Anti-Zionism and antisemitism: When definitions become legal standards

Law360 Canada (October 8, 2026, 1:57 PM EDT) --

Faisal Kutty

Speech about Israel and Zionism can become antisemitic without treating opposition to Zionism as inherently antisemitic. In that respect, the Jerusalem Declaration on Antisemitism and the Nexus Document offer a more legally workable approach. They do not attempt to settle contested questions about Zionism in advance. Instead, they leave room to examine what was actually said, whom it targeted and the context in which it occurred.

Zionism can therefore be recognized as antisemitic when it targets Jews as Jews, holds them collectively responsible for Israel or draws on antisemitic stereotypes, without making opposition to Zionism itself presumptively antisemitic. That approach is more consistent with the way law ordinarily distinguishes protected expression from discriminatory or otherwise unlawful conduct.

A peer-reviewed review of IHRA, the Jerusalem Declaration and Nexus published in Nordisk Judaistik/Scandinavian Jewish Studies shows considerable agreement among them on conventional forms of antisemitism. The harder disagreements arise when Israel and Zionism enter the picture.

Kenneth Stern’s position is particularly relevant here. Stern led the drafting of the predecessor text that eventually became the IHRA definition and has long warned against turning it into a campus speech code. In material recently submitted to the Canadian Standing Senate Committee on Human Rights, he expressly criticized the binary proposition that “anti-Zionism is antisemitism,” as well as its mirror image that “Zionism is racism.” He also raised the church-state implications of governments treating Zionism as an essential part of Judaism.

Stern’s broader concern is with what happens when a definition becomes a shortcut for deciding whether political expression is permissible. He argues that using IHRA on campuses and elsewhere encourages institutions to identify a phrase, place it on the “bad side of a line” and condemn whoever uses it. Antisemitism, in his account, cannot adequately be understood by consulting a glossary and parsing words, particularly where the words themselves have different meanings to different people and are bound up with political disputes.

This is not simply an academic disagreement about terminology. Stern himself pointed the Senate committee to Students for Justice in Palestine v. Abbott and other U.S. litigation as examples of the constitutional problems that can arise when IHRA is applied to political speech. In Abbott, a federal district court found that the plaintiffs were likely to succeed in showing that university policies implementing a Texas executive order incorporating IHRA imposed unconstitutional viewpoint discrimination and chilled protected expression. The court did not invalidate IHRA. Its concern was with what happened when the definition and its examples became connected to university disciplinary rules.

The distinction Stern draws is important in law. A tool useful for monitoring a social problem does not necessarily supply the legal test for deciding whether an individual’s expression amounts to discrimination, harassment or some other form of prohibited conduct.

Recent legal scholarship raises another concern. In “Defending Jews From the Definition of Antisemitism,” University of Haifa law professors Itamar Mann and Lihi Yona argue that expansive definitions tying Jewish identity to Zionism can marginalize anti-Zionist and non-Zionist Jewish traditions. They do not deny that anti-Zionism can be antisemitic. Their point is that the fact that it is potentially antisemitic “is not proof in itself that it is necessarily so.”

Their argument goes beyond free expression. If government treats Zionism as an essential component of Jewish identity, it is no longer simply protecting Jews from discrimination. It is taking a position on what Jewish identity itself entails. That is particularly difficult when Jews themselves hold different religious, ethical and political views about Zionism.

Stern identifies the same problem from another direction. In his submission to the Senate committee, he specifically raised the “church/state implication” of governments being asked to hold that “Zionism is an essential part of Judaism.” In the United States, that raises Establishment and Free Exercise questions. Mann and Yona develop the argument more fully, contending that government identification of Judaism with Zionism can privilege one understanding of Jewish identity while burdening Jews whose religious or conscientious commitments lead them elsewhere.

There is also a tension with one of the very forms of antisemitism these definitions seek to combat. Antisemitism can include treating Jews as collectively responsible for Israel or assuming that Jews necessarily identify with the Israeli state. A government should therefore be cautious about adopting its own version of that association by treating opposition to Zionism as presumptively hostility toward Jews.

