Brooke Goldstein, Executive Director of The Lawfare Project: "Justice hangs in the balance: if the German court again finds in favor of Kuwait Airways, it will be providing cover for the racial purity laws of a foreign dictatorship"
The Lawfare Project
The High Court of Hesse has today heard an appeal against a previous Frankfurt court ruling regarding Kuwait Airways’ discriminatory policy of banning Israeli passengers from flying on the airline. The case was brought by an Israeli student, represented by The Lawfare Project and its German counsel Nathan Gelbart, after he booked a flight from Frankfurt to Bangkok in 2016 but was not allowed to take his seat because of a Kuwaiti law that bans all citizens and companies from doing business with citizens of the Jewish state.
The Frankfurt court found in favor of the airline last year, prompting outrage in Germany. The Israeli plaintiff appealed with support from The Lawfare Project, resulting in today’s hearing.
The appeal argued that the verdict applied the racist law of a radical, totalitarian, and theocratic regime and allowed it to overrule German national air transportation laws, which obligate every air carrier to transport any passenger with valid travel documents. In so doing, the court had aided and abetted Kuwait in imposing its anti-Jewish, anti-Israeli laws even though such discrimination is illegal in Germany. According to an archaic and anti-Semitic 1964 Kuwaiti law, all relations with Israeli citizens are prohibited.
In today’s hearing, the court made clear that it shared the view of The Lawfare Project that this Kuwaiti law must not be applied in Germany as it contradicts important German values, including the value of friendship towards the State of Israel. The court explicitly said that the Kuwaiti law was also not applicable in Germany because it represents a collective punishment against all Israelis. It cannot be tolerated, the court argued, that such a law could be applied by a German court to justify Kuwait Airways’ discrimination. This means that the contract for transportation—the plaintiff’s plane ticket—should be considered valid and the airline should have flown him to Bangkok.
Yet the court also expressed doubts that, in the event of a verdict against Kuwait Airways, the verdict would be respected and practicably fulfilled for factual reasons. Factually, the court said, our client would not be able to leave the first plane after it landed in Kuwait, because even the transit area of the airport is under the territorial integrity of Kuwait. Kuwait Airways had therefore sold the plaintiff an impossible product. Nonetheless, the court continued, the Kuwaiti law banning any involvement with Israeli citizens could not be used to justify discrimination. That law is not applicable, the court said, and is most probably an act of discrimination against Jewish people given that 74% of Israeli citizens are Jewish. It is also a contravention of the German Air Transportation Act.
The court therefore said that while the plaintiff’s ticket remains valid, it is skeptical that it could reach a verdict knowing from the start that this verdict would be factually impossible to fulfil.
Nathan Gelbart responded that he did not think it would be reasonable for the court to avoid issuing a verdict against Kuwait Airways just because its verdict would not be enforced by the airline. By this logic, any company can undermine the rule of law entirely by simply refusing to abide by a judicial verdict. Gelbart asked the court to reconsider this point.
The court is expected to render a decision on September 25th.
If the appeal is successful, and the court rules against Kuwait Airways for its racist policy towards Israeli citizens, it will raise questions about the airline’s ability to operate in Germany. Yet even if the court does not rule directly against the airline, it is likely that Kuwait Airways will come under political pressure. After last year’s ruling in favor of the airline, the State Secretary of the Ministry of Justice, Christian Lange, wrote to Chancellor Angela Merkel asking her to “personally ensure that the landing rights of Kuwait Airways in Germany are immediately withdrawn.”
On previous occasions, legal pressure by The Lawfare Project against Kuwait Airways in the United States and Switzerland led to the airline cancelling its NYC-London flights, and all its inter-European flights, rather than compromise its discriminatory practices. Meanwhile, in London, an Israeli passport holder who attempted to book a flight on Kuwait Airways and was prevented from doing so was recently paid damages by the airline.
Earlier this year, Acting Minister of Transport, Christian Schmidt, wrote to the Kuwaiti Minister of Labor, Economics and Social Affairs, Hind Al-Sabeeh, regarding what he called the “disconcerting” policy of Kuwait Airways. It is “fundamentally unacceptable to exclude citizens because of their nationality,” wrote Schmidt.
Since last year’s verdict, three regional parliaments in Germany—Bayern, Hessen, and Nordrhein-Westfalen—passed resolutions condemning Kuwait Airways for its racist policy.
Brooke Goldstein, Executive Director of The Lawfare Project, a legal think tank and litigation fund that takes legal action against anti-Semitic discrimination and that has been representing the plaintiff, said:
“Justice hangs in the balance: if the German court again finds in favor of Kuwait Airways, it will be providing cover for the racial purity laws of a foreign dictatorship, which is all the more disturbing given Germany’s dark past with such laws. Kuwait Airways should be given an ultimatum—either cease its anti-Semitic, unlawful practice or cease operating in Germany.”
Nathan Gelbart, The Lawfare Project’s German counsel who is representing the Israeli plaintiff, said:
“I remain hopeful that the court will finally act against this blatant bigotry. I was pleased to hear the court say today that the Kuwaiti law used by Kuwait Airways to justify its discrimination is not applicable in Germany, incompatible with German values and foreign policy, and constitutes an act of collective punishment against Israelis. The fact that Kuwait Airways would be unlikely to make any positive changes to their bigoted policy should not in my view prevent the court from issuing a verdict against the airline.
It is unbearable that we are allowing a company to do business in Germany that discriminates against Jewish individuals on no basis other than their nationality. It is vital that the court acts to protect the rights of all individuals in Germany to enjoy equal rights under the law, free from the discriminatory laws of a racist dictatorship.”
For more information, or to arrange interviews with Lawfare Project Executive Director Brooke Goldstein, Lawfare Project German counsel Nathan Gelbart, or the Israeli plaintiff, Adar M., please contact:
Nathan Miller or Hannah DeWit
Nathan@miller-ink.com or Hannah@miller-ink.com