Stop criticising Israel, or else!: Notes on Legal Form and Legal Legitimacy: The IHRA Definition of Antisemitism as a Case Study in Censored Speech
by Rebecca Ruth Gould.
Please use this link for formal referencing: http://journals.sagepub.com/doi/full/10.1177/1743872118780660
Rebecca Ruth Gould’s Legal Form and Legal Legitimacy: The IHRA Definition of Antisemitism as a Case Study in Censored Speech helpfully illuminates profound problems stemming from the IHRA definition and I draw on it here in the hope of helping to abolish the myth that no harm would come from its adoption.
Amid the furore regarding the definition, great pressure is being brought to bear on the Labour Party to agree to its adoption. Paul Mason, Anas Sarwar, Aaron Bastani, Peter Tatchell, John McDonnell and others suggest that the party should nod it through and hope the unwanted noise about anti-Semitism will go away. Mason wrote: ‘Its flaws and ambiguities – as identified by legal thinkers such as Stephen Sedley and Geoffrey Bindman QC – should be addressed through clear legal guidance and active engagement with the IHRA itself.’
Surely, Mason must know that Israel will never give up its war on Palestine solidarity? For as long as it continues its atrocious war crimes against the Palestinian people it will continue to employ all the methods available to it as a state actor, backed by the governments of the USA and UK, to silence its critics.
The New Statesman (24thAugust-4thSeptember, 2018 – the same issue in which Jonathan Sacks compares Jeremy Corbyn to Enoch Powell and equivocates about Israel’s new Nation-State Law) – has published a misleading leading article entitled A reckoning for Labour claiming,‘If Labour is to salvage its moral credibility, it should begin by adopting the full International Holocaust Remembrance Alliance guidelines on anti-Semitism, as MPs and trade union leaders have demanded. There is no evidence that doing so would prohibit legitimate criticism of the Israeli government’s politics …’[my emphasis].
The definition was intended for data collectors writing reports about anti-Semitism in Europe. It was never supposed to curtail speech on campus …
But some right-wing Jewish groups, and individuals, have tried to overstep the bounds of the clarification by filing Title VI cases arguing that the Boycott, Divestment and Sanctions movement against Israel, educational programs about the occupation of the West Bank, and anti-Israel classroom texts and speakers transgressed the definition and were evidence of a Title VI violation. All the cases lost.
Then these groups urged the University of California system to adopt the State Department definition. It didn’t.
Now they want to enshrine the definition into law so that the Department of Education would consider anti-Israel speech when it assesses a Title VI violation.
What’s next? Should Congress define what speech is Islamophobic? Anti-Palestinian? Racist? Anti-white? How about defining “anti-United States” speech? We could dust off the files of the House Un-American Activities Committee.
Legitimate criticisms of Israeli policies have already been impacted. Gould cites examples of British universities which have responded to quasi-legal threats from the Israeli Embassy and Education Minister, Jo Johnson, by banning events and abrogating critical speech. She rigorously examines the consequences of ‘adopting’ the definition, analysing, for example, how the IHMA flawed definition of anti-Semitism contributes to a climate of fear in universities, Labour constituency parties, public bodies, NGOs and quangos.
Gould’s paper provides the ‘clear legal guidance’ asked for by Paul Mason and makes a powerful argument against ‘adoption’ of the IHMA document in any circumstances.
‘This article examines the uses that have been made of the definition, along with the guidance document that accompanies it, in concrete institutional contexts since its “adoption” by the UK government in December, 2016. (“Adoption” is in quotation marks because the process through which this took place is itself deserving of scrutiny …)’
She points out that ‘making the definition into a synecdoche for the entire text has enabled its proponents to conceal the fact that the UK government adopted only the definition, without taking a formal position on the examples.’
Gould, who sees the IHRA document as a threat to civil liberties, is alert to the danger of special interest groups acting as proxies for the state by using such a quasi-legal document ‘ … borrowing from the coercive force of the law, while lacking democratic legitimacy.’
