On Tuesday, a German court rejected an appeal by an Israeli passenger barred from boarding a Kuwait Airways flight because the airline refuses to allow Israelis on its planes.
The ban is not imposed on politicians or military personnel or even settlers. The passenger, Adar M (he cannot be fully named for legal reasons), a Frankfurt-based student, was barred from boarding the flight for no other reason than he is Israeli. The racism of the airline’s policy could not be any clearer. And yet the suit was dismissed.
The scandal began in 2016 when M booked a flight from Frankfurt to Bangkok but was subsequently told that he wouldn’t be allowed to board the plane because of a Kuwaiti law that bans all citizens and companies from doing business of any kind with Israeli citizens.
Outraged, M sued. But a Frankfurt court found in favor of the airline last year, prompting a furor in Germany. M then appealed. He has been supported throughout by The Lawfare Project, an American nonprofit that works to protect the human and civil and rights of Jewish and pro-Israel communities globally.
Nonetheless, on Tuesday the High Court of Hesse upheld last year’s ruling in favor of the airline, dismissing M’s appeal on the basis that the execution of the contract is impossible. M was understandably perturbed. “I personally feel very shocked about the whole process and the current situation,” he told Tablet. “I already felt like a minority in German society as a Jew, and the result just underlined this feeling.”
Critically, the court was sympathetic to M’s plight. In a hearing on Sept. 6th, the court made clear that it shared the view of Nathan Gelbart, German counsel of The Lawfare Project acting for M, 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.
Factually, however, the court said, M would not be able to leave the first plane after it landed in Kuwait, because the transit area of the airport is under the territorial integrity of Kuwait. Put simply, the court seems to have dismissed the claim on the practical ground that it has no jurisdiction over the anti-Semitic laws in Kuwait that would prevent an Israeli from disembarking a plane in the country, even if only to catch a connecting flight in the airport.
The whole affair has been hugely embarrassing for Germany. Earlier this year, acting minister of transport, Christian Schmidt, wrote to the Kuwaiti minister of labour, 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.
But Germany has nevertheless restricted its actions to words. And M no longer feels the same about the place in which he lives. “It’s obviously a discriminatory act against Jewish people. Of course, Kuwait Airways says that their law is against Israel, but all in all the majority of Israel’s population is Jewish. Now as a Jew in Germany, the whole situation made me feel less safe und also brought up some trust issues towards the situation here.”
Brooke Goldstein, The Lawfare Project’s executive director, added: “This is a tragic day for German law. Rather than be held accountable before the law, the court has rewarded Kuwait Airways for its anti-Semitism,” she argued. “If, as the court says, the execution of the contract is impossible, the fault for that lies with the racist policy of the airline, not with the nationality of our client.”
The sad reality is that M’s feeling and Goldstein’s comment reflect the increasingly precarious situation of Europe’s Jews. In France, much of the Jewish population is emigrating, while in the U.K., the official opposition, the Labour Party, is led by Jeremy Corbyn, perceived by the majority of British Jews as being an anti-Semite.
In an age when political action is often restricted to ranting on social media, The Lawfare Project uses the law to protect Jewish rights globally. In Belgium, for example, the organization has taken up the case of the Jewish community there, which is facing an attack on its religious freedom from the country’s banning of kosher slaughter.
In the meantime, the picture isn’t encouraging. As M concludes: “They act like I’m something other than a human being, not even allowing me to enter the transit gate.”