Biden Embraces Antisemitism Definition That Has Upended Free Speech in Europe

During a graduation speech at the City University of New York’s law school last month, Fatima Mousa Mohammed, a Yemeni American student, criticized “Israeli settler colonialism” and advocated for “the fight against capitalism, racism, imperialism, and Zionism.”

Her words, which the university administration condemned as “hate speech,” kicked off a new round of public debate about the distinction between criticism of Israel and antisemitism. Republican members of Congress responded by introducing legislation that would deny federal funding to academic institutions that “authorize Anti-Semitic events.”

The bill cites a definition of antisemitism that the Israeli government and its supporters have been pushing in the United States and elsewhere, one that conflates prejudice toward Jews with criticism of Zionism and the state of Israel. And it comes on the heels of President Joe Biden nodding to the definition in the White House’s national strategy to combat antisemitism, released in late May.

In the 60-page document, the Biden administration referred to the IHRA definition — named after the International Holocaust Remembrance Alliance, which promotes it — as the “most prominent” of several definitions of antisemitism and one the administration has “embraced.” But it emphasized that it has no legal value and does not supersede existing laws or constitute binding guidance for public agencies and local government.

Still, by providing neither a rejection nor a full endorsement of the definition, the Biden administration left room for further lobbying for its adoption. Indeed, conservative and pro-Israel groups hailed the strategy as a victory, even as the single reference fell far short of what they had lobbied for: a full-throated endorsement of the IHRA framework as the “sole definition” of antisemitism and as the foundation for federal policy.

Lara Friedman, president of the Foundation for Middle East Peace, told The Intercept that some of those groups, like the Anti-Defamation League, or ADL, the American Jewish Committee, and the Simon Wiesenthal Center, were already treating the document “as if it had wholeheartedly adopted” the IHRA definition.

“So that what the text actually says will be made irrelevant,” Friedman said. “And we see this happening already with the CUNY case.”

The push for U.S. entities to adopt the IHRA definition has had limited success so far. While 31 states and dozens of counties and municipalities have embraced it in resolutions, strong constitutional protections for free speech have made more meaningful implementation challenging. In Europe, meanwhile, where the definition was first drafted, many states and institutions have adopted it, leading to dozens of human rights violations, according to a report published Tuesday by the European Legal Support Center, a group fighting legal attacks on groups and individuals advocating for Palestinian rights in Europe.

The ELSC recorded some 53 instances between 2017 — when the European Parliament first called on member states to adopt the IHRA definition — and 2022 in which the definition, despite its nonlegally binding nature, was cited as the premise for firings, withdrawn job offers, canceled public events, and disciplinary procedures in Germany, Austria, and the U.K. The report noted that all of those facing accusations of antisemitism were advocating for Palestinian rights and stressed that when legally challenged, the allegations were almost always dismissed as unsubstantiated. Still, by repeatedly endorsing the definition as part of their policy platform, European officials gave it “soft law” power, Alice Garcia of the ELSC told The Intercept.

“The EU basically has been repeating for years that this definition does not violate free speech because it’s not binding,” she said. “But if you give it the power that you are actually giving it, it creates concrete effects on people which actually concretely restrict freedom of expression and freedom of assembly fundamental rights, and then it becomes de-facto binding.”

The European Union coordinator on combating antisemitism and fostering Jewish life, Katharina von Schnurbein, did not respond to a request for comment. In the past, she has defended the definition when challenged about its impact on fundamental rights. It “does not stifle free speech as hate speech laws remain unchanged,” she once wrote, adding that the potential for the definition to be politicized “does not mean that the tool is flawed.”

Anti-Zionism vs. Antisemitism

The IHRA definition was first drafted in the early 2000s in an effort to standardize data collection on incidents of antisemitism. The definition codified a notion espoused by proponents of the so-called new antisemitism theory, which argued anti-Zionism — opposition to the ethnonationalist project behind the state of Israel — amounted to antisemitism. Since then, the definition has been condemned by a growing number of critics, including its original author, for conflating the two concepts, threatening academic freedom and free speech, and seeking to silence criticism of Israel.

The European Monitoring Centre on Racism and Xenophobia originally drafted the definition, but by 2013, the Fundamental Rights Agency, its successor body, had abandoned it. In 2016, the IHRA, a 35-member organization promoting education about the Holocaust, adopted a reworked version of it.

In addition to defining the term, it lists 11 examples of what constitutes antisemitism, including denials of the Jewish people’s right to self-determination, claims that the state of Israel is a “racist endeavor,” and comparisons of contemporary Israeli state policy to that of the Nazis.

The examples effectively change the nature of the definition from a tool intended to address hatred and harassment to one designed to intervene in a political debate. Its proponents, critics have long charged, have used it to silence Palestinians and their supporters by seeking to deny them the right to speak about their oppression. Lina Assi, advocacy manager at the U.S.-based Palestine Legal, noted that efforts to inflate the definition’s authority have already done damage, particularly on U.S. campuses where accusations of antisemitism referencing the definition are most frequently wielded.

