Germany’s anti-BDS resolution damages its relationship with Palestine
|Jonathan Ofir – May 24, 2019|
Jonathan Ofir writes: Last week, the German Bundestag passed a resolution condemning the campaign for Boycott, Divestment, and Sanctions (BDS), meant to take Israel to task for its violations against Palestinians, as “anti-Semitic”. The resolution flatly conflated “Israel” with “Jews”, thus associating it with the Nazi boycott of Jews.
There was a competition of “Israel loving” between the far-right parties and the center-left parties. Jürgen Braun of the far-right AfD said that the AfD was the only party in the Bundestag that could claim to be “a friend of Israel”. AfD’s resolution proposal contained an outright ban on BDS, yet the other parties opted for a more ‘moderate’ version, ‘merely’ condemning BDS as anti-Semitic and suggesting it is Nazi-inspired. The resolution that passed was thus brought by all the centrist parties in the German Bundestag, including Angela Merkel’s Christian Democratic Union (CDU) and its Bavarian sister party the Christian Social Union, the Social Democrats (SPD), the Free Democratic Party (FDP) and the Greens. This was, naturally, to Israel’s great satisfaction.
Palestinian civil society has responded yesterday in an elaborate letter, which deserves quoting in full:
Palestinian Civil Society Statement in Response to the German Bundestag: Anti-BDS Resolution Violates Principles of International Law, Stands against Palestinian Civil Society and Aspirations for Freedom, Justice, and Dignity
It is with great alarm and distress that we, the undersigned Palestinian civil society organisations, human rights groups, networks, and coalitions address this urgent statement to the German Bundestag and Government in light of its recent resolution against the Palestinian Boycott, Divestment and Sanctions (BDS) movement, dangerously conflating the movement and anti-Semitism, while more broadly targeting all civil society actors working towards the promotion and protection of fundamental rights and freedoms of the Palestinian people and in the Occupied Palestinian Territory. We call on the German Government to refrain from adopting this resolution into law considering its serious ramifications for Palestinian civil society and its violation of Germany’s obligations as a third State party to ensure respect for international law in the Occupied Palestinian Territory.
The undersigned are deeply concerned with the joint resolution, adopted on 17 May 2019, and co-signed by four German political parties; CDU/CSU, SPD, FDP, and the Alliance90/Greens. The resolution violates international human rights law, namely the rights to freedom of expression, opinion, and of association. It forms part of a systematic backlash and organised lobby efforts, primarily led by the Israeli Government, to undermine, delegitimize, and vilify the peaceful BDS movement. This is well exemplified in the mandate of the Israeli Ministry of Strategic Affairs and Public Diplomacy “to act against the delegitimization and boycott campaigns against the state of Israel.” In 2017, Israel passed Amendment No. 28 to the Entry into Israel Law, which prohibits granting a permit for entry to, and residence in Israel, to persons who have knowingly published a public call for or participated in boycott activities. This law has been used to restrict the entry and work of human rights defenders, including the Human Rights Watch Israel and Palestine Director. This systemic backlash continues to take place despite the fact that BDS has long been protected within the framework of the rights to freedom of expression and opinion, including by the German Government and courts, along with other European Governments, the European Union (EU), and the United Nations (UN).
Notably, in February 2019, the German Government referred to the BDS movement as being covered by the right to freedom of expression and belief, as enshrined in the German Basic Law. In particular, Article 5 of the German Basic Law protects the right to freedom of expression and speech without censorship, whereas Article 9 protects the right to freedom of association. The resolution further constitutes an infringement of the rights to freedom of expression, assembly, and of association, enshrined in Articles 10 and 11 of the European Convention on Human Rights. Meanwhile, the Dutch Minister of Foreign Affairs, Ireland’s Minister of Foreign Affairs and Trade, and Sweden’s Foreign Ministry previously stated and affirmed the protection of the rights to freedom of speech, expression, and of association in relation to BDS.
The EU has explicitly affirmed the necessity to protect the rights to freedom of expression and of association, as enshrined in the EU Charter of Fundamental Rights, including with regards to BDS activities throughout EU Member States. In addition, in July 2018, the EU warned against Israel’s “vague and unsubstantiated” claims in this regard, deeming them as part of its wider “disinformation campaigns.” The EU then reaffirmed its position in favour of protecting the rights to freedom of expression and of association, highlighting that “any action that has the effect of closing the space in which civil society organisations operate by unduly restricting freedom of association should be avoided.”
In April 2019, three UN Special Rapporteurs publicly stated that supporting or opposing BDS is protected by the universally recognised rights to freedom of opinion, expression, and of association. The Special Rapporteurs further highlighted that “[t]he ability of human rights organisations and defenders to actively engage in civil society work to defend and advance the principles guaranteed in the International Bill of Human Rights is a litmus test for measuring the respect for democratic liberties in any society […] Stifling these liberties undermines any government’s claim to respect fundamental freedoms and values.”
