Summary of the Statement of Claim in the Proceedings against the Anti-BDS Decision before the Administrative Court of Berlin (Gz. VG 2 K 79/20)
By attorney Ahmed Abed
The lawsuit is directed at the nullity and omission of the anti-BDS resolution of the German Bundestag of 17.05.2019 (Dr. 19/10191).
On behalf of Bundestag 3 for Palestine #BT3P, the lawsuit against the Bundestag resolution was filed before the Administrative Court of Berlin on 18.05.2020. The BT3P are the plaintiffs Ms. Judith Bernstein, Mr. Amir Ali and Mr. Christoph Glanz, with three different backgrounds - Jewish, Palestinian and German - a common history and a goal:
TOGETHER FOR HUMAN RIGHTS AND INTERNATIONAL LAW! FOR EQUAL RIGHTS FOR ALL PEOPLE IN ISRAEL AND PALESTINE AND THE END OF THE ISRAELI OCCUPATION!
With this decision, the plaintiffs who advocate for human rights with the Boycott, Divestment and Sanctions movement (BDS movement) are exposed to a particularly high level of public defamation with the aim of excluding them from public discussions, which causes enormous damage to human rights work in Germany. Without a legal basis, freedom of expression, assembly and association is restricted within the Bundestag and other public actors, such as states, municipalities and cities, are also called upon to disregard simple legal and constitutional norms, such as the municipal right to use premises.
From the terrible situation for the 4.98 million Palestinians under Israeli military occupation, annexation and Israeli apartheid (see, among others, UN Special Rapporteur Michael Lynk report, June 15, 2020, p. 867-913; http://ejil.oxfordjournals.org/content/24/3/867.full.pdf+html and Israeli Practices towards the Palestinian People, UN Economic and Social Commission for West Asia [UN-ESCWA] report 2017) stems their motivation to stand up for human rights and international rights. They demand equal civil and social rights for all people in Israel and Palestine and an end to the Israeli occupation. In light of their louder motives and personal stories against the high authority of the Bundestag in public, the stigmatizing effect of the resolution is particularly high.
The lawsuit is supported by the European Legal Support Centre (ELSC) with the legal opinion "Legal Implications of the Anti-BDS Resolution adopted by the German Bundestag on May 17, 2019” by international law scholars Prof. em. Eric David, Prof. Xavier Dupré De Boulois, Prof. em. Richard Falk (former UN Special Rapporteur on Israel and Palestine) and Prof. John Reynold. They demonstrate that the decision is incompatible with European and international human rights standards.
Calls to break the law are unlawful
The calls for the states, municipalities and all other public actors to act in violation of the law, such as banning the use of municipal premises, excluding municipal funding and facilities, is unlawful. Instead of a law, the Bundestag has passed a resolution that has the effect of a law in order to restrict the freedom of expression of the plaintiffs who support the BDS campaign. Under the Basic Law, however, the Bundestag is required to enact a law if it wishes to restrict freedom of expression or freedom of assembly (Article 5(2) of the Basic Law, Article 8(2) of the Basic Law). However, such a law would be unconstitutional, incompatible with Art. 10 para. 1 and Art. 11 para. 1 ECHR (judgment of the ECtHR of 11.06.2020, R.no. 15271, Press release http://hudoc.echr.coe.int/fre?i=003-6718555-8953654), the European Regulation [EU] No. 1169/2011 (ECJ, C-363/18) and the state obligation of non-support and non-recognition of the Israeli occupation, which is illegal under international law.
„In its resolutions, the Parliament may not under any circumstances demand anything unconstitutional or even unlawful (illegal) under simple law. Otherwise, the parliament is required to amend laws in a generally binding manner or to initiate amendments. Under no circumstances can it, even if it is a matter of its own legal rules, set them aside by resolution for the individual case.“ (Luch, Anika D., in: Morlok/Schliesky/Wiefelspütz, Parlamentsrecht, p. 417)
State obligation to support human rights work
The effects of the stigmatizing evaluation and calls in violation of the law led to the violation of freedom of expression, freedom of assembly and freedom of association for the plaintiffs' human rights work in Frankfurt am Main, Munich, Oldenburg, Bonn, Göttingen, Berlin, Mannheim, Bielefeld, Dortmund, Aachen and at the music festival Open-Source and at the Ruhrtriennale. The plaintiffs' fundamental rights could only be defended with several successful court cases. The state, however, has the duty to support human rights work and not to hinder it, Art. 10 and 11 ECHR, Art. 19 para. 1, 21 and 22 IpbR.
Violation of BT3P's General Right of Personality, Freedom of Expression, Assembly and Association - Incidents in Cities and Municipalities
Based on numerous incidents in recent years, it is clear that the stigmatization, public exclusion, up to insults against the plaintiffs and other activists to the violation of the General Personality Rights (APR) from Art. 2 para. 1 sentence 1 in conjunction with. Article 1 (1) GG, freedom of expression, Article 5 (1) p. 1 GG, freedom of assembly, Article 8 (1) GG, and freedom of association, Article 9 (1) GG, as well as Articles 10 and 11 ECHR, 19 (1), 21 and 22 IpbR. The following incidents are exemplary:
(1) With the justification that the Bundestag resolution must be followed, the city of Frankfurt am Main tried to prevent an event with Ms. Judith Bernstein on the topic of "Freedom of Expression instead of Censorship" of the IPPNW and attac in October 2019, branded her as a supporter of National Socialist anti-Semitism and compared her with the murderer of Halle. After the room was cancelled at short notice, the event took place by an emergency court decision. Rooms for other events in Munich were also cancelled.
