Working Definition of Antisemitism
The Working Definition of Antisemitism is a non-legally binding working definition of antisemitism adopted by the inter-governmental body the International Holocaust Remembrance Alliance (IHRA), and governmental and non-governmental organizations worldwide. The definition (which is published accompanied by illustrative examples) is:
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.
It was developed during 2003–04 and first published on 28 January 2005 on the website of the European Union agency, the European Monitoring Centre on Racism and Xenophobia (EUMC). The publication was made "without formal review", and during the tenure of the EUMC the definition remained a working draft. The EUMC did not adopt the definition, and in November 2013 its successor agency, the Fundamental Rights Agency (FRA), removed it from its website in "a clear-out of non-official documents".
In 2016, the working definition and its list of examples was adopted by a plenary meeting of the 31 countries in the IHRA. Following its adoption by IHRA, the working definition has been adopted for internal use by a number of government and political institutions; in historical order: the United Kingdom, Israel, Austria, Scotland, Romania, Germany, Bulgaria, Lithuania and North Macedonia. The working definition been formally adopted by eight countries[better source needed] and 6 of 31 governments whose countries are members of IHRA have formally endorsed or adopted the definition.
Its adoption of the concept of new antisemitism, specifically connecting some criticism of Israel with antisemitism, has generated controversy. High-profile controversies took place in the United Kingdom in 2011 within the University and College Union and within the Labour Party in 2018. The definition has been contested by scholars of antisemitism including Brian Klug, David Feldman, and Antony Lerman; jurists including Hugh Tomlinson, Stephen Sedley, Geoffrey Bindman, and Geoffrey Robertson; and one of the original drafters Kenneth S. Stern has opposed the misuse of the definition to suppress and limit free speech.
- 1 Background
- 2 EUMC publication
- 3 IHRA publication
- 4 Criticism
- 5 References
- 6 Bibliography
- 7 Further reading
- 8 External links
The EUMC grew from the Commission on Racism and Xenophobia (CRX), established in 1994, and also known as the Kahn Commission. The CRX was transformed into the EUMC in June 1998; officially established by Council Regulation (EC) No 1035/97 of 2 June 1997. Its mandate was to monitor different forms of racism and xenophobia. In 2002, it published a large-scale monitoring report on Islamophobia since 9/11, including a total of 75 reports, 15 from each member state and a synthesis report. This was to be followed by a comparable report on antisemitism.
A report entitled Manifestations of antisemitism in the EU 2002–2003 was published in May 2004, along with a second report on perceptions of antisemitism based on interviews with European Jews. The antisemitism report was based on data collected by the 15 contact points of EUMC's monitoring network, RAXEN, then the robustness of the data evaluated by an independent researcher, Alexander Pollak. The report included a section on definitions, which concluded by proposing this definition:
"Any acts or attitudes that are based on the perception of a social subject (individual, group, institution, or state) as "the ('deceitful', 'corrupt', 'conspiratorial', etc.) Jew".
The report also explored the question of when anti-Zionist or anti-Israel expression might be antisemitic (pp. 13–14) and highlighted the need to develop a common EU definition in order to collect and compare incidents across countries (pp. 25–29).
In December 2003, the Centre for Research on Antisemitism (ZfA) analyzed a pre-release version of this EUMC report. The ZfA report was leaked to the press and poorly received. According to civil rights lawyer Kenneth L. Marcus, in the report the primary cause of rising antisemitism in Europe was assigned to young Muslim males, while in a press release for the subsequent final publication the EUMC assigned the rise in antisemitism to "young, disaffected white Europeans." Marcus writes, the larger issue was missed that the definition of antisemitism that the EUMC used was based on "seven stereotypical traits: deceptiveness, strange-ness, hostility, greed, corruption, conspiratorial power, and deicidal murderousness." The EUMC report concluded that anti-Israeli and anti-Zionism expression could only be considered antisemitic if it was based on the stereotype of Israel as the collective Jew.
Following the EUMC report, the Organization for Security and Co-operation in Europe (OSCE)'s Berlin Declaration recognised that post WW2 antisemitism had changed and was now at times directed against Jews as a collective and Israel as an embodiment of the Jew. The Berlin Declaration also tasked the OSCE's Office for Democratic Institutions and Human Rights (ODIHR) to work with the EUMC to develop better ways to monitor antisemitic incidents in OSCE countries. At the same time, according to Marcus, the EUMC, largely due to pressure from American Jewish organizations, scrapped its failed definition of antisemitism.
