The University of Manitoba Student Union [UMSU] is scheduled to hear a motion this week, which if passed would in my view arguably violate U of M’s Respectful Work and Learning Environment Policy, and severely infringe the academic freedom and freedom of expression of supporters of Israel/ Jewish students on campus. As well it would arguably violate the Human Rights Code for being discriminatory against Zionist/Jewish students. It will make U of M campus a hostile climate for any Jewish or other student who believes in the Jewish people’s right to self-determination (i.e. in Israel’s right to exist), and increase the likelihood of these students being harassed/intimidated on campus. It would also potentially affect future student exchange programs with Israel, such as those which have occurred in the Asper School of Business and elsewhere, and could have far reaching other untold consequences.

The proposed resolution would adopt the Canadian Arab Lawyers Association’s definition of anti-Palestinian racism into the “UMSU supports” part of its Position Statement, a definition that to the best of my knowledge has not been adopted by any other student union across the country. I will proceed to outline the legal issues I see at play here.

The definition at issue states:

Anti-Palestinian racism is a form of anti-Arab racism that silences, excludes, erases, stereotypes, defames or dehumanizes Palestinians or their narratives. Anti-Palestinian racism takes various forms including: denying the Nakba and justifying violence against Palestinians; failing to acknowledge Palestinians as an Indigenous people with a collective identity, belonging and rights in relation to occupied and historic Palestine; erasing the human rights and equal dignity and worth of Palestinians; excluding or pressuring others to exclude Palestinian perspectives, Palestinians and their allies; defaming Palestinians and their allies with slander such as being inherently antisemitic, a terrorist threat/sympathizer or opposed to democratic values.

JUSTIFICATION OF VIOLENCE

Justification of Violence is defined as including: equating the oppressed with the oppressors or blaming the oppressed for the actions of the oppressor or rationalizing the use of violence against Palestinians. The violence can be against Palestinians in Palestine or Israel or in the diaspora and can be committed against Palestinian lands (i.e. seizing lands, damaging natural resources), property (i.e. vandalizing or demolishing homes, businesses, religious centres), and persons (i.e. physical and psychological harms).

My thoughts: 1.There is no qualifier that says if Palestinians (i.e. such as Hamas) use violence against innocent civilians or take them hostage, then Israel has any right of self defense of any kind. Saying Israel has a right to self defense of any kind, would violate the definition of this proposed motion. (i.e. If a speaker said Israel has the right to use force to capture the perpetrators of Oct 7, or free the hostages that would run afoul of this definition above.) This would mean a speaker could not say Zionists have a right to defend themselves at all against violence initiated by Palestinian Islamic Jihad or Hamas etc. 

Further, the wording of this motion suggests that if Palestinian students on UMSU premises (who are in the “diaspora” ) harassed or threatened to use violence against Israeli/ Zionist students on UMSU premises, these students could not defend themselves, even if there was no campus security around to help them. This definition arguably would allow for and/or encourages harassment and/or intimidation against Israeli/Zionist/Jewish students in violation of U of M’s Respectful Work and Learning Environment policy.

2. Also, Israeli Jews are by implication defined as the "oppressors" in this definition, such that any Zionist student who supports Israel's right to exist (and the Jewish people's right to self-determination) necessarily will be labelled by UMSU as an "oppressor," which is discriminatory, and holds them up to hatred and contempt, and arguably violates U of M Respectful Work and Learning Environment Policy. 

EXCLUDING PALESTINIANS AND ALLIES

The definition of “EXCLUDING PALESTINIANS AND ALLIES includes: barring the hiring or appointment of Palestinians or others who support Palestinian human rights and movements; denying funding or sponsorship for projects that include Palestinian narratives; denying proposals or submissions for projects or works related to Palestine; erasing mention of Palestine or Palestinian narratives in mainstream media; excluding Palestinians from speaking opportunities on topics related to Palestine; onerous requirements for hosting Palestinian events; omitting references to Palestinian identity or cultural contributions.”

