Testimony of Professor Barry Trachtenberg to the United States House Judiciary Committee about proposed speech codes on November 7, 2017
Barry Trachtenberg is the Rubin Presidential Chair of Jewish History and the Director of the Jewish Studies Program at Wake Forest University.
First published in the Forward and reprinted by permission of the author
It is increasingly common to hear reports that a “new antisemitism” threatens to endanger Jews on a scale not seen since the second World War and the Holocaust. Studies from several major Jewish organizations have sounded the alarm that antisemitism is a “clear and present danger,” while a number of commentators have argued that yet another “war against the Jews” is upon us.
As much as these sort of statements try to call our attention to a looming catastrophe, they are motivated less by an actual threat facing American or world Jewry than they are part of a persistent campaign to thwart debates, conversations, scholarly research, and political activism (all of which often occur within the Jewish community itself) that is critical of the State of Israel.
The truth is that the “old antisemitism” — such as we saw in Charlottesville this summer, where torch-bearing marchers carried Nazi and Confederate flags, chanted “You/Jews will not replace us,” and murdered a protester — is still alive in the United States and in many places around the world and requires vigilance and persistent resistance. It is a poor use of our time to distract ourselves by crafting legislation that dictates what can and cannot be said on college campuses regarding the State of Israel.
When Gary Spedding sent his riposte to Emily Thornberry’s remarks on Israel’s ‘Right to Exist’ he got a surprising response. Labour List preferred censorship to debate.
Fortunately, Jewish News, the UK publication of the Times of Israel had more faith in its readers ability to survive encountering something they may disagree with and published it online.
It is the outlawing of reasonable criticism of Israel that was the reason for the setting up of FSOI. The attacks on free speech come in many form:, denial of spaces for meetings; disciplining of people who defend Palestinian rights; and, as in this case, straight censorship. We are pleased to republish Gary’s article which repeats the simple point that states are human creations that are not, unlike their citizens, endowed with rights. They come, like South Sudan, and disappear, like Yugoslavia. Israel is no different.
Labour’s Shadow Foreign Secretary is wrong on Israel’s ‘right to exist’
Last week, in a high profile speech marking the centenary of the Balfour Declaration, the Shadow Foreign Secretary Emily Thornberry stated that there is “no place in the Labour Party” for anyone who holds the “abhorrent view” that Israel has no right to exist.
Such a notion is extremely controversial. And one that has been peddled by the Israeli establishment for decades. This piece of political rhetoric is actually designed to shut down any hope of a fruitful peace process between Israelis and Palestinians. Israeli figures have been pushing for foreign politicians, in countries that have highly regarded parliamentary democracy, to adopt this problematic soundbite when discussing Israel as it gives it a veneer of legitimacy.
Let me be clear from the outset that I firmly believe that all people, including Jewish people, have the right to both individual and collective self-determination. To quote President Woodrow Wilson, who was a strong proponent of the principle; “people may now be dominated and governed only by their own consent.” However, there are conflicting definitions and legal criteria surrounding self-determination itself and the plain truth is that no state or political entity has an inherent “right to exist”, and as such this term is legally meaningless. One of the reasons the ‘right to exist’ won’t be found codified in contemporary international law that it is near impossible to fulfil for the thousands of unique nations on the planet today.
Emily’s highly toxic statement is dangerous to both Labour Party members and the wider community engaged on the Israel-Palestine conflict. She has, like so many before her, confused a people’s inalienable right to self-determination with a non-existent ‘right to exist’ that is associated more with nation-states than people – in particular, ethnocratic states like Israel.
Now some might argue that the right to self-determination automatically grants people the right to a state. I can certainly understand how one might reach this viewpoint given the fact people should be able to freely choose how to express their self-determination. And yet there are limitations and certain responsibilities accompanying self-determination – coupled with certain vagueness around how a national group can achieve it without infringing upon the same rights held by others within the same territory. This is one of the issues at the heart of the Israel-Palestine conflict; two people within the same territory with conflicting national movements.
In addition, the demand by Israel’s establishment that their state’s “right to exist” be recognised is, in fact, a major obstacle to securing a political settlement between Israelis and Palestinians. It was never a demand in the peace processes with Egypt or Jordan that Israel, as a Jewish State, should be recognised as having a ‘right to exist’ – although later the leaders of both Egypt and Jordan agreed that in signing peace treaties they had implicitly accepted Israel’s existence. By including this demand when it comes to the Palestinians it effectively shuts down any hope of a peace process, but also has the added bonus of defining terms of debate elsewhere in the world. This has meant the labelling of anyone who deviates from the status quo as being motivated by evil ideology, of wanting the ‘destruction of Israel’, and by default wanting the wholesale slaughter of the Jewish people – something which, outside of a tiny minority of extreme fringes, is actually ludicrous.