Regrettably, the resolution in question adopted by the German Bundestag penalises civil society working towards ensuring fundamental rights, freedom, justice, and dignity for the Palestinian people, whose rights have been systematically denied since the Nakba of 1948 and throughout Israel’s prolonged military occupation of the Palestinian territory. Such resolution further restrains the already existing shrinking space for civil society organisations, and effectively silences Palestinian civil society, which, for decades now, has worked at the forefront to advocate for the realisation of Palestinians’ inalienable rights and to promote respect for international law, as the foundation for freedom, justice, and equality.
Against this backdrop, the lack of political will amongst third States to take serious measures to effectively cooperate to bring to an end Israel’s prolonged occupation has emboldened Israel, the Occupying Power, to pursue its widespread and systematic human rights violations and grave breaches of international humanitarian law, while entrenching its colonisation and occupation of the Palestinian territory and dispossession of indigenous Palestinians. Yet civil society organisations continue to peacefully and publicly counter the ongoing and escalating attacks against the Palestinian people, including as a result of land appropriation, pillage of natural resources, forcible transfer, and the systematic erasure of Palestinian presence, identity, heritage, and narrative.
In 2005, the call for BDS was launched by Palestinians to offer an alternative, peaceful, and non-violent means for civil society to oppose Israel’s pervasive violations and crimes committed against Palestinians. Rooted in civil society initiatives, boycott movements have historically contributed to the global defense of human rights and social justice. Boycotts for social justice have included the Montgomery bus boycott in the United States, the anti-Apartheid movement in South Africa, and efforts to end the slave trade in 18th century England. The Palestinian BDS movement is grounded in a consensus amongst 170 Palestinian civil society organizations, including unions, academic institutions, political parties, and cultural groups, and follows the tradition of global movements that have sought to bring to an end and call for accountability for widespread and systematic human rights abuses.
Critically, the BDS movement is a Palestinian-led, global movement for freedom, justice and equality, anchored in the principles of international law that “opposes as a matter of principle all forms of racism, including Islamophobia and ant-Semitism.” It must be emphasised that the BDS movement does not call for the boycott of individuals, groups, and entities on the mere basis of their Israeli identity or Jewish faith, as incorrectly stated by the Bundestag resolution. It rather addresses individuals and institutions that are specifically affiliated with and/or complicit in Israel’s violations and grave breaches of international law. The undersigned recall that criticism of the State of Israel, as a political entity, comprising its Government, military forces and agents, is protected by the rights to freedom of expression, opinion, and media freedoms, amongst others.
In addition, in an alarming trend, the resolution at hand fails to distinguish in its reference between the territory of the State of Israel and the Occupied Palestinian Territory, with the latter comprising the West Bank, including East Jerusalem, and the Gaza Strip, and in which over 250 Israeli settlements and outposts have been constructed, with more than 600,000 Israeli settlers residing therein, in violation of international law. As such, the resolution fails to recognise Germany and the EU’s longstanding position on the illegality of Israeli settlements in the Occupied Palestinian Territory under international law and third States’ obligations in this regard. In doing so, the resolution feeds into Israel’s creeping annexation and entrenched colonisation of the Palestinian territory, in complete disregard for UN Security Council Resolution 2334 (2016), which calls on third States to distinguish in their relevant dealings between the territory of the State of Israel and the Occupied Palestinian Territory.
Finally, the undersigned warn Germany that, should it proceed to pass this resolution into a legally binding instrument, this would further threaten the relationship between Palestinian and German civil society. In turn, this would directly and negatively impact the provision of basic social services, including in the health and education sectors, the promotion of human rights and international law, and legal aid, amongst other work carried out by Palestinian civil society with the support of German and other international organisations. Critically, the German Bundestag must translate Germany’s commitment to a two-state solution by supporting organisations and movements that peacefully seek to end the occupation and associated human rights abuses.
In light of the above, the undersigned Palestinian civil society organisations, human rights groups, networks, and coalitions call on:
The German Bundestag to immediately withdraw the resolution adopted on 17 May 2019, which incorrectly conflates BDS and anti-Semitism;
The German Government to refrain from adopting this resolution and passing it into law, considering its violation of international human rights law, namely the rights to freedom of expression, opinion, and of association, as well as its serious ramifications for civil society organisations, primarily Palestinian civil society;
The German Government to cooperate to bring to an end Israel’s prolonged military occupation of the Palestinian territory, and realise the right of the Palestinian people to self-determination, including permanent sovereignty over natural wealth and resources and the right of return of Palestinian refugees, in line with its obligations as a third State party under international law;
The German Government to take concrete measures to bring to an end Israel’s impunity for widespread and systematic violations of international law committed against the Palestinian people, including by imposing a military embargo, banning settlement products, and fully supporting the work of the International Criminal Court and international justice mechanisms;
The German Government and Bundestag to carry out an independent fact-finding mission to investigate the serious and detrimental implications of Israel’s prolonged military occupation, including its settlement enterprise, on the Palestinian right to self-determination, including permanent sovereignty;
The international community, including German, European and international civil society organisations, third States, and UN bodies and experts, to firmly denounce and publicly reject the Bundestag resolution, and to prevent it from passing into law, considering its violation of international law and grave implications for the work of Palestinian civil society and aspirations for freedom, justice, and dignity for the Palestinian people.
