Activists launch legal challenge to Germany’s anti-BDS law

Pro-Palestine protesters march during a demonstration in Berlin, Germany (Reuters)

Hebh Jamal

Mondoweiss  /  August 19, 2021 

The Bundestag 3 for Palestine is challenging Germany’s anti-BDS law in court: “Without exception, we oppose all forms of racism, discrimination and oppression: which must include the Palestinians.”

On May 17th, 2019 , the German Bundestag with a broad majority adopted the “Resisting the BDS Movement with Determination-Combating Anti-Semitism” (PDF) motion that condemns the Boycott, Divestment and Sanctions movement as antisemitic and demands that  governmental bodies and municipalities may neither financially support nor grant public space or any form of cooperation  to any organization that adopts BDS.

BDS defines itself as an “inclusive, anti-racist human rights movement that is opposed to all forms of discrimination, including anti-Semitism and Islamophobia.” Their goal is to target corporations and institutions deemed complicit in the State of Israel’s violations of international law. 

However, through their unconditional support for Israel, Germany has condemned the peaceful movement as antisemitic – which has been explained by some commentators as an attempt to atone for its own deeply antisemitic history. “The German establishment is entrenching its complicity in Israel’s crimes of military occupation while desperately trying to shield it from accountability to international law” the official BDS movement said on Twitter.

But a group of Jewish, Palestinian, and German activists are challenging the German Parliament. Judith Bernsein, Amir Ali, and Christoph Glanz have come together to form the Bundestag 3 for Palestine (BT3P), a group that aims to legally challenge the Bundestag in court in hopes to nullify the anti-BDS decision. “What unites us plaintiffs” they said, “is our unconditional support and commitment to human rights. Without exception, we oppose all forms of racism, discrimination and oppression: which must include the Palestinians.”  

The attorney representing them, Ahmed Abed, stated that the Bundestag’s anti-BDS decision is in violation of his clients’ freedom of expression and is incompatible with the German Basic Law and European Charter of Human rights.

 The International Covenant on Civil and Political rights which was ratified by Germany on December 17, 1973 includes multiple articles that “protects all forms of expression and the means of their dissemination” including political discourse, commentary on one’s own public affairs, and canvassing of human rights that include boycott movements. Therefore under international human rights law, boycotts have long been understood as a legitimate form of political expression. 

However, the reality includes no formal protections for critics of Israel. “In Germany, anyone who dares to stand up for Palestinian human rights must be ready to face attacks on many levels such as smear attacks, public denouncements by  politicians and legal warfare,” BT3P told Mondoweiss

The BT3P plaintiffs themselves faced intense criticisms and smear campaigns for their pro-Palestinian solidarity. Plaintiff Amir Ali was blocked from booking a venue for his advocacy organization, Palestine Speaks After attending a pro-Palestinian demonstration where he was victim to verbal and physical attacks, Christoph Glanz was the target of a pro-Israel campaign that attempted to get him fired from his position as a high school teacher. Judith Bernstein, who was born in West Jerusalem wanted to commemorate Jewish victims of the Holocaust yet was denied a venue because of her association with her organization that encourages Palestinian-Jewish Dialogue. 

“While it is true we have been directly affected by this McCarthyite decision, this is not only about the three of us. The anti-BDS decision is a vile tirade of racist hatred towards Palestinians themselves and advocates of Palestinian human rights. It falsely equates human rights activism with racist hatred and falsely equivocates opposition to the crimes committed by Israel with antisemitism” BT3P says. 

A sentence to protect freedom of opinion and expression was in reportedly deleted from a draft of the resolution which leads activists to believe that this decision is only intended to silence Palestinian advocates who are critical of Israeli apartheid. The reported deleted sentence read that the, “critical handling of Israeli government policy is protected by freedom of opinion, freedom of the press and freedom of expression be permitted in Germany.” 

The resolution impacts many other sectors of society as well such as artists, academics and writers. Since many branches of art are publicly funded in Germany, the resolution in fact denies public funding not only to BDS events, but to events involving participants who are suspected of supporting the boycott, regardless of whether BDS is part of the program. The hyper-politicization of the Palestinian identity entitles local politicians to interpret whether an event is appropriate or antisemitic, regardless of if it was intended to be political. 

In a public letter leading artists who live in Germany categorized the anti-BDS resolution as “dangerous” as it is used to “distort, malign and silence marginalized positions” especially those who defend Palestinian rights or are critical of the Israeli occupation. They state that the resolution “created a repressive climate in which cultural workers routinely asked to formally renounce BDS as a prerequisite for working in Germany.” 

In 2017, Berlin’s mayor, Michael Müller said he would personally work to ensure that representatives of the BDS movement would not get funding from the city or be allowed to use its public spaces claiming pro-Palestinian supporters are employing “unbearable methods from the Nazi era.” 

Another example of this recent repression is three Berlin-based BDS activists who faced criminal charges by the state. Jewish-Israelis Stavit Sinai and Ronnie Barkan and Palestinian Majed Abusalama were accused of trespassing and assault after peacefully protesting a public anti-BDS speech by Knesset member Aliza Lavie in June 2017. Lavie was one of the advocates for the 2014 war on Gaza that killed over 2,000 Palestinians including 547 children. 

In an interview with Aljazeera, Abusalama said that the charges brought against them was a clear sign that there is “an expression of Israeli apartheid in Germany” and that Palestinians and pro-Palestinian advocates alike feel threatened and unsafe in the country. 

The historic lawsuit by BT3P challenges Germany’s protections of Israel’s agenda to silence the BDS movement and Palestinian activists. They believe now is the perfect time to finally shift the nation’s perceptions on Israel. “Our democratic freedoms are enshrined in our constitution, therefore this anti-BDS resolution is the perfect target” they explain. 

So far, the group has won every single case against Palestinian discrimination that they have brought to court on more local levels and they plan to do the very same with the Bundestag resolution. They will not stop, they said, until, “BDS is officially recognized as a human rights movement in Germany and can act freely on all levels of the public arena.” 

BT3P believes that not only are they on the right side of history, but that the systematic obstruction of BDS, a human rights campaign, one day in history, “will be seen by the German public as equivalent of supporting the South African apartheid state and defaming and criminalizing the liberation movement there.” 

Hebh Jamal is a writer who advocates against education inequality, Islamophobia, and the occupation of Palestinians