antisemitism,  Law

Antisemitism: A Primer for Judges

This is a guest post by amie

The Equal Treatment Bench book is a  looseleaf file  which the Preface says is for all judges, in all courts and tribunals, whether new or with considerable experience. It is replete with observations from the anthropological school of multiculturality, designed to refine the sensibilities of the judiciary.

Under “Culturally Sensitive Communication” the judge is instructed to take  account of cultural diversity without stereotyping:

“Looking down and lowering one’s voice can be a sign of respect, but not every African-Caribbean or Chinese young male will conform to this stereotype.”

And to be aware of diversity in body language:

A Kurdish/Turkish/Persian/Arab man will kiss the cheeks of his male colleague in public but not his wife.

It admonishes:

“Never underestimate the influence which our cultural background may have on our judgments and perceptions, no matter how open minded we may consider ourselves to be. We should be well-informed about the differing realities of life for all peoples of diverse backgrounds.”

There are chapters on Racism covering stop and search of black youths, and  religious discrimination such as attacks on Muslims after 9/11. Half the volume is  a junior school RE level overview of belief systems from Bahai to Zoroastrianism.

Alas, the section on Judaism  cannot begin to remedy the lacuna  in appreciation of “the differing realities of life” for Jews today, of the dark  history and continuing impact of certain antisemitic tropes, as  evidenced in the Upper Tribunal judgment of Raed Salah.

An even more troubling deficit is evident in a statements of two judges in the Court of Appeal case of Naik. More of Naik later.

Regarding Saleh, we are told “there is a whole bunch of evidence, unused in the trial and unquestioned, that shows the nature of Raed Salah.”

I am not alone in dearly wishing to know what went wrong with the Home Office presentation of the case.

Was the material presented to the HO in a rigorous enough form  capable of standing  up as evidence? If so, what was the Home Office’s thinking in the selection  and ignoring of material?

Without the transcript, we cannot assess the extent, if any, to which the expertise, credibility  and arguments of applicant’s expert witnesses were challenged by the Home Office counsel. There was no one it seems to expose the track record  of Bob Lambert or David Miller,

Why was the only witness for the Home Office a senior UK Border Agency  case worker,  who conceded he was no expert in this area?

The poem was found by both the First Tier Tribunal and on appeal in the Upper Tribunal not to refer to Jews.  The strange reasoning of the FT judge was that he had to accept the expert Dr Sperl’s view  that people in the Middle East would understand that this poem did not refer to Jews, but the same understanding could not be relied on for the Jews in the UK, whereas the UT found that because it only referred to Israel, it was not a problem in the UK.

Commenters on this blog were able to make ready reference to authorities which document the historic linking of Jews and monkeys such as

Bernard Lewis’ The Jews of Islam:

‘There is no lack of polemic literature attacking the Christians and occasionally also the Jews…The language of abuse is often quite strong. The conventional epithets are apes [=monkeys] for Jews and pigs for Christians.’ Lewis, The Jews of Islam, p. 33.

Where was the expert witness for the HO to put this before the court?

And what to make of the strange distinction between anti Jewish and “generally anti-Semitic attitudes”? The UT judgment is inelegantly set out so that it is difficult to tell whether this phrase in parenthesis  originates in the Applicant’s submission and is quoted uncritically by the UT, or whether this is a distinction of the UT judge’s devising:

“In the course of the hearing before us, as before the First-tier Tribunal, there were suggestions that the CST may be over sensitive in its detection of anti-Semitism (in the sense of anti-Jewish rather than generally anti-Semitic attitudes)”.

As regards the speech containing the blood libel,  the UT found that the intemperate language  was mitigated by more benign messages: Saleh refers to the caliphate being established in Jerusalem and then the synagogues will be protected, etc. The judge concludes: “So, the sermon was not all fire and brimstone.”

Where was the expert witness to provide the historical context of  what “protection” under the Caliphates  entailed for peoples of Dhimmi status, mainly Jews?  To explain that  Dhimmi protection was at times benign, but always precarious, and subject to a rigidly inferior apartheid status which included violence and ritual humiliation. At times this escalated  into   massacres and rapes, and forced conversions.

However, the most disturbing finding of the UT is the acceptance that there was an  utterance of the blood libel, but that this was nonetheless not  “at the heart of the applicant’s message”.

Although the judge paid lip service to the fact that the blood libel is deeply offensive to Jews and closely associated with their persecution over centuries, he fails to appreciate how deeply this strikes at, yes, the heart of the Jewish experience.

Despite finding that the reference to the blood libel and one call to martyrdom had the potential to foster hatred and lead to inter-community violence, (even finding that the “more moderate language” and positive statements about synagogues and the fraught circumstances in which the speech was made were not enough to negate the blood libel comment)  the judge is still able to quarantine the libel and thus distinguish Saleh from Naik, whom he considers to have had a “clear agenda in his public pronouncements that was pervasive and potentially offensive or dangerous.” [para 79]

What measure of judicial sensibility does one need to  grasp that embracing the  blood libel cannot but pervade every aspect of the speaker’s discourse, then or since?

How many Rivers of Blood speeches did Enoch Powell have to make so that [notwithstanding his attempts to gloss its meaning] it seared the consciousness of this nation? It is the one thing most recall about Powell, eclipsing all his other accomplishments.

