Geoffrey Robertson QC’s Opinion on the IHRA Definition and Its Consequences for Freedom of Expression: Some (Incomplete) Thoughts

The Palestinian Return Centre has today [31 August 2018] published an Opinion from Geoffrey Robertson QC (“GR”) on the interpretation and impact on free speech, of the British Government’s acceptance in 2016 of the International Holocaust Remembrance Alliance’s (IHRA) Working Definition of Antisemitism (“the Definition”). A summary of his Opinion is available here (£). 

Two preliminary comments are in order:

i. Consideration of some contemporary examples of antisemitism will necessarily involve linking to some pretty nasty, extremely racist websites. No endorsement of those websites is intended.

ii. GR is not the first QC to have drafted an Opinion on the Definition. Hugh Tomlinson QC prepared a (broadly critical) Opinion in March 2017. David Wolfson QC, along with Jeremy Brier, prepared a (broadly positive) Opinion in July 2017. All three Opinions are just that – Opinions. None of them have any binding legal force whatsoever.

With those caveats out of the way, here are some (non-exhaustive) observations on GR’s Opinion. I will largely bypass GR’s comments on the law relating to freedom of speech, and will instead focus on what he says about the state of Israel and about antisemitism.

In paragraph 9, GR writes, somewhat disparagingly (emphasis added):

[The Definition] originated as a “working definition” in an obscure European Union agency, the European Monitoring Centre on Racism and Xenophobia [EUMC], in 2005. This agency did not formally adopt it and in due course abandoned it.

This assertion is essentially repeated in paragraph 14:

The definition was never formally adopted by the EU Committee: it was placed on its website in 2005, from which it was later removed and was adopted (for want, it may be, of any alternative) by other bodies, and was taken down in 2013.

Mark Gardner of the Community Security Trust gives a somewhat different account:

The IHRA definition is nearly identical to the definition issued in 2005 by the European Union’s Monitoring Centre for Racism and Xenophobia. Then the EU’s leading anti-racism body, it drafted the definition because of rapidly worsening antisemitism across Europe. Their definition was for diverse European police forces, prosecutors and governments to better understand antisemitism, so their actions against it could be better assessed by European anti-racism officials and Jewish communities… In 2007, the Monitoring Centre became the Fundamental Rights Agency. EU directives changed its role, so it stopped promoting the definition.

Contrary to GR’s claim that (a) the EUMC was obscure and (b) that it abandoned the Definition, Gardner asserts that (a) the EUMC was the EU’s “leading anti-racism body” and (b) that it did not “abandon” the Definition, but rather was itself replaced by a  different organisation with a different role.

In paragraph 15, GR quotes the following extract from the Definition (emphasis added):

“Manifestations might include targeting the State of Israel, conceived as a Jewish collectivity. However, criticism of Israel similar to that levelled against any other country cannot be regarded as anti-Semitic.

The emboldened words above are the subject of GR’s attention in his next two paragraphs.

In paragraph 16, GR writes this:

16. Israel is unlike any other country. It was established by resolution of the Security Council in 1947, to compensate for the Holocaust, granting over half of Palestine – a country which at the time contained 1.3 million Arabs and a small minority of Jewish settlers. It won independence from British rule partly as a result of a terrorist campaign; it turned hundreds of thousands of Palestinians into refugees; it acquired territory (the Gaza strip and the West Bank) through war and refused Security Council demands to withdraw its armed forces; it has persistently been criticised by Britain and by the Red Cross and respected Human Rights NGOs like Amnesty International and Human Rights Watch for policies which have had a “catastrophic” effect on the Palestinian economy and on the health, wealth and wellbeing of its people, for its Parliament (the Knesset) passing various laws that discriminate against Arab Israelis (20% of the population, i.e. 9 million people) and for military occupation which stifles political development and has involved frequent lethal attacks with disproportionate civilian causalities, and for encouraging “Settlements” on Palestinian land. As recently as last month, it’s “One Nation” Basic Law was widely condemned as consigning Palestinians to second-class citizenship, and many commentators described it as “a form of apartheid.” It points out, differentiating itself from other countries, that it has been at various times subject to terrorist atrocities – suicide bombing campaigns, routine rocket attacks and armed confrontations with a political organisation – HAMAS – which refuses to recognise its right to exist.

Whilst some of GR’s brief account of the foundation and history of the state of Israel is accurate, it is nonetheless clearly slanted. For example, he does not mention that the land allocated to the Jewish State in the 1947 UN Partition Plan was broadly based on areas where Jews were in a majority, and included the non-arable Arab desert. Nor does he mention that the Jews accepted this Partition whilst Arab leaders rejected it. He does not mention the attempt of the neighbouring Arab states to destroy the nascent state of Israel at birth. He mentions neither the complex reasons for the flight of the Palestinian refugees, nor the flight of similar numbers of Jews from Arab states. His statement that “[Israel] acquired territory (the Gaza strip and the West Bank) through war and refused Security Council demands to withdraw its armed forces” distorts both the origins of the 1967 Six Day War and UN Resolution 242.

