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NEC antisemitism code: IHRA ibergezetst un farbesert?

Guest post by Amie

In the heyday of Yiddish theatre in New York, Translations of Shakespeare into Yiddish were sometimes inscribed with the phrase: “Translated and improved.” The Yivo archive says that ‘The phrase inevitably meant that the play was translated and not improved upon. In fact, it was probably translated and rendered worse, sometimes egregiously worse, than the original”.
While we may view this kind of chutzpah with a nostalgic wry smile, no smiles for Formby et al (hereinafter called the NECards) for their disingenuous claim that the NEC code is an improvement on the IHRA;  this  is a presumption and a malignity beyond chutzpah.

This attitude reached its nadir in McDonnell’s  mansplaining/goysplaining/gaslighting of Margaret Hodge, telling us she lost it because she had misinterpreted the new guide, as ‘she will admit”. (one is almost tempted to add: if not, ve haff our vays and means.) Hodge denies  misinterpretation.

Before I go on to review some of the debate about the merits and  the relationship of the 2 guides  I have 2 key points:

1. All discussion of the relative merits of NEC vs IHRA and  the significance of the changes, is of secondary relevance to the overriding Jewish response,  summed up best in this tweet (thread worth reading in full):
“Secondly, there’s the context of this – Labour have pushed this through this off the back of a series of huge missteps whereby the mainstream Jewish community already had no faith in the party’s ability to act in good faith on these issues.

If there had been trust, we’d still be arguing that they had got this badly wrong, but would accept that they were trying to get it right. Noone seriously believes this, as we know that many of those now running the party have a history of using those same antisemitic tropes.”
https://twitter.com/gregallon/status/1019844550838378497

2. IHRArds  have recited lists of all the bodies in the UK which now use the IHRA definition; local government, the UK government, Police, CPS etc, but only one (an article by Mark Gardner) has mentioned the one I regard as pretty significant: the Judiciary.

Backstory to this: My utter dismay in the judicial finding of 2 judges (one since elevated to the Supreme Court) back in the 2011 appeal by  Naik against his exclusion from the UK.
The court found that Naik’s statement
“Today, America is controlled by the Jews, whether it be the banks, whether it be the money, whether it be the power. Nobody can become a president of the USA without walking the Star of David.”
was “within the bounds of legitimate political comment.”
http://hurryupharry.org/2012/05/07/antisemitism-a-primer-for-judges/
This spurred me in 2015  to make a written submission to the All Party Parliamentary Inquiry on antisemitism,  pointing out the woeful inadequacy of the section on Jews in the training guide for Judges and setting out a pressing need for better education for judges about antisemitism. My submissions were adopted by the APPGA.
http://hurryupharry.org/2015/05/05/let%E2%80%99s-pour-more-money-into-the-interfaith-industry-say-all/

Finally, the new improved (Yes!)  Judge’s Bench Book arrived in February this year. Danny Stone who with his colleagues on the APPGA had worked tirelessly for 3 years on getting a greatly expanded (and improved!) section on antisemitism included, was generous enough to write to me:
“The truth is that this matter would not have come to the committee’s attention without your alerting it to us/them. Thank-You for doing so. Though its taken time, I hope you’ll feel this is something which – even if we only played a part .. has made a positive difference.”

The section on antisemitism in the Bench Book starts by recording that the British government, along with 30 other countries, has adopted the IHRA definition. This is set out, with all its examples, including the one about Jewish control, of which the 2 judges would have fallen foul. It also includes the IHRA caveat: However, criticism of Israel similar to that levelled against any other country cannot (my emphasis) be regarded as antisemitic.

The Bench Book then referred to The House of Commons’ Home Affairs Committee Report (HASC) into ‘Antisemitism in the UK’ (October 2016) which recommended the IHRA definition, with 2 caveats.
[These were proposed after “informal” meetings with some unidentified “Friends of Palestine Groups” who were concerned about their free speech.]
https://publications.parliament.uk/pa/cm201617/cmselect/cmhaff/136/13605.htm#_idTextAnchor01
It is these 2 caveats, introducing the element of intention, which NECards  pray in aid as the source of their “intention” examples.
HASC caveats:
It is not antisemitic to criticise the Government of Israel, without additional evidence
It is not antisemitic 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 antisemitic intent.
Bench Book adds:
In its Response to the Committee Report in December 2016, the government said these caveats are unnecessary because ‘references within the definition stating that criticism of Israel similar to that levelled against any other country cannot be regarded as antisemitic’ are sufficient to ensure freedom of speech’.
And by the way, if the NECards  love the HASC report so much, then they should also adopt what the HASC has to say about Zionism, as quoted  in this fantastic section of the Bench Book:
‘Zionism’ as a term

