Fall 2024 No.72 הארגון הבינלאומי של עורכי-דין ומשפטנים יהודים (ע״ר) OCTOBER 7 2024
The International Association of Jewish Lawyers and Jurists Honorary President: Judge Hadassa Ben-Itto z”l (Israel) President Emeritus: Irit Kohn (Israel) Lifetime Member: Irwin Cotler, Prof. (Canada) Honorary Vice Presidents: Oreste Bisazza Terracini, Dr. (Italy), Joseph Roubache z”l (France) Board of Governors All members of the Executive Committee are members of the Board of Governors. Executive Committee President Meir Linzen (Israel) Deputy President Daniel Reisner (Israel) Vice President and Coordinator for International Organizations Pnina Sharvit Baruch (Israel) Vice President and Secretary General Rachel Levitan (Israel) Vice President and Treasurer Avraham (Avi) Doron (Israel) Vice Presidents Robert Garson (USA) Marcos Arnoldo Grabivker (Argentina) Maurizio Ruben (Italy) Chief Executive Officer Hila Kugler Ramot (Israel) Head of the Legal Center for Combating Antisemitism Avraham Yishai (Israel) Representatives to the U.N. in Geneva (UNOG) Pnina Sharvit Baruch (Israel) Hila Kugler Ramot (Israel) Representatives to U.N. Headquarters in New York Pnina Sharvit Baruch (Israel) Hila Kugler Ramot (Israel) Regina Tapoohi (USA) Richard Horowitz (USA) Mark Speiser (USA) Representative to the European Parliament Pascal Markowicz (France) Meir Linzen (Israel) Daniel Reisner (Israel) Pnina Sharvit Baruch (Israel) Rachel Levitan (Israel) Avraham (Avi) Doron (Israel) Marcos Arnoldo Grabivker (Argentina) Maurizio Ruben (Italy) Robert Garson (USA) Alan Sacks (Israel) Aleksandra Gliszczynska-Grabias (Poland) Alyza D. Lewin (USA) Amos Shapira, Prof. (Israel) Avraham Yishai (Israel) Axel Freiherr von dem Bussche, Dr. (Germany) Baruch Katzman (Israel) Calev Myers (Israel) Carlos Schlesinger (Brazil) Dalia Tal (Israel) Dan Roskis (France) Daniel Benko (Croatia) David Benjamin (Israel) David Pardes (Belgium) Edna Kaplan-Hagler, Judge (Ret.) Dr. (Israel) Elyakim Rubinstein, Justice Prof. (Israel) Ethia Simha (Israel) Graham ZelIick, Prof. (UK) Hernan Najenson (Argentina) Hila Kugler Ramot (Israel) Irit Kohn (Israel) Isaac (Tzachi) Shragay (Israel) Jacques Cohen (France) Jeremy D. Margolis (USA) Jimena Bronfman (Chile) Jonathan David (Israel) Jonathan Lux (UK) Julia Andras (Austria) Maria Canals De-Cediel, Dr. (Switzerland) Michael H. Traison (USA) Michael Kempinski (Israel) Nathan Gelbart (Germany) Noemi Gal-Or, Dr. (Canada) Olaf Ossmann (Switzerland) Pascal Markowicz (France) Regina Tapoohi (USA) Richard Horowitz (USA) Ronit Gidron-Zemach (Israel) Roy Schondorf, Dr. (Israel) Ruben Pescara (Italy) Sarah B. Biser (USA) Stephen C. Rothman, Judge (Australia) Stephen R. Greenwald (USA) Suzanne Wolfe-Martin (Malta)
Fall 2024 1 JUSTICE is published by The International Association of Jewish Lawyers and Jurists (IJL) 10 Daniel Frisch St. Tel Aviv 6473111, Israel Tel: +972 3 691 0673 Fax: +972 3 695 3855 office@ijl.org www.ijl.org © Copyright 2024 by IJL ISSN 0793-176X JUSTICE is published for members and friends of the International Association of Jewish Lawyers and Jurists. Opinions expressed in JUSTICE are those of their authors and do not necessarily reflect the views of JUSTICE or the International Association of Jewish Lawyers and Jurists. The accuracy of articles appearing in JUSTICE is the sole responsibility of their authors. Articles in English are welcome but should be preceded by a query to the IJL Advisory Board at office@ijl.org. Back issues of JUSTICE are available at www.ijl.org. JUSTICE No. 72, Fall 2024 Editor Mala Tabory, Dr. Special Advisor Irit Kohn, Adv. Advisory Editor Alan D. Stephens Academic Advisory Board Michael Bazyler, Prof. Noemi Gal-Or, Dr. Oren Gross, Prof. Moshe Hirsch, Prof. Deborah Housen-Couriel, Adv. Robert Katz, Prof. Michla Pomerance, Prof. Arie Reich, Prof. Nicholas Rostow, Prof. Robbie Sabel, Prof. Amos Shapira, Prof. Malcolm N. Shaw, Prof. Joseph H. Weiler, Prof. Legal Editorial Staff Jennifer Farrell, Esq. Gavriella Lazarus Shani Birenbaum Graphic Design Climax Design Studio Ltd. www.climax-design.co.il | 03-7516747 Cover Photo Luis Har, Tikva [Hope] Exhibit at Hostages Square, Tel Aviv | Ramat Hashnaim Association | Photo by: Ariel Mantel Contents President’s Message Meir Linzen 2 Addresses The Goal of Victory and the Pursuit of Justice in the “Swords of Iron” War Yifat Tomer Yerushalmi 4 Antisemitism in Higher Education in the U.S. – Understanding the Issue and Facing the Challenges Ronald D. Liebowitz 8 The State of Online Antisemitism Avi Mayer 13 Articles The Status of “The State of Palestine” and the United Nations General Assembly Robbie Sabel 15 Prosecuting the October 7 Terrorists: A Challenge for the Israeli Legal System Ran Cohen Rochverger 20 One Year Later: The U.S. National Strategy to Counter Antisemitism -- Legal and Operational Aspects Holly Huffnagle 26 Hamas in Historical Context: Islamism, Nazism and the Aftershocks of World War II and the Holocaust Jeffrey Herf 37 Blood Libels Are Back: The Politicization of Antisemitism since October 7 Daniel S. Mariaschin 46 Book Reviews The Fight for Justice: Lee Kreindler and Lockerbie By Ruth Kreindler and Chris Angermann Reviewed by Michael H. Traison 54 Safe Haven By Jon Silverman and Robert Sherwood Reviewed by Michael Zander 56 Phishing for Nazis: Conspiracies, Anonymous Communications and White Supremacy Networks on the Dark Web By Lev Topor Reviewed by Markus Weiss 59
2 No. 72 JUSTICE write these lines in the dramatic period between October 7, 2024 and January 27, 2025. On October 7, 2024, we marked one year since the Hamas attack against southern Israel, in which thousands of Israelis, men, women and children, civilians and soldiers were murdered, wounded, raped, and kidnapped by a criminal terror organization. This is the most severe attack against the Jewish People since the end of the Second World War and the Holocaust. On January 27, 2025, we will mark International Holocaust Remembrance Day. That day commemorates the 80th Anniversary of the Liberation of Auschwitz-Birkenau by the Red Army. My mother, Ita Linzen (née Weisman), was a survivor of Auschwitz. On January 27, 2025, I will represent the IJL at the ceremony marking the liberation, which will take place in the Auschwitz-Birkenau Camp. The Nazis and their collaborators murdered 6 million Jews during the Second World War. They had an organized plan – “The Final Solution to the Jewish Question” for the destruction of the Jews of Europe. Prior to the implementation