Neither Clear nor Coherent

A broad consensus among experts has criticized the IHRA definition for being “neither clear nor coherent” while posing a threat to free speech. Even the text’s main drafter, Kenneth Stern, has repeatedly spoken out against its use as a disciplinary tool by governments or public bodies. It’s not hard to see why.

The text begins by defining antisemitism as “a certain perception of Jews, which may be expressed as hatred towards Jews,” which could mean anything or nothing. It goes on to present several examples of speech that “could, taking into account the overall context” be considered antisemitic. In practice, supporters of the definition ignore the qualification and insist that such speech is always and regardless of context antisemitic. Several of the examples bear on what we are allowed to say about Israel.

One example condemns “applying double standards” to Israel by “requiring of it a behavior not expected or demanded of any other democratic nation.” Who is guilty of these double standards? According to Israel and its supporters, Amnesty International, Human Rights Watch, the International Criminal Court, the European Union, and the United Nations. In short, every significant organization and agency — however judicious, however respected, however responsible — trying to hold Israel accountable for its international law violations.

Earlier this month, more than one hundred scholars in the fields of antisemitism, Holocaust studies, and Jewish history urged the UN not to adopt the definition. They described it as “vague,” “incoherent,” and liable to “deter free speech.” A week before that, the UN special rapporteur on contemporary forms of racism warned that the definition would be “instrumentalized” against defenders of Palestinian human rights.

The most significant response to this mounting criticism has come from the European Commission’s coordinator on combating antisemitism, Katharina von Schnurbein. It was under her leadership that the EU incorporated the IHRA definition into its antisemitism strategy, which has been cited as a model to emulate at the UN. Von Schnurbein defended the definition on three main grounds. Not one of these bears scrutiny.

Argument 1: The definition works

“We believe in evidence-based policymaking,” von Schnurbein says. Her mantra in relation to antisemitism has been “you can’t fight it if you can’t define it.”

But if it is impossible to fight antisemitism without a formal definition, that would surely come as a surprise to historians of the Anti-Defamation League or the American Jewish Committee. These Jewish civil rights organizations heroically and successfully fought antisemitism decades before the definition was drafted. And if a definition is necessary before we can set about combating bigotry, does that mean the EU is indifferent to anti-Muslim and antiblack racism, neither of which it has defined in equivalent terms?

Neither von Schnurbein nor the EU nor anyone else has ever presented a shred of evidence that adopting the IHRA definition reduces antisemitism. In fact, Italy’s chief rabbi once told von Schnurbein: “Since you’ve been appointed, antisemitism has exploded.”

It is also hard to square von Schnurbein’s alleged regard for “evidence” with her flagrant distortion of the facts surrounding the adoption of the IHRA definition. The thirty-one states that then belonged to the IHRA were only able to agree on the definition in 2016 after and because the politicized, pro-Israel examples were excluded from it. Yet von Schnurbein has falsely alleged that those examples are an integral part of the IHRA definition.

Argument 2: Most Jews endorse the definition

Von Schnurbein cites an opinion poll to prove that the IHRA definition “reflects what the vast majority of Jews regards as antisemitic.” First of all, however, the EU’s application of a “victims-based approach” is highly selective. Indeed, in the language of the IHRA definition, the EU’s approach manifests an egregious double standard.

Von Schnurbein’s survey of Jews in twelve EU member-states found that the majority consider it “definitely” or “probably” antisemitic to support a boycott of Israel, with figures ranging from 63 percent in Denmark to 89 percent in Spain, giving rise to an average figure of 82 percent. Yet if most Russians or Iranians considered the EU sanctions targeting those countries to be discriminatory, would the EU then classify such sanctions as Russophobic or Islamophobic? Obviously not.

Second, every community views the world through tinted lenses. That is why serious regulatory frameworks do not blindly defer to interested parties but are crafted by experts working with objective standards. It is also why antisemitism monitoring groups do not uncritically record every “antisemitic incident” reported to them, but only those they independently judge to be credible.

