Support for the people of Gaza is the moral test of our generation. At the head of the Israeli regime, politicians and generals have called for the murder of Palestinians. In the Israeli army, the killers have boasted of their actions, sharing them on social media. All the genocides of the last 30 years were marked by old technologies – guns, artillery rockets. Today, the thirteenth-richest society in the world in GDP per capita uses the latest generation of capitalist advance, social media monitoring and artificial intelligence, to flatten homes and kill innocent people.

            Here, I’ll be addressing the legal structures the British state has adopted to make it as hard as possible for people in Britain, to speak out against the killings.

            My focus will be on the International Holocaust Remembrance Alliance definition of antisemitism, the problems of that definition, and what to do if your employer has adopted it or is using it in disciplinary proceedings.

            The IHRA definition begins as follows, “Antisemitism is a certain perception of Jews.” It continues, “which may be expressed as hatred towards Jews.”

            We do have, already in law a satisfactory definition of racism. Or at least of direct discrimination. Section 13 of the Equality Act provides that “A person (A) discriminates against another (B) if, because of a protected characteristic” (and a protected characteristic might be sex, disability or, as here, race) “A treats B less favourably than A treats or would treat others.” So, racism happens when someone is treated worse (“Less favourably”) because of their race including, potentially, their perceived racial identity as a Jew.

            The IHRA definition says that the way you can tell if someone has done an act “because of” the victim’s Jewish identity is by looking for evidence that the perpetrator had “a certain perception” of Jews. But what perception? The definition does not say.

            Its drafter Kenneth Stern explains the thinking which underpinned the definition. He was a lawyer and an activist in Jewish American circles. He had no historical knowledge of antisemitism. He was out of his depth. “The main purpose of the definition was data collection”. He never thought the definition would be adopted by universities or governments.

            Stern had been toying with more precise language. In testimony before the US Senate, he saif that he wanted to “avoi[d] debates about things such as whether someone who kidnaps a Jew for ransom is antisemitic because he believed that Jews are wealthy, an arguably positive stereotype.” Stern therefore built his IHRA definition around two ideas

            First – that perceptions were key to understanding whether an act was antisemitic

            And second – that if you specified which perceptions were the problem, inevitably someone would push back.

            His answer was to say, in effect, that any perception might be antisemitic. Any perception of Jews, of Jewish behaviour, of anything in any way associated with Jews could potentially be a problem. Suppose I went to Jewish Book Week, and remarked at a literary event how good it was to see other Jewish people reading books. If a decision maker had to ask themselves whether my words reflected “a certain perception of Jews”, there is nothing in the definition to say, yes that is a certain perception, that’s racist. Or no, that’s fine.

            The vagueness is precisely why pro-Israel voices have been so keen on the IHRA definition. Because it says that any comment associated with Jews might be a problem – it provides an opening to people (Christian fundamentalists, far right politicians, serial complainers) who want to stop people protesting against the killings of Palestinians.

            Today, Stern knows his definition has been misused. He is now a campaigner against censoring people for pro-Palestinian speech. He has written for the Guardian and in a book warning against using the definition to identify individual incidents. “The definition was not perfect,” he acknowledges, with rueful understatement.

            Universities, Stern insists, should be a zone of permitted speech. But the way pro-Israel groups use the definition is making free speech impossible:

            Unusually, the IHRA definition came with examples of what constituted antisemitic behaviour. They were prefaced with a note of warning, and by a stress on the importance of context. “Contemporary examples of antisemitism in public life, the media, schools, the workplace, and in the religious sphere could, taking into account the overall context, include…”

            Unfortunately, that “could” has got lost whenever the IHRA is used.

            Several of the IHRA examples feel like they’re almost right. Here, is one: “Calling for, aiding, or justifying the killing or harming of Jews in the name of a radical ideology or an extremist view of religion.” You start of reading the definition and you’d think that what it’s saying is true. Killing Jews is antisemitic. Obviously! But that’s not what it’s saying at all. It’s saying, that killing Jews isn’t antisemitic unless the person has justified the killing in terms of Nazism or Islamic fundamentalism. But the biggest murder of Jews the world has seen since 1945 took place in Argentina, under a centre-right military regime which believed that Jews were Communists and fair game. The problem is – the Generals weren’t Nazis. They didn’t like Hitler. They didn’t have a worked out-view of the world beyond the fact that they wanted to stay in power and they saw Jews as troublemakers. Over a 7-year period, they killed 3,000 Jews. Jews were less than 1% of the country’s population and 12% of the government’s victims. Personally, I’d call killing Jews, in that number, antisemitic. But, under this part of the definition – the Generals didn’t have a radical ideology. No matter how many people they killed, the IHRA definition would exclude them.

