Opinio Juris Blog Doubles Down on Double Standards

Earlier this month CAMERA contacted the international law blog Opinio Juris regarding a failure to disclose author Ralph Wilde’s conflicts of interest. The article was about the upcoming International Court of Justice (ICJ) advisory opinion requested by the United Nations on whether Israel’s “occupation” is illegal. CAMERA expressed concern that Wilde’s earlier service as legal advisor for the Palestine Liberation Organization (PLO) and for the anti-Israel non-governmental organization (NGO) Al Haq, positions that may well have informed his position, were not disclosed to readers, in contravention of its own rules.

Much to Wilde’s credit, his original report, on which the Opinio Juris post was based, disclosed his past work for the PLO. By sharp contrast, however, blog co-founder and editor Kevin Jon Heller, refused to add a disclosure, claiming that Wilde’s work was neither recent enough nor relevant enough. Instead, the editor attempted to deflect attention from what appeared to be a real conflict of interest by accusing the messenger, CAMERA, of not acting in good faith.

The editor’s accusation related to a previous incident raised to him by CAMERA. In 2021, Heller criticized a different international law blog, EJIL: Talk!, for not disclosing that the author of a post disputing the “apartheid” libel against Israel, Eugene Kontorovich, lived in an Israeli settlement. Heller expressed his “doubt” that our “allegation against Dr. Wilde” was made “in good faith” because in CAMERA’s communication to Heller it was suggested that Wilde’s relevant legal work for one of the parties to the legal dispute was a “more obvious” case necessitating disclosure than Kontorovich challenging the Human Rights Watch “apartheid” report while living in the disputed territory.

Setting aside the Kontorovich case, as CAMERA pointed out to Opinio Juris’ Heller, he was quick to insist to EJIL: Talk! that “we should always err on the side of greater disclosure about potential conflicts of interest.” Based on the blog’s recent conduct, however, it is apparent that the commitment to “greater disclosure” is exercised inconsistently, dependent on the opinion being expressed. By applying different standards to disclosing conflicts of interest of those expressing pro-Israel views than to those expressing anti-Israel views reflects poorly on the professionalism and reliability of the Opinio Juris publication as a whole.

Wilde’s Background

As CAMERA pointed out previously, Wilde’s work for the PLO – one of the parties to the legal dispute – dealt with questions of the “sovereignty of Jerusalem in the context of peace negotiations.” Though Heller disputes the relevance of this work to the topic Wilde discussed in his Opinio Juris post, it seems a straightforward proposition that questions of the sovereignty over a piece of land is entirely relevant to whether it is “occupied,” legally or not.

The relevance of his PLO work to the case at the ICJ, on the question of whether Israel’s “occupation” is illegal, is even supported by Wilde’s own writings. In a 2021 article, Wilde – in arguing that Israel was indeed engaged in an illegal occupation – notably drew upon the themes of his PLO work (sovereignty of Jerusalem “in the context of peace negotiations”) to reach that conclusion, writing: “The requirement that Israel needs to ‘agree’ to the realization of Palestinian statehood is also implicitly ruled out by the ICJ prefacing the achievement of the two objectives as needing to be ‘on the basis of international law.’”

Additionally, much of Wilde’s recent work has focused on the specific question now before the ICJ: whether Israel’s “occupation” is “illegal,” belying the facile suggestion that there’s a temporal limit on Wilde’s conflicts of interest. Indeed, it would be strange to argue, for example, that Alan Dershowitz should not mention his work on the O.J. Simpson defense team when writing about the O.J. Simpson trial nearly thirty years ago. Moreover, as Wilde’s record shows, he has consistently and continually advocated on these matters, including at the UN, the ICC, and in the civil society sector.

            Wilde’s Role in Helping Instigate the ICJ Case

In 2022, Wilde sought to become the next United Nations Human Rights Council (UNHRC) “special rapporteur” on the Israeli-Palestinian conflict, a position notorious for being filled with anti-Israel ideologues and antisemites. Worth noting, in his application, Wilde also failed to mention his past work for the PLO and answered “no” when asked whether he “hold[s] any views or opinions that could prejudice the manner in which the candidate discharges the mandate.” However, Wilde was passed over for Francesca Albanese who, several months into her new role, put out a “call for submissions” ahead of her report to the UN General Assembly in October. Only a handful of people responded. Among them was Ralph Wilde, who submitted the 2021 article arguing Israel’s “occupation” is illegal.

Albanese’s report, which according to her was “enhanced by consultations and submissions,” came out in September 2022.  It was one of two UN reports that month which claimed Israel’s “occupation” is illegal and which led to the UN General Assembly requesting that the ICJ issue an advisory opinion to have it so declared.

