The potential red-red-green coalition in Berlin has agreed on a fundamental political principle even before government negotiations begin: Israel’s so-called right to exist must not be questioned. In their exploratory agreement on October 8, 2026, the SPD, Greens, and Left Party declared this commitment a basis for cooperation and that violations could result in party or parliamentary group sanctions.
But what legal significance does such a right have? Is it codified in international law? And what constitutional problems arise when the act of questioning a political formula is equated with antisemitism or used to justify political sanctions? These questions concern international law, freedom of expression, political pluralism, and the protection of Palestinians against discrimination.
The United Nations Charter of June 26, 1945, contains no independent provision explicitly guaranteeing every state a general “right to exist.” Instead, Article 2(1) establishes the sovereign equality of states, while Article 2(4) prohibits threats or uses of force against their territorial integrity or political independence. These provisions protect existing states but do not establish an absolute right to preserve a particular constitutional order, political ideology, or form of government indefinitely. Under the classical three-element theory, statehood requires a population, territory, and effective government. Article 1 of the 1933 Montevideo Convention identifies comparable criteria and adds the capacity to conduct international relations.
Israel is an internationally recognized state and has been a UN member since May 11, 1949 (UN General Assembly Resolution 273 [III]). It consequently enjoys the rights and protections accorded to states under international law. However, recognizing statehood and prohibiting violent destruction are not equivalent to guaranteeing the permanent existence of a particular political order. Conversely, the absence of the explicit phrase “right to exist” from the UN Charter does not mean that states lack legal protection against threats to their continued existence.
The crucial distinction is between protecting a state and its population against violence and treating a specific political or constitutional arrangement as legally untouchable.
The Berlin agreement declares Israel’s right to exist as non-negotiable. Political parties may legitimately adopt such commitments. Constitutional concerns arise, however, when an undefined political expression becomes a standard for determining permissible opinions or imposing sanctions. What precisely does questioning Israel’s right to exist mean? Does it refer to rejecting violence against Israel and its population? Recognizing Israeli statehood? Or does it also prohibit advocating a fundamentally different political arrangement between the Mediterranean Sea and the Jordan River?
These positions are legally distinct. Advocating a democratic one-state solution guaranteeing equal rights for everyone cannot automatically be equated with advocating violent destruction, expulsion, or murder. Likewise, criticizing the ethno-national characteristics of a constitutional order does not necessarily entail denying rights to its population. Whether a statement is antisemitic, constitutionally protected, or criminally relevant depends on its actual content and context. Political declarations cannot replace this legal assessment or establish binding definitions of international law.
Unlike the politically formulated right of a state to exist, the right of peoples to self-determination is expressly established in international law. Article 1(2) of the UN Charter identifies self-determination as a foundational principle. Article 1(1) of both the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights provides:
“All peoples have the right of self-determination.”
This includes freely determining political status and pursuing economic, social, and cultural development. In its advisory opinion of July 19, 2024, the International Court of Justice reaffirmed Palestinian self-determination and concluded that Israel’s continued presence in the Palestinian territories occupied since 1967 is unlawful and must end as rapidly as possible. The Court emphasized the prohibition of acquiring territory by force and violations of Palestinian self-determination.
The resistance to Palestinians’ legal rights
Although advisory opinions are not binding judgments in interstate disputes, they carry substantial authority in interpreting international law. This reveals a striking political asymmetry: while Israel’s politically formulated right to exist is treated in Germany as a non-negotiable condition of cooperation, the practical realization of Palestinians’ explicitly recognized legal rights frequently encounters political resistance.
This discrepancy is central to criticism of the unequal treatment of Palestinian rights. Anti-Palestinian racism can manifest through blanket suspicion of Palestinian identity, the delegitimization of Palestinian experiences, and institutional discrimination against people perceived as Palestinian. Several constitutional and human rights provisions are relevant:
- Article 1(1) of the Basic Law: human dignity.
- Article 3(1) and (3): equality and protection against discrimination.
- Article 5(1): freedom of expression.
- Article 26 of the Berlin Constitution and Article 11 of the European Convention on Human Rights: freedom of peaceful assembly.
Article 8 of the Basic Law expressly protects Germans. Non-German nationals enjoy assembly protections through other constitutional and human rights provisions, including Article 2(1) of the Basic Law. Restrictions on speech or assemblies require a sufficient legal basis and must satisfy proportionality requirements. Palestinian identity, political solidarity with Palestine, or the expectation of controversial opinions cannot alone justify state interference.
Nevertheless, not every difference in treatment constitutes unlawful discrimination. A finding of institutional racism requires examining administrative decisions, comparable cases, their justification, and discriminatory effects. The preventive bans on pro-Palestinian assemblies surrounding Nakba commemorations in 2022 and 2023 demonstrate the practical significance of these principles. In May 2022, under Berlin’s former red-red-green government, police banned several Palestinian solidarity demonstrations, citing anticipated violence and criminally punishable antisemitic statements.
