Protecting free speech on Israel in the European Parliament

discussion in European Parliament committee room

The European Jewish Association’s plan to create a document-signing operation

In November last year, the European Jewish Association announced a plan to ask European political parties to pledge support for the IHRA definition of antisemitism and opposition to BDS. European Jews for a Just Peace believes the plan is contrary to the fundamental right to free speech, in particular to the right of MEPs and political parties to criticise Israel and to support legal civil society activities designed to put pressure on Israel to come into compliance with international law.

The EJA’s 2018 annual conference website (https://www.ejassociation.eu/events/eja-annual-conference-24-25-april-2018/), contains details of the “demands” in the plan.

Political parties and their leadership must sign up to the full IHRA definition of Anti-semitism.

All political parties pledge to exclude from government parties or politicians that espouse anti-Semitism as defined by the IHRA definition.

All political parties to pass, in accordance with their respective rules of procedure, binding resolutions that reject BDS activities as fundamentally anti-Semitic.

We believe the plan also includes two further aspects. The first is asking parties and parliamentary candidates to sign a document supporting the IHRA definition and opposing BDS. The second is forming committee of member states’ Special Representatives for combating antisemitism, which would include the Commission’s Coordinator for Combating Antisemitism, who would report progress to the Council of Ministers.

The pressure for political parties and parliamentary candidates to conform, or risk being called antisemitic, would be severe.

In order to understand why this plan, if successful, would inhibit free speech on Israel, it is necessary to look carefully at the IHRA definition of antisemitism, and BDS.

(A) IHRA working definition of antisemitism

(1) The International Holocaust Remembrance Alliance consists of representatives of a number of countries. It was founded in 2000 to commemorate the holocaust and thereby prevent it fading from public memory. It was later extended to commemorate other genocides. However, in June 2016, the IHRA adopted a controversial “working definition” of antisemitism that had never been used officially and had in fact been removed from the website of the European Fundamental Rights Agency.

(2) The document was written, years before the IHRA took it up, as a tool for gathering data on potentially antisemitic incidents on a consistent basis. The intended purpose of the document is indicated by the conditional wording relating to the examples, ire. “may serve as illustrations” and “could, taking into account the overall context…” In 2017 the main drafter, Kenneth Stern, testified to the US Congress that the document is not suitable as a means of deciding whether any particular comment is antisemitic. (URL below). The newly labeled IHRA document is now being misused by the established pro-Israel Jewish leadership for that purpose It is written in such a way that serious criticism of Israel can be automatically seen as antisemitic, the intention of its proponents evidently being to discourage open debate on Israel-Palestine.

(3) There is a considerable body of legal opinion in the UK on how the document inhibits free speech on Israel, undermines the fight against genuine antisemitism by conflating it with criticism of Israel, and poses risks to public bodies that try to use it. We cite Leading Counsel Hugh Tomlinson’s Opinion, Leading Counsel Geoffrey Robertson’s Opinion, an article written by former Lord Justice of Appeal Stephen Sedley, and resolution no. 3 at Liberty’s 2018 AGM. At the end of this submission there are URLs to all four documents.

In this submission, we will concentrate on the linguistic confusions in the document, their effects and what lies behind them. The document is attached.

(4) The wording of the document creates massive uncertainty as to what criticism of Israel would be legitimate and what would be antisemitic, thereby significantly undermining people’s confidence in criticizing Israel. The effect on freedom of speech on Israel-Palestine is chilling. Two key sentences cause the uncertainty:

(4a) The first is the basic definition “Antisemitism is a certain perception of Jews, which may be expressed as hatred toward Jews “

It does not clearly define what it purports to define. What does “certain perception” mean? In fact, the sentence could be read as implying that prejudicial remarks short of hatred are not antisemitic, which would be perverse. Conversely, it could create the fear that an innocent remark could be seen as hatred of Jews.

(4b) The second, in the preamble to the examples, is even more problematic.”However, criticism of Israel similar to that leveled against any other country cannot be regarded as antisemitic.” It is impossibly ambiguous.