“The IHRA working definition is a culmination of lobbying efforts to instrumentalize and accelerate the use of false accusations in order to censor protected speech, to target any sort of viewpoint that is critical of Israel, and to chill one side of an important political debate by saying that anyone who supports Palestinian rights is antisemitic,” Assi told The Intercept. “It has always been used as a propaganda tool and Israel groups want to give it the veneer of the law.”

Critics of the IHRA definition note that it also endangers the fight against antisemitism itself by diverting resources that could be spent toward targeting real hatred and by confounding the public about what antisemitism is. The ADL for instance, one of the most vocal proponents of the IHRA definition in the U.S., tracks reports of antisemitic incidents and has warned that they have been on the rise. But the group’s tally includes dozens of references to Israel and Zionism, particularly on college campuses. While the ADL notes that it does not count all criticism of Israel as antisemitic, it says that “public statements of opposition to Zionism, which are often antisemitic, are included in the Audit when it can be determined that they had a negative impact on one or more Jewish individuals or identifiable, localized groups of Jews.”

“It makes people unsure about what antisemitism is or isn’t, and then it starts to feel like maybe it’s not real.”

That conflation creates confusion and skews data, said Carinne Luck, international director of Diaspora Alliance, a group dedicated to fighting antisemitism and its politicization. “It makes people unsure about what antisemitism is or isn’t, and then it starts to feel like maybe it’s not real,” she told The Intercept. “I’m being told it’s real, but actually what I’m seeing is criticism of Israel, or kids on college campuses being pro-[boycott, divestment, and sanctions], or hosting apartheid week, and that doesn’t strike me as antisemitic and so, is antisemitism real? And of course we know it is.”

She added, “This is essentially a political conversation about Israel and Palestine, and not actually about antisemitism.”

Attacking Critics

The ELSC report offers a detailed assessment of the consequences of adopting the definition in Europe, where critics of the IHRA definition have long questioned officials about its impact on fundamental rights like freedom of expression and assembly. In dozens of case studies, individual accused of antisemitism based on the definition described consequences ranging from damaged career prospects to severe mental health repercussions.

“It has become impossible to voice any critical opinion about Israeli policies in public or in academia without the risk of losing your job, contract, funding or future employment opportunities,” Anna-Esther Younes, a German Palestinian critical race scholar, told the report authors. Her invitation to a panel was rescinded following allegations of antisemitism, based on her support for the boycott, divestment, and sanctions movement; the abstract of a paper she wrote about the women’s movement in Hamas; and a number of academic petitions she signed.

“I had crippling anxiety of who I could even trust, as it felt like the IHRA definition was a mode of surveillance in my day-to-day life,” one of several British students who was investigated by her university after her social media posts supporting Palestinians were flagged as antisemitic told the authors of the report.

The report also cites the example of Deutsche Welle, a prominent German broadcaster that fired seven Arab employees who were accused of antisemitism based on the IHRA definition. According to the ELSC, the employees were not given specific examples of their alleged misconduct, but in the investigation preceding their dismissal, they were quizzed about their “upbringing, what I thought about Hamas, and, most troublingly, how I felt about Israeli children getting killed,” one of the employees later told reporters. (Some of those fired sued the broadcaster, and the case is pending.)

Both in Europe and the U.S., critics of the IHRA definition stress that efforts to codify it have intensified in response to growing recognition and condemnation of Israeli human rights abuses. The Israeli government itself has recognized that, and it has promoted a more proactive approach to countering criticism. In a presentation published this year, for instance, Israel’s Ministry of Diaspora Affairs referenced the IHRA definition and called for an “offensive” strategy to fight what it described as “demonization, delegitimization, [and] double standards” toward Israel.

“This shift recognizes that ‘defending’ Israeli policies is not working since more and more people are recognizing the horrific treatment of Palestinians for the fundamental injustice that it is,” Palestinian political analyst Yousef Munayyer recently tweeted, referring to the ministry’s platform. “Instead of defending these policies, the strategy calls for attacking critics of them.”

While global solidarity with Palestinians has been rising for years, public opinion in the U.S., Israel’s staunchest ally, has also begun to change, with a Gallup poll showing earlier this year for the first time that more Democrats sympathize with Palestinians than with Israelis, while overall U.S. support for Israel is on the decline.

“The tide is definitely shifting, embracing more pro-Palestinian views at universities and in the media, and also, Israel has embraced its most fascistic government yet, and violence against Palestinians has only escalated,” said Assi of Palestine Legal. “In this context, it should be especially clear that anything like the IHRA definition, restricting what Palestinians can say about their conditions, is clearly not viable as a policy.”

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