            In the body of the IHRA definition there is no mention of Israel. However, seven of the eleven examples attached to the definition refer to criticisms of the state of Israel. They include:

• Manifestations [of antisemitism] might include the targeting of the state of Israel, conceived as a Jewish collectivity. However, criticism of Israel similar to that levelled against any other country cannot be regarded as antisemitic.
• Denying the Jewish people their right to self-determination, e.g., by claiming that the existence of a state of Israel is a racist endeavour.

            I want to relate the second of these examples to a significant fact of Israeli society: the “law of return”, under which a person can be born within the borders of Israel (including Gaza and the West Bank) and if they are of Palestinian heritage they have no rights in Israeli law. Whereas, if a person was born in Britain or America but they have a Jewish mother and so are for religious purposes Jewish, then they can obtain citizenship in Israel even if they have never vlived there.

            Trying to unpick the logic which says that it is antisemitic to call such laws and practices racist, it seems that the drafters must have believed each of the following, that:

1. Jews are a people
2. All peoples are entitled to their own state (“self-determination”)
3. The present constitution of Israel is the only possible Jewish state imaginable, therefore any criticisms of its laws is to attack the very idea of any country where Jews might live freely (“a state of Israel”)
4. All states are entitled to exclude whole groups of people from citizenship on directly racial grounds
5. To restrict this right from Israel alone is to limit Israel unfairly
6. Because Israel is the state of the Jews, denying Jews alone the chance to exclude other people is to treat Jews unfairly.

            Step iv is a defence of racialised citizenship categories and racial exclusion. It is a politics which treats the postwar “whites only” immigration policies of postwar Australia, Rhodesia, and apartheid South Africa as if they had been the normal ways societies are governed, rather than racist laws which were controversial and defeated by public protest. It is the equivalent of saying that the British are a people, and white, therefore they are entitled to deport all black citizens from that country – or France all its Muslims.

            “It cannot be,” writes Judith Butler, “that the only way to refute the charge of antisemitism in these debates is to embrace injustice, inequality and dispossession.”

            What, then, should people do if their employer is a signatory to the definition? What should you do if someone makes a complaint and asks your employer to apply the definition when deciding that complaint? The logic of all that I am saying is that employers who have signed up to it previously, should be asked to disassociate themselves from it. Or, in the short-term, to at least to agree not to apply it in any disciplinary hearing.

            The reason the definition should not be applied is that it makes no sense, and does not help the decision maker get to what they need to decide – which is has someone brought the employer into disrepute, is their language racist, etc. In the whole history of the Employment Tribunal system, there has only been a single case where the Tribunal (and the employer) was asked to follow the IHRA definition – in the “Miller” case – the Tribunal made no clear finding as to whether the definition was useful or not.

            In practice, it did what any Tribunal would do which was to ignore the definition in favour of what mattered – our ordinary laws relating to unfair dismissal and discrimination.

            You should amplify the many Palestinian voices who have criticised it. You could talk for example to the European Legal Support Centre, the leading body doing advocacy on behalf of pro-Palestine belief. The ELSC monitors how the definition has been used.

            Beyond that, you should look to the large number of people who care about the definition of antisemitism and want to get these things right – and use them as allies.

            One document published in 2020 to bring out the limits of the IHRA definition was the Jerusalem declaration on antisemitism, 200 scholars signed it, including some of the world’s leading scholars on genocide. Wouldn’t you want your employer to adopt a definition chosen by 200 experts – rather than one man who hadn’t thought through the issues?

            Many lawyers have criticised the definition –Hugh Tomlinson KC, Geoffrey Robertson KC, retired Court of Appeal judge, Stephen Sedley. Ask them to support your campaign.

            Going further, I wouldn’t be afraid of asking Stern himself to see if he’d support you. Again, it seems to me that it would hard for employer to justify keeping on with a definition, if its own drafter is telling them to abandon it.

            In everything I’ve been saying – a simple message has, I hope, come through. The people who rely on the IHRA definition don’t care about logic, they don’t care about antisemitism. They have their own agenda, which is to support Israeli actions, and to prevent all criticism of them. If you care about Palestinian life, or the integrity of the institutions you work for, you should invite your employer to disassociate itself from the definition.

(Edited to add: link to Jerusalem declaration here – https://jerusalemdeclaration.org/)