Suppressing Palestinian Rights Advocacy through the IHRA Working Definition of Antisemitism

JVL Introduction

THE European Legal Support Center (ELSC) is an organisation of movement lawyers mandated to defend and empower the Palestine solidarity movement in Europe.

In June 2023 it published the results of its survey of the effects of the IHRA Working Definition of Antisemitism (IHRA WD).

The results are stark as is made clear in the report, the Executive Summary of which is reposted below.

The Report itself includes three Case Studies (of Britain, Austria and Germany) showing how the IHRA WD had been invoked to cancel, impede or undermine events, or individuals from pursuing their lawful activities.

It ends with a call on the EU and member states for those who have adopted the IHRA WD to revoke it, to respect and uphold the right to freedom of expression of individuals and associations supporting the Palestinian people, to uphold the right to freedom from discrimination on the grounds of political or other opinions and to develop, promote and implement strategies and mechanisms to fight antisemitism that do not undermine the fundamental freedoms and rights of advocates for Palestinian rights.

ELSC Press release

Amsterdam, 6 (modified 7) June 2023

Today, the European Legal Support Center (ELSC) launches its new report “Suppressing Palestinian Rights Advocacy through the IHRA Working Definition of Antisemitism – Violating the Rights to Freedom of Expression and Assembly in the European Union and the UK”. The report is the first case-based account of human rights violations resulting from the institutionalisation and application of the controversial IHRA definition by the European Union and the UK. The growing concerns about the negative human rights impact of the IHRA definition, have so far been ignored by the EU.

The ELSC report is based on 53 recorded incidents between 2017 and 2022 in Germany, Austria and the UK, in which individuals, groups and organisations were accused of antisemitism based on the IHRA definition. All of the accused were targeted for advocating for Palestinian rights, denouncing Israel’s practices and policies and/or criticising Zionism as a political ideology. When legally challenged, most of these allegations of antisemitism were dismissed as unsubstantiated.

Analysis of the cases reveals a highly problematic pattern in which the IHRA definition is being implemented. Although it is advertised and promoted as “non-legally binding”, the definition is increasingly used by public and private bodies as if it was law. As a result, the IHRA definition chills free speech and curtails freedom of assembly, resulting in self-censorship of individuals afraid to face allegations of antisemitism.

As confirmed by the ELSC report, allegations of antisemitism invoking the IHRA definition are overwhelmingly aimed at Palestinians, Jewish activists and organisations advocating for Palestinian rights. This suggests the definition is being implemented in a discriminatory manner. Individuals who are targeted suffer a range of unjust and harmful consequences, including loss of employment and reputational damage.

Dr Younes, Independent Researcher and (Policy) Writer in Germany, said:

With the uncritical adoption at the political and academic level across Europe, it has become impossible to voice any critical opinion about Israeli policies in public or in academia without the risk of losing your job, contract, funding or future employment opportunities.

A student activist in a UK university reflected:

I found that the IHRA definition was deployed as a distraction tactic, where routinely I felt burnt out defending the right to freedom of expression and solidarity with Palestine […] I had crippling anxiety of who I could even trust, as it felt like the IHRA definition was a mode of surveillance in my day-to-day life.

The ELSC report also criticises the European Commission for consistently ignoring and dismissing the growing human rights concerns about the IHRA definition, and for failing to take measures to prevent any adverse impact of it on fundamental rights.

Giovanni Fassina, director at the ELSC, commented:

It is time for the European Commission to acknowledge and address that the policy it has been promoting and implementing on the basis of the IHRA definition, both at EU and member state level, is highly detrimental to fundamental rights and that it is fostering anti Palestinian racism.

The ELSC urges the European Commission, as well as the governments, parliaments and public institutions in the EU Member States and the UK, to cease and revoke the endorsement, adoption, promotion and implementation of the IHRA definition. While addressing and enforcing policies to combat antisemitism, the legal obligation of public actors to respect and protect freedom of expression and freedom of assembly must be upheld.