Von Schnurbein’s own survey found that nearly two-fifths of Jews across the twelve states — 38 percent — consider it “definitely” or “probably” antisemitic when someone merely “criticizes Israel” in some unspecified way. Had this figure been just over 10 percentage points higher, would this make the EU’s stated “opposition to Israel’s settlement policy” antisemitic?

Indeed, the figure did rise to more than 60 percent among Jews in Spain. Must the Spanish government now dissociate itself from any and all EU statements criticizing Israel?

Argument 3: The definition does not threaten free speech

Von Schnurbein asserts that the IHRA definition does not jeopardize free speech. But what if one strongly disagrees with the IHRA’s assertion that Israel is a “democratic nation,” or strongly disagrees with von Schnurbein’s own claim that “Israel, as the only democratic State in the region, is . . . also the most European country,” or strongly disagrees with a former spokesperson of the definition’s drafting group when he suggests that “Israel’s cause will remain fundamentally just no matter what”?

Will the IHRA definition protect the speech of such critics? Indeed, what if one strongly agrees with the findings of eminent international as well as Israeli human rights organizations that Israel is an “apartheid” regime practicing “Jewish supremacy” and committing massive war crimes against the Palestinians? Pro-Israel groups have already accused these leading human rights organizations of antisemitism, citing the IHRA definition in support of this claim.

It would certainly provide some reassurance if von Schnurbein were to state unequivocally and explicitly that such speech about Israel would be protected if the UN and other bodies were to adopt the IHRA definition. Will von Schnurbein give this ironclad commitment — and in public?

Von Schnurbein defends the IHRA definition by stating that it will not be legally binding. However, the definition does not have to be legally codified to undermine free speech. It will still control how judicial officials apply hate speech laws.

As one pro-Israel lobby group concludes, “the adoption of IHRA as an interpretative tool makes legislative change redundant.” The European Commission appears to envisage just such a process of indirect legal influence as its IHRA handbook recommends referencing the IHRA definition in “legislation” and using it to train judges and police officers.

The proponents of the IHRA definition intended from the outset that it would “seep into universal usage” as the benchmark for deciding what constitutes antisemitism. They are progressively realizing this ambition as one sector of civil society after another — from universities and political parties to football clubs and even airline carriers — succumbs to the pro-Israel, pro-IHRA juggernaut.

If organizations are called upon to suppress antisemitism, then, insofar as they understand antisemitism in terms of the IHRA definition, individuals will be censored or excluded for breaching its terms. This is already happening, and the definition’s pro-Israel backers are vigorously campaigning to entrench such practices as the norm.

Dumb but Dangerous

When “Hinduphobia” is defined to include drawing links between Hinduism and “inequity in Indian society,” or “Islamophobia” is defined to include “[d]enying Muslim populations the right to self-determination” in Kashmir or Palestine, it does not take a rocket scientist to notice the political agendas in play. When Jewish advocacy groups define antisemitism to include criticism of Israel, it should be obvious that they are also promoting a partisan agenda.

Scholars have set out forensically and exhaustively the arguments that show the IHRA definition is fundamentally flawed. But one need not be an expert to spot its limitations. Indeed, it is tempting to conclude that never before have so many written so much about something so manifestly absurd. It is at once comical and depressing to witness distinguished specialists finely weighing the definition’s every syllable and clause, as if parsing a biblical text when it’s actually porridge, or striving fully to plumb its depths, as if bringing scuba gear to a paddling pool.

The IHRA definition may be dumb, but that doesn’t mean it isn’t dangerous. While it is useless or actively counterproductive in the fight against antisemitism, the definition has proven effective at shielding Israel from warranted critical scrutiny. The adoption of this partisan definition by the UN would be a disaster for Israel’s Palestinian victims, the integrity of international law, and the many Jews in Israel and the diaspora who have courageously fought to hold Israel to a single, universal human rights standard.