JVL Introduction

The talk below was delivered by Sir Stephen Sedley as a contribution to the launch meeting of Jewish Voice for Labour in Brighton on 25 September 2017. We are publishing it now as we feel it is relevant to the EHRC’s investigation of antisemitism and the Labour Party. H/t Stephen Solley QC, who submitted the text to us as a comment on our post Submissions to the EHRC.

Sir Stephen Sedley’s talk at the launch meeting of JVL

Brighton, 25 September 2017

I am speaking tonight not as a member of any party but as a jurist who has spent much of his working life trying to make a reality of two things: the elimination of racial and sexual discrimination, and the right to freedom of expression. Anybody who has worked in this field knows that these are not always easy to reconcile. But as a society we have at least reached a point at which political criticism of individuals and states, however sharp, is a protected human right [1], while racial or religious abuse, whether verbal or behavioural, is not protected and may well be criminal.[2]

If this were all, there would be no need for this meeting tonight. But while courts can enforce the criminal law and the law of defamation, they do not generally have power to intervene in matters of domestic discipline. Schools, colleges, universities, and self-governing organisations such as political parties, have their own space and their own rulebooks which permit them to be tolerant or intolerant of particular points of view or forms of discourse, even if these do not violate the law.

I don’t suggest that the distinction between the two things is always easy to draw. We have all encountered critiques of African states which visibly borrow from, even reinforce, racial stereotypes. Perhaps the most prominent recent instance has been the abuse of Barack Obama emanating from the political right in the US. Much the same is the case with the repeated Islamist conflation of the state of Israel with “the Jews”: criticism of Israel, quite possibly factually accurate (for example in relation to the attack on Gaza), can become a deliberately anti-semitic trope.

In the UK, our immediate concern, for good reason, is the use of institutions and voluntary associations to foster jihadist extremism; but there are many ways in which freedom of thought and expression can be misused or stifled within institutions and organisations. One of these ways is the characterisation of criticism of Israel as a form of anti-semitism.

This is a point where two facts need to be faced. One is that not all criticism of Israel is anti-semitic: indeed much of it comes from Jews like myself who are angered and shamed by Israel’s repeated violations of the human rights of the Palestinian people. The other is that, as happens with many extremisms, hardline Zionism and hardline jihadism coincide in their desire to identify Israel with all Jews and all Jews with Israel. It is a conflation manifested in the much-used denunciation of Jewish critics of Israel as ‘self-hating Jews’. The Labour Party, of all parties, needs to be alive to this.

In 2011, shortly after I had retired from the bench, I joined a delegation of British lawyers which travelled to Israel and the West Bank to investigate the treatment of Palestinian children by the Israel Defence Force. Because the delegation included the former Labour attorney-general Patricia Scotland, we were given high-level access to Israeli government and judicial personnel. Our findings, based solely on uncontested evidence (for example, we adopted no view on the legality of the occupation and treated it as a fact on the ground) were that the military regime applied to children in the West Bank, in sharp contrast to the treatment of Israeli juvenile offenders and suspects, including those living in the settlements, violated an alarming number of provisions of the UN Convention on the Rights of the Child, to which Israel is a party. The violations included ethnic discrimination, separation from parents, lack of access to lawyers and – contrary to a clear assurance we had been given on behalf of the attorney-general the day before we witnessed it ourselves in a military court – the shackling of child prisoners in violation of article 40. I will return in a moment to a further serious violation of international law which we identified.

The visit was funded by the Foreign and Commonwealth Office, and our report, Children in Military Custody, was endorsed by ministers in Parliament; but in spite of Israel’s undertaking to take our findings into account, very little in Israeli practice has changed. Hundreds of Palestinian children remain locked in Israeli gaols with no fixed prospect of release.

In addition to the findings I have mentioned, which are serious enough, we reported that the systematic transportation of child prisoners from the Occupied Territories into Israel was a violation of article 76 of the Fourth Geneva Convention[3] – a violation categorised by article 147 as a grave breach. It is perhaps worth remembering why the transport of prisoners across frontiers in situations of armed conflict was introduced into international law in 1949.

I am taking this example of a legitimate criticism of Israel for a reason related to the concerns that have prompted this meeting tonight. The so-called “working definition” of anti-semitism adopted last year at inter-governmental level by the International Holocaust Remembrance Alliance, includes as an example of anti-semitic speech “the targeting of the state of Israel, conceived as a Jewish collectivity. However [it goes on], criticism of Israel similar to that levelled against any other country cannot be regarded as anti-semitic.” Despite the advice of the Commons Select Committee on Home Affairs that it should be made clear that “It is not anti-semitic to criticise the government of Israel without additional evidence to suggest anti-semitic intent”, the UK government and – it seems – the Labour Party have adopted the IHRA illustrations without qualification.

What effect does this have on the critique of Israel that I have mentioned? It cannot be “similar to that levelled against any other country” because it is the very uniqueness of Israel’s military and economic hegemony over Palestine that makes the criticism legitimate. Once it has been identified and proscribed as unlike criticism levelled at any other country, to describe it as “the targeting of the state of Israel, conceived as a Jewish collectivity” adds nothing and subtracts nothing: it is simple rhetoric.

Let me return, then, as a political outsider, to the implications of a rulebook or a culture which proscribes all but respectful criticism of Israel. Thanks to Labour’s Human Rights Act, the general law protects even severe political criticism as legitimate free speech; it draws the line only at incitement of racial or religious hatred. Within these limits of legality, however, a voluntary organisation – which is what the Labour Party is in law – can make it own rules.

For reasons which I’ve sought to explain, the prospect that individuals who have devoted their lives and energies to a political party – any party – may find themselves expelled or disciplined for expressing a view about Israel which is within the law but is offensive to a faction within the party is not one which can be contemplated with anything but alarm.

[1] Human Rights Act 1998; ECHR art. 10.

[2] Public Order Act 1986, s. 17 : “hatred against a group of persons defined by reference to colour, race, nationality, or ethnic or national origins”; s. 18 “A person who uses threatening, abusive or insulting words or behaviour … if he intends thereby to stir up racial hatred or … racial hatred is likely to be stirred up thereby.”

Racial and Religious Hatred Act 2006 adds hatred on religious grounds.

[3] Applicable in armed conflict – a state of affairs which Israel considers to exist, notably with Hamas.