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Defining Anti-SemitismStephen Sedley
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Vol. 39 No. 9 · 4 May 2017

Defining Anti-Semitism

Stephen Sedley

1361 words

Shorn​ of philosophical and political refinements, anti-Semitism is hostility towards Jews as Jews. Where it manifests itself in discriminatory acts or inflammatory speech it is generally illegal, lying beyond the bounds of freedom of speech and of action. By contrast, criticism (and equally defence) of Israel or of Zionism is not only generally lawful: it is affirmatively protected by law. Endeavours to conflate the two by characterising everything other than anodyne criticism of Israel as anti-Semitic are not new. What is new is the adoption by the UK government (and the Labour Party) of a definition of anti-Semitism which endorses the conflation.

In May 2016 the International Holocaust Remembrance Alliance, an intergovernmental body, adopted a ‘non-legally-binding working definition of anti-Semitism’: ‘Anti-Semitism is a certain perception of Jews, which may be expressed as hatred towards Jews. Rhetorical and physical manifestations of anti-Semitism are directed towards Jewish or non-Jewish individuals and/or their property, towards Jewish community institutions and religious facilities.’ This account, which is largely derived from one formulated by the European Monitoring Centre on Racism and Xenophobia, fails the first test of any definition: it is indefinite. ‘A certain perception of Jews, which may be expressed as hatred’ invites a string of questions. Is anti-Semitism solely a matter of perception? What about discriminatory practices and policies? What about perceptions of Jews that are expressed otherwise than as hatred?

These gaps are unlikely to be accidental. Their effect, whether or not it is their purpose, is to permit perceptions of Jews which fall short of expressions of racial hostility to be stigmatised as anti-Semitic. Along with the classic tropes about a world Jewish conspiracy and Holocaust denial or dismissal, the IHRA’s numerous examples include these:

Manifestations might include the targeting of the state of Israel, conceived as a Jewish collectivity. However, criticism of Israel similar to that levelled against any other country cannot be regarded as anti-Semitic.

Applying double standards by requiring of [the state of Israel] a behaviour not expected or demanded of any other democratic nation.

Denying the Jewish people their right to self-determination, e.g. by claiming that the existence of a state of Israel is a racist endeavour.

The first and second of these examples assume that Israel, apart from being a Jewish state, is a country like any other and so open only to criticism resembling such criticism as can be made of other states, placing the historical, political, military and humanitarian uniqueness of Israel’s occupation and colonisation of Palestine beyond permissible criticism. The third example bristles with contentious assumptions about the racial identity of Jews, assumptions contested by many diaspora Jews but on which both Zionism and anti-Semitism fasten, and about Israel as the embodiment of a collective right of Jews to self-determination.

In October 2016 the Commons Select Committee on Home Affairs published a report entitled ‘Anti-Semitism in the UK’ in which it broadly accepted the IHRA’s ‘working definition’ but proposed that two qualifications be added in the interests of free speech:

It is not anti-Semitic to criticise the government of Israel, without additional evidence to suggest anti-Semitic intent.

It is not anti-Semitic 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 anti-Semitic intent.

The government in its published response adopted the IHRA definition but brushed aside the select committee’s caveats, taking the exclusion of ‘criticism of Israel similar to that levelled against any other country’ to be part of the IHRA definition and to be a sufficient safeguard of free speech.

A recent opinion obtained from Hugh Tomlinson QC, a prominent human rights lawyer, by a group of NGOs concerned with Palestine and Israel, concludes that the IHRA definition is unclear and confusing (it could be suggested, in fact, that it is calculatedly misleading), that the government’s adoption of it has no legal status, and that the overriding legal duty of public authorities is to preserve freedom of expression. He also argues that, even taken on its own terms, the definition does not require characterisations of Israel as an apartheid or colonialist state, or calls for boycott, disinvestment or sanctions, to be characterised as anti-Semitic.

Policy is not law. At most it is a guide to the application of legal powers where these include exercises of discretion or judgment. For central government the impact of the IHRA policy may well be imperceptible, but for local authorities and educational institutions, and for the police in a number of situations, the policy is capable of having a real impact. Its authors may be pleased about this, but policy is required to operate within the law.

