German high court affirms that Kuwait airlines can discriminate against Israeli passengers flying from Germany

Here are two articles that both say the same thing (I’m putting up the Reuters piece because posting only The Tablet piece would lead some to say, “Well, that’s just a Jewish site kvetching about Jewish mistreatment.”

Reuters:

The Tablet:

The short story: an Israeli passenger tried to book a trip from Frankfurt to Bangkok in 2016 on Kuwait Airways. The airline refused to sell the passenger a ticket because Kuwait Airways—and I didn’t know this—won’t transport Israeli passengers. And that’s because Kuwait has a law prohibiting its companies from doing any business with Israeli citizens.

The passenger, who is unnamed, sued.  A Frankfurt court ruled for the airline last year, which outraged many Germans. Subsequently, the passenger, with support from Jewish and pro-Israel organizations, appealed.  A week ago the German High Court of Hesse affirmed the lower court decision, though it found Kuwaiti policy reprehensible. As The Tablet reports:

Critically, the [High Court] 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.

But the dispositive factor was a logistic one:

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.

Well, fine. But I don’t agree with this decision, which amounts to Germany endorsing anti-Semitic policies of another country, and being complicit in them.

Soothing words of the High Court aren’t enough. Germany, especially with its sensitive history vis-à-vis the Jews, needs to take action to free it from complicity in bigotry. Germany should simply tell Kuwait Airlines that so long as they have that policy, they cannot land in Germany.

And I’d suggest the same thing if an airline refused to carry women, or passengers from any country. This may inconvenience some non-Israeli people in Germany, who have to find other ways to get to Kuwait, but that’s just too damn bad. An international carrier that discriminates against carrying passengers of any national origin, sex, or ethnicity, should not be able to operate from a democratic country.

h/t: Orli

49 Comments

  1. Ken Kukec
    Posted October 1, 2018 at 12:27 pm | Permalink

    This endorsement of Kuwait’s discriminatory policy is absolutely wrong — for much the same reason it’s wrong for a baker to refuse to sell a cake to a gay couple. Doesn’t violate the same US civil-rights statutes, of course, but it violates the same underlying principles regarding fairness and human dignity.

    • BJ
      Posted October 1, 2018 at 4:21 pm | Permalink

      Ken, could you take a look at my comment number eight and explain to me how this ruling might make sense? Thanks

      • Ken Kukec
        Posted October 1, 2018 at 5:27 pm | Permalink

        Looks like commenter JW responded to your comment, BJ.

  2. sshort
    Posted October 1, 2018 at 12:31 pm | Permalink

    Excellent summation, Professor. Agreed.

    Reprehensible policy.

  3. Posted October 1, 2018 at 12:39 pm | Permalink

    Agree that Germany should not allow the airline to operate in Germany. That is the only recourse Germany has.

    Does the airline fly operate in the US . If so, they should be banned.

    I was against the Bysh war in the gulf to come to the aid if Kuwait on a number of grounds. One was they were about as corrupt as Iraq. I think history has proved that I was right.

    • Giancarlo
      Posted October 1, 2018 at 1:57 pm | Permalink

      If the US was going to Ban Kuwait Airlines they would have done it when confronted with the same situation back in 2015:
      https://www.usatoday.com/story/news/2015/10/22/dot-kuwait-airways-israelis-discrimination-enforcement/74415174/

      • Posted October 1, 2018 at 2:12 pm | Permalink

        In the back of my mind I thought I remembered something like that.

        Oh. those pesky far reaching policy implications.

        That is one reason Trump got elected, people liked it when he cut through the annoying far reaching policy implications and says he would get things done.

        Sometimes you have to ignore the far reaching policy implications and do what is right.

        Damn the torpedos. Full speed ahead.

        The people who get elected are the people who speak boldly and directly without complicatiins and endlessly discussing far reaching policy implications. Makes them look indecisive.

        Sometimes that has a good outcomes, sometimes you get what we got in 1980 and in 2016.

        Sometimes we get what we got in 1932, 1960 and 2008.

        Sometimes good and sometimes bad.

        But never far reaching policy implications.