17. All member-states of the UN are bound to comply with international human rights law (notably the International Covenant on Civil and Political Rights) and criticism of Israel on that score could not be regarded as anti-Semitic. Unlike most countries, it is engaged in military operations in occupied territory, and so is subject to International Humanitarian Law (the laws of war ) and may be open to legitimate criticism for breaches. It has what fits the definition of a displaced indigenous minority (the Palestinians) and is under an obligation, which it may legitimately be criticised for disregarding, to protect them from discrimination and to respect their dignity. Therefore, criticism of Israel and its government of the kind mentioned in para 13 [sic – I think he means paragraph 15] above is likely to be dissimilar to criticism levelled against other countries, but is not for that reason anti-Semitic. [emphasis added]

It is self-evident that legitimate criticism of Israeli policy is not antisemitic. It is also self-evident that, owing to the unresolved territorial dispute over/occupation of Gaza and the West Bank, criticism of Israel will often be different in content to criticism of countries not involved in such disputes – but will not be antisemitic or that reason alone (as GR states at the start of paragraph 18). However, GR largely overlooks the fact that Israel is not the only country involved in such disputes. Turkey’s occupation of Northern Cyprus, Russia’s occupation of the Crimea, Morocco’s occupation of Western Sahara, and China’s occupation of Tibet all bear certain similarities to Israel’s occupation of the West Bank. To use the wording of the Definition – criticism of Israel which is dissimilar to that levelled against other countries in similar situations “could, taking into account the overall context” be antisemitic.

In paragraph 18, GR writes this (emphasis added):

  1. To suggest that the IHRA definition is internally protective of free speech is mistaken: criticisms may be made of Israel that are not made of other countries, but this of itself does not constitute anti-Semitism. Moreover, the test (if it is used as a test) is confusing. For example, Dr Manfred Gerstenfeld, an anti-Semitism scholar, writes in Arutz Sheva of the “huge importance” of the IHRA definition: “Using the IHRA definition it becomes clear that BDS activities are anti-Semitic as they are only applied against Israel.” This is plainly wrong, not only because sanctions are applied to other countries (Russia, Iran, North Korea, and formerly apartheid-era South Africa) but because the impression from the IHRA wording has led this commentator to think that criticism of Israel can be defined as anti-Semitic simply because it targets Israel and does not include other countries. This is just one example of how the loose words in the definition have been misunderstood and misapplied, in a way which could be used to besmirch legitimate political action as “anti-Semitic.”

The highlighted words are problematic for two reasons. Firstly, GR appears to conflate “speech”, “BDS activities”, “sanctions” and “political action”. “Speech” is clearly different from “BDS activities”, “sanctions” and “political action”. As David Hirsh has written, “BDS cannot be defended as free speech; it goes beyond speech into action.” Secondly, GR does not acknowledge how the BDS campaign against Israel differs from sanctions applied to the other countries he mentions. Sanctions against those other countries have all been in response to specific policies – Russia’s occupation of Crimea, the nuclear programmes of Iran and North Korea, South African apartheid. The BDS campaign against Israel, on the other hand, calls for the so-called (and misleading) “right of return to Israel of over 7 million Palestinians to Israel. If effected, this would effectively bring about an end to Israel’s existence as a Jewish state. The BDS campaign is therefore qualitatively different to sanctions applied to other states. David Hirsh explains in greater detail why the BDS campaign against Israel is antisemitic.

In paragraph 24, GR comments on example 5 of the Definition (“Accusing the Jews as a people, or Israel as a state, of inventing or exaggerating the Holocaust.”) He writes (emphasis mine):

… [This example] slips in, as an illustration, the example of criticism of the State of Israel, whether or not it is a manifestation of hostility to Jews.  There are many grounds on which Israel is criticised – exaggerating the Holocaust (which is difficult to exaggerate, given proof that it took 6 million lives) is not one that is much heard.

The highlighted words appear to indicate a surprising degree of ignorance about contemporary antisemitism. It is an antisemitic staple that Jews/Zionists/Israel have inflated the numbers killed in the Holocaust. In her groundbreaking book, Denying the Holocaust, Deborah Lipstadt writes, “Within a few years after the liberation of Europe the effort to minimise the scope and intensity of the Nazi atrocities was overtaken by claims that the death of six million Jews was not only greatly exaggerated but a fabrication” (Lipstadt, D, Denying the Holocaust [Penguin, 1993], p. 45, italics mine).  She describes how the Frenchman Paul Rassinier “posited that there probably had been exterminations by gas, but not as many as had been claimed” (Lipstadt, p. 52). According to Lipstadt,

Rassinier contended that the amount of reparations paid to Germany was calculated on the basis of the number of dead; the higher the death toll,, the greater the financial reward. Israel, with the aid of cooperative Jewish historians and the “Zionist establishment”, had inflated the number of dead in order to “swindle” the Germans out of millions of marks. They claimed six million died, but, in truth at least four fifths of those six million “were very much alive at the end of the war“. Rassinier offers no evidence to prove this or most of his other claims…. [Lipstadt, pp. 56-57, emphasis mine]

A more recent example comes from none other than Mahmoud Abbas, in his book, ‘The Other Side: the Secret Relationship Between Nazism and Zionism’, in which Abbas claimed that the number of Jews murdered by the Nazis was less than one million.  He is not the only Palestinian to claim such things.

The white supremacist site Stormfront  refers to the “fixed quota” of. six million as a “religious myth” and purports to refute “this obligatory imposed and far too high number”.

Ashitha Nagesh documents similar examples here, describing claims that the Holocaust has been exaggerated as a form of ‘softcore’ denial.

[To go through the whole of GR’s opinion in this much detail will clearly take a great deal of time… time which I probably don’t have. I’ll leave this for now, in the hope that it might be useful to others. If and when time permits, I may resume work on it.]  


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