The Government’s Anti-Semitism Definition is Potentially Unlawful as it Contradicts Article 10 of the ECHR
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| Sir Stephen Sedley |
Article 10 of the ECHR states that:
1. 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. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. 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.
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| Omar Barghouti - the latest victim of Israel's attack on freedom of speech - in the UK the same type of campaign is being waged by Theresa May and New Labour's useful idiots |
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| Professor Richard Falk - the former UN Rappoteur in Gaza who has had 2 meetings cancelled because of the IHRA definition of anti-Semitism |
The IHRA ‘definition’ of ‘anti-Semitism’, which was first adopted by the Home Affairs Select Committee Report on Anti-Semitism last October, is almost identical to the EUMC Working Definition on Anti-Semitism which was removed from the web site of the EU’s Fundamental Rights Agency in 2013. In November 2013 the Simon Wiesenthall Centre’s Shimon Samuel’s bitterly complained about this decision to the EU's Foreign Minister, Catherine Ashton
In its place the IHRA definition of anti-Semitism has been conjured up. It has not only been warmly
welcomed by Theresa May, a Prime Minister who is even more reactionary than Thatcher, but by Jeremy Corbyn. [see Manufacturing Consent On ‘Anti-Semitism’]
No one should make excuses for Corbyn’s cowardice over this. Prior to becoming party leader he had spent 30 years supporting the Palestinians. When he became leader he immediately backtraced as a result of having himself been accused of ‘anti-Semitism’. Instead of fighting back and saying that yes, he opposed anti-Semitism but he also opposed the political use of anti-Semitism to attack supporters of the Palestinians and anti-Zionists, he caved in.
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| Hugh Tomlinson QC |
The result is that Labour is now further to the right on Palestine than it was under Tony Blair and Corbyn is reduced to nodding his head when Theresa May mentions the word ‘anti-Semitism’.
On the 8th March a legal opinion was obtained from HUGH TOMLINSON QC that the IHRA definition of anti-Semitism and the way it is being applied is potentially unlawful and flies in the face of Article 10(2) of the European Convention on Human Rights. In paragraph 21 of the Opinion, Tomlinson states that:
In my view any public authority which sought to apply the IHRA Definition to decisions concerning the prohibition or sanctioning of activity which was critical of the State or Government of Israel would be acting unlawfully if it did not require such activity also to manifest or incite hatred or intolerance towards Jews. If an authority applied the IHRA Definition without such a requirement it would be in breach of Article 10 of the Convention and would, therefore, be acting unlawfully under domestic law in the United Kingdom.
On 27th March the group Free Speech on Israel held a press conference in the House of Lords at which the former Court of Appeal Judge, Sir Stephen Sedley, spoke. Sedley is not a household name but he was the best friend that the labour movement and civil libertarians ever had on the benches of that august and conservative body, the Court of Appeal. A number of his more liberal judgements, especially his ruling that the fiction that agency workers were not employees was not credible, were reversed by the House of Lords. [see Dacas v Brook Street Bureau]
Sedley gave a very coherent and cogent analysis of why the IHRA definition of anti-Semitism has been used, not to tackle anti-Semitism but as a means to clamp down on free speech on Israeli.
“The purpose of this meeting is to draw attention to a growing concern about the misuse for political purposes of the concept of anti-semitism. The misuse in question is the conflation of criticism of Israel with hostility to Jews. Its political purpose is to prohibit or inhibit discourse or action inimical to the state of Israel.
There are two distinct backstories to the catch-all meaning of antisemitism with which this meeting is immediately concerned.
One is the longstanding, and largely successful, endeavour to segregate anti-semitism from racism. It has for a good many years been part of Zionist discourse to contend that racism is one thing – based on concepts of genetic inferiority – and anti-semitism another, based on historical and theological as well as genetic factors. This is not the place to pursue the argument, save perhaps to note that anti-semites do not as a rule worry about whether their targets are observant, orthodox or secular Jews: their spleen is directed at members of a race.
The other backstory is the Zionist claim to represent all the world’s Jews – a claim welcomed by Islamic extremists. Nothing suits Islamic fundamentalism better than the idea that all Jews are equally implicated in the excesses of Zionism. The claim depoliticises Zionism and legitimises jihadist anti-semitism.[1]
Against this already dangerous backdrop, we are now looking at the no doubt well-intentioned but naïve adoption by our executive government of a protean definition of anti-semitism which is open to manipulation and capture by the background interests I have mentioned. In this regard I would go rather further than Hugh Tomlinson does in his careful and well-reasoned Opinion. The governing proposition that antisemitism is “a certain perception of Jews, which may be expressed as hatred towards Jews” carries the clear implication that it may equally be expressed in other, unspecified, ways.
As Hugh Tomlinson says, this passage is vague and confusing; but I am not sure that the critique should stop there. It seems to me that its open-ended formulation has a thought-out purpose: to bring within the pale of antisemitism perceptions of Jews – possibly but not necessarily of all Jews – which fall short of hatred. While this may legitimately cover familiar antisemitic slanders about greed, clannishness and so forth, it is also capable of embracing perceptions of Zionism which are the subject of legitimate debate and disagreement.
That this is part of the intended reach is now becoming evident. One of the adopted examples is “Denying the Jewish people their right to self-determination, e.g. by claiming that the existence of the State of Israel is a racist endeavour.” This passage bristles with controversial assumptions. Is there a single entity capable of being characterised as “the Jewish people”? Am I obliged to regard myself as bound by ethnicity to people like Benjamin Netanyahu? Then, assuming that there is such an ethnic entity, from where does it derive a collective right to self-determination capable of defeating the right to self-determination of other peoples, above all the Palestinian people? There have been many Jews – my father was one – who long before 1947 opposed the Zionist project on the ground that Jewish exceptionalism was exactly what antisemitism needed.
Lastly, accepting as one must that the state of Israel, whatever has been argued in the past about its right to exist, is a geopolitical ‘fact on the ground’, why are people, including many Jews, not entitled, without being branded anti-Semitic, to regard it in its present form as both a colonialist and an apartheid state? The demand that criticism, to be legitimate, must be ‘similar to that levelled against any other country’ assumes that there are other countries which behave like Israel. There may well be, but how can this properly be a precondition of any criticism?
I will not travel over the consequential legal ground that Hugh Tomlinson so ably traverses. It is sufficient to emphasise these points:
1. The adoption by government of the IHRA’s “working definition” does not clothe it with any legal force. At the same time, it is not neutral: it may well influence policy both domestically and internationally.
2. No policy, however, can be adopted or used in defiance of the law. The Convention 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. And s. 43 of the 1986 Education Act, while passed to deal with very different kinds of controversy, vouchsafes an individual right of free expression in all higher education institutions which cannot be cut back by governmental policies.
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.”
[1] For my part I am critical of the ECtHR’s judgment in CICAD v Switzerland, because it failed to recognise that the offending article, with its assertion that “when Israel is exposed … it is Judaism that is exposed at the same time” was a classic attempt to taint all Jews with Israel’s violations of human rights. Its author in my view had been rightly accused of antisemitism.