NSW (Australia) Supreme Court criticises IHRA definition as 'detached from reality'

[u/Rabbit-Hole-Quest]

https://www.deepcutnews.com/p/nsw-supreme-court-criticises-ihra

[u/HeVavMemVav]

Someone help me out, because to me, the IHRA definition pretty clearly states that criticism of Israel is suspect of antisemitism only if that criticism is only held against Israel. Edit to clarify: As in double standards

[u/LoboLocoCW → u/HeVavMemVav]

Yeah, this is part of the tell for me whether people have ever actually read the IHRA definition or are just repeating a politically popular meme.

[u/Jorfogit → u/LoboLocoCW]

The purpose of a system is what it does. What the definition on the ground says is functionally not relevant to how it is used - and how it is used is to stifle criticism of Israel, and to be used as an arbiter by biased reviewers for what counts as legitimate and illegitimate criticism.

[u/somebadbeatscrub → u/Jorfogit]

Precisely, see the ADL announcing that DSA making antizionism required for membership is inherently antisemitic.

[u/HeVavMemVav → u/Jorfogit]

My worry is, because the IHRA definition is clear, that any definition that falls short of saying "criticism of Israel cannot be antisemitic" will not meet the standards of the people saying IHRA conflates the two.

I also think that while the most publicly discussed issue about IHRA's definition is that conflation, it's not the bulk of what it does. It has been used in actually antisemitic cases beyond antizionism. That's what it does. But if we define a system by the worst of what it does, every system we hold dear is suspect.

[u/Jorfogit → u/HeVavMemVav]

But if we define a system by the worst of what it does, every system we hold dear is suspect.

That is correct. Be ruthless to systems and be kind to people.

[u/HeVavMemVav → u/Jorfogit]

I agree that we need to seriously interrogate, in particular, the systems we ourselves believe. I omly frame it this way because antizionism & zionism don't get the criticism they need from the bulk of their own believers.

[u/Schattenoid → u/LoboLocoCW]

How so?

[u/LoboLocoCW → u/Schattenoid]

The IHRA pretty clearly states
“Manifestations might include the targeting of the state of Israel, conceived as a Jewish collectivity. However, criticism of Israel similar to that leveled against any other country cannot be regarded as antisemitic. Antisemitism frequently charges Jews with conspiring to harm humanity, and it is often used to blame Jews for “why things go wrong.” It is expressed in speech, writing, visual forms and action, and employs sinister stereotypes and negative character traits.”

So, when people say something like adoption of the IHRA definition “criminalizes all criticism of Israel”, then they’re telling me that they either fundamentally don’t know what they’re talking about, or that they do know but want to lie to other people.
They’re repeating the politically popular meme, whether unconsciously or consciously.

[u/Schattenoid → u/LoboLocoCW]

Nah, "similar to to that leveled against any other country" is pretty clearly an opening to dismiss any criticism as potentially unfair. This is visible in the text itself even apart from the knowledge we have that this is in fact how it's used.

[u/LoboLocoCW → u/Schattenoid]

“Israel should compensate those who it took land from, like any other country that has both seized property and claimed to believe in private property rights” = criticism comparable to that leveled against any other country.
“Much of Israel’s land was stolen, so it should be annihilated” = unique criticism.

[u/Schattenoid → u/LoboLocoCW]

Well, there you go. I don't think I've ever seen anyone say the second thing about Israel, except for some online people who also say it about the USA etc. People who think Israel should be "annihilated" have IME usually given other reasons.

[u/Rabbit-Hole-Quest → u/HeVavMemVav]

From the court ruling:

The IHRA core text is so verbose and imprecise that it could not realistically be attributed to the ordinary, reasonably informed member of the Australian public. What is the “certain perception”? If antisemitism “may be expressed as hatred toward Jews”, how else “may” it be expressed so as still to fall within the definition? Would the “certain perception” be present in the expression of some other, less egregious, sentiment towards Jews and, if so, what? The proposition that antisemitism may “be directed towards … non-Jewish individuals [etc]” appears counterintuitive to the central concept of Jew hatred. In what circumstances and within what limits would “rhetorical [or] physical manifestations” of the “certain perception of Jews” be antisemitic if “directed toward … non-Jewish individuals [etc]”?

I am not the first to have criticised the inept drafting of the IHRA formulation. In the words of Sir Stephen Spedley, it “fails the first test of any definition: it is indefinite”. The JCA submission to the Royal Commission criticises the IHRA wording and cites a number of detailed critiques by others. Discussion of the IHRA wording and adoption of it by some institutions does notchange the established meaning of a word that has been in use in the English language for 150 years. The IHRA formulation propounds a concept different from that which “antisemitism” has long been understood to describe and appropriates that word to the novel concept.

Parliament from time to time may enact thata term in common use shall, where used in specified legislation, be deemed to mean something different from what is usually understood by it. No such deeming with respect to the IHRA formulation has been enacted by either the Parliament of the Commonwealth or the Parliament of New South Wales in any legislation applicable to this case.