For Palestinians, recognising Israel’s ‘right to exist’ exclusively as a Jewish state would mean accepting the legitimacy of their own dispossession and expulsion, something they will never do, which is why the Israeli government insist on this as an early prerequisite for negotiations – because it is the Israeli government that has all the cards when it comes to building peace in a conflict mired by power asymmetries.
For people like me, who believe in the importance of allowing different visions for the future in Israel-Palestine, and as long as it’s within a non-violent political process, the words of the Shadow Foreign Secretary are alarming. I do not accept that I have no place in the Labour Party simply for holding the reasonable view that no states have an inherent right to exist. Those who share Emily Thornberry’s view are saying that there is no place in Labour for those who support a shared future for Israelis and Palestinians within a bi-national state, or any kind of solution where equal rights are enshrined and basic democratic freedoms codified and guaranteed.
Emily Thornberry appears to have inadvertently bolstered the language of the Israeli right, thus helping to sow anxiety and fear among Labour Party members who might wish to discuss alternative yet still sustainable, realistic and durable resolutions to the Israel-Palestine conflict. By telling people they have to accept that Israel, uniquely among all other states, has the right to exist and that the only solution to the conflict is that of a two-state solution, alternative visions for the future are pushed aside. Palestinian voices in particular are being stripped of agency, spelling disaster for any push for peace. We get nowhere by shutting out other parties to the conflict. Failure to bind them into a process ensures peace shall remain elusive.
I imagine a substantive majority of Labour Party members fall outside the terms defined in Emily Thornberry’s statement yesterday. We have seen a number of party members suspended for voicing entirely reasonable criticisms of Israeli government policy and the conduct of the Israeli state. I am deeply concerned that Emily seems to have a fairly weak grasp of the intricate and complex issues surrounding Israel-Palestine, and as a result she is prone to making statements imbued with toxic political sentiments, offering concessions aimed at pleasing too many audiences, without perhaps even realising the full extent of the consequences afterwards.
Her latest statement contributes to a growing push to have perfectly reasonable debate shut down and where pro-Palestine party members are targeted, marginalised, demonised and delegitimised by those who wish to see them silenced, or worse, expelled.
As a Labour Party member, I will continue to hold the consistent view that no political entity or state has a ‘right to exist’ and shall defend my right to a nuanced set of positions on Israel-Palestine as someone who very much desires to see a genuine and just solution to the Israel-Palestine conflict.
Predictably, when Al Jazeera broadcast The Lobby in January detailing Israeli subversion of British politics, the Zionist attack machine was fired up. They submitted five separate complaints to the media watchdog, Ofcom, alleging antisemitism, bias and invasion of privacy.
Ofcom undertook a detailed examination of the claims and published their 60 page findings on 9 October. On every aspect of each claim they found that Al Jazeera had conducted themselves with professional rigour and had breached neither broadcasting rules nor the IHRA (mis)definition of antisemitism. Each and every item of the lengthy allegations was rejected.
Broadcast Standards case
For the first time, the IHRA definition has been tested by a British quasi-judicial tribunal: it determined not to classify criticism of Israeli activity as antisemitic.
The guidance published with the IHRA’s working definition of anti-Semitism includes the following as a contemporary example (amongst others) of what could constitute anti- Semitism in public life and the media, taking into account the overall context: “Making mendacious, dehumanizing, demonizing, or stereotypical allegations about Jews as such or the power of Jews as collective — such as, especially but not exclusively, the myth about a world Jewish conspiracy or of Jews controlling the media, economy, government or other societal institutions”.
The guidance also suggests that manifestations of anti-Semitism might include the targeting of the State of Israel, conceived as a Jewish collective. There was therefore the possibility that a programme, such as The Lobby, which focused on the actions of the State of Israel and alleged that individuals associated with it were attempting to inappropriately influence British democracy, may be considered by some to be anti-Semitic.
Importantly however, the IHRA guidance makes clear that criticism of Israel similar to that levelled against any other country cannot be regarded as anti-Semitic.