        • Ken Kukec
          Posted October 1, 2018 at 3:11 pm | Permalink

          As Mencken said, “for every complex problem there is an answer that is clear, simple, and wrong.”

          • Posted October 1, 2018 at 4:00 pm | Permalink

            That guy was a very cynical smartass. Not someone I would want to quote.

            I liked the way the Clarence Darrow character shut the Mencken character off in the movie Inherit the Wind.

            • Ken Kukec
              Posted October 1, 2018 at 5:44 pm | Permalink

              Inherit the Wind was, of course, a highly fictionalized account of the Scopes trial. IRL, Mencken and Darrow were on the same side of the battle against the forces of benightedness.

              It’s true Mencken was both cynical and a smartass. But he was a hell of a talented writer, too. For that matter, many great writers have been cynical smartasses, going back at least to Samuel Johnson (and probably all the way to Aristophanes). I wouldn’t hesitate to quote any of them.

              • Posted October 1, 2018 at 7:09 pm | Permalink

                I don’t know if you missed my point, chose to ignore it or disagreed with it. But your Mencken quote was not helpful. A short campaign slogan is not necessarily wrong. But one that is well put, decisive and shows leadership is necessary for a campaign for any office.

            • Posted October 2, 2018 at 4:42 am | Permalink

              Ad hominem arguments are not something I would want to use.

              • Posted October 2, 2018 at 8:04 am | Permalink

                You are right. My comment was a mistake. I should have told him why I thought his post was ineffective and missed my point. I was unhappy that he did not address my point directlyI really had two points One was my complaint that our government was reported to have used a bad excuse not to deal with the problem directly. A subsequent comment showed that report was false. The other point was totally off topic and was a general rant about campaign tactics. If someone is going to make a comment, I believe they should address the points directly, instead of making an irrelevant smartass quote to show his cute and smart they are.

              • Ken Kukec
                Posted October 2, 2018 at 8:51 am | Permalink

                The point of the Mencken quote, OG, is that ignoring policy implications, as you suggested be done, frequently leads to ill-advised solutions. It thus responded directly to your point.

      • Michael Fisher
        Posted October 1, 2018 at 2:21 pm | Permalink

        Here’s more info below regarding the 2015 kerfuffle. In the end Kuwait Airways dropped the JFK to Heathrow route due to pressure from NYC. The right thing to do is stop all landing rights to all airports in USA, Canada, UK & so on – that’s for actual Kuwait Airways ‘planes & for codeshare arrangements too.

        “Kuwait Airways was accused of discriminating against holders of Israeli passports, for refusing in 2013 and 2014 to sell tickets from New York to London to people holding such passports. Senator Richard Blumenthal, along with five other senators, wrote a letter to Transportation Secretary Anthony Foxx in May 2015 urging him to investigate the allegations. In October 2015, at the conclusion of an investigation, the Department of Transportation issued Kuwait Airways an order to “cease and desist from refusing to transport Israeli citizens between the U.S. and any third country where they are allowed to disembark” In the letter, the DOT also accused Kuwait Airways of following the Arab League boycott of Israel.
        Additionally, New York City Council member Rory Lancman asked the Port Authority of New York and New Jersey, which operates JFK Airport, to “terminate the airline’s lease if it doesn’t immediately change its policy”. The airline said that it is in compliance with Kuwaiti Law which prohibits the company from entering “into an agreement, personally or indirectly, with entities or persons residing in Israel, or with Israeli citizenship.” The airline also petitioned the Federal Court of Appeals for the District of Columbia to review the dispute.

        The matter was settled on December 15, 2015, when Kuwait Airways informed the United States Department of Transportation that it will eliminate service between JFK and London Heathrow, with The Daily Telegraph reporting that tickets for the route were no longer being sold effective the following week. Council member Lancman responded saying “If you’re so anti-Semitic that you would rather cancel a flight than provide service to Israeli passport holders, then good riddance”
        WIKI

        • Giancarlo
          Posted October 1, 2018 at 2:44 pm | Permalink

          That’s funny, since Kuwait Airways can still fly form LaGuardia to Heathrow.

