Defining Away Palestine

It is not hard to explain to international lawyers why definitions matter: from the seeming impossibility of reaching a universally accepted definition of terrorism in international law to John Yoo’s infamous attempt to narrow down the definition of torture at the peak of the ‘war on terror’, consensus over the il/legality of a practice is often just a placeholder for deep disagreement and contestation over its definition. The definition of antisemitism is no exception to this rule. In the past decade, universities across Australia and the world have been debating whether to adopt a formal definition of antisemitism and, if so, whether this definition ought to condemn anti-Zionism and/or criticisms of the state of Israel as a form of antisemitism. In the past, many Australian universities considered the controversial International Holocaust Remembrance Alliance (IHRA) working definition, which at times equates criticism of the state of Israel with antisemitism. Most decided against its adoption, not least thanks to the mobilisation of Palestinians and their allies who (rightly) argued that such a definition would facilitate the further escalation of repressive tactics deployed by Australian authorities against critics of Israel and that it would be used to target disproportionately Palestinians, Arabs and Muslims across our campuses. As Lana Tatour has argued, the IHRA definition may even impact pro-Palestinian speech in institutions that have not formally adopted it by entrenching a ‘Palestine exception to freedom of speech and academic freedom on our campuses.’

It is, then, concerning that Universities Australia (UA’s), the sector’s peak body, has now adopted without consultation with academic workers or students a working definition of antisemitism that thoroughly conflates Judaism with Zionism and singles out as potentially antisemitic various forms of criticism of the state of Israel. More so, it is concerning that in a recent report the Australian special envoy to combat antisemitism, Jillian Segal, has recommended that all universities adopt the IHRA definition of antisemitism and has proposed that the government be granted sweeping powers to punish universities that do not root out antisemitism, which she conflates with criticism of Israel and/or anti-Zionism.

Even though this conflation is concerning for all academics and students, definitions of antisemitism that conflate anti-Jewish hatred with anti-Zionism or even with legally and factually grounded criticism of Israel are of particular concern to international lawyers.  This heightened risk for international legal teaching and researched stems from the fact that, for better or for worse, international law has been for decades an important tool for Palestinians and their allies in the struggle for self-determination. The actual operation of international law in this process has been anything but unambiguously positive. However, this close entanglement means that definitions that blur the distinction between antisemitism, anti-Zionism and criticism of Israel, such as the one adopted by UA or the one promoted by Segal: 1. endanger the teaching of our field’s basic rules, doctrines and procedures; 2. undermine the possibility of critical engagement with the field’s persistent state-centrism and ambivalent attitude toward colonialism and imperialism; and 3. threatens to further marginalise Palestinian legal scholars. I will examine each of these dangers in turn.

International Law, International Institutions and ‘Blood Libels’

Take, for example, the common concern of both UA and the IHRA definitions that criticisms of Israel may be antisemitic when they draw from antisemitic stereotypes and tropes. This could include ‘blood libel’, a common racist trope directed against Jewish people that has precipitated untold violence and prejudice for centuries. Viewed abstractly, this is a reasonable concern: antisemitism has deep roots in Western thought and political practice and the pro-Palestine movement is not immune from this reality. However, things become complicated for teachers and students of international law when one factors in that Israel and its allies have accused pretty much every mainstream international institution of engaging in ‘blood libel’ in response to mounting concerns over its genocidal violence in Gaza and its systematic policies of racial discrimination against Palestinians both in the Occupied Palestinian Territory and within Israel. Examples abound: in January 2024, Israel’s President, Isaac Herzog, accused the International Court of Justice (ICJ) of engaging in blood libel for quoting his own words in support of its finding that South Africa’s claims about Israel being in violation of the Genocide Convention being at least plausible. This pronouncement came at the heels of Israel’s Ministry of Foreign Affairs characterising South Africa’s case as a whole as being ‘blood libel’. In May 2024, Elyakim Rubinstein, a former Supreme Court judge in Israel, denounced as ‘blood libel’ the International Criminal Court’s request for an arrest warrant issuance against against Prime Minister Benjamin Netanyahu and Defense Minister Yoav Gallant for the war crime of starvation and crimes against humanity. Accusations of ‘blood libel’ being directed toward defenders of Palestinian rights and mainstream international law institutions are so widespread that the UN High Commissioner for Human Rights has expressed his concerns about this tactic, which he rightly characterised as an instrumentalisation of the very real scrounge of antisemitism. The threat to academic freedom, which we can simply understand as freedom to do our jobs with integrity and honesty is obvious: even teachers of international law who are interested in teaching ‘black letter’ law and have no particular political commitment to the cause of Palestinian freedom may face allegations of antisemitism on account of teaching the field’s most authoritative court’s rulings on self-determination or genocide. It is telling that even one of the lead drafters of the IHRA definition, Kenneth Stern, now expresses grave concerns about the weaponisation of the definition against pro-Palestinian speech.

