Germany - Case Update

We are suing the German Bundestag over its 2019 anti-BDS motion

Published on Fri Sep 18 2020 - modified on Mon Dec 21 2020

Over the past months, the ELSC has been assisting the Berlin-based lawyer Ahmed Abed who is representing three plaintiffs in a lawsuit brought before the Administrative Court of Berlin challenging the lawfulness of the anti-Boycott, Divestment and Sanctions (BDS) motion passed by the German Bundestag on 17 May 2019. The public campaign Bundestag 3 for Palestine (BT3P) is raising awareness and support for the lawsuit. We hope you will be able to support it through your network and channels.

What the case is about

The action aims to nullify the Bundestag anti-BDS motion based on its violation of the fundamental rights of freedom of expression and assembly both under German law and the European Convention on Human Rights (ECHR – Article 10 and Article 11).

The plaintiffs are: Judith Bernstein, a Jewish German activist born in Jerusalem; Amir Ali, a Palestinian German citizen whose family was displaced from Haifa during the Nakba in 1948; and Christoph Glanz, an anti-racism and Palestinian rights activist.

“What unites us three plaintiffs is our unconditional commitment to human rights. We oppose all forms of racism, discrimination and oppression without any exception. Our commitment to the Palestinian cause and BDS arises from this very obligation and these values,” states their principles.

Called “Resisting the BDS movement decisively – fighting antisemitism”, the Bundestag motion claims without any basis that “the pattern of argument and methods of the BDS movement are antisemitic”. Consequently, it calls on all authorities to withhold funding, and deny public spaces to organisations or groups that show support for the BDS movement.

Although the Bundestag motion is not legally binding, states (Länder), municipalities and local authorities as well as private companies de facto comply with it. Moreover, several states and cities had already adopted similar motions since 2017.

The dangerous conflation of the movement with antisemitism rests upon the acceptance of the International Holocaust Remembrance Alliance’s (IHRA) Working Definition of Antisemitism – which is quoted in the Bundestag anti-BDS motion – that allows for an illegitimate and inaccurate amalgam of antisemitism and criticism of the State of Israel.

These have created a significant chilling effect on advocates for Palestinian rights in the country: German and international artists, intellectuals and academics have had invitations to events or prizes withdrawn, speeches cancelled and applications for public spaces denied, in direct violation of their fundamental rights.

Why you should support
The ELSC has mobilised resources to assist lawyer Abed in the preparation of the case. Among others, we provided the expert opinion “Legal implications of the anti-BDS Decision adopted by the German Bundestag on 17 May 2019” signed by four professors of international law (Eric David, Emeritus Professor of International Law at the Université Libre de Bruxelles; Xavier Dupré De Boulois, Professor of Law of Fundamental Rights and Freedoms at Université Paris 1 Panthéon-Sorbonne;

Richard Falk, Emeritus Professor of International Law, Princeton University and Chair of Global Law, Faculty of Law, Queen Mary University London; and John Reynolds, Lecturer of Public International Law and Programme Director of the International Justice LL.M at the National University of Ireland Maynooth).

Submitted to the court on 15 July 2020, the opinion demonstrates that the Bundestag motion is incompatible with European and international human rights standards. We are now waiting for the court to set a hearing date.

The ELSC and lawyer Abed have already successfully carried out legal actions against local anti-BDS motions. On 13 September 2019, the Administrative Court of Cologne thwarted the City of Bonn’s anti-BDS motion, ruling it is unlawful and undermined the fundamental right of freedom of expression as well as freedom of assembly protected under Article 5(2) of the Basic Law. Furthermore, the recent landmark judgement of the European Court of Human Rights (ECtHR) in the case Baldassi and Others v. France confirmed and reinforced that the call to boycott is a citizen’s right, and a legitimate tool of protest that falls within the freedom of expression protected by Article 10(1) of the ECHR.

This lawsuit aims to stop the use of soft law instruments for criminalising peaceful activities calling on Israel to comply with International law. This is a crucial legal battle for freedom of speech; the first of its kind at federal level.

Support us by spreading the word about the lawsuit, organising discussion rounds and lectures, donating to cover the costs of the lawsuit or by publicly speaking out for freedom and justice for Palestinian people.

#BT3P #RightToBoycott #RightToBDS #FreedomOfExpression #NoIHRA

Read our case summary

Share this page