EJJP submission to the EU Commission consultation on “strategy on combating antisemitism and fostering Jewish life in the EU”

Introduction

EJJP is the only progressive European Jewish umbrella organisation. We represent twelve Jewish groups in seven EU Member States, the UK and Switzerland. We are part of a broader network of progressive Jewish organizations, including some in the United States and Canada.

We are in agreement with the need to have a strategy to combat antisemitism and foster Jewish life in the EU. Our submission concerns the objective of combating antisemitism. We have serious reservations about the Commission’s roadmap in this respect.

The issue of antisemitism has in recent years become inextricably entangled with the right to criticise Israel. This has arisen largely because, since 2016, the big, communal Jewish organisations, supported by the Israeli government, have been actively promoting the International Holocaust Remembrance Alliance Working Definition of Antisemitism (IHRA WD) and its associated examples. The WD and the examples are worded in such a way as to create confusion between criticism of Israel and antisemitism, and are used by its proponents to claim that much fundamental criticism of Israel is antisemitic Our submission is in six sections.

A. Charter of Fundamental Rights

1. The roadmap quotes the Charter in an unbalanced way. It says “Moreover, Article 21 of the Charter of Fundamental Rights of the European Union provides, inter alia, that any discrimination based on religion or belief and race, colour, ethnic or social origin shall be prohibited”. That quote is absolutely justified, but in Article 11 the Charter also says “Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.” That is equally important and should also be quoted.

2. In 2016, High Representative Federica Mogherini, confirmed, “The EU stands firm in protecting freedom of expression and freedom of association in line with the Charter of Fundamental Rights of the European Union, which is applicable on EU Member States’ territory, including with regard to BDS actions carried out on this territory. Freedom of expression, as underlined by the case law of the European Court of Human Rights, is also applicable to information or ideas ‘that offend, shock or disturb the State or any sector of the population’. The EU rejects the BDS campaign’s attempts to isolate Israel and is opposed to any boycott of Israel.”

3. While the Commission has the right to its policy of opposing boycott of Israel, it also has the duty to acknowledge citizens’ right to advocate BDS, as Ms. Mogherini did in 2016.

B. Council Declaration (December 2018)

1. The Council Declaration makes this statement: “NOTING that antisemitism – including when disguised under the cover of political views – as well as Neo-Nazism are causing great concern to Jewish communities in several Member States,” “Political views” clearly refers to criticism of Israel.

2. The statement is justified, but nevertheless is seriously unbalanced because it does not acknowledge the justified concern of many people about the inverse. Attempts to suppress fundamental criticism of Israel can hide behind allegations of antisemitism just as easily as antisemitism can hide behind criticism of Israel. The Commission should acknowledge both possibilities.

3. People who are very critical of Israel have the right to express their views just as much as Jewish communities have the right to protection against antisemitism. But of course, the two groups are not mutually exclusive. There are many Jewish people who are critical of Israel.

C. IHRA Working Definition of Antisemitism

1. The Commission relies exclusively on the International Holocaust Remembrance Alliance Working Definition of Antisemitism and its associated “contemporary examples of antisemitism” as the means of judging what is or is not antisemitic. That is a grave error. The working definition is inadequate; the examples are a mixture of some that would be antisemitic under any circumstances and others that might or might not be depending on context, without differentiating between them; and some of the examples are heavily biased towards interpreting fundamental criticism of Israel and protest against Israeli policies as antisemitic. That there are no examples of Israel-related comments that aren’t antisemitic indicates the biased nature of the IHRA WD.

2. The Working Definition

The “working definition” consists of these two sentences:

“Antisemitism is a certain perception of Jews, which may be expressed as hatred toward Jews. Rhetorical and physical manifestations of antisemitism are directed toward Jewish or non-Jewish individuals and/or their property, toward Jewish community institutions and religious facilities.”

This is bewilderingly imprecise and fails the first test of a definition, which is to define. It is capable of being understood in different ways and therefore fundamentally unhelpful as a tool for judging whether a particular comment is antisemitic. Just two of the many questions that arise will suffice as illustrations: What is “a certain perception” supposed to mean? What is “may be expressed as hatred” supposed to include or exclude, since ‘may be’ implies ‘may not be’?

3. The Examples

There are 11 examples, seven of which refer to Israel. Two in particular lend themselves to interpreting fundamental criticism of Israel and protest against Israeli policies as antisemitic. Rigorous consideration of the context of a comment or protest can be a corrective against the bias, but is routinely not given when allegations of antisemitism are made.

3.1 The first example

This is “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 slippery logic of this statement defies clear understanding. It appears to say that claiming Israel is necessarily racist is the means of denying Jewish people their right to self-determination, but actually it doesn’t say that at all. It’s an e.g., meaning for instance, not an i.e., meaning that is to say.

In other words, the example is saying it is only one way of claiming Jews don’t have the right to self determination. It has no logical function in the example. Its only function appears to be the psychological one of making people wary of claiming Israel is racist, lest they be accused of antisemitism, even though it can be argued on empirical grounds.

