Source: The Guardian
Is it antisemitic to criticise the state of Israel? Or are Jews and non-Jews in the UK entitled to be critical, without being stigmatised as antisemites?
Stephen Sedley: Freedom of expression is at the heart of this debateAntisemitism is hostility towards Jews as Jews. This straightforward meaning is at the disposal of any institution or organisation that needs it. It places no prior restrictions on the form antisemitism may take.
What then is the point of the demand that the Labour party should adopt the verbose and imprecise definition promulgated in the name of the International Holocaust Remembrance Alliance (IHRA, an intergovernmental body of 31 states) as a “non-legally binding working definition”? It reads: “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 text reproduces a 2005 draft by an EU body, the European Monitoring Centre on Racism and Xenophobia, though it was never adopted by it, and was resurrected by the IHRA in May 2016 with the now contentious list of purported examples.
These supposed examples of antisemitism are at the heart of the debate. They include: “Denying the Jewish people their right to self-determination, eg by claiming that the existence of a state of Israel is a racist endeavour.” They also include: “Drawing comparisons of contemporary Israeli policy to that of the Nazis.” They point to the underlying purpose of the text: to neutralise serious criticism of Israel by stigmatising it as a form of antisemitism.
The UK government, which has adopted the “working definition” and the examples, was warned by the Commons home affairs select committee in October 2016 that in the interests of free speech it ought to adopt an explicit rider that it is not antisemitic to criticise the government of Israel, or to hold the Israeli government to the same standards as other liberal democracies, without additional evidence to suggest antisemitic intent. This was ignored.
But freedom of expression is at the centre of this debate. While the IHRA “definition” is not part of our law (at most it is a statement of policy), the right of free expression is. The Human Rights Act enacts article 10 of the European Convention on Human Rights, guaranteeing the right of free expression and qualifying it only where proportionate restrictions – for instance on hate speech – are imposed to protect the rights of others.
This is why, whatever criticism the IHRA’s “examples” may seek to suppress, both Jews and non-Jews in the UK are entitled, without being stigmatised as antisemites, to contend that a state that by law denies Palestinians any right of self-determination is a racist state, or to ask whether there is some moral equivalence between shooting down defenceless Jews in eastern Europe and unarmed Palestinian demonstrators in Gaza.
• Stephen Sedley is a British lawyer and visiting professor at the University of Oxford. He is a former judge of the court of appeal of England and Wales.
Geoffrey Bindman: The IHRA definition is poorly drafted and has led to the suppression of legitimate debateIn May 2016 the IHRA adopted a 38-word “non-legally binding working definition of antisemitism”. Appended to it is a list of illustrative examples of antisemitic behaviour “to guide the IHRA in its work”.
Unfortunately, the definition and the examples are poorly drafted, misleading, and in practice have led to the suppression of legitimate debate and freedom of expression. Nevertheless, clumsily worded as it is, the definition does describe the essence of antisemitism: irrational hostility towards Jews.
The 11 examples are another matter. Seven of them refer to the state of Israel. This is where the problem arises. Some of them at least are not necessarily antisemitic. Whether they are or not depends on the context and on additional evidence of antisemitic intent.
Clearly, hostility to Jews could be the motivation for criticism of Israel and the fact that Israel identifies itself as a Jewish state no doubt encourages antisemites to attack Jews through their association with Israel. It is equally clear, however, that the policies and practices of Israel, a sovereign state, must be open to criticism and debate.
While it remains without legal effect, the IHRA definition has been “adopted” by the UK government, and in turn by a number of public and local authorities and by universities and colleges. But all these bodies are bound by international and domestic law not to interfere with freedom of expression except where it is, as one authority says, “a direct or indirect call for violence or as a justification of violence, hatred or intolerance”. Universities and colleges are also bound to ensure freedom of speech by the Education Act 1986, section 43.
The Labour party’s new code of conduct on antisemitism does not set out all the IHRA examples as if they were rules set in stone (as they were never meant to be). The code seeks to establish that antisemitism cannot be used as a pretext for censorship without evidence of antisemitic intent. This is entirely in line with the recommendations of the all-party Commons home affairs select committee in October 2016 that the IHRA definition should only be adopted if qualified by caveats making clear that it is not antisemitic to criticise the Israeli government without additional evidence to suggest antisemitic intent.
Unfortunately the caveats were omitted when the definition was approved by the UK government. Far from watering down or weakening it, Labour’s code strengthens it by addressing forms of discrimination that the IHRA overlooked. For example, the definition omits any reference to discrimination against Jews, a key form of antisemitism.
The attacks on the new code, including those by some Labour MPs and a number of rabbis, are baffling. One has to wonder if all these people have read the code or indeed the IHRA press release. This omission only serves to protect Israel from legitimate criticism.
• Geoffrey Bindman is a QC, solicitor and visiting professor of law at University College London and London South Bank University
Jacqueline Rose: Hannah Arendt should be our guideNo definition is, or should be, sacred. Still less the examples attached to it. In the case of the IHRA definition of antisemitism, the examples were presented as “illustrations”. Yet it is the exclusion of these examples from Labour’s code that has unleashed anger against the party. Take the idea that it is antisemitic to deny “the Jewish people their right to self-determination, for example by claiming that the state of Israel is a racist endeavour”, one of these examples. It requires, at the very least, the most careful scrutiny. The Israeli Knesset recently passed a law making self-determination the sole prerogative of the Jewish people in Israel, and downgrading Arabic from its status as official language, thereby making a fifth of its population second-class citizens. Daniel Barenboim has always fervently supported the right of Jews to self-determination. But how, he asked, can there be “independence for one at the expense of the other”? This “racist” law made him ashamed to be an Israeli, he wrote. What it does not make him, surely, is antisemitic.
In the UK, the Jewish community does not speak with one voice. We should not assume that any one definition that gains predominance at a given time, or even majority support in many strands of the Jewish community, is therefore closed to ongoing discussion. Hannah Arendt has always been my guide on this topic. In her passionate, prescient warning after the Nazi genocide that the view of antisemitism as eternal Jew-hatred, a view that might seem to be so hideously confirmed by that genocide, was as dangerous as it was tempting. We must, she insisted, proceed historically. We must distinguish, for example, medieval Jew-hatred from racist antisemitic science that made possible the mass extermination of Europe’s Jews: “If we actually are faced with open or concealed enemies on every side, if the whole world is ultimately against us, then we are lost.”
Today the argument is different: that we are confronted with a new antisemitism which targets the Jews uniquely as a nation. This view is being mobilised to crush the global grassroots movement Boycott, Divestment and Sanction. Alongside the appeal to international law, BDS, however imperfect, is the only nonviolent protest on offer against the actions of the Israeli state towards the Palestinians. It is a view also being used to clamp down on any comparison of Israeli policies with apartheid. Compare again Barenboim: “It follows that [this law]is a very clear form of apartheid.”
We need to go on debating and talking, always alert to the possibility that any one definition, however well-intentioned, however designed to protect the Jews from the suffering and ravages of their own history, might be harnessed on the side of injustice.
• Jacqueline Rose is co-director of the Birkbeck Institute for the Humanities and co-founder of Independent Jewish Voices in the UK
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