[ELSC report] Antisemitism definition suppresses Palestine solidarity in Germany

Rowan Gaudet

The Left – Berlin  / June 18, 2023

Interview with the European Legal Support Center’s Advocacy and Communication Manager Alice Garcia.

The European Legal Support Center (ELSC) defends and empowers advocates for Palestinian rights across mainland Europe and the United Kingdom through legal means. It released a groundbreaking report, “Suppressing Palestinian Rights Advocacy through the IHRA Working Definition of Antisemitism – Violating the Rights to Freedom of Expression and Assembly in the European Union and the UK”. We interviewed the ELSC’s Alice Garcia about the report.

Can you describe what the International Holocaust Remembrance Alliance (IHRA) definition is, and what the ELSC report tells us about it?

The supporters of the IHRA definition argue that it’s the only definition of antisemitism that fights what they call – Israel related antisemitism, or the “new antisemitism”. Basically, this means any anti-Zionism and criticism of Israeli policies and practices. This “new” antisemitism theory goes back a few decades. It was pushed by a few individuals and organizations who are aligned with the Israeli government agenda, such as Dina Porat, the head of Tel Aviv University’s Kantor Center for the Study of Contemporary European Jewry. It was funded by the Mossad, and members of pro-Israel advocacy groups such as the Community Security Trust in the UK, the Anti-Defamation League, the European Jewish Congress and B’nai Brith International. This is documented by Anthony Lerman, a former head of the World Jewish Congress’ institute of Jewish affairs. In 2006, the European Monitoring Center on racism and xenophobia (EUMC), adopted this definition to conceptualize antisemitism. However it abandoned this because of concerns. The advocates of the definition tried to find another organization to give it legitimacy. Finally the IHRA – an intergovernmental organization working on the remembrance of the Holocaust, adopted the definition in 2016. The history of this definition shows the original purpose – to suppress criticism of Israeli policies and practices. But it’s important to remember that criticism of Israel or Zionism is speech that is protected by freedom of expression. So, conflating it with antisemitism does not stand ground. It is a tactic to silence Palestine advocacy and to shield Israel from accountability for its violations of international law.

There’s already been a lot of writing about and criticism of the IHRA definition and the controversial examples of supposed antisemitism that are attached to it. What does your report bring that’s new?

The ELSC documented case studies through incident report forms and interviews, open source research and fact checking. Often we also provided legal support or advice to the individuals or groups affected by unfounded allegations. For the first time, we have a comprehensive document that presents case-based evidence of infringement on the democratic rights of individuals and groups caused by the implementation of the IHRA definition in the EU and UK. The report is based on 53 incidents alleging antisemitism that invoked the IHRA definition, in Germany, Austria and the UK. It also comprehensively documents how the definition was institutionalized at policy level by the EU. We expose the EU’s consistent ignorance or denial of the concerns; and warnings from many civil society actors regarding the political agenda behind this definition. We have been telling the EU for years that this is problematic for freedom of expression and freedom of assembly. In 2019 the EU Commission established a working group on antisemitism to work with affected communities. When European Jews for Justice in Palestine, representing various Jewish groups across Europe, applied to be a part of the group they were deemed not representative. Similarly, when the EU published their strategy to combat antisemitism in 2021, they ignored dozens of submissions from civil society actors criticizing the IHRA definition. Our report also rebuts the Commission’s claims that the IHRA definition does not harm human rights. We therefore urge the EU to cease implementing the IHRA definition and to reconsider its endorsements and adoption, and the same for member states and institutions. We hope that this report is a tool to advocate against adopting or implementing the IHRA definition in other contexts. Because there is still a push to have it adopted as widely as possible. Currently, the UN is drafting its own plan to combat antisemitism, to be presented in September. 

Defenders of the IHRA definition claim that it clarifies between criticism of Israel and legitimate antisemitism, why is this not true?

