Article written by the European Civic Forum on 04/12/2023.
Following the new dramatic escalation of violence in Israel and Palestine, many people, reflecting the diversity that constitute our societies in Europe, want to express their concerns, their opinions, their demands, hope, anger and grief collectively in demonstrations. They are calling on their governments and international institutions to take responsibility and action to ensure the protection of civilians, the respect of human rights and dignity. They are urging the international community to act for peace and justice.
Everyone has the right to peaceful assembly and to free speech as outlined in international law. In addition, states have an obligation to respect and ensure peaceful protest without discrimination. The right to peaceful assembly and protest are crucial means for political participation. According to the OHCHR General Comment on the right of peaceful assembly, “states must leave it to the participants to determine freely the purpose or any expressive content of an assembly. The approach of the authorities to peaceful assemblies and any restrictions imposed must thus in principle be content neutral, and must not be based on the identity of the participants or their relationship with the authorities.”
It is even more crucial in times of conflict that society benefits from a fully functioning civic space, fundamental rights and democracy. However, over the last month there have been many breaches of these international standards as people across Europe have expressed solidarity against the dramatic escalation of violence in the Middle East.
While fears of incitements to hate, antisemitism and islamophobia are fully legitimate and should be addressed with the legal tools that ensure that perpetrators are held accountable, according to human rights standards the authorities have a duty to facilitate and guarantee freedom of expression and freedom of assembly. In line with these standards, in case of violent demonstrators, the police’s action should be aimed at removing those enacting or inciting violence in order to enable the peaceful protesters to continue exercising their right.
The Civic Space Watch is monitoring undue protest restrictions across Europe and documenting them. A first update can be found here. Below is a non-exhaustive summary of the latest restrictions reported in some European countries.
Human Rights Watch expressed concern for human rights in reaction to European governments’ response to the conflict. The NGO stated that “responses from European governments to the hostilities between Israel and Palestinian armed groups in Gaza are having harmful effects on human rights in Europe”. These effects and concerns include “inadequate responses to growing reports of antisemitism and Islamophobia; the use of immigration policies that risk discrimination against people perceived to be Arab, Palestinian, or Muslim; and bans and other restrictions on peaceful pro-Palestinian protest and expression”.
Benjamin Ward, the deputy Europe and Central Asia director at Human Rights Watch, said that “the authorities in European countries have a responsibility to make sure that everyone is safe and protected from violence and discrimination”. This comes following worrying data and reports which show that there has been a sharp increase in antisemitic incidents and Islamophobic hate crimes in several European countries.
Amnesty International shared concern over the unlawful restrictions on the right to protest. It stated that “Measures range from those targeting certain chants, Palestinian flags and signs, to subjecting protesters to police brutality and arrest. In some cases, protests have been banned altogether”.
Article 19 issued a statement expressing concern over the response of governments in Western Europe in relation to protest and expression. “We urge the governments of France, Germany, and the United Kingdom, and all governments across Europe, to recognise the crucial role these rights play in protecting democracies in times of conflict.”
The United Nations Special Rapporteur on Freedom of Association and peaceful assembly, Clement Voule, raised concerns over the ban on protests in the context of developments in Gaza, stating that “Peaceful protest must be protected & allowed, to ensure voices & grievances are heard for peaceful resolution of conflict. Any hate speech or call for violence must be avoided”.
Furthermore in the context of these restrictions, international human rights standards on peaceful assembly states that “Generally, the use of flags, uniforms, signs and banners is to be regarded as a legitimate form of expression that should not be restricted, even if such symbols are reminders of a painful past”. It also recalls that “States parties should not rely on a vague definition of “public order” to justify overbroad restrictions on the right of peaceful assembly.”
It is important to note that, despite restrictions in a number of countries, in many European cities, such as Belfast, Stockholm, Madrid, Rome, Florence, Milan, Amsterdam and many more, authorities respected the right to protest, and thousands peacefully marched without interruption. In Brussels on November 11th, it is estimated that between 40 000 to 60 000 protesters mobilised for a rally in solidarity with Palestinian people through the city and in London, approximately 300,000 protesters gathered. It should also be noted that in a country like France, administrative bans have been overturned by court rulings when appealed by civil society.
