Tuesday, February 22, 2022
Elder of ZiyonPalestinian prime minister Muhammad Shtayyeh thanked the the Constitutional Court in South Africa, which - he claimed - ruled that anti-Zionism is not considered anti-Semitism.
He said, "We demand that the rest of the countries adopt this decision as a reference and a legal precedent."
The court said no such thing. It ruled that in some circumstances, it can be clear that an anti-Zionist statement can be antisemitic, and it obliged someone whose antisemitism was couched in "anti-Zionist" terms to apologize.
I read the full ruling. It attempts to balance the imperatives of free speech against those of combating hate. Although I cannot find the full submission, the ruling praised the amicus curiae of the South African Holocaust and Genocide Foundation (SAHGF) which, it says, helped it distinguish between anti-Zionism and antisemitism:
[I]t is noteworthy that the preceding analysis and this Court’s jurisprudence, most recently detailed in Qwelane, reveals that words cannot always be taken for their plain meaning. The first amicus aptly emphasised that there exists a long narrative of anti-Jewish rhetoric. This has dominated world history for thousands of years, and culminated in the Holocaust. Due regard to this context and history must be observed when dealing with expressions that are allegedly anti-Semitic, because many socially acceptable words may become a proxy for anti-Semitic sentiments. Focusing on the plain text and ignoring the objectively ascertainable subtext would be ignorant, inappropriate and antithetical to what our Constitution demands.
This is accurate, and it describes perfectly why anti-Zionism is antisemitism. There are no comparable movements against any other sort of nationalism as there are against Zionism. Very few critics of China call themselves "anti-Sinoists." The very existence of the phrase "anti-Zionist" as a unique expression of opposition to self-determination of Jews is what proves its is fundamentally antisemitic, and it is exactly a proxy for modern antisemitism.
The main problem with the South African ruling can be seen in this parenthetical phrase:
In response, Mr Masuku relied on the expert evidence of Prof Friedman to show that there was a distinction between anti-Semitism and legitimate criticism of the State of Israel (anti-Zionism).
I don't have the text of Prof. Friedman's testimony but the judgment text here indicates that the Constitutional Court accepts a definition of anti-Zionism is "legitimate criticism of the State of Israel." That is the opposite of the truth: legitimate criticism of Israel is in no way "anti-Zionism." It is the obsessive, lie-filled, hateful and illegitimate criticism of Israel that is anti-Zionism. That same hate behind anti-Zionism has animated antisemitism for millennia.
It is noteworthy that the testimony of Pref. Friedman, here referred to as "expert," was openly derided in the earlier Equality Court case at which he gave that testimony:
The evidence of the respondents’ expert witness, Friedman, is of course, opposing that of the Commission’s witnesses. I deal with the contrasting views below. First, the trite approach to such opposing views. Expert witnesses are usually required to assist the Court, and not the party for whom he/she testifies....[It] is difficult, in the circumstances of this matter, to accept the evidence of Friedman. I say this for the following brief reasons: the opinion does not demonstrate convincingly that Friedman is indeed an expert on the issue of anti-Semitism, and its proper inter-relationship with anti-Zionism in the context of the broader Israeli-Palestinian conflict. Although the evidence shows that Friedman has immense interest in these matters, these have not been the focus of his academic career. In addition, he somewhat showed that he is partisan which on its own, offends the approach and principles to expert testimony described in the preceding paragraph of this judgment.
Whether the Constitutional Court was quoting Friedman or added the parenthetical phrase on its own, if the court has an incorrect definition of anti-Zionism, it will sometimes rule incorrectly.
There is one other major flaw in the judgment.
It quotes an earlier case to determine whether a statement is racist: it is “accepted that the test to determine whether the use of the words is racist is objective – whether a reasonable, objective and informed person, on hearing the words, would perceive them to be racist or derogatory.”
This definition excludes the use and power of dog-whistles - statements that include meanings that would be clear for a specific, intended audience but which would go over the heads of most "reasonable, objective and informed persons."
Dog-whistles are not always intended as hidden messages for one's supporters. Sometimes they are intended to cause pain to one's opponents.
There were three statements that Masuku made at an anti-Israel rally at Wits University that the court ruled did not cross the threshold into hate speech and direct threats against the Jewish community:
“COSATU has got members here even on this campus; we can make sure that for that side it will be hell.”“[T]he following things are going to apply: any South African family, I want to repeat it so that it is clear for anyone, any South African family who sends its son or daughter to be part of the Israel Defence Force must not blame us when something happens to them with immediate effect.”“COSATU is with you, we will do everything to make sure that whether it’s at Wits, whether it’s at Orange Grove, anyone who does not support equality and dignity, who does not support rights of other people must face the consequences even if it means that we will do something that may necessarily cause what is regarded as harm.”
Orange Grove is a Jewish neighborhood. But the court ruled that Masuku's might not have meant that as an attack on the Jewish community using this tortured logic:
In these statements, Mr Masuku cajoles that he would confront his opponents whether it was at Wits University or whether it was at Orange Grove. The HRC contended, and the Equality Court accepted, that the reference to Orange Grove was meant as a reference to a predominately Jewish neighbourhood. Mr Masuku contended that his reference to Wits University and Orange Grove was simply because these were the sites of the most recent marches and rallies, and of the offices of two major defenders of Israel’s actions in Gaza (which are also prominent Jewish associations). It is not conclusive either way that a reasonable reader who would have known that Orange Grove was a predominately Jewish suburb would also not have been aware of the march to the offices of the SAJBD and SAZF which are in Raedene, a small suburb between Orange Grove and Linksfield.
If the offices of those two organizations aren't in Orange Grove itself, how much more evidence do you need to realize that Masuku's reference to Orange Grove was specifically towards Jews? This was a clear dog-whistle to threaten Jews in a way that Jews (and antisemites!) would immediately recognize, yet that a "reasonable reader" might not understand.
This shows that the "reasonable reader" test is not enough for determining whether a statement is hate speech.
While it is welcome that the court ruled that Masuku must apologize for his statement where he compared the Jewish community to Hitler, these two flaws could hurt future judgments on similar cases.
