Munich anti-BDS policy is illegal, German federal court rules

BDS - Austria (ELSC)

Adri Nieuwhof

The Electronic Intifada  /  January 24, 2022

In a victory for political freedom, a German federal court ruled that Munich’s refusal of a public venue for a debate on the city’s anti-BDS resolution was unconstitutional.

The city’s policy “violates the fundamental right to freedom of expression,” the court ruled.

The decision is a slap in the face for the Munich city council which adopted a resolution in 2017 barring public funding or space for supporters of BDS – the boycott, divestment and sanctions campaign for Palestinian rights.

The ruling has wide implications for free speech across Germany, where people face regular repression and smears from officials over their support for Palestinian rights.

Meanwhile in neighboring Austria, the Vienna city government is suing a member of BDS Austria for “defamation” over a Facebook post critical of Israeli apartheid.

Munich broke the law

In April 2018, resident Klaus Ried tried to book a room at the Munich City Museum to host a discussion about how the municipality’s anti-BDS resolution would affect freedom of speech.

The city refused the booking for what it considered a BDS-related event.

Ried took the matter to court. At first a lower court ruled against him, affirming that Munich had the right to impose such restrictions.

He appealed and in 2020 won.

But Munich could not accept that and brought the case to federal court, hoping to overturn Ried’s victory.

The attempt failed, however. On 20 January, Germany’s Federal Administrative Court in Leipzig issued its ruling siding with Ried.

The federal court affirmed that German law “guarantees everyone the right to freely express and disseminate their opinion.”

It found that the Munich city government was not allowed to violate that right by denying permission for an event because of “the expected expression of opinions on the BDS campaign or on its content, goals and topics.”

The federal court also affirmed that Munich’s anti BDS-resolution is not a law.

The landmark decision sends a warning to city councils across Germany that have passed similar resolutions and have been denying organizers of BDS-related events access to public venues.

The ruling also has implications for the German parliament’s 2019 anti-BDS resolution which – although not legally binding – urges German institutions and public bodies to deny funding and facilities to groups that support the BDS movement.

BDS Austria under attack

The city government in the Austrian capital Vienna is suing a representative of BDS Austria for an August 2021 post on the activist group’s Facebook page.

The post shows a photo of a municipal billboard with a protest poster pasted over it, but leaving the city’s official logo still visible.

The protest poster resembles the famous “Visit Palestine” poster from the 1930s. But instead, it bears the words “Visit Apartheid.” The protest poster also has the city’s logo on it.

One BDS Austria social media post had the sarcastic caption, “We are pleased that the City of Vienna also takes note of apartheid and publicly states it.”

In November, a member of BDS Austria was notified that the Vienna municipality filed a lawsuit alleging that the BDS movement “incites hatred against Israeli people.”

Therefore, the city claims, being publicly associated with BDS is defamation since “the designation of the situation in Israel/Palestine as ‘apartheid’ constitutes damage to our reputation.”

The city is asking the court to prohibit BDS Austria from making use of signs which belong to the municipality and $4,000 in damages. If the court orders BDS Austria to pay the legal costs the total amount could be as high as $40,000.

The European Legal Support Center (ELSC), a civil rights and legal advocacy group, is calling this an example of SLAPP – a strategic lawsuit against public participation.

Such lawsuits are typically aimed at silencing critical speech.

The city’s claim is patently ridiculous because it is apparent that the poster was roughly pasted over the city’s billboard and is not an official message of Vienna city.

Moreover, Vienna’s denial of the reality of apartheid experienced by Palestinians flies in the face of a growing consensus, affirmed even by such mainstream groups as Human Rights Watch and Israel’s B’Tselem.

ELSC has set up a crowdfunding campaign to ask for public donations to help with legal expenses.

And a petition supporting BDS Austria has gathered almost 700 signatures.

Staunch Israel supporters

In 2017, Austria adopted the so-called IHRA definition of anti-Semitism.

The controversial “definition” promoted by Israel and its lobby conflates criticism of Israel and its Zionist state ideology with anti-Jewish bigotry. The IHRA definition is now regularly used in various countries to smear supporters of Palestinian rights.

A year later, the Vienna city council adopted a resolution that labels the BDS movement as inherently anti-Semitic. The resolution denies BDS supporters institutional support and threatens the existence of safe political space for Palestinian rights advocacy in Austria.

In 2019, members of BDS Austria organized a protest at the city council against this official censorship.

Like in Germany, Austrian political elites are staunch supporters of Israel. The Austrian-born Adolf Hitler’s annexation of Austria in 1938 was broadly welcomed by the Austrian public, so much like in Germany today, many Austrians see unquestioning support for Israel – no matter what it does to Palestinians – as a form of atonement for Nazi crimes.

Lawyer Elisabetta Folliero along with the European Legal Support Center filed a rebuttal to the city’s lawsuit.

It includes an expert opinion by renowned international law scholars Eric David, Xavier Dupré De Boulois, Richard Falk and John Reynolds.

They argue that Austrian anti-BDS resolutions violate international and European human rights standards including respect for the fundamental rights to freedom of expression and assembly.

Among others, the experts cite the landmark 2020 ruling by the European Court of Human Rights affirming that calls to boycott Israeli goods constitute protected political speech.

The case against BDS Austria will be heard in the Commercial Court of Vienna on 28 January 2022.

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