Since the definition’s ‘adoption’ by Prime Minister Theresa May, at least five universities identified by Gould have cancelled or otherwise censored events, even without legal ratification: the University of Manchester, the University of East London, the University of Central Lancashire, the University of Essex and the University of Exeter. The list would be longer if undocumented cases of cancellation or censorship of an event were factored in. The relatively weak opposition that IHRA-based censorship has faced within the academic legal community motivated Gould to write her paper. ‘Having been allowed to function as if it were a law,’ she writes, ‘the definition has increased the personal and professional risks entailed in speaking and writing critically about Israel.’
Gould experienced this first hand.
‘On February 15, 2017, the University of Bristol, where I was employed at the time, received a complaint against an article I published in 2011, while working as a post doctoral fellow at the Van Leer Institute in Jerusalem and residing in Bethlehem, on the opposite side of the Green Line. Entitled ‘Beyond Antisemitism’[ii]the article preceded my arrival in the UK by four years. The organisation that issued the complaint demanded that I be investigated for anti-Semitism and dismissed from my position if I refused to retract the article’s argument that allegations of anti-Semitism are used to deflect criticism of the Israeli occupation.’
The University of Bristol defended Gould’s article, describing it as ‘scrupulous’ in arguing that the Holocaust should not be employed for ‘political ends’, including justifying occupation and mistreatment of ‘Palestinians in Israel.’
Another example cited is a letter dated 22ndFebruary, 2017, to the Director of Student Experience at the University of Manchester from the Consellour for Civil Society Affairs at the Embassy of Israel. The university was told that two Israeli Apartheid Week events ‘breach the IHRA working definition of anti-Semitism and its guidelines that were recently adopted by the UK government’ and were ‘in clear breach of the letter of guidelines (sic) issued on February 13thby Minister Jo Johnson.’[iii]
Gould points out:
‘ … the only direct state involvement was from Israel, not the UK, yet the legal apparatus of the British state was pervasive, dictating what could and could not be said, and what needed to be done to bring subversive speech into proper political alignment. In the case of no-platforming, even in the absence of a clear legal mandate, the university interpreted the law in such a way as to suggest the anti-Israel events had suddenly become unlawful within the UK.’
Gould explains how the definition ‘also risks an interpretation whereby support for the one-state option for Israel/Palestine within a state not defined through its religious identity might be classified as anti-Semitic.’ And she observes, ‘Among its many aims, the IHRA document seeks to clarify and codify Israel-critical speech as a form of hate speech.’ ‘Wielded by the wrong interpretive hands, a definition that was drafted to protect Jews has become an instrument for persecuting Palestinians and Jewish anti-Zionists,’ she concludes.
The IHMA document and the examples of its application provided in Gould’s paper need to be seen against the background of Israeli ‘hasbara’ (propaganda) and its Lawfare strategy. [The latter included an attempt to sue the singer Lorde for ‘hurt’ when she responded to the Boycott, Divestment and Sanctions call from Palestinian civil society by pulling out of a gig in Israel.]
Calls were made for an investigation into the extent of improper interference by Israel in British politics following the Al-Jazeera documentary ‘The Lobby’; as Corbyn wrote to Teresa May “members of Parliament and the public will be concerned at this evidence of attempts to undermine the integrity of our democracy.Improper interference in our democratic politics by other states is unacceptable whichever country is involved.”
Norms and principles of international law and the UN have long been bypassed by Israel. Extending this into other states by attempting to supplant law with quasi-legal documents has ramifications. There are grave implications for the right to freedom of debate and political activism including and beyond that which is critical of Israel. A precedent could be set with far-reaching effects. We might consider, for example, how campaigns against those countries which persecute LGBTQ people might be affected should a quasi-legal definition of racism be adopted which outlawed criticism of a Commonwealth state.
The situation we find ourselves in is unprecedented. As someone involved in campaigning for Palestinian human, civil and national rights for many decades, I have witnessed a shift in public opinion in recent years due to the truth emerging about the plight of Palestinians and awareness-raising work of organisations such as Medical Aid for Palestinians, the Palestine Solidarity Campaign and the Palestine Return Centre. Israel’s carpet-bombing of Gaza and daily war crimes causing thousands of civilian and child deaths came under close public scrutiny for the first time and concern has risen.
Public Opinion on the Move in Britain – … during the recent conflict the number siding with the Palestinians has risen to a nominal all-time high of 30%, while sympathies for the Israelis has fallen to a low of 12% … Labour voters have moved the most: 41% are now sympathetic toward the Palestinians … among Conservative voters has grown by 8%.