There is a caveat in the definition, that criticism of Israel like that levelled against any other country cannot be regarded as antisemitic. What does that mean? It’s very vague and problematic, because any country can be criticized for human rights violations. And Israel is often criticized because there are extreme violations happening there. So human rights groups will be targeted for having supposedly disproportionate scrutiny over Israel, but in reality they also criticize China, Russia, Hungary, and so on. Of course, some groups and individuals focus primarily on Israel-Palestine, so they do not make similar criticisms of other countries. Does that make them antisemites? No. Just like people people focusing on China are not Sinophobes. And one other thing, Israel is not ‘any other country’, it is occupying another nation and practicing apartheid against a specific group of people.

There’s a growing conflation, where practically everything can be incorporated into antisemitism. Is this what you see in your cases?

That’s exactly what’s happening. Sometimes there is not even a link between the alleged antisemitic content of a statement and the examples of the definition that are raised to target this specific speech. For example. In one of the cases in the UK, not detailed in the report, a student faced complaints for alleged antisemitism. The complainants had scrolled her social media and complained because she’d liked a tweet criticizing the alliance between Israel and the US. That was the whole content of the tweet. The complainant raised the IHRA definition and said that this was antisemitic. We have dozens of cases like this. People think ‘oh, I will take my magic tool, the IHRA definition’. And that’s enough to say that it’s antisemitic. It was enough for the university to open a formal investigation against the student, and a disciplinary proceeding that took months which eventually rejected the allegation, after legal intervention. The IHRA is also often used alongside other accusations, such as not respecting democratic values or being too political. For instance, in the Netherlands, universities place administrative burdens on students to prevent them from organizing their events. We have a case where students wanted to organize a workshop on how to cook Palestinian hummus. For two years they are trying to organize this event, but are prevented because it’s said to be too political. Or, another tactic is to make unfounded allegations of support of terrorism; or alleging ties with groups listed as terrorist groups by the EU or other member states. Usually it’s about Hamas or PFLP, and the ties are not substantiated.

The IHRA’s proponents also claim that it’s not legally binding, and thus safe to use. This report debunks this with evidence. Can you explain how this claim that the definition is ‘non-legally binding’ isn’t representative of how it’s being used? 

This definition is constantly being branded as “non-legally binding”, whether in the definition itself, or by EU officials. This supposedly means it does not harm free speech. But actually, tools like the IHRA definition don’t have to be codified in law to have concrete effects on human rights. The report shows this. We explain how it has been adopted through policies and so-called non-binding resolutions adopted in parliaments. As soon as these policies or strategies are treated as authoritative by the relevant institutions (whether a local council, a university, parliament, or a state) then it has a de facto binding effect on individuals. Someone who explained it very well is the former UN Special Rapporteur on racism. She published a report in October 2022, which we quote. From the moment that states use the IHRA definition as guidance for judges, police, law enforcement and teachers to determine what is antisemitic, then it has a binding effect. Also, the EU Commission itself expressed this in their 2021 handbook on how to implement the IHRA definition. It recommends referencing the IHRA definition in legislation, using it to train judges and police officers. How much more binding than this can it be?

Although this definition is supposed to help fight antisemitism, you argue that it’s actually implemented in a discriminatory manner. How so? 

In the documented cases, the allegations of antisemitism invoking the IHRA definition were overwhelmingly targeted at Palestinians, Jewish people, and organizations that advocate for Palestinian rights. And this suggests that the IHRA definition is being implemented in a discriminatory manner. We have no data about how the IHRA definition is being used against anyone else but Palestinian rights advocates. But the cases that came to our attention and are in the media all concern Palestinian rights advocates, and primarily Palestinians. Among the 53 incidents that we documented, 42 incidents involved the targeting of groups with members who are people of colour; or of individuals who are people of colour, and among them were 19 Palestinians. Then there were 11 incidents of Jewish groups or individuals targeted, in particular those with anti-Zionist views or sympathy to the Palestinian struggle. This data clearly shows potential discrimination in the way that the IHRA definition is implemented. The other component of how the IHRA definition is discriminatory is that it is a tool of anti-Palestinian racism. We look at the description of anti-Palestinian racism that was conceptualized by the Arab Canadian Lawyers Association last year in the landmark report they published. They described it as a form of anti-Arab racism that silences, excludes, erases, stereotypes or dehumanizes Palestinians or their narratives. It takes various forms, such as excluding or pressuring others to exclude Palestinian perspectives, or defaming Palestinians and their allies with slander, such as being inherently antisemitic, a terrorist threat or sympathizer, or opposed to democratic values. So it is very clear, as shown in our report, that the IHRA definition is a tool of anti-Palestinian racism. Because by allowing unfounded allegations of antisemitism against critics of Israel, the definition de facto silences advocates for Palestinian rights and therefore erases the narratives of Palestinians and their legitimate calls for justice.

