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 remainby Rebecca Gould / September 7, 2018 / Leave a comment
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.