Berlin (CNSNews.com) – Critics are calling for political intervention after a German court this week upheld a lower court ruling stating that, because of Kuwait's boycott of Israel, its national airline does not have to accept Israeli passengers – even in Germany.
The Lawfare Project, a U.S. nonprofit litigation fund who represented an Israeli complainant in the case said it was “absolutely appalled” by the decision.
“[We] encourage Germany’s elected leaders to take action in response to this clear violation of European laws and values,” it said in an email.
An appeals court in Frankfurt ruled that Kuwaiti law, which outlaws relations with Israel, was “in blatant contradiction to major European guidelines as well as German values and objectives.”
At the same time, it said it could not force Kuwait Airlines to carry the passenger, concluding that it was a matter “reserved for foreign and legal policy and not the task of the courts.”
Nathan Gelbart, the German lawyer who represented the Israeli, called on policy makers to intervene.
“Tell Kuwait: either all passengers or none,” he said after the decision. “No discrimination against Jews on German soil.”
Chancellor Angela Merkel has not commented, but members of her government have criticized the outcome.
“Our position is clear: it cannot and must not be that an airline refuses to carry Israelis in Germany,” said federal Minister of Transport Andreas Scheuer. “Discrimination and anti-Semitism are absolutely unacceptable.”
Last spring Scheuer, a member of Bavaria’s conservative CSU party, challenged Kuwait’s labor, economics and social affairs minister over the “fundamentally unacceptable” practice, but with no evident result.
“The Kuwaiti side has not yet made any concessions regarding Israeli passengers,” Scheuer told Bild on Tuesday.
Germany has taken one step in response, Scheuer disclosed, telling the paper that his ministry will grant Kuwait no additional landing rights until the emirate changes its policy.
The Federal Anti-Discrimination Agency also called the Israeli ban “unacceptable,” in a Wednesday press statement, calling for an extension of discrimination laws to counteract such cases in the future.
U.S. Ambassador to Germany Richard Grenell criticized the policy. “It is 2018,” the Associated Press quoted him as saying. “No airline should be allowed to categorically reject Israelis.”
For its part, Kuwait Airways expressed satisfaction with the outcome, calling the decision “well balanced, well-founded and well-derived.”
The matter first arose in 2016 when the Israeli passenger unsuccessfully sued Kuwait Airlines after he booked a flight from Frankfurt to Bangkok, with a stopover in Kuwait City. The airline cancelled his booking upon discovering his nationality.
In the appeal ruling, the court agreed that Kuwaiti law had no legal effect in Germany but still had effect in Kuwait.
“On the basis of its internationally recognized territorial sovereignty,” it said, Kuwait can determine the conditions under which “strangers may enter its territory.”
As such, the airline would invariably have been forced to immediately fly the passenger back to Frankfurt instead of on to Bangkok, which would have been “pointless” for the plaintiff, the court said.
The reasoning has attracted mixed opinions.
Armand Cucciniello, a former U.S. diplomat who advises the U.S. military, said if the airline was unable to comply with the laws and policies of countries where it operates, “it should be asked to leave.”
“It is surprising that a case tried in a German court is adjudicated based on another country’s policies,” he said. “The German court is essentially acting as a surrogate for Kuwait.”
Matt Pinsker, a professor in international law at Virginia Commonwealth University, said the airline's actions were wrong, immoral, and illegal.
“From any rational legal perspective, it does not make sense,” he said. “A court's job is to uphold the law, and that did not happen here.”
According to Albert Goldson, executive director of New York-based Indo-Brazilian Associates LLC, which provides geopolitical risk assessment, said that even if Germany is not necessarily legally entangled in the affair, it is a political matter, given its track record of protection of foreigners, referring to its large intake of Muslim migrants in recent years.
“There should be political fall-out, but that's not a bad thing,” Pinsker said. “If the law is being interpreted by judges in a way that doesn't make sense or is unintended, then politicians should step in.”
“The role of judges should be very limited, and it is up to the legislators to be writing laws, not the courts,” he said.
He added that similar cases of discrimination occur elsewhere, but usually only in non-Western nations lacking basic human rights standards prohibiting discrimination.
In 2015, the U.S. Department of Transportation ordered Kuwait Airways to end its practice of denying service to Israeli passport holders, resulting in the airline ending its New York to London route entirely.
The Lawfare Project, whose legal action prompted the 2015 decision in the U.S., said this week it remains committed to ensuring European countries put an end to the discrimination.
“Kuwait Airways’ discriminatory policy is in place wherever it operates around the world,” it said.
Under U.S. law, “An air carrier or foreign air carrier may not subject a person in air transportation to discrimination on the basis of race, color, national origin, religion, sex, or ancestry.”