The European Legal Support Centre (ELSC) has launched (June 6. 2023) its new report “Suppressing Palestinian Rights Advocacy through the IHRA Working Definition of Antisemitism – Violating the Rights to Freedom of Expression and Assembly in the European Union and the UK”. The report is the first case-based account of human rights violations resulting from the institutionalisation and application of the controversial IHRA definition by the European Union and the UK. The growing concerns about the negative human rights impact of the IHRA definition have so far been ignored by the EU.
The ELSC report is based on 53 recorded incidents between 2017 and 2022 in Germany, Austria and the UK, in which individuals, groups and organisations were accused of antisemitism based on the IHRA definition. All of the accused were targeted for advocating for Palestinian rights, denouncing Israel’s practices and policies and/or criticising Zionism as a political ideology. When legally challenged, most of these allegations of antisemitism were dismissed as unsubstantiated.
Analysis of the cases reveals a highly problematic pattern in which the IHRA definition is being implemented. Although it is advertised and promoted as “non-legally binding”, the definition is increasingly used by public and private bodies as if it were law. As a result, says the report, the IHRA definition chills free speech and curtails freedom of assembly, resulting in self-censorship of individuals afraid to face allegations of antisemitism.
As confirmed by the ELSC report, allegations of antisemitism invoking the IHRA definition are overwhelmingly aimed at Palestinians, Jewish activists and organisations advocating Palestinian rights. This suggests the definition is being implemented in a discriminatory manner. Individuals who are targeted suffer a range of unjust and harmful consequences, including loss of employment and reputational damage.
Dr Younes, Independent Researcher and (Policy) Writer in Germany, said: “With the uncritical adoption at the political and academic level across Europe, it has become impossible to voice any critical opinion about Israeli policies in public or in academia without the risk of losing your job, contract, funding or future employment opportunities.”
A student activist in a UK university reflected: “I found that the IHRA definition was deployed as a distraction tactic, where routinely I felt burnt out defending the right to freedom of expression and solidarity with Palestine […] I had crippling anxiety of who I could even trust, as it felt like the IHRA definition was a mode of surveillance in my day-to-day life.
The ELSC report also criticises the European Commission for consistently ignoring and dismissing the growing human rights concerns about the IHRA definition, and for failing to take measures to prevent any adverse impact of it on fundamental rights.
Giovanni Fassina, director at the ELSC, commented: “It is time for the European Commission to acknowledge and address the fact that the policy it has been promoting and implementing on the basis of the IHRA definition, both at EU and member state level, is highly detrimental to fundamental rights and that it is fostering anti Palestinian racism.
The ELSC urges the European Commission, as well as the governments, parliaments and public institutions in the EU Member States and the UK, to cease and revoke the endorsement, adoption, promotion and implementation of the IHRA definition. While addressing and enforcing policies to combat antisemitism, the legal obligation of public actors to respect and protect freedom of expression and freedom of assembly must be upheld.
Currently, the United Nations is finalising its “Action Plan on monitoring antisemitism and enhancing a system-wide response”. Recently, the ELSC signed a letter from more than 100 civil society organisations urging UN Secretary-General Guterres and High Representative Moratinos not to adopt and apply the IHRA definition. In November 2022, 128 leading scholars in antisemitism, Holocaust Studies and related fields, warned the UN in a public statement against adopting the IHRA definition. In October 2022, the UN Special Rapporteur on Racism released a report sharply criticising the IHRA definition.
The German problem with Palestine
By Ian Portman, 22 June, 2023
In May this year, Palestinians were preparing for their 75th commemoration events marking the Nakba (disaster) which overcome their land before and during the 1948 war.
Starting in the autumn of 1947, colonial settler Zionist forces drove out hundreds of thousands of Palestinians, committing massacres of civilians and other serious war crimes. Following the intervention of Arab states, the catastrophe deepened. By June 1948, three quarters of a million people had been forced to flee their native land.
The Nakba remains the central event of Palestinians’ modern national life and is marked in Germany and throughout the world with events remembering this disaster.
But not in Berlin.
Last May 10,, the police issued a blanket ban on any Nakba demonstrations, basing this on a claim that a young man had uttered an antisemitic remark at a recent demonstration. The police monitoring that event had themselves not heard this, but were informed by observers from the German-Israel Society that they had heard it.
