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Victory as German court rules anti-BDS motion breaches principle of equality

Palestinians in Gaza protest against German Parliament decision on BDS, in Gaza on 23 May 2019 [Mohammed Asad/Middle East Monitor]
Palestinians in Gaza protest in support of BDS on 23 May 2019 [Mohammed Asad/Middle East Monitor]

A German court has ruled that the exclusion of a Palestinian organisation from a cultural festival on account of its support for the Boycott, Divestment and Sanctions (BDS) movement constituted “unequal treatment” and a breach of law, four months after the German parliament voted in favour of a motion defining BDS as anti-Semitic.

The court decision, which will be seen as a major legal test of the non-binding motion passed in May by the Bundestag, upheld the principals of freedom of speech, including the freedom to discuss and promote boycott campaigns, protected under Article 10 (freedom of expression) and Article 11 (freedom of assembly and association) of the European Convention of Human Rights (ECHR), which Germany has integrated into its national legislation.

Details of the legal case published by the European Legal Support Centre (ELSC), one of the representatives of the Palestinian group, shows that the German-Palestinian Women’s Association was excluded by the City of Bonn because of its support for BDS. The city council adopted a motion in May declaring Bonn a BDS free zone. The motion: “No place for the antisemitic BDS movement in Bonn,” called upon all municipal institutions in the city to deny facilities to BDS groups and to refrain from supporting events of the BDS campaign, or of groups pursuing BDS goals.

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The administrative court of Cologne, which was requested by the Palestinian group to judge on the matter, instructed the city of Bonn to admit the German-Palestinian Women’s Association to the cultural festival, while also clarifying the status of this and other anti-BDS motions passed in Germany.

The court’s verdict was that the exclusion of the Women’s Association from the festival on the grounds of its support for the BDS movement constituted “unequal treatment” which is “not even remotely justified”. The court thus found the conduct of the City of Bonn in breach of the principle of equality set out in Article 3 of the German Basic Law, while also violating the association’s right to freedom of opinion and expression under Article 5 Basic Law.

ELSC said in its press release that that “freedom of speech includes the freedom to discuss and promote boycott campaigns and is also protected under Article 10 (freedom of expression) and Article 11 (freedom of assembly and association) of the European Convention of Human Rights (ECHR), which Germany has integrated into its national legislation.”

Among the documents filed by Attorney Ahmed Abed was an expert opinion by Prof Moshe Zuckermann, emeritus professor at Tel Aviv University, Israel. In his opinion, Zuckermann argues that anti-Semitism, anti-Zionism and criticism of Israel are three distinct categories which must be treated separately, and that the attempt to portray the BDS movement as anti-Semitic is “manipulative and guided by ideological interests”.

Two other local organisations, the German-Palestinian Society and the Palestinian Community of Bonn, are also said to have been excluded from the festival on the same grounds. They also sued the City of Bonn. The Administrative Court of Cologne is expected to rule on their case in the coming days. All three associations participated in the festival in previous years.

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