Defining and tackling antisemitism is harder than many universities seem to think

The news that an independent, QC-led inquiry into antisemitism within the National Union of Students (NUS) won’t formally report until the end of October ought to pose a puzzle for the government.

The plan is apparently first to carry out an internal investigation into the allegations surrounding president-elect Shaima Dallali in accordance with NUS’ Code of Conduct. The aim is to conclude that process as a priority within the coming weeks and to open a call for evidence in the wider public investigation on antisemitism on a longer timeframe – which realistically, given the need to consider and respond to the findings, means we’re likely looking at 2023 before real progress is likely to be made.

Let’s imagine that Dallali is exonerated. Given that the Department for Education (DfE) press release on disengagement said that the independent investigation would “need to lead to substantive action” with the situation kept under review as NUS “demonstrates it has suitably addressed these issues”, does that mean Michelle Donelan and Nadhim Zahawi will continue with their stated policy of cutting off all contact (including from not so arm’s length bodies) with NUS until the new year?

What does that mean for affiliations to NUS in the meantime? Will Donelan and Zahawi refuse to share a platform with NUS officers for the rest of 2022? And will ministers’ promise to put in place “alternative student representation” to ensure students’ views are “reflected fairly in conversations about higher education” ever meaningfully materialise?

This all matters beyond national student politics – partly because we have a government that is taking a bill through parliament that is variously sold as protecting freedom of speech within the law within universities and their SUs. Ever since the day of the publication of the bill in May 2021, when Michelle Donelan suggested that Holocaust denial (legal in the UK) would be protected under the legislation, only to retract that view messily, it’s never been clear whether types of “legal but harmful” antisemitism would be protected, banned, or somewhere in between.

And that lack of clarity is made even more difficult by the reality that the definition of antisemitism that the government promotes remains fiercely contested.

Tucking in

When making her judgements about NUS, Rebecca Tuck QC will need to be clear on her definitions of what’s unacceptable – and for the purposes of this process, she will be using the International Holocaust Remembrance Alliance (IHRA) definition of antisemitism.

That definition was first developed in 2003 and first published in January 2005 on the website of the European Monitoring Centre on Racism and Xenophobia (EUMC). It was instantly controversial – it was published “without formal review”, remained a “working draft” until 2013, and was adopted as a non-legally binding statement on what antisemitism is by the IHRA Plenary (consisting of representatives from 31 countries) in 2016.

As it stands, the definition has been accepted in principle by a number of national and international bodies and is used by a number of governmental and political institutions. In the UK, the government has repeatedly put pressure on universities to adopt the IHRA definition, in recent years causing the Office for Students (OfS) to monitor and publish formal adoption.

This is not a blog about the controversy surrounding the definition per se – suffice to say that the debate tends to surround the question of whether the definition, the eleven illustrative examples of antisemitism which accompany it, and the subsequent interpretation of it when judging conduct, prevent or even discourage legitimate criticism of Israel. There’s a decent defence of the definition elsewhere on the site and a critique of it from Geoffrey Robertson QC that says it is liable to “chill legitimate criticisms of the state of Israel and coverage of human rights abuses against Palestinians”.

But it is to say that this is a government that professes to worry about non legally binding rules of conduct being adopted by universities and SUs that make the expression of legal, controversial and potentially harmful views more difficult. Its command paper that prefaced the bill said that as long as speech is lawful:

HEPs should stand up for the rights of people to express their lawful views, even if there is potential for negative reaction

Four significant questions, therefore, arise when we’re thinking about the definition and about rules of conduct more generally:

• The first is the extent to which a university, an SU or even NUS is entitled to set rules of conduct that go beyond the law – something that is simultaneously suggested as problematic in general, and required when it comes to the IHRA definition of antisemitism;
• If we accept that organisations need rules of conduct, the second concerns the extent to which, once an organisation has set a “rule”, it is still possible to disagree with that rule and even advocate for it to be changed – an issue that has been faced both by current NUS President Larissa Kennedy and is one of the aspects of the allegations levelled at Dallali;
• The third concerns the rule itself – in this case, whether the adoption and implementation of the rule has a chilling effect on legitimate criticism of the state of Israel (and by extension, an impact on the students wishing to do so and others sharing their associated characteristics);
• And the fourth concerns its implementation insofar as some students, activists and groups – not proscribed or banned in the UK – are more likely to be accused of breaching the rule.

Fifteen years ago

My introduction to the debate surrounding the definition came when I worked at NUS throughout the 2000s. For a number of years, a version of the “chilling effect” question on the then “EUMC working definition of antisemitism” played out on a floor of 1,400 delegates at the annual conference, often exposed to these complex and sensitive issues for the first time.

In 2007, for example – some two years after NUS conference had ended in the dramatic resignation of two members of the National Executive and one member of the steering committee over allegations of antisemitism, causing the commission of an independent review – NUS President Gemma Tumelty made the case for adoption of the definition on the basis that Jewish students (via the Union of Jewish Students) should be allowed to define their own oppression:

…In the wake of the resignations, we commissioned a costly and extensive inquiry into anti-semitism in NUS. The Marco Henry report was accepted by the NEC, which adopted the EUMC working definition of antisemitism. And just recently, the NEC accepted the all-party Parliamentary report on antisemitism, which also uses that definition organizationally… We don’t debate other forms of racism and its validity. And we allow others who are victims of such discrimination to define their own oppression.”

