Stephen Sedley: Statement on IHRA

Former Lord Justice of Appeal and Judge ad hoc of the European Court of Human Rights; past visiting professor of law, Oxford University.
Stephen Sedley has sent us this statement for publication ahead of our meeting on ‘Palestine/Israel and academic freedom.

It is now five years since the International Holocaust Remembrance Alliance (the IHRA) published what it called “a non-legally binding working definition of anti-semitism”. It is a clumsy piece of drafting distinguished by two particular features: it fails the first test of any definition by being open-ended and indefinite; and it is accompanied by examples some of which are visibly designed to protect Israel from legitimate criticism. 

In spite of its self-description as “non-legally binding”, the supposed definition is rapidly acquiring the force of law by being used as a basis for witch-hunts within institutions and organisations against bona fide critics of Israel. Ignoring the Home Affairs Select Committee’s warning that the document, if unqualified, risked stifling free speech, government has set about enforcing its adoption by threatening to defund institutions which fail to adopt it.

It may therefore be relevant to say a word about the IHRA and the genesis of its “working definition”.  Although the IHRA is a publicly-funded intergovernmental body, based in Berlin, it publishes no minutes and does not reveal who attends its meetings. Among its first member-states were the US, the UK and Israel.

Recent research, however, has established that the “definition” adopted by the IHRA’s Bucharest plenary in 2016 consisted only of the two initial sentences, taken from an abandoned document produced by a European predecessor body. The first is:

“Anti-semitism is a certain perception of Jews, which may be expressed as hatred towards Jews.”

The second sentence elaborates the possible reach of “rhetorical and physical manifestations of anti-Semitism” but adds nothing by way of further definition.

How then has the supposed IHRA definition come to include such examples as

“the targeting of the state of Israel, conceived as a Jewish collectivity” and “denying the Jewish people their right to self-determination, e.g. by claiming that the existence of a state of Israel is a racist endeavour” ?

So far as can be ascertained, the grafting on of the list of examples was the work of representatives of two uncompromisingly pro-Israel organisations, the Simon Wiesenthal Centre and the American Jewish Committee. There appears to be no evidence that the list was ever adopted by a plenary meeting of the IHRA. None of this has prevented it from being weaponised.

Anti-semitism, like pornography, may be easier to recognise than to define, but a straightforward and hard-edged definition is that it is hostility towards Jews as Jews. It is neither something as subjective as a “perception” (to use one of the IHRA’s two inappropriate nouns) nor necessarily something as flagrant as hatred (to use the other). In neither instance is it coextensive with criticism (shared, incidentally, by many Jews worldwide) of Israel’s laws, policies and practices, or of Zionism itself.

Failure – or more realistically refusal – to recognise the legitimacy of such critiques is a gag upon freedom of thought and speech, a human right no less real than freedom from racial discrimination.

Stephen Sedley

5 June 2021

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