On 10 October, 16 senators presented a legislative proposal aiming to amend the criminal code and extend sanctions against anti-semitism to denial of, insult towards and incitement to hatred and violence against the State of Israel. The proposed penalties for contesting the existence of the State of Israel would range from 45,000 Euro and one year in prison. If really considered, the bill risks creating a chilling effect for those who express legitimate criticism against the country. A petition against the law, which collected nearly 40 000 signatures, warns: “In practice, the bill submitted to the Senate would prohibit the denunciation of crimes committed by Israel under international law. For example, it would henceforth punish writings or statements such as those of the resigning Director of the New York Office of the High Commissioner for Human Rights, who on October 28, 2023 described the events unfolding in Gaza as “an ongoing massacre of the Palestinian people, rooted in an ethno-nationalist colonial ideology, in a continuation of decades of systematic persecution and cleansing”.”
Palestinian women’ rights activist Mariam Abou Daqqa, who is part of the Popular Front for the Liberation of Palestine (PFLP), which is an organisation classified as terrorist by the European Union, was arrested on October 16 and put under house arrest in Marseille and was threatened with expulsion for “disturbing public order” even though she arrived legally in France in September to host conferences.
Although the Paris administrative court suspended the expulsion order on October 20th, declaring that “the Minister of the Interior has committed a serious and manifestly illegal attack on the freedom of expression and the freedom to come and go”, the Minister of the Interior Gérald Darmanin appealed this decision, and the Council of State overturned the court’s decision on November 8th ruling that “the presence on French soil, with a view to expressing herself on the Israeli-Palestinian conflict, of a leader of an organisation (having) claimed responsibility for attacks against Israeli civilians is thus likely to cause serious disturbances to public order.”
On October 20th, two leaders of the Confédération Générale du Travail du Nord (CGT), a major French trade union, were arrested at their home and placed in police custody on October 20, 2023 for “apologie du terrorisme”, following a press release “In support of the Palestinian people in struggle”. According to French law, “l’apologie du terrorisme” refers to “advocacy of terrorism and direct incitement to terrorism are crimes”.
The Ligue des droits de l’Homme (LDH) issued a press release stating that the arrest of the leaders is “pure intimidation” and was done to set “an example since the two trade unionists were quickly released and the press release, which they are accused of writing without this being established, supports the Palestinian people, which in no way constitutes a “direct provocation to acts of terrorism” (unofficial translation from French). According to the NGO, this response shows the conflation by the public authorities of solidarity with the Palestinian people with support for the terrorist acts of Hamas.
On October 22nd in Paris, authorised pro-Palestinian demonstration took place for the first time after a court overturned the police’s decision to ban the protest that day. Protests in Paris had been banned weekly by the Prefects (regional administrative representatives) up to this point.
On October 28th, demonstrations took place across several cities in France. However, in Paris, 90 minutes before the protest was planned to start, the administrative court revoked the permit for the protest and prohibited it on the grounds of public order reasons. Despite the last-minute change, the protest went ahead. According to news sources, 21 arrests were made and approximately 1,400 fines of €135 were issued to protestors for taking part.
On 12 November, according to the Ministry of Interior data, 182,000 people marched against anti-Semitism across France, including 105,000 in Paris. While the demonstration was peaceful, the newly established Collectif Golem, an organisation bringing together left-wing Jews, directly objected to the presence of the far-right party Rassemblement National at the rally.
Freedom of peaceful assembly
According to media reports, peaceful demonstrations in solidarity with Palestine took place in Cologne, Frankfurt, Hanover, Karlsruhe, Münster and Stuttgart.
