Why Defining Criticism of Israeli Policies as “antisemitism” Harms Campus Freedom of Speech (BRISMES)

We are committed to the struggle against antisemitism and all forms of racism. Antisemitism exists within UK society and incidents of anti-Jewish prejudice occur in higher education institutions, just as in other institutional contexts. Antisemitism must be addressed, and institutions should seek to prevent it.

However, universities must do so in a way that does not discriminate directly or indirectly against others or undermine academic freedom and freedom of speech.

This report demonstrates that accusations of antisemitism levelled against students and staff in UK universities are often based on a definition of antisemitism that is not fit for purpose and, in practice, is undercutting academic freedom and the rights to lawful speech of students and staff, and causing harm to the reputations and careers of those accused.

This report was produced by the European Legal Support Center (ELSC) and the British Society for Middle Eastern Studies (BRISMES), Europe’s leading scholarly association concerned with the study of the Middle East and North Africa. The report is based on an analysis of 40 cases that were reported to the ELSC and in which UK university staff and/or students were accused of antisemitism on the basis of the ‘IHRA working definition of antisemitism’ (‘IHRA definition’), between 2017 and 2022. In all instances, except for two ongoing cases, the accusations of antisemitism were rejected. The final two have yet to be substantiated. On the basis of these findings, this report recommends against the adoption and use of the IHRA definition in a higher education setting. However it is beyond the remit of the report to suggest alternative definitions while the Human Rights Act of 1998 and the 2010 Equality Act provide the necessary legal tools to combat antisemitism and hate speech more generally.

In 2016, the International Holocaust Remembrance Alliance (IHRA) adopted a ‘working definition of antisemitism’, to which was appended a list of illustrative examples. Several of the examples conflate criticisms of Israel, its illegal policies, practices and the political ideology on which the state was founded, with antisemitism. These examples contradict the IHRA definition itself and reflect positions advanced by advocates of Israeli policies towards Palestinians.

The definition and illustrative examples have been invoked in many contexts in the UK. This report shows that since its adoption by UK higher education institutions, the IHRA definition has been used in ways that delegitimise points of view critical of Israel and/or in support of Palestinian rights, in violation of academic freedom and freedom of speech. It is noteworthy that the UN Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance, E. Tendayi Achiume, has warned against the use of the definition ‘owing to its susceptibility to being politically instrumentalised and the harm done to human rights resulting from such instrumentalization.’

There is widespread agreement among scholars and legal experts (including the lead drafter of the IHRA definition, Kenneth Stern)3 that the IHRA definition is not appropriate for university settings where critical thought and free debate are paramount. Nevertheless, in 2020, the then Secretary of State for Education threatened university leaders with punitive financial consequences if their institutions did not adopt the IHRA definition.4 As a result, 119 universities (almost 75% of UK universities) have adopted some version of the definition as a basis for campus policies.5

Contrary to what many institutions seem to believe, it is simply not possible to use the IHRA definition to determine whether or not an individual incident or statement is antisemitic, whilst simultaneously protecting freedom of speech and academic freedom and preventing discrimination. To attempt to do so inevitably leads to damaging and iniquitous consequences for staff and students. 5 This report highlights four major consequences of the IHRA definition’s adoption:

Key findings

1. Advocates of Palestinian human rights, critics of the Israeli state and its policies and those researching and teaching about the history of and current situation in Israel-Palestine have been targeted with false accusations of antisemitism.

2. University staff and students are being subjected to unreasonable investigations and disciplinary proceedings based on the IHRA definition. These proceedings have harmed the wellbeing of the staff and students subjected to false allegations of antisemitism. Those falsely accused have felt their reputations to have been sullied, and they are anxious about possible damage caused to their education and careers.

3. The complaints have had an adverse effect on academic freedom and freedom of speech on campuses, leading, in some cases, to the cancellation of events or the imposition of spurious conditions on the format of events.

4. From testimonies received, it is clear that these cases are creating a chilling effect among staff and students, deterring individuals from speaking about or organising events that discuss Palestinian human rights and Palestinian self-determination out of fear that they will be subject to complaints, or else will face considerable bureaucratic hurdles and even costly legal action in order to allow events to take place. Academics employed on temporary contracts (who constitute a significant proportion of university teaching staff), as well as students, are particularly susceptible to self-censorship out of fear that any sort of accusations, even if not upheld, could jeopardise their future ability to obtain permanent employment.

