Why do we sue the German Bundestag?
Since the adoption of the BDS resolution by the German Bundestag in May 2019, German states, municipalities, other public bodies and even private companies have followed the call of the Bundestag and are denying or withdrawing public space from BDS activists and supporters of the Palestinian cause. The „non-binding resolution“ has thus become a de facto formal law. Through these actions, the German Bundestag and other involved actors violate the Basic Law of the Federal Republic of Germany (Grundgesetz), in particular the freedom of expression, arts and sciences (Article 5 of the Grundgesetz) and the freedom of assembly (Article 8).
To date, this violation of these fundamental rights has affected the following persons (incomplete list):
ACHILLE MBEMBE
Cameroonian historian, political theorist, and philosopher
Picture source: Heike Huslage-Koch - own asset, CC BY-SA 4.0
KAMILA SHAMSIE
British-Pakistani author and recipient of the 2018 Women’s Prize for Fiction
Picture source: Zain Mustafa
TALIB KWELI
US-American rapper
Picture source: BDS
In addition to these prominent examples, many other local and international artists and intellectuals have seen their democratic rights restricted in Germany, because of their proximity to BDS and the commitment to human rights for Palestinians. As plaintiffs, we have also been affected by the BDS resolution.
However, the greatest impairment of rights as a result of the German Bundestag’s resolution is being inflicted upon the Palestinians and German-Palestinians themselves. In addition to displacement and exile, apartheid and occupation, daily threats and humiliation, they are now accused of anti-Semitism in Germany for supporting their own grassroots movement. Because the injustice against Palestinians is very well documented and the Palestinian cause consistent with international law, the supporters of the Israeli State's discriminatory practices have only one remedy: the public defamation of Palestinians.
We will not continue to stand by and condone, with our silence, these illegal practices of the German Bundestag and German states, municipalities and communities. Our different paths have brought us together based on our common values. These values oblige us to stand up for universal human rights and against racism and discrimination. In addition to the nullification of the infamous resolution, we demand from the German Bundestag:
Freedom of expression for human rights work
Compliance with human rights and international law in Israel and Palestine
Equal rights for all people in Palestine and Israel and the end of the Israeli occupation
What is the BDS resolution passed by the German Bundestag about?
On May 17, 2019, a large majority of the German Bundestag gave their nod to the motion "Resolutely confronting the BDS movement - combating anti-Semitism" (Bundestag 19/10191).
The aim of the resolution is to exclude the plaintiffs from public premises and public funding on the grounds that the BDS movement is comparable to fascist Nazi anti-Semitism. With the resolution, the Bundestag has declared that it will exclude any person or organization seeking to discuss BDS from the use of publicly funded facilities. The Bundestag demands the same from all states, municipalities, cities and all other public actors.
The following specific resolutions (excerpt) were passed by the German Bundestag:
“2. […] The German Bundestag calls on the Federal Government not to support events organized by the BDS movement or by groups that actively pursue its goals;
[…]
5. […] not to financially support any projects that call for a boycott of Israel or that actively support the BDS movement;
6. to call on states, cities and municipalities and all public actors to join this stance."
The parliamentary group DIE LINKE voted against the resolution but in favor of its own motion, which also opposed BDS. Only a small minority of the Bundestag abstained altogether, while the right-wing party AfD (Alternative für Deutschland) even tried to push through a motion to prohibit BDS altogether.
We must note: In the entire German Bundestag, not a single voice clearly and unconditionally spoke in support of the oppressed and international law. This decision and the widespread systematic obstruction of a human rights campaign will one day be perceived by the public as the equivalent of supporting the historic South African apartheid state and defaming and criminalizing the liberation movement there.
Call by 240 Jewish and Israeli scholars to
German government on BDS and Anti-Semitism
DO NOT EQUATE "BDS" WITH ANTI-SEMITISM
Mid May 2019
Original appeal
“Opinions on BDS vary considerably among the signatories of this appeal: some may support BDS, while others oppose it for various reasons. However, we all equally reject the fallacious claim that BDS is in itself anti-Semitic, and we affirm that boycotts are a legitimate and non-violent means of resistance.”
“The BDS movement seeks to influence the government policies of a state responsible for the ongoing occupation and oppression of the Palestinian people. Such policies cannot be immune from criticism. In this context, it should also be noted that many Jewish and Israeli individuals and groups either explicitly support BDS or defend the right to do so. We consider it inappropriate and insulting when German governmental and parliamentary institutions label them as anti-Semitic.”
“Moreover, the three main goals of BDS - the end of the occupation, full equality for Arab citizens of Israel and the right of return for Palestinian refugees - are in line with international law, even if the third goal is undoubtedly debatable. We are appalled that demands for equal rights and adherence to international law are seen as anti-Semitic.”
The legal evaluation of the BDS resolution of the German Bundestag
The BT3P lawyer, Ahmed Abed, who has already successfully won court cases against the restrictions on the freedom of expression and assembly (Art. 5 and 8 GG) of the BDS movement (Lower Saxony OVG, 10 ME 48/19, VG Cologne, 14 L 1765/19), states:
“Instead of promoting the commitment to human rights in Palestine and Israel, BDS activists are attacked by the Bundestag resolution. However, the Federal Republic has the duty to support freedom of expression for human rights work.
The state must guarantee freedom of expression for human rights work and not restrict it. There is no legal basis for the restrictions on freedom of expression, freedom of assembly and freedom of association, Articles 5, 8 and 9 of the Basic Law (Grundgesetz).
The Bundestag demands that the states, municipalities and all other public actors bar the plaintiffs from rooms, finances and facilities. The resolution therefore constitutes nothing less than an invitation to break the law, because it ignores the fundamental rights and overriding laws that guarantee the provision of public spaces and facilities — and that without further comment.
The BDS campaign is not anti-Semitic: this has already been stated by courts such as the OVG in Lower Saxony in March 2019 and the Cologne VG in September 2019. The IHRA definition* upon which the resolution is based is neither legally binding nor scientifically tenable. The BDS resolution is also one-sided to such a degree that it does not meet the constitutional requirements for government warnings. Without evidence, the resolution makes serious and defamatory accusations against BDS, such as equating it with the eliminatory anti-Semitism of the Nazi era, which millions of European Jews fell victim to in the Shoah.
The pillorying effect of the resolution has been made particularly clear by the call for a ban against Achille Mbembe in North Rhine-Westphalia and against Ms. Judith Bernstein at the event "Freedom of Expression instead of Censorship" by the municipality of Frankfurt.
In addition, the resolution is incompatible with European and international human rights law as derived from Articles 10 and 11 of the European Convention on Human Rights (ECHR) and the UN Civil Covenant.
We are confident that, as in the recent decision of the European Court of Human Rights of June 11, 2020 (Baldassi et al vs. France, Case 15271/16 and others), the European Court of Justice (C-363/18) and the Administrative Court of Cologne of September 12, 2019 (14 L 1765/19), the Berlin Administrative Court will decide in favor of the freedom of expression of the plaintiffs' human rights work.“
*The Bundestag’s BDS resolution is based upon the International Holocaust Remembrance Alliance (IHRA) definition of antisemitism, which has been criticised for its poor wording and lack of clarity in academic and legal circles as well as by numerous Jewish organizations.
The lawsuit is supported by the European Legal Support Centre (ELSC) and internationally renowned international law scholars Prof. Eric David, Prof. Xavier Dupré De Boulois, Prof. Richard Falk (former UN Special Rapporteur) and Prof. John Reynolds.