A statement issued by Human Rights Watch noted:
While law enforcement should respond to and punish acts of violence, including incitement to violence and antisemitic acts, police should seek to regulate, not ban, demonstrations. The fact that people express outrage and emotions at demonstrations should not form any part of the basis of any ban.
Following the ban, spontaneous demonstrations erupted on the streets leading to the breaking up of protests by the police and sometimes violent arrests. A video obtained by HRW shows a policeman telling one woman that she was being arrested for shouting ‘Free Palestine.’
The German Jewish Voice for Peace in the Middle East stated:
Those who wish to show public solidarity with Palestine can rely neither on police behaviour that conforms with the constitution nor on objective reports in The German press
In an apparent change of heart, the police allowed an event held by the Jewish Voice for Peace to take place, on May 20. But when participants began to chant “From the river to the sea, Palestine will be free!”, the police shut down the event, claiming this, too, was an antisemitic utterance.
How could a country with the most admired constitution in Europe, which holds free speech and the right of assembly to be among the most important values of the state, have come to this?
The short answer must start at the end of the Second World War.
The 500m cubic meters of rubble covering German cities in 1945 and the almost complete ruin of industrial capacity left the country in deep shock. Years of relentless Nazi propaganda proclaiming an Aryan master race had left most people unprepared for an allied victory. They were shattered, rudderless and, above all, hungry. The aim was to survive: looking backwards was too painful.
The powerful German Protestant church felt the need to issue a Confession of Guilt in August, 1945, recognising that it should have done more to resist national socialism, which most of the hierarchy had supported during the war. The church’s weekly newsletter, sent throughout the Third Reich to every member of the clergy, was deeply antisemitic. But the Confession failed to mention the genocide of European Jews. This was a topic no one wanted to talk about.
Nevertheless, the new German chancellor, Konrad Adenauer, was in no doubt that, as John McCloy, U.S. High Commissioner in Germany, made clear: “The world will carefully watch the new West German state, and one of the tests by which it will be judged will be its attitude towards the Jews and how it treats them.”[1] Whatever McCloy meant by ‘the Jews’, Adenauer seemed to have got the hint.
By the mid-1950s, thanks to an industrious population, the U.S. Marshall Fund and the overriding American need to keep the Soviet Union at bay, Germany had again become a functioning western state. Substantial damages were paid to Israel to show that Germany accepted its war guilt. Just 17 per cent went to other surviving Jewish victims. The Protestant church declared its rebirth as part of the “Judeo-Christian tradition.” In the 1960s, Adenauer sent a team of nuclear scientists to provide theoretical and technical assistance to Israel in building its first nuclear bomb.
So, official Germany was making progress integrating itself into the Western military alliance. But at home the so-called 1968 generation thought differently about the system which controlled their lives. They knew that most German industrialists, leading diplomats, prosecutors and judges and bureaucrats – many of them Nazis – had kept their positions after the war. And they knew what their own parents were keeping quiet about. This led to major political and social changes. The children of the Tätergeneration (criminal generation) took their parents’ silence seriously.
Some of them turned radical. The Red Army Faction (R.A.F.) kidnapped and killed an ex-Nazi business leader, Hanns Martin Schleyer and shot dead the federal prosecutor Siegfried Buback. They also committed themselves to the Palestinian struggle for freedom and allied themselves with the Black September group which kidnapped and killed Israeli athletes at the Munich Olympic games of 1972. Five years later, an armed Palestinian group hijacked a Lufthansa plane and forced the pilot to fly to the Middle East, eventually landing in Mogadishu. They demanded the release from prison of the RAF leaders in Germany. A special German commando squad was able to kill most of the hijackers and release the passengers unharmed.
From now on, official Germany, which had failed to prevent these events developed a suspicious attitude to Palestinian refugees and kept Arab immigrants under tight surveillance.
Although many of the children of the Tätergeneration – socialists and greens – considered themselves radical in the 1970s, as they grew older they became minded to deal with the political system as they found it. Today, former rebels have become party politicians. They sit in many state governments and hold power at the federal level too. The current ruling German elite, the media and the hierarchy of the rapidly dwindling churches, are the 1968-ers and their offspring. They remain deeply plagued by their parents’ and grandparents’ war guilt.
