PALAIS DES NATIONS • 1211 GENEVA 10, SWITZERLAND

Mandates of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression; the Special Rapporteur on the rights to freedom of peaceful assembly and of association; the Special Rapporteur on the situation of human rights defenders; the Special Rapporteur on the situation of human rights in the Palestinian territory occupied since 1967; and the Special Rapporteur on freedom of religion or belief

REFERENCE:

AL DEU 3/2019

18 October 2019

Excellency,

We have the honour to address you in our capacities as Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression; Special Rapporteur on the rights to freedom of peaceful assembly and of association; Special Rapporteur on the situation of human rights defenders; Special Rapporteur on the situation of human rights in the Palestinian territory occupied since 1967; and Special Rapporteur on freedom of religion or belief, pursuant to Human Rights Council resolutions 34/18, 41/12, 34/5, 1993/2A and 40/10.

In this connection, we would like to bring to the attention of your Excellency’s Government information we have received concerning the motion CDU/CSU, SPD, FDP and Bündnis90/Die Grünen “Resisting the BDS Movement with Determination – Combating Anti-Semitism” adopted by the German Bundestag on 17 May 2019, which includes undue restrictions to the rights to freedom of opinion and expression, peaceful assembly and of association.

According to the information received:

On 15 May 2019, the joint motion CDU/CSU, SPD, FDPand Bündnis90/Die Grünen “Resisting the BDS Movement with Determination – Combating Anti- Semitism” (“the motion”) was presented to the German Bundestag.

On 17 May 2019, the German Bundestag voted to adopt the motion.

The motion condemns the argumentation patterns and methods of the Boycott, Divestment and Sanctions (BDS) movement as anti-Semitic. The motion specifically cites the “Don’t Buy” stickers of the BDS movement as invoking the Nazi-era boycott of Jewish businesses “Judenboykott,” by employing the slogan “Don’t buy from Jews”.

In this regard, the motion welcomes that many municipalities in Germany have already decided to refuse financial support and municipal premises to the BDS movement or groups pursuing the objectives of the campaign.

The motion calls on governmental bodies not to make premises and facilities under the Federal Government available to organisations which express themselves in an anti-Semitic manner or question Israel’s right to exist, and calls on the Federal Government not to support any events organised by the BDS movement or by groups pursuing its aims.

The motion also calls on governmental bodies not to financially support any projects which call for a boycott of Israel or which actively support the BDS movement, and calls on German states (Länder), cities and municipalities and all public actors to join this approach.

Reportedly, a sentence aimed to protect freedom of opinion and expression was deleted from a draft of the motion, which read: “The critical handling of Israeli government policy is protected by freedom of opinion, freedom of the press and freedom of expression and must, of course, be permitted in Germany as well as in Israel.”

We wish to express our concern that the motion sets a worrying trend of unduly limiting the rights to freedom of opinion and expression, peaceful assembly and of association in its call for governmental bodies, as well as German states, cities and municipalities and other public actors, to refuse financial support, premises or facilities to projects or events organised by the BDS movement or by groups pursuing its aims. Accordingly, the motion unduly interferes with the right of people in Germany to engage in political speech, namely, to express support for the BDS movement.

We further express our concern that the motion may hinder the peaceful activities of human rights defenders, groups and organisations denouncing human rights violations as part of the BDS movement by shrinking the civic space available to them to express legitimate grievances.

The BDS movement defines itself as “an inclusive, anti-racist human rights movement that is opposed on principle to all forms of discrimination, including anti- Semitism and or Islamophobia”, that targets corporations and institutions deemed "complicit" in the State of Israel's violations of international human rights and international humanitarian law.

It is not anti-Semitic to criticise the Government of Israel. However, where there is evidence of anti-Semitic intent in campaigns, advocacy or practices, such acts must be condemned. We recommend that States analyse alleged manifestations of anti-Semitic hate speech in terms of the context, speaker, intent, content and form of an act, in line with approaches taken by the Human Rights Committee and the Rabat Plan of Action. General recommendation No. 35 of the Committee on the Elimination of Racial Discrimination is also vital in this regard.

We take note of and are encouraged by recent regional court decisions taken in Germany since the adoption of the motion that have ruled in favour of groups or organisations excluded from cultural events on grounds of their support for the BDS movement, including by the Administrative Court of Cologne (Verwaltungsgericht Köln) on 12 September 2019 (14 L 1765/19) and 18 September 2019 (14 L 1747/19) and by the District Court of Munich (Landgericht München) on 23 September 2019 (12 O 13183/19).

As it is our responsibility, under the mandates provided to us by the Human Rights Council, to seek to clarify all cases brought to our attention, we would be grateful for your observations on the following matters: