Terror against Jews in Germany: Reflections on Ronen Steinke’s New Book

[Kai Ambos is the Chair for Criminal Law, Criminal Procedure, Comparative Law, International Criminal Law and Public International Law, at the Faculty of Law of Georg August Universität Göttingen and a Judge at the Kosovo Specialist Chambers. The views expressed are those of the author and do not necessarily reflect the views of the Kosovo Specialist Chambers. The author thanks Dr. Lucia Sommerer, LL.M. (Yale) for her invaluable assistance in preparing this English version.]

Anyone who is a member of the German majority society can at best understand intellectually, but not emotionally, how (certain) minorities and persons with a migration background are faring in this country. The fact that in particularly many jurists find it intellectually difficult to put themselves in the position of minorities is demonstrated, for example, by the recent ruling of the Constitutional Court of the federal province of Mecklenburg-Western Pomerania on the permissible (!) use of the term “Negro” in a parliamentary debate of the state legislature. Further, the German Jalloh case – a man of color dying in an arrest cell in Dessau, a city in the state of Saxony-Anhalt – makes it clear that police violence against black people is by no means merely a problem of the USA.

Ronen Steinke, of Jewish heritage socialized in Germany, with a doctorate in law, and a leading journalist at the Süddeutsche Zeitung (one of Germany’s largest daily newspapers), is now making – to state it up front – a successful contribution to the intellectual understanding of the fate of Jews in 21st century Germany. Right at the beginning Steinke, however, also makes it clear that his book addresses discrimination against “racially marginalized people” in general (“same shit, different asshole”) and is thus about an overarching “justice problem” (p. 18).

Meticulously researched chronicle

Anyone who believed that the National Socialist “destruction of European Jews” and the subsequent efforts at political education in the Federal Republic of Germany had noticeably reduced prejudice, even hatred, against Jews is proven wrong by Steinke: His meticulously researched chronicle of anti-Semitic violence in Germany from 1945 until January 2020 (pp. 149 et seq.) shows that the violence is primarily directed against Jewish symbols (especially gravesites); he includes violence against persons and property, but not mere anti-Semitic “graffiti” in his recordings (p. 149). It should be noted that the number of unreported cases is high, and that violence against Jewish persons is considerably lower than violence against property primarily because the proportion of Jews in the total German population is only 0.12 percent (according to the Central Council of Jews in Germany, it has fallen to approximately 95.000 persons in 2019 – a steady decline since 2005).

Steinke supplements this record of violent crimes with captivatingly narrated individual life stories, based on personal conversations, through which the reader is familiarized with the sad reality of Jewish life in Germany (fear for one’s own children in (pre)school, absence of undisturbed practice of religion, indifference to the point of open rejection by German authorities, including the investigating authorities, who – as in the case of the National Socialist Underground, a German extreme-right terrorist organization uncovered in 2011 – do not investigate in the right-wing milieu, but first of all in the victims’ circle of acquaintances, etc.)

State’s constitutionally mandated duty to protect must not be “outsourced” to the victims

In view of this stocktaking, it is not surprising that Jewish citizens and Steinke doubt the rule of law in the Federal Republic of Germany – the Federal Republic’s “character” is “at stake” (p. 133), as he puts it – because the protection of its minorities is one of the most important duties of any constitutional State. In fact, the constitutionally mandated duty to protect was initially developed in 1975 in the German Federal Constitutional Court’s pregnancy judgment (BVerfGE 39, 1 et seq.) and later evolved into a “state objective” of public safety in the course of the fight against terrorism. Such duty to protect has a particular preventive dimension and thereby includes the provision by the state of the necessary police protection and technical precautions such as surveillance systems, etc. The task of protection must thus not be outsourced to the citizens at risk, as happened, most prominently, in the 2019 synagogue shooting in the German city of Halle.

