The chilling repercussions of the highly controversial International Holocaust Remembrance Alliance (IHRA) definition of anti-Semitism have been revealed in a recent report by the European Legal Support Centre (ELSC). Titled “Suppressing Palestinian Rights Advocacy through the IHRA Working Definition of Anti-Semitism”, the report by the independent Dutch-based organisation uncovered shocking examples of the IHRA’s weaponisation against critics of Israel and the suppression of free speech under the guise of combatting anti-Semitism.
Using dozens of case studies from across Europe, ELSC showed that the endorsement, adoption and implementation of the IHRA in the European Union, its member states and the UK, has led to widespread restrictions of the right of assembly and freedom of expression. Despite strong opposition and warning against its adoption by Jewish groups, experts on anti-Semitism, academics and activists, the controversial definition has been implemented by public and private bodies as if the IHRA is legally binding. Despite qualification by advocates of the IHRA that it is “non-legally binding”, a definition of anti-Semitism which conflates criticism of Israel with anti-Jewish racism has been placed at the centre of regulatory frameworks across Europe.
Some of the shocking findings include the following: Advocates of Palestinian rights who are targeted using the IHRA suffer a range of unjust and harmful consequences, including loss of employment and reputational damage; advocates of Israel routinely weaponise the IHRA to intimidate and silence people defending Palestinian rights; allegations of anti-Semitism that invoke the IHRA within the documented cases uncovered by the ELSC found that they are overwhelmingly used to targeted Palestinians and Jewish people opposed to Israel’s brutal occupation.
In one of the many remarkable findings, ELSC discovered that, not only was there a failure to carry out a risk assessment prior to IHRA’s adoption, the EU appeared to lie about the checks it had conducted. When asked if the Commission had conducted a risk assessment of the implications of the IHRA on fundamental rights, the EU Commissioner on anti-Semitism, Katharina von Schnurbein, affirmed that an assessment of the consequences had indeed been carried out. “Yes, we assessed”, said Schnurbein in a tweet on 23 November 2022, in response to critics who accused the Commission of failing to carry out basic due diligence.
However, responding on 9 December 2022 to a Freedom of Information request, the European Commission acknowledged it “has not conducted ‘any fundamental rights assessment or scrutiny (…) into the human rights implications of its endorsement and/or promotion of the IHRA Working Definition of Anti-Semitism.” Details of the misleading information by the Commissioner on anti-Semitism were covered at length by the advocacy group, Law for Palestine.
Misinformation about risk assessment is just one of the many examples of underhanded practices revealed by the ELSC report. The European Commission also failed to address and reflect the diversity of positions regarding definitions of anti-Semitism. The EC not only ignored that the IHRA is highly controversial and contested, it completely ignored less controversial definitions of anti-Semitism such as the Jerusalem Declaration on Anti-Semitism, and the Nexus Document. In contrast to the EU, the US has referenced other controversial definitions of anti-Semitism.
In sharp contrast to the IHRA definition, the Jerusalem Declaration states that, “Even if contentious, it is not anti-Semitic, in and of itself, to compare Israel with other historical cases, including settler-colonialism or apartheid.” The Nexus Document is equally explicit. It states that “Paying disproportionate attention to Israel and treating Israel differently than other countries is not prima facie proof of anti-Semitism.”
The US also appears to favour a less politicised definition that is not centred on shielding Israel and the political ideology of Zionism. In detailing its plan to combat the rise of anti-Jewish racism, the White House opted for the following definition: “Anti-Semitism is a stereotypical and negative perception of Jews, which may be expressed as hatred of Jews” said the strategy document, without mentioning Israel once. “It is prejudice, bias, hostility, discrimination or violence against Jews for being Jews or Jewish institutions or property for being Jewish or perceived as Jewish. Anti-Semitism can manifest as a form of racial, religious, national origin, and/or ethnic discrimination, bias, or hatred; or, a combination thereof. However, anti-Semitism is not simply a form of prejudice or hate. It is also a pernicious conspiracy theory that often features myths about Jewish power and control.”
Questions were also raised over why the EU adopted a definition that had been discarded because of its threat to fundamental rights to free expression. In 2004-2005, the European Monitoring Centre on Racism and Xenophobia (EUMC) published a “Working Definition of Anti-Semitism”. This definition, according to the ELSC report, featured “contemporary examples of anti-Semitism”, including examples relating to the State of Israel. The examples were criticised due to its conflation between opposition to Israel and anti-Semitism. The definition was abandoned by the EUMC’s successor body, the Fundamental Rights Agency (FRA), which removed it from its website in 2013. In its explanation for discarding the IHRA, FRA explained that it had “never been viewed as a valid definition of anti-Semitism; that the Agency was not aware of any official EU definition of anti-Semitism; and that the document was removed in a clear-out of non-official documents.”
The most serious bad-faith attempt to mislead the public in order to roll out the IHRA is the claim that the definition is “non-legally binding”. Despite promoting the IHRA as “non-legally binding”, most of the EU Member States have endorsed the IHRA as the authoritative instrument for addressing anti-Semitism which, according to the ELSC, has given the definition centred on shielding Israel and Zionism “soft law power”. EU statements and policies through which the IHRA is being applied, is said to show that it has gained law like force and impact.
“Hard-core advocates of the IHRA always intended it to have binding legal status and force” said ELSC. “The ‘non-legally binding’ provision was only added to secure its adoption by the IHRA Plenary in May 2016. Efforts have been made since, in some Member States to introduce the IHRA as a basis for legislation.
The real-life impact has been devastating for critics of Israel. The IHRA has been implemented in the UK, Austria and Germany by public and private bodies in ways that have led to widespread infringement of the fundamental rights to freedom of expression and assembly, ELSC found. Advocates of Palestinian rights, who are targeted, are said to suffer a range of unjust and harmful consequences, including loss of employment and reputational damage. IHRA is often found to be weaponised by pro-Israel advocates to intimidate and silence those advocating for Palestinian rights.
The good news is that, when challenged in court, most of the allegations of anti-Semitism based on the IHRA are found to be unsubstantiated and thrown out. Though this is a silver lining, the adoption of the IHRA has created a perverse situation which undermines democracy and the principal of “innocent until proven guilty”. In this toxic culture, some sections of the population are having to go to court to protect basic freedoms, like the right to free speech. According to the ELSC report, even though most challenges to the implementation of the IHRA were successful, the disciplinary procedures and litigation resulting from false allegations of anti-Semitism have produced a “chilling effect” on the freedom of expression and assembly.
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