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Tribunal in the Fraser case finds no antisemitism in UCU – a preliminary response from David Hirsh

This is a cross post from Engage by David Hirsh

“When someone is honestly 55% right, that’s very good and there’s no use wrangling. And if someone is 60% right, it’s wonderful, it’s great luck, and let him thank God. But what’s to be said about 75% right? Wise people say this is suspicious. Well, and what about 100% right? Whoever say he’s 100% right is a fanatic, a thug, and the worst kind of rascal.”

(A old Jew of Galicia, from: The Captive Mind, by Czeslaw Milosz)

A co-ordinated campaign by Ronnie Fraser, his lawyers and his witnesses to try to intimidate critics of Israel with an invented accusation of antisemitism would indeed be vile and disgraceful.  This is what the Tribunal thought was

David HirshDavid Hirsh

happening, and this explains the unusually intemperate and emotional language employed in its dismissal of Fraser’s case.

The Tribunal found against Fraser on everything: on technicalities, on legal argument, and on every significant issue of substance and of fact.  The Tribunal found everything the UCU said in its defence to be persuasive and it found nothing said by Fraser or any of his witnesses to be of any value.  The culture, the practices and the norms inside the union were found to be not antisemitic, either in intent or in effect.  Indeed, everything that Fraser and his witnesses experienced as antisemitic, the Tribunal judged to have been entirely appropriate.  In particular what was appropriate was the way that union staff, rules, structures and bodies operated.  Fraser said that there was a culture in which antisemitism was tolerated but the Tribunal did not accept that even one out of the very many stories that it was told was an indicator of antisemitism.

Instead the Tribunal found that “at heart” the case represented “an impermissible attempt to achieve a political end by litigious means… ” (para 178).  What political end?  The only possible political end is an attempt to defeat or silence campaigns against Israel.  This would certainly be impermissible in an Employment Tribunal, which is rightly concerned with issues such as antisemitism, outlined in the Equalities Act.

Of course the fight against antisemitism is also political.  But this cannot be the kind of politics to which the Tribunal objected.  If it was, then it would find every allegation of racism, sexism or homophobia to be impermissible, because political.  Opposition to antisemitic politics has always been central to campaigns against antisemitism.

The Tribunal makes clear that it meant that Fraser was trying to mobilize a bad-faith allegation of antisemitism in order to silence good-faith critics of Israel when it goes on in the next paragraph: “We are also troubled by the implications of the claim. Underlying it we sense a worrying disregard for pluralism, tolerance and freedom of expression….”  The Tribunal says that Fraser was trying to fool it into outlawing and branding criticism of Israel as antisemitic.  Of course, every racist claims that anti-racists disregard their right to free speech.  True, sometimes the Tribunal appears to veer towards the view that those who complain of antisemitism are simply over-sensitive and lacking in objective judgment.  But the central findings, that this is politics dressed up as litigation, and that this is an attempt to disallow free criticism, are allegations of bad faith.

Anybody who has been following the story within the union will be aware that the response of the Tribunal is precisely the same as the response with which opponents of antisemitism and of the boycott campaign were faced within the union.  The Tribunal backs the union’s way of thinking about antisemitism 100%.  The experience of going to the Tribunal, it turns out, is more of the same experience about which Fraser appealed to the Tribunal in the first place.

Fraser said that the key mode of intimidation in the UCU was a constant allegation of bad faith – the allegation that Jews who say they feel antisemitism are actually lying for Israel.  The Tribunal replied that the Jews who say they feel antisemitism are actually lying for Israel – they are dressing up a political end as a problem of racist exclusion.  In other words, the Tribunal answers that the accusation of bad faith made against Jews who say that they experienced antisemitism is appropriate.  The Tribunal employed The Livingstone Formulation.

Fraser argued that there were a large number of incidents which should be understood as exemplifying a culture whereby antisemitism was accepted as normal within the union.  Fraser called 34 witnesses to tell the Tribunal about the antisemitism which they had seen.   I want to start my own response to the judgment by outlining a number of the incidents which the Tribunal were told about in detail:

In 2006 Ronnie Fraser stood as a delegate to NATFHE conference (a predecessor to UCU).  It was said at the regional meeting that Fraser could not be a delegate because he was a Zionist and therefore a racist.  NATFHE held an investigation and found that this statement had not been antisemitic.

