From warfare to lawfare: Israel’s other battleground (4)
Far away from the carnage in Gaza there’s a small army of lawyers in Britain battling against critics of Israel. UK Lawyers for Israel (UKLFI) uses its members’ legal skills to combat “attempts to undermine, attack and/or delegitimise Israel, Israeli organisations, Israelis and/or supporters of Israel”.
But how, exactly, does it go about that? In a four-part report Brian Whitaker investigates …
1. The complaints department
2. Siding with the hardliners
3. A war against charities
4. Protecting Zionism
4. Protecting Zionism
With 180 solar panels on the stadium roof and a pitch of organically-grown grass trimmed by a solar-powered robot, Forest Green Rovers has been described as “the world’s greenest football club”. The driving force behind it is Dale Vince, the club’s chair. A former New Age traveller turned multi-millionaire, he owns Ecotricity, a green energy firm based nearby in Stroud, Gloucestershire. Vince is a vegan and has called for a tax on red meat to deter people from eating it. All food served at the club, to players and fans, is free from animal products.
In 2022 — a few weeks after Russian forces invaded Ukraine — Vince turned his (and the club’s) attention to Palestine and what he saw as the double standards of western governments. Posting a photo of the Palestinian flag on X/Twitter, he wrote:
“We flew this flag at FGR’s game today. In solidarity with Palestine. The conflict there has all the same ingredients as the one in Ukraine — invasion, occupation, murder of civilians, destruction of homes and hospitals — and sieges.
“What’s happening there is a disgrace to nations that collectively self identify as the ‘West’. It stands in stark contradiction to ‘our’ claims to moral superiority, civilisation and democratic values. Has to be said.”
At another match a couple of weeks later, Vince had a four-minute chat on the side of the pitch with Husam Zomlot, Palestine’s Head of Mission (ambassador) in Britain and posted a video of it on Facebook. Zomlot spoke about the difficulty organising football matches in Palestine “due to the controls and checkpoints”, and contrasted the equal application of rules in sport with their unequal application in international law.
Following that, UKLFI wrote to Vince and the Football Asssociation (as the sport’s governing body) accusing the club of discriminatory behaviour. “Mr Vince portrayed the complex issues of the Middle East in caricature and vilified Israel,” it said in a website post. “Any Jewish supporter who feels affinity with the State of Israel will have been discriminated against, and will feel belittled, alienated by the club’s actions.”
The FA ignored UKLFI’s letter and Vince sent back a robust reply, basically telling them to get lost. “Criticism of the state of Israel,” he wrote, “does not amount to racism in any form or to any degree. It is simply criticism of Israel. Frequently supporters of Israel try to present such criticism as antisemitic, you do not do so directly, but it is implied in my opinion. That is equally a false claim.”
Prompted by UKLFI’s hints of antisemitism at the club, the right-wing website Israel Hayom made the point explicit in an article headed “Antisemitism on the field: The English soccer team inciting Israel hatred”. It characterised Forest Green Rovers as a hotbed of antisemitism with “terrorist supporters in the stands” and advised Jewish fans not to attend matches “especially if they’re wearing anything identifying them as such”.
The more moderate Times of Israel then decided to check if the story was true and sent a reporter who, in his own words, “received a warm welcome from all” at the club, despite being “unmistakably Israeli”. Vince told the reporter: “I criticise Britain, I criticise the United States, I criticise anybody who I think is doing something wrong.”
He added: “We wouldn’t boycott any Israeli football team, as they are not the people who are in charge of the country. I don’t have a problem with the existence of Israel. Not at all. It’s simply criticism of the state of Israel for the occupation of what should be the state of Palestine.”
Zionism and the Equality Act
Israeli claims to Palestinian land are rooted in Zionism, a nationalist strand of Judaism with both religious and political dimensions. Since Zionism inspires many of the Israeli government’s policies, supporters of Palestinian rights often see it as fair game for criticism. In an effort to de-legitimise the critics, some of Israel’s supporters argue that Zionism is (or should be) protected by the Equality Act.
