1,453 anti-Semitic crimes, with 95% committed with right wing motivation. This represents an uptick from 2015, but is still down from 2001. However, at 95% the share of right-wing motivated activity also has increased, inching closer to 2001 levels.
The exception to this trend of anti-Semitic crime being totally dominated by the right-wing is the year 2014, when an unusual number (11%) of the anti-Semitic crimes were committed with “foreign motivation”. In that same year, there was a brief 30 day war in Israel. It seems overwhelmingly likely that the number of “foreign-motivated” crimes in that year were related to this event.
In contrast, in 2015, the year where Germany experienced the highest year of net migration in its history with a total of 1.1 million people, anti-Semitic crime went down, and the percentage of right-wing motivated anti-Semitic crime jumped from 83% to 91%, continuing to rise to the present day even as total numbers of crime remain relatively stable.
One might conclude from these numbers that the greatest threat of anti-Semitic incitement and violence has continuously been and remains the far right, who has maintained their grip on the overwhelming majority of anti-Semitic crimes throughout a period where the migrant population to Germany increased by several million people, many from the countries the CDU/CSU accused of being “special breeding grounds” for anti-Semitism. With easy access to government information documenting these trends, why would the CDU/CSU think that anti-Semitic hatred is effectively fought by focusing on immigrants?
An Appeal to AfD Voters?
As we have demonstrated, the numbers simply do not support an argument that there is an increasing risk of anti-Semitic crime originating from migrants or people with “migration background”. So why did the CDU decide to focus on this population with their press statements, declaration and resolution?
It’s not entirely clear, but one hypothesis worth considering is that the CDU/CSU is attempting to appeal to voters they may have lost to the far-right AfD in the last election. The AfD program is highly pro-Israel (despite having numerous members accused of Holocaust revisionism) opposed to the BDS (Boycott, Divest, Sanctions) movement, and of course, deeply opposed to migration from the Middle East and Africa, as well as to equal rights for German Muslims. By taking a position that casts blame for anti-Semitic hatred onto non-Germans and suggesting that exclusion of people from Middle East and Africa is a way to protect Jews, the CDU/CSU embraces a worldview that is common to the populist far right.
As our research shows, this view appears deeply misguided. The law the Bundestag wants to expand seems very unlikely to result in the successful expulsion of individuals on the basis of their anti-Semitic views. And given that the vast majority of anti-Semitic crime is committed by German nationals with right-wing motivation, this law targets the absolute wrong demographic to show a serious interest in battling anti-Semitism.
In the absence of an alternative explanation, it would appear that the CDU/CSU is taking the occasion of Holocaust Remembrance Day as an opportunity to push an, at best, symbolic legal solution that falsely demonizes minorities in order to win back right-wing voters. If this is the case, it’s a cynical move that negates rather than remembers the lessons of the Holocaust.
Sources and Further Reading
Anti-Semitism: Union wants to expel Jew-haters (German), Welt, January 2018
Resolution of the CDU/CSU, FDP, Greens, and SPD: Decidedly Fighting Against Anti-Semitism (German) [PDF] Bundestag, 19th Voting Period.
Ten Murders, Three Nazis, and Germany’s Moment of Reckoning, Jacob Kushner, Foreign Policy.
Anti-Semitism in Germany: Current Developments (German) [PDF], Independent Expert Committee on Anti-Semitism, Ministry of Interior, April 2017 )
Response to Inquiry from Petra Pau, (German) [PDF], From PetraPau.de, February 2018
Immigration and net immigration peaked in 2015, De Statis, Statistisches Bundesamt
Georg Pazderski: No tolerance for anti-Semitism (German) Press Release, Alternative Fuer Deutschland website
Header Image: BMVI on Flickr, http://bit.ly/2EE1mNd (CC BY-ND 2.0)