2004 Stern, Porat and Bauer version
Israeli scholar Dina Porat, then head of the Stephen Roth Institute at Tel Aviv University, proposed the idea for a common definition during an NGO conference organized by the American Jewish Committee (AJC). Kenneth S. Stern of the AJC, a human rights lawyer, was critical of the EUMC's original definition, as it was confusing about when attacks on Jews related to the Israel/Palestine conflict could be considered antisemitic, and required investigators to know the intentions of attackers. Meanwhile, the EUMC asked "selected Jewish NGOs and academics to provide a simple working definition that would encompass antisemitic demonization of Israel, and which could also be used by their own RAXEN network of national focal points and by law enforcement agencies."
During 2003-04, involving the "efforts of a large number of institutes and individual experts", and coordinated by Stern, together with Dina Porat, Holocaust scholars Yehuda Bauer, Michael Berenbaum and Roni Stauber, the Community Security Trust's Michael Whine, human rights expert Felice D. Gaer, and others, a proposed definition and set of examples was drafted. Stern's draft working definition identified that some criticism of Israel and of Zionism are antisemitic:
Antisemitism is hatred toward Jews because they are Jews and is directed toward the Jewish religion and Jews individually or collectively. More recently, antisemitism has been manifested in the demonization of the State of Israel. Antisemitism frequently charges Jews with conspiring to harm humanity, and it is often used to blame Jews for “why things go wrong.” It is expressed in speech, writing, visual forms and action, and employs sinister stereotypes and negative character traits. (It may also be manifested on people mistaken as Jews, or on non-Jews seen as sympathetic to Jews.)
This was then followed by a list of illustrative examples, including five examples of the ways in which antisemitism manifests itself with regard to the State of Israel. According to both Ken Marcus and Antony Lerman, the novel element in Stern's draft definition was identifying certain forms of criticism of Israel and Zionism as antisemitic, and Marcus also highlights the "praxeological" nature of the definition and its examples, i.e. its focus on pragmatic identification rather than scholarly understanding.
At the suggestion of the American Jewish Committee (AJC), the EUMC director organized a meeting of Jewish representatives to discuss the new definition of antisemitism which had been drafted by Kenneth Stern; the consultation involved representatives of the AJC and European Jewish Congress, the EUMC director and head of research, and the ODIHR Tolerance and Non-Discrimination program director and antisemitism expert. The outcome was negotiated between Andrew Baker, Stern's colleague at the AJC, and Beate Winkler, director of the EUMC. Again Stern was tasked with drafting the final text. Additionally, according to Michael Whine of the Community Security Trust, "the Director of the ODIHR Tolerance and Non-Discrimination Division and the Advisor on Antisemitism played an active role in formulating the Working Definition."
On 28 January 2005, the EUMC published on its website a working definition of antisemitism which shared many features of Stern's earlier draft. Winkler published the definition "without formal review by her political overseers". The definition included the concept of collective antisemitism. Several examples relate to animus towards Israel, including both Holocaust inversion and the application of double standards to Israel. The definition states that "However, criticism of Israel similar to that leveled against any other country cannot be regarded as antisemitic."
The stated purpose of the definition was to "provide a guide for identifying incidents, collecting data and supporting the implementation and enforcement of legislation dealing with antisemitism", and the working definition stated: "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."
The EUMC separated the working definition with 11 examples. This was presented as two separate groups, the first six examples were antisemitic tropes and the following five examples were introduced with the sentence: "Examples of the ways in which antisemitism manifests itself with regard to the state of Israel taking into account the overall context could include". Marcus writes that it was a "working definition" in two senses: a working guide to identifying antisemitism in practice, and a work-in-progress as opposed to a final statement to be approved by the EU's political leadership: "for this reason, formal endorsement was neither sought nor obtained."
The EUMC working definition was prominently referenced by the OSCE Cordoba conference in June that year. The definition was promoted by the AJC, other American Jewish organizations, national Jewish representative bodies, Jewish defence organizations, the Israeli government, pro-Israeli-advocacy groups, and was approved by the OSCE and other pan-European organizations. The EUMC working definition was widely criticized and the organization was put under pressure by supporters and critics of the definition. The EUMC never granted any official status to the definition and claimed that the definition was not wholly endorsed by them; it was only on its website as a guide, a basis for discussion.
In 2007, the EU replaced the EUMC with the Fundamental Rights Agency (FRA), with a broader remit than racism and antisemitism. It has continued to deliver annual reports of antisemitic incidents in the EU countries, based on data from its national contact points.