          • Michael Fisher
            Posted October 1, 2018 at 3:34 pm | Permalink

            Perhaps that’s why Kuwait Airways dropped the JFK/Heathrow route before the legals were finished? I suppose DoT, The Port Authority of NY & NJ or City of New York [who own JFK & LaGuardia] didn’t follow through with a ban on berths. I’m speculating that the issue lost the spotlight & nothing got done to formalise a ban. Guessing.

  4. Posted October 1, 2018 at 12:41 pm | Permalink

    I flew Air Kuwait back in the ’80s – it was operated by Lufthansa back then, wonder if that holds true today.

    • Michael Fisher
      Posted October 1, 2018 at 1:53 pm | Permalink

      Do you mean the Kuwaiti government owned “Kuwait Airways” – I can find no record of “Air Kuwait.” Kuwait Airways started to operate the Airbus in the early ’80s, perhaps what you saw was a codeshare between the two airlines? Kuwait Airlines is a tiny operation compared to Lufthansa & codesharing would be very useful. That said I’m only guessing.

      • Posted October 1, 2018 at 3:12 pm | Permalink

        Whatever the name was. They had Lufthansa ground crew and Lufthansa logo’d cups & napkins, even.

        The stewards (no stewardesses) were all Kuwaiti, and swole and carrying. Remember, this was right after the hijacking.

  5. Randall Schenck
    Posted October 1, 2018 at 12:49 pm | Permalink

    This is nuts. The IATA, International Air Transport Association should be notified and told to notify Kuwait Airlines to either change their ways or kick them out. This would give other countries another excuse to kick them out even if Germany won’t.

    • Ken Kukec
      Posted October 1, 2018 at 1:25 pm | Permalink

      Hey, buddy, off topic here, but I thought you might be interested in this investigative piece in Esquire about Iowa and about the move there by Devin Nunes’s family dairy operation, and about the widespread use (including by the Nunes family) of undocumented labor there, in the district represented by rabid anti-immigrant Trumper Steve King.

      • Randall Schenck
        Posted October 1, 2018 at 2:13 pm | Permalink

        Very interesting. The hypocrisy throughout this issue is large and not surprising at all. Steven King is probably more despicable than Nunes but who could tell. Why these people vote for King and Trump just makes no sense at all. The article is pretty long and I ran through it fast but did not see anything explaining why Nunes moved the farm from California? Maybe it was getting too expensive and Iowa was cheaper.

        I think the same thing applies to the meat packing and the chicken farms. Lots of illegals work in both of these industries in Iowa.

        I live in Kansas now but it is just as bad here. Wichita is covered up with lawn and landscaping firms and most of the employees are – you guessed it illegals. If ICE showed up at these places, nothing would get done.

  6. Jimbo
    Posted October 1, 2018 at 1:55 pm | Permalink

    El-Al allows Kuwaitis to fly, right? Maybe they should reciprocate and refuse to fly Kuwaitis.

    • Michael Fisher
      Posted October 1, 2018 at 3:17 pm | Permalink

      Kuwait is one of around 20 countries that do not recognise Israel – no diplomatic relations, no El Al ‘planes allowed [landing, taking off or overflying] in those countries. These bans are one sided – Israel hasn’t reciprocated with bans of their own AFAIK & it would be bad policy to do so I think. What’s to be gained? Israel doesn’t hinder ANY Muslims from performing the Hajj to Mecca unlike some hypocritical Islamic countries [Islamic countries at war with each other etc].

      It would be interesting to know what happens currently – would a Kuwaiti with an Israel stamp in his passport have problems when going back through customs into Kuwait? I know that Israeli customs will stamp a token piece of paper rather than a passport to relieve such problems, the traveller can throw the piece of paper away…

    • BJ
      Posted October 1, 2018 at 4:18 pm | Permalink

      No. Israel’s laws of freedom, equality for all citizens under the law, etc. make it clear to all (unless those people are willfully ignorant of or ignore these policies for the purposes of antisemitism and portraying Israel as an “apartheid state”) that it is better than places like Palestine, Kuwait, and most other countries in the Middle East. Israel is a beacon of freedom and democracy in a region that is largely bereft of governments with such ideals and the laws that reflect them.

  7. JW
    Posted October 1, 2018 at 2:09 pm | Permalink

    In general I agree with this post – what happened to that Israeli passenger was wrong and immoral.