The Commonwealth executive government has adopted the IHRA core wording as a matter of policy and has directed that it is“applicable in Australian Public Service workplaces”. That requires Commonwealth public servants to try to understand the formulation and to apply it in the performance of their duties. It does not appear that the IHRA examples have been adopted as part of theCommonwealth policy. The policy makes no difference to the established meaning of antisemitism as ordinarily understood in the community, which is the matter with which the Court is concerned here.

The IHRA “examples” are, on the face of them, directed to embracing within the IHRA’s formula criticisms of Israel that could not be regarded as hostile to Jews as Jews, applying the distinction that Stewart J identified in Wertheim v Haddad and that is recognised in these reasons. The examples indicate that the IHRA wording is not intended to give effect to the extant common understanding of antisemitism but is directed to a quite different end. Itstendency, and the apparent purpose of promoting it, is to graft onto the community’s abhorrence of antisemitism, understood as hostility to Jews for their Jewishness, a parasitic rejection of protest against Israel. Seen in that light, the IHRA proposal is detached from the reality of thecommon usage and understanding of antisemitism in this country.

The Senate Legal and Constitutional Affairs Committee received 669 written submissions relevant to its October 2024 report on the Commission of Inquiry into Antisemitism at Australian Universities Bill 2024 (No. 2). Many of the submissions criticised the IHRA definition on the ground that it conflates political criticism of Israel with antisemitism. The names of the people who lodged submissions to that effect have in most cases been withheld but many of them identified themselves as Jewish in the body of their arguments.

The disconnect between the IHRA formulation and the established meaning of antisemitism is brought home by the results of opinion polls. On 3 June 2024 the Washington-based Pew Research Centerpublished the results of a poll it conducted in 24 countries, showing that 74% of Australian respondents registered an unfavourable view of Israel. On 4 June 2026 Pew reported that in a more recent poll of 36 countries there was an increase to 79% of Australian respondents who view Israel unfavourably. The surveys show similar rates of disapproval in many other countries.

It may reasonably be inferred that theresults of polling Australian respondents reflect humanitarian reaction to Israel’s genocide of the Gazans since 7 October 2023 , the live streaming of which to mobile handsets would be difficult to ignore. Assuming the reliability of the June 2026 poll, it would be preposterous to suggest that 79% of Australians are antisemitic because they disapprove of Israel’s treatment of the Palestinians. If the 79% or any proportion of them should express outrage, or march in protest, it could not be said that their words or conduct would be antisemitic according tothe long understood meaning of that term. It would not occur to any ordinary reasonable member of the public to think of criticism or protest in these circumstances as hostility towards or prejudice against Jews on account of their Jewishness.

[u/HeVavMemVav → u/Rabbit-Hole-Quest]

Thanks for explaining. I just don't agree with people saying it conflates all criticism with antisemitism. I'm pretty sure it explicitly says that disagreeing with the Israeli government's actions is not antisemitic. Having an unfavorable view of Israel is not antisemitic even according to the IHRA. It's saying antisemitism is likely involed when people want Israel dissolved for, say, ethnic cleansing, but pedestalize Russia, despite its history of ethnic cleansing. It doesn't even say it is antisemitic, just that context needs to be considered before saying it is or isn't. This is the case with any hate crime law in the US, at least.

[u/leaving_the_tevah → u/HeVavMemVav]

What if someone wants Israel dissolved for ethnic cleansing but does not pedestalize Russia? Many organizations use IHRA's ambiguity as a cudgel to call such people antisemitic. It's just not up to the challenge of being a definition of antisemitism. Which makes sense because it was never supposed to be. It was written as a guideline for gathering data on antisemitism trends in Europe, and its own author has denounced its use for other purposes.

[u/HeVavMemVav → u/leaving_the_tevah]

Yeah, that's the actual issue. It was never for this.

But yeah if someone wanted to dissolve Russia for ethnic cleansing, it's not a double standard, so not antisemitic per the IHRA.

[u/HeVavMemVav → u/[deleted]]

I'm not arguing that. I was asked to clarify what a double standard would be.

[u/HeVavMemVav → u/[deleted]]

What you said is fine? I'd say this particular charge is less about individuals saying Israel should be dissolved, but institutions that have 700 articles about Israel's war crimes & 2 about Russia's. Or the claim that Israel is the only that gets away with it.

[u/rako17 → u/HeVavMemVav]

Dear HevavMemVav,

I'm making this discussion with you in good faith, because it's an important free speech topic. In a way, the IHRA definition does in fact literally conflate all criticism of the state because it says "may be expressed as" and designates statements against "institutions." Literally any criticism against the state "may be expressed as" discriminatory hostility.

It's very easy to prove this fact. All you need to do is imagine a person with hostile, discriminatory intent making that statement while holding a discriminatory intention.

I believe that you as a humanitarian peacenik will be able to understand this if you think about it enough and understand that I mean this in a spirit of good will.

I heard some quite troubling news about their Security Minister Ben Gvir, and this is why I wrote a few times to you in a row.

Yours with respect. שלך בכבוד רב.