Israel has been relentlessly condemned at every UCU Congress, often by motions to boycott Israel.  There were no motions to boycott any other states.

The Parliamentary Inquiry into Antisemitism reported that the boycott debates were likely to cause difficulties for Jewish academics and students, to exclude Jews from academic life and to have a detrimental effect on Jewish Studies.  UCU responded that these allegations were made to stop people from criticizing Israel.  76 members of the UCU published critique of the union’s response, but the union took no notice.  John Mann MP told the Tribunal that UCU had been unique among those criticized by the inquiry in its refusal to listen.

Sean Wallis, a local UCU official, said that anti-boycott lawyers were financed by “bank balances from Lehman Brothers that can’t be tracked down”.  Ronnie Fraser asked him whether he had indeed made this antisemitic claim.  Wallis admitted having said it.  But it was Fraser who, for the crime of asking, was found to have violated union rules concerning “rude or offensive communications”.

Gert Weisskirchen, responsible for combating antisemitism for the Organisation for Security and Co-operation in Europe (OSCE) asked the union leadership for a meeting to discuss antisemitism relating to the boycott.  The union did not meet with him.  When 39 union members protested publicly, the union ignored them.

The union invited South African Trade Unionist Bongani Masuku to speak at a pro-boycott conference in London.  Masuku was known to be under investigation by the South African Human Rights Commission for antisemitic hate speech.  Here is an example of what he had said:  “Bongani says hi to you all as we struggle to liberate Palestine from the racists, fascists and Zionists who belong to the era of their friend Hitler!  We must not apologise, every Zionist must be made to drink the bitter medicine they are feeding our brothers and sisters in Palestine”.   Masuku also said  that vigilante action would be taken against Jewish families suspected of having members serving in the Israeli military, and that Jews who continued to stand up for Israel should “not just be encouraged but forced to leave South Africa”  The union ought to have known Masuku’s record.  Ronnie Fraser told the union about Masuku’s record.  Masuku was found guilty in South Africa of hate speech before speaking as a guest of UCU.  And months later, UCU Congress explicitly rejected a motion to dissociate itself from Masuku’s “repugnant views”.

The Activists’ List is an email list hosted by the union.

Ronnie Fraser argued on the list that there was no absolute blockade of Gaza.  In response, another union member said that he was like the Nazis at Theresenstadt.  The union found that there was nothing inappropriate about this comment.

Josh Robinson put together a detailed formal complaint about antisemitic language being employed by union members on the list.   He documented how people who opposed antisemitism on the activists’ list were routinely accused of being: deranged, crazy, nutters; Israeli agents; hysterical; dishonest; twisted; rotten Zionists; less than human; believers in a promised land; motivated by the fairy story of the Old Testament; genocidal; accepting of the murder of innocents; racist; pro-apartheid; supporters of ethnic cleansing; Nazis.  The Holocaust was referred to as an ‘attempted genocide’.   There followed volleys of insults made against those who raised concerns about this description of the Shoah.  The formal complaint was given to Tom Hickey to adjudicate.  Hickey himself, the Tribunal was told, had said that Israel is “more insidious and in some sense almost nastier” than Nazi Germany.  In the end, nobody even bothered to tell Robinson that his complaint had been dismissed.

A number of other people made similarly careful formal complaints.  The union did not once, ever, find that anything complained of was antisemitic.

A significant number of union members resigned over the issue of antisemitism.  Congress voted down a motion to investigate these resignations.  There was no mechanism for counting resignations over antisemitism, and such resignations were instead counted as being because of disagreements over the Middle East.

People who complained about antisemitism in the union were routinely confronted with accusations that they spoke in bad faith.  They were told that they were making it up in order to try to silence criticism of Israel.  They were accused of ‘crying antisemitism’.

In court Sally Hunt, the General Secretary of the union was asked hypothetically:  “If somebody said ‘if you want to understand the Jews, read Mein Kampf’, would that be antisemitic?”  She answered that it would not necessarily be antisemitic.