Use of the EUMC definition
In 2008, the European Forum on Antisemitism commissioned translations of the Working Definition into each of the 33 languages used by the OSCE states.
In 2010, Stern wrote that "In the last five years, the definition has been increasingly used, because it is provides a workable, non-ideological approach to task of identifying antisemitism." The definition was used by monitoring agencies and law enforcement officials in some European countries. According to Stern, by 2010, the definition had
been referenced or relied upon in or by courts (in Lithuanian and Germany), congressional hearings in the United States, online reference tools, newspapers, blogs, scholarly articles, legal articles, radio shows, student groups, museums, national inquiries of parliamentarians (most importantly in the UK), international meetings of parliamentarians, United States Department of State Reports, The United States Commission on Civil Rights, and in submissions to the United Nations Economic and Social Council Commission on Human Rights, Sub-Commission on the Promotion and Protection of Human Rights... It continues to be referenced more and more because of its clear utility. 
The definition was used to some extent by some intergovernmental and EU agencies. For example, the OSCE used the definition in a 2005 report Education on the Holocaust and Antisemitism: An Overview and Analysis of Educational Approaches. By 2010 it was recommended in the course leaders’ Facilitators Guide in the OSCE OHDIR programme to assist law enforcement officials to understand and investigate hate crime, and at the 2010 OSCE High Level Conference on Tolerance and Non-Discrimination in Astana urged participating states to use and promote the Working Definition. In February 2009, the Inter-parliamentary Coalition for Combating Antisemitism conference, in the London Declaration on Combating Antisemitism, issued a call to governments to expand the use of the Working Definition.
Canadian Members of Parliament adopted a resolution to combat antisemitism in 2007 that cited the definition, and the Australian Online Hate Prevention Institute. The definition is used by the Justice Ministers of Austria and Germany in training prosecutors and judges. It was also adopted formally by other governmental and non-governmental organizations in some countries.
In 2006, the All-Party Parliamentary Inquiry into Antisemitism recommended that the UK adopt the definition and that it be promoted by the Government and law enforcement agencies. The Government Response the following year recognised the "useful work being done by the EUMC in identifying antisemitic discourse", noted that the government accepted the definition of racism in the MacPherson Report on institutional racism and that this subsumed the EUMC and went further. It also noted that "from the EUMC's evidence to the Committee", the "definition is in fact a work in progress and has not been recommended to states for adoption". However, it undertook to re-examine this if the EUMC's successor body, the FRA, did recommend it for adoption, an undertaking it repeated the following year in its progress report on implementing the Inquiry's recommendations, noting this had been delayed by the process of transforming into the FRA delayed this. In 2009, the leaders of the Labour and Conservative parties signed the London Declaration endorsing the definition.
The National Union of Students formally adopted the Working Definition at its 2007 Conference. Some individual students unions followed suit, although at others motions to do so were defeated. In 2011, the University and College Union passed a resolution opposing the use of the definition, which led to the Jewish Leadership Council and Board of Deputies of British Jews describing the union as "institutionally antisemitic".
On 1 January 2015, Professor David Feldman stated in a Sub-Report for the Parliamentary Committee Against Antisemitism that the definition had "largely has fallen out of favour" due to criticisms received.
The United States Commission on Civil Rights, after investigating campus antisemitism, adopted the definition, to help universities identify the lines between hateful and non-hateful incidents. In 2007, the EUMC definition was adopted as "an initial guide" by the Office to Monitor and Combat Anti-Semitism within the U.S. Department of State, stating that it "should not be construed... as United States policy".
In 2008, the State Department again endorsed the Working Definition in their Contemporary Global Antisemitism report to Congress, noting that “a widely accepted definition of antisemitism can be useful in setting the parameters of the issue. Such a definition also helps to identify the statistics that are needed and focuses attention on the issues that policy initiatives should address….The EUMC’s working definition provides a useful framework for identifying and understanding the problem and is adopted for the purposes of this report.”
In June 2010 the State Department adopted a definition based on the EUMC definition. It used exactly the same headline definition as the EUMC definition, but made various modifications to the examples, to incorporate Israeli politician Natan Sharansky's 3D Test of Antisemitism. According to Marcus, while it was in effect the State Department definition was more important in determining U.S. government foreign policy than the EUMC definition since it represented an official policy position.