1. My thoughts: Any exchange program with Israeli Universities would potentially violate UMSU’s policy as per the above wording. If UMSU adopts this definition, this could intimidate students who wished to go on such exchange programs from doing so, as they will be referred to as racist settler/colonialist oppressors. Would the U of M administration potentially be intimidated by this definition and walk away from any future exchange programs involving Israel ? Note, that the Asper School of Business historically has had exchange programs with Israel.

FAILING TO ACKNOWLEDGE PALESTINIANS AS AN INDIGENOUS PEOPLE

The definition of FAILING TO ACKNOWLEDGE PALESTINIANS AS AN INDIGENOUS PEOPLE includes: “denying the existence of Palestine and Palestinians as a people; denying the settler colonialization of Palestine; appropriating the culture, architecture, language, traditions, clothing, cuisine, music, arts etc. of Palestinians without acknowledgement of its origins; erasing Palestinian ancestral and present-day ties to their land and communities and denying their right of return; benefiting from, or complicity with, the removal of Palestinians from their lands; blocking redress of Palestinians in pursuit of their rights.

1. My comments: This means one cannot say Jews are indigenous to the HolyLand, without running afoul of this definition (notwithstanding Jews have had 3000 years of continuous presence in the area and, archaeological, DNA and historical evidence, such as the Bible and the Dead Sea Scrolls clearly support Jewish people’s indigeneity). The vast majority of Jewish students see Israel as part of their identity. Even if UMSU says Palestinians are indigenous, so too are Jews, but Israeli Jews in this definition are defined as "settler colonialists." This means that students who support Israel's right to exist are being automatically labelled as "settler colonialists" and this will arguably make these Israeli/Zionist/Jewish students be the object of hatred and contempt by their fellow students. They will be isolated, excluded from the student body politic, made to feel uncomfortable and unwelcome, and be more likely to hide their identity, all of which arguably violates UM’s Respectful Work and Learning Environment Policy. Is this definition also not a violation of U of M’s Equity, Diversity, Inclusion Policies, in that the narrative of Zionist students is completely being erased?

2. Regarding “denying the existence of Palestine and Palestinians as a people”, it should be noted that the definition at issue does not say as of when the Palestinians became a people.

The 1947 UN partition plan referred to a Jewish and Arab state, not a Palestinian Arab state.

NAKBA DENIAL

NAKBA DENIAL is defined as including: claims that there are no such people called Palestinians or no state of Palestine exists; that Palestinians do not originate from a land called Palestine; denial that Palestinians were ethnically cleansed (along with accompanying crimes) to create the state of Israel; rejecting the inalienable rights of Palestinian refugees including the right of return; appropriation of Palestinian history and culture without recognizing their origins; erasure of Palestinians’ connections to the land (i.e. emotional, historical, ancestral, cultural, economic).

1. My thoughts: This definition prevents statements suggesting that the abiding cause of the Nakba was the refusal of the Palestinian leadership/and Arab states to be willing to compromise and accept the1947 UN Partition Plan. Instead the surrounding Arab states and Mufti of Jerusalem Haj Amin Al Husseini reacted to the declaration of the nascent State of Israel by militarily invading it and attempting to destroy it. Arab rejectionism is the initial and abiding cause of the Middle East conflict, but according to this Nakba Denial definition, this point of view that could not be presented on UMSU premises. Israel unequivocally accepted the 1947 Partition Plan, and in its Declaration of Independence, it offered peace to its Arab inhabitants, and today approx 20% of Israel citizens are Muslim. (As an aside the Mufti also rejected the earlier 1937 Peel Commission plan.)

2. UNRWA defines Palestinian refugees to include all of the descendants of Palestinian refugees displaced in the 1948 war such that there are now close to 6 million Palestinian refugees as per UNRWA. The definition of “Nakba Denial” arguably means that anyone who says that Palestinian refugees and their descendants who now number 6 million people do not have an inalienable right to return to Pre-1967 Israel (Israel proper) but rather only to a future Palestinian state in the West bank, Gaza and East Jerusalem would be engaged in “Nakba Denial.” The definition of “Nakba Denial” would mean that anyone who says that the Palestinians ought not be able to exercise their right of return en mass to Israel proper because the people of Israel now living in the country do not agree to this, would be engaged in Nakba Denial speech. But the call for a return en masse of 6 million people to villages that no longer exist within Israel proper, is for all practical purposes a call for the elimination/destruction of the State of Israel, and a call to eliminate the right of the Jewish people to self-determination. It is for all practical purposes a call to flood Israel with a new population, against the will of the existing Jewish majority population of the country.