Today’s decision makers are also committed to a security pact with Israel that has seen the extra-constitutional provision of battle tanks to a country in a crisis zone and close military-industrial cooperation with the Zionist state including the acquiring of Israeli surveillance drones capable of carrying rockets. In her 2007 visit to Israel, in a speech before the Knesset, Angela Merkel formally declared that Germany’s security guarantee for Israel was a German raison d’état. Shortly afterwards, Thyssen Krupp delivered a number of nuclear-ready submarines to the Jewish state. They are now equipped with rockets carrying nuclear warheads. Germany’s constitution specifically bans the export of weapons to regions of the world considered to be in crisis. But it leaves the designation of what constitutes a crisis region up to the government of the day…
The Israelis have become insiders – and powerful players in German and European politics.
Outsiders often wonder why German politics is so decidedly pro-Israel. Does the answer lie, as public figures always explain, in the war guilt that Germans carry for the horrific crimes of the Nazi regime some ninety years ago? Is war guilt inheritable as, in the Middle Ages, when Jews were judged to be collectively guilty for the crucifixion of Christ?
I attended a lecture given recently in Stuttgart by a prominent academic, a social scientist, to a largely Christian audience. She was asked if she could explain how it was that almost all members of the Bundestag voted to describe the Palestinian civil society Boycott, Divestment and Sanctions movement (BDS) as antisemitic and why they never spoke up for Palestinian concerns. Her answer was refreshingly straightforward: “They know what would happen to their careers if they opened their mouths.”
Berlin has become the city of choice for many progressive Israelis, who find its vitality and openness a refreshing change from the increasingly repressive environment back home. Many civil society organisations in Israel have been described as supporters of terrorism; funding from outside Israel has been restricted. Israeli expatriates in Berlin estimate that between 15,000 and 20,000 have taken up residence. But this city also hosts the largest community of Palestinians of any European city: 40,000 to 50,000. Politically active Palestinians and Israelis cooperate to denounce the illegal occupation of Palestine. But the policy of every German government, just like that of Chancellor Adenauer, toes the line of the western alliance and accepts the logic of Theodor Herzl in Der Judenstaat “We should there form a portion of a rampart of Europe against Asia, an outpost of civilisation as opposed to barbarism.”
This year, a right wing extremist administration has emerged in Israel – far to the right of the Alternativ für Deutschland party which is being monitored for its fascist tendencies by the German secret service, the Verfassungsschutz.[2] The current Israeli government contains actively racist, homophobic individuals in key positions and is about to abolish the authority of the supreme court to judge if a Knesset law conforms to the constitution. This is the only check on the power of a regime that already defies the democratic norms of European states. It has been deemed an Apartheid state by United Nations rapporteurs, Amnesty International and Human Rights Watch. Hundreds of thousands of demonstrators have taken to the streets in protest. Some say openly that what is happening marks the beginning of the end for the state of Israel[3]. Investors are pulling out and capital is leaving the country[4] Applications for visas are at an all-time high. Those seeking to leave are young, well educated and often working in key, high-tech industries.
Many of these emigrants will come to Germany. When they arrive, they will be puzzled by the political elite’s confused, head-in-the-sand approach to a disintegrating Israel. Germany’s position in practice ignores international law and its own commitment to human rights. Reiterating the Bundesrepublik’s unconditional support for an ethno-religious, racist state can no longer disguise its own moral bankruptcy in this regard.
[1] https://americangerman.institute/2019/11/the-september-1952-reparations-agreement-between-west-germany-and-israel-the-beginning-of-a-remarkable-friendship/
[2] Verfassungsschutz literally ‘Protection of the Constitution’
[3] This is the moment to surrender. There’s nothing left to save. The smell of a corpse is in the air, and the attempts to revive it are a waste of time and energy. Neither a protest nor opposition will save it. Because both a protest and opposition are only trying to restore a situation to its previous condition. But even in its previous condition the “situation” was on its way to disintegration. Israel’s Exodus of the Enlightened, B. Michael in Haaretz, 21 June 2023
[4] https://www.timesofisrael.com/report-bank-officials-believe-4-billion-moved-out-of-israel-in-recent-weeks/
https://www.ft.com/content/72f861d0-60c8-4d6b-8eb2-bc741d4563dc Israel’s economy damaged by fight over judiciary, says central bank
Ian Portman spent many years in the Middle East, mostly in Cairo, where he taught for the British Council, wrote for The Egyptian Gazette, broadcast for Radio Cairo, then founded a publishing company. Since living ino Germany, from 1996, he has worked as a programmer. In his spare time he supports the extensive Palestine solidarity movement in Germany.