In 2011, the AJC's Ken Stern and Cary Nelson, President of the American Association of University Professors published a letter stating that "It is a perversion of the definition to use it, as some are doing, in an attempt to censor what a professor, student, or speaker can say"; this generated significant controversy within the American Jewish community.
The State Department has since adopted the IHRA definition.
On 12 January 2016, Peter Roskam and Tim Scott introduced a bipartisan bill in the House and Senate on combating antisemitism on campus, under the title of The Anti-Semitism Awareness Act, to codify the working definition. It would require the US Department of Education to refer to the definition in deciding if educational institutions had violated Title VI of the Civil Rights Act of 1964 by tolerating antisemitic harassment. It was passed in the Senate, and on 22 December 2016 it was were referred to the United States House Judiciary Subcommittee on the Constitution and Civil Justice. This hearing was held on 7 November 2017; it "took a heated turn" as four of the nine witnesses argued that the definition infringes on freedom of speech regarding Israel.
On 23 May 2018, the same bills were reintroduced with minor amendments. On 24 July 2018 they were referred again to the Subcommittee on the Constitution and Civil Justice. The Bill was criticised as an attack on free speech.
The EUMC did not adopt the definition, and in November 2013, its successor agency, the Fundamental Rights Agency (FRA), removed it from its website in "a clear-out of non-official documents"; a spokesperson stated at the time that "We are not aware of any official definition [of anti-Semitism]". The FRA also said: "Since its development we are not aware of any public authority in the EU that applies it [and the] FRA has no plans for any further development." In an August 2010 publication on antisemitism, the FRA did not mention the working definition. Following on from the EUMC's 2004 report the FRA's 2012 report on antisemitism equates New antisemitism with anti-Zionism. FRA also used the term secondary antisemitism to define similar phenomenon in relation to the Holocaust. In 2013, the FRA confirmed that it did not have the authority to "either set or repudiate any definitions" of antisemitism. In April 2016, in response to a motion passed at the UK National Union of Students annual conference endorsing the definition, the FRA stated that the working definition “is not an official EU definition and has not been adopted by FRA”.
On 26 May 2016, IHRA adopted a non-legally binding working definition of antisemitism. The IHRA adoption took place following the efforts of Mark Weitzman of the Simon Weisenthal Center, at the Bucharest plenary meeting of the IHRA on 30 May 2016, where its 31 member countries voted to adopt it.
Mark Weitzman later told a workshop that the definition was copied from the EUMC version as there was "not enough time to invent a new one". The decision to adopt the text was based on consensus amongst IHRA's 31 member countries.
|“||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.||”|
Accompanying the definition, to "guide IHRA in its work," the IHRA has written eleven contemporary examples which "may serve as illustrations". Some of the examples explain that criticising Israel can stray into antisemitic discourse. In particular, it states that, "taking into account the overall context", examples could include "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" and "claiming that the existence of a State of Israel is a racist endeavor" (and nine other examples).
The EUMC and IHRA definitions are set out differently. The EUMC 38-word working definition is distinguished from the rest of the text by being set in bold type. The same text in the IHRA definition is not only also in bold type, it's enclosed in a box which contains the longer part of a prefatory sentence that begins outside the box. The European Coordination of Committees and Associations for Palestine states that on 12 September 2017 the IHRA Permanent Office in Berlin replied to their inquiry thusly. "[…] The Plenary of the International Holocaust Remembrance Alliance (IHRA) adopted the working definition of antisemitism under the Romanian Chairmanship on 26 May 2016. The working definition, like all IHRA decision, is non-legally binding. The working definition is the text in the box…" Antony Lerman argues that this confirmed that the definition and the examples were separate things.
In late 2016, the Organization for Security and Cooperation in Europe considered adopting the definition; the adoption was blocked by Russia.
The United Kingdom (12 December 2016) was the first country to adopted the definition, followed by Israel (22 January 2017), Austria (25 April 2017), Scotland (27 April 2017), Romania (25 May 2017), Canada (23 August 2017), Germany (20 September 2017) and Bulgaria (18 October 2017). The European Parliament voted in favor of a resolution calling for member states to adopt the definition on 1 June 2017 - although without explicitly quoting the examples. As of 29 March 2019, Lithuania (24 January 2018), Moldova (20 January 2019), and North Macedonia have also adopted the definition. In addition, the state of South Carolina, the United States Department of Education, the city of Bal Harbour in Florida, the Greek Ministry of Education, Research and Religious Affairs, and Western Washington University adopted it.
