(Revised remarks prepared for the delivery at the Faculty of Law, University of Manitoba, Manitoba Association of Rights and Liberties Forum 21 October 2010)

Universities should ban Israel anti-apartheid weeks.  Why they should do so takes some explanation. 

There is no apartheid in Israel.  That much is obvious even from a cursory glance.

Basic to apartheid in South Africa was the denationalization of blacks because they were black and allocation of nationality in state created bantustans or homelands.  Blacks assigned to bantustans were subject to influx controls and pass laws.  The objective of apartheid was to denationalize all blacks, to assign every black to one of ten bantustans.  Blacks were forcibly removed from where they lived to their designated bantustans .

Israel has not since its inception taken away vested Israeli citizenship of even one Palestinian for the sole reason that the person is ethnic Palestinian.  Israel has not created designated territories within its borders to which it has forcibly removed its own citizens who are ethnic Palestinian .

Freedom of speech encompasses the right to be wrong.  The mere fact that Israel is not an apartheid state, not even close, in itself, does not justify banning Israel anti-apartheid weeks from universities. 

Calling Israel an apartheid state is a form of incitement to hatred against the Jewish people.  Understanding hate speech requires an understanding of the context in which the speech is uttered.  Hate speech often involves veiled or coded references.  Understanding is a work of decoding.

The charge of apartheid against Israel is one of a barrage of anti-Zionist accusations levied against Israel.  Anti-Zionism by definition is rejection of the existence of the Jewish state.  That rejection is the denial of the right to self determination of the Jewish people. 

Anti-Zionism attempts to destroy Israel through arms and words.  Words are used as hate and war propaganda. 

Because Israel is a sovereign, legal entity, anti-Zionists attempt destruction through demonization and delegitimization.  Anti-Zionists assert that Israel has no right to exist claiming that it is, by its very nature, a rights violating state.  

The position of anti-Zionists that Israel violates rights is not a conclusion based on facts but a strategy adopted to combat the existence of the state of Israel.  This strategy leads anti-Zionists to accuse Israel of every grave crime known to humanity - war crimes, crimes against humanity, genocide, colonialism, imperialism, and, not least, apartheid.

The charge that Israel is an apartheid state is connected to antisemitism both in substance and in form.   The accusations of criminality against the Jewish state lead to accusations of criminality against the Jewish community world wide as actual or presumed supporters of this allegedly criminal state.  If Israel is an apartheid state, then the Jewish community world wide supports apartheid.
 
Antisemitism linguistically means being against semitism.  It has come to mean discrimination and bigotry against Jews. Today, there in no semitism, only antisemitism. 

No one today claims to be against semitism.  Antisemitism is rather a characteristic that others attribute to antisemites.  Those who objectively we have to acknowledge manifest antisemitic attitudes or behaviour claim not to be antisemites.

However, that was not always the case.  Historically, the term antisemitism was coined by a German national Wilhelm Marr to encapsulate an ideology which he advocated, opposition to semitism.  He formed an organization which he labelled "League of antisemites".  Semitism was, to Marr and his fellow antisemites, the Jewish conspiracy to usurp and control the world. 

Jews were to the Marr League a race and not just adherents of the Jewish religion.  Analysts of propaganda techniques often refer to the big lie technique of Adolf Hitler.  The theory he expounded is that a big lie, repeated often enough, is more easily accepted than a small lie because people "they [the broad masses] would not believe that others could have the impudence to distort the truth so infamously" .  Hitler, as one can well imagine, was not touting his success in spreading his own lies.  Rather he attributed the lies to others, the Jewish race.  The big lie which he believed showed the workings of the big lie technique was that "they [the Jews] are a religious community, where as in reality they are a race". 
 
Antisemitism was opposition to what the Marr League and later the Nazis saw as a plan and encroaching reality of control of the world by the Jewish race.  The Marr League and later the Nazis opposed semitism to Germandom, opposed Jewish control of Germany to Aryan control of Germany.

There is, of course, no Jewish race and no Jewish conspiracy to control the world.  Marr and other antisemites strung together accomplishments of Jewish individuals in a wide variety of sectors and attributed those successes to a Jewish control conspiracy. 

Antisemites took some basic, real world facts and inserted them into a fantasy context.  The very achievements of the Jewish community in integrating, in contributing to the advance of German society, became proof to Marr and his fellow antisemites of the conspiracy.

When we look back on what was lost in the Holocaust, we can decry the loss of a community which had made such a contribution to the world around them.  Between 1905 and 1936, when Jews were one percent of the German general population, they were almost 40% of the German Nobel prize population.  Fourteen out of thirty eight Germans who won Nobel prizes during that period were Jewish.   

The Holocaust killed the people of Albert Einstein, Felix Mendelsohn, Alberto Modigliani, Ludwig Wittengstein, Marcel Proust, and Sigmund Freud.  One of the reasons Europe mourns the Holocaust is the many talented voices that were silenced. Yet, the Holocaust happened in part because of the wealth of talent the Jewish community produced.

