With its legal credibility torn to shreds, the time has come to re-evaluate the Scottish Government’s adoption of the IHRA definition of antisemitism, suggests Phil Chetwynd.

It is not necessary in this publication to reaffirm the horror and disgust that most people feel at any hints of antisemitic words or actions that may occur in Scotland. Antisemitism, like any other form of racism, is a vile crime and should be treated as such wherever it raises its ugly head.

But it is a curious fact that in the midst of a torrent of claims of antisemitism that have emerged since the October 7th Al Aqsa Flood began, very little has been heard of the International Holocaust Remembrance Alliance (IHRA) definition of anti-semitism in Scotland and the UK as a whole.

The definition was extensively adopted by states (mainly in Europe), local authorities, universities and other civic institutions as a way of clarifying the thorny problem of what constitutes antisemitism in today’s world. In 2016, the plenary meeting of the IHRA adopted the following ‘non-legally binding” working definition of antisemitism:

“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.”

On the face of it this wording is uncontroversial enough, which may account for its widespread acceptance. However, its authors also went on to cite a number of examples of antisemitism that are now widely contested. 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 endeavour.” This obvious non-sequitor is typical of some of the other “examples” offered up in the document.

The Scottish Government “adopted” the definition in 2017 leading to a slew of attempts by the Zionist lobby to use the IHRA definition to silence the Palestinian voice in the Scottish courts. In almost every case, however these attempts failed.

Indeed, from its inception the IHRA definition has been fraught with problems when subjected to the scrutiny of the law. There have been several cases within the UK when the Zionist lobby have attempted to use ‘lawfare’ as a means of stifling freedom of expression on the question of Palestine.

Examples of these are:

1) Complaints by the Israeli Embassy and other pro-Israeli advocates against Baroness Tongue for organising a meeting in the House of Lords regarding the Balfour Declaration. After detailed video-tape scrutiny of proceedings at this meeting the many accusations of alleged antisemitism were firmly and decisively rebuffed by the Parliamentary Commissioner for Standards, raising real questions about the attempt at the time by the Israeli Embassy to maliciously intervene in British politics.

2) The findings of the Employment Tribunal investigating claims of antisemitic harrassment towards members of the University and College Union who were opposed to the union’s policy on Palestine. The Tribunal stated that “the proceedings are dismissed in their totality” and “we greatly regret that the case was ever brought. At heart it represents an impermissible attempt to achieve a political end by litigious means.” The Tribunal also described themselves as troubled by the implications of the claim, stating that “underlying it we sense a worrying disregard for pluralism, tolerance and freedom of expression, principles which the courts and tribunals are, and must be, vigilant to protect”.

3) Most recently, an Employment Tribunal not only found that sociologist David Miller was wrongfully dismissed by the University of Bristol, but also that his anti-Zionist beliefs qualified as a “philosophical belief and a protected characteristic” under the Equality Act 2010. The main accusations against Miller came from the Community Security Trust who cited the IHRA in its attack on Miller. When the University brought in a KC to review the case the investigation concluded there was no case to answer. Miller’s actions did not constitute misconduct. The KC also addressed the complexities of defining antisemitism noting the IHRA’s definition’s controversial nature and it’s incompatibility with legal obligations.

Undeterred, Scotland’s Zionist lobby latched onto the potential of the new ‘definition’ to harass pro-Palestinian activists here, dragging them before the courts to defend themselves against baseless accusations of hate crimes simply for uttering mildly pro-Palestinian slogans. The Scottish Palestine Solidarity Campaign has been a prime target in this respect. Eminent speakers such as black, Jewish human-rights campaigner Jackie Walker was banned from speaking by the Bishop of Edinburgh in 2017. Professor Richard Falk,a former United Nations (UN) special investigator on human rights in the Palestinian territories was also denied the right to speak in Edinburgh in the same year.

So the IHRA relies more on the fear factor rather than any juridical value. As we have seen, when used in a court of law the IHRA definition has consistently failed to stand up to legal scrutiny. Indeed, in a legal opinion presented in 2017, Lord Justice Tomlinson delivered a scathing critique of the new definition:

“The IHRA “non-legally binding “working definition” of antisemitism is unclear and confusing and should be used with caution.

The “examples” accompanying the IHRA definition should be understood in the light of the definition and it should be understood that the conduct listed is only antisemitic if it manifests hatred towards Jews.

The UK Government’s “adoption” of the IHRA Definition has no legal status or effect and, in particular, does not require public authorities to adopt this definition as part of their anti-racism policies …….

Properly understood in its own terms the IHRA Definition does not mean that activities such as describing Israel as a state enacting policies of apartheid, as practicing settler colonialism or calling for policies of boycott divestment or sanctions against Israel can properly be characterized as antisemitic. A public authority which sought to apply the IHRA Definition to prohibit or sanction such activities would be acting unlawfully.”

So why is it that the IHRA definition of antisemitism is still endorsed by the Scottish Government? Its legal status has continuously been torn to shreds by lawyers. Its coherence and credibility has been consistently demonstrated to be faulty. Even its principal author Daniel Stern was moved to criticise its “chilling effect” when misused by Trump and his cronies. All it is good for is to smear the pro-Palestinian community in Scotland and elsewhere with unfounded accusations of antisemitism.It is time for the definition to go in Scotland and to go soon. It has no place in a land of tolerance, diversity and human rights.

Phil Chetwynd is a member of the Network of Photographers for Palestine