Universities Australia’s new antisemitism definition: A novel kind of campus governance?

First published at Academics for Palestine Western Australia. Slightly edited.

Jan Lanicek and Ruth Balint have published a valuable overview of the reactions and concerns provoked by Universities Australia’s (UA) adoption of a new definition of antisemitism.1 A few points could have been framed differently, but overall we agree: universities should provide the “setting for all students to feel comfortable participating in classes without fear of prejudice” and they should be a space to “pursue genuine, evidence-based research on all aspects of current world affairs.” The authors lucidly conclude that “definitions are important, but they are one part of this vexed issue; they cannot be the sole arbiter.”

This article hopes to answer the call of that open conclusion by pointing to legitimate “arbiters” that are undermined by the new definition, and articulating why the new definition proposed by UA is more problematic and far-reaching than may at first appear.2

Lack of clarity and enforceability

Kenneth Stern, the lead drafter of the International Holocaust Remembrance Alliance (IHRA) definition that inspired UA’s new position, has repeatedly voiced concern with the problematic and deleterious use of the IHRA definition, which was never intended as an on or off campus hate speech code (2017, 2019). Stern, along with many other scholars (here and here) — including the 370 scholars who signed the competing Jerusalem Declaration on Antisemitism — have warned about and recorded a worrying trend of politically instrumentalising the definition to silence valid critiques of the State of Israel and its allies.

Why this trend? There are many socio-political factors that cannot be covered here, yet this slippery tendency also has a logical cause baked into the definition itself, albeit not explicitly so. According to Hugh Tomlinson, the lack of clarity and comprehensiveness of the IHRA definition will likely produce a “lack of consistency in its application and a chilling effect on public bodies which, in the absence of definitional clarity, may seek to sanction or prohibit any conduct which has been labelled by third parties as antisemitic without applying any clear criterion of assessment.”3 Clearly, this chilling effect on public authorities (such as universities) would then flow onto their staff and students, themselves likely to self-censure by precaution rather than “feel comfortable participating without fear or prejudice” or “pursue genuine, evidence-based research”. Without making too many undue parallels, we already know from another continent (and from other eras) that “it [can be] remarkable how quickly the chill descends.”

Concision, accuracy and enforceability are central tenets of legal drafting theory and practice. For example, the non-legally binding Jerusalem Declaration definition of antisemitism contains 16 words. In contrast, the definition proposed by UA, which seeks to be codified and enforced, is 193 words long. What might the reason be for this twelvefold gap?4 The first paragraph of the new definition defines antisemitism (69 words).5 The second paragraph opens by stating that “[C]riticism of the policies and practices of the Israeli government or state is not in and of itself antisemitic”, only to then explain that this same criticism can be antisemitic if it fills the conditions defined in the first paragraph; that is “Targeting Jews based on their Jewish identities alone” (8 words). 

If what constitutes antisemitism is contained in the first paragraph alone, are not the second and third paragraphs of the definition superfluous? And, if these two paragraphs are indeed redundant, why are they part of the definition at all? We are tempted to conclude that the function of those two paragraphs is not explained by their explicit denotative content, but rather by the connotative inflexion and the equivocation that emerges from their presence.

Judging whether a code of conduct or law has been breached has traditionally been (and should remain) the prerogative of the judging arbiter (whether a university board, a jury or a judge), not the prerogative of a definition. Such judgement should be grounded in interpreting concise and clear definitions, which provide the spirit of the rules and principles we seek to abide by, and confronting these to the empirical evidence presented by the accusation and the defence. 

What reason is there to think that public authorities such as universities cannot interpret what constitutes antisemitism accurately, on the basis of a clear and enforceable definition? Could it be that, in a move that seeks to “sanction or prohibit any conduct which has been labelled by third parties as antisemitic without applying any clear criterion of assessment”, the length and lack of clarity of this definition are not bugs but features? In that case, we can conclude that the equivocation and lack of clarity that breaks with long-standing legal drafting principles serve an implicit change in the governance paradigm, in which the chilling effect is the goal.

