The Bundestag is set to vote on Thursday on a highly controversial resolution to combat antisemitism in Germany — despite vehement opposition to parts of the resolution from legal experts, civil society groups and prominent Jewish intellectuals. The cross-party resolution is the result of months-long, closed-door negotiations between the ruling center-left coalition government and the center-right opposition. 

First proposed in the wake of Hamas's terror attacks on Israel on October 7, 2023, and a subsequent rise in incidents reported as antisemitic in Germany, the controversy over the resolution largely centers on the intent to make public grants for culture and science projects dependent on adherence to the International Holocaust Remembrance Alliance (IHRA) Working Definition of antisemitism: 

"The Bundestag reaffirms its decision to ensure that no organizations or projects that spread antisemitism, question Israel's right to exist, call for a boycott of Israel or actively support the Boycott, Divestment, Sanctions (BDS) movement receive financial support."

Amnesty International Germany said that while it welcomes the aim of introducing measures to combat antisemitism and racism and to protect Jewish life, in its view the resolution "not only fails to achieve this goal, but also raises fears of serious violations of fundamental human rights and legal uncertainty." 

"Many actors from human rights organizations, the arts, culture and academia are already unsettled and are reluctant to speak out on human rights violations in the Middle East conflict, to speak publicly on the topics of antisemitism, anti-Muslim racism, Israel and Palestine or to take to the streets, partly for fear of repression — such a resolution will further reinforce this trend of self-censorship, mistrust and division," the organization told DW. 

Der Spiegel reported that nine Green Party federal working groups have already rejected the draft resolution in a joint letter to the party executive citing the resolution's adoption of IHRA, which the authors argue has been repeatedly used "to defame legitimate criticism of the Israeli government's policies as antisemitic."

Member of parliament Nina Scheer of the ruling center-left Social Democrats (SPD) has also come out against the resolution saying it "prevents the naming and addressing of possible breaches of international law and thus violates constitutional law." 

The Central Council of Jews in Germany, a state-funded body set up after the Holocaust as both a representative organzation for many Jewish congregations in Germany and a go-between for German Jews and the government, has expressed support for the resolution. "The foundations for the effective protection of Jewish life have now been defined. However, the planned measures still need to be implemented effectively and swiftly," its president Josef Schuster said last week.

Ahead of Thursday's vote, members of the Green Party published a statement saying they were "shocked and deeply concerned by the campaigns currently being waged" against the cross-party resolution.

The German-Israeli Society, a cross-party lobby organization which promotes relations between the two countries, also approves of the resolution.

Legal experts say resolution is unworkable 

"From a legal perspective, the resolution is a great disappointment. Earlier drafts were criticized severely by lawyers as most likely unconstitutional. In view of these criticisms, it is puzzling to see that the final version of the text is mostly unchanged," says Ralf Michaels, the director of the Max Planck Institute for Comparative and International Private Law in Hamburg. Michaels is one of several experts who have offered an alternative proposal.

Apart from the "practical impossibility" for administrators to evaluate all such projects in advance, amounting to prior restraint, such a rule would most likely amount to a violation of freedom of art and freedom of opinion, according to Michaels. "Those rights can be restricted by human dignity as protected in the constitution, but certainly not by the contested IHRA Working Definition of antisemitism that the Bundestag wants to make decisive," he told DW. 

Another problem with the current resolution, Michaels says, is that it upholds a 2019 resolution passed by the Bundestag that describes the BDS movement as antisemitic — despite the fact that Research Service of the Bundestag has held the 2019 resolution's content to be against the constitution and several courts have dismissed administrative decisions based on those findings. 

"The resolution itself is not binding, though experience from the 2019 resolution suggests it will nonetheless be effective, both as administrative guidance and as a basis for self-censorship. On the other hand, it seems quite unlikely that the promised legislation will ever be enacted in view of the legal and practical restraints," he explained. Police and immigration authorities have also relied on that resolution in applying repressive measures.

Why is the IHRA definition of antisemitism controversial?