On to Germany. There’s a lot of discussion about the situation here. You’ve considered Germany here as one of three case studies. How exceptional is the repression in Germany, and how is it similar to other countries?

Germany is definitely exceptional in Europe in the sense that anti-Palestinian racism is so institutionalized. Palestinians and their allies are preemptively banned from demonstrating in the streets to commemorate the Nakba, their catastrophe. It’s also one of the countries in Europe in which we received the most requests of legal support because of the extreme climate of censorship and repression against Palestinian rights advocates. The conflation of anti-Zionism and criticism of Israel with antisemitism is completely normalized, and this for so called raison d’état. Berlin is also the city in Europe with the biggest community of Palestinians, yet their identities are completely erased and denied. Children in school are being reprimanded for even saying that they come from Palestine, the teacher will tell them ‘oh well this is not a country’ or ‘oh you mean Israel’. Also, Germany has systematized the use of anti-BDS resolutions. These resolutions concretely restrict activists rights in terms of renting spaces for events, or getting funding. So again, a non-binding policy that is often adopted through resolutions. These resolutions are adopted at a local level or regional or federal level to suppress any activity or events related to BDS. These anti-BDS resolutions are not unique, because Austria is similar. In France and Spain, there have been attempts to criminalize boycotts. And the UK is now on the way to propose its own anti-BDS bill. So, in that sense, Germany is more “normal”. And we have to remember that this is part of a global strategy, promoted by the Israeli government. Including through its Ministry for Diaspora Affairs and Combating Antisemitism. But we could say that Germany has one of the most worrying patterns of repression in Europe right now.

So can you give us a concrete example from the report about how the IHRA definition has been used in Germany?

I think I have to mention the Nakba demos. The IHRA was mentioned in all but one of the prohibition orders of the demonstrations related to the commemoration of Nakba in Berlin. It happened in May 2023, but also in May 2022. They reference it, and then add that the organizations and individuals taking part in the demonstrations are anti-Zionist, and therefore antisemitic. I am not even talking about all the racist sentences that are in the prohibition orders. It’s very worrying that the police used this definition as a tool to legitimize what is an undue restriction of freedom of assembly based on extremely racist assertions, as we explained in a statement and a video.

You write that the IHRA definition was endorsed by the German Federal Government in 2017, as well as various Länder over the two years following that, and used widely in anti-BDS resolutions here. What can local activists do in the face of these resolutions?

Many activists already challenged these anti-BDS resolutions in court, and so far, they have been very successful. In four cities — Munich, Oldenburg, Bonn and Frankfurt — the courts ruled that the restrictive measures carried out by municipal authorities constituted violations of fundamental rights to freedom of expression, assembly, and equality. So the judicial system in Germany still tends to resist and to protect fundamental rights. These initiatives are, of course, a model for activists. But these cost money and time. These decisions took years to be issued. Ideally, in the face of this jurisprudence, local authorities should now revoke their resolutions. This is why the legal battle of the BT3P, a group of activists challenging the federal Bundestag’s anti-BDS resolution, is crucial. The complaint was filed in 2020 and is still in the court of appeal, but could create a national precedent that could have effects everywhere in Germany.

Your report describes the successes in the UK in challenging the IHRA in courts, but this comes at a high cost and lengthy trials, as we’re seeing as a result of the last two Nakba Days in Berlin. What risks come with this court-based approach, even if we’re often winning in the courtroom?

Judgments are not always in our favour. So there is a risk of having negative precedents for the movement. But so far, we can count mostly on victories, which is empowering and confirm that we are on the side of justice. But, it doesn’t necessarily mean that we will witness a change in the mainstream narratives in Germany or the rest of Europe. As well, German judges often depoliticize and don’t touch on the elephant in the room. That is the question of the right to criticize Israel and the silencing of Palestinian voices. Then, of course, proceedings are lengthy and expensive, and often an emotional burden to those concerned. But that is why strong movements and networks of support are really crucial. This pushing back works, and we have many victories to show that.

