Palestine campaigners threatened with legal gag

March 29th will see the resumption in an Edinburgh court of an extraordinary trial with disturbing implications for freedom of expression and campaigners for Palestinian rights.

Back in August 2008, five members of the Scottish Palestine Solidarity Campaign disrupted an Edinburgh performance of the Jerusalem Quartet, who are promoted and indeed contracted to act as official ambassadors of the Israeli state and specifically the Israel Defence Forces. The protesters shouted “End the siege of Gaza”, “Boycott Israel”, “Israel is an apartheid state”, “Stand up for human rights” and similar slogans, were detained by security guards, handed over to the police and charged with a breach of the peace.

So far, so familiar, at least to political campaigners. But astonishingly, seven months later, the Procurator Fiscal, the prosecuting agency in Scotland, decided to replace the breach of the peace charge with the much more serious charge of “racially aggravated conduct.” The PF now claimed that the SPSC protesters had “made comments about Jews, Israelis, and the State of Israel… evincing malice and ill will” towards the musicians because of “their membership or presumed membership of an ethnic group”.

At the first stage of the trial In January, it was revealed that although the police had interviewed the performers and many of the 1000 strong audience, not one had reported or complained of any anti-semitic comments. What’s more, a high quality audio recording of the entire event made by the BBC confirmed that no comments of any kind had been made about Jews. As a result the PF agreed to to strike the word “Jews” from the charge. Defence counsel requested that the term “Israelis” also be removed since the only reference to “Israelis” was when one of the protesters stated: “Daniel Barenboim is an Israeli of conscience; we support all Israelis of conscience.” In this case the PF declined to amend the charge, possibly because it would then accuse the defendants of nothing more than making “comments about the State of Israel”.

Dropping the word “Jews” from the charge made the PF’s claim that the protesters evinced hostility to the Quartet because of “their membership or presumed membership of an ethnic group” problematic. When defence counsel made the point that “Israelis” are not an “ethnic group”, the PF proposed that the words “or nationality” be added to the charge.

Ironically, in Israel itself there is no such thing as “Israeli nationality”. Israeli citizens are classified into one of some 126 ‘nationalities’, including Jewish, Tatar, Samaritan, Russian, etc. Israeli citizens who have sought to change their official nationality from “Jewish” to “Israeli” have been persistently rebuffed by the Israeli courts.

So the PF is now in the position of charging the SPSC protesters with offending a “nationality” whose existence is denied by its official representatives. That, of course, is only one of the many unintentional ironies embedded in the prosecution’s muddled logic. The implication of the amended charge is that to protest against the representatives of a state is to offend or harass them because of their “membership of a nationality”. The PF’s charge could apply with equal justice, or lack thereof, to those who demonstrated against the visit of the Chinese president. The danger here is obvious: that the state is enabled to proscribe protest against the representatives of foreign countries.

What’s at issue in the Edinburgh court is not the disruptive behaviour of the defendants (which they do not deny) but the content of their slogans. If the prosecution succeeds, it could be deemed criminal to repeat the comments made by the SPSC protesters at public meetings or demonstrations or street stalls.

At the heart of the PF’s case is a dangerous muddling of concepts. The state of Israel and the ideology of Zionism are clearly entities of a different type from Jews, Judaism or Jewishness. To argue that it is racist to call Israel a racist state is to conflate these different entities, and to grant Israel an immunity that no other nation-state enjoys.

Historically, anti-Zionism was a Jewish ideology long before it appeared on anyone else’s horizon. The logic of the PF’s case would place in the dock countless Jews who rejected the idea of a Jewish nation-state with an exclusive claim to Palestine, from the prophet Amos through Spinoza and Moses Mendelssohn to the hundreds of thousands of socialists in the Bund in Russia and Eastern Europe in the early 20th century to Martin Buber and Judah Magnes in Palestine and, of course, the Chasidic sects.

The PF can however argue that its actions are in line with the recommendations of the European Union Monitoring Committee on Racism and Xenophobia and the Parliamentary Committee on Anti-Semitism, which define as anti-semitic calls for a boycott of Israel or claims “that the existence of the State of Israel is a racist endeavour”. The British government has said it accepts these recommendations but they are by no means the law of the land and remain hotly disputed on many grounds by large numbers of Jews and opponents of anti-semitism.

The most recent Community Security Trust report confirms that anti-semitic incidents increase when Israel takes unpopular actions, such as the attacks on Lebanon in 2006 and on Gaza in 2008-2009. Taking out your frustrations with Israel on Jews in general is, of course, racist and rightly criminal. The irony and tragedy is that in the west it is the Israel lobby and the Jewish establishment who have most loudly and persistently propagated the confusion between Israel and the Jews (all Jews everywhere).

Nothing has done more to weaken the fight against anti-semitism in recent years than the habit of the Israel lobby of clobbering its opponents with that opprobrium. Indiscriminate use of accusations of racism undermine legitimate and necessary ones. Now we have an arm of the British state aiding and abetting this dismal process.

The trial of the SPSC activists – long targeted by the Israel lobby because of their campaigning for boycott, divestment and sanctions – needs to be seen in conjunction with the government’s promise to provide visiting Israeli officials with immunity from prosecution. In both cases, if the government has its way, the state of Israel will be awarded exceptional legal protection while its opponents face exceptional legal handicaps.

This attempted criminalisation of political expression ought to be unacceptable even to many who support Israel or regard the boycott call as wicked. If the statements made by the SPSC protesters are to be ruled illegal, rational public debate will be arbitrarily circumscribed and we’ll all be the losers.