Germany’s anti-BDS resolution violates the right to free expression

A protest in Munich against Israeli plans to annex swathes of the occupied West Bank last year calls for sanctions on Israel (Sachelle Babbar - ZUMA Press)

Adri Nieuwhof

The Electronic Intifada  /  January 8, 2021

German cultural institutions have criticized the German parliament’s anti-boycott, divestment and sanctions resolution for creating a legal gray area and undermining the right to free expression.

The 2019 resolution urges German institutions and public authorities to deny funding and facilities to civil society groups that support the BDS movement.

But in December, major German art and academic institutions denounced the resolution as “detrimental to the democratic public sphere” and warned of its negative impact on the free exchange of ideas.

That prompted an investigation, also in December, by the Bundestag’s scientific service department – an advisory body to the federal parliament – which reached a similar conclusion that the anti-BDS resolution is not legally binding and violates the constitutionally-protected right to freedom of expression in Germany.

UN experts, the Arab LeaguePalestinian civil societyartists and scholars and Palestine solidarity activists have all protested Germany’s anti-BDS resolution.

The cultural elite weighs in

The December Weltoffenheit GG 5.3 Initiative from the heads of Germany’s major art and academic institutions – including The Goethe Institute, the Jewish Museum Hohenems, the Humboldt Forum and the Centre for Research on Anti-Semitism at the TU Berlin – saw Germany’s cultural elite enter the fray.

Under the initiative, the institutions united to warn of a toxic climate created by the anti-BDS resolution that hampers free speech.

Weltoffenheit roughly translates as world openness and GG 5.3 is a reference to the German constitution’s section about freedom of opinion in art and academia.

At a press conference on 11 December, the heads of the institutions involved revealed they increasingly feared the consequences of working with artists or intellectuals who are pro-BDS or perceived as pro-BDS as a result of the resolution.

The initiative specifically mentioned anti-Semitism smears against the globally renowned Professor Achille Mbembe as an example.

The Cameroonian philosopher had been invited to give the opening address at last year’s Ruhrtriennale Festival in Bochum, but festival officials had come under pressure to disinvite the African scholar by politicians citing alleged anti-Semitism over Mbembe’s criticism of Israeli policies.

The festival was eventually cancelled as a result of the COVID-19 pandemic.

The cultural elite‘s concerns are supported by over 1,400 signatories to an open letter by a group of international and German artists either based in Germany or who work with German institutions.

Both initiatives contributed to an intense public debate that eventually moved Germany’s anti-Semitism chief Felix Klein to suggest the idea of asking the German parliament’s scientific service department for an expert opinion on the matter.

Klein is on record as calling the anti-BDS resolution – which equals BDS with anti-Semitism and is based on the controversial definition of anti-Semitism produced by the International Holocaust Remembrance Alliance (IHRA) – “a great sign of solidarity with Israel.”

Expert opinion: freedom of speech first

The parliamentary scientific services advisory body report failed to address how the IHRA definition of anti-Semitism – the basis of the anti-BDS resolution – is used to silence and smear Palestinians and their supporters.

But the report did confirm the Weltoffenheit initiative’s assertion that the resolution is not legally binding: it is a political opinion.

The expert opinion states that as law, the resolution would be an unconstitutional restriction of the right to freedom of expression, which is protected under the German constitution.

The report amounted to a rebuke to Berlin’s anti-Semitism expert Professor Samuel Salzborn who had earlier proclaimed himself “irritated and disturbed” by the call from Germany’s cultural elite.

But then, Salzborn had long ago revealed his anti-Palestinian tendencies when he tweeted about being uncomfortable on a train because “the people next to you start talking about ‘Palestine’ without any apparent reason,” a tweet accompanied by the hashtag, #anti-Semitism.

Space for Palestinian voices ?

Germany has a significant community of some 250,000 people of Palestinian descent including 40,000 in Berlin.

But many of them say they are afraid of criticizing Israel or the Israeli occupation.

“Many young Palestinians don’t dare to get involved,” a former head of a Palestinian organization told the German daily Tageszeitung on condition of anonymity. “They are afraid that this could harm their professional career.”

German Palestinian activist Amir Ali agrees that Palestinians in Germany are fearful of speaking freely.

Ali is one of the Bundestag 3 for Palestine (BT3P) who sued the German parliament over the anti-BDS resolution when it first came out.

In a video released as part of that campaign, he spoke about how friends asked him why he is prepared to risk his personal future with the legal action.

“I am doing this because defending human rights in general and of the Palestinians is the right thing to do… I know that many Palestinians in Germany feel the same, but because it endangers their future they cannot participate in our legal action.”

Majed Abusalama, a Palestinian activist who has lived in Germany for the past five years, echoed this sentiment.

“There is zero space for any Palestinian who does not speak the German discourse of the two-state solution, or who mentions BDS,” he told The Electronic Intifada.

“Germany is going way beyond traumatizing our community.”

Abusalama was one of the three campaigners who were taken to court in Germany for disrupting an event featuring an Israeli official at a Berlin university. It took three years for a German court to acquit him.

In 2018, he featured in a report by Berlin’s state domestic intelligence agency in a section on anti-Semitism because of his participation in the university protest.

That in turn led him to appear in The Jerusalem Post as “a highly aggressive pro-BDS-activist.”

video of Abusalama’s intervention at the event reveals that the description is wildly inaccurate.

The whole experience has left Abusalama despondent.

“It was serious bullying, harassment, defamation, and character assassination that aimed to not only silence me but continuously erase any sign of Palestinian activism for equality, freedom and justice in Germany,” Abusalama said.

And more broadly, he said, “it is part of increasing anti-Palestinian racism” in Germany.

Adri Nieuwhof is a human rights advocate based in the Netherlands and former anti-apartheid activist at the Holland Committee on Southern Africa