On the contrary, in Berlin, the approach of authorities has led to a significant negative effect on expressions of solidarity:
- Several protests in solidarity with the Palestinian people have been pre-emptively banned by authorities on the grounds of preventing threat to public safety and order, and antisemitism. In doing so, reference is made to experience of criminal acts, including antisemitic acts, at some past assemblies. However, under international human rights law, the police and assembly authorities have a duty during the assembly to ensure that if individuals commit such acts, they are excluded and, if necessary, appropriate action is taken addressing potential punishable acts. According to the international standards, in order to restrict or ban a public demonstration, the police has an obligation to demonstrate that the specific assembly creates a real and significant risk to public safety. Instead, the decisions to ban the assembly link the assessed risk to previous demonstrations as well as the Hamas attack of 7 October, and effectively associates an entire demographic group with violence. The organisers of a banned protest in Berlin commented that the “alleged actions of a minority” were being used “to deny an entire community the right to freedom of expression”.
In some cases, the protests took place despite the bans. In those protests that took place, there have been reports on the use of excessive force by the police against peaceful protesters.
- On October 13th, Berlin’s public prosecutor said the slogan “from river to the sea, Palestine will be free” chanted during protests would be deemed a criminal offence. As a result, the punishability of the slogan would no longer be a question of individual cases but could now become criminally prosecuted in every instance and without any justification. As reported, until now because “the meaning of the slogan is disputed and, according to the case law of the Federal Constitutional Court, criminal courts are obliged to take the non-punishable interpretations as a basis for ambiguous statements if they cannot rule them out for other reasons in individual cases”. Intent cannot be affirmed in the individual case without concrete evidence. The legality of that decision is yet to be ruled in a German court and is currently the object of debate by public prosecutors. It has to be noted that a recent court ruling in the Netherlands, found the same slogan was not a criminal offence and rejected the claim that it incites “hatred and violence against Jews”.
- In an authorised protest in Berlin early November, police officers seized several banners as part of a mission to prevent any anti-Semitic speeches or signage. European Legal Support Center (ELSC) lawyers said that “while the job of identifying illegal signs is difficult for police, their measures at protests have a “chilling” effect. […] People now wonder if what they wear or say will get them arrested or even deported”.
In Frankfurt, police banned a protest on the grounds of public safety 12 minutes before the protest was due to start. Protesters, who had already gathered in the city centre, proceeded with the protest. It is reported that they were kettled by police who also used a water cannon. At least 300 protesters were detained, while 12 people were arrested. Some protesters had their IDs checked and their information taken.
North Rhine-Westphalia’s anti-Semitism commissioner and former Federal Minister of Justice Sabine Leutheusser-Schnarrenberger called for a stricter interpretation of the right to freedom of assembly for foreigners. In an interview with the WDR TV magazine “Westpol”, she said that when an assembly is registered, “it must be checked what the nationality is, because this is one of the few basic rights that only Germans are entitled to“. This is a possibility “to issue a ban in advance, which is otherwise difficult with our assembly law“. The proposal was criticised as inadmissible. Amnesty International Germany commented on Twitter recalling that “The right to peacefully assemble is a human right and applies regardless of citizenship. All people have the right to protest and be part of a vibrant civil society.”
In an open letter hundreds of Jewish intellectuals condemned the “disturbing crackdown on civic life in the wake of this month’s horrifying violence in Israel and Palestine” in Germany, including the banning of public gatherings in solidarity with Palestine and the police “harassing, arresting and beating” people expressing support for the Palestinians or wearing symbols of Palestinian identity. The letter stresses that “racial bias plays an important role in the targeting of suspects” .
Developments on freedom of expression
In addition to curtailing protests in solidarity with Palestine, there have been several cases of curtailing free expression by education and cultural institutions.
- The Frankfurt Book Fair cancelled an award ceremony for Palestinian writer Adania Shibli over fears of how such a ceremony might be perceived in the wake of the war.
- Education authorities in Berlin gave schools the permission to ban students from wearing the Palestinian flag, Keffiyeh scarf, and displaying “free Palestine” stickers, which comprise a restriction of free expression and opens grounds to possible discrimination in school establishments. International standards on peaceful assembly say that waving a flag – any flag – is a form of expression and freedom of political expression that should enjoy maximum legal protection and should not be restricted. Censoring the Palestinian flag risks denying the identity of the Palestinian people and contributing to tensions and violence.