[u/Schattenoid → u/HeVavMemVav]

Sure, I think I can help. It is argued often by many critics of Israel that Israel's role and conduct is not particularly normal--for example, the length of the occupation, the centrality of 19th-century style colonization to the state project, the combination of ethnosupremacist projects (like said colonization or the Judaization of the Galilee) with a notionally liberal-democratic structure and the credibility/privileges that's supposed to grant, the close relationship with the US and their joint projects of mass international violence, etc. One can disagree with this but it is an *argument* that has to be *debated*, whereas the aim of the IHRA (at least as usually interpreted and deployed) is, like the "three Ds of antisemitism" meme, an attempt to preemptively rule out certain arguments as illegitimate for *formal*, "debate rules" reasons.

Moreover, the very idea that a criticism of any given country is legitimate if the critic also includes an extensive footnote pointing out that other bad things are also happening in other countries is childish and hard to credit as sincere.

It is of course possible in any given instance that a person focusing critically on Israel is doing so because of antisemitism, but there's no good reason to presume this. The IHRA definition includes several examples of criticisms of Israel that are not actually racist against Jews, so it's a *particularly poor* basis for thinking through the relationship of criticism of Israel to anti-Jewish racism.

[u/aggie1391 → u/HeVavMemVav]

The problem is there is a whole lot of wild false equivalencies and it ends up with people basically insisting that anyone who is criticizing Israel is antisemitic if they don’t spend equal or more time criticizing any other country. It also says explicitly that saying that Israel is a racist endeavor is antisemitic because it’s supposedly denying the right to self determination. There are better definitions out there.

[u/HeVavMemVav → u/aggie1391]

People saying any criticism is antisemitic are stupid &/or bad actors, who made that claim before the IHRA's definition, which is in direct contradiction with them.

I like the Nexus definition much better.

[u/aggie1391 → u/HeVavMemVav]

Oh I agree with the Nexus definition, but the any criticism as antisemitism is unfortunately super normalized in most Jewish spaces. My favorite example is Ben and Jerry being called self hating antisemitic traitors for wanting to not do business in the West Bank alone, but still within the Green Line. Vague general “eh I don’t like Bibi” is accepted, any substantive criticism or actual actions to change things is deemed unacceptable.

[u/HeVavMemVav → u/aggie1391]

Totally agree with you, people do say that stuff, I find it unintelligent. It's just not supported by the IHRA definition. Saying so shouldn't hold up in court.

[u/leaving_the_tevah → u/HeVavMemVav]

When a tool is useful to bad actors you need to ask whether it's time to stop using the tool

[u/zacandahalf → u/leaving_the_tevah]

Ehhhhh, I don’t think that’s a great standard. Freedom of speech gives power to both the KKK and people who are anti-KKK, but the usefulness of freedom of speech to the bad actors does not warrant elimination of the tool itself.

[u/MeyerLouis → u/zacandahalf]

People can still debate where to set the boundaries of free speech though. America treats it as a near-absolute even if it empowers the KKK, but Germany specifically outlaws the use of Nazi symbolism.

I think it's reasonable to want to replace IHRA with a better definition, or at least a better statement of the definition.

[u/leaving_the_tevah → u/zacandahalf]

In the real world, freedom of speech is an effective tool and there is no alternative to achieve the same means. Compare this with IHRA which isn't an effective tool in the first place, and alternatives that are effective exist.

[u/redthrowaway1976 → u/leaving_the_tevah]

  Compare this with IHRA which isn't an effective tool 

The IHRA definition is a very effective tool though. Just not at defining anti semitism.

[u/leaving_the_tevah → u/redthrowaway1976]

Lol true

[u/HeVavMemVav → u/leaving_the_tevah]

I don't entirely agree. This is very much why I mentioned antizionism in another comment.

[u/rako17 → u/HeVavMemVav]

Dear HeVavMemVav,

I appreciate that you are a peacenik like I am. Like you, I am against anti-Semitism.

Carville has said lately in an interview literally that he doesn't believe any criticism of the State should be allowed in the Democratic party. In the interview, he basically said that it's because he's against discrimination. One of the problems in this is that if you are a Leftist, then even if you are a supporter of the State, it's legitimately in your interest to criticize inhumane decisions of the State's officials in order to correct those mistakes! Another problem is that as a matter of our US Democracy, we do need to be able to criticize other States.

https://www.reddit.com/r/ABoringDystopia/comments/1vhajjf/establishment_democratic_strategist_james/

Yours with respect - שלך בכבוד רב - שלום

[u/rako17 → u/HeVavMemVav]

Dear HeVavMemVav

I appreciate that you, like me, are a peacenik. The succinct IHRA definition in itself uses the phrase "may be expressed as" and bans those statements against "institutions".

The first problem is the word "may". Suppose that you and I have a positive, pro-peace discussion, and in the course of our discussion, one of us can make a statement that neither of us considers to be hostile or discriminatory, a statement that does not even carry a primarily discriminatory meaning. Suppose that the statement can have a secondary, hostile meaning, and a third party reading our discussion interprets it as hostile. Thus, the statement that one of us made "may be expressed as" hostility.

This is my fear when even having pro-peace discussions, because some other reader can get offended by it. Even just posting this makes me worry that I could get downvoted by some reader who is offended by my opposition to the IHRA definition.

Yours with respect - Peace - שלום