Stephen Sedley, former Judge at the Court of Appeal Criticises the IHRA Definition of anti-Semitism

Stephen Sedley, former Judge at the Court of Appeal Criticises the IHRA Definition of anti-Semitism

 

 

 

 

 

 

 

 Post-Blog

No sooner had the European Union Monitoring Committee
Definition of Anti-Semitism been scrapped by its successor, the Fundamental Rights
Agency, in 2013, [EU drops its
‘working definition’ of anti-Semitism
] than it resurfaced in
the guise of the International Holocaust Remembrance Alliance definition of anti-Semitism.  First recommended by the Home Affairs Select Committee
in its Report
Anti-Semitism in the UK it was adopted
by Theresa May on behalf of the government.

 Jeremy Corbyn, oblivious to the fact that he
has been attacked as an ‘anti-Semite’ once again decided to run up the white
flag.  Whenever the word ‘anti-Semitism’
is used Corbyn runs for the hills.

There is a very simple definition of anti-Semitism drawn
up by Brian Klug of Oxford University. 
In his article in
Patterns of Prejudice [Vol. 37, №2, June 2003, Routledge The collective Jew: Israel and
the new antisemitism
  he defines anti-Semitism as ‘a form of hostility towards
Jews as Jews, in which Jews are perceived as something other than what they are
.’ The ‘Jew’ towards whom the antisemite feels hostile is not
a real Jew at all. In short anti-Semitism can be defined as ‘hostility to Jews’.
The International Holocaust Remembrance Alliance consists of 31 countries including Poland and Hungary, both of which have anti-Semitic governments which are also pro-Israel
There is no mystery to defining  anti-Semitism.  It takes all of 20 words.  But the problem for the Zionists and
supporters of Israeli Apartheid was how to concoct a definition that embraced
within the definition of anti-Semitism, criticism of Israel.  As most people know, the standard retort of Israel’s
defenders to criticism of Israel is that you are an anti-Semite.  You are not criticising Israel because it is
a vicious, nasty little state that practices apartheid and embodies racial discrimination
in its structure as a ‘Jewish’ state, because it is a Jewish state.  It’s like saying that people used to
criticise Nazi Germany because you hated the Germans or that people criticised
Apartheid because you were anti-White.
Sir Stephen Sedley, the only radical who has ever
been a judge in the Court of Appeal, has penned an elegant article in London
Review of Books.  It is well worth
reading.
Sir Stephen Sedley – former Court of Appeal Judge
Defining
Anti-Semitism
 or Attacking Freedom of Speech?
First printed in the London Review of Books
Stephen Sedley
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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