None of this prevents a finding of antisemitism where the evidence supports one. If “Zionist” is being used as a proxy for “Jew,” if Jews are being held collectively responsible for Israel, or if familiar antisemitic stereotypes are simply being recast in the language of Zionism, the label “anti-Zionism” should provide no shelter. The point is that the conclusion should follow from the evidence and context rather than from the government having already defined the political position itself as a manifestation of antisemitism.

The issue is already arising in Canada outside the federal government. Justice Mary Lou Benotto’s recent external review of Toronto Metropolitan University recommends adoption of IHRA as an educational and policy framework and recognition that discrimination against Jews can manifest through opposition to Zionism. Yet she declined to recommend formal adoption of the Arab Canadian Lawyers Association’s definition of anti-Palestinian racism, in part because it incorporates what she regarded as contested historical, political and ideological propositions.

Her concern about incorporating contested political propositions into university policy is legitimate. It should apply equally, however, when the contested proposition concerns Zionism. If questions surrounding the Nakba, Palestinian indigeneity and historic Palestine warrant institutional caution because they remain matters of historical and political debate, the same concern does not disappear when the debate turns to the nature and legitimacy of Zionism.

Canadian law already provides tools for addressing expression that crosses legal boundaries. The Criminal Code prohibits specified forms of hate propaganda, including the public incitement and wilful promotion of hatred, while human rights legislation addresses discrimination and, in applicable contexts, harassment. In Saskatchewan (Human Rights Commission) v. Whatcott, 2013 SCC 11, the Supreme Court of Canada emphasized the need to distinguish expression exposing a protected group to the extreme emotions associated with “detestation” and “vilification” from expression that is merely offensive or repugnant. Parliament has since reinforced that distinction: the Criminal Code now expressly provides that a statement does not incite or promote hatred solely because it “discredits, humiliates, hurts or offends.”

These distinctions exist for a reason. A government definition should not become a substitute for the legal tests governing hate speech, discrimination or harassment.

Section 2(b) of the Charter also protects political expression, including expression that many Canadians may find offensive. That protection does not immunize threats, harassment or discriminatory conduct. Nor does describing something as anti-Zionist prevent a court or other decision-maker from concluding, based on the evidence, that it is antisemitic. The conclusion should follow from what was said or done, whom it targeted and the circumstances in which it occurred, rather than from the political label attached to it.

We make similar distinctions elsewhere. I can fundamentally oppose the political and legal system of Iran’s Islamic Republic or the Kingdom of Saudi Arabia without harbouring hostility toward Muslims or Islam. A political project does not become immune from fundamental criticism because it draws upon the religion, history or identity of a people. Zionism should not be treated differently.

If a synagogue is attacked, a Jewish student is threatened, Jews are blamed collectively for Israel’s actions or “Zionist” is transparently being used as a substitute for “Jew,” we should have no difficulty calling it antisemitism. The same is true when familiar antisemitic conspiracies and stereotypes are repackaged as commentary about Israel.

But that requires looking at the expression and its context. It is different from beginning with the proposition that antisemitism “includes anti-Zionism.”

Public Safety Canada could avoid much of this difficulty with a small but important change in formulation. Rather than saying antisemitism includes anti-Zionism, it could say that anti-Zionism can manifest as antisemitism. That recognizes the very real ways in which anti-Zionist rhetoric can target Jews without making opposition to Zionism itself presumptively suspect.

For lawyers, the difference is not semantic. One formulation requires evidence and context. The other risks allowing the political viewpoint itself to do part of the legal work.

Canada can vigorously combat antisemitism without having the state decide that opposition to Zionism is itself antisemitic. Existing law can protect people from discrimination, harassment and hatred without protecting a political ideology from fundamental disagreement.

This is the third instalment of a three-part series. Part one: Anti-Zionism can be antisemitic. That doesn’t make it antisemitism. Part two: Anti-Zionism and antisemitism: What the courts are saying.

Faisal Kutty is a lawyer, law professor and writer focusing on constitutional law, international law, Islamic law, national security, and law and religion. His work appears regularly in Newsweek, the Toronto Star, Lawfare and other publications.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the author’s firm, its clients, Law360 Canada, LexisNexis Canada or any of its or their respective affiliates. This article is for general information purposes and is not intended to be and should not be taken as legal advice.

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