In March 2016, the UK government published a short article on defining antisemitism, authored by Eric Pickles, then Secretary of State for Communities and Local Government, which stated "for those seeking a definition of antisemitism, the UK’s College of Policing does include a working definition of antisemitism [i.e. the EUMC working definition] in their guidance to police forces in the UK", which was then quoted in full in the article, this definition was the EUMC working definition.
In October 2016, the cross-party Commons Home Affairs Select Committee reported on antisemitism in the UK. Its report included a long section on defining antisemitism, including a discussion of the working definition, noting that the President of the Board of Deputies of British Jews gave evidence describing the definition as "helpful, comprehensive and fit for purpose”, as well as a summary of some criticisms of the definition. Among the Committee's recommendations were "that the IHRA definition, with our additional caveats, should be formally adopted by the UK Government, law enforcement agencies and all political parties, to assist them in determining whether or not an incident or discourse can be regarded as antisemitic." The caveats were two additional clarifications designed to protect freedom of speech in discussion of Israel/Palestine:
It is not antisemitic to criticise the Government of Israel, without additional evidence to suggest antisemitic intent. 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.
In December, the UK government responded that it had agreed to adopt the IHRA definition, but that the caveats were unnecessary given the definition's clause “criticism of Israel similar to that levelled against any other country cannot be regarded as antisemitic” is sufficient to ensure freedom of speech. The government also noted that the police already used a previous version of the definition (the EUMC version) and that it "is a useful tool for criminal justice agencies and other public bodies to use to understand how anti-Semitism manifests itself in the 21st century". Later that month, the government announced it would formally adopt the definition.
Subsequently, the definition has been adopted by some 120 UK municipalities and by the London Assembly and the Mayor of London. In July 2018, an Early Day Motion was proposed by Labour Party MP Luciana Berger and signed by 39 mainly Labour MPs welcomed the UK's formal adoption of the definition and noted that the Welsh and Scottish Governments, the Greater Manchester Combined Authority, London Assembly, and over 120 local councils had formally adopted the definition.
It has also been adopted by religious and educational institutions such as the Church of Scotland  and Kings College London. However, in 2017 a resolution to the University and College Union called for the union to formally reject the definition.
In July 2018, the Labour Party National Executive Committee (NEC) adopted without a vote a definition of antisemitism based on the IHRA definition, although it removed or amended four out of eleven examples of what allegedly constitutes antisemitism, added an additional three examples and amended points showing how criticising Israel can be antisemitic. Labour said the wording in the code of conduct "expands on and contextualises" the IHRA examples. The Shadow Solicitor-General, Nick Thomas-Symonds, said many of IHRA's examples were "adopted word for word in our code of conduct" while "the ground is covered" for others. He said: "We should be going further than the IHRA definition and the language of the code is at times much stronger. We need to expand on a lot of the examples to ensure that we have a legally enforceable code so that we can enforce discipline as everyone wants to." The NEC's modified examples sparked criticism amid allegations of antisemitism, leading the NEC to announce that it would review the decision in consultation with the UK Jewish community.
A statement by the UK Delegation to the IHRA stated that "Any 'modified' version of the IHRA definition that does not include all of its 11 examples is no longer the IHRA definition. Adding or removing language undermines the months of international diplomacy and academic rigour that enabled this definition to exist. If one organization or institution can amend the wording to suit its own needs, then logically anyone else could do the same. We would once again revert to a world where antisemitism goes unaddressed simply because different entities cannot agree on what it is." The European Coordination of Committees and Associations for Palestine states that on 12 September 2017 the IHRA Permanent Office in Berlin replied to their inquiry concerning the working definition thusly. "[…] The Plenary of the International Holocaust Remembrance Alliance (IHRA) adopted the working definition of antisemitism under the Romanian Chairmanship on 26 May 2016. The working definition, like all IHRA decision, is non-legally binding. The working definition is the text in the box…" Antony Lerman argues that this confirmed that the definition and the examples were separate things.
In September 2018, the NEC decided to add all 11 IHRA examples (unamended) to the definition of antisemitism. A few days later the Parliamentary Labour Party voted by a majority of 205 to adopt the unamended definition to their standing orders.
Later in the month, a report by the Media Reform Coalition examined over 250 articles and broadcast news segments of coverage of Labour's revised code of conduct on antisemitism, and found over 90 examples of misleading or inaccurate reporting. The research found evidence of "overwhelming source imbalance" in which critics of Labour's code of conduct dominated coverage which failed to include quotes from those defending the code, critiquing the IHRA working definition and key contextual facts about the IHRA working definition.