    However, I would like clarification on two points.

    First, if I am reading the Reuters article correctly, the high court did NOT rule that it was okay for the Kuwait Airlines to refuse to do business with Israelis in general. The court issued a more limited finding, that it was ok for Kuwait Airlines to refuse that specific trip because it required a stopover in Kuwait, for which the Israeli passenger would not have been able to enter legally. (Similar perhaps to the case where an airline would be forced to transport a passenger to a country where that passenger required a visa to enter but lacks one in the passport.)

    Am I correct, or am I totally off-base here?

    Second, this specific route would have caused a problem for any airline, not just Kuwait Airlines. If Delta, United, Lufthansa, or Scandinavian Airlines had a similar route (from Frankfurt to Kuwait to Bangkok) then the unfortunate passenger would have encountered the same problem from those airlines as well, correct? As it would still have been illegal for them to transport the passenger to Kuwait. Or am I missing something here?

    I like the proposed solution – airlines who have to reject passengers for this reason simply can not land in Germany. That amounts to a sort of economic sanction against Kuwait Airlines – and Kuwait in general – to force them to change their policy. (If every country adopted that rule, Kuwait Airlines would not be able to fly internationally at all – with the associated loss of revenue – and loss of tax for Kuwait’s treasury, presumably.)

    • Denis Westphalen
      Posted October 1, 2018 at 3:29 pm | Permalink

      I sort of have the same understanding! The problem is the stopover. For instance, I live in Canada and I have relatives in Brazil. If they want to visit me in Canada and have a stopover anywhere in US, they must have valid visitor US Visas – even if only in transit.
      Having said, back in 2007 when I was living in Kuwait, it was possible to change flights in the Kuwait Airport without leaving the gate area. So technically, it should be possible for anyone to do stopovers in Kuwait.

      • JW
        Posted October 1, 2018 at 3:43 pm | Permalink

        > I sort of have the same understanding! The problem is the stopover. it was possible to change flights in the Kuwait Airport without leaving the gate area. So technically, it should be possible for anyone to do stopovers in Kuwait.

        My understanding is that the Kuwait law is more strict – transit is not permitted for Israelis even if they never leave the gate area. Even being on the airplane while flying in Kuwait airspace is not permitted for an Israeli. (Please correct me if I am wrong here.)

        For comparison, Kuwait does not recognize Taiwan (R.O.C.) as a country – but Taiwanese passport holders can still get visas and enter Kuwait. E.g. https://www.roc-taiwan.org/kw_en/post/900.html

        I guess my point though was that the German high court did not okay the sort of behavior that got the Kuwait Airlines NYC-Heathrow route cancelled – rather that it said since a stopover in Kuwait was included, it was beyond the control of the airline (or at least, that was enough to put the matter beyond the control of that court).

    • BJ
      Posted October 1, 2018 at 4:21 pm | Permalink

      Yes, if a country has anti-discrimination laws, then no business that engages in discrimination should be allowed to do business there at all. It shouldn’t matter that they’re stopping over somewhere else where their laws allow such discrimination.

      If Kuwait allowed the murder of people who don’t like apples, this ruling would essentially allow them to continue flying passengers in and out of Germany, so long as they stop in Kuwait or another country with such a law.

      • JW
        Posted October 1, 2018 at 5:12 pm | Permalink

        > If Kuwait allowed the murder of people who dont like apples, this ruling would essentially allow them to continue flying passengers in and out of Germany, so long as they stop in Kuwait or another country with such a law.

        Untrue. In the case where Kuwait allowed the murder of people who don’t like apples, this ruling is not necessary for them to continue flying passengers in and our of Germany. Furthermore, in such case it would not be necessary for them to stop in Kuwait (or another country with such a law) to be allowed to do this.

        Real life example: Burma effectively allows the murder and rape of the Rohingya. AFAIK Germany does not ban Burmese airlines from flying in Germany because of this. (Neither does any other country, AFAIK.)

        • BJ
          Posted October 1, 2018 at 6:23 pm | Permalink

          “Burma effectively allows the murder and rape of the Rohingya”

          But is that (1) a law of the land there, and (2) does Burmese Airlines execute Rohingya passengers while they’re on their planes? Tha would be a more equivalent scenario to what is happening here, as the Kuwaiti business is performing the discrimination even while in Germany.

