The IHRA Definition and Its Use to Suppress Criticism of Israel in Europe

The IHRA definition as a tool against dissent within the EU

On 6 December 2018, the Justice and Home Affairs Council of the EU adopted a Council Declaration on the fight against antisemitism,[13] in which it encouraged all Member States to endorse the IHRA definition.[14] The European Parliament – the main elected legislative body of the EU - called for its adoption on 1 June 2017, although ostensibly omitting the examples from the official adoption text.[15]

On 7 January 2021, the European Commission published its own “Handbook for the practical use of the IHRA working definition of antisemitism”,[16] creating guidelines and giving examples of “good” implementation of the definition amongst Member States. The Handbook urges donors to “avoid funding antisemitic groups and projects”, and to introduce positive and negative funding conditionality based on the IHRA definition, which includes the controversial eleven examples as funding criteria. This means that groups not endorsing the IHRA might receive less or no funding at all, and that groups perceived to engage with the behaviors described by the examples – such as being critical of Israel or criticising the Zionist project as having a racist nature – could be barred from EU funding in the future.[17] The Handbook also highlights the Romanian IHRA-based law criminalising antisemitism as a positive development of the definition’s implementation,[18] coming full circle in the mutual reinforcement of the process of weaponisation of the IHRA between the EU and its Member states, even though the document is explicitly a non-binding one.

Even more worrisome is that although the Handbook was published under the Commission’s own name and logo, it was actually drafted by the Federal Association of Departments for Research and Information on Anti-semitism (RIAS).[19] This German organization was founded by the German antisemitism coordinator Felix Klein, a man heavily criticised for politically instrumentalising the fight against antisemitism in Germany against Palestinian civil society organisations (CSOs).[20] Thus, the Commission outsourced the sensitive task of documenting, directing, and entrenching EU policy to a known partial third party, letting this third party recommend a serious revamping of funding, de-platforming, and even criminal law policies. 

The IHRA defects

The IHRA definition is a highly problematic document, whose imprecisions do not allow for it to be used as a legal basis for fighting antisemitism. It defines itself as a “non-legally binding working definition”,[21] meaning it lacks the clarity and precision needed from a legal, statutory definition. The language is ambiguous and imprecise:  antisemitism is delineated as “a certain perception of Jews, which may be expressed through hatred”, thereby reducing the burden of proof of antisemitism to the identification of an internal psychological status. Consequently, if applied as a statutory definition or as a tool to support other regulations on antisemitism, the IHRA opens the door for any criticism to be conflated with an expression of hatred - a purely subjective evaluation of intent that cannot be judged in an objective manner. In a practical sense, this means that an authority could decide unilaterally that any action or expression against Israeli policies or Zionism has, at its core, an expression of hatred against Jews, and order its censorship.

The text of the IHRA definition further complicates this ambiguity through its eleven examples of “antisemitic behavior”. Although not considered a part of the IHRA’s Working Definition of Antisemitism in 2016,[22] the examples have been adopted by the EU and EU Member States as if they were fully integral to the text. Said examples require that all criticism is passed through the subjective analysis of a “certain perception expressed through hate” to be understood as antisemitic, which only creates further confusion and leaves the door open to arbitrary political decisions. In practical terms, an organisation focused on criticising Israeli apartheid policies may be accused as ”applying double standards by requiring of it a behavior not expected or demanded of any other democratic nation” due to their members’ supposedly hateful perception of Jews, and consequently be suppressed or defunded by a Member State government.

Finally, there is the challenge of the non-normative nature of the definition itself, which could be qualified as a “quasi-law". A quasi-law is a document or policy that a government-backed regulatory body has adopted to guide its binding decisions, even though the document is not binding itself. By mimicking normative dimensions of the law, quasi-laws empower special interest groups to act as proxies for the state.[23] As in the example of the EU Handbook on the IHRA definition, quasi-laws exempt the state from the responsibility of elaborating their own norms by engaging and consulting their electorate, thus bypassing lengthy internal debates, and leaving partial third parties to frame their policies for them.

The EU and its legal commitment to prioritise freedom of expression

EU Member States should prioritise the freedom of expression enshrined in Articles 10 - 12 of the EU Charter of Fundamental Rights over the IHRA definition of antisemitism, due to the intrinsic ambiguity of the definition and its status as a non-binding document, drafted by a third party unrelated to the EU.[24] Articles 10-12 of the EU Charter of Fundamental Rights guarantee the rights of individuals to hold opinions without the interference of authorities, as well as the right to free association in political and civil matters, including participating in organisations such as those engaged with BDS or critical of the State of Israel. This right has been unambiguously recognised by the European Court of Human Rights in Baldassi v France, which declared that calling for Boycott, Divestment and Sanctions against the Israeli state falls under protected speech, and its censorship under the accusation of antisemitism would constitute a violation of Article 10 of the European Convention of Human Rights.[25]

This decision notwithstanding, we continue to see accusations of antisemitism being used to silence and sanction groups and individuals critical of Israel. Palestinian, European and even anti-Zionist Jewish organisations have been targeted by a militant use of the IHRA definition. Consequently, the impression given to the (general) public is that EU Member States appear more interested in shielding pro-Israel organisations from criticism than in guaranteeing the civil rights of their own citizens who speak out against Israel’s colonial-apartheid regime.