The example also elides two completely different concepts of “self-determination”, i.e. cultural and territorial. What could be called Cultural self-determination, including for instance freedom of religion, freedom to practice rituals and customs providing they do not harm other people, and freedom to associate with like-minded people, is the right of everyone, including Jews. It is uncontroversial. It does not require a Jewish territory or state in order for Jews to practice it. It is practised by the 50% of the world’s Jews who choose not to live in Israel.

However, there is no such thing as the right to territorial self-determination, defined as governing a territory, possessed by people because of their religion or ethnicity. That right is only acquired by the population that has lived in a given territory over a prolonged period, and the whole population in the territory shares in the right.

By eliding the two concepts, the IHRA WD appears to confer unquestionable legitimacy on Zionism as the philosophy of Jewish territorial self-determination in Palestine. However, that is spurious because Jews comprised less than 5% of the population of Palestine at the time of the early Zionist settlement in the 1880s. Jews were still only one-third of the population at the time of the UN partition resolution in 1947, despite the years of Zionist immigration.

For those reasons alone, the philosophy of Zionism cannot be a necessary part of being Jewish, and therefore being antizionist cannot be synonymous with being antisemitic.

There are further reasons in the deep moral contradictions inherent in Zionist settlement in Palestine and the formation of Israel. Zionism was a small minority ideology in its early days (and remained so for many years). Nevertheless it was an understandable response to the centuries of European antisemitism. The need for a response became acute after the trauma of the Holocaust because the surviving European Jews undoubtedly needed sanctuary, but that didn’t change the fact that the right to self determination in Palestine belonged to the big majority indigenous population of Muslim and Christian Palestinians.

The pre-eminent event for Palestinians in the formation of Israel was the Nakba (catastrophe), the exodus of nearly 90% of the Palestinians from the areas conquered by Zionist and later Israeli forces in the war of 1947-49. About half were expelled at gunpoint and half fled in fear. Massacres occurred in several of the expulsions. The central estimates by historians is an exodus of 700,000 – 750,000 people. None were allowed to return by the Israeli government. They and their children and grandchildren are today’s Palestinian refugees.

If the Genocide Convention had been in force at the time, the Nakba could arguably have been called a genocide. The political significance of the Nakba was also profound. It changed a small Palestinian majority in the area into a large Jewish majority. That created Israel as a Jewish state in fact as well as in name.

For these reasons, being antizionist is a justified response to what was done to Palestinians. Telling people that it is antisemitic because it violates an example in the IHRA WD is a gross violation of their right to freedom of expression. Telling Palestinians it is antisemitic is a gross insult.

3.2 The second example

This is “applying double standards by requiring of it {Israel} a behaviour not expected or demanded of any other democratic nation.” This statement implies that Israel, being democratic, behaves like established democracies, and so should be treated in the same way. But, of course, that implication is false.

Israel is a very flawed democracy in that it maintains a systematic policy of racist discrimination against the 20% of its citizens who are Palestinian. Since 1967, it has also been illegally occupying and settling the 22% of British Mandate Palestine that it did not conquer in 1948. It has created an apartheid system there, favouring its own settlers at the expense of the indigenous Palestinians.

In an Orwellian twist of language, this example is routinely used to make allegations of antisemitism against people who advocate Boycott, Divestment and Sanctions as protests against Israeli policies, on the grounds that they are demanding higher standards of behaviour from Israel than from other democracies. In reality, people are trying to hold Israel to the same standards.

4. Attempts to ban protest meetings where BDS and/or antizionism will be advocated have become common, as have allegations against individuals who have advocated BDS or antizionism. The justification routinely given is that one of these two examples has been violated. That is one of the most deleterious effects of the adoption of the IHRA WD.

5. Yet there have been at least 16 rulings by courts of law in various countries that BDS advocacy is legal and is not antisemitic. (See section D.2.2 for details.)

6. By relying exclusively on the IHRA WD as the means of judging whether a particular comment or event is antisemitic, the Commission has unwittingly misdirected people towards false beliefs about antisemitism. In so doing, it has discouraged them from exercising their right to free speech.. The Commission should therefore modify its exclusive reliance on the IHRA WD.

D. Handbook for the practical use of the IHRA Working Definition of Antisemitism (January 2021)

Rather than being a corrective for the inadequacy of the definition and the bias against fundamental criticism if Israel in some of the examples, it unfortunately amplifies the bias.

1. The Examples

1.1 This section of the Handbook presents 11 real-world incidents as illustrations of how each of the 11 “contemporary examples of antisemitism” has been used successfully to identify antisemitism. The methodology is unsound because no incidents are presented of an allegation based on an example being rejected because the example was misapplied. This will influence users of the Handbook to expect allegations to be valid, whereas they should keep an open mind about any given allegation.

1.2 This situation is unfair to people against whom allegations are made because they are likely to face preconceptions of guilt. It is also unfair in the wider sense that people critical of Israel may well be inhibited from expressing their views for fear of being accused of antisemitism and facing serious consequences in their employment or in the political parties to which they belong.