The act outlaws discrimination (along with harassment and victimisation) if based on a person’s “protected characteristics”. It lists nine such characteristics: age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex, sexual orientation. Thus Israelis are protected in the “race” category while Jews are protected under “religion or belief”. There are questions, though, as to where Zionism fits into the picture, if at all.
In 2011 that issue was at the centre of an employment tribunal case brought by Ronnie Fraser, a lecturer who described himself as a Zionist. Fraser was a member of the University and College Union (UCU) and active in the union as an advocate for Israel. His Zionism had led to “robust exchanges” and, he alleged, to “institutional antisemitism”.
Fraser claimed the union had treated him in a way that amounted to harassment under Section 26 of the Equality Act, on account of his Zionism. A key question for the tribunal, therefore, was whether Fraser’s Zionism had protected status as a “religion or belief” — and the tribunal concluded that it did not:
“It seems to us that a belief in the Zionist project or an attachment to Israel or any similar sentiment cannot amount to a protected characteristic. It is not intrinsically a part of Jewishness …”
The tribunal also concluded that Fraser’s treatment did not amount to “an intimidating, hostile, degrading, humiliating or offensive environment” — the act’s definition of harassment. Instead, it suggested people who choose to become activists should expect some comeback:
“The claimant is a campaigner. He chooses to engage in the politics of the union in support of Israel and in opposition to activists for the Palestinian cause. When a rugby player takes the field he must accept his fair share of minor injuries … Similarly, a political activist accepts the risk of being offended or hurt on occasions by things said or done by his opponents (who themselves take on a corresponding risk).
“Given his election to engage in, and persist with, a political debate which by its nature is bound to excite strong emotions, it would, we think, require special circumstances to justify a finding that such involvement had resulted in harassment. We find no special circumstances here.”
The tribunal went on to suggest Fraser’s claim had paid too little attention to freedom of expression in view of the importance attached to it by numerous legal authorities, including the European Convention on Human Rights:
“We sense a worrying disregard for pluralism, tolerance and freedom of expression, principles which the courts and tribunals are, and must be, vigilant to protect…
“If the case were marginal (which it certainly is not), we would unhesitatingly hold … that the narrow interests of the claimant must give way to the wider public interest in ensuring that freedom of expression is safeguarded.”
The tribunal not only rejected Fraser’s claims “in their totality” but made scathing comments about the case as a whole: “Lessons should be learned from this sorry saga. We greatly regret that the case was ever brought. At heart, it represents an impermissible attempt to achieve a political end by litigious means. It would be very unfortunate if an exercise of this sort were ever repeated.”
The written judgment added: “What makes this litigation doubly regrettable is its gargantuan scale.” Fraser had called 29 witnesses “largely for the purpose of offering their opinions rather than giving evidence of facts”, there had been 20 days of hearings with a bundle of evidence stretching to 23 volumes. This, the tribunal said, was manifestly excessive and disproportionate: “Despite appearances, we were not conducting a public inquiry into antisemitism but considering a legal claim for unlawful harassment.”
It was not right, the judgment added, for the limited resources of employment tribunals to be “squandered” in this way. Furthermore, the University and College Union should not have been “put to the trouble and expense of defending proceedings of this order or anything like it”. [The union’s costs were said to be more than £500,000.]
Some lawyers in the Jewish community criticised Fraser’s decision to pursue the case. Barrister Jonathan Goldberg told the Jewish Chronicle: “This enormous but legally flawed lawsuit was an act of epic folly by all concerned which will negatively impact our community for a long time to come. You only bring such showcase litigation if you are certain to win.” The paper also quoted Jonathan Turner of UKLFI as saying he had felt “deep misgivings” about the case and had feared it would fail, though he suggested that lessons could be learned on “which cases to fight and how”.
Protecting anti-Zionism
The battle over protected characteristics took an unexpected twist in February this year when a different employment tribunal decided that anti-Zionism was a protected belief. David Miller, a controversial sociology professor at Bristol university, had been dismissed amid allegations of antisemitism. The tribunal also accepted his claim that he had been discriminated against on account of his anti-Zionist beliefs.
