This is a guest post by Amie
One particular utterance of an American attorney and academic hitherto unknown to the UK public called Kenneth S Stern, expressing his concerns about the IHRA, has rapidly become the Ha’avarah Agreement de nos jour: People who have never heard of him until just now are quoting him “knowledgeably” as the leading authority in their opposition to IHRA.It looks like hardening into another of those zombie myths in the arsenal of those with ill intent towards Jews.
John McDonnell in his Jewish News interview says it all changed for him once he had read Stern.
Chris Williamson is obsessed by him. In his megaphoned speech at the anti IHRA demo outside Labour HQ, right after his roll call of Jewish (heavy emphasis) eminent academics, “most important of all” he announced, was the oppositon of the very person who authored the IHRA and its examples; Stern. He repeats this in interviews, kicking off this radio debate with a “very important point” about Stern, the very author, (before rolling out his litany of eminent academics Brian Klog (sic) David Fieldman (sic) and Anthony Lerman, trumpeting“Jewish!” before each mispronounced name). Responding, Gideon Falter corrected what he called Williamson’s lies about Stern.
Dave Rich’s thread is an authoritative, sourced, corrective to this burgeoning mythology.
The oft cited concerns Stern expressed in 2017 are found in his testimony before a US House of Representatives Committee (PDF link) examining Hate Crime on campuses.
His statement is very specifically in the context of academic freedom on Campus. It relates to proposed legislation, The Anti-Semitism Awareness Act, or AAA, drafted to help the U.S. Department of Education’s Office for Civil Rights (OCR) recognize anti-Semitic incidents on campus by using the U.S. State Department’s definition of anti-Semitism to evaluate complaints under Title VI of the Civil Rights Act.
Title VI obligates universities that receive federal funds to prevent peer-to-peer harassment based on race, color, or national origin when the harassment “is so severe, pervasive, and objectively offensive that it effectively bars the victim’s access to an educational opportunity or benefit.”
Stern’s reservations are specifically focused on academic freedom in a climate, to which he refers in his statement, of safe spaces, trigger warnings and microagressions, a concern which many of us may share. He stated in his 2010 address to the conference which Rich attended (PDF link): “Campus administrations need to uphold the highest academic standards and make certain that while heated debate is encouraged, intimidation is prohibited”, but became concerned at what he saw as abuse of Title VI complaints to chill debate on campus, in cases where ideas, rather than sustained and overt hostility, were engaged.
Which brings me to Geoffrey Robertson QC’s “Opinion” (PDF link) -, the latest to be triumpantly deployed by the anti IHRA-ites. Williamson heralds it as from one of the finest legal minds in the land, citing him along with Sedley and Tomlinson. The latter two legal views on IHRA I have already addressed in my previous post.
The Opinion opens with a slightly fifth form essay intro in the form of an instruction on Orwell’s definition of liberty, which will be superfluous to observant HP readers who may have noticed the banner.
Robertson’s citation of and from the Stern Testimony, without reference to its context,is just one of the problems with this Opinion.
When the first version of the Robertson Opinion was published, there were a substantial number of factual errors which legal bloggers Yair Wallach and Adam Wagner drew attention to as being serious.
The most outlandish of these unsubstantiated claims, which Wagner shows is entirely erroneous, was in the context of the IHRA example of the accusation of dual loyalties. Robertson asserted with no supporting authority, that Israel foists Israeli citizenship automatically on all diaspora Jews, whether they want it or not.
Robertson took the highly unusual step, for a counsel’s Opinion, of issuing a revised version on 3/9, downgrading the corrections to what he notes as merely “typographical and minor factual amendments.”
But is the final version Improved? Varbesert?
As I see it, there are 2 kinds of Opinion which Counsel can be briefed to provide:
- The first is a private assessment as to the strengths and weaknesses of their client’s case, often with the advice, if weak, to refrain from litigation or settle; to tell the client what they don’t want to hear.
- The second is where the Opinion is deployed as an instrument to be brandished to the client’s antagonist or even more publicy, in support of the client’s agenda. Here, Counsel will marshall the legal arguments in support of the client’s desired course of action. This Opinon is legal advocacy.
Robertson’s document purports to be the latter. In my view what legal argument there is, is flawed, but more pertinently, most of it is ahistoric unvalidated polemic, dressed up in the respectablity of legal advocacy.
I will not address the tendentious historical narrative or political positions evinced; these have been addressed in Jonathan Hoffman’s post.
Here are my chief issues with the document as legal argument:
- Robertson’s first criticism of the “core definition” (Para 11 of his Opinion) reflects a fundamental miscontruing of the text, puzzling in someone with the author’s status in the legal pantheon.
He assumes that the “perception” in the phrase “Anti-Semitism is a certain perception of Jews”, is the perception of the observer of the antisemitic speech or act, which leads him to pose irrelevant questions: “what perception, and in whose eyes – those of the Jewish community, of Zionists or anti-Zionists, or is this a reference (as it should be)to the objective impression of the reasonable bystander?” and thus embarks on an irrelevant explanation of MacPherson. He uses this analysis as an important contribution to his argument that the definition is too vague to be of utility.
This is not just creating a straw man, but grasping the wrong end of the straw, as the clear meaning of the text is that the perception referred to is of those who hold antisemitic views of Jews.
- Robertson’s second striking misconstruing of the IHRA is his conclusion that it “pivots” upon manifestations of hatred towards Jews, and therefore does not capture antisemitism arising from instances not predicated on hate (para 12). This conclusion oddly arrives after he criticises the core definition for being too vague in stating that it “may” be expressed as hatred, but fails to give examples of other ways short of hatred. (But that is provided by the 11 augmenting examples!)