Hence, overall, we conclude that the adoption and deployment of the IHRA definition in UK universities has already dealt a blow to academic freedom and freedom of speech. This not only threatens the ability of higher education institutions to meet their legal obligations in this regard, but is also preventing students from engaging in nuanced discussions about the Middle East, global politics, and the question of Palestine, which are also necessary as part of efforts to combat antisemitism.

Introduction

The International Holocaust Remembrance Alliance (IHRA) is an intergovernmental body whose stated purpose is ‘to strengthen, advance and promote Holocaust education, research and remembrance’. The IHRA definition is intended by its authors to be a practical educational tool that help ‘raise awareness of key issues’. It defines antisemitism as:

“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.”

Advocates of the definition argue that its adoption is necessary to combat antisemitism in UK universities and assert that the definition ensures the safety and security of Jewish students and staff.7 Further, they argue that as it is framed as ‘non- legally binding’ it will not impinge on freedom of speech, academic freedom or anti-discrimination law. Yet, there are repeated concerns raised by academics, activists and legal experts that the IHRA definition is suppressing lawful speech on Palestinian human rights and criticisms of the Israeli state. There are seven references to Israel in the illustrative examples accompanying the definition. Several of these examples effectively conflate criticism of Israel and Zionism with racism and discrimination directed at Jews, for example, ‘Denying the Jewish people their right to self-determination, e.g., by claiming that the existence of a State of Israel is a racist endeavor’. This example not only erroneously essentialises Jewish self-determination as indistinguishable from the State of Israel (a historically-contingent position particular to Zionist ideology) but also delegitimises Palestinian claims to self-determination and opposition to Israel’s discriminatory policies against Palestinians as antisemitism. Most worryingly, it suppresses documented evidence of Israeli crimes against Palestinians.

The promotion of the IHRA definition in UK universities and its use in complaints against staff and students is part of a wider context and history of false accusations of antisemitism being levelled against those concerned with Israel’s human rights violations. In 2022, after publishing its report entitled Israel’s Apartheid Against Palestinians: Cruel System of Domination and Crime Against Humanity, Amnesty International was accused of deploying ‘antisemitic tropes’.8 In 2019, Tower Hamlets council refused permission for the Big Ride for Palestine, a charity event in aid of Palestinian 7 children, because of fears that it could breach the IHRA definition.9 As such, this reconceptualisation of antisemitism serves to erase Palestinian existence and narratives and shield the rights-abusive policies of the State of Israel – and the structural basis for these actions – from criticism. It further prevents Palestinians from speaking about their oppression and silencing support for Palestinian rights.

According to a recent report produced by the Taskforce on Antisemitism in Higher Education (established by the UK Government’s Independent Adviser on Antisemitism, Lord Mann), that questioned 56 universities across the UK about their experience of using the IHRA definition:

None knew of or could provide a single example in which the IHRA definition had in any ways restricted freedom of speech or academic research, or where its adoption had chilled academic freedom, research or freedom of expression. All these 56 institutions were using the definition and were seen to be listening to the Jewish community about how it experiences antisemitism.

Yet, the 40 incidents examined in this study contradict the above claims and raise serious questions about the findings of the Taskforce on Antisemitism in Higher Education. This report confirms the views of recognised experts on antisemitism, Jewish history and related subjects that the IHRA definition is unsuitable for universities.12 Scholars have expressed concern that research and teaching on Israel and Palestine has become increasingly difficult because of the IHRA definition’s widespread adoption.13 The case studies analysed in this report demonstrate that the imposition of the IHRA definition, in its varied forms in UK higher education institutions (regardless of the caveats included in some universities’ policies), stifles free speech within the law in relation to teaching, research and discussion of Israeli government policies, the nature of the formation of the Israeli state, and the nature of Zionism as an ideology and movement. It has served to unfairly damage the reputation and careers of staff and students who speak about the violations of Palestinian human rights and crimes committed by Israel. Most egregiously, it erases the experiences of the Palestinian people, hides from public view documented evidence of the crimes committed against them and thereby prevents universities, staff and students from contributing to informed public debate on the matter.