of that plan – there was mass slaughter, the less-industrialized killing of Jews in Nazi Germany, in allied countries, and in the areas conquered by the Nazis. Today, we know that October 7, 2023 was not an isolated incident of an atrocious terror attack, similar to the events of September 11, 2001 in the United States. Today we know that October 7, 2023 was part of a much broader plan, even if the plan was not fully developed and fully implemented. Iran, and its proxies in Gaza, the West Bank, Lebanon, Syria, Iraq, and Yemen, planned one or more attacks, from the north – Lebanon, via Hezbollah, and the south, via Hamas. The plan to attack Israel aimed to bring about the collapse of the State of Israel, and to kill many of its inhabitants. We saw here a clear intention towards genocide, planned, and initiated. We must not look at October 7 as an isolated event on its own, but as part of a continuum which began long before October 7 and continues afterwards. This is an overall war against Israel on seven different fronts. In addition to the physical war, there are unprecedented diplomatic and legal attacks against the State of Israel, intended to undermine its legitimacy, and transform Israel from victim to aggressor. We have also witnessed a huge upsurge in antisemitism against Jews in the Diaspora, notably in the United States, Europe, Australia, and South Africa. We are gratified to note that on the military front, Israel is winning, even though it is paying a heavy price in loss of life and the number of wounded. The Axis of Evil led by Iran has suffered serious blows, the latest being the collapse of the regime in Syria. The Second World War came to an end with the defeat of Germany and the collapse of the Nazi regime. Likewise with the allies of Nazi Germany – fascist Italy and Japan. We are still far away from the collapse of the Axis of Evil led by Iran, and the danger that Iran will acquire nuclear weapons and use them still hovers over Israel and many other nations. Nazi Germany and its allies suffered terrible destruction in the war, and millions of citizens in those countries, especially Germany and Japan, were killed or wounded. But that is the terrible price of a terrible war. During the war that was imposed on Israel, beginning on October 7, 2023, many civilians have been killed or wounded, in particular Palestinians in Gaza, including the elderly, women and children. Hundreds of thousands have been uprooted from their homes. Hamas has used the civilian population as a human shield – most of the military facilities of Hamas and its fighters were placed in densely populated civilian surroundings. The leaders of Hamas have undoubtedly used the civilian population not only as a human shield, but also as a human weapon – physical, diplomatic, and legal – against Israel, with great success. Since the beginning of the war, Israel has found itself the target of diplomatic and legal assault, in intensity unknown since the establishment of the State, and unknown anywhere in modern times. President’s Message I Meir Linzen Photo: Idan Gross
3 Fall 2024 It is sad and depressing to witness democratic and liberal states falling into the trap of the diplomatic and legal attacks against Israel. Part of this blindness results from the failure to grasp the overall picture, namely, the comprehensive campaign by the Axis of Evil led by Iran to bring about the destruction of the State of Israel and its inhabitants. The IJL is doing its utmost in the proceedings that are taking place in the International Court of Justice (ICJ) and the International Criminal Court (ICC). The purpose of these proceedings is to undermine the legitimacy of the State of Israel and its just war. In particular, the arrest warrants issued by the ICC in The Hague against the Prime Minister of Israel and its Minister of Defense undermine the legitimacy of the State of Israel. The State of Israel is a democratic state with a strong and independent judicial system, which knows how to investigate individuals and governmental authority without fear. The proceedings in the ICC, the first against a democratic state, are a cynical challenge to the democratic foundations of the State of Israel. Nothing that I state above detracts from our position of resolve that Israel is subject to the international Laws of War and to international humanitarian legal principles. The State of Israel must prevent the suffering of civilian populations as far as possible. And of course, any deviation from domestic Israeli law or international law during military action must be investigated and adjudicated by the judicial authorities within the State of Israel. December 15, 2024
4 No. 72 JUSTICE his year, 2024, marks 100 years since the death of Franz Kafka. In Kafka's renowned work, “The Trial,” there is a passage which describes an encounter between the book's protagonist, Josef K., and the portrait artist for the judges. Josef notices that the painter depicts the Goddess of Justice with the traditional scales in her hand, but portrays her in an unusual manner – with wings and in motion. The painter explains that it is a depiction that combines two symbols – Justice and Victory. Josef replies: “Justice and Victory – it is not a good combination ... Justice must be steady and stationary, lest the scales sway and render a just verdict impossible.” Israel is currently in the midst of a war, among the harshest we have known. It began with a vile terrorist attack that shook us to our core. The effects of this war on us as a society and as a state, and in all aspects of life, both national and personal, are yet to fully reveal themselves. The captivating session ahead will specifically focus on the legal aspects of this war. At the outset of this session, I wish to emphasize that in my view, the pursuit of justice can, and in fact must occur even when the situation is not “steady and immovable,” as Kafka put it. In my eyes, the Goddesses of Justice and Victory can indeed coexist harmoniously. The ability to balance the imperative to achieve victory in war and defeat our enemies, while also ensuring adherence to the law and acting in accordance with its light, is the essence of the work of the MAG (Military Advocate General’s) Corps and the entire public legal system. Not only do the values of the pursuit of victory and respect for the rule of law not conflict with each other, they complement one another. This is not merely a phrase or a cliché; it is