Faisal Bhabha opposes aspects of IHRA definition of antisemitism

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Faisal Bhabha Photo: YouTube Centre for Free Expression

On Wednesday June 10, 2020 the Centre for Free Expression (CFE) held a virtual forum titled “Fighting Anti-Semitism Or Silencing Critics Of Israel: What’s Behind The Push For Governments To Adopt The IHRA [International Holocaust Remembrance Alliance] Definition Of Anti-Semitism.”

Here is CFE’s statement:

CFE Virtual Forum Series: Around the world, governments are being encouraged to adopt a definition of anti-Semitism developed by the International Holocaust Remembrance Association, with its controversial list of examples. Supported by Canada’s Prime Minister and by a bill before the Ontario Legislature, the definition has been the focus of bitter debate. It has been championed by influential groups inside and outside the Jewish community and opposed by civil liberties and Palestinian support organizations. With the global resurgence of anti-Semitism, what should be done? Join our diverse group of panelists in a discussion of this difficult issue. Zoom link to event: https://ryerson.zoom.us/j/92055805209

Panelists:

Faisal Bhabha, Associate Professor, Osgoode Hall Law School, York University and Former Vice-chair, Human Rights Tribunal of Ontario [Faisal Bhabha is also the legal adviser of the National Council and Canadian Muslims (NCCM) and the chair of the NCCM National Security Policy Committee]

Bernie Farber, former CEO of the Mosaic Institute, the Canadian Jewish Congress, and the Paloma Foundation

Richard Marceau, Vice President, External Affairs and General Counsel, Centre for Israel and Jewish Affairs

Sheryl Nestel, Independent Jewish Voices

Moderator:

Bernie Lucht, Executive Producer of CBC Radio’s Ideas from 1984-2012. Currently, Senior Fellow at Massey College, University of Toronto.

Co-sponsor: Canadian Civil Liberties Association

This is a free event and no registration is required.

Here are excerpts from the debate:

Faisal Bhabha: I wanted to give an example in response to Bernie [Farber]’s question. So Bernie [Farber] asked for a specific example, I mean, we just have to look at what happened to one of Africa’s leading intellectuals recently Achille Mbembe who was uninvited, banned from speaking in Germany of all places for having made comments in his academic writing comparing the Israel settlement project in the West Bank and Gaza to South Africa’s former apartheid regime. This is an example Bernie [Farber] to you that illustrates exactly how the IHRA definition operates to not just suppress speech but – silence black intellectuals.

Bernie Farber: I’m sorry, did that happen here in Canada or Germany?

Faisal Bhabha: Germany. Germany, but it was the deployment of the IHRA definition so I suggest to you that it challenges you to rethink your position on the definition.

Bernie Farber: What it challenges me to do is to read more about what happened in Germany and how that came about. What I want to get back to and I think we have to be really careful with language we use especially now. Throwing out terms like Jewish supremacy and making comparisons to white supremacy, really it curls my innards I have to tell you. I say this with all respect as a child of a [Holocaust] survivor, as a person who’s brought up under that shadow. I’ve studied white supremacy for far too long and I have been involved in trying to expose white supremacy neo-Nazim for much of my adult life, and so the concept, I don’t even know if Jewish supremacy means. I don’t know where you’re bringing that from.

Faisal Bhabha: [unintelligible] I lived in Israel for two years. I can tell you exactly what it is means. I can tell you as a non-Jew what it’s like to live in Israel.

Bernie Farber: But it doesn’t make it right. I want us to be very careful with terms that we’re going to use, because those terms can lead in and of itself to deep and serious issues.

Faisal Bhabha: Are you trying to police my speech particularly Bernie?

Bernie Farber: I’m sorry.

Faisal Bhabha: Are you trying to police my speech particularly taking issue with anything, something I said?

Bernie Farber: No, it was one of the fine terms. Tell me what do you mean by Jewish supremacy and how that applies to this definition?

Sheryl Nestel: If I can weigh in here, I’m wondering Bernie how you would characterize the [Israel’s] Nation State Law if not an example of the imposition?

Bernie Farber: I do have huge problems in Nation State Law. I have huge problems with many of the policies of the Netanyahu government and policies at Israel has enacted over the last number of years. I have been very vocal about my concerns about them and it certainly doesn’t mean I would can’t get into an open and honest discussion about it. But when we start using terms that heighten that discussion that in many ways bastardize that discussion, it doesn’t get us anywhere.

Faisal Bhabha: So disagree with me Bernie, show me, show me that Jewish supremacy is not embodied in law in Israel. I mean we’ve given Cheryl [interrupted].

