The IHRA definition of antisemitism: some judicial interpretation at last - context and language are the key

John McHugo

Introduction

The growth of antisemitism in this country and across the world is a frightening phenomenon of our times.I came across an instance of this myself a year or so before the pandemic. I found myself in friendly conversation with two men at a central London bus stop late one night. I don't remember how, but The Protocols of the Elders of Zion came up. I casually said that it was a forgery, thinking this would be an uncontroversial statement. I was quite wrong. "How do you know?" asked one. "Prove it!" said the other. I felt I had to challenge what they said, but it was hopeless. The conversation proceeded down a rabbit hole in which everyone's view was as good as everyone else's. Scrolling the Internet has a lot to answer for. Incidentally, nothing about the Middle East had been mentioned in our conversation up to that point.

The IHRA Definition of Antisemitism

In 2016 the International Holocaust Remembrance Alliance, an organisation dedicated to fighting antisemitism, produced a non-legally binding working definition of antisemitism which is as follows:

"Antisemitism is a certain perception of Jews, which may be expressed as hatred towards Jews. Rhetorical and physical manifestations of antisemitism are directed towards Jewish or non-Jewish individuals and/or their property, towards Jewish community institutions and religious facilities."

It has been widely adopted but has also received much criticism. The wording has a looseness ("a certain perception of Jews, which may be expressed as hatred towards Jews"). Oddly, on the face of its words, the definition does not cover either prejudice or discrimination against Jews. But the definition has been widely used despite the criticism, much of which focuses on some of the eleven "illustrative examples" which follow the definition. This criticism has been encapsulated in the Jerusalem Declaration on Antisemitism* which contains its own definition and was written in direct response to the IHRA definition. As the authors of the Jerusalem Declaration state in the preamble, their view is that:

"Because the IHRA Definition is unclear in key respects and widely open to different interpretations, it has caused confusion and generated controversy, hence weakening the fight against antisemitism."

It therefore cannot be denied that the IHRA definition is a controversial document. It purports to be intended to fight antisemitism, but it has been accused of achieving the opposite. Yet it has been the IHRA Definition, and not the Jerusalem Definition, that has been widely adopted -although only the latter definition includes prejudice and discrimination against Jews. In December 2016 Sajid Javid, the Home Secretary, stated in a written ministerial statement (HCWS345) that:

"Although legally non-binding, [the IHRA definition] is an important tool for criminal justice agencies, and other public bodies to understand how anti-Semitism manifests itself in the 21st century, as it gives examples of the kind of behaviours which depending on the circumstances could constitute antiSemitism."

Judicial Interpretation in Farrukh Najeeb Husain v Solicitors Regulation Authority

It should therefore come as no surprise that it is the IHRA definition that has been used by the High Court when considering appeals from decisions by disciplinary tribunals of professional bodies lodged by applicants who had been censored (and in one case struck off) for making comments which the tribunals ruled were offensive and antisemitic. There have been two such cases. Both were heard by Mr Justice Chamberlain, who dismissed both appeals. These cases are Farrukh Najeeb Husain v Solicitors Regulation Authority [2025] EWHC 1170 (Admin) decided on 14 May this year and Professional Standards Authority for Health and Social Care v General Pharmaceutical Council, Ali(Interested Party) [2024] EWHC 577 (Admin), 2024, IRLR 504, on 14 March 2024.

The facts of the cases need not concern us here. What is of interest is Chamberlain J's interpretation of the seventh and eighth illustrative examples attached to the IHRA definition. These two illustrative examples and the nine others are intended "to guide the IHRA in its work". The two examples are:

(7) Denying the Jewish people their right to self-determination, e.g., by claiming that the existence of a State of Israel is a racist endeavour.

and

(8) Applying double standards by expecting of [Israel] a behaviour not expected or demanded of any other democratic nation.

In the Ali case in 2014, it had been argued that such examples had been used to "chill" open discussion of Palestine/Israel. As evidence of this argument, at paragraph 97 of Husain Chamberlain J quotes a statement by Professor Avi Shlaim recorded in the Ali tribunal's decision:

“Scholars and legal experts have convincingly argued that IHRA’s definition is incoherent, vague, vulnerable to political abuse, and not fit for purpose. It fails even to meet the most elementary requirement of a definition, which is to define. The decisive role of pro-Israel advocacy groups in drafting and promoting the definition has also been established…”

“The examples [referred to in the IHRA definition], falsely represented as part of the IHRA definition, have been used to delegitimise and censor legitimate criticism of Israel and, more broadly, to curtail free speech on Israel. This shields Israel from accountability for its serious human rights abuses, which consequently continue unchecked.”