If one looks at the old Nazi propaganda sheets like Julius Streicher's Der Sturmer, they were oddly similar, in one way, to Jewish ethnic papers.  Both publicised attainments of Jewish individuals, the Jewish community papers out of pride, the Nazi propaganda sheets as proof of the spreading implementation of the Jewish control conspiracy.

The very success of a wide variety of Jewish individuals contributed to the undoing of the Jewish community, reinforcing the claim of antisemites that semitism was alive, well and thriving.  Having achieved advantage through accomplishment became, for the Jewish community, a disadvantage, a factor which led to their extermination.  Jewish accomplishment became a death warrant.

There are different ways to look at the horror of this experience. One of them is surely to be wary of any claim to be against something which does not exist, particularly when what you are asked to oppose is attributed to a group identified as somehow different from your own and that difference is put in terms of race, an advantaged target and a disadvantaged opposing group.

One can see from hindsight that the problem with antisemitism was not just that antisemites got the facts wrong, that there was no Jewish race, no semitism.  A Jewish race-based conspiracy to control the world, if it had existed, would have been objectionable, reprehensible.  The danger the Wilhelm Marr League of Antisemites posed was that they opposed something which, if it had existed, would have been wrong, but did not exist, and that they located this fantasy wrongdoing in a distinct and supposedly advantaged community.

There are striking similarities between the original antisemitism of Wilhelm Marr and his colleagues and Israel anti-apartheid.  Here too we have opposition to something which does not exist, but which, if it did exist, would be reprehensible.  Here, too, we have a few simple facts - in this case, border controls, a security barrier and check points -  placed into a fantasy context.  Here, too, the wrongdoing is attributed to the other, indeed the same other, the Jew, this time Jews as a people, the Jewish state, instead of Jews as individuals.

The true apartheid of South Africa was not just separateness.  It was separation imposed by the advantaged on the disadvantaged.   The charge of Israeli apartheid, like the old specific antisemitism of Wilhelm Marr which pointed to the success of Jews in Germany, includes in the indictment the achievements of the Jewish state. 

Israel as a state has become as accomplished in the Middle East context as the Jewish community had become in German context before the rise of Hitler.  Here too we see its accomplishments turned against the Jewish community. 

A recontextualized fact in the charge of Israeli apartheid is that Palestinians in the West Bank and Gaza are disadvantaged, worse off than Israelis.  Like Wilhelm Marr's antisemites who turned a simple fact of the relative accomplishment of Jewish individuals into something nefarious -  a conspiracy of Jewish control of Germany and the rest of the world -  today's anti-Zionists turn the relative accomplishment of the Jewish state into their own targeted fantasy evils -  colonialism, imperialism and apartheid.

Apartheid, like the fantasy semitism of the Marr League, is race based.  The Marr League was not just itself racist.  It projected that racism on to the Jewish community, falsely accusing the Jewish community of racism, a race based conspiracy to control the world.  The charge of Israeli apartheid shares this characteristic as well, falsely accusing the Jewish community of racism.

Indeed, the similarity between Wilhelm Marr's old specific antisemitism and today's charge of Israeli apartheid is so striking, one has to wonder what possesses universities to stand by and do nothing.  University professors are, after all, intellectually accomplished.  What do academics not understand about the nature of Israel anti-apartheid weeks?

Academics give three basic arguments in defense of their inaction.  One is freedom of speech. A second is the absence of harm.  The third is that Jewish individuals or organizations support their position.

Freedom of speech academics take two stances.  One is free speech absolutism, that free speech is the foundation of all other human rights. 

I have written a whole book disagreeing with that point of view ;  so I hesitate to encapsulate that book into a couple of sentences.  But if it is a couple of sentences to which I am constrained, I would say this.

Free expression is important to other rights, but other rights are equally important to respect for freedom of expression.  Take any thread out of the quilt of rights and the quilt unravels.  To choose only one thread and proclaim that this is the thread that counts is arbitrary.  The right to be free from incitement to hatred and discrimination is as essential to overall respect for human rights as the right to freedom of expression.

The other freedom of speech stance of academics is that the law which must govern.  Without quarrelling about speech laws, although sometimes they do this too, free speech academics argue that anything which is legal outside the university should be permissible inside the university.

This logic ignores the reality that the university is a community, not a public space.  Just because someone is free to say something on a street corner does not mean that they should be free to say it at a university. 

The university is more akin to a work place than a park.  Indeed, for many, it is formally a work place.  Even students who are not employees of the university are working at their studies.

A work place, unlike a park, is a self contained environment.  In a work place, slurs and harassment can create a poisoned atmosphere.  Some of what can be said in public can not be said in a work place because the speech makes continued work for the targets untenable.

The Manitoba Human Rights Code, for instance, prohibits harassment in the workplace .  It also prohibits failing to take reasonable steps to end harassment.  Harassment is defined as a course of abusive or unwelcome comment made on the basis of listed characteristics.

Harassment constitutes discrimination .  Failure to take reasonable steps to end abusive or unwelcome comments is failure to combat discrimination.

Abusive or unwelcome comments shouted on a street corner are quite a different matter from those same comments made at work.  The first may well be protected by freedom of speech principles.  The second is not. 