the reality in which we operate, a reality that guides the MAG and the military in general, even in the midst of battle, as we look towards the future warfronts, chief among them at this moment the Gaza Strip. The law of armed conflict, as set out in international law, was conceived and codified primarily by states. These states sought to legally regulate their relations across various domains, including the battlefield. The motivation of many states, especially after World War II, was to protect civilian populations and mitigate the impact of war on them – but at the same time, they did not seek to forfeit their ability to defend themselves. The laws of war were certainly not intended to weaken states or prevent them from achieving their objectives on the battlefield. Still, the modern battlefield is vastly different from what existed in the distant past. Armies no longer confront each other in open terrain until one surrenders. Warfare has become more complex – in the realm of diversified combat methods and within the urban sphere. Nonetheless, the laws of war contain within them the necessary mechanisms to provide the right response, even in highly complex combat environments – such as, for example, the Gaza Strip. This audience is surely familiar with the characteristics of the densely populated urban space within the Gaza Strip, and the despicable tactics employed by Hamas and other terrorist organizations in the area to exploit the environment. These terror organizations continue to enmesh themselves within the civilian population. This constitutes a grave and serious violation of the laws of war. This intentional violation exploits the IDF's clear and public commitment to the law and is done to make it difficult for the IDF to achieve its objectives on the battlefield. The Goal of Victory and the Pursuit of Justice in the “Swords of Iron” War* Major General Yifat Tomer Yerushalmi IDF Military Advocate General * This is a translated, edited version of an address delivered at “Democracy Under Fire” | The Annual Conference of the Rubinstein Center for Constitutional Challenges, Reichman University, on June 19, 2024. T
5 Fall 2024 Even when facing a cruel enemy that does not respect the law, we are still committed to respecting the rule of law as we pursue our military objectives. Even in this setting these principles can coexist. The laws of armed conflict allow for just this. I will provide a few examples. I first address how a military target is defined. Naturally, anything belonging to the opposing military is considered to be military. In our context, the terror armies established by terrorist organizations resemble what is more and more recognizable to us as armies. Accordingly, any part of the organized armed group we are fighting against constitutes a legitimate military target. When this terror army embeds itself deeply within the civilian population, structures and infrastructure that would otherwise be civilian by nature but that in effect are used for military purposes or are designated by the enemy for military use, become legitimate military targets under international law. Thus, Hamas systematically and intentionally turns many structures situated in the heart of the civilian population into military targets. Over the two decades during which Hamas has controlled Gaza, they have built a military force comprised of tens of thousands of fighters, and capabilities which include tens of thousands of rockets, explosives, intelligence capabilities, observation and firing posts, command and control centers. All of this has been done mostly without building classic military bases. There are tens of thousands of military structures located in civilian buildings. And above all, or rather, beneath it, Hamas has established a sprawling tunnel system. The tunnel system that is intended solely for military purposes has been built under densely populated urban areas – with thousands of tunnel entrances hidden in civilian homes, hospitals, UN facilities, schools, and mosques. The tunnels themselves, hundreds of kilometers long, pass between buildings, allowing Hamas terrorists to hide, coordinate fighting, and ambush IDF soldiers. The laws of war not only prohibit Hamas's actions but also enable us – the side which seeks to uphold international law – to operate within the legal framework and strike those military targets, despite Hamas’s choice to hide them within the urban maze of the Gaza Strip. When establishing a military target, one must consider the incidental damage that may be caused to the civilian population. I do not take lightly the harm caused to civilians. However, the very fact that incidental damage is considered and regulated by the laws of war, as well as the statement that ‘’’collateral damage” must be proportional to the military gain, demonstrates that some degree of harm to the civilian population, while regrettable, can be a possible and lawful result of engaging in combat. Another important example is the obligation to take precautions before an attack. The recognized legal duty under customary international law is to take all feasible measures to minimize expected harm to civilians or civilian property. This principle is naturally influenced by context. An example of this is the difference between the operations Israel has conducted in recent decades and the current war. In a short and limited conflict, like previous engagements in the Gaza Strip where the scale of the conflict and the level of threat allowed for significant resource allocation to damage mitigation efforts, the precautionary measures required, which are based on the resources at an army’s disposal, are more substantial. In contrast, in the current war, when Israel is under real and immediate threat from seven fronts, and human, technological, and logistical resources are stretched thin because they are simultaneously required to address numerous challenges (the level of feasible precautionary measures), the required level of precautionary measures under the law is different. A good illustration of this is the extensive use that the IDF made in the past of the practice known as “roof knocking” to issue a warning before attacks. In the current war, the use of this method is relatively less frequent, as it is not feasible to use this method and these munitions for every single attack. This does not in any way mean that the IDF is exempt from taking precautions. In fact, the IDF invests significant resources in carrying out necessary actions to mitigate harm to civilians and invests heavily in deploying appropriate precautionary measures for the characteristics of the current war. As an example, in consideration of the scale of the fighting, and the massive number of military targets located in the urban area – and beneath it – the IDF invests heavily in evacuating civilians from combat zones for their protection. As part of this effort, over fifteen million recorded phone calls and about one-hundred thousand personal phone calls have been made to warn civilians before attacks; more than fifteen million text messages have been sent; and over ten million leaflets have been dropped over the Gaza Strip, all containing clear instructions aimed at warning and allowing the population to evacuate from combat zones. All of these serve as examples of how we uphold our obligation to take precautionary measures. These are just two examples of how the laws of war