Steinke not only describes, but also evaluates the situation, sometimes through his protagonists. The German “coldness” is lamented by Grabowski, a Jew who immigrated from Argentina (p. 16). As is well known, emotions and empathy are merely secondary virtues for us Germans; more important are “manpower, organization, method” as Heinrich Mann has already noted in his novel “The Head” (Der Kopf, 1918/2011, p. 217). Steinke makes it clear that terrorism can be directed not only against the State but also against minorities. The New Right in Germany, including the party Alternative für Deutschland (“AfD”), has given itself a facelift vis-à-vis the Nazis (pp. 54-5), and “in this game” what is left for the Jews is “merely the role of useful idiots.” (p. 61). But neither is the (old) Left of the 1960ies, above all German left-wing activist Dieter Kunzelmann, spared by Steinke’s criticism (pp. 65-6).

Anti-Zionism and Anti-Semitism

Ronen Steinke is right: attacks on Jews (and other minorities) are criminal offences, sometimes even of a terrorist nature. And they cannot be justified by the (possibly objectionable) policies of the State of Israel. Neither the Jews in Germany nor the Jews in other countries (including Israel) are a party in the Palestinian-Israeli conflict, at least as long as they do not actively participate in the hostilities against the Palestinians. This even follows from international law, more precisely from the law of armed conflict, which is (partially) applicable in Israel and the Occupied Territories.

However, I cannot quite follow Steinke in his equation of anti-Zionism and anti-Semitism – with reference to Jean Améry’s dictum that anti-Semitism is contained in anti-Zionism “like a thunderstorm in a cloud” (p. 68). If that were true, the great-grandparents of many Jews, perhaps even those of Steinke himself, would have been anti-Semites – Jewish anti-Semites – because the vast majority of European Jews were against the founding of a Jewish State and thus anti-Zionist at the end of the 19th century. Incidentally, the differences continue to this day, because even the Orthodox Jews living in Israel reject the formation of a state and instead wait for redemption by the Messiah.

At any rate, the equation of anti-Zionism and anti-Semitism, as raised by Steinke, is widespread, and also shared by Germany’s domestic intelligence service. Against the historical background described above, however, this approach only makes sense if it is based on views that give purely anti-Semitic reasons for rejecting the State of Israel and its policies. At least, Steinke places his comparison in a certain German context, namely that of German left-wing terrorism, which sometimes equated Jews with Israel in an undifferentiated manner and lacked any empathy for Jewish victims of National Socialism who saved their lives by going into exile to Israel. Be that as it may, here Steinke – unintentionally – gets involved in the German discussion about possible abuses of claims of anti-Semitism (“civic judges of faith”), which arose inter alia around the Mbembe case and the BDS boycott movement (Boycott-Divestment-Sanction); the ECtHR has said all that needs to be said in this context regarding freedom of speech.

Emigration is no alternative

But what can be done to improve the situation of Jewish citizens? Emigration is not an alternative (pp. 123 et seq.) because Jews are not really safe anywhere, not even in Israel. Moreover, this option would mean a victory for those whom we should all – Jews and non-Jews alike – fight. If really all Jews were to leave Germany, then – as Ignatz Bubis, former chairman of the Central Council of Jews in Germany rightly pointed out (p. 126) – our country would be lost, because who wants to live in a state that cannot adequately protect its minorities?

Instead, Steinke makes four suggestions that flow organically from his previous analysis: Punishing hate crimes more severely, rejection of anti-Semitic patterns of argumentation by the judiciary, more consistent dismissal of right-wing extremists from the police force and proactive protection of Jewish institutions (pp. 133 et seq.). This does not require any legal changes apart from the corresponding political will, but only the utilization of already existing possibilities within the law (for example, aggravated sentences for racist, xenophobic or other inhuman motives according to Section 46 (2) of the Criminal Code, as recently clarified by the German Federal Court of Justice). In other words, what is needed are not mere opportunistic outcries when attacks on Jews and Jewish institutions occur again and again, but rather practical policies for the better protection of our Jewish fellow citizens and the consistent prosecution of the perpetrators.