We considered that the allegations in the programme were not made on the grounds that any of the particular individuals concerned were Jewish and noted that no claims were made relating to their faith. We did not consider that the programme portrayed any negative stereotypes of Jewish people as controlling or seeking to control the media or governments. Rather, it was our view that these individuals featured in the programme in the context of its investigation into the alleged activities of a foreign state (the State of Israel acting through its UK Embassy) and their association with it. We also noted that a number of the organisations featured in the programme, such as Labour Friends of Israel and Conservative Friends of Israel, are not defined by any adherence to Judaism or having a predominantly Jewish membership.
As per the IHRA guidance, Ofcom did not consider that such a critical analysis of the actions of a foreign state constituted anti-Semitism, particularly as the overall focus of the programme was to examine whether the State of Israel was acting in a manner that would be expected of other democratic nations.
For these reasons, our Decision is that there was no breach of Rule 2.3. [This requires that material which may cause offence must be justified by the context. Under “meaning of context” the Code lists a number of factors including the editorial content of the programme and the service on which it was broadcast.]
This second failure does not mean that we can relax about the threat posed by the IHRA definition. Israel’s apologists will continue to try to use it to suppress exposure of Israel’s actions until we can persuade this Government, or a future Labour Government, to accept that the eleven exemplars do not help in any way to identify antisemitic incidents. By sowing confusion, they obscure real antisemitic threats.
Fairness and Privacy cases
‘Ofcom has not upheld this complaint made by Ms Ella Rose of unjust or unfair treatment and unwarranted infringement of privacy’.
‘Ofcom has not upheld this complaint of unjust or unfair treatment and unwarranted infringement of privacy made by Kingsley Napley LLP (“Kingsley Napley”) on behalf of Mr Russell Langer.’
‘Ofcom has not upheld this complaint of unjust or unfair treatment and unwarranted infringement of privacy made by Kingsley Napley LLP (“Kingsley Napley”) on behalf of Mr Luke Akehurst.’
The report goes into considerable detail about Ella Rose’s complaint but it can be summarised as saying she was very upset about being found out. She believes that her abuse of Jackie Walker and her smooth translation from Israeli Embassy employee to Director of the Jewish Labour Movement were of no public interest. The report states, ‘Ms Rose said that her personal religious faith which involves attachment to Israel should not make her “a target for infringement of privacy”’. This claim of impunity on the basis that Israel is part of her religion is radical restatement of the repeated assertion that any critique of Zionism is antisemitic. At no point does Ella Rose claim she was misrepresented, her distress is that she was represented all too accurately. She seems to believe that she has the right to stay in the shadows despite taking on the role of Director of an organisation seeking to influence Labour Party policy and therefore British political life.
Russell Langer is former Campaigns Director at the Union of Jewish Students and the current Public Affairs Manager with the Jewish Leadership Council. As well as working with Israeli Embassy operative Shai Masot, Mr Langer seems to have had an irony bypass. Part of his complaint was that he was surreptitiously filmed preparing to surreptitiously film a meeting of Labour Friends of Palestine.
The report shows considerable scepticism of the veracity of at least parts of Russell Langer’s claim and gives details of the content of some unused footage which shows his involvement with Masot which he tried to deny. The footage showed that:
Mr Langer had complained about the excessive involvement of the Israeli Embassy in events organised by British Jewish organisations. Mr Langer also confirmed that he has relations with the Israeli Government.
Langer’s lawyers claimed that ‘contrary to the impression created in the programme, Mr Langer hardly knew Mr Masot and had only ever been introduced to him, but had never worked with him.’ But Ofcom found, ‘Mr Masot had some sort of relationship with the JLC and that he knew Mr Langer’
Luke Akehurst, a former Labour Councillor and Director of We Believe in Israel, is a well-known and vocal pro-Israel activist. Again, he was upset that his views had been all too accurately reported. He claimed that:
the footage of Mr Masot speaking with the undercover reporter had been “heavily edited” so it would have been unclear to viewers what the undercover reporter should liaise with Mr Akehurst about.
But on the contrary Ofcom found:
From reviewing the unedited footage, it appeared to Ofcom that the conversation between Mr Masot and the undercover reporter had been edited in the programme as broadcast. However, it was our view that the extent of the editing was very limited and the conversation included in the programme was an accurate reflection of what was said about Mr Akehurst and the manner in which it was said in the unedited footage. Further, it was our view that the programme as broadcast would have made clear to viewers that Mr Masot wanted the undercover reporter to set up the youth wing of the LFI and that to do so, he should liaise with heads of other pro-Israel movements, such as Mr Akehurst. Therefore, we considered that the conversation had not been heavily or unfairly edited.