Lack of logical consistency

There are two types of logical incongruity in the definition proposed by UA. The first is formal (the underlying validity of the definition). The second is how the definition tracks with empirical evidence (whether the premise/s are true). Lanicek and Balint stress there are different understandings of antisemitism. This is necessarily true, or there would be no political struggle over the term. However, only one of the competing understandings is formally consistent (and the assumption is that only formal consistency can serve impartiality, truth, justice and social cohesion). 

The main point of contention between the two positions on the new definition is whether Zionism — a political project — should ever be definitionally conflated with Jewishness — an inalienable identity. Lanicek and Balint use a Soviet anti-Zionist campaign — an effectively antisemitic campaign — as an example of the conflation of antisemitism with anti-Zionism. This is somewhat surprising given that today, it is Zionists who are pushing for that conflation despite many Jews not identifying as Zionists; despite the objections made by many Jewish organisations; despite the fact that most Zionists are not Jewish; and despite the fact that at least some Zionists are antisemitic. Even if it were true that “a majority of Australian Jews identify with Zionism”, it remains the case that conflating the two terms formally is a blatantly false conclusion to reach. A single black swan is enough to falsify the statement that “all swans are white”.

Similarly, it is also true that, as the new definition states, “substituting the word ‘Zionist’ for ‘Jew’ does not eliminate the possibility of speech being antisemitic.” People can indeed purposefully misuse terms so as to effectively alter their meaning (this is how we make jokes and slurs). Yet the de facto misuse of a term should not therefore serve as grounds for a formal re-definition of the term, especially if the original meaning of the term designates something specific that proves useful to make accurate statements. 

People might misuse the word “pig” to describe a person or a group of people, but the word pig should still formally designate a four-legged animal and not a person or group of people on the grounds that some use the term as a slur. This is further complicated if a word is deemed a slur solely depending on who says it. Indeed, the fact that Zionists — Jewish or not — self-identify as Zionists should already be proof that the term designates something useful and meaningful that is not necessarily a slur.

If the formal meaning of a word is made to depend on who says it, and if this in turn determines whether or not the person should be punished for using that word, then what is policed is not the actual meaning of a word, but rather who uses it. The rationale behind hate speech laws is not to silence particular people but to silence hate. Further, it remains unclear how drawing a false logical conclusion so as to silence certain people would prove helpful in fighting actual antisemitism. 

Yet this false conclusion is made regularly, even by learned legal professionals, including Australia’s attorney-general Mark Dreyfus: “The label Zionist is used, not in any way, accurately. When critics use that word, they actually mean Jew.” Again, Dreyfus’ statement could indeed be true, yet in a liberal system the burden of proof is with the accuser; the accused remains innocent until proven guilty. Law must judge deeds, not hidden intentions, which it has no access to. The alternative is a clear shift towards arbitrary and authoritarian expediency, and away from impartiality and due diligence. From there, anyone could be accused (and potentially judged) of “actually” saying anything, despite demonstrably not saying anything of the sort.

Second, there are conspicuous silences in the new definition that mean parts of it effectively function as “performative concessions” (dead definitional weight) rather than as substantial parts of the definition. The new definition states: “[A]ll peoples, including Jews, have the right to self-determination…” Lanicek and Balint note that “the declaration leaves open the question of the future settlement of the Israeli-Palestinian conflict and the subsequent political and territorial arrangement in the region.” 

Here we face another kind of logical problem: these two statements are perhaps true, but only formally so. Any confrontation with the empirical reality of Zionism as it exists today shows its direct negation of the statement “all peoples have the right to self-determination”. Indeed, this is the central criticism levelled against Zionism — that it denies Palestinian’s right to self-determination so as to assert its own, and refuses the binational, non-ethnic, equal rights, democratic alternative because, according to Zionism (not just its critics), Israel is and must be a Jewish state. The Jewish Council of Australia argues this means some of the political solutions to the conflict are not in fact “left open”; they are pre-emptively foreclosed by the new definition, which could now label them antisemitic. 