Other political parties
In July 2018, the Conservative Party claimed it had adopted the definition in full. However, at the time their code of conduct approved in December 2017, which only governs the behavior of anyone representing the Party as an elected or appointed official or office-holder, didn't mention antisemitism or specify a definition of it. Since then their code has been amended to include an interpretive annexe on discrimination, which does refer to the IHRA definition and says it was adopted in December 2016 (the date the Conservative government adopted the definition).
In October, Green Party of England and Wales did not adopt the definition. Their home affairs spokesman and former deputy leader, Shahrar Ali, told their annual conference the definition was "politically engineered to restrict criticism of Israel's heinous crimes upon the Palestinian people".
In March 2005, Brian Klug argued that this definition proscribed legitimate criticism of the human rights record of the Israeli Government by attempting to bring criticism of Israel into the category of antisemitism, and does not sufficiently distinguish between criticism of Israeli actions and criticism of Zionism as a political ideology, on the one hand, and racially based violence towards, discrimination against, or abuse of, Jews. In 2009, sociologist Paul Igansky states that parallels between Israeli policy and those of the Nazis are "arguably not intrinsically antisemitic", and that the context in which they are made is critical.
In December 2016, David Feldman wrote: "While some consensus is needed in this debate, I fear this definition is imprecise, and isolates antisemitism from other forms of bigotry." He added: "The text also carries dangers. It trails a list of 11 examples. Seven deal with criticism of Israel. Some of the points are sensible, some are not. Crucially, there is a danger that the overall effect will place the onus on Israel's critics to demonstrate they are not antisemitic."
In July 2018, Antony Lerman wrote: "investing all in the IHRA working definition of antisemitism is just making matters worse. This is the time to take the path to working with other minority groups, civil society organizations and human rights bodies to confront antisemitism within the context of a wider antiracist struggle, not to perpetuate the notion that Jews stand alone." He later stated that "the case against IHRA is so strong" and "...the fundamental principle that IHRA is so flawed it should be abandoned..."
In the same month, Klug wrote: "...critics maintain that Labour (or anyone else) has to adopt the IHRA document 'in full'. But the text is not written in stone. It is a working definition with working examples. It is a living document, subject to revision and constantly needing to be adapted to the different contexts in which people apply its definition... But people of goodwill who genuinely want to solve the conundrum – combating antisemitism while protecting free political speech – should welcome the code as a constructive initiative, and criticise it constructively... For this to happen, the seas of language are going to have to subside and critics must stop treating the IHRA document as immutable. In the Judaism in which I was nurtured and educated, there is only one text whose status is sacred; and it was not written by a committee of the IHRA."
In February 2017, a letter signed by 244 academics asserts "this definition seeks to conflate criticism of Israel with anti-Semitism" and raised concerns about muddying the definition of anti-Semitism and restricting free debate on Israel. The academics included Conor Gearty, Dorothy Griffiths, Moshé Machover, Iain Chalmers, Steven Rose, Gilbert Achcar, Penny Green, Marian Hobson, Erica Burman, Richard Seaford, Colin Eden, Neil Davidson, Catherine Cobham, Matthew Beaumont, Richard Bornat, Paul Graham Taylor, Ray Bush, Michael Edwards, Peter Collins, Elizabeth Cowie, Mona Baker, Laleh Khalili, Aneez Esmail, Hilary Rose, Pat Devine, Daphne Hampson, Clément Mouhot, Peter Hallward, Frank Land, Steve Hall, Steve Keen, Murray Fraser, Ian Pace, Philip Wadler, Robert Boyce, Sharon Kivland, Guy Standing and Neil Smith.
In August 2018, Professor Rebecca Ruth Gould published the first extended scholarly critique of the IHRA definition: Legal Form and Legal Legitimacy: The IHRA Definition of Antisemitism as a Case Study in Censored Speech. Gould described "the IHRA definition as a quasi-law" and documents the meaning of the IHRA document's self-description as "legally non-binding," the history of its application, and the legal dynamics bearing on its deployment in university contexts. In November, Gould stated that "These dimensions are made all the more contentious by its imprecise content and the significant ambiguity around its legal status. On the basis of the many ways in which the IHRA definition has been used to censor speech, particularly on university campuses" and "that the definition's proponents have not paid enough attention to the harms of censoring Israel-critical speech."
