New human rights order risks restricting criticism of Israel

Last month, Ontario became the latest jurisdiction to adopt the International Holocaust Remembrance Alliance (IHRA) working definition of antisemitism. In the process, the province has sown division within and between communities.

This is because the IHRA approach conflates criticism of Israel with antisemitism.

The IHRA approach to antisemitism is hotly debated within the Jewish community. Independent Jewish Voices and well-known personalities like Michele Landsberg and Avi Lewis oppose the IHRA approach. Even the original author of the IHRA’s definition, Kenneth Stern, says that it has been weaponized to suppress criticism of Israel.

Groups like the Centre for Israel and Jewish Affairs (CIJA) and B’nai Brith argue in favour. They say that legitimate criticism of Israel is permissible but they do not say who gets to decide what is permissible.

Meanwhile, those whose argue against the IHRA, including Jewish community members, have been equated with supporters of antisemitism.

IHRA definition

In May 2016, IHRA defined antisemitism as forms of hatred towards Jewish people. The IHRA also included a list of illustrative examples. Several examples portray criticism of Israel as antisemitism. For example, suggesting that Israel is “a racist endeavour” amounts to antisemitism.

Ontario adopted the IHRA definition of antisemitism by resorting to an order-in-council. The order-in-council was used as an alternative to Bill 168, which was abandoned on the eve of scheduled public hearings. The order-in-council circumvented these hearings.

Bill 168 included the illustrative examples put forth by the IHRA in 2016. However, the order-in-council did not include them. Still, some insist that the illustrative examples are now part of Ontario’s law.

Against this context, scholars and human rights groups worry about the suppression of academic freedom and free speech in favour of a foreign state.

The Palestinian perspective on the IHRA

It is a fundamental principle of Canadian human rights law that the communities that are most affected by a law should have their perspectives taken into account in its interpretation and application.

I am the first and only tenured law professor in Canada with a Palestinian background. I can attest that conflating criticism of Israel with antisemitism deeply affects Palestinians.

The conflation silences the ability to bear witness to the Israeli government’s atrocities against Palestinians at precisely the time when such witnessing is urgently needed.

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What constitutes fair and unfair criticism of Israel?

As more jurisdictions adopt the IHRA approach to antisemitism, Israel continues to systematically subjugate and dispossess Palestinians. Israeli military courts unjustly sentence thousands of civilians without due process. Illegal settlements continue to be built. Palestinian homes continue to be demolished.

This silencing represents a pattern of erasure of Palestinian suffering. For example, Israel was created through the expulsion of Palestinians. Historians, including Israeli historians, have documented this reality. But Israel’s official narrative denies or justifies it.

The IHRA approach lends support to those who seek to silence Palestinian perspectives. In September David E. Spiro, a Tax Court judge and a former CIJA co-chair, was alleged to have interfered with hiring at the University of Toronto’s law faculty. According to reports, Spiro objected to Valentina Azarova’s criticisms of Israel. Though these criticism were grounded in international law, Spiro allegedly urged the dean to end the hiring process.

Other Canadian institutions are also accused of similar discrimination. Sometimes the denunciations are public. At other times they are advanced quietly. Either way, they reveal that some will not tolerate legitimate criticism of Israel.

Conflating criticism of Israel with antisemitism renders Palestinian-Canadians second-class citizens. If the IHRA approach were to be given the full force of law, we would be the only group in Canada prevented from criticizing the state that dehumanizes us and violates our rights.

The IHRA’s Canadian context

The IHRA definition is being advanced against other developments in Canada.

Canadian-Palestinian community members worry about the exportation of lawfare to Canada. Lawfare involves harnessing legal processes to deter Israel’s critics.

We see our allies labelled as terrorist sympathizers.

We note that Canada has supported Israel internationally while remaining silent about Palestinian rights.

We wonder why the attorney general is trying to overturn a Federal Court ruling that required wines from Israeli settlements not to be misleadingly labelled as products of Israel.

We listened in disbelief as the CBC apologized for simply using the word “Palestine.”

And we question the fact that opinions about Israel have been turned into a radicalization litmus test

Where does Ontario law stand?

I was part of a group invited to a meeting with Conservative MPP, Kaleed Rasheed. He explained that Ontario’s order-in-council excludes the IHRA’s illustrative examples. Criticisms of Israel are not prohibited. Statements by other Conservatives suggest otherwise.

Given these contradictions, some will continue to equate criticism of Israel with antisemitism. Some will also work as though only their perspective is relevant to the IHRA. This is inaccurate. The IHRA approach is so broad that it impacts the rights, reputations and livelihoods of multiple groups, Palestinians included.

In contrast to the IHRA, Independent Jewish Voices proposes a definition of antisemitism. This definition does not restrict criticisms of Israel. Rather, it recognises that our fates are interdependent.

Reem Bahdi, Associate Professor, Faculty of Law, University of Windsor

This article is republished from The Conversation under a Creative Commons license. Read the original article.