6 No. 72 JUSTICE are influenced by context and circumstance. These laws allow the IDF to conduct its war against terrorist organizations that deliberately embed themselves within civilian populations, while also performing its mission in accordance with the law. Indeed, the laws of war are intended to reduce the suffering caused to the civilian population by the fighting, but they were not created to prevent the side that seeks to adhere to them from achieving its objectives. In my view, the path to victory necessarily involves adherence to the laws of war. Adhering to these laws allows us to uphold our values as a law-abiding army of a democratic state. Operation “Iron Swords,” a war forced upon us, is a war against Hamas and other terrorist organizations, and against them alone. It is not a war against the civilian population. In this context, international law supports the achievement of the war's objectives; it does not contradict them. Adherence to the laws of war also allows us to maintain legitimacy with respect to our actions, as well as the continued support of our allies. Adherence to the laws of war is the metric used to assess our combat activities. Our commitment to the laws of war impacts the military's ability to procure supplies, the degree to which we have diplomatic support for our operations, and indeed, it is a prerequisite for our ability to continue fighting. Consider, for example, the proceedings at the International Court of Justice, where South Africa callously uses treaties and tribunals in a disingenuous manner to accuse Israel of “genocide.” The proceedings are still ongoing, but it is important to emphasize that the decisions made so far are interim decisions, primarily focusing on the necessity of allowing humanitarian aid to the civilian population – a necessity that we, as a nation, do not dispute. Although the discussion is far from over, and our ability to influence it is far from finished, our critics are already using the mere existence of the proceedings and the issuance of orders as if they indicate a determination that Israel is committing “genocide,” which is entirely untrue. Precisely for this reason, it is important to note the words of the outgoing president of the Court, Judge Joan Donoghue, who presided over the case in its early stages. She recently found it necessary to clarify in an interview with the BBC that the Court made no findings on this matter (whether it is plausible that Israel has committed genocide). Despite the many complexities arising from recent international legal proceedings, my opinion on this matter is unequivocal – the most effective way to deal with these proceedings, both with the institutions themselves and especially in mobilizing influential countries and other actors on the international stage, is to double down on our commitment to the laws of war and make sure that we act in accordance with them. Without this fundamental commitment, both in principle and in practice, we will not have the necessary tools to contend with these various arenas. A session that is included in this conference addresses the legal future of the state in the international arena. It is very difficult to know what the future will look like. I can say with confidence, however, that we in the Military Advocate General’s Corps have always worked, and will continue to work, not only to warn about developments in the international legal arena, but more fundamentally, to do our part to address them in the best way possible. We are constantly working – as we always have long before the war started – to continuously instill within the IDF the commitment to international law and all of its relevant rules. We will continue to be integrated at various levels of the IDF force-using apparatus; advising commanders and working with them to ensure that the war’s objectives are achieved in accordance with the law. At the same time, we will continue to retrospectively examine any behavior that raises suspicions of legal violations, including the laws of war, and investigate and prosecute those responsible for such violations. This is our duty as the Military Advocate General’s Corps – a unit that operates within the IDF as a partner and also as a gatekeeper. We must fulfill our role to ensure that the IDF wins its war on all fronts, and does so while upholding the law and maintaining justice, so that the Goddess of Justice and the Goddess of Victory can coexist, as seen in the story with which I began. I would like to conclude my remarks with words written by the late Professor Amnon Rubinstein, of blessed memory, to whom this conference is dedicated. Professor Rubinstein excelled in various fields. He devoted his academic work mainly to administrative and constitutional law. In one of his articles, he highlighted a fundamental principle that applies to the laws of war as it does to constitutional law. He wrote: “There are those who tend to forget that even a democratic state has the right, and in fact the duty, to defend itself and its citizens from all threats – external, security-based, and other threats.” Professor Rubinstein never forgot this fundamental truth. He believed, throughout his public and academic