In March 2017, human rights lawyer Hugh Tomlinson QC criticised the International Holocaust Remembrance Alliance (IHRA) definition as "unclear and confusing", saying it did not have "the clarity which would be required" from a legal definition of antisemitism." He addressed concerns that the definition conflates antisemitism with criticism of Israel and could be misused to curtail campaigning on behalf of Palestinians. He stated: "Properly understood in its own terms the IHRA Definition does not mean that activities such as describing Israel as a state enacting a policy of apartheid, as practising settler colonialism or calling for policies of boycott divestment or sanctions against Israel can properly be characterized as antisemitic. A public authority which sought to apply the IHRA Definition to prohibit or sanction such activities would be acting unlawfully." He presented his legal opinion on the new working definition at the House of Lords.
In May 2017, former Court of Appeal judge Stephen Sedley said: "Shorn of philosophical and political refinements, anti-Semitism is hostility towards Jews as Jews. Where it manifests itself in discriminatory acts or inflammatory speech it is generally illegal, lying beyond the bounds of freedom of speech and of action. By contrast, criticism (and equally defence) of Israel or of Zionism is not only generally lawful: it is affirmatively protected by law. Endeavours to conflate the two by characterising everything other than anodyne criticism of Israel as anti-Semitic are not new. What is new is the adoption by the UK government (and the Labour Party) of a definition of anti-Semitism which endorses the conflation." In July 2018, Sedley wrote: "...Sir William Macpherson did not advise that everything perceived as racist was ipso facto racist. He advised that reported incidents that were perceived by the victim as racist should be recorded and investigated as such. His purpose was to reverse the dismissive culture that characterised the reporting and policing of racial incidents. To derive from this fallacy a proposition that anything perceived by one or more Jewish people as antisemitic is legally an act of racism is not only absurd: it overlooks another aspect of legality, the right of free expression contained in article 10 of the European convention on human rights and now embodied in our law by the Human Rights Act. It is a right that may be qualified by proportionate legal restrictions necessary for protecting the rights of others: hence the legal bar on hate speech." Regarding the examples he said: "They point to the underlying purpose of the text: to neutralise serious criticism of Israel by stigmatising it as a form of antisemitism."
In July 2018, human rights solicitor Geoffrey Bindman wrote: "Unfortunately, the definition and the examples are poorly drafted, misleading, and in practice have led to the suppression of legitimate debate and freedom of expression. Nevertheless, clumsily worded as it is, the definition does describe the essence of antisemitism: irrational hostility towards Jews. The 11 examples are another matter. Seven of them refer to the state of Israel. This is where the problem arises. Some of them at least are not necessarily antisemitic. Whether they are or not depends on the context and on additional evidence of antisemitic intent."
In August 2018, Rebecca Ruth Gould noted that since the adoption of the IHRA definition: "at least five universities [in the UK], and likely many more, have had planned events cancelled or otherwise censored due to a perceived need to comply with this definition, even in the absence of its legal ratification."
In August 2018, Geoffrey Robertson QC, an expert on freedom of speech and human rights, states that the working definition fails to cover the most insidious forms of hostility to Jewish people. He said that several of the examples are so loosely drafted that they are likely to chill free speech, legitimate criticisms of the Israeli Government and coverage of human rights abuses against Palestinians. He said the definition was not intended to be binding and was not drafted as a comprehensible definition the British government's adoption of the working definition "has no legal effect" and recommended that any public bodies or organizations should follow the Home Affairs Committee recommendation and add to it the clarification that "it is not anti-Semitic to criticise the Government of Israel without additional evidence to suggest anti-Semitic intent." He concluded that "It is imprecise, confusing and open to misinterpretation and even manipulation... is not fit for any purpose that seeks to use it as an adjudicative standard" and political action against Israel is not properly characterised as antisemitic unless the action is intended to promote hatred or hostility against Jews in general.
The main drafter of the working definition and its examples, Kenneth S. Stern, cautioned against the free speech implications of its use as a legal tool. He has opposed efforts to enshrine it in legislation and wrote a letter to members of the US Congress warning that giving the definition legal status would be "unconstitutional and unwise" in December 2016. In 2011, he co-authored an article about how the 'Working Definition' was being abused in Title VI cases, because it was being employed in an attempt to "restrict academic freedom and punish political speech." In November 2017, Stern explained to the US House of Representatives that the definition has been abused on various US university campuses. He warned that it could "restrict academic freedom and punish political speech" and questioned whether definitions created by minority groups should be legislatively enshrined, giving as one of several examples.