The judicial analysis by Chamberlain J

We will now look at Chamberlain J's analysis in Husain of illustrative examples 7 and 8 which provides us with some judicial guidance as he considers them in the light of Article 10 of the European Convention on Human Rights (the "ECHR"). He deals with the eighth example before the seventh. We will do the same here, because it will be helpful in following his reasoning:

On example (8),"Applying double standards by expecting of [Israel] a behaviour not expected or demanded of any other democratic nation", Chamberlain J comments:

“103. ...[I]t may be highly controversial whether a particular criticism involves “[a]pplying double standards by requiring of [Israel] a behaviour not expected or demanded of any other democratic nation”. Answering that question is likely to involve making judgments on contested factual and normative matters. In general, Article 10 [of the ECHR] accords broad protection to such judgments. Courts and tribunals should be wary of entering this difficult terrain, save where they are applying a legal framework that makes it impossible to avoid doing so. In consequence, they should in my view be cautious in accepting that a statement is anti semitic on the basis that it employs an alleged double standard of this kind.”

Article 10 of the ECHR, as implemented by the Human Rights Act 1988, provides that

"everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers..."

As we can see from paragraph 103, Chamberlain J holds that in general terms Article 10 affords broad protection to a person "making judgments on contested factual and normative matters". That is why he states that in his opinion courts and tribunals should be cautious in accepting that a statement is antisemitic purely on the basis "that it contains an alleged double standard of this kind".

The second IHRA illustrative example under scrutiny by Chamberlain J is:

(7) “Denying the Jewish people their right to self-determination, e.g., by claiming that the existence of a State of Israel is a racist endeavour.”

He considers this in detail in the immediately following paragraphs of his judgment, 104-110. Example (7) is among the most controversial of the IHRA examples, as it potentially covers both political critiques of Zionism and critiques of the manner in which Israel was established. Chamberlain J approaches it with clear concern about its interpretive breadth:

“For similar reasons, caution is also required when considering speech that is said to ‘[deny] the Jewish people their right to self-determination.’”

He refers to an argument based on this illustrative example which is sometimes advanced: criticism of current Israeli policies may be acceptable—but challenging "the founding circumstances or principles of the State of Israel" is not. This was argued before him by Counsel for the SRA, but Chamberlain J does not seem to have been impressed by the reasoning advanced. If the argument had been correct, support for alternatives to a Jewish nation-state—such as a single, binational state—would, by definition, be antisemitic.

He firmly rejects this:

“If that were so, it would presumably follow that advocating the abolition of the State of Israel and its replacement with a unitary state comprising both Jewish and Palestinian citizens... would necessarily be antisemitic. [...] I do not accept it.”

This is significant. Chamberlain J affirms that support for a “one-state solution”—which he points out is a position historically supported by some Jewish Israelis as well as some Palestinians—cannot be automatically or presumptively treated as antisemitic. The political structure of the Israeli state is a subject for legitimate debate.

To illustrate: one could argue for a single democratic state where all citizens, Jewish and Palestinian alike, have equal rights—not out of hatred for Jews, but out of commitment to egalitarian principles. While such a position may be controversial and even offensive to many, it is not inherently racist.

Is It Antisemitic to Call Israel a "Racist Endeavour"?

Chamberlain J continues:

“Nor, in my judgment, can it be regarded as axiomatically antisemitic to claim that ‘the existence of a State of Israel is a racist endeavour’.”

He affirms that such a statement, while undoubtedly provocative, can fall within protected political discourse.

He acknowledges the historical context:

“Criticisms of this sort have been levelled against Israel since the events leading to its establishment in 1948. There is no doubt that those events included the displacement of Palestinians from their homes and land in what is now Israel (referred to by Palestinians as Al-Nakba or ‘the catastrophe’).”

Here, he recognises the legitimacy of giving expression to Palestinian historical narratives, including interpretations of the Nakba as ethnic cleansing or settler colonialism. While these interpretations may be disputed—especially in light of the expulsion of Jews from Arab countries and the fact that some Jews consider Israel their ancestral homeland, both of which he also mentions—they nonetheless fall within the bounds of legitimate political analysis in a democratic society.

For example, a Palestinian academic might write an article arguing that the 1948 displacement was part of a systematic campaign to create a Jewish majority state at the expense of the native population. Such analysis cannot be presumed to be antisemitic.

The "Apartheid" Analogy and the ICJ

Chamberlain J then addresses the growing use of the term “apartheid” to describe Israeli policies:

“The claim that Israel is an ‘apartheid State’, though one which is liable to offend many Jews, also lies in principle within the area protected by Article 10.”

This is especially timely. The International Court of Justice (ICJ), in its 2024 Advisory Opinion on the Occupied Palestinian Territory, found that Israel’s policies breach Articles 2 and 3 of the Convention on the Elimination of All Forms of Racial Discrimination—with Article 3 specifically condemning “racial segregation and apartheid.”

Although Israel contests both the ICJ’s jurisdiction and its findings, Chamberlain J notes that the fact such arguments are being made in international legal fora underscores the danger of declaring them out of bounds in domestic political debate.

To put it plainly: if a legal scholar, NGO, or politician argues that Israel’s policies constitute apartheid—based on human rights law or demographic policies in the West Bank—such a statement, however controversial some may consider it, cannot be presumed to be antisemitic.