The problem is, that the UT did not have to stay with the evidence that was presented to  the FT, but was entitled to take into account facts occurring in the time period between  the FT decision and the UT’s own considerations. It set great store by the fact  that (surprise surprise) Salah had been as good as gold while in the UK awaiting his appeal. This was strong confirmation, if not the deciding factor, that the Secretary’s actions were not necessary to preserve community harmony or protect the UK from the dangers set out in the Prevent policy.

Yet Salah himself says

“bail conditions continued to severely restrict my freedom, making it impossible for me to speak as I had intended.” [footnote 1]

Well, this is just one idiosyncratic judgement, some have consoled themselves. Would another judge in a higher court see  things differently? Firstly, the hurdles the HO has to overcome to be granted leave to appeal and the prospects of success on appeal, are daunting. The opportunity for introducing evidence that was not before the UT is vanishingly slight, in my (inexpert) opinion.

But in the Court of Appeal, in the judgment of Naik, I discern deeply disturbing portents in the outlook of some judges at the appellate level.

First though, there are aspects of Naik which one wishes were followed in Saleh, and one wonders why they were not:

Naik’s argument that there had never been any disturbances at his meetings on his many previous visits, appears to have cut no ice with the Court of Appeal

And when considering the balance between freedom of speech and the potential for public disorder, Carnwath LJ accepted that “this may not be the end of the matter. In relation to a person of Dr Naik’s international importance, his admission, or indeed his exclusion, may have a symbolic significance which transcends purely practical considerations”. Again, surely something that applied to Saleh?

Although the decision to exclude Naik was upheld by the Court of Appeal, not all the  statements relied on by the Secretary of State were found by the court to fall within the Prevent Policy, and this is where things become alarming:

Naik’s statements  encouraging Muslims to be terrorists, or comparing Americans to pigs- clearly within the policy. However,  Carnwath LJ finds “other statements are more open to argument”, such as Statement 7:

“Today, America is controlled by the Jews, whether it be the banks, whether it be the money, whether it be the power. Nobody can become a president of the USA without walking the Star of David.” [Appendix A of judgment]

This, says the judge

“though strongly expressed, may be thought within the bounds of legitimate political comment.”

The judge did find that the cumulative effect of all the statements, some of which fell within the policy,  or if not, were at least  potentially “divisive and… damaging to community relations”, were inconsistent with Dr Naik’s asserted message of tolerance and bridge-building.

Lord Justice Gross in his judgment [para 99] establishes a sound precedent for  cutting through the sophistry:

“The audience at a public meeting addressed by Dr Naik cannot be expected – or safely assumed – to engage in refined textual analysis to discern that there is or may be some different message which Dr. Naik is seeking to convey. “

But dismayingly, he too declares:

“I am content, as Carnwath LJ has done (at [70] above) to treat Statement 7, whether or not unhappily worded, as not straying beyond legitimate political comment.”

Unhappily worded.

Legitimate political comment!

Alan A writes:

Most people, including self-described ‘progressives’ have no understanding of antisemitism, its history, its forms, and how deeply it is embedded in our culture. Many don’t even recognise it. There are many people, for example, who would think that the notion that Jews control the media, governments, and the financial system was simply a statement of fact, rather than a wicked canard.

Things are really, really bad when two judges of the Court of Appeal think that if not fact, this is legitimate political discourse.

Things may be even worse:

It has just been announced that Lord Justice Carnwath has been elevated to the Supreme Court, the highest court in the land.

The judges are in dire need of a new Bench Book: A Primer on Antisemitism. I know of a very good resource: the  CST’s website with its measured methodical  documentation and analysis. It is a bitter irony that I fear there may be resistance to citing them,  for reasons that have nothing to do with their  soundness and reliability  and everything to do with the current smear  of  the CST as source, which  has its roots in precisely this same  “legitimate political comment.

This then, would be my introduction to the Primer.  All further suggestions welcome.

William Nicholls, who was an Anglican Minister, writes in his magisterial work, Christian Antisemitism:  A History of Hate:

“The Protocols are perhaps the most typical as well as the most influential expression of the theory of Jewish world conspiracy. No traces of such a conspiracy have ever been found by sane investigators, to the extent that they would bother to look. In view of the continuous misfortunes of the Jewish people at the hands of their enemies and detractors, the theory is so improbable that no sensible person would spend time on it.

… there is no doubt that the Protocols continue to exert their pernicious influence wherever people wish to think ill of Jews, including the whole Arab world.”
[pg 341]

[footnote 1
Saleh in the post- judgment CIF article accepts the evil of the blood libel, but he denies that his speech can be so interpreted. But the court had found that this was the only interpretation , so there has been no proper repudiation. In any event, there seems also to be a lacuna in the law here. Although the original Policy applied to exclusions and deportations,  the amendment of 2008  seems to apply only  to exclusions and not deportations. The amendment introduces a presumption in favour of exclusions once the person  has  fallen foul of the Unacceptable Behaviours policy, and the burden of proof is on the applicant who claims he has repudiated, to demonstrate that he had done so publicly.  Naik failed this test, but he was outside the country and moreover was taking the decision to exclude him on judicial review. Saleh was in the country and appealing ( a different legal process with different tests) against the deportation order.