Abstract

As anti-Semitism rates reach historic levels, both in the United States and worldwide, more attention has been paid to methods of counteracting it through law and public policy. The most important legal approach has involved the use of the International Holocaust Remembrance Alliance’s (IHRA) 2016 Working Definition of Anti-Semitism (the “IHRA Definition” or the “Definition”) to identify incidents that should be considered motivated by Jew-hatred. This global consensus behind the IHRA Definition continues to expand rapidly, with a large volume of adoptions having taken place within the last few years. This process of this adoption has been unique in the history of human rights efforts for the richness and global character of its democratic provenance; the breadth of Jewish communal support; and the Definition’s practical usefulness. One of the most frequently mentioned, but rarely explained, claims about the International Holocaust Remembrance Alliance’s (IHRA) Working Definition of Anti-Semitism (the International Working Definition or the Definition) is that it is “non-legally binding.” Indeed, IHRA itself has stated, from the beginning, that “[o]n 26 May 2016, the Plenary in Bucharest decided to… [a]dopt the … non-legally binding working definition of antisemitism.” And yet they are all wrong, or at least out-of-date, because while it may have been non-legally binding on the date and in the context in which it was adopted, the IHRA Definition has become legally binding in various respects and in multiple jurisdictions, including the United States, as a result of actions taken by various governmental entities subsequent to the 2016 Bucharest plenary, even if it is not legally-binding in the way that some critics fear. The upshot of this confusion is that institutions routinely act as if the Definition is not applicable to them. The problem is exacerbated by misunderstandings about what it might mean for a definition to be legally binding, domestically or internationally, and whether this could entail infringement on constitutionally-protected expressive rights. The International Working Definition is legally binding to the extent that it has been made binding by appropriate legal authorities. And indeed, it has been made binding, in important if constitutionally-constrained respects, in ways that materially impact countless entities around the world including nearly all colleges and universities in the United States. This fact should be obvious to those who have followed the extraordinary speed with which the Definition has been embraced by governmental and non-governmental entities around the world. And yet it must be explained, because the movement to make IHRA effective, not just educational and symbolic, is the single most important current approach to the resurgence of global and U.S. anti-Semitism.