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Annual Fall Dialogue 2004

Understanding the “New”Antisemitism:
A Canadian Concern?

A Panel Presentation and Discussion with:
Dr. Holger Herwig, Dr. Alan Dowty and Dr. Chris Levy
Sunday, November 7, 2004
 

Summaries of the Presentations

Holger H. Herwig

Anti-Semitism: A Constant

From the earliest writings of St. Augustine to the Hamas Convenant of 1988, it seems to me, anti-Semitism has been front and centre in many parts of the world. It embodies fully the well-known French saying, “the more it changes, the more it stays the same.” It easily transpires gender, age, culture, or nation. At the height of the Dreyfus case in the 1890s, the great French novelist Emile Zola, seeing students from the Sorbonne University riot in defence of a forger, Esterhazy, and against an innocent army captain, Dreyfus, was stunned. “Can young people be anti-Semitic? Is that possible? Can it be that their fresh, new brains have already been deranged by that idiotic poison?” It can.

After a brief overview of the litany of crimes against Jewish people and property in Canada and indeed around the world in 2002, I then sketched out what I termed three readily identifiable and historical forms of anti-Semitism. The first was what I call “the religious roots.” From Pope Gregory the Great (590-604) to the Crusades, from the 4th Lateran Council of 1215 to Pope Paul IV’s 1555 Bull Cum Nimis, and down to Martin Luther, Christians had marginalized and indeed persecuted what once were their fellow religious travelers. The Enlightenment and the French Revolution brought great hopes for “emancipation,” but only at an impossible price—“assimilation,” or better, baptism.

I then talked about the second kind of anti-Semitism, the turn to pseudo-science with Paul de la Garde, Richard Wagner, the Comte de Gobineau, H.S. Chamberlain, among others. These writers identified the Jews as a race; they made blood the determinant of society. They were attractive to a readership of people displaced or doomed to the periphery by industrialization: artisans, craftsmen, guildsmen, in short, the lower middle class. Adolf Hitler in Vienna in the 1890s was but one convert.

Last but not least, I talked about the third wave of anti-Semitism, one I call “anti-Israel” or “anti-Zionism.” It is based on the alleged “Jewish world plot” laid down in the notorious forgeries of 1903-07 called “The Protocols of the Elders of Zion.” It is taken up almost verbatim especially in Articles 22, 28, and 32 of the Hamas Covenant of 1988. The broader background to this new anti-Semitism consists of the instability engendered by globalization; the insecurity of the post-Cold War world; the still undigested trauma of 9/11; and western society’s insane “therapeutic ethic” that demands that victims and perpetrators all “feel the pain,” that both equally are “victims.”

Finally, I closed with reference to Canada’s legal attempts to deal with radical anti-Semitism by way of Sections 318 and 319 of the Criminal Code of Canada, and Section 13 of the Canadian Human Rights Act. Professor Chris Levy then expertly dissected those pieces of legislation.

Prof. Holger H. Herwig is Canada Research Chair in Military and Strategic Studies and Director of Research and Graduate Studies, University of Calgary.

Alan Dowty

Anti-Semitism and the Arab-Israel Conflict

There is a tendency to regard anti-Semitism as a famous judge once said of pornography: we don't know how to define it, but we know it when we see it. Defining it in relation to the Arab-Israel conflict is even trickier, since conflicts have "real" clashes of interest that cause hostility. The Arab-Israel conflict has at its core such a real clash: the fight between two peoples over one piece of land. When Israelis attribute terror attacks primarily to anti-Semitism, as polls indicate that a clear majority do, they are doing themselves and their opponents both a disservice.

Of course conflicts do produce racial hatred, and the Arab-Israel conflict is no exception. There are attacks on Jews as Jews, for example on Jewish targets outside of Israel. How does one distinguish anti-Semitism from anti-Israel statements or actions that are not racially based? Common sense says that the latter are directed at particular policies or leaders, while the former are directed toward Israelis or Jews as a people. We usually have no problem in identifying negative attitudes or behavior toward Jews generally, whether the perpetrator is Charles de Gaulle ("a domineering people") or a Saudi cleric calling for the killing of Jews. On the other hand, criticism of Israeli policies can be very hostile without necessarily crossing the line into racist generalizations (for example, Michael Moore's public statements).

The hallmarks of anti-Semitism are clearly recognizable: the claim that Jews wield insidious power, or that Jewish history (the First and Second Temples, etc.) is an invention, or that the Holocaust didn't happen. There is also the question of double standards, when criticism of Israeli actions is harsher than that of similar actions elsewhere. Since this indicates a negative attitude toward Jews as a group, it seems clear that such double standards are anti-Semitic in content if not in intent.

Using such standards, anti-Zionism would not necessarily be anti-Semitism if the anti-Zionist is equally opposed to all national movements and all nation-states. But if it is only a Jewish state that is condemned, this is clearly a case of double standards — unless others are allowed to determine whether Jews are a people or not, and surely this is something that only Jews can decide.

In sum, it is clear that in the "new" anti-Semitism the Arab-Israel conflict is being widely employed as a disguise for racist attitudes, but that the disguises are not hard to unmask. In the end, we still know it when we see it.

Prof. Alan Dowty is Kahanoff Chair in Israel Studies, Department of Political Science
University of Calgary and Professor Emeritus of Political Science at Notre Dame University.