There is nothing in this definition that limits/qualifies the meaning of "the right of return" with wording "as agreed to by the State of Israel." The definition of “Nakba Denial” reasonably can be interpreted for all practical purposes as a call for violence against the people of Israel, should they not agree to allow the return en masse of all Palestinian refugees and descendants. Note also there is nothing in the definition of “Nakba Denial” that includes that Palestinians who do not wish to return to a new Palestinian state in the West Bank, Gaza and East Jerusalem, living alongside Israel, have the right to receive financial compensation in lieu of the right of return. That means any academic or pollster or student advocating for the right of Palestinians to receive compensation in place of the right of return en masse to Israel proper would run afoul of the definition of “Nakba Denial”.

Note also that the 2000 Clinton Parameters called for a variety of realistic options including settlement of Palestinian refugees in a separate Palestinian state, as part of a two state solution. Any speaker who favoured such a solution would run afoul of “Nakba Denial.” Further, it is noted that UN Resolution 194 was written in the context of return of Palestinian refugees who were displaced in the 1948 war (most of whom are no longer alive), not all of their descendants.

The definition of “Nakba Denial” is clearly a severe infringement on free speech, academic freedom, and muzzles voices who are in favour of a two state solution, Canada’s stated policy.

2. This “Nakba Denial” definition also arguably runs afoul of UM's Respectful Work and Learning Environment Policy, as per the statement by President Michael Benarroch's outlined below as for all practical purposes it none other than code for the destruction of Israel, which Benarroch says "can reasonably be interpreted as a call for violence against the people within that state." 

President Benarroch was asked by a Parliamentary Committee, which includes MP Ben Carr, as follows: “ Is the call for genocide against the Jewish people, or the elimination of the State of Israel, a violation of your university’s code of conduct?”

In a January 16, 2024 letter to the Parliamentary Committee, Benarroch answered, “To be clear, a call on UM campuses for genocide of Jewish people or of any group of people is unacceptable and would be a violation of our Respectful Work and Learning Environment policy. It is also a breach of the Manitoba Human Rights Code and we would engage authorities to investigate Hate Speech under the Canadian Criminal Code. The call for the elimination of the State of Israel, or any other state, can reasonably be interpreted as a call for violence against the people within that state and as such would constitute a violation of our policies.”

It is respectfully submitted, that the definition of “Nakba Denial” runs afoul of the above words by President Benarroch in that for all practical purposes it is code for the destruction of Israel, which is a call for violence against people in that State. This arguably will make for a hostile climate towards anyone who supports the very existence of Israel as a Jewish homeland on UM campus.

There is a very difficult and complex Israeli-Palestinian conflict and Israel-Arab conflict that is ongoing and has been ongoing for decades. U of M has the obligation to ensure that both sides to the conflict can be heard on its campus. If a U of M nursing student is allowed to post a cartoon comparing Israelis to Nazis, then surely Zionist/Israeli/Jewish students ought to be protected in adopting reasoned positions on UMSU premises (which this motion prevents), without these students fearing intimidation/harassment or threats of violence.

About the author: Rhonda Spivak received a Bachelor of Arts with Distinction from the U of M (1985) and an L.L.B from the U of M (1989). In 1996, she received her call to the Israeli Bar after articling at the Association for Civil Rights in Israel in its Jerusalem office. She practiced constitutional law at the MB Department of Justice for a number of years, before beginning the Winnipeg Jewish Review. She has travelled extensively as a journalist not only in Israel, but in Ramallah, Bethlehem, Jericho and other areas under the Palestinian Authority, as well as in Jordan.