Jewish-Palestinian protest. Berlin, Nakba Day 2017.

The BDS Crisis

Israel and Freedom of Speech in Germany

December 2020 was an eventful month for the discourse on Israel and Palestine in Germany.

For the first time, the parliamentary resolution of May 2019 declaring war on the Boycott, Divestment, Sanctions (BDS) movement, describing it as Antisemitic in its aims and methods, was subjected to public criticism by elements of the cultural mainstream, not only pro-Palestinian activists.

The project was christened ‘Initiative GG 5.3 Weltoffenheit’; GG stands for Grundgesetz, the German constitution, whose Section 5.3 relates to freedom of opinion in art and academia, while the Weltoffenheit (world-openness) emphasises the importance of hearing different views from a variety of cultures and individuals.

In a press conference followed by a written statement, the heads of several institutions from the art and academic world, some of them Jewish and all of them internationally connected – the Goethe Institute, for example, with 157 branches in 98 countries, was founded in 1951 with the aim of disseminating German culture and language throughout the world – stated that the anti-BDS resolution had created a toxic climate and was an obstacle to the free exchange of ideas in the international discourse.

Although the ethics of BDS and the steps taken to fight it are an ongoing object of debate, the testimonies of these figures offered an insight into a less-publicised consequence of the resolution, namely that it stymies their work because they increasingly fear the consequences of working with artists or intellectuals who are either pro-BDS or have in any way been in fleeting contact with it, for example through a vague approving comment or shared platform.

Even a fictional claim of affiliation can make trouble for institutions like the Goethe Institute and force them to do damage control that unnecessarily consumes time and nerves.

Because the resolution demands that anyone with such a connection be denied a platform and any kind of public funding, it increasingly led those involved in inviting people to cultural events to conduct pre-emptive background checks and self-censor when in doubt, preferring to avoid shitstorms that might lead to the cancellation of an event, and in some cases even resignations.

As the case of the US rapper Talib Kweli showed, it could make German clubs and festivals so fearful of having their funding withdrawn that they felt obliged to ask internationally established artists to distance themselves from BDS or risk disinvitation.

And because criticism of Israel’s mistreatment of the Palestinians is more common in the Global South, where people are more likely to have first-hand experience of such oppression, this would increasingly lead to skewed representation not only in political but also racial terms.

In keeping with its motto of “world-openness”, the GG 5.3 statement struck a diplomatic balance between criticism and conciliation. Several of the initiative’s purveyors had already emphasised their personal opposition to BDS at the press conference and framed their stance as a rejection of the logic of boycott per se, privileging discussion among opposing parties over exclusion based on political views.

While this is understandable in abstract terms, they thus equated the use of state power to stifle opinion with decisions coming from civil society without any legal or political leverage. They also misrepresented BDS by claiming that it boycotted individuals for being Israelis, something that is antithetical to the movement’s stated aims.

This is not to say that some over-zealous persons or groups will not go beyond these aims and demand a rejection of anything and anyone connected to Israel. But the issue should be the ethics of the movement itself. Radical environmentalists, for example, who resort to violence hardly discredit the cause of environmentalism, to name one possible equivalent.

Predictably, opinion on the initiative was divided, and various articles were published in which the complaint was portrayed as unjustified. After all, they argued, Germany is a free country, and there is no law against people saying whatever they like about Israel.

To these authors, it was simply a matter of one opinion facing the opposition of another. Anyone who claimed otherwise was essentially showing that they could dish it out but not take it themselves. Various politicians made statements to the same effect.

While some of these people were reliably pro-Israel and had a corresponding agenda with their articles and comments, others genuinely saw nothing undemocratic about the resolution.

It was remarkable, however, that they felt no obligation to take seriously the claims of cultural managers who had been directly affected behind the scenes as well as more visibly, and that they so naively promoted the view that as long as something is not made illegal, there can be no talk of stifling it.

The Amadeu Antonio Foundation, a German organisation that increasingly rivals America’s Anti-Defamation League (ADL) as an anti-hate group with right-wing Israel politics, also published a sneering response on its website.

Referring to the oft-cited but controversial ‘working definition’ of Antisemitism by the International Holocaust Remembrance Alliance (IHRA), whose blanket application has been criticised by its own author, the foundation argued that opposition to BDS is part of combating the grave threat of ‘Israel-related Antisemitism’ (an increasingly popular term in Germany), and that by invoking freedom of opinion to protect its advocates, such statements are an obstacle to the fight against racism.

Antisemitism, the reader is told, “is not a vendor’s tray from which one can pick and choose whatever one feels like”.

Considering that this same organisation included a project by Jewish Israeli art students in Berlin in which they engaged critically with the political ideology of their home country in its ongoing list of Antisemitic incidents, the Amadeu Antonio Foundation would do well to choose more carefully whom it accuses of Judeophobia.

Drawing on the momentum created by the GG 5.3 statement, a group of international Berlin-based artists released an open letter with a similar premise, but a more thoroughgoing critique.

Unlike the former, they were not Germans coming from German traditions, but rather a diverse ensemble of cultural workers operating inside and outside European paradigms. They come from numerous countries, numerous disciplines and different generations, and include people from all manner of cultural backgrounds.

Significantly, there are a substantial number of Jewish, indeed Israeli names on the list. Among the academic signatories, one finds more than a few scholars of Judaism, Jewish history, Jewish culture and the Holocaust.  At the time of this article’s writing, the letter has amassed over 1400 signatories.