It was Al Jazeera’s scrupulous accuracy that was so upsetting to Israel’s friends in this aspect as in many others.
Claims of bias, unfairness and antisemitism made repeatedly against Israel’s critics are usually bounced around an echo chamber of like-minded groups. They gain a claimed authority with each repetition and endorsement. The lesson from this report is that when these claims are subjected to scrutiny they fall apart. We must insist that judgements of claims are made by panels that are not dominated by people who have already declared they see antisemitism everywhere and in every defence of Palestinian rights. Neither should they be judged by partisans for Palestine, as a finding of innocence would not be convincing to outside observers. They must be judged in impartial forums, when they are, in this case just as in Fraser v UCU, the claims of antisemitism are demonstrated to be protection of Israel not defence of Jews.
Professor Moshé Machover has been expelled from the Labour Party without a hearing because he spoke on the wrong platform and wrote for the wrong newspaper. What was the Labour bating paper he wrote for and incurred the wrath of Party apparatchiks? Was it the Daily Mail, trailing its history of love-in with fascists, no. Was it one of Rupert Murdoch’s papers with their tradition of lies and distortions of the Party, no. It was, according to the letter Moshé received on 3 October, an on-line paper you have likely not heard of, the Weekly Worker, a paper so powerful and so toxic that, like poison ivy, any brush with it is fatal. Moshé also had the effrontery to speak at the 2016 Communist University . Since the mainstream press and think tank symposiums are generally closed to radical thinkers and writers we must all find whatever outlets we can to try to spread our ideas and educate our colleagues. It is the content of what we say and write that should be judged, not its venue. The complaint against Moshé states
Your involvement and support for both LPM [Labour Party Marxists, claimed to be a front for the Communist Party of Great Britain in the letter] and the Communist Party of Great Britain (through your participation in CPGB events and regular contributions to the CPGB’s newspaper, the Weekly Worker) is documented in Section 3 of the attached evidence. Membership or support for another political party, or a political organisation with incompatible aims to the Labour Party, is incompatible with Labour Party membership.
Chapter 2.I.4.B of the Labour Party’s rules states:
“A member of the party who joins and/or supports a political organisation other than an official Labour Group or unit of the Party or supports any candidate who stands against an official Labour candidate, or publicly declares their intent to stand against a Labour candidate, shall automatically be ineligible to be or remain a party member, subject to the provisions of part 6.I.2 of the disciplinary rules”.
You are therefore ineligible to remain a member of the Labour Party and have been removed from the national membership system. You are no longer entitled to attend local Labour Party meetings.
Holocaust survivor Marika Sherwood was due to give a talk at the University of Manchester during Israel Apartheid Week 2017 with the title ‘A Holocaust survivor’s story and the Balfour declaration: You’re doing to the Palestinians what the Nazis did to me’. The University insisted the subtitle be removed and attendance limited to university students and staff only.
I have written to Nancy Rothwell, the University Vice-Chancellor deploring the University’s action and calling for an apology to Ms Sherwood and the students who invited her for disparaging them as antisemites.
… without mentioning Jew, Israel, Zionism or any accepted or abusive synonym for any of these. Difficult, you might think, but according to Gillian Merron, the chief executive of the Board of Deputies of British Jews, leading Palestinian film maker Larissa Sansour has achieved this.
“We ask you to not merely reject the voices calling for suppression of dissemination of knowledge about Palestinian culture; we hope you will actively welcome this manifestation of the richness and diversity of London’s communities.”
A High Court judge has ruled that the Government was exceeding its power in trying to direct Local Government Pension Funds to ignore calls for BDS and abandon ethical investing. The Government, he said: “has acted for an unauthorised purpose and therefore unlawfully“.
Sajid Javid, the Secretary of State for Communities and Local Government, has a record of fierce partisanship in favour of Israel. As Culture Secretary he lobbied hard to punish the Tricycle Theatre for declining to accept Israeli Embassy funding. In his current post he attempted to misuse the review of Local Government pension regulations to prohibit funds from taking Israeli Human Rights abuses and other ethical considerations into account when deciding investment priorities. He sought to include
“In formulating and maintaining their policy on social,
environmental and corporate governance factors,
an administering authority…
• Should not pursue policies that are contrary to UK foreign
policy or UK defence policy.”