He finds“remarkable” that the pivoting narrowly around hatred is a failing which has not engaged the attention of critics or proponents. In fact, the other Opinion which is touted around by anti IHRA-ites, often in the same breath as Robertson (see Williamson, ibid) is that of Hugh Tomlinson. I have addressed Tomlinson’s interpretation of the IHRA text in my previous post.
Tomlinson by contrast, finds the definition too broad precisely because it encompasses instances outside of hate. He therefore elects to “improve” it by rewording it to confine it to hate, but then finds the examples don’t fit, so they will have to be reworded as well.
When Williamson cites these two Opinions, he should be told they contradict each other in this fundamental respect.
And as Robertson sets such store with Stern, he should also be aware that, as pointed out in my previous post, Stern specifically moves away from the concept of hate as either sufficient or necessary for the definition. In his 2010 address (pg 35) Stern said:
“Others have said that the definition will stifle debate by labeling people antisemites. That is a fundamental misreading of the definition. It intentionally gets away from the idea that we need to see what’s in a person’s heart and name it. One can say or do racist or antisemitic things (which should be counted by monitors of such) without harboring hate.”
He confirmed this position in his 2017 testimony:
“[The EUMC definition] focused their attention away from the question of whether the actor hated Jews, and focused them on whether the actor selected Jews to be victims. This distinction between motive and intent was key.” [pg 5 and footnote 9 pg 6 for valuable discussion on this].
This fatally undermines Robertson’s conclusion that because the definition is limited to hatred,some “non hate” examples of antisemitism he sets out would not give protection to Jews under the definition:
“This consideration, above all others, convinces me that the definition is not fit for purpose, or any purpose that relies upon it to identify anti-Semitism accurately” [p.7]
It is ironic that when Robertson’s Opinion is brandished by Williamson and random Momentumites being interviewed or opining daily in all forms of media, to prove that the definition is not fit for purpose,they clearly have in mind that this is because it constrains their freedom to attack Israel using any rhetoric they wish, rather than that it is too limited in its protection of Jews.
- In paragraph 16, Robertson essays to negate the free speech caveat in the IRHA which excludes criticism of Israel “similar to that levelled against any other country” as this “cannot be regarded as antisemitic”: He argues this on a similar basis to Sedley who justifies such singling out of Israel owing to the “historical, political, military and humanitarian uniqueness of Israel’s occupation and colonisation of Palestine”. Robertson sets out a litany of alleged historical events and accusations which render Israel unique and so deserving of singular criticism. Most of these have been addressed by Hoffman in his post. Suffice it to say here that even if any of these accusations were true, setting out their particulars is not such as to render them unique.
To adapt Tolstoy’s maxim: Only platonically perfect countries can ever be alike; imperfect countries are each imperfect in their own way. Yet this does not make Israel unique, and therefore to be singled out for odium.
(I doubt whether Counsel would argue this kind of particularity to distinguish and thwart an equal pay for equal work claim between ostensibly disparate male and female jobs which are rated of equal value.)
- His discussion of the 11 examples is skewed by his presumption that the core definition “pivots around hatred” and therefore he worries about the (on a proper interpretation) non question whether the hatred element is a prerequisite for any of the examples in order to be deemed antisemitic. He then makes his way through the examples, in the course of which, despite his initial presumption, he seems to veer inconsistently between assuming in some examples that hostility or hatred brings the particular example into play; and in others, just hatred.
- Robertson, in arguing the chilling effect of misuse of the definition, refers to Stern’s description of “McCarthy-like” ways. Counsel fails to link to the actual example which Stern applies this epithet to. It relates to the writings of a Bristol University academic, where she invokes the instrumentalising in bad faith by Jews and Israel of the Holocaust. (The university did not discipline her.) In fact, Counsel himself appears to find no particular problem with examples 4 and 5 which cover this kind of discourse, and it seems would accept these rightly fall within the definition.
- In Example 8: Double standards in expecting behaviour from Israel not demanded of other democracies, Counsel displays a curious circularity of reasoning. He says The UN Human Rights Counsel “notoriously” makes more criticism of Israel than any other country but this cannot be proven to be dictated by hatred of Jews. He thinks this argument is strengthened by pointing out there is also a UN country specific mandate about Palestine which puts Israel in a unique position, and therefore meriting of unique scrutiny!
I will leave further critique to colleagues who have pointed to the selectivity in the way the Opinion deals with several cited legal cases, and will end with Counsel’s admonition in para 38 of his Opinion. Counsel refers to “malevolent and vicious outbursts evincing hatred or contempt for pro-Israeli commentators or (in particular) for critics of Jeremy Corbyn’s alleged pro-Palestinian sentiment” which in his view “do not warrant detailed analysis.” They could, he says, if Labour party members, justifiably be expelled, “under any definition of antisemitism it cared to adopt”.
Awkwardly, these remarks could well apply to Counsel’s own client, having regard to the many instances documented in Hoffman’s post.
Nick Cohen’s argument in this thread, regarding the lack of moral standing of Labour in objecting to, and attempting to reword the IHRA, could equally apply to the commissioning of this Opinion, originating from the PRC as a “tainted source”.
Along with Cohen and others, I acknowledge the IHRA is not perfect, possibly insufficiently precise to enforce in any criminal adjudication, and should be applied with care in an academic environment. Counsel concludes it should not be adopted as a rule or standard in any quasi judicial decision-making by any public authority. I disagree regarding the standard: It can and should be adopted as a standard, as a norm throughout institutions and greater society.
In establishing counternorms, as Gordon Brown said in his passionate and moving speech at the JLM conference, the unanimity behind this document is its strength.