Drawn from his submission to the Royal Commission, Gareth Evans argues for a definition of antisemitism that protects Jewish Australians without suppressing legitimate criticism of Israel.

Despite the centrality of the issue to its entire remit, it is not clear that the Royal Commission on Antisemitism and Social Cohesion has yet devoted sufficient attention to articulating a definition of antisemitism which is defensible in principle, workable in practice, and commands the broadest possible community acceptance.

This article is drawn from my own written submission to the Commission, which was offered in the hope it would be assisted by the perspectives of its author, who has spent many decades of his professional life working both domestically and internationally on issues of human rights generally, racial, ethnic and religious discrimination in particular, and genocide and other crimes against humanity – in his various capacities as an academic and practising lawyer, ministerial consultant, UN adviser, federal parliamentarian, cabinet minister, international NGO head, and university chancellor.

Given the extent to which the IHRA working definition has already been adopted by Australian Federal and State governments, and in other domestic institutional settings, as well as internationally, it is understandable that the Commission should itself have decided to apply it in its deliberations, as Commissioner Bell announced at the Opening Hearing would be the case. The Commission is clearly alive to the sensitivities of applying the IHRA definition, with its accompanying examples, and has made clear the importance it attaches to taking into account the overall context of any problematic conduct, and not conflating criticism of Israeli government policies with antisemitism. I nonetheless do not think it can avoid addressing in some detail the concerns about over-reach that the definition and its accompanying material have aroused. I here make the case for adopting some further clarificatory language to alleviate those concerns.

The Core Definition. The Commission’s revisiting of the definitional issue could usefully start with the core IHRA definition itself:

Antisemitism is 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.

Antisemitism is 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.

While this language may be essentially uncontroversial, as the Commissioner stated in her Opening Remarks, it is arguable – from a Jewish community perspective – that it actually under-reaches, rather than over-reaches, not conveying as effectively as it could the whole range of conduct that really makes antisemitism so indefensible.

The concern here, clumsy syntax apart, is that ‘hatred’ is a very strong word, no doubt perfectly appropriate to describe those who daub swastikas on synagogues, or hurl explicit and filthy verbal abuse at Jewish individuals for being Jews, but falling short in capturing those who express what might be more accurately described as simply hostility or prejudice, or who practise discrimination. A better formulation, it could be argued, embracing the whole spectrum of unacceptable conduct, and not just its most extreme manifestations, would be simply:

Antisemitism is hostility to, prejudice or discrimination against Jews as such.

Antisemitism is hostility to, prejudice or discrimination against Jews as such.

Apart from anything else, this language does seem to capture what I have always believed is the crucial human rights issue for anyone of distinct ethnicity, race, religion, gender, sexual identity or the like in our society: being treated badly for what you are rather than anything you do.

While the Commission may not be inclined to reopen an issue on which it has already taken a clear position, it might be helpful nonetheless – particularly in the context of acknowledging other possible weaknesses in the IHRA package – to at least identify this as an alternative possible formulation of the core definition that will inform and impact all its findings.

The IHRA on Criticism of Israel. From the perspective of those with more familiar concerns – about the potential over-reach, rather than under-reach, of the definition and its accompanying material – a significant concern is that the IHRA sentence that is most often cited as putting their fears at rest, viz. ‘criticism of Israel similar to that levelled against any other country cannot be regarded as antisemitic’, is not quite as fit for purpose as it might seem. The reality is that many criticisms are made against Israel – for example in relation to its settlements policies in the West Bank – which have no obvious current parallel in any other country.

A much better, and simpler, formulation of the point in issue was that made by the Commissioner in her Opening Statement: ‘criticism of the policies that may be pursued by the government of Israel from time to time is not, of itself, antisemitic’. It may, however, have been a little heroic to describe this position as ‘uncontroversial’, given the all too evident continuing intention in some quarters, in our society and around the world, to conflate criticism of Israeli conduct with antisemitism.

It is submitted, accordingly, that it would be helpful if the Commission in its reporting acknowledged quite explicitly that the IHRA sentence in question needs some refinement, of the kind already made by the Commissioner. And further, if it were to supplement that with some further explicit examples of its own to drive the point home, perhaps along the lines of my own foray into this territory in my letter published in the Sydney Morning Herald on 14 June 2021:

Calling out China for its persecution of Uighurs is not to be a Sinophobic racist. Calling out Myanmar for its crimes against Rohingya people is not to be anti-Buddhist. Calling out Saudi Arabia and Egypt for their murder and suppression of dissidents is not to be Islamophobic or anti-Arab. And calling out Israel for its sabotage of the two-state solution and creation of a de facto apartheid state is not to be anti-Semitic.

Calling out China for its persecution of Uighurs is not to be a Sinophobic racist. Calling out Myanmar for its crimes against Rohingya people is not to be anti-Buddhist. Calling out Saudi Arabia and Egypt for their murder and suppression of dissidents is not to be Islamophobic or anti-Arab. And calling out Israel for its sabotage of the two-state solution and creation of a de facto apartheid state is not to be anti-Semitic.

The Problematic IHRA Examples. In her Opening Statement the Commissioner acknowledged, in relation to the eleven examples of conduct which could amount to antisemitism accompanying the IHRA definition, that ‘at least two of the examples are controversial and have led some critics to argue that the IHRA working definition wrongly labels as antisemitic the expression of political views which do not express a hatred of Jews’. But she added that her ‘current view is that these concerns pay insufficient regard to the terms of the definition itself and they’re apt to overlook the requirement to take account of the overall context in which conduct occurs before making any determination that the conduct is antisemitic’.

It is submitted that while the Commissioner’s recognition of the crucial importance of context in all these determinations is very welcome, it would be helpful for the Commission in its reporting to spell out in a little detail just how problematic some of the examples are, and to propose some additional language of its own – focusing on the issue of intent – to ensure that they are not misapplied in practice. My own view is that while there are no problems with examples 1-6, 9 and 11 in the IHRA list, there are issues with examples 7, 8 and 10 which need to be acknowledged.

In........

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