1.3 In fact, allegations are often rejected after investigation. In the UK Labour Party, for example, between April 2018 and June 2019, 18% of allegations were found to be without merit, and If half the allegations still under investigation at the end of the period were also without merit, then the figure would have risen to 49%.

2. The Judiciary

2.1 This section of the Handbook is a generalised discussion of how police, judges and prosecutors can use the IHRA WD to identify incidents and crimes as antisemitic. However, the section omits reference to the many court decisions in recent years that have ruled in favour of BDS advocacy.

2.2 There have been 17 rulings by courts of law in various countries that BDS advocacy is legal and is not antisemitic. (This includes the Harvard Law School Review opinion that comes to the same conclusion.) There are also more than 80 recorded cases in the same countries of regional and national legislatures passing resolutions to that effect. There are literally hundreds of cases of local authorities, pension funds, trade unions and universities practicing BDS in procurement, investment and curtailing joint activities with Israeli institutions. (See BDS National Committee data at: https://visualizingpalestine.org/collective-action-timeline#timeline) .

2.3 This omission is a major failure in a handbook that purports to offer guidance on the use of the IHRA WD in identifying antisemitic comments, decisions and events. The Commission shares responsibility for this failure by virtue of having sponsored and published the Handbook.

3. Recommendations regarding funding programmes

3.1 On the face of it the concept is sound, but the specific recommendations reveal a serious problem. They include funding for “programmes against antisemitism based on and disseminating the IHRA Working Definition of Antisemitism”, and “Control mechanism to avoid funding for anti-Semitic groups and projects.” The funding recommendation obviously entails all the weakness and bias of the IHRA WD in defining antisemitism.

3.2 The denial of funding recommendation is insidious because it is directed not only at specific projects, but at groups themselves. It refers to “anti-Semitic groups” without seeking to define them, so the question necessarily arises of how the funding authorities are supposed to know if a group is anti-Semitic. It is only on the far-right fringe of society that neo-Nazis and other neo-fascist groups openly declare themselves as antisemitic, and some of them try to hide it. There are very few such far-right groups. Therefore, it is all too likely that the funding authorities will interpret this recommendation as denying funding to all groups that express their legal right to support BDS or question Zionism, and even to any group that does not positively support the IHRA WD.

3.3 That would contravene the safeguards for the rights to freedom of expression and assembly provided by Articles 10 and 11 of the European Convention on Human Rights, which have been widely interpreted as including prohibition of denying public awards or funding.

E. Jerusalem Declaration on Antisemitism

1. EJJP supports the Jerusalem Declaration as providing a far better definition of antisemitism than the IHRA WD. Ideally it should replace the IHRA WD in the Council Declaration, or be adopted alongside it in order to provide a clear means of judging whether any given comment or event is antisemitic.

2. The framers of the Declaration are an international group of eminent academics in the fields of Holocaust history, Jewish studies, Middle East studies and philosophy. The Declaration is endorsed by more than 200 scholars from several countries. The framers and endorsers do not all share the same political views and are not seeking to promote a partisan political agenda.

3. The JDA consists of the preamble, the definition, general guidelines, examples of comment on Israel and Palestine that, on the face of it, are antisemitic, and examples of comment on Israel and Palestine that, on the face of it, are not antisemitic.

• The definition states “Antisemitism is discrimination, prejudice, hostility or violence against Jews as Jews (or Jewish institutions as Jewish).” This is precise and not open to misinterpretation.
• The general guidelines provide historical context, identify the similarities between antisemitism and other forms of racism and the particularity of antisemitism, identify forms antisemitism can take, and specify that Holocaust denial or minimisation is always anti-Semitic.
• The two sets of Israel/Palestine related examples provide a basis for differentiating logically between legitimate criticism of Israel and antisemitism.
• The guidelines support the legitimacy of criticising Zionism, fundamental criticism of Israeli policy, and advocacy of Boycott, Divestment & Sanctions (BDS) in protest against Israeli policy.

4. While EJJP would disagree with one or two of its formulations, the JDA is a sound and fair-minded document. It is consistent with the right to free speech, which is protected by Article 10(2) of the Convention on Human Rights, under which public authorities are under a positive obligation to create a favourable environment for participation in public debates for all concerned, allowing them to express their opinions and ideas without fear, even if these opinions and ideas are contrary to those defended by the official authorities or by a large part of public opinion.

F. Recommendations to the EU Commission on its strategy to combat antisemitism

• The Commission should explicitly refer to the protection of freedom of expression in its strategy, such as stated in the EU Charter for Fundamental Rights, Article 10 and 11 of the European Convention on Human Rights and the ECtHR’s case law.

• The Commission should modify its exclusive reliance on the IHRA WD and consider referring to other tools to monitor antisemitism, such as the Jerusalem Declaration on Antisemitism.

• The Commission should stop the promotion of the Handbook for the Practical use of the IHRA Working Definition of Antisemitism, and should not encourage the use of the IHRA WD for funding-related purposes.

5 July 2021