7 Fall 2024 career, in our right to defend ourselves, and in the ability of the law, all law, to enable us to exercise this right. We, too, are obligated not to forget this. n Major General Tomer Yerushalmi holds an LLB degree from the Hebrew University of Jerusalem, an LLM degree from Tel Aviv University, and an additional LLM from the U.S. Army JAG School in Charlottesville, Virginia. She is also a graduate of “Afek,” the IDF Command and Staff Course. Major General Tomer Yerushalmi has served as IDF Military Advocate General since 2021. She began her military service in the MAG Corps in 1996. During her service, she has held various positions including Senior Aide to the Chief Military Prosecutor, Legal Aide to the Military Advocate General, Deputy Chief Prosecutor for Central Command, Head of the Legal Oversight Branch, and the Head of the Legislation and Communication Branches, and head of the Legislation and Legal Advice Department. Between 2007 and 2015, Major General Tomer Yerushalmi served as a Military Judge and Deputy President of the District Court responsible for the Home Front Command and the General Staff districts. Between 2019 and 2021, Tomer Yerushalmi served as the Gender Affairs Advisor to the IDF Chief of Staff.
8 No. 72 JUSTICE begin by providing some context on the rise in antisemitism in America and American higher education, and then I will talk about the work that we are doing at Brandeis to help address this reality. Over the past decade, we have seen a marked increase in antisemitism on many American campuses, mirroring what was happening in American society at large. The rise, often attributed to the emergence of Donald Trump as a major voice in American politics, came predominantly from the political right—or at least the focus of attention was primarily on the right. Trump’s common use of tropes and memes, often exaggerated and outlandish, went well beyond the norms of common public discourse and set new standards for what others would say and do in public. A good example of that was the “Unite the Right” rally in Charlottesville, Virginia, in August 2017, where white supremacists marched and chanted “Jews will not replace us.” This slogan is rooted in the white supremacist belief that non-whites, controlled by Jews, or Jews themselves, will eventually dilute the white population and ultimately replace it. Several other far right incidences of Jew hatred followed Charlottesville. Incidents of antisemitism from the left were hardly absent during this period, even before Charlottesville, but they were more subtle. They were what we might call “passive Jew hatred,” which became far more explicit following October 7, as prior to the Hamas attack, many incidents were cloaked by using Israel as an effective, surrogate target. The best example was the rise in popularity of the Boycott, Divestment, and Sanction (BDS) movement on campuses across the U.S. and within professional academic associations. Though BDS was founded in 2005, its roots are traced to the NGO Forum at the “2001 World Conference Against Racism” in Durban, South Africa—the same gathering at which Israel was declared an apartheid state. BDS resolutions began in earnest in 2009, though calls to divest from companies that profit from the Israeli occupation of the West Bank and Gaza began as early as 2002. The divisive debates on campuses served an important purpose, and that was to foster anti-Israel and sometimes antisemitic sentiment among students, faculty, and alumni. That is, the goal was and often remains less about succeeding in achieving divestment, and more about keeping the discussion on the front burner to shine a bright and negative light on Israel for more to see. Fast forward to October 7, and what had in the past been seen as “one-off” and muted antisemitic incidents, largely viewed as limited to the academy’s extreme progressive circles, was now unmasked and normalized. The protests, which erupted right after the Hamas attack, were extremely effective in vilifying Israel and, by association, Jews who identified as supporting Israel, and eventually any Jews—whether or not they claimed to be Zionists. These protests post-October 7 garnered broad support rapidly, and far more quickly than the far right’s often vile and sometimes violent public displays of antisemitism. As of May 2024, more than eighty pro-Palestinian encampments had been set up at American colleges and universities. At more than seventy of these schools, violence and arrests have occurred. As of June 6, more than 3,000 students had been arrested nationwide. The Anti-Defamation League reported that antisemitic incidents on U.S. college campuses spiked by a staggering 321 percent (to 922 incidents) this year, most of which occurred after the October 7 terrorist attacks. The causes for the remarkable popularity of what are generously but largely inaccurately billed as “proAntisemitism in Higher Education in the U.S. – Understanding the Issue and Facing the Challenges* Ronald D. Liebowitz * This is an edited version of a lecture delivered at the 21st Herzliya Conference: “On the Path of Strategic Surprises,” at Reichman University; panel on “The War in Gaza: Its Impact on Israel’s Status Internationally and Soaring Antisemitism as an Evolving Threat,” June 25, 2024. I
9 Fall 2024 Palestinian” demonstrations would require an entire conference to discern and try to understand. Much has been written about the influence of Marx, Fanon, Freire, and Said on the ideological foundations that have shaped an intellectual movement that has dominated the humanities and humanistic social sciences over the past 40 to 45 years. The result is an easy-to-digest, but overly simplistic “oppressor vs. oppressed,” “neo-Marxist,” and “intersectional” paradigm that now shapes so many syllabi in American university courses. Critics lament how too many courses in these disciplines have become less about teaching students how to think and more about indoctrination. History based on facts, the engagement in real debate, and looking for nuance in studying the human condition seem no longer to be the core of higher education, all of which has fueled the uncritical and ignorant acceptance of new definitions of genocide and settler colonialism, and an inability to acknowledge the relationship between anti-Zionism and antisemitism. Unlike past student protest movements that were focused on the Vietnam War, the Civil Rights Movement, or Women’s liberation, two things stand out from the activism of the past eight months. First, the focus of the protests is on Israel and, by extension for many of the protesters, Jews, rather than on the American government or segments of American society. And second, at virtually every university where these protests and