While the GG 5.3 statement hinged on the importance of engaging with opinions one personally rejects, and the preceding press conference, as well as subsequent articles by individual members of the group, underlined the need to criticise Israeli politics without resorting to boycott, the open letter emphasised the right to BDS not only in the abstract but also in its concrete aims.

The document made it clear that the BDS movement resorts to non-violent means of protest in the name of the oppressed, that this right is enshrined in international law, and that any political awareness informed by post-colonial perspectives should pay particular attention to those who know something about being on the receiving end of Western power.

It also made it clear, tactfully but firmly, that the narrow German focus on the Holocaust, with the resulting insistence on supporting Israel as a form of atonement, blinds it to the wider issue of racism and inequality on both a domestic and a global scale.

Most importantly, the GG 5.3 statement reminds Germany that Jewish opinions are as varied as the opinions of any geographically and culturally diverse ethnoreligious group, and that lumping Jews together as a homogeneous bloc that can be identified with a single state and its political ideology does a disservice to the struggle against genuine discrimination.

If it was surprising that journalists and politicians disregarded the earnest testimonies of experienced cultural managers, it was somewhat shocking – even to those with ample experience of reflexive German pro-Zionism – to find that this letter, despite its notable support, left some critics equally unimpressed.

As well as repeating the assertion that it is absurd to speak of censorship, an article in Der Spiegel pointed to the many signatories from other countries and the large representation of the hip Berlin art scene in the list and suggested that, while understandably coming from an internationalist, anti-colonial angle, they were simply not in a position to understand the unique German Holocaust trauma that demands blanket support for Israel.

The article’s author spoke of two perspectives that must both be acknowledged, warning that anyone who rejects the mainstream German position is “playing a dangerous game”.

The controversy had barely subsided before a new development emerged on 22 December. The Bundestag offers its members the possibility of expert assessments on parliamentary issues, provided on request by the so-called ‘Wissenschaftliche Dienste’ (Scientific/Academic Services.) Especially in constitutional matters, this enables politicians to gain a better understanding of issues outside their own field of expertise.

The expert assessment in question concerned the very same anti-BDS resolution being so hotly debated in the wake of the two public statements. With juristic precision, it explained not only that the resolution was a mere Meinungsäußerung (statement of opinion) but that, if it were ever made into law, it would be unconstitutional, a clear violation of artistic and intellectual freedom.

Ironically enough, this crushing verdict was the result of a request by Felix Klein, the German government’s Antisemitism Commissioner and one of the most zealous protagonists in the campaign to delegitimise BDS.

This creates a fascinatingly paradoxical situation. Those who ridiculed the critics of the resolution and their descriptions of cultural McCarthyism emphasised that the resolution is not a law, merely a principled statement, and asserted that anyone is free to denounce Israel and call for boycotts.

But the brutal effectiveness of the resolution was precisely that without actually being a law, it was quickly treated as one because it became clear that there would be repercussions for those who failed to comply with it.

Whether the consequences affected artists themselves or the institutions and organisations that worked with them, the increasing invocation of the resolution to justify de-platforming, withdrawal of prizes and stigmatisation through claims of Antisemitism had led to a veritable witch hunt.

While supporters of the Palestinian cause had long faced similar hostility, the resolution’s language provided a short cut because BDS was simply referred to as ‘Antisemitic’, avoiding any discussion of what it actually means and why it exists.

So one part of this expert assessment, namely the statement that the resolution was non-binding, was a truism even invoked by its supporters when necessary. In spelling this out, however, and referring to it as no more than an opinion, the legal advice fundamentally questioned the significance of such a text.

The other crucial insight, namely the resolution’s unfitness for enshrinement in law, made it clear that this insignificance is vital in order to uphold democracy.

It remains to be seen whether this assessment will have any consequences at the parliamentary level, such as a retraction of the original anti-BDS resolution. But it unquestionably undermines the efforts of those who have employed it as a weapon against Palestine solidarity, not least in tandem with recent legal decisions.

An initiative that calls itself BT3P, which stands for Bundestag Three for Palestine, has set itself the task of overturning the resolution in court.

Earlier in December, this group of activists – of German, Jewish and Palestinian backgrounds, aided by a lawyer as a covert fourth member – held its first event in Frankfurt, where it presented the different aspects of its mission. The group explained the humanitarian reasons for supporting Palestinians, the arguments and mechanisms of BDS, the demonisation of BDS and defamation of its supporters as Antisemites, and finally the legal basis for the challenge.

Just as Klein would later score an own goal by requesting the legal advice, the event was preceded by a similar humiliation for another anti-free speech zealot, Uwe Becker.

As one of Frankfurt’s deputy mayors and the city’s treasurer, Becker has done his best to intimidate anyone in his jurisdiction who wishes to side with Palestinians in public life, with or without BDS connections.  German Jews and Israeli nationals included.

Thanks to pressure from the authorities, the planned venue for the event cancelled at very short notice, claiming to be booked out. After further questioning, the staff explained that because of the resolution, the BDS connection made it impossible to host the activists.

This was immediately challenged in court and overturned as illegal, and the event took place a week later. What better way could there be to demonstrate the validity and necessity of the group’s mission? This came shortly after a Munich venue’s earlier refusal to host a discussion on BDS was also deemed illegitimate following a legal challenge.

It may seem as if these events, assuming they actually lead to an overturning of the resolution, can at best be considered a return to the status quo ante before it was passed.

But this would overlook their effects on German politics, where rigidly anti-Palestinian and narcissistically Germanocentric attitudes have now been publicly questioned and reframed in unprecedented fashion. This issue is not going away any time soon.

Photograph courtesy of Joel Schalit. All rights reserved.