Legalising Ethno-nationalism, Foreclosing Critique

Stern has particularly lamented the deployment of the IHRA definition against anti-Zionist Jews. His concern about the disproportionate impact of such definition on dissident voices takes me to my second point about the particular threat posed by conflations of antisemitism and anti-Zionism against critical legal scholars. This is not the case because critical legal scholars have been unanimous or unambiguous in their denouncing of Israel genocidal campaign or in their condemnation of Israel’s apartheid against Palestinians. As I have argued elsewhere, our colleagues’ responses to the Gaza genocide have been under-determined by previous disciplinary and theoretical commitments: many critical scholars remained conspicuously silent or, worse, have actively equivocated, while nominally ‘mainstream’ colleagues were willing to speak out against this crime at great personal and professional cost. Nevertheless, critical scholarship in international law can be in direct tension with definitions of antisemitism that taint anti-Zionism or criticisms of Israel with the accusation of antisemitism. For example, the UA definition treats Zionism as a straightforward and unquestionable expression of the Jewish people’s right to self-determination: ‘All peoples, including Jews, have the right to self-determination. For most, but not all Jewish Australians, Zionism is a core part of their Jewish identity’.

Many critical strands of international law, including Third World Approaches to International Law (TWAIL) and feminist approaches to international law, have been sceptical, if not outright hostile, toward the idea that the creation of ethnically homogeneous nation-states is an obvious, unquestionable expression of any people’s right to self-determination. Indeed, some critiques of international law push back against the state-centrism inherent in dominant readings of self-determination within the field and show that international law has been complicit in the creation of oppressive, exclusionary forms of statehood throughout the Global South. Far from unfairly singling out Israel, critical international lawyers who critique Zionism as a settler colonial project grounded on racial exclusion and subordination simply refuse to place a ‘Palestine exception’ at the heart of our scholarship. Definitions of antisemitism that conflate Judaism with Zionism attempt to foreclose this debate by linking together in a supposedly unquestionable and obvious manner self-determination, state-creation and settler colonialism in ways that are particularly hostile toward critical legal thought. As ethno-nationalism becomes increasingly popular and aggressive around the world, it is imperative that international lawyers are able to debate freely how our discipline may be complicit with or become a useful tool against (or a combination of both) reactionary political projects of gradated citizenship and demographic engineer.

Institutionalising Palestinian Marginalisation

Finally, definitions that conflate antisemitism, anti-Zionism and criticisms of Israel rely on and enact a structural erasure of Palestine and Palestinians. This becomes obvious if we return to the quote above regarding Zionism and Jewish self-determination. What is entirely absent from this definition is the elementary truth that Zionism sought to enact Jewish self-determination on a land that was already inhabited by others. As a result, making Palestinians and Palestine disappear either physically (through mass killings and, especially, ethnic cleansing) or symbolically (by using the generic moniker ‘Arab’ when discussing Palestinian citizens of Israel, by changing the names of cities and villages or by altering the landscape) is essential for this benign understanding of Zionism to appear plausible. Palestinians asserting their existence and engaging with international law as Palestinians is a fundamental challenge to such efforts and, per the UA’s definition, almost presumptively antisemitic.

As Victor Kattan has shown, Palestinian scholarship is systematically marginalised within international law and international institutions. This absence is especially troubling given the fact that Palestinian scholars have created an important corpus of international legal scholarship that adopts a broad range positions on the role of international law in the colonisation of Palestine, its potential usefulness for Palestinian liberation, and the legal-political form that such liberation could take. My primary concern is not that these definitions may be ‘weaponised’ against Palestinian scholars or that they will be used to disproportionately target them, even though this will certainly be the case. My concern is that by entrenching into law or university regulations the idea that Zionism is simply an ideology of  Jewish self-determination, such definitions attempt to delegitimise and sanction any attempt to think about Zionism ‘from the standpoint of its victims’, thereby further entrenching the exclusion of Palestinians from our field.

Needless to say, international law has itself been complicit in this process of exclusion and erasure. From the fundamentally lopsided nature of the Palestine Mandate that did not even mention Palestinians explicitly to the UN General Assembly’s support for the partition of Palestine against the wishes of approximately two thirds of its inhabitants at the time, and from the structural privileges enjoyed by states (in comparison to stateless peoples) under international law to the utilisation of counter-terrorism laws and regulations against Palestinians worldwide, our field has been an active participant in the process of Palestinian dispossession and oppression. At the same time, decolonisation and its impact on international law has meant that our field also contains counter-tendencies that can be used to challenge this process of colonial erasure. Definitions of antisemitism that structurally exclude Palestinian legal scholarship from international law classrooms mean that these counter-tendencies will remain weak and under-utilised.

Concluding Thoughts

Palestinian legal scholar Noura Erakat often says that Palestine can and will set us all free. The way that I understand Noura’s words, especially since October 2023, is that Palestine will set us all free because it can help us see more clearly the limitations of our own un/freedom and, crucially, it compels us to push against these boundaries. As academic and other institutions in the Global North closed ranks in support of a nuclear state unleashing unspeakable violence against an intentionally starved population, it became obvious that declarations of inclusivity, anti-racism, academic freedom and freedom of speech had always been heavily conditional, if not entirely hollow. Therefore, defending academic freedom in regard to Palestine is not an exercise in empty universalism or anodyne liberalism. It is an effort to defend and expand universal human freedom.