encampments have seen intimidation, harassment, and physical altercations aimed at Jews and pro-Zionists, institutional codes of conduct have been largely ignored, trumped by the claim that such activism is a form of free speech and is protected by the First Amendment of the United States Constitution. For those less familiar with free speech rights and the First Amendment in the U.S., this claim is a red herring. The First Amendment states: Congress shall make no law…abridging the freedom of speech, or of the press; or the right of the people peaceably to ... assemble. In what is a common misunderstanding, the First Amendment extends only to the government as far as protection from the prohibition of free speech is concerned. Private property owners, which includes many of the colleges and universities that had the most visible activism and encampments, are not limited in their actions by the First Amendment. And even public institutions, which are under the jurisdiction of and funded by their respective state governments and therefore must abide by the First Amendment, are permitted to apply “time, place, and manner” restrictions on speech and all forms of free expression. One cannot, even according to the University of Chicago’s gold standard of free speech principles, say whatever you want, whenever you want, and wherever you want to. Beyond these established limits to unfettered free speech, Title VI of the United States Civil Rights Act of 1964 places restrictions on the content and manner of one’s speech. Title VI protects all students, at all levels of education in the United States, including Jewish students, from discrimination based on race, color, and national origin (including language and actual or perceived shared ancestry or ethnic characteristics). Schools must take immediate and appropriate action to respond to complaints of discrimination, which include harassment or bullying based on race, color, or national origin. Failure to comply can result in investigations and the loss of federal funding, which is significant for all research universities. Freedom of speech is the foundation to higher education and the pursuit of new knowledge and truth. It is something that should be limited only in very narrow circumstances, yet some of the current wave of pro-Palestinian activism, or what often looks more like pro-Hamas activism, should not be protected by free speech principles or the law. Many of the protests have violated both the time, place, and manner restrictions written into their universities’ codes of conduct and Title VI of the Civil Rights Act, which is why investigations of 64 colleges and universities have been initiated by the Office of Civil Rights since October 7, the overwhelming majority of them having to do with antisemitic incidents on campus. What is most puzzling, of course, has been the failure of many universities to intervene in the campus protests since October 7 when they have been willing and even eager in the past to prosecute the most minor of verbal slights, sometimes with punishment of suspension for students and dismissal for offending faculty. The hypocrisy is undeniable and it forces one to ask: “why, when Jews are the target, are the judicial processes on campus less frequently engaged and there is such a visible double standard?” Though this hypocrisy or double standard has been ongoing for some time, the aftermath of October 7 and the protests against Israel make the connection undeniable: Jews have been treated differently on our campuses, with Israel and anti-Zionism together serving as a convenient camouflage for antisemitism. I should note that not all
10 No. 72 JUSTICE activism against the war in Gaza, or against Israeli policy or the Israeli government, is antisemitic or even antiZionist. There are individuals who do not deny Israel’s right to exist as they protest for peace in the region or for the rights of Palestinians. Yet many of this year’s protests exhibit a kind of antisemitism that would not be tolerated if the same kind of “activism” had been directed at other minority groups on college campuses: first, assuming that all Jews think alike, such as holding the same opinion of the conflict and therefore are fair targets of exclusion and harassment; and second, claiming that American Jews cannot distinguish between criticizing the Israeli government, as many Israelis do and have always done, and also supporting the right of the State of Israel to exist as the homeland for the Jewish people. And so, what should and can be done to address the impact of the rise of antisemitism and anti-Zionism in the U.S. on American campuses? Clearly, no single institution, and even the efforts of the entire American academy, can erase the scourge of antisemitism—the oldest form of collective hatred, which waxes and wanes and evolves with great effectiveness. But individual institutions like Brandeis, and the American academy at large, can do things to address the current rise more effectively in Jew hatred on our campuses. Much of it does not take much beyond a willingness to exercise clarity and leadership and buck the political pressures exerted by the extreme segment of protesters. n First, and most obvious, is the equal application of one’s institution’s code of conduct. This would require, of course, a rejection of the claim that freedom of speech – as critical as it is to higher education’s core mission – has no limits, and so protecting the rights, the educational environment, and freedom of expression for all students is vital. n Second, adhering to Title VI of the Civil Rights Act of 1964, which protects individuals, in this case students on our campuses, from speech and actions that intimidate, harass, or may incite physical violence. Examples include statements like, “from the river to the sea;” “for Jews there is only one solution;” and “there is only one solution, intifada revolution,” all of which cross the line where speech becomes gratuitous speech and does nothing to advance the educational mission of the university. n Third, review and reform one’s Office of Diversity, Equity, and Inclusion: some college and university DEI offices not only exclude Jews from their mission but have also made them the scapegoats for the deep divisions among campus constituencies. They have designated Jews as white, privileged, and therefore linked to the plight of the less fortunate, ignoring both the diversity within the Jewish world and the long