• Olivia Flasch

Combatting anti-Semitism, one definition at a time

Updated: May 4, 2021

By now, few will have escaped the political discourse surrounding recent attempts to create a global definition of anti-Semitism. Sparked by the increase in hate crimes targeting Jews, the International Holocaust Remembrance Alliance (“IHRA”) created a working definition of anti-Semitism that was subsequently endorsed and/or adopted by the United Nations, the European Parliament and a growing number of nations. That definition reads:

“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 it is a list of 11 contemporary examples of what may constitute anti-Semitism in public life, “taking into account the overall context”. The list is essential to the definition, and the IHRA has itself confirmed that any version of the definition which does not include the list is no longer the IHRA definition.

The examples of anti-Semitism, of which seven refer to Israel, and which include comparing Israeli policy to that of the Nazis, and claiming that the state of Israel is a racist endeavour, have given rise to significant controversy, with critics arguing that the IHRA definition silences Palestinian advocacy and legitimate criticism of Israel. To address these concerns, the Jerusalem Declaration on Antisemitism (“JDA”) published a revised definition in March 2021, which reads:

“Antisemitism is discrimination, prejudice, hostility or violence against Jews as Jews (or Jewish institutions as Jewish).”

This core definition is similarly accompanied by a set of 15 “guidelines” developed to clarify the type of conduct and criticism that would not be inherently anti-Semitic, including boycott, divestment and sanction initiatives, and the comparison of Israel to other historical examples of settler-colonialism or apartheid.

Of course, while the JDA definition’s 15 guidelines might at first read more nuanced than the 11 examples of the IHRA, the practical result is the same. It does not take much for someone to understand that an act, which would not be “inherently” anti-Semitic, could, “taking into account the overall context”, be so.

In any event, commentators have, to date, focused largely on whether the JDA definition fulfills the goal of separating legitimate criticism of Israel from the expression of hatred or discrimination towards Jews, paying little attention to whether either definition fulfills the purpose of having a global definition in the first place.

To address that issue, a few things should be noted. Neither definition purports to constitute a legal definition of anti-Semitism, although both aim to assist or guide law enforcement in the fight against anti-Semitism.

The IHRA definition, for instance, contains guidance on when anti-Semitic acts are to be considered criminal (which it, somewhat unhelpfully, explains are when such acts are defined as criminal by law) and when criminal acts are to be considered anti-Semitic, namely when the target of an attack is selected because it is or appears to be Jewish. The IHRA definition has also, since its adoption in 2005, been used as a tool for investigating anti-Semitic incidents by government and police in a number of countries.

Similarly, this article, written by three of the signatories to the JDA definition, confirms that “[w]hile [the definition] is not designed to be a (quasi-)legal instrument, it can also offer guidance for law enforcement authorities”.

These considerations are important. If the definitions were purely academic, there would be no harm in focusing solely or primarily on whether one definition does a better job at legitimising criticism of Israel than the other. But seeing as the adoption of a global definition of anti-Semitism has the capacity to have, and may in some cases already have had, far-reaching consequences in the field of law enforcement, it is essential that whatever definition is adopted satisfies some basic legal criteria.

The most essential of these is clarity. A legal definition of a criminalised act needs to be clear, or it risks violating the principle of legality, found in, for example, article 7 of the European Convention on Human Rights, article 15(1) of the International Covenant on Civil and Political Rights and article 9 of the American Convention on Human Rights. The principle says that no one shall be held guilty of a crime that was not criminal at the time it was committed. To conform to the principle, states have an obligation to specify crimes by using sufficiently precise, unambiguous and narrowly focused language.

Applying this to the IHRA and JDA definitions of anti-Semitism, it is plain to see that the mere fact that both definitions need to be read together with a long list of examples of acts that do and do not constitute anti-Semitism in and of itself suggests that the definitions are not sufficiently clear on their own. The authors likely know this, which explains why they have gone out of their way to express that the definitions are not intended to be legal definitions.