It is in the negative. It sets up a category of statements that aren’t antisemitic, but the category of “similar” is very imprecise. Not only that, the absence of a positive category leaves people uncertain about what else might or might not be judged antisemitic.

There is further ambiguity in the sentence. Does it mean that anyone criticising Israel can be regarded as antisemitic unless he or she has also criticized other countries in the same way? Even worse, does it mean that the person can be regarded as antisemitic unless he or she criticises other countries in the same way at the same time? Either way, it would discourage people from exercising their right to criticise Israel.

In any case, what does “similar” mean in this context? What other countries have been belligerently occupying another people’s land, illegally settling it and taking its natural resources, creating an apartheid-like system of unequal rights, and using violent and sometimes lethal means to repress resistance, for 50+ years?

The sentence also creates an internal contradiction in the document. It contradicts the immediately preceding sentence in the preamble and the last bullet point in “contemporary examples of antisemitism”. If Jews are not collectively responsible for the actions of Israel (as surely they are not), then how can it be antisemitic to single out Israel, whether the criticism is well or ill founded ?

There are of course many other countries that abuse the human rights of their own citizens, and they are regularly criticised. However, no one is required to choose between concerning himself with all cases of abuse or none. That would be a limitation on freedom of speech.

(5) The “examples” attached to the definition

The 11 “examples” of antisemitic statements are a mixture of eight remarks that would clearly be antisemitic, two that normally would not be antisemitic but might be depending on the context and precisely what was said, and one that might or might not be, depending on what comparisons were made. They do not, however, reduce the ambiguity and uncertainty of the definition, but rather accentuate it by setting up straw men of extremely antisemitic remarks but not balancing them with examples of legitimate criticism of Israel.

(6) We believe this example requires specific examination.

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

Since the selected method of denial is an e.g., not an i.e., the sentence, strictly speaking, means denial of the right for any reason, not just because Israel is claimed to be racist. That would primarily mean questioning the validity of Zionism, yet Zionism is not part of the Jewish religion, or of being Jewish, in the normal sense. It is an ideology of control over land in the real, physical world. Therefore, people have the right to express an opinion about it no matter how strongly some Jews believe it has become part of being Jewish. That is particularly true of Palestinians, who have been severely disadvantaged by it.

Despite the meaning of the e.g., the “racist endeavor” phrase does serve to associate serious criticism of Israel with accusations that Israel is racist, which most people would be loath to make for fear of being called antisemitic. However, it is arguable in view of the Nakba and the racist aspects of Israel’s treatment of its Palestinian citizens. Therefore, people have the right argue it.

(7) The essence of the issue of antisemitism vs. criticism of Israel is that criticism of Israel isn’t antisemitic provided it is worded specifically about Israel or the Israeli government, and not about Jews. As long as there is no slippage from Israel to Jews or Jewish in the language used, criticism of Israel should be taken at face value. Some criticisms might be factually mistaken, but still not antisemitic.

(8) In the UK. that is specifically recognised in law. While being Jewish is a protected characteristic in the Equality Act, belief in Zionism is not. That was confirmed by an Employment Tribunal in Fraser vs. University & College Union in 2013, which ruled that neither belief in Zionism nor an attachment to Israel are protected characteristics.

(9) The European Convention on Human Rights states that public authorities cannot interfere with freedom of expression unless there is “a direct or indirect call for violence or as a justification of violence, hatred or intolerance”. In addition to the “negative obligation”, they are also 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, or even if those opinions and ideas are irritating or offensive to the public”.

European Parliament chamber

(B) BDS

(1) In 2005, Palestinian civil society organisations called or boycotts, divestment and sanctions (BDS) as a form of non-violent pressure on Israel. The BDS movement was launched by 170 Palestinian unions, political parties, refugee networks, women’s organisations, professional associations, popular resistance committees and other Palestinian civil society bodies. Inspired by the South African anti-apartheid movement, the Palestinian BDS call urges nonviolent pressure on Israel until it complies with international law.

