Geoffrey Robertson: legal opinion of the IHRA definition

JVL Introduction

Geoffrey Robertson, a renowned legal scholar with expertise on human rights and free speech, was commissioned by the Palestine Return Centre to review the IHRA definition and its adoption by the UK goverment.

Below we reprint the conclusions from his report and  a link to the full document.

We also link to the earlier report produced last year by Hugh Tomlinson QC.


ANTI-SEMITISM: THE IHRA DEFINITON AND ITS CONSEQUENCES

Conclusion

It is my opinion, for the reasons set out above, that:

  1. The IHRA definition of anti-Semitism is not fit for any purpose that seeks to use it as an adjudicative standard. It is imprecise, confusing and open to misinterpretation and even manipulation. It does not cover some insidious forms of anti-Semitism.
  2. It was originally drafted, in the absence of any other definition, as a tool for collecting data and is useful for purposes of discussion, but should not be used (or be used with great caution) as a measure for discipline or in ways which have consequences for political speech.
  3. The UK Government was wrong to adopt it without the “caveat” recommended with reason by the Home Affairs Committee, namely: “It is not anti-Semitic to criticise the Government of Israel, without additional evidence to suggest anti-Semitic intent.” Any public body or other organisation (including the Labour Party) that is contemplating adoption of the IHRA definition in full should add this provision to it.
  4. As a matter of internal construction, the examples appended to the IHRA core definition should be read as incorporating a) the fact that they “could not” amount to anti-Semitism and b) in particular, unless they exhibited to reasonable people a hatred of Jewish people.
  5. The Governments “adoption” of the definition has no legal effect and does not oblige public bodies to take notice of it.
  6. The definition should not be adopted, and certainly should not be applied, by public bodies unless they are clear about Article 10 of the EHCR which is binding upon them, namely that they cannot ban speech or writing about Israel unless there is a real likelihood it will lead to violence or disorder or race hatred.
  7. Universities and Colleges should be particularly careful about adopting or using the definition, as they have a statutory duty to protect freedom of expression.
  8. A particular problem with the IHRA definition is that it is likely in practice to chill free speech, by raising expectations of pro-Israeli groups that they can successfully object to legitimate criticism of their country and correspondingly arouse fears in NGOs and student bodies that they will have events banned or else have to incur considerable expense to protect themselves by legal action Either way, they may not organise such events.
  9. Whether under human rights law or the IHRA definition, political action against Israel is not properly characterised as anti-Semitic unless the action is intended to promote hatred or hostility against Jews in general.

Read the opinion in full

Read Hugh Tomlinson QC’s opinion, produced in March 2017 for a consortium consisting of PSC, FSOI, JVL and JfJfP here: Legal opinion blasts holes in pro-Israel definition of antisemitism


 

Comments (1)

  • Rick Hayward says:

    The artificial furore about the NEC draft not including controversial ‘examples’ from the IHRA document focuses on the claim that those examples hold no danger for the basic right of freedom of speech.

    Many of us know that such limitation is actually the aim of the pro-Israeli caucus.

    So how about taking the argument at face value by proposing a clarification by building on Hugh Tomlinson’s clear legal analysis? Obviously, if the intention is not to limit genuine freedom of expression, there can be no objection to such clarification, adapted as follows :

    ” None of the following statements or activities can , of themselves, be properly described as antisemitic, without evidence of “hatred towards Jews”:

    – Describing Israel as a state enacting policies of apartheid.

    – Describing Israel as a state practising settler colonialism.

    – Describing the establishment of the State of Israel and the actions associated with its establishment, as illegal or illegitimate.

    – Campaigning for policies of boycott divestment or sanctions against Israel, Israeli companies or international companies complicit in violation of Palestinian human rights (unless the campaigner was also calling for similar actions against other states).

    – Stating that the State of Israel and its defenders “use” the Holocaust to chill debate on Israel’s own behaviour towards Palestine.”

    Elaboration for the goose … elaboration for the gander.

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