"Tragic day for German law", as court dismisses claim against Kuwait Airways’ racist policy following appeal

FRANKFURT, GERMANY—A German court has today rejected an appeal by an Israeli passenger barred from boarding a Kuwait Airways flight because of the airline’s strict policy of banning all Israelis. The case had been brought by the Israeli, represented by The Lawfare Project, 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 any business with citizens of the Jewish state.

The Frankfurt court found in favor of the airline last year, prompting outrage in Germany. The Israeli—a Frankfurt based student—appealed with support from The Lawfare Project.

Today, the High Court of Hesse upheld last year’s ruling in favor of the airline, dismissing the claim on the basis that the execution of the contract is impossible. Although the written verdict is yet to be published, in a hearing on September 6th, the court made clear that it shared the view of Nathan Gelbart, German counsel of The Lawfare Project acting for the Israeli plaintiff, 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.

Paradoxically, however, 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, the Israeli 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. Put simply, the court seems to have dismissed the claim because of the anti-Semitic reality that would prevent an Israeli leaving the plane when it stopped in Kuwait.

As a result, attention will now turn to the political fall-out of this decision. As the courts have as yet been unable to challenge Kuwait Airways’ flagrantly discriminatory policy, it falls on politicians to intervene to hold the airline to account.

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.

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.

Brooke Goldstein, Executive Director of The Lawfare Project, a legal think tank and litigation fund that has been representing the plaintiff, said:

“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. 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.

It is sickening that, in 2018, in Germany of all places, a court has legitimized hatred and discrimination against Jews. We are exploring the options to appeal this decision but, in the meantime, the authorities cannot simply stand by in the face of this blatant racism and injustice.”

Nathan Gelbart, The Lawfare Project’s German counsel, who represented the Israeli plaintiff, said:

“It is hard for me to accept that this airline may continue to advertise flights from Germany to Bangkok for everyone except Israelis. Especially given the fact that the High Court classifies this action as discriminatory and illegal. Factual problems on the ground at Kuwait Airport are homemade by the Kuwaitis themselves—they should not be the concern of a German court nor a reason to dismiss the claim. The owner of the airline also owns the airport. It is not that Kuwait Airways is incapable of fulfilling its legal obligations, it is simply unwilling to do so and therefore should have been ordered by the court to transport our client.

We will consider possible further appeal procedures with our client and with The Lawfare Project after receiving the written verdict. Now that justice, so far, has proven unable to solve this matter, politics immediately need to take clear decisions and tell the Kuwaitis: carry everyone or no one. No discrimination against Jews on German soil.”

For more information, or to arrange interviews with The Lawfare Project’s Executive Director, Brooke Goldstein, The Lawfare Project’s German counsel, Nathan Gelbart, or the Israeli plaintiff, Adar M, please contact:

David Krikler
E: david@dkcomms.co.uk
T: +44 7967 632 776