175. The relationship between British Jewish people and their feelings about Israel is complex.

176. According to a study by City University, the vast majority of Jewish people feel Israel plays a part in their Jewish identity and believe in its right to continue to exist as a Jewish state. [my emphasis] However, there are divergent views on matters such as where the borders should lie, the expansion of settlements, the establishment of a Palestinian State so as to create a two-state solution, and the policies of the current Israeli Government. About 70% disagree with the Israeli Government’s approach to peace and favour a two-state solution. Nevertheless, they feel that – in the context of conflicts around the world – double-standards are applied in the level of condemnation of Israel.43

177. As a result of these divergent views, British Jewish people may it find it difficult to answer if asked whether they are a ‘Zionist’. In addition, the term ‘Zionism’ has come to have very negative connotations. The Home Affairs Committee made these recommendations in its report:

‘Zionism’ as a concept remains a valid topic for academic and political debate, both within and outside Israel. The word ‘Zionist’ (or worse, ‘Zio’) as a term of abuse, however, has no place in a civilised society. It has been tarnished by its repeated use in antisemitic and aggressive contexts. Antisemites frequently use the word ‘Zionist’ when they are in fact referring to Jews, whether in Israel or elsewhere. Those claiming to be “anti-Zionist, not antisemitic” should do so in the knowledge that 59% of British Jewish people consider themselves to be Zionists. If these individuals genuinely mean only to criticise the policies of the Government of Israel, and have no intention to offend British Jewish people, they should criticise “the Israeli Government”, [my emphasis] and not “Zionists”. For the purposes of criminal or disciplinary investigations, use of the words ‘Zionist’ or ‘Zio’ in an accusatory or abusive context should be considered inflammatory and potentially antisemitic. This should be communicated by the Government and political parties to those responsible for determining whether or not an incident should be regarded as antisemitic.

Amidst all the furore, I take a quiet satisfaction that Judges in future will have regard to this material, even while as their  independent status must at all times be maintained, this remains a guide and not a prescription to them.
[As an aside, I attended the recent Alison Chabloz trial as an observer, where her counsel argued against the prosecution citation of the IHRA, that the IHRA was too flawed and should be disregarded. I wonder what the impact will be on such arguments of the presence of the IHRA in the Bench Book. ]
The NEC code
Within the  general outrage on principle at the unilateral arrogation  by the NEC of the “improvement’ to the IHRA there are the specifics of what has been changed or omitted; in particular the inclusion of the element of intention with regard to criticism of Israel, for which they and some learned opiners (see later) rely on the suggested caveat by the HOCSC.
The NEC reference to intent comes at the end of a long circumlocutory paragraph 7, where the introduction of intent “in this area” seems to refer back to antisemitism and criticism of the state of Israel [my emphasis].
A reminder that the HASC proposed amendments (see above) refer to criticism of the government of Israel. A significant difference.
Read the NEC version here:

https://www.thejc.com/comment/analysis/jeremy-corbyn-labour-definition-antisemitism-1.466626

The Code reserves the right to attack the racist foundation of the Jewish state, and although Para 12  pays lip service to recognising the right of Jewish self determination as any other people, it makes it immediately contingent on unspecified grounds regarding the “nature and content” of such a right.
In any event,  this convoluted text points to an erroneous use of the concept of intention, when in fact they appear to mean motive.
One of the drafters of a precursor to IHRA, the EUMC definition, Kenneth K Stern, writes in 2017:
“[The EUMC definition]  focused their attention away from the question of whether the actor hated Jews, and focused them on whether the actor selected Jews to be victims. This distinction between motive and intent was key.”
https://judiciary.house.gov/wp-content/uploads/2017/10/Stern-Testimony-11.07.17.pdf
Please hold on to this turning away from the question of hate, which is central to another document NECards rely heavily on, viz the legal opinion of Hugh Tomlinson, QC, coming up shortly.

Meanwhile here is the Canary relying on the above report by Stern  as authority to reject IHRA, and here is David Rich’s rebuttal by reference to an earlier statement by Stern:
“In my view, attempts to change the definition would give away all the gains made by having a uniform definition for five years, would give a great opening for those who would want to scuttle it rather than improve it, and to open this can of worms would be a terrible mistake”
https://twitter.com/daverich1/status/1021441587103051776

In any event, the 2017 Stern document is specifically his testimony before a US House committee considering legislation on antisemitism to be applied to campuses as an aid to interpretation of Title VI actions. Its application, if any, is narrowly relevant to that purpose.

