3 Activists Challenge the German Bundestag Anti-BDS Motion

In May 2020, lawyer Ahmed Abed, with the assistance of the ELSC, filed a complaint before the Administrative Court of Berlin against the 2019 Bundestag’s anti-Boycott, Divestment and Sanctions (BDS) motion that condemns the movement as antisemitic.

On 17 May 2019, the German Bundestag adopted the motion “Resisting the BDS Movement with Determination – Combating Antisemitism” (Der BDS-Bewegung entschlossen entgegentreten – Antisemitismus bekämpfen). Based upon the IHRA Working Definition of Antisemitism which is quoted in the preamble, the motion expressly condemns the BDS campaign against Israel as antisemitic and further requests Federal States (Länder), municipalities and all public actors to deny any provision of premises and funding for the BDS movement or groups pursuing its objectives.

Several federal states and cities had already adopted similar motions following a first Bundestag motion from January 2018 that affirmed a commitment to “resolutely counter the worldwide BDS movement”. Although these motions are non-legally binding, BDS activists and supporters have been discriminated against throughout Germany by being disinvited from public events, denied access to public spaces and funding or to online platforms.

Among others, Cameroonian intellectual Achille Mbembe was disinvited from the annual music and arts festival, Ruhrtriennale, in March 2020 after pressure from several German politicians. In June 2019, US Rapper Talib Kweli was disinvited from a German music festival after he refused to denounce the BDS movement. In September 2019, the German jury of the Nelly Sachs prize withdrawn an award to Kamila Shamsie for her book after the jury were informed of her support to the BDS movement.

Concerned by its significant chilling effect, three activists, represented by Berlin-based attorney Ahmed Abed and supported by the ELSC, decided to challenge the motion and filed a lawsuit requesting its nullification. Judith Bernstein, a German-Jewish spokesperson of the Munich “Jewish-Palestinian Dialogue Group”, Amir Ali, a German-Palestinian member of the organisation “Palestine Speaks” and Christoph Glanz, a German activist and spokesperson of “BDS Oldenburg” also founded the campaign, Bundestag 3 for Palestine (BT3P) to gain public support and raise awareness on the legitimacy of right to boycott the state of Israel.

In May 2020, lawyer Abed, in cooperation with the ELSC, filed a complaint before the Administrative Court of Berlin arguing that the Bundestag motion, despite its non-legally binding nature, has a law-like effect leading to restrictions on the freedoms of expression and assembly. Furthermore, the applicants claim that the motion exposes human rights organisations and activists to public defamation as being antisemitic rather than granting them protection and support. As a consequence, the democratic and human-rights-led debate about Israel Palestine in the Federal Republic of Germany is significantly impacted and obstructed.

See the summary of the statement of claim in the proceedings before the Administrative Court of Berlin.

In support to the lawsuit, the ELSC instructed four renowned academics in international law, Eric David, Xavier Dupré De Boulois, Richard Falk and John Reynolds, to write a legal opinion on the Bundestag’s motion incompatibility with European and International human rights standards. The opinion establishes the full legitimacy of the BDS movement as a human rights movement and underlines the negative impacts – with specific regard to the fundamental freedoms of expression, association and assembly – of the antisemitism stigmatisation on advocates for Palestinian rights in Germany. It concludes that the anti-BDS motions represents an unreasonable, disproportionate and unlawful restriction on the BDS movement’s members’ aforementioned rights, both as individuals and as a collective, and hence violate Germany’s obligations under international human rights law and the European Convention of Human Rights (ECHR).

On October 7, 2021, a first hearing took place at the Administrative Court of Berlin, which dismissed the complaint. The Court ruled that the fundamental rights of the complainants have not been violated and the Bundestag is allowed to use the controversial IHRA-WDA as a parameter to assess antisemitism. Nevertheless, it recognised both its jurisdiction on the case and BT3P’s legal standing to challenge the resolution. Amir Ali, one of the plaintiffs, stated the following:

We will appeal. With this complaint we are opposing the systematic suppression of human rights work for Palestinians in Germany .

The case is currently pending. See the updates below.