Miller told the tribunal he regarded Zionism as “a settler-colonial and ethno-nationalist movement that seeks to assert Jewish hegemony and political control over the land of historic Palestine”. He described Zionism as a form of racism “because it necessarily calls for the displacement and disenfranchisement of non-Jews in favour of Jews, and it is therefore ideologically bound to lead to the practices of apartheid, ethnic cleansing, and genocide in pursuit of territorial control and expansion.”
Miller made clear that his anti-Zionism was not opposition or antipathy towards Jews or Judaism. The tribunal noted:
“His anti-Zionism comes from his belief and understanding of settler-colonialism as intrinsic to Zionism. The claimant also describes himself as anti-Loyalist (although not anti-Protestant) regarding Ireland and anti-Afrikaner nationalist (not anti-white) in respect of South Africa.”
Unrelated to the employment case, Miller was also a prominent member of the quasi-academic Working Group on Syria, Propaganda and Media which blamed western imperialism for the war in Syria and promoted conspiracy theories claiming the Assad regime’s chemical attacks had been faked by rebels. He currently works as a producer for Iran’s Press TV.
The tribunal concluded that Miller’s anti-Zionism qualified as a protected belief for the purposes of his discrimination claim under the Equality Act. It based this decision on the so-called Grainger criteria:
(i) The belief must be genuinely held;
(ii) It must be a belief and not an opinion or viewpoint based on the present state of information available;
(iii) It must be a belief as to a weighty and substantial aspect of human life and behaviour;
(iv) It must attain a certain level of cogency, seriousness, cohesion and importance;
(v) It must be worthy of respect in a democratic society.
Despite finding that his dismissal was unfair, the tribunal reduced his compensation by 50%, arguing that he had brought the problem upon himself through “aggressive discourse” directed at students.
The outcome of the Miller case caused some alarm in the Jewish community, with the Union of Jewish Students warning: “This may set a dangerous precedent about what can be lawfully said on campus about Jewish students and the societies at the centre of their social life, which may ultimately make Jewish students less safe”
However, Jonathan Turner, UKLFI’s chief executive, saw it as an opportunity: “Recognition that anti-Zionism (even in its most extreme form) is a protected characteristic should ensure that Zionism is also treated as a protected characteristic … This could have substantial benefits in fighting discrimination, harassment and victimisation against Jews and others for real or supposed support for Israel.”
So far, no judicial verdict has adopted Turner’s argument and recognised Zionism as a protected characteristic, though UKLFI apparently has. Since the Miller case, at least eight of its letters have either stated or strongly implied that Zionism is protected under the Equality Act.
Several of the letters complained of discrimination against Zionists. One was about a music event in east London which had included a note in its advertisement saying: “Key points: No racism, no sexism, no homophobia, no transphobia, no Zioni3sts…” Another letter concerned a student at the Slade School of Fine Art who was refusing to sell work from her degree show to Zionists. She had posted on Instagram “I will never, ever support genocide. I will not sell to Z*onist collectors and I will continue to do what I can to support human rights, peace and equal rights for all. Free Palestine”.
UKLFI also wrote to the vice-chancellor of Oxford university regarding “very audible noise from anti-Israel demonstrators” during exams. Its letter referred to Zionist students as having protected characteristics (along with Jewish and Israeli students) and argued that they were more likely than other students to “suffer detriment” as result of the protests.
“While extraneous noise can be a distraction to those sitting examinations generally, it is bound to be much more worrying for those who are themselves, or whose family, people, co-religionists and/or beliefs are the targets of such venomous hostility and threatening behaviour,” UKLFI said.
To compensate for that, UKLFI called for “appropriate adjustments” in the exam marking: “Marking of the affected examinations of students with these protected characteristics now needs to be more generous than that to other students, in order to avoid discrimination against them. Subjecting students to any detriment because of a protected characteristic contravenes section 91 of the Equality Act 2010.”
<<< Part Three
Originally published at https://al-bab.com.