One law of central relevance is section 43 of the 1986 Education Act, passed after campus heckling of Conservative ministers and speakers but of continuing application to tertiary institutions in England and Wales. It places a duty on such institutions to ‘take such steps as are reasonably practicable to ensure that freedom of speech within the law is secured for members, students and employees … and for visiting speakers’.

A second, and fundamental, law is the 1998 Human Rights Act, which makes it unlawful for a public authority to act incompatibly with rights that include the right of free expression under article 10 of the European Convention. The right is not absolute or unqualified: it can be abrogated or restricted where to do so is lawful, proportionate and necessary for (among other things) public safety, the prevention of disorder or the protection of the rights of others. These qualifications do not include a right not to be offended.

The European Court of Human Rights has not helped here. In a judgment handed down in 2016, it upheld the order of a Swiss court requiring an organisation which campaigned against anti-Semitism to withdraw its criticism of an academic commentator for writing ‘Quand Israël s’expose sur la scène internationale, c’est bien le judaïsme qui s’expose en même temps.’ It is disturbing that the court failed to protect a publication which contended that propositions like these ‘glissent carrément vers l’antisémitisme’ (‘are clearly edging towards anti-Semitism’). Why were both the article and the critique not equally protected by article 10? The upholding of the Swiss judgment is another in a long line of cases, starting in 1976 with the Little Red Schoolbook case against the UK, in which the Strasbourg court has tolerated intolerant decisions of national courts on freedom of expression by giving them the benefit of a ‘margin of appreciation’.

Although the abstentionist nature of Strasbourg jurisprudence does little to prevent official intervention aimed at muting criticism of Israel, it can be readily seen why it may be contrary to law in the UK to bar a speaker or an event because of anticipated criticism of Israel’s human rights record, or of its policies and practices of land annexation. If so, the bar cannot be validated by a policy, much less one as protean in character and as open-ended in shape as the IHRA definition.

In recent times a number of institutions, academic, religious and social, have stood up to pressure to abandon events critical of Israel. What are less easy to track are events which failed to take place because of such pressure, or for fear of it; but the IHRA definition offers encouragement to pro-Israel militants whose targets for abuse and disruption in London have recently included the leading American scholar and critic of Israel Richard Falk, and discouragement to university authorities which do not want to act as censors but worry that the IHRA definition requires them to do so.

When a replica of Israel’s separation wall was erected in the churchyard of St James, Piccadilly in 2013, the Spectator denounced it as an ‘anti-Israeli hate-festival’ – a description now capable of coming within the IHRA’s ‘working definition’ of anti-Semitism. In such ways the official adoption of the definition, while not a source of law, gives respectability and encouragement to forms of intolerance which are themselves contrary to law, and higher education institutions in particular need to be aware of this.

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Vol. 39 No. 11 · 1 June 2017

Stephen Sedley writes that it is difficult to track events that failed to take place because of pressure to abandon events critical of Israel, ‘or for fear of it’ (LRB, 4 May). Well here is just one example. Last autumn Skyscraper, of which I am managing director, published a book called State of Terror, about the regular and systematic use of terror attacks by Jewish gangs against British, Arab and even Jewish citizens in Palestine in the 1940s. The author, Thomas Suàrez, was invited to speak in April at a Palestine Solidarity Campaign meeting at the Friendship House in Portsmouth. The MP for Portsmouth South, Flick Drummond, contacted the police in case, as she put it, ‘there might be some trouble from people who were opposed to [his] visit.’ The venue was then changed to the Buckland Community Centre, but this too was cancelled owing to pressure. The talk finally took place at a third venue. The Daily Mail reported on it thus: ‘A charity supported by Jeremy Corbyn [the PSC] hosted an anti-Semitic speaker who has accused Jews of exploiting the Holocaust and called Zionism “parallel to Nazism".’