The IHRA Working Definition has been adopted or endorsed by 43 countries, including Germany, and supported by some international bodies. However, it has been widely criticized for conflating criticism of the Israeli government with antisemitism. It lists examples of manifestations of antisemitism such as "denying the Jewish people their right to self-determination, e.g., by claiming that the existence of a State of Israel is a racist endeavor," "applying double standards by requiring of [Israel] a behavior not expected or demanded of any other democratic nation" and "drawing comparisons of contemporary Israeli policy to that of the Nazis."

The IHRA definition was originally intended to be a "big net" to support research on antisemitism and genocide, explains Joshua Shanes, associate professor of Jewish Studies at the College of Charleston, South Carolina. 

Contrary to the author's original intention, Shanes says that the IHRA definition has been "hijacked" by forces aligned with Israel to prevent criticism of and protect Jewish hegemony in Israel. "You are only allowed to criticize Israel if you do it in a way that affirms Jewish power, and Jewish supremacy, and not equality, and if you want to call anything that is calling for equality antisemitic, you need IHRA, IHRA will get you there," he told DW.

While antisemitism can in some cases be masked, according to Shanes, as anti-Zionism, language that would be antisemitic if applied to 'the Jews' becomes normal language when applied to a state.

"I think the term apartheid clearly applies to the West Bank, but even if you think that's wrong, it can't be antisemitic to be wrong. All of that gets lost with the IHRA push — all of it. That's why all of its advocates are insisting on it so much because it shuts down all ability to advocate for Palestinian equality."

Debate over the limits of freedom of expression

The proposed resolution has added fuel to an already explosive debate in Germany over the limits of freedom of expression regarding Jewish life overall, as well the Hamas attacks on Israel on October 7 and Israel's subsequent war in Gaza.

In August, a group of some 150 Jewish artists, writers and scholars living in Germany wrote an open letter expressing their "deep concerns" about the planned resolution, saying that despite claiming to "protect Jewish life in Germany," the resolution "promises to instead endanger it" by "associating all Jews with the actions of the Israeli government, a notorious antisemitic trope."

The signatories, among them artist Candice Breitz, Barenboim-Said Akademie Professor and West-Eastern Divan Orchestra concertmaster Michael Barenboim, Unorthodox and Judenfetisch author Deborah Feldman and musician Peaches Nisker, wrote that while the overwhelming majority of antisemitic crimes originate in the German far right, the threat is "barely mentioned in the resolution, which instead focuses on foreigners and minorities, a shameful distraction from the largest danger to Jews in Germany. It is evidence that Germany has yet to overcome its past."

'Protection of Jews is not the objective of this resolution'

The resolution explicitly states that "the alarming extent of antisemitism based on immigration from countries in North Africa and the Middle East, where antisemitism and hostility towards Israel are widespread, partly due to Islamist and anti-Israeli state indoctrination, has become clear" and that "the national strategy against antisemitism applies to "criminal law as well as residence, asylum and citizenship law." 

"The protection of Jews is not the objective of this resolution," Barenboim told DW. "The resolution refers to Israel constantly, which, in my view, fulfills two objectives. Firstly, it seeks to hold Palestinians and their supporters responsible for antisemitism in Germany, and threatens to expand the silencing of this group via cancellations, censorship, police repression and the like. Secondly, it attempts to justify Germany's complicity in Israel's atrocity crimes, a result of decades of dehumanization of Palestinians."

In a statement to DW, Candice Breitz described the resolution as "a piece of simplistic dogma that is designed to protect and defend Zionist thinkers, not Jewish people" suggesting that its wording, like that of the 2019 anti-BDS resolution, "perpetuates the dangerous notion that Jewish identity is inextricably linked to Israel's ethnonationalist priorities." 

"It fundamentally undermines basic constitutional rights such as freedom of speech, freedom of artistic expression, academic freedom and freedom of assembly, by essentially forcing a pledge of allegiance to state ideology (in the vague form of Staatsräson) as the basis for being able to study in Germany, receive state funding or — on a more existential level — as a condition for being granted rights of asylum or citizenship. It plays directly into the hands of the Alternative for Germany (AfD) and other far-right movements, at a time when ethnonationalist ideology is gaining popularity among German voters," Breitz's statement said. 

While you're here: Every Tuesday, DW editors round up what is happening in German politics and society. You can sign up here for the weekly email newsletter Berlin Briefing.