          • JW
            Posted October 1, 2018 at 6:31 pm | Permalink

            1) Good point. Technically, no. It’s more of a “turning a blind eye” or a de facto situation, but not actually written into the legal code.

            2) Well, you wrote:

            > If Kuwait allowed the murder of people who dont like apples,

            No mention of airplanes or airlines.

            • BJ
              Posted October 1, 2018 at 7:44 pm | Permalink

              Yes, with regard to point two, the implication was that Kuwait allowed the murder of people who don’t like apples, and so the airline murders such people when they board the plane 😛

    • Posted October 2, 2018 at 4:40 am | Permalink

      I agree. This is the German court recognising that it has no jurisdiction over what goes on in another country. I disagree with Jerry in that I do not think this is them endorsing antisemitism.

      In fact, as I understand it, the Kuwaiti law prohibits its companies from doing business with Israeli citizens, not Jews. Within the narrow legal bounds a court has to consider, it not technically anti-semitic even though the motivation behind its creation probably was.

  8. BJ
    Posted October 1, 2018 at 4:15 pm | Permalink

    Disgusting. Does Germany not have an anti-discrimination policy similar to that in the US? Assuming it does, why should the matter of passing through Kuwaiti territory be relevant to whether or not the airline (or any other Kuwaiti business with this policy, which is likely all of them, since it’s Kuwaiti law) is allowed to do business within Germany? This makes no damn sense. If it can’t discriminate while doing business within the country, why does it matter where they are taking the passengers once they leave?

    “And that’s because Kuwait has a law prohibiting its companies from doing any business with Israeli citizens.”

    There are quite a few on the left who would like US businesses to adopt the same policy.

    • JW
      Posted October 1, 2018 at 5:06 pm | Permalink

      > why should the matter of passing through Kuwaiti territory be relevant to whether or not the airline is allowed to do business within Germany?

      It isn’t. The court merely said that since the airplane was stopping in Kuwait, the airline had to respect local laws over there – and those laws made it impossible for the airline to fulfill its contract with the plantiff.

      But that doesn’t stop Germany from enacting its own laws to force airlines to choose between doing business with Kuwait or doing business with Germany (at least until Kuwait changes its own laws).

      > This makes no damn sense. If it cant discriminate while doing business within the country, why does it matter where they are taking the passengers once they leave?

      Westphalian soverignty. Germany doesn’t have soverignty over the Kuwait airports, so it can’t force those airports to allow Israeli passengers to safely disembark or transfer planes.

      > (or any other Kuwaiti business with this policy, which is likely all of them, since its Kuwaiti law)

      It’s hard to think of another business where transport of a human being from Germany to Kuwait would be involved though (which is required to trigger this specific court ruling). Hitching a ride on a shipping container ship perhaps?

      • BJ
        Posted October 1, 2018 at 6:21 pm | Permalink

        I still don’t understand. “Germany doesn’t have soverignty over the Kuwait airports, so it can’t force those airports to allow Israeli passengers to safely disembark or transfer planes.” That’s part of the justification according to the Court’s opinion, but it doesn’t make sense in the context of my question. The airline itself is Kuwaiti, so, regardless of whether or not it stops in Kuwait, it still has the policy. Even if that isn’t a policy of the company, but a policy they use only when stopping over in Kuwait, what does it matter? It is still a company breaking Germany law while doing business in Germany, regardless of why.

        • JW
          Posted October 1, 2018 at 6:39 pm | Permalink

          > Thats part of the justification according to the Courts opinion, but it doesnt make sense in the context of my question.

          Yes, it does. See below.

          > Even if that isnt a policy of the company, but a policy they use only when stopping over in Kuwait, what does it matter? It is still a company breaking Germany law while doing business in Germany, regardless of why.

          It matters because the court found there was a rational basis for the denial. It wasn’t based on the company itself discriminating against the passenger of the company’s own free will, but there was another valid reason (the passenger if allowed to board would not be allowed to disembark by the destination country).