Karl Sabbagh
Bloxham, Oxfordshire

Vol. 40 No. 3 · 8 February 2018

Neve Gordon mentions the definition of anti-Semitism ‘adopted by the current UK government’ and its accompanying list of examples (LRB, 4 January). I’d like to add a word about its origins.

In 2005 a working party of the European Monitoring Centre on Racism and Xenophobia, an EU institution, produced a forty-word ‘working definition’:

Anti-Semitism is a certain perception of Jews, which may be expressed as hatred towards Jews. Rhetorical and physical manifestations of anti-Semitism are directed towards Jewish or non-Jewish individuals and/or their property, towards Jewish community institutions and religious facilities.

It was followed by a series of examples, of unknown authorship, which, depending on their context, might constitute acts of anti-Semitism. Of the 11 examples, seven referred to Israel rather than to Jews. But both the definition and the illustrations were rejected by the EUMC, and in 2013 its successor, the Fundamental Rights Agency (FRA), removed the entire text from its website as part of a clear-out of non-official documents.

In May 2016 the same text was adopted by the International Holocaust Remembrance Alliance (the IHRA), a Berlin-based association of 31 states, at its meeting in Bucharest. To it were added, in the IHRA’s press release, the list of 11 examples. I wrote about this composite text in the LRB of 4 May 2017, because the definition seemed to me clumsy and open-ended, and a number of the illustrations, by seeking to conflate criticism of Israel with anti-Semitism, slanted.

What I did not appreciate then was, first, that the IHRA text was not original but had been retrieved from the files of two other bodies which had never adopted it; second, that the ‘examples’ had been added to the adopted text; and, third, that the content of the versions adopted by UK institutions and bodies (and by governments such as those of Austria and Romania) has itself been variable.

In December 2016, a press release from the Department for Communities and Local Government and the prime minister’s office announced that the UK had ‘formally’ adopted the IHRA’s working definition of anti-Semitism, setting out the forty-word definition without any of the associated examples. It is not known what ‘formal’ adoption means in constitutional terms: either a text has to take legislative form, with all that this entails, or it remains simply a policy. On the same day Jeremy Corbyn announced that the Labour Party was adopting the definition.

In neither of these announcements were the tendentious illustrations included. But central government has cited them as grounds for rejecting the advice of the Home Affairs Committee that the ‘definition’ should be qualified by spelling out that in the absence of additional evidence of anti-Semitic intent, it is not anti-Semitic to criticise Israel’s government, to hold it to the same standards as other liberal democracies or to take a particular interest in its policies or actions. A number of municipalities, including London, Manchester and Birmingham, have adopted the list wholesale – London, among others, using a version which omits the proviso that the listed examples depend on their context.

What is at issue is suggested by the prime minister’s contemporaneous speech, quoted in the government’s press release: ‘Israel guarantees the rights of people of all religions, races and sexualities, and it wants to enable everyone to flourish.’ From this it isn’t far to the first of the ‘examples’ of anti-Semitism: ‘Manifestations could also target the state of Israel, conceived as a Jewish collectivity.’ Leaving aside the difference between targeting and criticism, one asks: conceived by whom? The world at large, millions of Jews included, conceives of Israel as a state with the same rights and obligations as any other state, including an obligation not to extend its territory by incremental colonisation or to occupy and administer the land of others under military law. It is hardline Zionism and hardline jihadism which coincide, as extremes tend to do, in regarding Israel as a ‘Jewish collectivity’ – jihadism by seeking to identify Israel with all Jews (making every Jew a legitimate terrorist target), Zionism by seeking to identify all Jews with Israel (whence the description of Israel’s Jewish critics as ‘self-hating’).

None of this is addressed by a definition which sets the bar needlessly high by stipulating hatred rather than simple hostility as the defining characteristic of anti-Semitism, nor by tendentious examples which look to immunise Israel from sharp criticism. Those who seek to make use of such material in the UK should perhaps remember that public authorities are bound by the Human Rights Act to give effect to Article 10 of the European Convention on Human Rights, which guarantees the right of free expression subject only to restrictions prescribed by law – which the IHRA definition is not.

Stephen Sedley
London WC1

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