[Editor’s note. These are extracts from Don’t Go to the Doctor by Karma Nabulsi published in the London Review of Books and reprinted by permission. We are republishing it not just because of its intrinsic interest but because of the link between the IHRA definition of antisemitism and the Prevent programme. We are finding that allegations of IHRA antisemitism, no matter how wild and unfounded, are producing referrals to the Prevent programme; these referrals are being used as a pretext to raise concerns of threats to public order or campus security and justification for cancellation of the event. In this way spurious claims of antisemitism are effective in halting discussion of Israel without any scrutiny of the validity of the allegations. A link is being made between unacceptable and deplorable acts of violence and free expression of of areas of legitimate public concern. The war on ‘terror’ segues into a war on free speech. Mike Cushman]
A colleague of mine at Oxford was asked to see an undergraduate who was falling behind in her work. The student – a Muslim – explained that she had been suffering from depression and was being treated for it by her GP. My colleague believed the student’s explanation placed her under an obligation to ask the student whether she was being radicalised.
A librarian was asked for a reference by another university: ‘Are you completely satisfied,’ they wanted to know, ‘that the applicant is not involved in “extremism” (being vocal or active opposition to fundamental British values, including democracy, the rule of law, individual liberty and mutual respect and tolerance of different faiths and beliefs)?’
Out of the blue, a college head refused the usual joint arrangements with a university centre for a lecture by a very distinguished European academic, whose work is on the politics of Islam. Special Branch had informed the college that a great deal of extra security would be required.
A student society set up decades ago to represent a well-established immigrant community in the UK wanted to hold welcome drinks for new undergraduates at the beginning of the academic year. The university told them to hand over the guest list 48 hours before the event. They explained that they had no way of knowing who would turn up, as the event was to welcome new members, but offered to check university IDs at the door, take names, or have a senior member in attendance – no, they couldn’t hold the event, it was against the new rules. One of the organisers was sent an explanatory email: ‘The event was impossible without a guest list because of our legal duty to abide by Prevent. All colleges across the university must screen guest lists before they offer an event, for security purposes … our hands are simply tied on this one.’
The British government’s Prevent programme, aimed at keeping people from being ‘drawn into terrorism’, was developed in 2003, after the invasion of Iraq, as part of the overarching counter-terrorism strategy known as Contest. Continue reading “Don’t Go to the Doctor”
Shurat HaDin fail in latest lawfare attempt to silence Israel’s critics
Surat HaDin describes itself as working “with Western intelligence agencies, law enforcement branches and a network of volunteer lawyers across the globe to file legal actions on behalf of world Jewry” and is presumed to have close links with Mossad, the Israeli spy agency. It has a record of pursuing aggressive, and fortunately usually embarrassingly unsuccessful, lawsuits to silence critics of Israel. They have pursued charities, churches, journalists and academics who do not adhere to their apologias for Israeli crimes and of course presume an identity between their sponsors, the Israeli state, and “world Jewry”.
They appear well-funded and setbacks do not halt their efforts to exploit US claims that their courts have worldwide jurisdiction in the USA’s ever expanding and morphing ‘war against terror’.
Their most recent failure was when US District Judge Nicholas Garaufis threw out their billion dollar suit against Facebook. Shurat HaDin claimed that the social media corporation was assisting Hamas (in violation of the US Anti-Terrorism Act) in “recruiting, radicalizing, and instructing terrorists, raising funds, creating fear and carrying out attacks.” They claimed that, therefore, Facebook was liable for the exaggerated compensation that US law provides to ‘victims of terrorism’.
The suit failed because the US law clearly states “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.” The US has a long standing commitment to freedom of speech under the First Amendment but current and recent administrations express strong interest in curtailing this protection in pursuit of America’s self-identified ‘enemies’.
Shrat HaDin took advantage of First Amendment rights themselves to post large billboards outside Mark Zukerberg’s home.
Threat is worldwide
Law in other jurisdictions, including the UK and Europe, is more cautious in claiming global scope but protection of free speech is also less robust.
Current debate on the responsibility of Facebook, Twitter and other social media companies for content posted on their platforms gives rise ot concern. How the line is drawn between the unacceptable and the merely unwelcome to some sectional interests is going to be highly contested and crucial to maintaining space for promotion of Palestinian rights. We can expect Shurat HaDin and others to exploit any opportunity t drive critics of Israel off of social media with devastating impact on our ability to inform and organise.
The UK Government’s adoption of the IHRA (mis)definition of antisemitism, and the drive to get the EU to adopt it, expands the definition of antisemitism to embrace legitimate debate on Israel’s actions. It is essential to prevent the IHRA definition being used as the benchmark for permitted speech in public meetings, on broadcast media or the internet.