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Hugh Tomlinson QC on the IHRA definition of antisemitism

I find both the IHRA definition and Tomlinson’s legal opinion challenging; this is because they both focus so strongly on what is probably the most contentious element of any discussion of antisemitism – its relationship with antizionism. I don’t have time here to delve into Tomlinson’s thoughts about possible (free speech related) problems with implementing the IHRA definition – but here follow a few observations on the first sections of his judgement.

The IHRA  definition – modified by ‘two additional clarifications’ – has been adopted by the Government.

Tomlinson’s judgement on both the definition and its implementation was sought by various bodies, none of whom are precisely in tune with Harry’s Place.

As Tomlinson points out, the definition itself is brief:

“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.”

Most of those raising concerns have cited instead the accompanying examples – more of those later.

However Tomlinson – I think reasonably – has some reservations about the definition’s apparently straightforward starting point. He finds this imprecise, and asserts, correctly, that antisemitism is often not expressed as hatred towards Jews (he could have added that it may be unconscious and unintended).

The apparent confining of antisemitism to an attitude which is “expressed” as a hatred of Jews seems too narrow and not to capture conduct which, though not expressed as hatred of Jews is clearly a manifestation of antisemitism. It does not, for example, include discriminatory social and institutional practices.

However later in his judgement he seems to lose sight of this important point.

Tomlinson then turns his attention to one of the examples:

  • “Accusing Jewish citizens of being more loyal to Israel, or to the alleged priorities of Jews worldwide, than to the interests of their own nations”. This must be read in the light of the definition. Such an accusation would only be antisemitic if motivated by hatred of Jews.

I found this a confusing argument.  Tomlinson seemed already to have conceded that antisemitism does not have to stem from a conscious hatred of Jews (rather as sexism doesn’t have to be motivated by hatred of women). So is the sentence I’ve put in bold really just a quibble – a comment on the consistency of the definition rather than a contribution to reflecting on antisemitism?

The second part of the same paragraph sounds reasonable:

If, for example, the accusation was motivated by a reasonable belief that a particular Jewish citizen or a group of citizens had by their words or actions showed that their loyalty to Israel was greater than their loyalty to their own nation, the accusation could not be properly regarded as antisemitic

but seems completely unalert to the idea of split loyalties as an antisemitic trope.

One of the best things about the EUMC working definition was its persistent reminder to reflect on context. Because the disloyalty accusation is a trope, there are probably strong grounds for suspicion in such a case.  But it seems possible – in certain circumstances –  that such an accusation would not be antisemitic. Here is quite a helpful gloss on the trope from a motion recently submitted to the NUS:

(i) Questioning the loyalty of Jews to their state of citizenship simply on the basis of their Jewish identity, which includes claims that Jews as a collective or a community engage in efforts to subvert or mislead the general population, as well as the claim that Jews are more loyal to the state of Israel than their country of citizenship, is an anti-Semitic position to hold;

Here’s the next section from the Tomlinson document:

  • 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”. This must, again, be read in the light of the definition. A denial of a Jewish right to self-determination could be the result of a particular analysis of the nature of the Jewish people (motivated, for example, by religious considerations) which had nothing to do with the “hatred of Jews”.

Tomlinson yet again seems to gloss over the fact that he’d already cautioned against limiting antisemitism to examples of hatred of Jews.  To me it seems possible to have some kind of religious (Jewish) objection to Israel and yet not be categorised as antisemitic. But what Tomlinson goes on to suggest is perhaps more problematic:

Furthermore, unless such a claim was informed by hatred to Jews, it would not be antisemitic to assert that as Israel defines itself as a Jewish state and thereby by race, and that because non-Jewish Israelis and non-Jews under its jurisdiction are discriminated against, the State of Israel is currently a racist endeavour.

So many clauses and assumptions are piled up here, all of which might be probed further.  For example – is Jewishness precisely a racial identity?  However I do personally agree that it should be possible to identify racism in the workings of Israel’s policies, official bodies etc without attracting a charge of antisemitism.  But to me that is not the same as asserting that ‘the State of Israel is currently a racist endeavour’.

I think it’s a pity that the IHRA definition had to zoom in on antizionism and its intersection with antisemitism.  There are so many other ways in which criticism of Israel can be a vector for antisemitism, many of them covered in the NUS document I linked to earlier.

One final point. Tomlinson alludes to a case in which an allegation of antisemitism brought against an academic by CICAD (an organisation campaigning against antisemitism) was deemed out of order by the Swiss courts.

CICAD’s newsletter condemned these arguments as antisemitic. The academic brought a successful civil action in the Swiss Courts. CICAD was ordered to remove the article, publish the court’s judgment and pay costs. Its complaint that this ruling was a breach of its Article 10 rights was dismissed by the Court of Human Rights.

This case seems to be raised in order to caution against trying to shut down debate on these issues – as here.  But if free speech is the priority, and if free speech includes insisting that Zionism is racist – shouldn’t it also be a cause of concern that the judgement against CICAD – penalised for trying to identify and describe antisemitism – might also have a chilling impact on free speech?

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