In September 2023, Amnesty International criticized the preventive bans and warned against discriminatory stereotypes concerning people perceived as Arab or Muslim. On February 19, 2026, the Berlin Administrative Court ruled on several bans. It upheld prohibitions on larger demonstration marches in 2022 and 2023 based on concrete risk assessments but found the bans on two smaller stationary rallies in 2022 unlawful.
These judgments demonstrate that police assessments are not automatically illegitimate. However, they also establish that restrictions on fundamental rights cannot be justified without sufficiently substantiated risks. The former red-red-green government bore political responsibility for Berlin’s security administration. The court decisions, however, do not establish personal racist motives among government officials. A substantiated finding of institutional anti-Palestinian racism requires further examination of administrative practice and potentially unequal treatment of comparable assemblies.
The Berlin agreement and BDS
The exploratory agreement of October 2026 rejects general boycotts and undifferentiated sanctions against Israel, Israeli institutions, or individuals based solely on origin or affiliation. It explicitly refers to the Boycott, Divestment and Sanctions (BDS) movement. BDS remains politically controversial. Critics identify antisemitic elements in its positions and practices, while supporters defend boycotts as non-violent instruments for advancing Palestinian rights. The Federal Administrative Court’s judgment of January 20, 2022 (8 C 35.20), is particularly relevant. It ruled that excluding events from municipal facilities solely because they address BDS violates freedom of expression.
This does not establish that all BDS activities or boycott demands are unlawful. It does establish limits on governmental exclusion of controversial political viewpoints. The Federal Constitutional Court’s 1958 Lüth judgment had already recognized that boycott appeals may fall within constitutional protection. Consequently, political opposition to BDS does not authorize public authorities to disregard fundamental rights. Decisions concerning public funding, municipal premises, or other governmental measures must be evaluated individually according to statutory requirements, equality guarantees, and proportionality.
Exclusion from political parties and parliamentary groups
The Berlin agreement also envisages consequences for violations of shared principles, potentially including exclusion from parties or parliamentary groups. Under Article 21 of the Basic Law, political parties enjoy considerable autonomy to define their principles and membership requirements. Unlike public authorities, they are not directly bound by freedom of expression in the same manner. However, political disagreement does not automatically justify expulsion.
Section 10(4) of the Political Parties Act requires an intentional violation of party statutes or a serious violation of party principles or order causing serious harm. Under Section 10(5), the competent party arbitration court decides on expulsion. The distinction between scholarly legal argument, political dissent, and violations of party obligations is therefore essential.
Rejecting the terminology of an independent Israeli “right to exist” does not, by itself, establish antisemitism or satisfy the legal conditions for party expulsion.
Moreover, parliamentary group exclusion and party expulsion are legally distinct from losing an elected mandate, which enjoys separate constitutional protection. The Berlin agreement explicitly acknowledges Palestinian civilian suffering, supports a two-state solution, and recognizes Palestinian life as part of Berlin. Claiming that Palestinian rights are entirely absent would therefore be inaccurate.
Anti-Palestinian discrimination
The relevant criticism concerns the difference between symbolic recognition and institutional safeguards. While the agreement outlines detailed measures for protecting Jewish life, combating antisemitism, and strengthening security authorities, comparably specific mechanisms addressing anti-Palestinian discrimination receive less attention. This difference does not prove racist intent. Given actual antisemitic threats, specific measures protecting Jewish communities may be justified. Nevertheless, it raises legitimate questions about institutional equality.
What mechanisms protect Palestinians against discrimination? How are restrictions on Palestinian political activity justified? What safeguards prevent Palestinian identity or political solidarity from becoming grounds for collective suspicion? An effective anti-racist policy must protect Jewish and Palestinian communities without treating their rights as mutually exclusive.
The Berlin debate highlights a fundamental distinction between political commitments and binding legal standards. Israel, as an existing state, enjoys international legal protections against unlawful force and violations of sovereignty. Yet the UN Charter does not expressly establish an independent, absolute right to preserve its particular constitutional order. Meanwhile, Palestinian self-determination is explicitly guaranteed under international law and has been reaffirmed by the International Court of Justice.
The central criticism of the red-red-green agreement is therefore not its commitment to protecting Jewish life or combating antisemitism. It concerns the danger of transforming an ambiguous political formula into a mechanism for restricting legitimate political debate or discriminating against Palestinian perspectives. Democratic politics must distinguish between protecting people against violence, recognizing statehood, and criticizing political institutions. Ultimately, the legitimacy of government action depends not on declarations of non-negotiable principles but on compliance with constitutional guarantees, international law, and the prohibition of discrimination.
Political commitments cannot replace legal norms. Nor can political majorities override the obligation of state power to respect fundamental rights and the rule of law.