(2) The B and the D refer to actions by civil society. B is boycotting entities that are involved in the occupation or in denial of Palestinian human rights in Israel. D is persuading financial institutions to withdraw investment from Israeli companies, and all companies involved in the denial of Palestinian human rights. The S refers to actions that can be taken by governments, within the law, to apply pressure on Israel to come into compliance with international law. In this paper, we will concentrate on the B and the D because the activity so far has been in civil society, which has therefore attracted the public controversy.

(3) BDS is called antisemitic by strongly pro-Israel groups, but in fact it is a perfectly legal, non-violent strategy to enable civil society actors to bring pressure on Israel to come into compliance with international law. It is directed at Israel, not at Jews. The fact that Israel was created by Zionists as the Jewish state, and is represented by the government as such, state does not make it immune from civil society pressure if people think its policies are immoral.

(4) Despite being initiated in an organised way, BDS it is not an organisation or a unified movement or strategy. The B and the D now refer loosely to a variety of legitimate actions by different, independent actors in different legal positions. For example:

(4a) Individual consumers, public companies, private companies and other non-government bodies are entitled to decide what to buy or not to buy, and where to invest or not to invest.

(4b) Pension funds are entitled to choose what to invest in or not to invest in, providing their choices are judged not to adversely affect investment performance.

(4c) Government bodies are constrained by the World Trade Organisation Government Procurement Agreement, under which they cannot discriminate against products or services on the basis of “the country of production…provided that the country of production is a Party to the Agreement in accordance with the provisions of Article IV”.

They can, however, discriminate against Israeli products from the occupied territories because the occupied territories are not part of Israeli sovereign territory.

(4d) Government bodies can also discriminate against a company in purchasing products or services, “Where there is supporting evidence of…final judgments in respect of serious crimes or other serious offences… or professional misconduct or acts or omissions that adversely reflect on the commercial integrity of the supplier”. In practice, many companies have provided products or services related to the occupation. Some would pretty clearly be judged to be “professional misconduct” in relation to international law, others less so, and some would probably not be judged misconduct at all. A company barred from tendering by a public body could challenge the decision in court.

(5) The legitimacy of BDS was recognised by European Commission High Representative Mogherini on 15 September 2016. She said: “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.”

(C) Conclusion

We believe that adoption of the HRA document by the parliament last year as part of a longer resolution about fighting antisemitism was an error, but at least it was only declarative which limits the damage it could do to freedom of expression and open debate about Israel/Palestine. The European Jewish Association’s declaration signing plan would,if successful, magnify the ill effects of the adoption.

We also believe it would unintentionally do a disservice to combating antisemitism. Many people, unaware of the sharp divisions about Israel within the Jewish community, would see the association of criticism of Israel with antisemitism as special pleading for Israel by the Jewish community as a whole. They would resent it, and that would serve to encourage antisemitic attitudes.

The European Union should not lend itself to the plan. Political parties and their parliamentary groups should not sign the declaration and should advice their candidates for parliament not to sign. Most important, the European Commission should not allow the Coordinator for Combating Antisemitism, or any other official, to give the Commission’s blessing to the plan by joining a committee which will monitor its progress. That would make it doubly difficult for parliamentary candidates and parties not to sign. We believe adoption would also have severe consequences for resolving the Israeli-|Palestinian conflict. The more widely it is adopted, the greater will be its effect in repressing criticism of Israel, and the more will right-wing Israeli governments be emboldened to continue acting as if they are above the law.

The Executive

European Jews for a Just Peace

24 February 2019

Aattached:

IHRA document, with the three examples underlined that might or might not be antisemitic, depending on the context (A,5 & 6)https://freespeechonisrael.org.uk/wp-content/uploads/2017/03/TomlinsonGuidanceIHRA.pdf

https://prc.org.uk/upload/library/files/Anti-Semitism_Opinion_03.09.18eds.pdf

https://www.lrb.co.uk/v39/n09/stephen-sedley/defining-anti-semitism

https://www.libertyhumanrights.org.uk/sites/default/files/resolutions%20passed%202018.pdf

https://judiciary.house.gov/wp-content/uploads/2017/10/Stern-Testimony-11.07.17.pdf