Germany’s parliament is moving to jail people for denying Israel’s right to exist. It cannot enforce the laws it already has, and the people paying for that are Iranians.

A man walked past an Iranian opposition rally in central Stuttgart, turned toward it, and threw a Hitler salute. He was laughing. I photographed him. A few metres away the group that turns up at every one of these rallies with Palestinian symbols was laughing too. No officer moved. He walked on.

The salute is a criminal offence in Germany under Section 86a of the criminal code, up to three years. Nothing happened, because the people it was aimed at were Iranians.

In July the Bundesrat advanced a bill expanding Section 130 of the same criminal code to cover public denial of Israel’s right to exist, with penalties up to five years. It is now with the Bundestag. Israel’s ambassador in Berlin called it a bright red line. Israelis reading about it are cheering.

They should not be. Germany’s answer to a state apparatus that does not function is another statute. There is a German term for the problem and I did not invent it: Vollzugsdefizit. Enforcement deficit. The norms exist. They are not applied.

Look at how Section 130 actually works before you celebrate its expansion. In practice the provision is read to require that the group being incited against lives in Germany. Prosecutors close files on precisely that ground. Elisa Hoven, professor of criminal law at Leipzig, has documented it, and it has been submitted to the Bundestag in writing. So abuse aimed at Israel falls outside the paragraph almost by construction. And abuse aimed at Iranians holding an Israeli flag falls outside it twice over: they are not Jews, and they are not the domestic group the paragraph is read to protect. Hoven’s own conclusion is that if Germany wants to give the state of Israel criminal protection, Section 130 is the wrong place for it, and the chapter on offences against foreign states is the right one. The bill puts it in Section 130 anyway. Expert witnesses have already told the Bundestag it may not survive Article 5 of the constitution.

So a law that may be unconstitutional, filed in the wrong chapter, will be enforced by the same municipal officials, the same patrol officers and the same prosecutors who are not enforcing........

© The Times of Israel (Blogs)