For the IHRA Definition, Context is Everything
According to the International Holocaust Remembrance Alliance’s non-legally binding working definition of antisemitism (the IHRA definition), context matters. A lot. Even more than our favorite college presidents think context matters.
Do you think that making mendacious, dehumanizing, demonizing, or stereotypical allegations about Jews as such or the power of Jews as a collective — such as, especially but not exclusively, the myth about a world Jewish conspiracy or of Jews controlling the media, economy, government or other societal institutions, is inherently antisemitic? Nope. According to the IHRA definition, this example “could, taking into account the overall context,” be antisemitic. Not necessarily antisemitic; it could be, depending on context.
The same is true for Holocaust denial, double standards applied to Israel, accusations of dual loyalty, and denying the Jewish people their right to self-determination. By the IHRA definition's own terms, context matters for all 11 of the examples it lists. That’s why David Schraub wrote that the IHRA definition is “vague to the point of incoherency, and riddled with so much imprecision and hedging that it could justify labeling anything or nothing anti-Semitic.”
Who determines whether the IHRA examples are antisemitic in context? The IHRA definition is silent on that point. The definition itself is not much help: “Antisemitism is a certain perception of Jews, which may be expressed as hatred toward Jews. Rhetorical and physical manifestations of antisemitism are directed toward Jewish or non-Jewish individuals and/or their property, toward Jewish community institutions and religious facilities.”
And yet some people want to codify this definition, which is literally titled a non-legally binding working definition, into law.
The IHRA definition was developed to help European data collectors identify possible instances of antisemitism. Ken Stern, the lead drafter of the definition, explained that
bean counters in different European countries preparing reports on antisemitism didn’t have a common idea of what to count. The goal was to give them concrete examples of what to include or exclude, so levels of antisemitism could be compared across time and borders. There were examples about Israel because there was a correlation, as opposed to causation, about certain types of speech about Israel and attacks on Jews. The purpose was to take a temperature, not to create a blunt instrument to label anyone an antisemite.
The vagueness of the IHRA definition is a feature, not a bug, when used for its intended purpose. But as a legal standard or aid in enforcing legal requirements, it cannot stand alone. That’s why, by its own terms, it is legally non-binding: It was never intended to be enshrined in law. Casting a net broad enough to include what might not be antisemitic makes sense if you want to collect data and sift through it later; it does not make sense if you want to enforce legal standards or university codes of conduct.
Neve Gordon and Mark Levine point out that under the IHRA definition, Albert Einstein, Hannah Arendt, and Yeshayahu Leibowitz could be considered antisemitic. Nevertheless, for the reasons they outline, this definition appeals to Jewish institutions with certain agendas. Victims of antisemitism object to the IHRA definition because it is vague and inadequate.
The IHRA definition can be useful only in conjunction with other tools that provide the context that the IHRA definition, by design, lacks. Fortunately, we now have such tools, including, the Nexus document.
Jonathan Jacoby, who directs the Nexus group, said that “the big mistake people are making about IHRA is that it’s the final word and there are many words and perspectives. You can think of IHRA as the Mishnah and [the Nexus definition] as the Gemara.”
Indeed, on May 27, 2021, members of Congress wrote to Secretary of State Antony Blinken that “while the IHRA definition can be informative, in order to most effectively combat antisemitism, we should use all of the best tools at our disposal,” citing the Nexus definition and the Jerusalem Declaration on Antisemitism, to which I would add the T’ruah’s Very Brief Guide to Antisemitism and President Biden’s National Strategy definition, none of which existed when these members of Congress wrote their letter.
At its February 2023 Midyear Meeting, the American Bar Association rejected inclusion of the IHRA definition in its resolution opposing antisemitism, in part based on opposition from the ACLU, which noted that “any embrace of the IHRA definition by the ABA would undermine fundamental rights of free speech, freedom of assembly and protest, and academic freedom.” It’s bad policy and bad politics for the Jewish and pro-Israel communities to be on opposite sides of the free-speech communities.
The ACLU voiced similar concerns on February 6, 2024, when it urged the Department of Education not to use the IHRA definition to enforce civil rights law, including Title VI.
In his statement opposing ABA adoption of the IHRA definition, Ken Stern, the lead drafter of the IHRA definition, referred to claims that IHRA definition is needed to identify antisemitism as “hyperbole and frankly nonsense…in the last weeks, I don’t recall anyone saying you needed to run Kanye’s statements through IHRA to understand it was antisemitic.”
We must oppose antisemitism in all forms from all sources, and that means understanding what antisemitism is. Some criticism of Israel is antisemitic. But legal guidance that refers specifically only to the IHRA definition will not help us distinguish between criticism of Israel that we find offensive or inaccurate and criticism of Israel that genuinely veers into antisemitism. For example, holding Israel to double standards or accusing Israel of racism can be antisemitic, but not necessarily — a classic example of when context matters.
Our goal should be to protect the Jewish community from real antisemitism, not to shield the government of Israel or ourselves from criticism we might find offensive or inaccurate by incorrectly labeling it as antisemitism. Speech that makes us uncomfortable is not necessarily antisemitic.
Supporters of the IHRA definition often point to the number of jurisdictions that have adopted the IHRA definition as a reason to adopt the IHRA definition. The format name for this “if everyone else jumped off a cliff” argument is argumentum ad populum: a fallacious argument based on claiming a truth or affirming something is good because many people think so. Imagine arguing that every U.S. veto of a UN Security Council resolution that is biased against Israel is wrong because if the vast majority of UN Security Council members support the resolution, it must be right.
Despite the number of jurisdictions that have adopted the IHRA definition, supporters of the definition have yet to provide any evidence that antisemitic speech or violence declined anywhere in the world following the adoption of the IHRA definition in any jurisdiction. You’d think they’d have some success stories by now. (And for the record, the number of jurisdictions that have adopted the IHRA definition is not nearly as impressive or widespread as supporters of the IHRA definition would have us believe.)
Ken Stern’s recommendation that the UN not adopt the IHRA definition, which includes an in-depth dissection of the definition in President Biden’s National Strategy to Counter Antisemitism, is excellent advice for us as well — read it if you are not convinced by what I’ve written here.
If we need to define antisemitism, let’s use the definition in President Biden’s National Strategy to Counter Antisemitism, the best and most recent definition, which reflects a broad consensus in the Jewish community:
Antisemitism is a stereotypical and negative perception of Jews, which may be expressed as hatred of Jews. It is prejudice, bias, hostility, discrimination, or violence against Jews for being Jews or Jewish institutions or property for being Jewish or perceived as Jewish. Antisemitism can manifest as a form of racial, religious, national origin, and/or ethnic discrimination, bias, or hatred; or, a combination thereof. However, antisemitism is not simply a form of prejudice or hate. It is also a pernicious conspiracy theory that often features myths about Jewish power and control. There are several definitions of antisemitism, which serve as valuable tools to raise awareness and increase understanding of antisemitism. The most prominent is the non-legally binding “working definition” of antisemitism adopted in 2016 by the 31-member states of the International Holocaust Remembrance Alliance (IHRA), which the United States has embraced. In addition, the Administration welcomes and appreciates the Nexus Document and notes other such efforts.
That’s it. That’s the definition. Legislation introduced in Congress or anywhere else should use this definition, not an outdated definition that cannot stand on its own, and should reference other definitions of antisemitism, not just one.
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Last updated on February 27, 2024.