While we could plausibly try to imagine a Zionism that would acknowledge Palestinian self-determination, sound arguments require that we ground premises in empirical reality: Zionism as it exists today does not recognise Palestinian self-determination or equal rights for Palestinians. This is observably true, regardless of the quality of its justifications for doing so. The empirical facts, international reports and resolutions all point to the objectively non-existent sovereignty and self-determination of Palestinians, whether de jure or de facto (here, here, here, here, here, here). No logical explanation for this state of affairs can be provided without mentioning Israel and the Zionist project. 

These are not vague views held by everyday (potentially antisemitic) people about a conflict they know little about; these are informed views formulated on the back of thorough investigations and strict protocols from supranational institutions such as the United Nations Relief and Works Agency for Palestine Refugees in the Near East, the Office of the United Nations High Commissioner for Human Rights, UNICEF, the United Nations Educational, Scientific and Cultural Organization, the International Court of Justice, the International Criminal Court, Amnesty International, Human Rights Watch, Oxfam, Médecins Sans Frontières, Red Cross, Save the Children, etc. As with the lack of clarity of the new definition, which effectively does away with legal rigour, we could of course do away with these legal and humanitarian institutions, as well as with the diligent reports and judgements they produce. But it is unclear how this would serve truth, justice, mutual understanding, the fight against antisemitism or the social cohesion that UA claims to want.

Definitions are indeed important. They should provide clarity rather than obfuscation, especially if they are to be used for legal and paralegal purposes. But even then, they are indeed only one part of this vexed issue: they cannot — and should not — be the sole arbiter. Case by case interpretation and evidence-based reports should always be integral to the rights-based due process proper to liberal governance. The alternative undermines the principles that secure the possibility of a “setting for all students to feel comfortable participating without fear of prejudice” or of a space to “pursue genuine, evidence-based research.” History shows these paradigmatic slides in governance often start with universities, but they rarely stop there.

The author would like to thank Anna Copeland and Anne Surma for their kind feedback and suggestions on an early version of this article.

• 1

  There are still conflicting reports about whether individual universities have already endorsed it and how they will enforce it. For example UTS has apparently stated it would not enforce the new definition, Murdoch University is currently consulting staff regarding a broader definition of ‘oppression’.

• 2

  Before going into the details of the new definition, let us note that the definition, regardless of its form and content, would “codify antisemitism in a manner not applied to any other form of racism or discrimination”; antisemitism would be “the only form of racism and discrimination included in the Standards Framework” (NTEU). Aboriginal and Torres Strait Islander staff and students, as well as, in this particular context, Arab and Muslim staff and students, who also experience racism, including systemic racism, would not benefit from such a commitment and codification. Given UA’s commitment to fighting all racism and discrimination, we are led to wonder about the reason for such differential treatment.

• 3

  In another attack on Western universities’ independence, the rebuttal to Trump’s administration’s threats of funding cuts to Columbia University also highlight the ‘unconstitutional vagueness’ of the conditions needing to be met for funding to continue.

• 4

  I should note that much of the criticism of the IHRA definition is targeted at its accompanying examples, not at the definition itself. Tomlinson covers some of the reasons why these examples are problematic. The Jerusalem Declaration seeks to provide a non-legally binding definition that rebuts the IHRA definition politically, it therefore provides a set of ‘counter examples’. The approach taken here is different, it does not seek to provide competing and rectifying (political) content, instead it criticises the form of the definition itself: it points to the lack of concision and clarity themselves as a political weapon. Debates can of course be had about how tightly or loosely legal drafting should be in different contexts.

• 5

  For a ‘literary reading’ of the ‘wordiness’ of the new definition that ‘conceals more the it reveals’, see Jumana Bayeh’s piece in Overland.