Time and Context matter

Chamberlain J next reminds us of the temporal limitations of the IHRA examples:

“The IHRA’s examples were billed as ‘contemporary examples’ in 2016. They were not intended to set the parameters of legitimate political debate for all time.”

This is a critical point. Political facts evolve. Allegations that might have seemed extreme or hypothetical in 2016 may now be grounded in international findings or unfolding events on the ground.

A court or tribunal using the IHRA working definition and examples must be alert to this and must avoid using them in a way which forecloses political debate on new events as they unfold.

For instance, the current discourse around accusations of genocide in Gaza (to which Chamberlain J does not refer) is a rapidly developing area of legal and political contention in which the facts may “change.” It might be noted in passing that Prof. Avi Shlaim, whom Chamberlain J quoted earlier in the judgment, wrote in his 2023 autobiographical memoir Three Worlds: Memoirs of an Arab Jew that, "for all its sins, Israel has not engaged in genocide". After Israel's assault on Gaza he changed his view, which he sets out in his 2024 book Genocide in Gaza: Israel's Long War on Palestine. The facts had changed, and in Shlaim's view Israel had engaged in genocide. Expressing such a view was not antisemitic.

The Test: Language and Context

Chamberlain J provides a test for interpreting whether a statement that falls under example 7 or 8 is antisemitic:

“For all these reasons, where speech is said to fall within the seventh and eighth of the IHRA’s examples, it is unlikely that the substantive content of the message alone will justify the label ‘antisemitic’. However, depending on the language used, and in context, the speech may be antisemitic.”

In other words, the content of a statement must be assessed in the light of (1) the language (including the tone) used and (2) the context -not just by the natural and probable meaning of the words themselves. A criticism of Israel becomes antisemitic not necessarily because of what is said, but because of how it is said, to whom it is said, and with what intent or tone.

For example, if someone says “Israel is a racist state” in a reasoned policy debate about constitutional structures, this is prima facie protected speech. But if the same phrase is used in a rant accompanied by racialised tropes, the context, language and tone would shift it into antisemitic territory.

To summarise: the reasoning in para. 103 shows that Article 10 of the ECHR affords broad protection to statements made on factual and normative matters. Examples Chamberlain J gives of such statements include (1) statements made concerning the founding circumstances or principles of the State of Israel; (2) statements that express the view that the displacement of Palestinians in the Nakba was a form of ethnic cleansing or a species of colonialism; and (3) the claim that Israel is an “apartheid State”. As stated above, Chamberlain J does not discuss the question of whether Israel is conducting genocide in Gaza. Yet he states in paragraph 107:

"whether a particular criticism of Israel’s conduct falls within the bounds of legitimate political debate depends on the facts- and the facts change ."

Assertions to the effect that Israel is engaged in genocide also clearly fall within the protection given by Art. 10 of the ECHR if they are "statements made on factual and normative matters".

But Chamberlain J also makes another, crucial point in para. 107:

"However, depending on the language used, and in context, the speech may be antisemitic. The focus of the court or tribunal should therefore be on the language and context." [Emphasis added].

He gives an example of this (in para. 110), writing as always in his restrained, judicial language. It is hard, almost to the point of impossibility,to see how criticism of Israel containing a racialised taunt using Nazi language and imagery could ever be anything other than antisemitic:

“Comparisons between the policy of Nazi Germany and that of any other government are apt to be incendiary. Making such a comparison with Israel is likely to be especially hurtful. That is not enough on its own to take speech outside the protection of Article 10. However, the language or imagery of Nazism is often used as a taunt, which deliberately references and weaponises the most painful events in Jewish history, to which some Jews alive today are witnesses and which continue profoundly to affect many others. Depending on the context, a criticism of Israel which pointedly uses Nazi language and imagery as a racialised taunt of this kind could reasonably be regarded as antisemitic.”

Conclusion

Returning to the two men I met at the bus stop that night I have no doubt that their question, "how do you know?" and their demand, "prove it!" were antisemitic. But that was not because of the question and the demand. The words they used were perfectly fair in themselves. It was because of the context and the way they spoke. Chamberlain J's reasoning will help the fight against antisemitism because it clarifies when speech is - or becomes -antisemitic. At the same time, his reasoning will help to dispel the chilling effect of some readings of the IHRA definition that have led to a disgraceful lack of courage among sections of the media and the political class in calling out Israeli policies when criticism is not only legitimate but necessary.

John McHugo is a historian and international lawyer. He is also a member of the CAABU Executive and a former trustee of the Britain Palestine Project. He is currently working on a new book on how the histories of Islamism and Zionism combined to lead to 7 October 2023. www.johnmchugo.co.uk The views he expresses in this article are his alone.

*[1]The Jerusalem definition has been endorsed by the Britain Palestine Project. See https://britainpalestineproject.org/the-jerusalem-declaration-on-antisemitism/