Kuwait Airways. (flyawaysimulation) (flyawaysimulation)
Kuwait Airways

“Kuwait Airways should be given an ultimatum—either cease its anti-Semitic, unlawful practice or cease operating in Germany,” demanded Brooke Goldstein, Executive Director of The Lawfare Project.

By: United with Israel Staff and the Lawfare Project

The High Court of Hesse on Thursday 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 after he booked a flight from Frankfurt to Bangkok in 2016 but was not allowed to board the flight because of a discriminatory 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 Thursday’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 obligates 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,” the Lawfare Project stated.

According to an anti-Semitic 1964 Kuwaiti law, all relations with Israeli citizens are prohibited.

Kuwaiti Law Contradicts German Values

In the hearing, the court made clear that it shared the view of The Lawfare Project that the Kuwaiti law must not be applied in Germany as it contradicts German values and contravenes German law as 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.

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.

Nonetheless, the court continued, the Kuwaiti law banning any involvement with Israeli citizens could not be used to justify discrimination.

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 25.

If the appeal is successful and the court rules against Kuwait Airways 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.”

Kuwait has faced legal action in Switzerland and the US, where legal pressure led to the airline canceling its popular NYC-London flights, and all its inter-European flights, rather than compromise on its anti-Israel policy.

‘Justice Hangs in the Balance’

Earlier this year, Acting German 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, said that “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, added that he remains “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.”