Currently, the United Nations is finalising its “Action Plan on monitoring antisemitism and enhancing a system-wide response”. Recently, the ELSC joined a letter of more than a hundred civil society organisations, urging UN Secretary-General Guterres and High Representative Moratinos not to adopt and apply the IHRA definition. In November 2022, 128 leading scholars in antisemitism, Holocaust Studies and related fields, warned the UN in a public statement against adopting the IHRA definition. In October 2022, the UN Special Rapporteur on Racism released a report sharply criticising the IHRA definition.

Executive Summary

Download the full report here.

The endorsement, adoption and implementation of the International Holocaust Remembrance Alliance’s “Working Definition of Antisemitism” (IHRA WDA) in the European Union (EU), its Member States and the United Kingdom (UK) has led to widespread restrictions of the right of assembly and freedom of expression.

The “contemporary examples of antisemitism” attached to the IHRA WDA effectively redefine antisemitism by wrongly conflating criticism of Israel with antisemitism. While being branded as “non-legally binding”, the definition is being interpreted and used by governments and public and private actors as if it was law. The definition’s implementation has severe chilling effects on free speech and curtails human rights advocacy, specifically around Palestinian rights and political speech about Israel.

In the overwhelming majority of cases, allegations of antisemitism invoking the IHRA WDA are false. This report explains how the IHRA WDA has been adopted and implemented in a manner facilitating and validating the suppression of human rights advocacy for Palestinian rights and silencing criticism of Israeli government policies and practices.

After providing background in Section II, Section III shows that some European governments have used the IHRA WDA and its examples as a basis for domestic decisions and policies, which public and private actors are leveraging as legally binding. Section IV presents examples of incidents in which human rights and Palestinian rights advocacy have been suppressed on the basis of the IHRA WDA.

The European Legal Support Center (ELSC) has documented these incidents, which occurred between 2017 and 2022.

1. The HRA Working Definition of Antisemitism (WDA) is increasingly implemented by public and private bodies as if it was law, although it is being branded as “non-legally binding”.
2. The IHRA WDA is being implemented in ways that curtail freedom of expression and assembly, lead to self-censorship and foster anti-Palestinian racism.
3. Advocates of Palestinian rights who are targeted suffer a range of unjust and harmful consequences, including loss of employment and reputational damage.
4. The IHRA WDA is being used – often by pro-Israel advocates – to intimidate and silence those advocating for Palestinian rights.
5. Allegations of antisemitism that invoke the IHRA WDA, in the documented cases, are overwhelmingly targeted at Palestinians, Jewish people and organisations that advocate for Palestinian rights, suggesting that the IHRA WDA is being implemented in a discriminatory manner.
6. Most challenges to the implementation of the IHRA WDA prove that the allegations of antisemitism were unsubstantiated.
7. The European Commission has consistently ignored and dismissed the growing human rights concerns about the IHRA WDA and failed to take measures to prevent any ad- verse impact of it on fundamental rights.

In light of the evidence presented in this report,

the European Legal Support Center (ELSC) urges the European Commission, as well as the governments, parliaments and public institutions of EU Member States, and the UK to:

Cease and revoke the adoption, endorsement, promotion and implementation of the IHRA WDA.

Respect and uphold the right to freedom of expression of individuals and associations supporting the Palestinian people, as States and public authorities are required to do under Article 10 of the European Convention on Human Rights.

Respect and uphold the right to freedom from discrimination on the grounds of political or other opinions, as States and public authorities are required to do under Article 14 of the European Convention on Human Rights, as well as from EU institutions under Article 21 of the EU Charter of Fundamental Rights.

Develop, promote and implement strategies and mechanisms to fight antisemitism that do not undermine the fundamental freedoms and rights of advocates for Palestinian rights. In this context, consult scholars of antisemitism and related fields, experts on anti-racism and human rights defenders excluded and side-lined so far by the European Commission.