- Udi Raz, a guide at the Jewish Museum was fired for calling Israel an “apartheid state” during a guided tour. Raz is an executive member of the Jewish Voice for a Just Peace in the Middle East. In a statement, the Museum stated that the decision was taken after extensive discussions with the guide on the basis that guides should not impose their opinions on groups, but rather enable them to form their own opinions.
In an interview with the Guardian, Germany’s antisemitism commissioner Felix Klein condemned the country’s recent increase in anti-Jewish violence but also said that he was “also worried about an erosion of basic rights as officials sought to crack down on expressions of support for the Palestinian people”.
The balance between combating anti-semitism and protecting freedom of expression
Since 7 October, an increase of anti-semitic incidents have been reported in Germany: research by Report Antisemitism (RIAS) recorded 202 antisemitic incidents between October 7 and 15 compared to 59 during the same week in 2022. As a result, national authorities have stepped up the fight against anti-semitism. Measures against hate speech and incitement of hatred may be legitimate restrictions on free speech, but they need to be carefully crafted, be necessary and proportionate and should be preceded by public deliberation.
On November 17, the Bundestag discussed two draft laws proposed by the conservative political party CDU/CSU to combat anti-semitism. The first draft law aims at ”amending the criminal code to combat anti-Semitism, terror, hatred and incitement”. Among the proposals, someone who denies the “right of Israel to exist” is punishable by imprisonment of three months to five years. In particularly serious cases, the penalty is imprisonment from six months to ten years. The use of criminal law to regulate freedom of expression risks producing a chilling effect against criticism of Israeli ethnonationalism and practices of forced displacement of Palestinians in the Occupied Palestinian Territories (OPT) and within Israel, as well as the debate over just peace in the region, with negative repercussions for civic space, media and academic freedom.
Human rights organisations, including Jewish organisations, have cautioned against conflating advocacy on the rights of Palestinians with antisemitism which has often led to “chill and sometimes suppress, non-violent protest, activism and speech critical of Israel and/or Zionism, including in the US and Europe. Such misuse has also been criticized by the former Special Rapporteur on Racism E. Tendayi Achiume.” For example, the German antisemitism commissioner Dr. Felix Klein, said that applying the framework of apartheid to discuss Israel’s treatment of Palestinians is “an antisemitic narrative”. Amnesty International, Human Rights Watch and the Israeli human rights group B’Tselem have found that violations committed by Israel against Palestinians amount to a system of apartheid.
Research by the European Legal Support Center (ELSC) shows that the “reconceptualization of antisemitism focusing on criticism of Israel […] known as the ‘New Antisemitism’” has resulted in “severe chilling effect on free speech and curtails human rights advocacy, specifically around Palestinian rights and political speech about Israel”.
Risks of discriminatory and stigmatising approach to anti-semitism
The second “draft law to end the residence and prevent the naturalisation of anti-Semitic foreigners” makes amendments to the residence, asylum and nationality law “to provide better protection against the further entrenchment and spread of anti-Semitism that has ‘immigrated’ from abroad”. The latter provides for “acquisition of German citizenship to be dependent on a commitment to Israel’s right to exist and a declaration that the naturalisation applicant has not pursued any endeavours directed against the existence of the State of Israel”. The vague wording of the draft law, especially with regards to what constitutes “commitment to Israel’s right to exist” opens grounds for arbitrary interpretation in contrast with the rule of law principle of legal certainty.
German Vice Chancellor Robert Habeck, while condemning antisemitism, singled out Muslim associations to “clearly distance themselves from antisemitism so as not to undermine their own right to tolerance.” He also stressed that antisemitism incidents could be grounds for deportation. Similarly, German President Frank-Walter Steinmeier called on Germans of Arab and Palestinian descent to take steps to distance themselves from anti-Semitism and the Palestinian group Hamas. Singling out the Muslim community with threats of deportation and criminalisation in a context where antisemitism is sometimes conflated with legitimate criticism against Israel creates a climate of fear which is not conducive to freedom of expression. Additionally, as explained by the Special Rapporteur on freedom of religion or belief “Collective blame cast on Muslims for terrorist acts […] have fuelled acts of discrimination, hostility and violence against Muslim individuals and communities”.