We come to the Big One: The Opinion on the IHRA by Hugh Tomlinson QC, commissioned by Free Speech on Israel, Independent Jewish Voices, Jews for Justice for Palestinians and the Palestine Solidarity Campaign; in other words, the multiple manifestations of that modestly sized group of familiar voices.
http://freespeechonisrael.org.uk/ihra-opinion/#sthash.kRGmvZD3.dpbs

If you can’t be stirred to read on, skip to my conclusion: with the greatest respect to my learned.. oh never mind: Tendentious.
Without diving deep here, just the main pointers:
1. He decrees that because the definition is not a legal document, “it cannot be construed in the same way as a statutory definition or one produced as part of statutory guidance.”  By what logic is a valuable  tool of interpretation to be reserved exclusively for statutes and ruled out for any other quasi legal document?  The general chorus of the NECards is that NEC has adopted the definition “in full’ so what, they ask innocently, are the IHRArds complaining of.  Tomlinson, on the other hand, complains that the stand alone, core definition is too vague. But instead of recognising that this inchoate definition’s meaning is fleshed out by the given IHRA examples, he sets about rewording it the way he thinks it was supposed to read: to  limit it to “hatred” against Jews. There you go, farbesert! He then proceeds to criticize the examples as unworkable within his redrafted hate definition! So we now need new examples.. Which new examples, IHRArds argue, alter the meaning of the core definition.

He rejects the government view that the caveat  about Israel contained within the IHRA covers the free speech concerns as it is contained in the illustrations rather than in the core definition, and these  illustrations or examples he and others regard as pick n mix options.
Having neatly excised the free speech caveat in this way he warns that any attemp to apply IHRA by public authorities and universities in particular should be done with caution so as not to breach Article 10 of the Human Rights Act (free speech.)

The lrb article by retired judge Stephen Sedley on the IHRA last year is also being resurrected in NECard discourse. My shrift here is short: He proceeds from a vehement loathing of Israel. He dismisses, for example, the potential for antisemitism in a statement singling out Israel for criticism which no other country would be subject to, because, he declares in effect that Israel is so uniquely evil  that such singling out is warranted. He points out the dangers of the IHRA  as offering “encouragement to pro-Israel militants whose targets for abuse and disruption in London have recently included the leading American scholar and critic of Israel Richard Falk.” I deplore disruption of free speech on campus,  but he fails to mention that Richard Falk as regular HP readers will know, is an arch disseminator of the worst kind of antisemitic material.
https://www.lrb.co.uk/v39/n09/stephen-sedley/defining-anti-semitism
And in this recent article, Sedley resorts to  classic Livingstone formulation conspiracy theory that this is all engineered in bad faith by pro Israel Jews trying to drive out pro Palestinian groups. Well, I don’t feel inclined to engage with or give much weight to any legal arguments which proceed in such bad faith on his part.
https://www.lrb.co.uk/v40/n09/stephen-sedley/short-cuts

Geoffrey Bindman, a patron of PSC (and who supported the attempt to arrest Tzip Livni in the UK for war crimes in Gaza, as tabled in an EDM by one Jeremy Corbyn) complains in the Guardian and in this Radio 4 interview that critics failure to  read the Labour Code has resulted in “silly and irrelevant criticism” of it. In the interview, he insists the code discusses the issue of separating antisemitism from “legitimate political criticism of Israeli government policies” and harps on in his Guardian piece and the interview about how if the government had only adopted the HASC amendments re intent, all this fuss could have been avoided. This is a misleading representation of both the HASC amendment and the Code: to reiterate: the former refers to criticism of the government, whereas Para 7 of the Code refers to the state.
https://www.bbc.co.uk/programmes/b0bcddm1
Lastly, another widely cited  NECards  source is Brian Klug’s essay: Verdict: even more tendentious.
https://www.opendemocracy.net/uk/brian-klug/code-of-conduct-for-antisemitism-tale-of-two-texts
He bases his argument that NEC has adopted the IHRA definition “in full” on formatting clues: the “core” definition is in bold and placed in a box. So the rest again, is ripe for tinkering and improvement, which in his view, the NEC code most definitely is.

He starts off  more sympathetically than the rancid excoriation by Sedley. He acknowledges that a great deal of the objections against the NEC code stems from an  understandable sense of unheeded grievance by the Jewish community: “something has been awry in the discourse about Zionism – and even about Jews in general – in certain sections of the left for many years..” but, he laments:
“How ironic if, just at the moment when Labour wakes up to the need to deal with antisemitism in its midst, it is shouted down because of its failure to deal with it in the past!”

And so, we come full circle to my point 1:  We, the majority of the Jewish community and its allies, see no such  wake up by Labour and far from dealing with the past, it is a running, growing sore that it is spectaculary not only failing to deal with in the present, but in its latest purges, actively suppressing.