"Imagine a definition designed for Palestinians. If "Denying the Jewish people their right to self-determination, and denying Israel the right to exist" is antisemitism, then shouldn't "Denying the Palestinian people their right to self-determination, and denying Palestine the right to exist" be anti-Palestinianism? Would they then ask administrators to police and possibly punish campus events by pro-Israel groups who oppose the two state solution, or claim the Palestinian people are a myth?"
He states that the definition was created "as a tool for data collectors in European countries to identify what to include and exclude from their reports about antisemitism, and to have a common frame of reference so that data might be compared across borders." He "encouraged the Department of State's first Special Envoy for Antisemitism to promote the definition as an important tool." He used it effectively as the framework for a report on global antisemitism. He added: "approaches to antisemitism that endorse and promote academic freedom are more likely to work, in part because they underscore the academy's goal of increasing knowledge and promoting critical thinking.... approaches that explain academic freedom away or harm it will not only fail, they make the problem worse."
In August 2017, Jewish Voice for Labour (JVL) saw the working definition as "attempts to widen the definition of antisemitism beyond its meaning of hostility towards, or discrimination against, Jews as Jews". In August 2018, JVL thought the IHRA examples of antisemitism fell short of providing "a clear and unambiguous statement based on attitudes to Jews as Jews, not attitudes to a country, Israel".
In December 2017, the Board of Deputies of British Jews wrote that "there is a worrying resistance from universities to adopting it and free speech is given as the primary reason for their reluctance. It is said to be 'contentious' because some people argue that current concerns surrounding antisemitism are motivated by ulterior motives, namely defending the policies of the Israeli government. We would suggest that if a definition of prejudice against any other community referenced arguments that their concerns were even partially guided by ulterior motives then that community would infer that the definition did not take prejudice and discrimination against their group seriously. It is also not an assault on free speech to say that students or staff should not be indulging antisemitic tropes. Rather, it is part of what makes a healthy society."
In May 2018, the members' conference of the British civil liberties advocacy group Liberty passed a motion resolving that the definition could constitute a threat to freedom of expression by "conflating anti-semitism with criticism of Israel and legitimate defence of the rights of Palestinians."
In July 2018, a statement signed by 39 left-wing Jewish organizations in 15 countries, including six based in the UK, was released criticising the working definition, declaring that it was "worded in such a way as to be easily adopted or considered by western governments to intentionally equate legitimate criticisms of Israel and advocacy for Palestinian rights with antisemitism, as a means to suppress the former" and that "this conflation undermines both the Palestinian struggle for freedom, justice and equality and the global struggle against antisemitism. It also serves to shield Israel from being held accountable to universal standards of human rights and international law." The statement went on to urge governments, municipalities, universities and other institutions to reject the IHRA definition.
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The European Union has not recently afforded the International Definition the respect that it has elsewhere received. Neither the EUMC nor its successor agency, the European Union's Fundamental Rights Agency, has ever formally endorsed the definition. Rather, the agency's Executive Director issued it without formal review by her political overseers. This gave the document a peculiar vulnerability to the winds of political change. In 2013, as we have seen, the Fundamental Rights Agency took the Working Definition down from its website during the course of renovations.
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In a letter to European Union Representative for Foreign Affairs and Security Policy, Baroness Catherine Ashton, the Simon Wiesenthal Centre's Director for International Relations, Dr. Shimon Samuels, noted "The Trust has now, apparently, reversed its ruling following the Definition's removal, claiming: 'A press officer at the FRA has explained that this was a discussion paper and was never adopted by the EU as a working definition, although it has been on the FRA website until recently when it was removed during a clear-out of non-official documents. The link to the FRA site provided by the complainant in his appeal no longer works.'"
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At the same time, the Working Definition has had its share of critics, as should be expected of any serious intergovernmental effort to address this difficult subject. In 2011, the United Kingdom's University and College Union (UCU), a trade union of English university professors, considered a motion to disassociate itself from the EUMC definition ... based on a belief that it 'confuses criticism of Israeli government policy and actions with genuine anti-Semitism' ... This triggered a lively controversy that engulfed not only the English academic and Jewish communities, but also Jewish, human rights, and higher education groups throughout Europe and Worldwide. In the United States, the meaning and application of the Working Definition have been contested even among those who support it. In 2011, Kenneth Stern, who was then the top anti-Semitism expert at the American Jewish Committee, drew intense criticism when he ... argued that the Working Definition was being invoked by complainants in federal civil rights cases before the United States Department of Education's Office for Civil Rights (OCR) to censor speech that is critical of Israel.
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