The Tribunal heard about all these events and, like the union, judged none of them to be evidence of antisemitism.  It said (para 156):

The Claimant is a campaigner. He chooses to engage in the politics of the union in support of Israel and in opposition to activists for the Palestinian cause. When a rugby player takes the field he must accept his fair share of minor injuries….  Similarly, a political activist accepts the risk of being offended or hurt on occasions by things said or done by his opponents (who themselves take on a corresponding risk).

It is unimaginable that a tribunal today would say the same thing to a woman who complained of sexual harassment at work after she chose to wear a tight skirt to the office; or after she had chosen to campaign in favour of women’s rights.  But this is what the Tribunal said to a Jew.

The rugby analogy demonstrates one of the central problems with the approach taken by the Tribunal.  The Tribunal was unable to make the distinction between arguments about Israel and Palestine on the one hand, and evidence of antisemitism on the other.  The result is the position that since Fraser took on the responsibility of defending Israel, then he should expect some antisemitism as part of the “game”.  The Tribunal also mentioned that it had been inappropriate to allow Tom Hickey to sit in judgment over formal claims of antisemitism.  Why?  It says (para 181) that the reason is that he is a “well-known pro-Palestinian activist”.  How insulting is it to “pro-Palestinian activists” to suggest that they are unqualified to judge what is antisemitic and what is not?  Being pro-Palestine should be one thing, being antisemitic should be quite another.  The Tribunal found itself unable to understand the distinction.  The reason why Hickey was an inappropriate judge, as the Tribunal was told, was because he was not good at making the distinction between antisemitism and criticism of Israel, not because he was ‘pro-Palestinian’.

Speaking for myself, I never chose to play Rugby.  I found that my union was considering setting up an exclusion of our Israeli colleagues from UK campuses, so I tried to make arguments against it doing so.  I was, as it were, pushed onto a rugby field.  There, I found myself being outnumbered and repeatedly knocked to the floor by organised forwards.  I was confronted by relentless if usually subtle antisemitic rhetoric, hostility and accusations of bad faith.  I appealed to the union, who was playing the part of the referee.  But the ref said that it was neutral between the two Rugby teams and I should just get on with the game.  But I wasn’t part of a Rugby team and I didn’t want to play.  I only wanted my union to stop with the hatred of Israel and with the antisemitism which came with it.  And when I tried to step out of the Rugby field and say publicly what was going on, I was punished for breaking the rules of the game.

While I’m talking about my own experience, please indulge me while I tell you about a couple of others.   The witnesses told the tribunal about hundreds of incidents, my own happen to be clearest in my memory.

There was a time when I, and a number of others, many of whom eventually gave evidence for Ronnie in front of the Tribunal, were trying to have our voices heard on the Activists’ List.  Most of us, unlike Ronnie, were not particularly ‘pro-Israel’ but were strong critics of Israeli policy and of the occupation.  Indeed some of my own criticism of Israelwas so strong, that it was read out to another witness under cross examination as being indistinguishable from the antisemitic rhetoric of which Ronnie complained.  But the witness explained to the Tribunal how it was different.  Nevertheless, if ever we raised the issue of antisemitic rhetoric on the list, we would immediately be denounced for crying antisemitism in bad faith in order to silence criticism of Israel.  It was a difficult time.  We would try and explain what the problem was with the accusations that we supported the genocide of the Palestinians, or that we were racists, or that we were Nazis, and people would respond, immediately, relentlessly and in writing before hundreds of our union colleagues, that we only raised the issue of antisemitism in order to stifle their criticisms of Israel.

We appealed to the moderator of the list.  We said that this was a union space and that it should not be possible to bully us out of it with antisemitic rhetoric.  But the moderator acted as the referee in a tough rugby match between Israel and Palestine, rather than a union official making sure that the union was a safe place for British Jewish Trade Unionists.  One academic who had been particularly active at that time told the Tribunal that he had nearly had a nervous breakdown because of the way he was treated on the activist list.  The Tribunal explicitly praised his evidence, but it did not listen to his evidence and it did not discuss his evidence in its judgment.

One strategy I was minded to adopt at that time was to publish some of the antisemitic material from the list on the Engage website.  There was a closed culture within the union in which antisemitism was never recognised and was never thought to be a problem.  Institutional racism requires a heavy policing of the institutional boundaries to make sure that the values of the external world cannot intrude and the norms of the internal world cannot be seen.