I am not arguing here that the Manitoba Human Rights Code applies to Manitoba universities, though it does, but rather that there is an important distinction between freedom of speech writ large and freedom of speech in a university context which academic free speech advocates ignore.  Saying something hostile to a park visitor does not infringe the visitor's human rights.  Driving a student out of a university because the university does nothing to prevent a poisoned environment violates the student's human rights.

The second typical academic argument in favour of allowing Israel anti-apartheid week is that there is no harm done.  Yet, insisting on genocide in order to be convinced that the harm of incitement to genocide is real is perverse and cruel.  When it comes to incitement to hatred, waiting for the harm to be done means waiting too long.  The harm must be anticipated and prevented.

Free speech absolutists make exceptions to an insistence on actual harm.  The classic example is falsely shouting fire in a crowded room.  The reason for the exception is that shouting fire in a crowding room can lead to a stampede and trampling of those trying to flee; the danger is immediate. 

The harm of incitement to hatred is not as immediate as that.  Incitement to hatred will not normally lead to a riot in the room.  Its harm is insidious, long term, pervasive.   It is more akin to the abusive or unwelcome comments which create a poisoned work atmosphere. 

The harm of Israel anti-apartheid weeks at universities is that the toxic environment it generates drives Jewish students out.  We can already see this harm with Jewish students' avoiding the most virulent anti-Zionist universities in Canada, and, in some countries where anti-Zionism has become part of popular university culture, a drop off in Jewish university student participation overall.

Standing by while Israel anti-apartheid weeks take place may enhance the freedom of speech of hate promoters.  But it shuts out and shuts down the targets of their hatred.

We should not have to wait until Jewish students are driven out of universities in large numbers to stop Israel anti-apartheid weeks any more than we should have to wait for genocide to stop incitement to genocide.  Ideally we should stop Israel anti-apartheid weeks before they inflict their harm on even one Jewish student just as we should stop incitement to genocide before it leads to even one killing.

The third primary argument academics use to justify the existence of Israel anti-apartheid weeks at campuses is that some Jewish individuals or organizations oppose their banning.  This is an ad hominem argument, not relying on the logical force of the argument, but rather on who utters it. 

Discrimination can exist by impact as well as intent.  One can assume that Jewish individuals and organizations do not intend to foment discrimination against Jews.  However, the absence of intent does not remove the possibility of discrimination.  If the end result is discrimination, the fact that those who foment the discrimination are tolerated by some of the targets of discrimination does not excuse the incitement. 

People may be oblivious, or may not want to see.  Their ignorance or wilful blindness does not change what is in fact there.

No one Jewish individual or organization speaks for the whole Jewish community. A Jewish individual is free to excuse incitement against himself or herself.  But he or she has no authority to excuse incitement against others who are Jewish.

When I say that universities should ban Israel anti-apartheid weeks, I am not suggesting that discussion of the charge that Israel is an apartheid state is off limits.   I am, after all, talking about it here.  I was willing to participate in a debate on the subject at the University of Manitoba in March of this year.  I withdrew from the debate only after I found out that it was to be ensconced in an Israel anti-apartheid week. 

The problem then is not the issue but the assumption that Israel is an apartheid state.  One can tell from the very labelling of Israel anti-apartheid weeks that they are propaganda exercises, not discussions.

I would be opposed to a panel discussion no matter how described on, say, whether Jews kill Christian babies to use their blood to bake matzohs, because the very hosting of the discussion takes seriously a fantastical racial slur. Thankfully, there is no need for an informed discussion today to dispel the Jewish blood libel.  Informed people already today know better than to give any credence to the slur.

Sadly, that is not true of the Israel apartheid libel.  This is a libel we do have to take seriously.  An informed discussion on the topic would dispel myths and dissipate the smoke of anti-Zionist propaganda.

We have had plenty of bad examples at universities, universities which do not see the problem with Israel anti-apartheid weeks.  But we have had at least one good example, the University of Winnipeg under the leadership of its president Lloyd Axworthy . 

The anti-Zionist movement attempted an Israel anti-apartheid panel at the University of Winnipeg in 2009, putting up some posters to advertise the panel.  The president called together the senior administrators and engaged the student leadership.  Administrators met directly as well with the organizers of the event.

The event took place, but its description and content changed.  The foregone conclusion that Israel was an apartheid state disappeared.  The university made every effort to ensure that all points of view were represented.  The event became a discussion of the issue rather than a propaganda exercise.

The University went one further and hosted later its own open public event on the larger issues around Israel, the West Bank and Gaza.  The University encouraged as many representatives as possible from different communities to participate in the event.

This sort of initiative is much truer to university values than simply sitting back and abdicating the institution to hate promoters.  Abdication to propagandists who have the goal of destruction of the State of Israel and the impact of creating a hostile environment for Jewish students violates not just broader societal values; it violates university values.  A university true to its own values will make every effort to turn away from hate propaganda and towards fair, open, public, balanced discussion.

David Matas is a Winnipeg lawyer and senior honorary counsel for B'nai Brith Canada.