Chris Levy

Legal recourse available in Canada and internationally

1. International Conventions and Treaties
Signing and ratifying these is the responsibility of the Federal Government. Even when the Federal Government does both of these things, Conventions or Treaties do not automatically become part of the law of Canada. It requires legislation to make them part of the law, although Courts will sometimes look at them even in the absence of new legislation if there is an argument that existing legislation adequately responds to Canada’s obligations under a Convention or Treaty that has been signed and ratified and has come in to force as an international instrument.

2. Resolutions of International Bodies
Resolutions of such bodies as the United Nations are essentially political rather than legal in nature, to be implemented by the Executive (the Cabinet), rather than the Courts. They can be made part of the law but that will require new legislation.

3. Federal and Provincial Roles
Canada’s Constitution, Sections 91 and 92, sets out the powers of the Federal and the Provincial Governments respectively. While the Federal government has responsibility for Foreign Affairs, Trade and Commerce, Criminal Law, Interprovincial Undertakings and Telecommunications among other things, the Provincial Governments have responsibility for Property and Civil Rights among other things. The Federal Government cannot use its desire to make an International Convention etc. that it has signed and ratified part of the law as an excuse to pass legislation that intrudes into areas of Provincial responsibility. Accordingly in trying to deal with Racial Hatred, the Federal Government has tended to rely on its power to make Criminal Law and it power to regulate Telecommunications, including the internet and the telephone. This avoids the problem of the Federal government trying to pass laws that deal directly with Civil Rights, which is a Provincial Responsibility.

4. The Canadian Human Rights Act, s.13
This is a Federal Act. S.3, prohibits discrimination on grounds of “race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability and conviction for which a pardon has not been granted” S.13 prohibits using telecommunication facilities (except radio and television) to bring a person or persons into hatred or contempt where those persons are identifiable on the basis of one of the grounds listed in s.3. It is not at all clear that anti-Zionist statements fall within any of the grounds listed in s.3, although an anti-Semitic statement clearly does and s.13 has been used in several such cases, mainly involving telephone ‘hot lines’. It would likely be necessary to argue that an anti-Zionist statement is in fact nothing more than a colourable form of anti-Semitism. Such an argument may not succeed. An alleged breach of s.13 results in an administrative hearing before the Canadian Human Rights Commission. The remedies that the Commission itself can grant are relatively limited, but the Commission can seek a Court Order (Injunction) from the Federal court of Canada to stop the ongoing use of telecommunications facilities in violation of s.13. If the Injunction is granted, breach of it can result in imprisonment. However, it is very difficult in the case of the internet to identify an actual human being who is behind a web Site, and even if identifiable that human being may very well not be in Canada and is therefore largely beyond the reach of the Canadian courts.

5. The Criminal Code of Canada
The main sections that deal with racial discrimination are S. 318 and 319. S.318 deals with advocating genocide. S.319 deals with publicly inciting or willfully promoting hatred. In all cases the offence must be against an “identifiable group”, which is defined as “any section of the public distinguished by colour, race, religion or ethnic origin”. Again the problem is whether anti-Zionism will fit within this definition. Also, in relation to s.319, there are specific defences to a charge, including proving that the statements made are true; expressing in good faith an opinion on a religious subject; and that the statements are reasonably believed to be true by the maker and relate to a topic of public interest that it is in the public interest to discuss. In these circumstances, even if anti-Zionism is within s.319 any trial is likely to turn into something of a circus and provide the accused with a very public forum to attempt to justify his statements. This can sometimes result in much greater publicity for even criminal views than was given to the original statements of those views which are the reason for the prosecution.

S.181 prohibits spreading false news, and has been used in a few prosecutions for making anti-Semitic statements that involve Holocaust denial. Here the problem is that the prosecution has to prove that the “facts” stated are false. This has led to extremely lengthy trials with historians or alleged historians on both sides of the case presenting evidence to support their views. Again, the anti-Semitic views get a great deal of free publicity in the news media.

6. Provincial Human Rights Legislation
This legislation is somewhat different in each Province, and Alberta’s is somewhat more limited than that in some of the other Provinces. The Alberta act is the Human Rights, Citizenship and Multiculturalism Act. However, it does prohibit in s.3 and 4 publication of material likely discriminate against people or expose them to hatred or contempt, and also discrimination in the provision of services. Discrimination is defined as relating to “race, religious beliefs, colour, gender, physical disability, mental disability, age, ancestry, place of origin, marital status, source of income or family status”. Even in this long list it is not easy to see where anti-Zionism fits. There is a long list of defences, and essentially the same range of problems as arise Federally under both the Human Rights Act and the Criminal Code.

7. Conclusion
Overall it is difficult to resist the conclusion that in the present state of Canadian and Alberta law anti-Zionist (as opposed to anti-Semitic) statements may be almost impossible to deal with. If anti-Zionist statements are seen as essentially political in nature they will probably fall within the “free speech” guarantees of the Charter of Rights and therefore be outside the various prohibited grounds of discrimination set out in the various laws we have considered. Amending the legislation will be difficult politically unless the equation between anti-Semitism and anti-Zionism can be clearly made.

Prof. Chris Levy is Associate Dean of the Faculty of Law, University of Calgary, where he teaches Criminal Law and is involved in law reform activities.