Richard Marceau: If I may make a quite a quick comment on the Nation State Law, because it was brought up by both Faisal and Sheryl. You know as there are people who are in favor of the Nation State Law and people who are opposed to it. There was a debate in Israel and there was a debate here in the Jewish community. And it’s fine. You can have that debate. But if you condemn the Nation State Law of Israel and you do not condemn the fact that in a Palestinian Basic Law it says in Article one that Palestine is part of larger Arab nation, that Islam is the official religion in Palestine and that he principle of sharia [Islamic Law] shall be the principle source of legislation and Arabic is the only official language, you’re getting into double standard. And every time there’s a double standard by definition it is discriminatory.

Bernie Lucht: Okay, I’m a little concerned that we’re getting to the edges of the ballpark here.

Richard Marceau: It’s important, it’s important because what it says here and that’s the main point of the whole debate, is that Israel in this case, it is set up into a different standard, one that does not apply to any other nation in the world, and that is the issue, because for example, the criticism of Zionism is the right to self-determination of the Jewish people like every nation has on this planet, again, including the Palestinian, and we’re in this situation now that we have two people on this panel who believe in the Palestinian right to self-determination and the Jewish right to self-determination and then you have a group of people two other parent panelists who disagree. [They] do not want to give the Jews a right to self-determination.

Faisal Bhabha: That’s an absurd, that’s an absurd characterization Richard.

Bernie Lucht: Can we pull this back though. Can we pull these facts as a definition and freedom of expression and its impact on speech because, I think we’re getting into territory that has been very worth debating and discussing but it’s adjacent to the core of what we getting into which is the freedom of expression.

Sheryl Nestel: In that regard I will, I’ll get back to something Bernie had said before. When you were going over hate crimes law that, you know, you don’t believe this [IHRA definition of antisemitism] will there ever be implemented legally to charge anyone with a hate crime. Is that correct?

Bernie Farber: Right.

Sheryl Nestel: So I think it’s really important to talk about what the consequences are beyond legal problems for people who express these kinds of sentiments. The chilling effect has been noted in so many different places. The chilling effect on academic freedom, I personally have experienced it. It has been applied at the University of Winnipeg in 2018 against a panel that was held there. It has been applied via president Trump’s executive order of last year. There are now six titles, six cases being waged against universities in the United States against mostly Students for Justice in Palestine [SJP] organizations. In Tower Hamlets in Britain a bicycle ride for Palestine was shut down because it was said to be in contravention of the IHRA. A Jewish group in Germany was had their bank account shut down because they were pro-Palestinian, again using the IHRA as an excuse for doing it. It’s a legal justification for doing it. Really I could go on but I think that we have to look beyond the legal framework for what is going to happen. Jewish studies professors, Joshua Shanes in South Carolina, Amos Goldberg at the Hebrew University, have talked about how their teaching would change fundamentally if they were to be presumed to be understood, their scholarship would be understood as being antisemitic according to the IHRA definitions, including calling Israel racist endeavor or using a scholarly work that calls Israel a racist endeavor. So I think let’s look beyond the legal, the legal is probably the least of our problems with this.

Richard Marceau: You know what the thing is, Sheryl. I’m sorry. But when you’re talking about freedom of expression and the danger freedom of expression being under attack, it’s actually a very important legal question, and I might disagree with Faisal and Bernie and others, but it is a legal question, and it is essential, instead of fear-mongering, to look at what the state of the law is in Canada and Bernie Farber mentioned it at the beginning. There’re laws in Canada there’re there’s jurisprudence coming down from the Supreme Court [unintelligible] under criminal law and what [unintelligible] in terms of human rights law that explains very clearly what hate speech is and you cannot say, I’m sorry Sheryl. you cannot say, you know, it’s just peace and not legal etc. It’s a legal question. The question of freedom of expression is a fundamentally a legal question and you have to look at what the law says and what I’m telling you is that there’s a big difference in Canada between what is hate speech according to Canadian law, and that would lead to sanction and what is not hate speech but actually could be called by society, and you know what, here you’re crossing a red line. And I think Sheryl, the problem you have is that you don’t like to be called out when you cross the line and that’s what you don’t like, and I’m sorry every time you cross the line [interrupted].

Sheryl Nestel: Who makes the line. Does CIJA make the line?

Richard Marceau: The [unintelligible] is 34 democratic states that got together and signed up to IRHA and supported by the UN Rapporteur of freedom of religion, and that is supported by the European Union Parliament and the European Union Council [interrupted].