Amnesty International Germany, while calling on the state to step up its effort on combating growing anti-semitism, called out the focus on the Muslim community. It stated: “There is no anti-Semitism-free space in any social milieu in Germany today. Figures on antisemitic attacks in 2021 and 2022 from the Research and Information Center on Antisemitism Berlin show that these occur in all milieus and are intertwined with other ideologies of inequality such as racism (RIAS Annual Report 2022). Attempts to blame anti-Semitic incidents primarily on Muslims or immigrants distract from anti-Semitism in all population groups and promote anti-Muslim racism. (unofficial German translation)”.
In Athens, protests in support of Palestine are frequent and predominantly peaceful.
On October 18th, 10,000 people took part in a demonstration organised by left-wing groups. However, the riot police fired tear gas to disperse demonstrators that were marching towards the Israeli Embassy in Athens. No arrests or injuries were reported, and the protest ended quickly afterwards.
On November 7th, during a Palestine solidarity protest at Syntagma Square in Athens, the Greek police arrested a Palestinian man who climbed a pole and attached a Palestinian and Greek flag to it.
The Greek media reported that the man was arrested “according to a provision of Article 141 of the Criminal Code for exposing the Greek state to the risk of reprisals or disruption of friendly relations with an ally” and was accused “not because he lowered the Greek flag but because he raised the flag of another state”.
On November 14th, the Warsaw mayor Rafał Trzaskowski banned a protest in solidarity with Palestinian people to the Israeli embassy, which was meant to take place on 18 November, due to security concerns shared by the police and municipal authorities. The authorities claimed that the ban was purely related to security concerns and unrelated to the title of the march “Not one more bomb – free Palestine”.
The organisers of the protest appealed the decision citing their “constitutionally protected right to freedom of assembly”. Furthermore, Article 19 Europe and Central Asia office reiterated “under International human rights law restrictions on protests are only permissible in very limited instances.”
On November 16th, a Warsaw district court announced that the ban would be overturned.
Trzaskowski shared on Twitter that “the court did not share the doubts raised by Warsaw [city hall] and the police regarding the security of the pro-Palestinian demonstration planned for the weekend, the route of which leads through narrow streets… We accept this decision.”
The Israeli ambassador to Poland condemned an earlier protest in October for being “blatantly antisemitic” due to a poster held by Norwegian student, Marie Anderson, that said “Keep the world clean” alongside an image of the Israeli flag being thrown in a bin. The ambassador called on the authorities to investigate the student. Under Polish law, inciting hatred on the basis of religious, ethnic or national differences is a crime punishable by up to two years in prison. The ambassador also condemned the chanting of “genocide” and the slogan “from the river to the sea, Palestine will be free”. Polish President Andrzej Duda said he “strongly condemns the antisemitic slogans that appeared during [the] march in Warsaw”.
Following this, the Medical University of Warsaw (WUM) suspended the student. Responding to the criticism against her poster, Anderson stated that her poster did not intend any hatred towards Jewish people. “My poster is about the Israeli government…and the ethnic genocide they are doing right now to the Palestinian people”. The university’s disciplinary officer has also been asked to conduct an investigation into four other students who were reported to have “posted legally questionable content on social media”.
Several other protests in solidarity with Palestine and Israel have taken place in several cities across Poland without incidents.
In Switzerland, the Swiss Federal Department of Foreign Affairs (FDFA) decided to suspend funding to 11 human rights NGOS operating in Israel and Palestine, at a time in which their work of monitoring human rights abuses is most critical. This decision was made to “make it possible to conduct an in-depth analysis of the compliance of these organisations’ communications with the FDFA’s code of conduct and anti-discrimination clause, to which the external partners are subject”. Human Rights Watch commented on the decision: “Switzerland made unequivocal commitments to stand with defenders in the Swiss Guidelines on the Protection of Human Rights Defenders (2014, revised 2019), the EU Guidelines on Human Rights Defenders (2008), and the OSCE Guidelines on the Protection of Human Rights Defenders (2014). This decision is hard to reconcile with those commitments.”