Some optimism, then. Can you provide an example of these victories? 

There is the case of Dr. Anna-Esther Younes, a Palestinian-German academic, which is still ongoing but so far really successful. Dr. Younes was surveyed and smeared by this organization called RIAS Berlin, which claims to monitor antisemitism. RIAS sent a secret dossier to the organizers of a public event where Dr. Younes was supposed to speak in 2019. The day before the event she was disinvited because of this dossier smearing her as an antisemite, sexist, and a supporter of terrorism, etc. All this without substantiating the allegations. Upon receiving this the organizers, at the instigation of Die Linke Berlin and its leadership, disinvited her. So, Dr. Younes came to us. We filed a complaint against RIAS because they withheld the dossier which Dr. Younes requested access to (in line with European Data Protection Law), and the Berlin Data Protection Authority found that Dr. Younes’ right to access her personal data was denied. This decision followed a months-long public media campaign as well as a lawsuit brought against the Berlin Data Protection Authority for its inactivity. Dr Younes got access to the dossier and appealed to get the court to recognize the damage made to her reputation and that the preparation and transmission of the dossier was not legitimate.

What would be the implications of a victory in this case?

If RIAS is finally made accountable, which is what we aim for, then their surveillance of human rights advocates will stop. Remember that RIAS, in the  lawsuit against them, stated that they collected information on Dr. Younes in order to “identify her positions on Israel and BDS”. This group targets Palestinian rights advocates or academics writing about Palestine like Dr. Younes, then try to find things to frame as antisemitic based on the IHRA definition. They then send this information privately to other organizations and institutions. With concrete, terrible consequences on these people which can completely exclude them from academia, and damage their reputation. It also  violates data protection law. So if we are successful, then we hope that RIAS Berlin and others will stop this illegal practice. Because many activists fear being surveyed, and this gives a good precedent for their safety. 

You also write that section 46 of the German criminal code has been amended by a bill referencing the IHRA definition in regards to hate crime. Can you explain this?

A law was passed in 2021 against far-right extremism and hate crime. It amended paragraph 46 of the penal codes to include antisemitism among the motives and aims to be considered by courts in sentencing perpetrators. Section 46 doesn’t mention the IHRA definition. But the bill leading to this law amending the Code did mention the IHRA definition as a reference tool, for determining what is antisemitic conduct. It also references the examples attached to the definition. Even though this was in the bill and not the final law, it still entails risk; because preparatory works and materials are still used by courts when they interpret meanings and purposes of a law. So, a reference to the IHRA definition, even in the bill, could influence and mislead German courts. They may falsely interpret criticism of the Israeli government as antisemitism, which is subject to prosecution and punishment. It therefore exposing Palestinian rights advocates to criminal charges. This poses a serious threat to freedom of expression.

In Berlin where there’s such a large Palestinian community, many of them refugees, the right of return is often discussed. How does the IHRA definition’s claim that it’s antisemitic to question Israel’s right to exist, affect this Palestinian right of return?

We haven’t touched upon that question a lot, but the right of a state to exist is not a concept recognized by international law. There is a right to self-determination in international law, but for people not for states. I can refer to two expert reports published on our website. These challenge this prevailing narrative around the notion of Israel’s right to exist from a legal perspective. It’s undeniable the state of Israel exists upon the expulsion and displacement of Palestinians. Perpetrating this displacement for Palestinians sustains the continued presence of the state of Israel. The criminalization of this criticism directly renders this right of return obsolete or a non-right. But in any case, we have observed several incidents of suppression of Palestinian rights advocacy where this notion of Israel’s right to exist is very broadly interpreted and instrumentalized to purport allegations of antisemitism. This is often used to repress anything related to the Nakba; or its’ advocates who carry banners in protests that show the map of historic Palestine; or people expressing the concept of settler colonialism of Israel.

Rowan Gaudet is a graduate student and activist based in Berlin