Sheryl Nestel: Let’s talk about the Special Rapporteur. I’m happy to talk about the Special Rapporteur.

Richard Marceau: Any time.

Sheryl Nestel: If you read that, I know that that’s something that you rely on quite a lot, but the Special Rapporteur is not exactly the biggest fan of the IHRA. He said that it, you know, it has its uses but he also has a lot of caveats around the use of that, you know. He doesn’t, he notes that there is a potential chilling effect and that context is everything, and I think that is the part we’re missing here that every single statement just like the context of the statement that I made at the beginning that Israel is a racist country as a context. It has a context of me living there, of being a Jew, a context that disallows that statement to be understood as antisemitic.

Richard Marceau: So Bernie just very very quickly, so just to me because Cheryl mentioned the Rapporteur. The use of the definition as a non-legal educational tool could minimize such chilling effects and contribute usefully to efforts to combat antisemitism.

Bernie Farber: My view is that, I mean Sheryl may find this a little strange, I’m not that far from you in terms of how this could have a chilling effect. I said this the very beginning. It is a concern that I have most especially on college campuses. You gave one example of it happening in Winnipeg in 2018 well before the IHRA actually, this got developed to where it is today. So that chilling effect has been around awhile and it is a concern. I agree with you 100%, but I’m trying to look at here and what we have to understand is antisemitism as [unintelligible] said is the longest hatred. I mean we’re not talking, when we talked originally about the Canadian so-called Canadian genocide of indigenous people, not so-called, there was a Canadian genocide, we say that and the people were to say: Well that’s being anti Canadian. Nobody’s going to get you know their [unintelligible] being called anti Canadian, but when you refer to terms like antisemitism, antisemitism has a huge history. It has an immediate history for me. I don’t think a day went by, I was brought up in Ottawa, I was one of the only 2 Jewish children in my entire school, I don’t think a day went by that I didn’t suffer an antisemitic event, that I wasn’t beaten up, that I wasn’t chased. I mean antisemitism was very much a part of my life as it was I believe a part of the vast majority of Jews. And so Israel has become to a certain extent a bit of a safe haven concept, of a safe haven certainly since the Holocaust. We have to show great care to the complexities of what this definition is about. Again I go over and over and over the examples. The one that I think Faisal or maybe you Sheryl, you know bring up is drawing comparisons of contemporary Israel’s policy to that of the Nazis. It’s a very general statement. I agree it’s a general statement and quite possibly some of this has to be parced down a little bit to be more useful. But the fact of the matter is that the rest of it, I mean we gloss over the rest of the examples. The rest of the examples in my view are usable. You can certainly have a discussion about them. I mean what do you have accusing the Jews as a people or Israel as a state of inventing or exaggerating the Holocaust. Do you have a problem with that? Accusing Jewish citizens of being more loyal to Israel or to the alleged priorities of Jews worldwide than to the interests of their own nations. Do you have a problem with that? I’m kind of understanding [interrupted].

Faisal Bhabha: Bernie, it’s different to accuse the Jews as a people of inventing the Holocaust. That’s one thing. It’s another thing to accuse the State of Israel of exaggerating the Holocaust. Do you accept that?

Bernie Farber: The State of Israel? I don’t think it [IHRA] says that.

Faisal Bhabha: It conflates the two. I mean the definition itself conflates Jews and Israel.

Bernie Farber: They’re two very separate examples.

Faisal Bhabha: But they’re worked into the same example. Accusing the Jews as a people or Israel as a state of inventing or exaggerating the Holocaust, accusing the Jews as a people of inventing the Holocaust is a classic antisemitic trope and accusing Israel as a state of exaggerating the Holocaust could be for some a plausible argument.

Bernie Farber: Okay I suppose that’s where you and I will have to draw a line of difference.

Faisal Bhabha: I think you have to agree with me there’s a different, that there’s something being [interrupted].

Bernie Farber: I’m not saying there’s not a difference all I’m saying Faisal is that accusing Israel of exaggerating a holocaust in order to gain whatever it is they’re supposed to gain will promote anti-Jewish hatred. It just will because Israel is seen as a Jewish state or a state of Jews and so it’s not you and I talking, having an academic discussion, it’s people out there in perceptions that they get when these things happen. And this is what I think we have to keep in mind. We’re having more of an academic discussion than a real discussion of how this feels in the same way that Islamophobia feels to Muslims. This is a felt experience for us.

Related article: Faisal Bhabha: “Zionism isn’t about self-determination, it’s about Jewish supremacy”