Jeremy Corbyn was one of the few British MPs, along with Richard Burden, Andy Slaughter and the late Sir Gerald Kauffman, who gave voice to these concerns. Not all were members of the Labour Party. As Al Jazeera’s expose of the Israeli Embassy’s machinations showed, there was an attempt to ‘take down’ Foreign Office Minister, Sir Alan Duncan. https://www.independent.co.uk/news/uk/politics/israeli-embassy-official-take-down-pro-palestinian-mps-video-sir-alan-duncan-shai-masot-maria-a7515511.html
Even before the election of Jeremy Corbyn as Labour Leader, Israel had ramped up its hasbaracampaign, identifying London as the hub of solidarity with Palestine.
In December, 2010, the Tel Aviv-based Reut Institute called London the ‘Mecca of delegitimization,’ and weeks later a report by the Jerusalem Center for Public Affairs stated ‘Britain has become the main leader of an international effort to deny Israel’s right to exist in its current form.’ The Reut Institute called for an Israeli campaign of ‘sabotage’ and ‘attack on ‘delegitimizers — groups working for justice in Palestine — The Electronic Intifada reported.[v]
It misses the point that apartheid South Africa also once faced a global “delegitimization network” but that this has now completely disappeared. South Africa, however, still exists. Once the cause motivating the movement disappeared — the rank injustice of formal apartheid — people packed up their signs and their BDS campaigns and went home.
Instead, Reut recommends to the Israeli government an aggressive and possibly criminal counter-offensive. A powerpoint presentation Grinstein made to the recent Herzliya Conference on Israeli national security actually calls on Israel’s “intelligence agencies to focus” on the named and unnamed “hubs” of the “delegitimization network” and to engage in “attacking catalysts” of this network. In its “The Delegitimization Challenge: Creating a Political Firewall” document, Reut recommends that “Israel should sabotage network catalysts.
Jeremy Newmark, then chief executive of the Jewish Leadership Council, (subsequently deposed for alleged corruption) said: ‘Together with many other communal agencies we contributed heavily to the compilation of the Reut report.’[vi]
The Jewish Chronicle reported:
It (the Reut Report) calls on British Jews to establish a grassroots movement to take on Israel’s opponents and persuade liberal opinion that much of the activity of the “delegitimisers” is driven by UK-based Islamists and the hard-left.
This so-called Red-Green Alliance is seen as particularly influential in the UK capital through the work of the Palestine Solidarity Campaign. The authors conclude that the fightback needs to begin in London, which acts as the “hub of hubs” of the movement to undermine Israel.[vii]
The appointment of Mark Regev as Israel’s Ambassador to the UK was a sign of how seriously Israel was worried that it was losing its grip on the Labour Party and on public opinion in Britain. Regev, who is seen in attendance at Labour Party Conference with members of the Jewish Labour Movement, is an experienced spin-doctor who cut his teeth on packaging the 2014 massacre in Gaza as a noble enterprise, quickly got to work to implement the recommendation of the Reut Report.
Israel’s Lawfare project was designed to thwart international law and norms, to silence and traduce Palestinians and their supporters. Of all its forms, the egregious accusations levelled against pro-Palestinian activists – especially those who happen to be Jewish and Black and members of the Labour Party – is by far the most insidious. And, as Gould’s paper shows, all this is being widely applied without legal legitimacy.
Of course, we are supposed to believe that the Labour Party didn’t have a problem of anti-Semitism until it elected a Leader who supports the human, national and civil rights of the Palestinian people. Historically, the Party has been a bastion of Zionism, from Balfour to Blair. Now, simply pointing out that exclusive focus on anti-Semitism within the party is a barrier to tackling this vile form of racism in society as a whole, may trigger a complaint to the Compliance Unit, or whatever it’s called these days, and possible suspension or expulsion from the party without due process. Wake up Paul Mason et al!
© Diane Langford August 2018
[ii]Rebecca Gould, Beyond Antisemitism, Counterpunch 18(19) (2011 Available at https://www.researchgate.net/publication/2283222693_Beyond_Anti-Semitism.
Rebecca Ruth Gould has generously provided an open access link for informal sharing from person to person, which I will provide for friends on request.