The IHRA Working Definition of Antisemitism: A Legal Analysis
Legal opinion provided at the request of the Service for Combating Racism at the Federal Department of Home Affairs
The IHRA working definition is based on the EUMC definition, which was intended to facilitate the collection of data on antisemitic crimes in Europe. In 2016 the IHRA member states, including Switzerland, adopted the working definition by consensus at the plenary assembly meeting in Bucharest ('IHRA Plenary'), although it was agreed that it would be non-legally binding.
Due to a lack of consensus regarding 'new antisemitism', the IHRA separated the first part of the working definition, i.e. the core definition, which does not refer to the State of Israel, from the other parts. As a result, the working definition as a whole (‘working definition in the broader sense’) has a complex structure comprising a core definition, explanatory notes and a list of examples. There is some disagreement as to whether the IHRA has adopted the entire definition, or just the core definition.
Following the conference, some organisations and institutions called on IHRA member states to endorse the definition at the domestic level in order to enhance its status and make it more widely known. In September 2020, 27 states had acted on this request. While some states just adopted the core definition, or a slightly refined or extended version, others adopted the definition in the broader sense, including the explanatory notes and examples. However, the distinction between the core definition and the examples went largely unnoticed during political or public debate. Even in countries that solely adopted the core definition, discussions were largely focused on the parts of the definition and examples relating to Israel, which are also the parts that have attracted the most criticism.
The compromise reached by the IHRA Plenary in Bucharest, which was to separate the core definition from the other parts, is problematic on various levels. It is far from clear whether the core definition works on its own. Because it is couched in highly abstract terms, it does not describe the specific features of antisemitism as compared to other forms of racism. Moreover, the core definition excludes certain elements that are crucial to combating antisemitism. For example, it makes no reference to structural discrimination, or discrimination generally. Because the definition is so open-textured, it is to a large extent possible to fill in the gaps by way of interpretation, although this requires relatively extensive prior knowledge.
The vagueness of the core definition makes potential addressees focus on the contemporary examples of antisemitism that follow and include references to Israel. The drafters aimed to arrive at a definition and/or provide a list of antisemitic actions and language which takes into account the contemporary context and avoidance strategies that resort to subtle or coded language. Such an approach is commendable for the purpose of fighting antisemitism.
However, the safeguard according to which "criticism of Israel similar to that levelled against any other country cannot be regarded as antisemitic" lacks precision and predictability and therefore does little to reduce or eliminate real or perceived risks to freedom of expression. The statement that "manifestations might include the targeting of the State of Israel, conceived as a Jewish collectivity" is also an insufficient safeguard for freedom of expression because it lends itself to different interpretations. Applying the examples, mainly in relation to Israel, while upholding freedom of speech, is therefore a challenging endeavour which requires a contextual analysis. It is important to note that the list of examples is not intended as a checklist to be applied mechanically. The introductory sentence clearly states that contemporary examples of antisemitism could, taking into account the overall context, include, but are not limited to, the following acts.
In terms of freedom of expression, it is important to bear in mind that vaguely worded caveats may have a chilling effect, as they make it difficult to determine when certain statements cross the line of what would be considered acceptable criticism. From this perspective, example 8 (applying double standards to the State of Israel) and example (denying the Jewish people their right to self-determination) may raise questions.
To reduce the risk of the examples being misused, it seems important to provide training to people who may be required to apply the definition. When used by individuals who have participated in training and awareness sessions, the definition can provide a basis for interesting discussions on what constitutes antisemitism in a contemporary context. The controversy generated by US universities using the definition within the context of campus hate speech codes demonstrates, however, that resorting to the definition to determine freedom of expression issues can be problematic.
As a non-legally binding international instrument adopted by an intergovernmental body, the working definition can already have some impact. Swiss courts can use the definition to clarify and interpret concepts under Swiss law, just as they do with other non-legally binding instruments adopted by international organisations of which Switzerland is a member.
There is no legally binding definition of antisemitism in Swiss law. The legal system addresses the issue indirectly, mainly through provisions prohibiting discrimination, hate crimes and hate speech, which are set out in different pieces of legislation. The thresholds and criteria for dealing with forms of antisemitism may vary depending on the area of law, field of activity and legislative aims. It is therefore to be expected that the definition will have a different impact in different areas of law, as illustrated by the three examples explored in this legal opinion.
The 'anti-racism provision', as it is known, i.e. Article 261bis of the Swiss Criminal Code, sets a high threshold for identifying punishable manifestations of racism and antisemitism, which means that only the most egregious forms of antisemitism will fall within its scope. The definition of racial discrimination under the Swiss Criminal Code therefore differs significantly from the IHRA antisemitism definition. In our view, the working definition is therefore unlikely to have an impact on the application of this provision in practice. However, where the working definition is used for training purposes, it could help to raise awareness among public prosecutors and criminal judges of avoidance strategies, ensuring that individuals making statements that potentially constitute an offence under Article 261bis SCC are brought to justice. Raising awareness of the different forms of antisemitism could also make the courts more inclined to take antisemitic motives into account when sentencing offenders.
Adopting the working definition of antisemitism could have a greater impact on the protection of personality rights, a specific area of civil law, than in relation to offences under criminal law. It could encourage courts to refer more frequently to the working definition in order to determine whether criticism levelled against a specific individual for making antisemitic statements lacks a sufficient factual basis and thus constitutes an injury to personality rights. The Federal Supreme Court’s case law tends to limit the scope of permissible criticism to situations where labelling a person's statements as racist falls within the scope of Article 261bis of the Swiss Criminal Code, an approach that was rejected by the European Court of Human Rights ('ECtHR') in GRA v. Switzerland. Given that the working definition of antisemitism is broader than the definition used in criminal law, more extensive use of the working definition could have the advantage of widening the scope of permissible criticism, thus opening up the debate on what constitutes and what does not constitute antisemitism. Any potential effect of the working definition would, however, be limited by the contextual approach adopted in the case law when balancing freedom of speech against the right to reputation.
Adopting the working definition is unlikely to have a significant impact on one particular area of administrative law: using state property to exercise freedom of expression. When determining appeals against the refusal to grant an authorisation to use the public domain or administrative assets for communication purposes, the Federal Supreme Court has held that applications for an authorisation must be assessed objectively, i.e. without regard to the substance of the ideas and messages to be communicated. The authority concerned is solely permitted to undertake a cursory examination. The court stated that given the importance of freedom of expression in relation to political issues, and the serious implications of any forms of prior restraint of freedom of expression, withholding an authorisation on the grounds of content was only justified in exceptional circumstances, mainly in situations where there is a real and specific risk of a breach of the provisions of the Swiss Criminal Code (Art. 261bis SCC). This leaves little scope for a broader conception of antisemitism than that set out in the Swiss Criminal Code.
Given that courts can already refer to the working definition, adopting the definition would not necessarily bring about a fundamental change. However, it is likely that the definition would be invoked more frequently if it were officially endorsed, particularly in relation to the protection of personality rights. Conversely, any refusal to adopt the definition could lead courts to discard the definition.
Although adopting the working definition, a soft law instrument, would be an unusual approach for Switzerland, it would have the advantage of giving the authorities a degree of control over potential legal and psychological effects the definition may deploy, and allow them to minimise chilling effects. For the purposes of freedom of expression, it would, for example, be desirable for the instrument adopting the working definition to state the specific purposes and areas to which it should apply and address the uncertainties surrounding its interpretation.