[rad-green] UN Officials: German Anti-BDS Resolution Infringes on Freedom of Expression, Basic Political Rights

*https://imemc.org/article/un-officials-german-anti-bds-resolution-infringes-on-freedom-of-expression-basic-political-rights/
<https://imemc.org/article/un-officials-german-anti-bds-resolution-infringes-on-freedom-of-expression-basic-political-rights/>International
Middle East Media Center                     January 18, 2020*

UN Officials: German Anti-BDS Resolution Infringes on Freedom of
Expression, Basic Political Rights










*United Nations Special Rapporteurs / Germany*

*UN officials say it is not anti-Semitic to criticize the government of
Israel. UN letter is now public, as Germany did not respond within mandated
60-day period.*

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:

   1. Please provide any additional information and/or comment(s) you may
   have on the above-mentioned allegations.
   2. Please provide information about how the adoption the above-mentioned
   motion complies with your Excellency’s Government’s obligations under
   international human rights to respect and promote the rights freedom of
   opinion and expression, peaceful assembly and association.
   3. Please provide information about the current legal status and the
   scope of the motion.
   4. Please provide information regarding any avenues of appeal and
   redress for denial access to services as a result a determination placing
   particular group within the scope of this motion.
   5. Please indicate what measures have been taken to ensure that human
   rights defenders and organisations denouncing human rights violations as
   part of the BDS movement are able to carry out their legitimate work a safe
   and enabling environment, and without unduerestrictions.

We would appreciate receiving a response within 60 days. Passed this delay,
this communication and any response received from your Excellency’s
Government will be made public via the communications reporting website.
They will also subsequently be made available in the usual report to be
presented to the Human Rights Council.

While awaiting a reply, we urge that all necessary interim measures be
taken to halt the alleged violations and prevent their re-occurrence and in
the event that the investigations support or suggest the allegations to be
correct, to ensure the accountability of any person(s) responsible for the
alleged violations.

Please accept, Excellency, the assurances of our highest consideration.

*David Kaye, Special Rapporteur on the promotion and protection of the
right to freedom of opinion and expression*

*Clement Nyaletsossi Voule, Special Rapporteur on the rights to freedom of
peaceful assembly and of association*

*Michel Forst, Special Rapporteur on the situation of human rights
defenders*

*Michael Lynk, Special Rapporteur on the situation of human rights in the
Palestinian territory occupied since 1967*

*Ahmed Shaheed, Special Rapporteur on freedom of religion or belief*


*Annex*

*Reference to international human rights law*

In connection with above alleged facts and concerns, we would like to refer
your Excellency’s Government to articles 19, 21 and 22 of the International
Covenant on Civil and Political Rights (ICCPR), which was ratified by
Germany on 17 December 1973. The obligation to respect and guarantee these
rights extends to all branches of government, including the legislature
(General Comment No. 31, para. 4, and General Comment No. 34, para. 7)

We remind your Excellency’s Government that any restrictions to the
exercise of these rights must be provided by law, pursue a legitimate aim
and be necessary and proportionate to the aim pursued under articles 19(3),
21 and 22(2) of the ICCPR.

The scope of the right to freedom of expression is broad. Article 19(2) of
the ICCPR “protects all forms of expression and the means of their
dissemination”, including political discourse, commentary on one’s own and
on public affairs, canvassing and discussion of human rights, such as
boycott movements (General Comment No. 34,  paras. 11 & 28). Boycotts have
long been understood as a legitimate form of political expression under
international human rights law.

We also express our concern that certain provisions in the motion are
contrary to article 21 of the ICCPR, which protects freedom of peaceful
assembly, by calling upon the Federal Government to refuse access to
municipal premises and facilities and to refrain from supporting events
organised by the BDS movement or groups associated with it. In addition, we
take note of the motion’s broad language that extends to a large category
of actors who may be stigmatised by the legislation

Furthermore, the right to freedom of association under article 22 of the
ICCPR requires States parties to take positive measures to establish an
enabling environment for associations. States additionally have a negative
obligation not to unduly obstruct the exercise of the right. Associations,
pursuing objectives and employing means in accordance with international
human rights law should benefit from international legal protection.
Associations should enjoy, inter alia, the rights to express opinion,
disseminate information, engage with the public and advocate before
governments and international bodies for human rights. (A/HRC/20/27, paras.
63 & 64).

We would also like to refer your Excellency’s Government to the fundamental
principles set forth in the Declaration on the Right and Responsibility of
Individuals, Groups and Organs of Society to Promote and Protect
Universally Recognized Human Rights and Fundamental Freedoms, also known as
the UN Declaration on Human Rights Defenders. In particular, we would like
to refer to articles 1 and 2 of the Declaration which state that everyone
has the right to promote and to strive for the protection and realization
of human rights and fundamental freedoms at the national and international
levels and that each State has a prime responsibility and duty to protect,
promote and implement all human rights and fundamental freedoms.
Furthermore, we would like to bring to the attention of your Excellency’s
Government the following provisions of the Declaration:

article 5 (a) and b), which provide for the rights to meet or assemble
peacefully, and to form, join and participate in non-governmental
organisations, associations or groups, for the purpose of promoting and
protecting human rights and fundamental freedoms;

article 6 (b) and c) which provide for the right to freely publish, impart
or disseminate to others views, information and knowledge on all human
rights and fundamental freedoms; and to study, discuss, form and hold
opinions on the observance, both in law and in practice, of all human
rights and fundamental freedoms and to draw public attention to those
matters;

article 13 (b) and (c) which stipulate that everyone has the right,
individually and in association with others, to solicit, receive and
utilize resources for the purpose of peacefully promoting and protecting
human rights and fundamental freedoms.

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