In August 2007 I wrote an email on the activists’ list expressing concern at the antisemitic consequences of the campaign to boycott Israel and arguing that we should be aware that it is usual for antisemitic arguments to be positioned as one side in a legitimate democratic debate.  I was warned by the list moderator for the crime of saying this and told to “be more careful in my choice of language” otherwise I would be excluded from the discussion.  I was also told not to publish anything which appeared on the list.  I responded by saying that I would make no undertaking whatsoever not to publish antisemitic material from the list.  The Tribunal tells this story in its judgment but it chooses to delete the word “antisemitic”.  In para 93 of the judgment it reports: ‘Dr Hirsh responded, stating that he would “make no undertaking whatsoever” not to publish material from the List….’  I, and other critics of antisemitism were indeed excluded from the list while nobody was ever excluded from the list for writing antisemitic things.  Indeed, nothing that happened inside the union was ever judged to be antisemitic.  The Tribunal judge himself asked me whether I broke the rules.  I told him that as a whistleblower, I thought there were two conflicting principles.  The Tribunal chooses not even to consider or to describe this dilemma in its judgment, but to omit the word “antisemitic” from my refusal not to publish material.

I also told the Tribunal that the key mode of intimidation in the union is the relentless, constant accusation of bad faith directed mostly against Jews.   It was normal to suspect Jews of lying if they raised the issue of antisemitism.  When people raise the issue of antisemitism they are not to be believed because really, it is said, they are only trying to silence legitimate criticism of Israel.  In January 2010 I was asked by the union to speak in Brighton on the topic of “Anti-Semitism, the Holocaust and Resistance, Yesterday and Today” on the occasion of Holocaust Memorial Day.  I talked about the record of antisemitism within the union. Tom Hickey, a union official and academic colleague, in public and in front of the General Secretary, said that everything I had said was a traducement of the truth and … a straightforward lie and the author knows it.  I explained the significance of the relentless accusation of bad faith to the Tribunal.  In their description of the event they write in their judgment: “Mr Hickey responded to Mr Hirsh’s remarks.  He denounced them as unwarranted and false.”  The Tribunal decided not to consider the point about the relentless bad faith allegation.  It  just left it out of its description and out of its deliberation.

The difficulty of explaining what has happened in the union, and what is wrong with the Tribunal’s judgment, is that it is always necessary to descend into detailed stories and analysis of stories.  There is no silver bullet.  Rather there are long and winding complex narratives all of which require interpretation.  There is no short cut to understanding the every-day harshness of being Jewish in the UCU.  I offered just two stories here.  There were 34 witnesses who gave evidence about the culture of antisemitism in the union.  Each told long, complex and nuanced stories.  The Tribunal wrote them off as people “ventilating their opinions” (para 149).   A very large number of incidents from over the years are documented and explained on the Engage website.

Whatever it is that Ronnie Fraser suffered within the union, he has now suffered doubly in the Tribunal.  That which he experienced as antisemitic was not only judged by the union, but now also by the Tribunal, to be not antisemitic; further, it was also judged to be entirely appropriate.  Ronnie complained that he was constantly accused of speaking in bad faith.  The Tribunal responded that those who raised the issue of antisemitism did indeed speak in bad faith, chose to play a rough game, and got what was coming to them.

The old Romanian Communist Party used to win elections with 100% of the vote.  Just this fact is enough to tell us that the process could not have been fair.  The University and College Union, and now the Tribunal, have judged that nothing that ever happened in the union was antisemitic.  Not one thing.  Zero.  Given the history of antisemitism in Europe and on the left, and given the hostility to Israel and to Israeli policy within the union, it is hardly plausible that hostility to Israel was never expressed in an antisemitic way.  An antiracist union has a responsibility to educate against antisemitism and to guard against it.  A Tribunal has the responsibility to recognise antisemitism when it occurs and to protect those who are bullied by it.  We live in a time and in a place where it is possible for a union and a Tribunal to fail to see antisemitism, even when it is shown to them in detail and even when its significance is explained to them.

David Hirsh

UCU member