20 Aug 2017

anti-Israel is not anti-Jewish

I'm outraged by Israel's treatment of the people of Gaza and the other Palestinian territories it occupies. I'm almost as vexed by the special status given to Israel by the West, which results from its position as the USA's outpost in western Asia, from which the USA can try to control the region's oil resources for its realpolitik ends.

I've long held the view that the State of Israel is a racist state and been bewildered how an experiment to create a homeland for Jews in the aftermath of the Nazi holocaust should have resulted in mass murder, mass starvation and collective punishment by Israel towards the Palestinians, including:
The latest news is of the chronic deprivation of basics like electricity and safe drinking water, for which the UN is presently holding Israel jointly responsible with the Palestinian Authority and Hamas.

In this context, this blog post looks at the working definition of antisemitism adopted by the International Holocaust Remembrance Alliance (IHRA) in May 2016 which, according to some critics, is pro-Israel - and the qualified adoption of the IHRA definition by the UK government and others.

The IHRA definition, which is only one and a half pages long, includes the following:
  • Manifestations [of antisemitism] might include the targeting of the state of Israel, conceived as a Jewish collectivity. However, criticism of Israel similar to that leveled against any other country cannot be regarded as antisemitic. 
  • Denying the Jewish people their right to self-determination, e.g., by claiming that the existence of a State of Israel is a racist endeavor. 
  • Drawing comparisons of contemporary Israeli policy to that of the Nazis. 
The example quoted in the first bullet sounds even-handed but the other two have prompted criticism, for example by Hugh Tomlinson QC (see below).  

We broadly accept the IHRA definition, but  propose  two additional clarifications to ensure that freedom of speech is maintained in the context of discourse about Israel and Palestine, without allowing antisemitism to permeate any debate. The definition should include the following statements:
  1. It is not antisemitic to criticise the Government of Israel, without additional evidence to suggest antisemitic intent
  2. It is not antisemitic to hold the Israeli Government to the same standards as other liberal democracies, or to take a particular interest in the Israeli Government’s policies or actions, without additional evidence to suggest antisemitic intent. [para 24]
In December 2016 the UK government adopted the IHRA definition with 'additional caveats', saying:
We believe that references within the definition stating that “criticism of Israel similar to that levelled against any other country cannot be regarded as antisemitic” are sufficient to ensure freedom of speech.
In March 2017 Hugh Tomlinson QC was commissioned by Free Speech on Israel, Independent Jewish Voices, Jews for Justice for Palestinians and the Palestine Solidarity Campaign to provide a legal opinion on the IHRA (mis)definition of antisemitism. He wrote inter alia:
A number of examples of conduct which have been criticised as antisemitic have been suggested in various publications. These include:

  • Describing Israel as a state enacting policies of apartheid.
  • Describing Israel as a state practising settler colonialism.
  • Describing the establishment of the State of Israel and the actions associated with its establishment, as illegal or illegitimate.
  • Campaigning for policies of boycott divestment or sanctions against Israel, Israeli companies or international companies complicit in violation of Palestinian human rights (unless the campaigner was also calling for similar actions against other states).
  • Stating that the State of Israel and its defenders “use” the Holocaust to chill debate on Israel’s own behaviour towards Palestinians.

In my view, none of these statements or activities could, of themselves, be properly described as antisemitic. I do not think that any of them, without more (that is, without evidence of “hatred towards Jews”), fall within the terms of the IHRA Definition. If an event were to be banned by a university or other public authority on the grounds that such views were being expressed by the  organisers or by speakers on a panel then, without more, such a ban would in my view be unlawful. 
In summary Hugh Tomlinson expressed the view that:
  • The IHRA “non-legally binding working definition” of antisemitism is unclear and confusing and should be used with caution.
  • The “examples” accompanying the IHRA Definition should be understood in the light of the definition and it should be understood that the conduct listed is only antisemitic if it manifests hatred towards Jews.
  • The Government’s “adoption” of the IHRA Definition has no legal status or effect and, in particular, does not require public authorities to adopt  this definition as part of their anti-racism policies.
  • Any public authority which does adopt the IHRA Definition must interpret it in a way which is consistent with its own statutory obligations, particularly its obligation not to act in a matter inconsistent with the Article 10 right to freedom of expression. Article 10 does not permit the prohibition or sanctioning of speech unless it can be seen as a direct or indirect call for or justification of violence, hatred or intolerance. The fact that speech is offensive to a particular group is not, of itself, a proper ground for prohibition or sanction. The IHRA Definition should not be adopted without careful additional guidance on these issues.
  • Public authorities are under a positive obligation to protect freedom of speech. In the case of universities and colleges this is an express statutory obligation but Article 10 requires other public authorities to take steps to ensure that everyone is permitted to participate in public debates, even if their opinions and ideas are offensive or irritating to the public or a section of it.
  • Properly understood in its own terms the IHRA Definition does not mean that activities such as describing Israel as a state enacting policies of apartheid, as practicing settler colonialism or calling for policies of boycott divestment or sanctions against Israel can properly be characterized as antisemitic. A public authority which sought to apply the IHRA Definition to prohibit or sanction such activities would be acting unlawfully. 


My reading of all this is that the IHRA Definition is a flawed attempt to define antisemitism. As a result - even though, when properly understood in its own terms, it shouldn't - the IHRA Definition does seem to get misused in various ways, including: 
  • to prevent free speech about the ghastly behaviour of the State of Israel towards Palestinians
  • to inhibit the BDS movement 
  • to trump freedom of expression under Article 10 (of the European Convention on Human Rights incorporated into UK law as Article 10 of the Human Rights Act 1998) and the duty that Article 10 imposes on public authorities like universities. 
Obviously that is my personal take and it is what I read between the lines of the far more lawyerly and circumspect approach of  Hugh Tomlinson, which is just what you'd expect from a QC. 

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