The IHRA definition is the vaguest of the two. In that definition, the act itself appears to be the perception, which may be expressed as hatred against Jews, and which manifests itself as a physical or rhetorical act. Were this a legal definition, it would appear that the perception of discrimination is the criminalised act, and not the manifestation of it as something physical or tangible. The definition becomes even vaguer in the next section, where it suggests that the manifestation of the perception of the discrimination against Jews can be targeted at either Jews or non-Jews. It is mind-boggling to see how a judge could ever make sense of what would and would not constitute anti-Semitism in this context, and yet, the definition has been relied upon by a Lithuanian court in prosecuting an editor of a right-wing newspaper.

The JDA definition, whose self-professed goals include clarifying and de-muddling the IHRA definition, achieves that to some extent. However, it also falls short of identifying what constitutes an act of anti-Semitism, instead referencing other broad and vague concepts like “discrimination, prejudice, hostility and violence”, neither of which are defined. And of course, the endless list of examples.

In 2019, the Council of Europe (“CoE”) issued a recommendation to its member states on preventing and combatting sexism, which appended the first ever international attempt at a definition of sexism. The text of the recommendation provides the context for the definition, including by setting out why there is a need to define sexism and what sort of acts sexism is manifested in. The appendix containing the definition reads as follows:

“For the purpose of this Recommendation, sexism is:

Any act, gesture, visual representation, spoken or written words, practice or behaviour based upon the idea that a person or a group of persons is inferior because of their sex, which occurs in the public or private sphere, whether online or offline, with the purpose or effect of:

i. violating the inherent dignity or rights of a person or a group of persons; or

ii. resulting in physical, sexual, psychological or socio-economic harm or suffering to a person or a group of persons; or

iii. creating an intimidating, hostile, degrading, humiliating or offensive environment; or

iv. constituting a barrier to the autonomy and full realisation of human rights by a person or a group of persons; or

v. maintaining and reinforcing gender stereotypes.”

The most notable characteristic of the CoE definition of sexism that distinguishes it from the JDA and IHRA definitions of anti-Semitism is that it answers the basic questions of what, where, how and why. The “what” is any act, gesture, visual representation, spoken or written words, practice or behaviour. The “where” is in the public or private sphere. The “how” is online or offline. The “why” is that it is based on an idea that a person or a group of persons is inferior because of their sex, and has the purpose or effect of violating a person’s inherent dignity, resulting in harm or suffering, creating hostile environments, constituting a barrier to human rights or maintaining and reinforcing stereotypes.

It is worth comparing the two approaches to establishing an international definition for several reasons. First, the concepts – sexism and anti-Semitism – both fall within the broader sphere of discrimination based on gender and race/religion, respectively. Second, they are both equally politicised, with endless debates surrounding what acts fall within the concepts. Third, acts of violence falling within these concepts are prevalent, generating the need for a clear definition to combat the acts and afford the targeted groups the necessary protection.

Perhaps rather than producing a vague definition of anti-Semitism that cannot be fully comprehended without the accompaniment of a long list of non-exhaustive examples, the concept of anti-Semitism should be defined by reference to the simple questions addressed in the CoE definition of sexism. Should the authors feel the need to address the politicisation and clarify the distinction between legitimate criticism of Israel and anti-Semitism, this could be done through the issuance of a recommendation, much like the one issued by the CoE, which clarifies the context in which anti-Semitism is being defined.

Anti-Semitism does need to be defined, and it should be defined internationally to reflect the prevalence of anti-Semitic acts on a global scale. However, the blanket denial that the JDA and IHRA definitions be interpreted as legal definitions does not do enough to safeguard the principle of legality, especially as executive and judiciary branches of government have already begun relying on the definitions in prosecutions and investigations. It is known that with great power comes great responsibility, and this is yet another example where more could be done to use that power responsibly.

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