In other words, Wilde was directly involved in helping instigate the very ICJ case the Opinio Juris article is about.

Wilde’s Involvement in the International Criminal Court Case Against Israel (and Opinio Juris’ Knowledge)

Wilde has played a role in prosecuting Israel in another international court, as well. In 2020, alongside a Palestinian lawyer, Wilde submitted an application for leave to file an amicus brief at the International Criminal Court (ICC) on whether the court had jurisdiction over the case, which necessarily involved determining whether “Palestine” was a state or not for purposes of the ICC.

The two indicated their brief would focus on the role of “recognition by states, and second, self-determination” in determining whether “Palestine” was a state for purposes of ICC jurisdiction. Given their backgrounds, it is almost sure to have been an argument in favor of the ICC recognizing “Palestine” as a state. Naturally, a determination of Palestinian statehood involves questions of borders and sovereignty which are directly relevant to the ICJ case. (Editor’s Note: For purposes of full disclosure, the author of this piece was involved in providing research and analysis for an amicus brief in the same case. See the brief at https://www.icc-cpi.int/sites/default/files/CourtRecords/CR2020_01138.PDF.)

Once again, the issue of Palestinian statehood and self-determination clearly have bearing on the question of “occupation” and whether it can be considered “illegal.”

Importantly, Opinio Juris is aware of this background. In fact, on February 22, 2020, Heller himself wrote an article criticizing the ICC for rejecting Wilde’s application to submit a brief, accusing the ICC of “selectivity and arbitrariness” and suggesting that the ICC treats only Palestinians unfairly.

            Wilde’s Other Recent Work

Even beyond Wilde’s work with the PLO, his involvement in the anti-Israel case at the ICC, and his role leading up to the request for the ICJ case, his record demonstrates his regular lobbying to have Israel declared an “illegal occupier” and his efforts to have Israel prosecuted in international courts.

In 2018, Wilde wrote an “expert opinion” for the anti-Israel activist group Diakonia, in which he claimed: “the legal self-determination entitlement of the Palestinians requires Israel to end the occupation promptly…” Also in 2018, at a panel organized by Al Haq, Wilde claimed “there is a need to move beyond occupation law in order to challenge the existence of the occupation itself as violations of the right to self-determination.” In 2022, speaking at a webinar organized by the Arab Organization for Human Rights in the UK, Wilde claimed, according to UN Watch, that Israel’s “occupation” is “illegal and constitutes aggression, which is a crime in international law.”

These public comments testify to Wilde’s activism in pushing the same legal case against Israel now before the ICJ, which the blog post is addressing. 

Opinio Juris’ Own Potential Conflicts of Interest

A likely explanation for the blog editor’s refusal to disclose the affiliations of the above-mentioned author is the fact that the Opinio Juris blog itself has potential conflicts of interest on this matter.

Several years ago, the blog became "associated" with the organization International Commission of Jurists which has a long record of pursuing prosecution of Israel. As far back as 2004, the organization was lobbying intergovernmental organizations on the exact topic at hand, declaring to the UNHRC’s predecessor that it believed Israel was engaged in an “illegal occupation” in a statement submitted alongside Al Haq.

Indeed, Wilde isn’t the only one connected to Al Haq. The notorious NGO is an affiliate of the International Commission of Jurists, and is one of the more prominent actors pushing prosecution of Israel. Al Haq’s executive director, Shawan Jabarin, is even on the International Commission of Jurists’ own executive committee. This is particularly egregious given Jabarin’s affiliation with the internationally designated terrorist organization Popular Front for the Liberation of Palestine (PFLP), and who has been described by the Israeli High Court of Justice as a “Doctor Jekyll and Mister Hyde, acting some of the time as the CEO of a human rights organization, and at other times as an activist in a terror organization…”

The International Commission of Jurists’ involvement in legal cases against Israel is also notable. For example, in 2020, it successfully submitted an amicus brief to the ICC arguing that “Palestine” was a state and that the ICC did have jurisdiction to prosecute Israelis.

Whether it’s about Wilde’s role in helping instigate the ICJ case or Opinio Juris’ own affiliation with an NGO that has pursued Israel’s prosecution, there is ample justification for informing the blog’s audience of these conflicts of interest. In the words of editor Heller himself, such information would be “relevant to readers’ assessment of the arguments in [the] post.” Certainly, it would be relevant for the readers' assessment of both the author and platform's impartiality, or rather the lack thereof.

The extent to which disclosures of potential conflicts of interest should be enforced at a publication is, of course, a matter of legitimate debate. But by applying its own standards selectively, Opinio Juris has opened itself to valid charges of lacking both impartiality and professionalism.