          Remember that airlines can refuse to let you board if you are going to a country that requires a visa in your passport and you lack one. And often whether or not a visa is required in your passport depends on your nationality. This is arguably a more minor form of the discrimination that the Irsaeli passenger experienced – but it is perfectly legal! And widely accepted!

          > The airline itself is Kuwaiti, so, regardless of whether or not it stops in Kuwait, it still has the policy.

          This is the bit I’m confused about. The court ruling seems to say that it is only okay since there was a stopover in Kuwait – that provided the rational basis that protected the company.

          So if the airline had refused the Israeli passenger on a direct fight from Frankfurt to Bangkok, then this ruling would not apply. In fact the court likely would have found very differently – that there was no rational basis and therefore the airline really did discrimate illegally.

          Or so I’m guessing.

          • infiniteimprobabilit
            Posted October 1, 2018 at 6:50 pm | Permalink

            And I’d note that courts are usually very wary of intruding on another country’s *internal* laws and policies. (Just as they jealously guard their own laws and sovereignty).

            Beyond that is politics.

            cr

          • BJ
            Posted October 1, 2018 at 7:42 pm | Permalink

            Thanks for the explanation! I get it now.

      • infiniteimprobabilit
        Posted October 1, 2018 at 6:44 pm | Permalink

        If you look at Kuwait Airways flight map, every long-distance flight goes through Kuwait (with the exception of New York – Shannon). https://www.kuwaitairways.com/en/routemap
        So if Kuwait Airlines did carry an Israeli passenger i.e. one with an Israeli passport he’d run slap into a wall when he tried to get off the plane in Kuwait, as the German court noted, and very probably the airline would be liable for the cost of transporting him back whence he came.

        This is why many airlines ask to see your passport at the check-in counter. They will refuse to carry anybody if they think they’ll be refused entry at the country of destination. The immigration authorities often make the airline liable for removing the passenger from their territory.

        It would be informative for the passenger to try and book on any other airline that flies through Kuwait (if any do) and see how far he gets. I suspect no further than the check-in counter.

        Airlines don’t make the laws but they are often de facto stuck with enforcing them (and I’m sure when flying internationally it’s a minefield).

        cr

        • infiniteimprobabilit
          Posted October 1, 2018 at 6:46 pm | Permalink

          I see JW already made most of my points while I was typing them.

          cr

          • BJ
            Posted October 1, 2018 at 7:43 pm | Permalink

            That’s happening to you a lot today, huh ? 😉

            • infiniteimprobabilit
              Posted October 2, 2018 at 1:18 am | Permalink

              Yes. Obviously I don’t type fast enough. 😉

              Now I just need a strategy whereby my comment will appear somewhere upthread so it looks like they were copying me (instead of the other way around)

              (It works on those big ‘leaving’ cards that departing colleagues get, that everyone signs. Impossible to think of anything original by the time 27 others have already signed it. So I just find a space near the top of the card and do the standard ‘Best wishes, we’ll miss you’, then it looks as if I said it first 😉

              cr

      • Diane G
        Posted October 1, 2018 at 9:33 pm | Permalink

        Great point.

  9. Posted October 1, 2018 at 8:51 pm | Permalink

    That’s an unusually wrong post, and the first time I see German antisemitism used in an entirely frivolous manner.

    The court has no say in Kuwait politics (sovereignty of other states). It cannot make laws or ban an airline (separation of powers). It cannot demand such legislation (for great many countries won’t admit every nationality, including the US!). The problem exists had the passenger tried the same thing from any other countries.

  10. RPGNo1
    Posted October 2, 2018 at 5:19 am | Permalink

    The ZEIT has additional information (in German only).
    https://www.zeit.de/politik/ausland/2018-09/oberlandesgericht-frankfurt-klage-kuwait-airways-zentralrat-juden

    However, I would like to highlight some points.
    First, the judgement was issued by the Oberlandesgericht Frankfurt, i.e. a Higher Regional Court, not the High Court of Hesse.

    Second, an appeal against the judgment of the Higher Regional Court is possible before the Federal Court of Justice.

    Third, the federal government of Germaby did not ban flights, but criticized the airline’s decision and blocked its efforts to obtain additional air traffic rights.


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