The IHRA definition isn’t perfect. But its critics aren’t making things better.
Jerusalem’s Western Wall, the Dome of the Rock and Al-Aqsa mosques By AHMAD GHARABLI/Getty Images
On March 16, a group of liberal scholars called the Nexus Task Force published a new definition of antisemitism that they hope will replace the International Holocaust Remembrance Alliance definition, which has increasingly come to be treated as standard.
Their endeavor, while undoubtedly well-meaning, is unnecessary and possibly dangerous.
The Nexus website lists three main concerns with the IHRA definition. Here, I will answer them to demonstrate why the IHRA definition, not the Nexus, should remain the norm.
The first concern: “As a legal instrument, IHRA is vulnerable to abuse around issues related to freedom of expression — by potentially prohibiting actions that should otherwise be considered protected under the First Amendment.”
While it is certainly possible that someone could try to abuse the IHRA definition, no serious scholar or advocate has ever argued that the definition should be used to prohibit actions protected by the First Amendment. More importantly, the Nexus materials reflect a rather shallow understanding of how IHRA can actually fit into a legal framework. For example, the group claims that the IHRA “was enshrined in Trump’s ‘Executive Order Combating Antisemitism’ as the definitive guide to rules and regulations regarding antisemitism.” That is a massive mischaracterization of what the Executive Order does, which is instruct the Department of Education’s Office of Civil Rights (OCR) to consider the IHRA definition in the context of analyzing the motivation behind the conduct alleged in a discriminatory conduct claim.
What that legalese means: The Trump executive order only touches the kinds of egregious behavior that the First Amendment does not protect. The IHRA definition is only to be used after a person has been credibly accused of engaging in discriminatory acts toward Jewish people — acts so severe that they interfere with the victim’s ability to participate in an educational service. Only then will the OCR use the IHRA definition, and then only to illustrate how any examples of allegedly discriminatory behavior might be conceived of as demonstrating discriminatory intent.
In practice, this means that if you are criticizing Israel, even harshly, then this order and any related legislation will not apply to you. If, instead, you are engaging in discriminatory conduct against Jews to the extent that they are unable to participate in educational opportunities, and your motive seems to be based on their race or national origin, it might. There should be nothing controversial about that.
The second concern the Nexus group notes is that in the IHRA definition, “some language conflates political criticism of Israel with antisemitism in a way that is ripe for abuse by bad actors.”
But the IHRA definition does not conflate political criticism of Israel with antisemitism. It explicitly states that “criticism for Israel similar to that leveled against any other country” is not antisemitic — but that holding Israel to a different standard than that applied to the rest of the world might be. (Again: might!)
So, the Nexus group is partially right: there can be non-antisemitic reasons for singling out Israel.
But problems arise from the claim that no criticism of Israel can ever cross that line.
The reason it’s important that the IHRA definition provides specific Israel-related examples of antisemitism is that there are in fact bad actors who hide vile antisemitism behind anti-Zionist veils. In 2017, a German court decided that the 2014 firebombing of a synagogue in Wuppertal, Germany was not antisemitic, because the criminals claimed that the act was just the way that they chose to express their anti-Israel politics. They faced no jail time.
That is what happens when you do not draw some lines in the sand, and let the legal system police them. (Later that same year, Germany embraced the IHRA definition.)
The final concern the Nexus task force expressed is that “Important aspects of contemporary antisemitism are insufficiently emphasized in IHRA, such as white supremacy and how antisemitism grows in a politically polarized environment.”
That concern too, is hard to understand. The IHRA definition does not privilege one form of antisemitism over any other. Perhaps the concern is that the list of examples of antisemitism included in the definition does not contain reference to white supremacy. That misses the point of those examples, which is to serve as a guide to applying the IHRA definition in the kinds of situations that observers might find murky. The list of examples is not billed as a complete outline of situations in which antisemitism might be a factor, and does not have to include “white supremacy” because, practically, anyone in power to use the definition in legal decision making will likely already be clear on the fact that white supremacy is not in any way acceptable.
The concern about not addressing the far right is also doubly odd because many the examples that IHRA does include, like Holocaust denial, are typically associated with white supremacists and neo-Nazis.
Bottom line: There is a reason why the IHRA definition is used by, among others, the 31 member countries of the International Holocaust Remembrance Alliance and all European Union member states, as well as Serbia, Bahrain and Albania. There is a reason why it has been endorsed by a growing number of world leaders, and adopted by a growing number of universities both in the U.S. and abroad.
Perhaps most importantly, there is a reason why major Jewish organizations across the world, spanning the political and religious spectrum and representing people of all ages and backgrounds, have banded together to adopt the IHRA definition. It is because they all agree that it best reflects their shared lived experience and the realities of how antisemitism manifests itself today. If the Nexus Task Force is concerned about people misusing or misreading IHRA, they would be better off directing their time and efforts to making sure that it is applied properly, rather than undermining an understanding that is finally raising awareness of the problem’s many manifestations.
Dr. Mark Goldfeder, Esq. is the Director of the National Jewish Advocacy Center
A message from our CEO & publisher Rachel Fishman Feddersen
I hope you appreciated this article. Before you go, I’d like to ask you to please support the Forward’s award-winning, nonprofit journalism during this critical time.
We’ve set a goal to raise $260,000 by December 31. That’s an ambitious goal, but one that will give us the resources we need to invest in the high quality news, opinion, analysis and cultural coverage that isn’t available anywhere else.
If you feel inspired to make an impact, now is the time to give something back. Join us as a member at your most generous level.
— Rachel Fishman Feddersen, Publisher and CEO
