By Stuart Littlewood
The enemies of free speech were having a whale of a time – until this week. Britain’s political parties, further education establishments and BDS (Boycott, Divestment and Sanctions) groups had been bludgeoned into silence on Israel’s crimes by a bogus definition of anti-Semitism formally adopted and deployed by government, police and assorted pro-Israel pimps, stooges and creeps.
Their bully-boy tactics have now been upset by Free Speech on Israel, Independent Jewish Voices, Jews for Justice for Palestinians and the Palestine Solidarity Campaign, who asked top legal experts for an opinion on this sinister farce.
Wilfully flawed definition
The root cause was been an exceptionally silly, non-legally binding working definition of anti-Semitism issued by the International Holocaust Remembrance Alliance (IHRA) as follows:
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 toward Jewish or non-Jewish individuals and/or their property, toward Jewish community institutions and religious facilities.
The House of Commons Home Affairs Select Committee accepted the IHRA definition subject to the inclusion of two caveats:
- 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 Select Committee recommended this amended definition be “formally adopted by the UK government, law-enforcement agencies and all political parties, to assist them in determining whether or not an incident or discourse can be regarded as anti-Semitic”. The government agreed but dropped the caveats, saying they weren’t necessary.
Definition “too vague to be useful”
Eminent human rights lawyer Hugh Tomlinson QC has sharply criticised the definition.
Firstly, it wasn’t a legally binding definition so didn’t have the force of a statutory one. And it couldn’t be considered a legal definition of anti-Semitism as it lacked clarity. Therefore, any conduct contrary to the IHRA definition couldn’t necessarily be ruled illegal.
Secondly, the language was far too vague to be useful as a tool, and it was “most unsatisfactory for the government to adopt a definition which lacks clarity and comprehensiveness”. In Tomlinson’s view, the government’s decision to adopt the IHRA definition was simply a freestanding statement of policy – a mere suggestion as to a definition of anti-Semitism that public bodies might wish to use. No public body was under an obligation to adopt or use it, or, given the unsatisfactory nature of the definition, should be criticised for refusing.
He warned that if a public authority did decide to adopt the definition then it must interpret it in a way that’s consistent with its statutory obligations. In particular, public authorities cannot behave in a manner inconsistent with the European Convention on Human Rights, which provides for freedom of expression and freedom of assembly. Freedom of expression applies not only to information or ideas that are favourably received or regarded as inoffensive, but also to those that “offend, shock or disturb the state or any sector of the population”. Unless, of course, they amount to a call for violence or a justification of violence, hatred or intolerance.
A further obligation put on public authorities is “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”.
So, in Tomlinson’s opinion the IHRA Definition does not mean that calling Israel an apartheid state that practises settler colonialism, or advocating boycott, divestment or sanctions (BDS) against Israel, can properly be characterised as anti-Semitic. Furthermore, a public authority seeking to apply the IHRA definition to prohibit or punish such activities “would be acting unlawfully”.
Government’s “naive stance”
Retired Lord Justice of Appeal Sir Stephen Sedley also weighed in with advice, criticising the IHRA working definition for lack of legal force. “At the same time, it is not neutral: it may well influence policy both domestically and internationally.”
He added that the right of free expression, now part of our domestic law by virtue of the Human Rights Act, “places both negative and positive obligations on the state which may be put at risk if the IHRA definition is unthinkingly followed”. Moreover, the 1986 Education Act established an individual right of free expression in all higher education institutions “which cannot be cut back by governmental policies”.
According to Sedley, the IHRA definition is open to manipulation. In his view, “what is needed now is a principled retreat on the part of government from a stance which it has naively adopted in disregard of the sane advice given to it by the Home Affairs Select Committee”.
Many objections to this “official” anti-Semitism definition, and the way it is used, are underpinned by Article 10 of the European Convention on Human Rights, which 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.
- The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
Also, Article 19 of the Universal Declaration of Human Rights bestows on everyone “the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers”. All such rights, of course, are subject to the usual limitations required by law and respect for the rights of others.
Attempt to bury UN report on Israeli apartheid
Perhaps university vice-chancellors and party leaders will now find the backbone to resist the bluster and intimidation of the pro-Israel lobby, especially after the United Nations Economic and Social Commission for Western Asia (ESCWA) produced a report (on 15 March) establishing what most of us have known for donkey’s years: that Israel is a thoroughly nasty apartheid regime.
The report was authored by Richard Falk, Professor of International Law and Practice Emeritus at Princeton University and a former UN human rights rapporteur for the Palestinian territories, and Virginia Tilley, Professor of Political Science at Southern Illinois University. It established on the “basis of scholarly inquiry and overwhelming evidence, that Israel is guilty of the crime of apartheid”. Such was the fuss kicked up that it has been withdrawn from UN websites.
But don’t worry, you can read it in full here. If short of time skip to the Conclusions (page 52), which include:
The authors urge the United Nations to implement this finding by fulfilling its international responsibilities in relation to international law and the rights of the Palestinian people as a matter of urgency, for two reasons.
First, the situation addressed in the report is ongoing… In the case of Israel-Palestine, any delay compounds the crime by prolonging the subjugation of Palestinians to the active practice of apartheid by Israel. Prompt action is accordingly imperative to avert further human suffering and end a crime against humanity that is being committed now.
Secondly, the extreme gravity of the charge requires prompt action. Since the 1970s, when the international campaign to oppose apartheid in southern Africa gathered momentum, apartheid has been considered in the annals of the United Nations and world public opinion to be second only to genocide in the hierarchy of criminality.
This report accordingly recommends that the international community acts immediately, without waiting for a more formal pronouncement regarding the culpability of the state of Israel, its government and its officials for the commission of the crime of apartheid…
The authors of this report conclude that the weight of the evidence supports beyond a reasonable doubt the contention that Israel is guilty of imposing an apartheid regime on the Palestinian people. The prohibition of apartheid is considered “jus cogens” in international customary law. States have a separate and collective duty (a) not to recognise an apartheid regime as lawful; (b) not to aid or assist a state in maintaining an apartheid regime; and (c) to cooperate with the United Nations and other states in bringing apartheid regimes to an end [my emphasis]. A state that fails to fulfil those duties could itself be held legally responsible for engaging in wrongful acts involving complicity with maintaining an apartheid regime.
Another excellent piece of work by Richard Falk, for which he’ll get no thanks. As many of you know, he is himself Jewish.