UJS-backed member of the NEC Sam Lebens also put the case:

Anti-Semitism has a long history. We’ve been painted to be blood drinkers, Christ killers and bankers who ruled the world. These images have been used for centuries to victimise and maim my people. This motion has absolutely no interest in stifling debate. Criticise Israel all you like, but when you portray Israelis as blood drinkers, use the imagery of the Israeli Defence Force lilling a palestinian Jesus in Bethlehem, or talk about the Zionists that rule the world, you do not attack me as a Zionist – you attack me as a Jew.”

Suzie Wiley, an activist from the Socialist Workers Party, spoke against:

The problem with this motion and the problem is that, I think that the most serious threat in terms of anti-semitism in society comes from, fascists comes from people like the BNP who tries to pose as legitimate politicians, but actually what they are is they are Nazis. They are Hitler lovers. They are Holocaust deniers. They want to see an all-white Britain… [if we pass this motion] we would be accusing those who are vital to our fight against the BNP of anti-semitism because of their criticism of the state of Israel, and I’m worried that that will weaken our unity against fascism and anti-semitism.”

Rob Owen, another activist from the Socialist Workers Party, agreed:

The danger of this motion is it divides our unity inviting antisemitism. It says that the only people that are comfortable fighting anti-semitism are those that would accept the implicit suggestion that anti-zionism tends towards antisemitism. That’s a proposition that I completely reject.

For what it’s worth, I generally tend toward accepting the argument that those who face oppression should be entitled to define it. I also generally tend towards organisations like NUS, SUs and universities being allowed to adopt rules of conduct and behaviour that go beyond the law. But what is also clear to me is that both Wiley and Owen were entitled to their view and to put that view to the conference, as long as they agreed to abide by it in their conduct once the vote went against them. And given it’s in the abiding where things can get complicated, I also tend towards only holding people to standards of behaviour where I believe that it’s reasonable to expect them to have understood them.

Palestine

There have long been groups and sects on the left accused of antisemitism, including groups of students and academics. There have also, for example, long been groups of students involved in Palestinian advocacy and activism. Despite the odd ministerial letter calling on universities to crack down on events like “Israeli Apartheid Week”, we don’t ban PalSocs from freshers’ fairs. So on that basis, the important question for me becomes whether, once a definition like IHRA is adopted, we take steps to provide clarity to those who might unwittingly find themselves falling foul of it. And that’s where I think the sector has a problem.

I should say at this stage that I don’t doubt that some involved in pro-Palestinian activism are, both personally and perhaps institutionally, antisemitic. I also don’t doubt that some involved in Jewish advocacy wish to silence all criticism of Israel. I have tended to work on the basis that there are those, beyond the “let’s all get along” types, that are involved in pro-Palestinian activism that strive not to be antisemitic and that there are those involved in Jewish advocacy that accepts and in some cases themselves advocate criticism of Israel.

Both when I worked at NUS and in SUs, there were highly complex, nuanced and contentious debates about the extent to which some aspects of pro-Palestinian activism might be judged as antisemitic. These judgements were nowhere near as straightforward as ministers like to make out. Whether they were being made by democratic bodies (without the relevant “expertise”) or by employed student activities experts (without the relevant legitimacy of a vote by students), they were frequently and exhaustingly contested.

Following guidance from the Secretary of State, OfS hosts a list of registered higher education providers that have “adopted” the IHRA definition of antisemitism based on publicly available information such as providers’ websites. The four case studies on the site inspire little confidence that students who might find themselves at the edges of antisemitism allegations because of their activism would know where the lines are.

And a glance at the websites of multiple universities on the list suggests that plenty have “formally adopted” the definition through councils or governors (getting the implied tick from OfS and DfE) without bothering to amend their student disciplinary procedures or putting in place any measures to deepen understanding of the issues amongst students.

Education

I guess the point I am making is that higher education, their SUs and even NUS represent education spaces – and we are a number of years in now of wrestling with the problems that arise when behaviour and conduct that used to be “debatable” becomes a rule. You can argue – as UJS and the NUS leadership did in 2007 – that regularly having to “debate” Jewish students’ oppression was outrageous. You can also argue that (regularly) taking part in the debate that defines it helps build understanding and support for the rules if they’re to then be applied.

Either way, if we’re no longer doing education in the debate on a rule, it’s surely only fair to do it in the implementation. It seems to me that organisations like universities, SUs or even NUS that adopt rules that go beyond the law have a duty to take steps to communicate them to new members, justify their previous adoption, and explain how those rules have been applied in the past in borderline or complex cases and set out how they might be challenged or changed.

That would be good news for the Jewish students facing oppression and discrimination on campus, good for those advocating for Palestine that want to avoid slipping into antisemitism, and good for everyone else keen to protect campuses as spaces for education and debate that are nevertheless free from oppression and unnecessary harm.

But given that NUS is on its knees, that ministers deploy a cartoon crayon approach to the complexities of the issues and that universities are busy blanket-imposing IHRA centrally on the basis of a ministerial “name and shame” round-robin, I’m left to conclude that it will require some brave student leadership to make sense of and develop progress on these issues in the years to come.