The IHRA definition's imprecision makes it a threat to free speech

The definition is vague and has no legal standing—leaving it open to misuse by those who wish to stifle speech. Long after the Labour debate is over, this problem will remain

September 07, 2018
A Boycott, Divestment and Sanctions movement (BDS) demonstration at SOAS. Photo: Wikimedia commons
A Boycott, Divestment and Sanctions movement (BDS) demonstration at SOAS. Photo: Wikimedia commons

In a legal opinion on the IHRA definition of antisemitism that has received much exposure in recent months, Geoffrey Robertson QC notes that the law must be “formulated with sufficient precision to enable citizens to regulate their conduct.” Like many proposals to curtail free speech—including in the name of fighting misogyny and Islamophobia—the IHRA definition of antisemitism fails this crucial test of legal legitimacy.

Adam Wagner, a prominent proponent of the IHRA definition who has offered valuable commentary on the controversies surrounding antisemitism in the Labour Party, has questioned Robertson’s view that the IHRA definition has no “legal effect.” “A tribunal,” he suggests, “would be at the least interested in the definition.”

If by this Wagner means simply that a tribunal would be open to an argument that it should consult the IHRA definition as it might consult any non-legally binding text when the parties so choose, then his view is consistent with Robertson’s.

Robertson’s point, however, is that the UK government's unconventional “adoption” of the definition does not render it legally binding in the sense that primary and subordinate legislation, judicial precedents, local authority bye-laws, and organisational rules are binding on those subject to the relevant body’s jurisdiction. This slippage, from Robertson’s intended meaning of “legal effect” to Wagner’s, itself tells us a great deal about the interpretive challenges this definition will pose every time it is deployed.

Adopted by the International Holocaust Remembrance Association in 2016, the IHRA definition is among the least precise legal options available for identifying and addressing antisemitism. (Other definitions have been offered by Brian Klug, the Holocaust Memorial Museum, the Anti-Defamation League, and Yad Vashem.)

Unfortunately, contemporary liberal democracies appear to have lost sight of the dangers of using such imprecise definitions to apply legal sanctions to speech. Along with other measures to sanction and regulate speech, the deployment of the IHRA definition within the contemporary UK is opening up a new chapter in the history of British jurisprudence and in the politics of defining racism.

*** The IHRA document is a two-part text, comprising a two-sentence definition and eleven examples that were initially considered ancillary to the definition. As David Feldman has pointed out in his critical discussion of the definition, 7 of the 11 examples of antisemitism focus on the ways in which criticism of Israel may be antisemitic.

Although it is this aspect that has received by far the bulk of media attention, the definition’s focus on anti-Israel discourse, or what is sometimes called “left antisemitism,” is far from its only problem. Even a staunch Zionist ought to oppose the use of this definition to forms of expression not associated with hate crimes due to its troubling implications for the rule of law.

Indeed, the original author of the definition, Kenneth Stern, a self-avowed Zionist and Director of Antisemitism and Hate Studies for the American Jewish Community for a quarter century, has taken precisely that position, of principled opposition, not to the definition as such but to its increasingly frequentuse to silence Israel-critical discourse in the public domain.

An American lawyer who specializes in the First Amendment, Stern did not foresee how the definition would be deployed in countries that permit governments to censor citizens’ speech on the basis of their political points of view. As his vocal opposition to recent uses of the definition within the UK attests, the risk posed by the IHRA is greater in European countries that lack the First Amendment protections that bar the government from censoring speech.

When the definition that formed the basis of the IHRA’s was drafted by Stern under the auspices of the European Monitoring Centre on Racism and Xenophobia, its purpose was to assist the police in classifying data relating to hate crimes. Gradually the definition’s remit became ever wider, moving from the classification of hate crimes to the censorship of speech. In December 2016, it was adopted by the UK government.

As Robertson notes, the definition “was never debated in Parliament and perhaps not even discussed in Cabinet: it was announced by the Prime Minister at a Conservative Party luncheon, and has no legal effect.”

Yet as I have argued, the absence of legitimate legal effect from the definition has not prevented it from being interpreted as a law—as seen by the cancellation of an event about Israel by the University of Central Lancashire in February 2017.

The relationship between definition and examples in the IHRA document remains a particular object of contestation. The public record shows that the IHRA never agreed to have the examples treated as part of the full definition—contrary to what some UK commentators have suggested. Yet the confused relationship between definition and examples is only the beginning of the problem with the definition’s loose legality.

Equally problematic is a lack of clarity concerning what this “working definition of antisemitism” actually is in legal terms, what its “adoption” means, how it is supposed to function in universities and other public institutions, and with what kinds of authority.

*** The law is an instrument of coercion (as well as potentially of liberation). It is used to punish, by taking away property, liberty—sometimes even life. Due to its unlimited capacity to invade our lives, to control our actions, and to influence our thoughts, it requires both sufficient precision and a presumption of equality.

When the law abdicates its commitment to equality (and there is no plausible construction of the IHRA definition that could sustain any claim to its consistency with legal equality), the more vulnerable those on the wrong side of the law are to oppression. This may explain why minority groups across the BAME community have been outspoken in their opposition to the definition, as have Palestinians globally and within Israel.

Equally, minority groups within the Jewish community have vocallyexpressed their opposition. Yet, most proponents of the IHRA sidestep these objections by relying on a crude majoritarianism that in itself is a threat to minority rights.

While Robertson and Tomlinson are correct to insist on the non-legality of the definition, the correctness of their argument will not adequately protect the free speech rights of Palestinians and other critics of Israel. Although Tomlinson notes that conduct deemed to be in violation of the IHRA Definition “could not, of itself, render that conduct ‘illegal’ in any sense”—and the IHRA document advises that the examples should be applied “taking into account the overall context”—this crucial nuance will inevitably be lost when the definition is implemented by human resource administrators, managers, and others tasked with implementing equality and diversity initiatives who lack training in the law and will bring their own interpretive contexts to its implementation.

Given the expense of judicial review and the three-month time limit imposed on potential cases, those who find their free speech rights violated by the IHRA definition—or by any speech code—are rarely able to obtain legal redress.

*** The IHRA definition exacerbates the difficulty of protecting controversial speech by authorizing dangerous violations of due process due to its loose legality. Before advocating laws that propose to diminish racism, we must consider the often impossible task of their just implementation.

As a society still coming to terms with the deep roots of antisemitism, we have spent so much time debating the content of the IHRA definition that we have neglected to consider the implications of censorship for democracy.

It is not so much its controversial content that is the problem as the way in which anyone who has observed the cancellation of events and the silencing of UK academics writing about Palestine since the adoption, knows it is likely to be used.

When the row concerning Labour’s relationship to the definition disappears from the headlines, bigger questions will remain. Universities will face calls for the expulsion of academics, for the disciplining of students, and for the cancellation of controversial events.

It is curious that, when faced with the challenges this definition poses to free expression, the IHRA’s most prominent defenders mildly defend it as a mere tool that allows criticism of Israel, while remaining silent concerning its abuses.