Germany - Restrictive Policies

Administrative Complaint against the Bundestag Anti-BDS Motion

Published on Wed Oct 14 2020 - modified on Tue Dec 22 2020

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 motionResisting 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 In September 2019, the German jury of the Nelly Sachs prize withdrawn an award to Kamila Shamsie for her book after the jury were informed of her support to the BDS movement.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.

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).

The case is currently pending.

Timeline

17 May 2019: The Bundestag adopts the motion “Resisting the BDS Movement with Determination – Combating Antisemitism”.

18 May 2020: Lawyer Ahmed Abed, with the assistance of the ELSC, files the complaint before the Administrative Court of Berlin requesting the nullification of the anti-BDS motion.

15 July 2020: Lawyer Abed submits before the Court the legal opinion on the legal implications of the anti-BDS motion commissioned by the ELSC.

4 December 2020: The Administrative Court of Hesse ordered the city of Frankfurt by a temporary injunction to provide a venue to the Bundestag 3 for Palestine (BT3P) campaigners to host an event.

Media Coverage

Electronic Intifada, Adri Nieuwhof, Human rights defenders sue German parliament over anti-BDS resolution, 5 October 2020

Related ELSC Resources
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