history of prejudice against Jews. n Fourth, strengthen the institution’s academic offerings in the history of Zionism and antisemitism, along with providing sophisticated analyses of Israeli society and culture, so that the history of the Jewish people is better understood and shared on campus. This would include holding sessions on antisemitism during new student orientation as part of explaining student rights and responsibilities when they are part of an academic community. n Fifth, as pressure mounts to boycott companies that do business in Israel, institutions should invest time and resources to look more closely at the sources of funding that support the non-peaceful anti-Israeli protests. More specifically, university leaders should stem the flow of funding to organizations and shadow organizations that promote hatred toward Israel and, by extension, to Jews. n And sixth: put limits on, and even ban, student organizations that engage in attacks on Jewish students just as quickly and frequently as administrators would act if any other student group were targets of such behavior. The de-chartering of Students for Justice in Palestine, as Brandeis did in November 2023, is a good example of rejecting hate aimed at Jews. These six “to dos” will of course not eradicate antisemitism or anti-Zionism from American campuses, but collectively they will have a positive impact on the overall campus climate for Jewish and all other students who are interested in getting an education. For Brandeis, a university founded 75 years ago, specifically in response to antisemitism and quotas on Jewish enrollment in leading American colleges and universities, there is, in my view, a responsibility to do more to address the rise of antisemitism. Though, as the university’s founding president Abram Sachar underscored from the start, Brandeis was established as a secular institution, striving to become an institution of academic excellence more like Princeton and Swarthmore than Baylor, Fordham, or Yeshiva University — the latter three all religiously based — it can be both secular and remain true to its founding purpose and values. It should also set an example for higher education in how an institution can ensure the same rights and protection for Jewish students as all other groups. We have introduced programs and initiatives that we hope will do just that.
11 Fall 2024 Two years ago, we established a partnership with Robert Kraft and his Foundation to Combat Antisemitism. Financial support from Mr. Kraft and other donors allowed us to develop a set of programs aimed at students, higher education leaders, and future professionals aspiring to lead Jewish organizations. The “Initiative to Combat Antisemitism in Higher Education for Campus Leaders” brings together deans of academic and student affairs, DEI campus leaders, deans of admissions, provosts, and presidents from institutions across the U.S. for short workshops, conferences, and four-day intensive institutes to help prepare academic leaders to shape discussions and programs related to the place of Jews on their campuses. It is clear from the first set of programs, all of which have been oversubscribed with wait lists, that knowledge of Jewish history, Judaism, Jewish peoplehood, diversity within the Jewish community, Israel, and the relationship between antisemitism and anti-Zionism is very limited, even and especially among those responsible for ensuring a safe and rich educational environment for all their students, Jews included. The early success of this initiative’s programming has brought requests from disparate groups across the country for us to adapt our program to their needs. These groups include local and regional Jewish Federations to national Jewish organizations to boards of trustees of colleges and universities to leaders and teachers in K-12 schools. A second program, supported generously by our collaboration with the Kraft family, focuses on Brandeis’s master’s degree program in Jewish Professional Leadership. This program, which for sixty years has served those who wish to lead Jewish organizations in both the U.S. and abroad, will expand its curriculum to include modules on antisemitism and anti-Zionism and become available on-line to serve a much larger population and produce more and better prepared future Jewish leaders. A third program, focused on our undergraduate students, is an endowed program that provides funding to faculty to offer new courses that introduce students to antisemitism as the subject relates to their respective disciplines. Through these discipline-based courses, students who otherwise would have never studied antisemitism are engaged in courses in varied disciplines beyond Jewish Studies. Courses so far have focused on the history of antisemitism in theater; the persistence of antisemitism in France, taught in French; antisemitism in the plays of Shakespeare; the power of antisemitism in inter-war Germany; and the intellectual history of antisemitism. Aside from the benefits to our students, these courses expand our faculty’s knowledge of antisemitism. And, judging by the positions taken by many faculties across the country, especially at our most elite institutions, preparing new courses like these should serve to dampen extremism and ignorance of the subject. A fourth program supports the research of the Cohen Center for the Study of Modern Judaism. The Cohen Center has conducted numerous detailed studies of many American Jewish communities over the past four decades and has begun recently in-depth studies of antisemitism among Jews and non-Jews on college and university campuses. The Center’s work is of great interest to the general American population and the American Jewish community, and it informs our work with higher ed and K-12 leaders. Our other university research centers and institutes that focus on Jewish history, education, gender, and Israel Studies play a leading role in the programming of lectures, panels, and conferences, helping to explain the nuance and complexities of the Israel-Hamas conflict. And finally, and I should add very importantly, we seek greater collaborations with Israeli institutions of higher education to counter the growing Boycott, Divestment, and Sanctions movement that is picking up steam at many American universities and within professional academic associations. Our goal is to increase exchanges of faculty, post-docs, and doctoral students to help redefine the narrative