While condemning the discriminatory policy, a German appeals court in Frankfurt nevertheless ruled that Kuwait Airways cannot be forced to carry Israeli passengers.
An Israeli student in Germany had purchased a ticket in 2016 on Kuwait Airways to travel from Frankfurt to Bangkok via Kuwait City. But Kuwait Airways cancelled the ticket because Kuwaiti law prevents “all commercial relations” with Israelis or Israeli companies.
Upholding a lower court ruling, the appeals court (High Court of Hesse) argued the focus should on on Kuwaiti law, not German law:
As Israelis in practice are not allowed to enter the transit areas of Kuwait’s airport, the plaintiff cannot demand transportation by the Kuwaiti airline from Frankfurt to Bangkok with a stopover in Kuwait.
Brooke Goldstein of Lawfare, the organization that represented the student, expressed shock at the ruling:
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.
But the ruling was not a surprise. The judge deemed the Kuwaiti policy “incompatible with German values” but argued that the courts hands were tied. As the lower court noted, German anti-discrimination laws do not protect against discrimination on the basis of citizenship. In a sense, the German court took a highly pragmatic approach. Let’s say they ruled for the Israeli passenger. What happens when he is denied boarding in Frankfurt? What happens if he reaches Kuwait and is arrested? Would German government officials escort him to Bangkok?
Nathan Gelbart, lawyer for the student passengers, bemoaned the decision and vowed a different approach, stating:
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.
And he’s right. It is the German legislature that must now decide whether to tighten anti-discrimination laws that would in a sense force Kuwait Airways to choose between transporting Israelis or abandoning service to Germany.
I think the court reached the correct decision considering current German law and the pragmatic considerations of passenger safety. Nevertheless, I maintain that Kuwait’s discriminatory approach to transit passengers is disgusting and hope that Germany will weigh whether it makes sense to present the airline with an ultimatum.
A similar controversy in the United States led Kuwait Airways to cancel its Fifth Freedom flight between New York and London. But that was concerning flights that did not touch Kuwaiti soil.
What do you think about the latest German court ruling?