Additionally, whilst pro-Palestine rallies were allowed in Geneva and Lausanne, others were banned in the past weeks in Zurich, Bern, and other Swiss-German cities. Specifically, the city of Zurich banned all rallies linked to Israel and Palestine. Rallies in support of Israel were also authorised in Geneva.
The protest in Zurich on October 20th was banned, however, 500 demonstrators defied the ban and authorities initially asked the crowd to disperse and questioned 25 demonstrators, but eventually allowed them to march peacefully. The march lasted one hour and no damage or altercations were reported. On October 28th, the city of Zurich finally authorised a protest, which took place without incident.
On November 11th, 3,000 people gathered in Zurich and Geneva to protest in authorised solidarity rallies for Palestine.
However, the city of Bern recently announced “that no more large demonstrations will be permitted in the city centre from 17 November until Christmas”.
The Swiss section of Amnesty International has expressed its concerns about these bans, specifically with the Bernese authorities’ restrictions on the freedom to demonstrate.
Alicia Giraudel, a lawyer at Amnesty International Switzerland, has said that “obstructing peaceful demonstrations – also in connection with the conflict in the Middle East – on the grounds that the agenda for maintaining security is full is a violation of human rights”. Furthermore, “banning large political demonstrations for several weeks is a serious infringement of the right to demonstrate. Any restriction that deviates from human rights obligations must be justified. It must have a legal basis, be necessary and proportionate and pursue a legitimate aim”.
In the UK, there have been several worrying developments with restrictions on free speech and the negative rhetoric employed by certain politicians towards those showing solidarity with Palestinian people.
The Palestine Solidarity Campaign (PSC) has shared that the former Home Secretary, Suella Braverman, had previously sought to link the Palestinian flag, the symbol of Palestinian nationhood and struggle for liberation from military occupation and apartheid, with support for terrorism – urging police to treat those displaying it as “suspects”.
Foreign nationals also risk deportation from the UK as the immigration minister Robert Jenrick has stated that visas have started being revoked for foreign nationals who spread “hate and division”, “incite antisemitism,” or support proscribed organisations.
Early November, the Football Association, English football’s governing body, announced that they will write to football clubs to inform them that the phrase “from the river to the sea” is now banned during football games.
During the Armistice protest on November 11, the PSC pledged that the protest would avoid the Cenotaph and Whitehall area in central London where the ceremony for Remembrance Day was taking place the next day. Despite this, members of the UK government shared their fear of unrest and Suella Braverman called the protest a “hate march”.
In response to these developments, Clement Voule, UNSR on Freedom of association and peaceful assembly said “When I read the position of the government, my reaction is that you cannot presume that people going on the streets will be violent, or will be acting unlawfully… “Any government should not presume the unlawfulness of the protest. Protest is a fundamental freedom and should be exercised in any democratic society.”
The former home secretary Suella Braverman was accused by many politicians of spreading hateful rhetoric and “sowing the seeds of hatred” which led to clashes breaking out between the police and far-right groups who gathered to counter-protest the pro-Palestine rally taking place on Armistice Day. 120 far-right protesters were arrested under different offences.
The Metropolitan police resisted the pressure from political leaders to ban the march on November 11th in London and ensured that the right to protest was respected. 2,000 officers were called to ensure that demonstrators obey the law and to prevent any hate crime to be committed or confrontations with counter protesters.
Mark Rowley, the London police chief, said that “any ban would require intelligence of a threat of serious disorder and that so far that threshold had not been crossed.”
In total, since October 7th, the police shared that they arrested approximately 200 people for acts of antisemitism, Islamophobia, and public order offences such as letting off fireworks towards officers during protests.
There are also concerns over a leaked government proposal to broaden the definition of extremism to include anyone who “undermines” the country’s institutions and its values. Civil society has raised concerns that the broadening definition may be used by the government as a pretext to restrict freedom of expression and crackdown on dissent.