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Germany: federal court rules anti-BDS policy to be 'unconstitutional'

Protest condemning Germany's ruling of the Boycott, Divestment, Sanctions (BDS) movement as anti-Semitic outside of Germany's Representative Office in the West Bank, 22 May 2019 [AFP via Getty Images]
A protest condemning Germany for calling the Boycott, Divestment, Sanctions (BDS) movement anti-Semitic outside of Germany's Representative Office in the West Bank, 22 May 2019 [AFP/Getty Images]

A German federal court has described as "unconstitutional" the city of Munich's refusal to allow a public venue to be used for a debate on its 2017 anti-Boycott, Divestment and Sanctions resolution, The Electronic Intifada has reported. The court ruled that the resolution "violates the fundamental right to freedom of expression."

Munich City Council passed a local resolution in December 2017 outlawing BDS events promoting the rights of the people of occupied Palestine from being held in the city's public facilities. The council called the peaceful BDS movement "anti-Semitic".

Subsequently, Munich resident Klaus Ried sought to use a room in a city museum in September 2018 to host a discussion about how the municipality's anti-BDS resolution would affect freedom of speech. He filed a legal challenge after the museum denied him the space. A lower court initially ruled against him, claiming that Munich had the right to impose such restrictions. He appealed in 2020 and won.

Nevertheless, the city council took the case to the federal court, but failed again. The Federal Administrative Court in Leipzig issued its ruling on 20 January siding with Ried, affirming that German law "guarantees everyone the right to freely express and disseminate their opinion." Munich City Council, said the court, was not allowed to violate that right by denying permission for an event because it disagreed with the expressed views of the BDS campaign and its objectives. The court also pointed out that the council's anti BDS-resolution is not a law.

The landmark decision sends a warning to councils and other bodies across Germany that have passed similar resolutions and have been banning BDS-related events in public venues. This includes the German parliament, which in 2019 voted to define BDS as "anti-Semitic". Parliamentarians argued that the movement's "Don't buy" stickers, which identify products of Israeli origin so that consumers can choose whether or not to buy them, "arouse associations [with] the Nazi slogan 'Don't buy from Jews'… reminiscent of the most horrific phase in German history".

The Palestinian Authority slammed this as "dangerous", while Palestinian NGOs argued that such moves delegitimise peaceful resistance to the Israeli occupation, of which BDS is part. The campaign started as a Palestinian grassroots initiative to put pressure on the state of Israel to abide by international law in its treatment of the Palestinian people.

READ: Pro-Israel groups letter to UN slammed as 'underhand attempt to undermine the international legal order'

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