Palestinian Human Rights Organisations Council (PHROC), which includes 10 Palestinian human rights organisations;
Palestinian Non-Governmental Organisations Network (PNGO), which includes 142 non-governmental organisations;
Palestinian National Institute for NGO (PNIN), which includes 70 non-governmental organisations;
The Palestinian General Union Charitable Societies, which includes 400 non-governmental and charitable associations;
Palestinian Disability Coalition;
Palestinian Non-Governmental Organization Against Domestic Violence Against Women (Al-Muntada);
Addameer Prisoner Support and Human Rights Association;
Al-Haq, Law in the Service of Man;
BADIL – Resource Center for Palestinian Residency and Refugee Rights;
Center for Defense of Liberties and Civil Rights “Hurryyat”;
Community Action Center (Al-Quds University);
Defense for Children International – Palestine;
Jerusalem Legal Aid and Human Rights Center (JLAC);
The Civic Coalition for Palestinian Rights in Jerusalem;
General Federation of Independent Trade Unions – Palestine;
Palestinian Journalists’ Syndicate;
 German Bundestag (19th parliamentary term), “Resisting the BDS Movement with Determination – Combating Anti-Semitism”, 15 May 2019, proposal by the political groups of CDU/CSU, SPD, FDP, and Alliance 90/the Greens.
 See The Government Services and Information Website, Prime Minister’s Office – Ministry of Strategic Affairs and Public Diplomacy, available at: https://www.gov.il/en/departments/units/ministry_of_strategic_affairs_and_information
 See for example SOMO, ‘Two SOMO Researchers Denied Entry into Israel on Arbitrary Grounds’, 21 July 2018, available at: https://www.somo.nl/two-somo-researchers-denied-entry-israel-arbitrary-grounds/
 Human Rights Watch, ‘Israel: Human Rights Watch Official’s Deportation Reinstated’, 16 April 2019, available at: https://www.hrw.org/news/2019/04/16/israel-human-rights-watch-officials-deportation-reinstated
 See for example Christoph Kiefer, ‘Stadt Oldenburg unterliegt im Striet mit BDS-Kampagne’ (NWZonline, 29 March 2019), available at: https://www.nwzonline.de/oldenburg/oldenburg-urteil-des-oberverwaltungsgerichts-stadt-oldenburg-unterliegt-im-streit-mit-bds-kampagne_a_50,4,1334257964.html
 Deutscher Bundestag, Basic Law for the Federal Republic of Germany, available in English at: https://www.btg-bestellservice.de/pdf/80201000.pdf
 Houses of the Oireachtas, Dáil Éireann debate, Thursday, 26 May 2016, available at: https://www.oireachtas.ie/en/debates/debate/dail/2016-05-26/; Ali Abunimah, ‘Sweden Denies Israeli Claim that it Opposes BDS’, (The Electronic Intifada, 16 March 2016), available at: https://electronicintifada.net/blogs/ali-abunimah/sweden-denies-israeli-claim-it-opposes-bds; Haaretz, ‘Dutch Foreign Minister: Calls to Boycott Israel Protected Free Speech by the Constitution’ (27 March 2016), available at: https://www.haaretz.com/world-news/europe/dutch-fm-bds-protected-by-free-speech-1.5388459
 European Parliament, Parliamentary Questions, 15 September 2016, Answer given by Vice-President Mogherini on behalf of the Commission, available at: http://www.europarl.europa.eu/doceo/document/E-8-2016-005122-ASW_EN.html?redirect
 Noa Landau, ‘EU Blasts Israeli Minister: You Feed Disinformation and Mix BDS, Terror’, (Haaretz, 17 July 2018), available at: https://www.haaretz.com/israel-news/.premium-eu-s-mogherini-to-israeli-minister-you-feed-disinformation-1.6280308
 UN Human Rights Office of the High Commissioner, ‘UN Experts Call on Israel to Overtrurn Deportation of Human Rights Watch Director’, 25 April 2019, available at: https://www.ohchr.org/en/NewsEvents/Pages/DisplayNews.aspx?NewsID=24516&LangID=E
 BDS, ‘FAQs’, available at: https://bdsmovement.net/faqs#collapse16231
 “BDS does not target artists. It targets institutions based on their complicity in Israel’s violations of international law.” See https://bdsmovement.net/faqs#collapse16250
 Endorsements ongoing.