on our campuses about Israel, Israeli academics, and the conflict. We also want to provide American academics the opportunity to be in residence in Israel and expand their understanding of the country, its rich, diverse, and complex culture, and what it is like to live in this Middle Eastern neighborhood. To that end, we are committed to working closely with Fulbright Israel and any other organization that can help strengthen relations between the American and Israeli academies. In the United States, while there are legal protections in place for Jewish students who face discrimination and harassment, there are many organizations and individuals who are all too eager to test the boundaries established to create a safe learning environment. In addition, universities routinely face legal challenges to their speech policies and student conduct codes. We hope that attorneys throughout the world will come to the defense of the students in need of support, and will engage their American colleagues in meaningful discussions about the boundaries of free expression. In closing, because of strong ties to the American Jewish community since its founding, along with our unambiguous statement about October 7 which was issued
12 No. 72 JUSTICE on October 7, our Jewish and Israeli students feel fully supported and free to pursue their studies as their true selves. We believe the steps I have outlined, even if only a few could be pursued and implemented, would go a long way to elevating the experiences of Jewish students at other colleges and universities. Brandeis is committed, as never before, to working closely with Israeli institutions of higher education. We look forward to creating new collaborations with willing universities, businesses, and non-profit organizations, to help combat antisemitism, and to bring Jews from North America into closer contact with Israel. I welcome your partnership in helping to change the landscape of higher education in the U.S. n Prof. Ronald D. Liebowitz is President of Brandeis University.
13 Fall 2024 n Los Angeles, a mob waving Palestinian flags laid siege to a synagogue and beat Jewish worshipers in the street, days after a different mob screamed “Go back to Germany” at Jewish children outside a synagogue’s preschool. At Stanford, a university task force found that antisemitism on campus is “widespread and pernicious,” with Jewish and Israeli students feeling “ostracized, canceled, and intimidated.” In Brooklyn, a Jewish family was assaulted at their twin sons’ fifth grade graduation by another family shouting “Free Palestine” and “Death to Israel.” At Columbia, three deans were placed on leave after they were revealed to have mocked Jewish students and Hillel staff during a panel on antisemitism on campus. In Westchester, a progressive congressman who lost his primary race to a moderate challenger invoked antisemitic tropes in his concession speech, insinuating that a dark Jewish conspiracy had brought about his defeat. In Paris, French President Emmanuel Macron decried the “scourge of antisemitism” after a twelve-year-old Jewish girl was raped and threatened with murder by three underage boys, including an ex-boyfriend enraged that she had concealed her Jewishness from him. In Amsterdam, the words “No Zionists Allowed” were spray-painted on the sidewalk outside a home that had belonged to a Jewish family deported during the Holocaust. In southern Russia, assailants opened fire at synagogues in two separate cities simultaneously and then burned one of them to the ground. And all of this happened in the past week alone. The surge in antisemitism around the world in the eight months since October 7 has been nothing short of breathtaking. That the worst massacre of Jews since the Holocaust should have precipitated not an unparalleled outpouring of sympathy and support but rather an unprecedented wave of Jew-hatred has left us all reeling. In fact, it has come so fast and so furious that it has often been difficult to know where to look. Each day, it seems, another synagogue is defaced, another Israeli restaurant vandalized, another Jewish student made to feel unwelcome, another Jewish voter rendered politically homeless. And nowhere is antisemitism more prevalent than it is online. To be openly Jewish on social media platforms today is to expose oneself to unrelenting hate and abuse. Hashtags like #HitlerWasRight and #DeathToJews have proliferated. Horrific antisemitic imagery is seemingly everywhere, and even the most innocuous posts by Jewish users are often followed by cascades of blood libel, conspiracy theories, and death threats. It may be tempting to dismiss online antisemitism as unpleasant but ultimately harmless, a form of hate restricted to the virtual realm. But we know that isn’t true. Hate groups use social media platforms to organize, recruit, fundraise, and incite, to poison the discourse, spread disinformation, and put Jews on the defensive. And online hate has direct, real-world consequences. As one study found last year, increases in antisemitic speech – and particularly anti-Zionist speech – online can help predict real-world antisemitic activity, including both far-right threats and violence, and far-left antisemitic incidents, both on and off college campuses. Time and again, the perpetrators of antisemitic violence – from the Tree of Life synagogue shooter to the organizers of pro-Hamas mobs to the terrorists themselves – have been found to have engaged in virulent antisemitic activity online. Hate that starts online rarely stays there. The maelstrom of the past eight months has left many Jews feeling intimidated and alone. It has often felt as though the entire world is against us, the hate coming from so many directions at once – including from those we had thought were our friends and our allies. It would be all too easy to lose hope. And yet, out of the chaos has emerged a moment of crystal clarity. To borrow Douglas Murray’s striking imagery, it is as though a flare has gone up, briefly illuminating all and showing us exactly where everyone stands. Lines that were previously blurred have become sharp and bold: lines between good and evil, between right and wrong, between those who are with us and The State of Online Antisemitism* Avi Mayer * This is an edited address delivered at Tel Aviv University Cyber Week, panel on “Tech vs. Hate: Combating Online Antisemitism,” June 26, 2024. I
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