(2) Mr. Christoph Glanz was insulted for his BDS support in long tirades at an event by a board member of the German-Israeli Society (DIG) as an "anti-Semite pig" and "shitty anti-Semite" and tried to drag him out of the room by force. Instead of throwing Mr. Glanz out, the organizers threw the DIG board member out. The Oldenburg Regional Court then sentenced him, but used the Bundestag resolution as the basis for evaluating the attack against Mr. Glanz. In the same year, Mr. Glanz had to enforce his municipal right to use space, which he was denied because of his BDS support, in court (Nds. OVG, Az. 10 ME 48/19). He was already banned from using a municipal space in 2016.
(3) Amir Ali is a member of the group "Palestine Speaks - Coalition for Palestinian Rights and Against Racism". The Berlin Senate tried to prevent an event with "Palestine Speaks" in January 2020 because of the resolution, which failed.
Other incidents and court cases in which the Jewish-Palestinian Dialogue Group, Jewish Voice for Just Peace, German-Palestinian Women's Association, Palestinian Community Bonn, Peace Plenum Mannheim, German-Palestinian Society, "Palestinian Associations" in Bonn, Rolf Verleger, Achille Mbembe, Klaus Ried, IPPNW, Kamila Shamsie, Walid Raad, Nirit Sommerfeld, Talib Kweli, Christoph Glanz, Judith Bernstein and Dr. Reiner Bernstein have been attacked and barred from public spaces because of the resolution or similar resolutions show how much freedom of expression for human rights work has been restricted in Germany.
No legal and factual basis for the warnings and assessments
There is no legal basis for the state warnings against the BDS campaign and the supreme court requirements for state information actions are not observed (see Glykolwein decision [BVerfGE 105, 253] and Osho decision [BVerfGE 105, 278]). A hearing did not take place and the Bundestag judges exclusively one-sided. The comparison with National Socialist extermination anti-Semitism against the BDS campaign and against the plaintiffs is without factual and legal basis, particularly defamatory and leads to an enormous pillorying effect (see OLG Nuremberg, Az. 3 U 1523/18, LG Munich I, Az. 25 O 1612/17). The BDS campaign and the plaintiffs despise anti-Semitism, quite particularly from their personal history.
IHRA's inapplicable and amended definition of anti-Semitism
The anti-Semitism definition used is not scientifically robust and therefore inapplicable (see in detail GUTACHTEN ZUR "WORKING DEFINITION ANTISEMITISM" DER INTERNATIONAL HOLOCAUST REMEMBRANCE ALLIANCE, by Dr. Dr. Peter Ulrich, September 2019). The resolution lists a modified IHRA definition that no longer corresponds to the IHRA definition used by European governments. The third sentence "manifestations of anti-Semitism can also be directed against the state of Israel, which is thereby understood as a Jewish collective." is not from the IHRA definition, but from the application instructions for the definition. Essentially, there are four arguments against the applicability of the IHRA definition.
The application instructions to the definition, that the overall context must be considered, are decidedly vague;
The Agency for Fundamental Rights has rejected the definition;
The definition is not intended to be legally binding, but is applied with legal consequences;
The application instructions to the definition include a kind of exculpatory sentence "However, criticism of Israel comparable to that of other countries cannot be considered anti-Semitic," thereby comparing virtually all of human history to Israel's practices. The IHRA definition listed in the resolution does not stand up to critical scrutiny.
No legal basis for restricting the BDS campaign in the Bundestag.
The self-binding regulations for the Bundestag (III. of the resolution) to establish the opinion of the plaintiffs as an exclusion criterion in rooms, facilities and in the financing of the Bundestag lacks a legal basis. However, the Bundestag is bound by law, statute and the constitution, Article 1 (3) of the Basic Law, Article 20 (1) of the Basic Law. Restrictions on fundamental rights without a law are incompatible with the Basic Law and provisions of simple law.
Further successful proceedings
In favor of the plaintiffs and other activists of the BDS campaign decided the Administrative Court of Oldenburg (Room withdrawal , Az. 3 A 3012/16), Higher Administrative Court Lower Saxony (Room withdrawal, Az. 10 ME 48/19), Munich Regional Court I (Room withdrawal, ref. 12 O 13183/19), Cologne Administrative Court (Room withdrawal, ref. 14 L 1765/19), Mannheim Regional Court (Room withdrawal, ref. 17 C 5568/19), Oldenburg Regional Court (Offense/Defamation, ref. 5 O 1380/19), Frankfurt a.M. Regional Court. (Room withdrawal , ref. 2-32 O 126/19), Stuttgart Regional Court (False claim/Offense, ref. 11 O 120/19) the ECtHR (Sanctioning, Baldassi et al. v. France, ref. 15271/16), and the ECJ (Mandatory labeling, ref. C-363/18). Further proceedings are pending before the VG Frankfurt a.M. (False claim/Offense, ref. 7 K 851/20.F) and the Bavarian Higher Administrative Court (Room withdrawal, ref. M 7 K 18.3672). Already in the proceedings before the Higher Administrative Court Lower Saxony (Az. 10 ME 48/19) the court stated that the BDS campaign could not be described as anti-Semitic and in the proceedings before the Administrative Cologne (Az. 14 L 1765/19) it was stated that fundamental rights may not be restricted by the resolution.