Edging towards censorship

Image of a mock apartheid wall by the student-led BDS campaign at the University of Manchester on 3 March 2017 [BDS Campaign University of Manchester/Facebook]

Defining Anti-Semitism

By Stephen Sedley, LRB
May 04, 2017

Shorn of philosophical and political refinements, antisemitism 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 antisemitic are not new. What is new is the adoption by the UK government (and the Labour Party) of a definition of antisemitism which endorses the conflation.

In May 2016 the International Holocaust Remembrance Alliance, an intergovernmental body, adopted a ‘non-legally-binding working definition of antisemitism’:

‘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.’

The IHRA definition is purposelessly  vague, allowing perceptions of Jews which fall short of expressions of racial hostility to be stigmatised as antisemitic

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 antisemitism 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 antisemitic. 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-Semites 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.

the overriding legal duty of public authorities is to preserve freedom of expression

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 antisemitic.

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 antisemitism 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.’  [When Israel is exposed on the international scene it is thus that Judaism is exposed at the same time.] 

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 antisemitism’). 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 antisemitism. 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.

Steven  Sedley is a former judge of the Court of Appeal of England and Wales. He is currently a visiting professor at the University of Oxford