Seeking to prevent one’s opponents from making their case is a sign of intellectual vulnerability. A good example of this comes from a recent “open letter” from a group of anti-Israel regulars trying to pressure a legal journal into deplatforming the scholarly presentations made at a recent international law conference in Israel.
The event in question was the Fourth IDF Conference on the Law of Armed Conflict held in May. A few of the presentations were posted on the blog of the European Journal of International Law (EJIL). The published presentations – delivered by a postdoctoral fellow at a Dutch scholarly institute, a U.S. State Department legal adviser, and the head of Israel’s Military Advocate General’s Corps – were thoughtful discussions of important questions in the field of international law. They delved into the fundamental question of how “customary international law” is identified, that is, rules that come from “a general practice accepted as law” and which “exist independent of treaty law.”
A handful of academics and anti-Israel (and sometimes antisemitic) activists did not like this. Together they sent an open letter criticizing EJIL for publishing the presentations on its blog.
It is evident, however, that this was not a good faith, principled stance on their part. A brief glance at the signatories shows not only the hypocrisy of their words, but why they might want to drown out the discussion that was held.
Consider just a few examples that illustrate why this was not borne out of any real scholarly principles other than hostility to the Jewish state.
The open letter decries EJIL for “legitimizing the ‘scholarship’ of regular armed forces of a state actively engaged in war crimes…” Yet in March 2023 – just two months before the IDF conference – one of the signatories, Richard Falk, participated in an “international law” conference organized by an affiliate of an internationally designated terrorist organization, Hamas, which openly boasts of having committed thousands of war crimes. There, Falk spoke alongside numerous current and former leaders of Hamas, whose founding charter and terroristic methods are an affront to the very idea of international law.
There is also Susan Power, identified as the “Head of Legal Research and Advocacy” at Al-Haq. How many times has her General Director, a convicted member of the internationally designated terrorist organization Popular Front for the Liberation of Palestine (PFLP), been caught participating in PFLP events, such as a memorial for a PFLP founder?
Neither Hamas nor PFLP works within this “framework that respects the principles of justice, equality, and the integrity of the discipline itself” that the signatories declare excludes the IDF conference. To these signatories, the principle of not legitimizing those who engage in war crimes apparently does not apply if those war crimes target Jews and Israelis.
The letter also accuses Israel of racism. Yet how many times has Noura Erakat, another signatory, cruelly taunted Jews by obscenely comparing them to their Nazi tormenters? According to her, “Zionism is a bedfellow of Nazism and antisemitism.” Such bigoted and juvenile rhetoric may win applause from antisemites, but no serious scholar with even a partial grasp of factual reality would make such an intentionally offensive and obviously absurd claim.
But there’s more to their open letter than just another attempt at making the Jewish state untouchable. There’s also an obvious element of intellectual vulnerability on the part of the signatories.
Considering their past writings, it’s no wonder why some of the signatories would want to prevent publication of the presentations in question.
Michael Lynk, for example, once wrote an entire report seeking to invent new legal concepts that, conveniently, would declare Israel’s “occupation” to be “illegal.” That may explain why he took exception to the excellent analyses of Magda Pacholska, Jeffrey Kovar, Roni Katzir, and Hadar David who eloquently and convincingly spoke about the questionable methods being used today to deduce and artificially manufacture customary rules of international law.
In particular, Katzir and David astutely pointed out that in discussions of customary law, “many academic publications do not attempt to assess practice and opinio juris but simply echo previous academic publications, without critically reviewing the original analysis they rely upon.” More directly, they pointed out that the “notion of [customary international law] interpretation” – relied upon by many of the signatories in their attacks on Israel – is “inconsistent” and even “undermines the underlying rationale of custom, which primarily draws its power and legitimacy from what states actually do.” Similarly, Kovar reiterated criticism that too many rely “too little on States’ operational practice and experience from armed conflict and too much on written materials…and on non-binding resolutions of the UN General Assembly,” as well as give “undue weight to statements by NGOs…which is not State practice.”
In other words, the endless recitation of non-binding and political resolutions and the similarly endless circle of self-citation by many of the signatories, seeking to invent legal concepts and declare Israel an “apartheid” state, does not actually make those legal concepts and self-declared verdicts true.
This gets to the heart of the matter. On one side are scholars and practitioners who, while they may have their own biases, are engaging in honest and open debate, demonstrating respect for the scholarly world of international law. Nothing prevents the open letter signatories from engaging in the same ongoing conversation on these subjects. Instead, they took the authoritarian approach and tried to limit access to a prominent academic journal for their ideological opponents. After all, it’s much easier for them to declare the existence of “consensus” about Israeli evil if they silence and ignore all those who disagree. This is not the behavior of true scholars. This is the behavior of ideologues.
To the credit of the blog’s editors, their response to the open letter diplomatically points out some of the other obvious shortcomings of the signatories’ arguments. But at the same time, they give far too much credit to those who have built careers in debasing international law. However sincere the letter writers’ beliefs may be about Israeli evil, it would be ill-advised to take lessons on ethical parameters from people who share antisemitic cartoons or consort with murderous terrorists.
EJIL should think long and hard about what kind of future it wants to help create for the field of international law. Does it want to build an intellectual environment that deals with fundamental questions of international law in a scholarly, intellectually curious, and open manner? Or does it want an environment in which academic debate is repressed by partisans who seek to police not only what can be said, but who can say it?
EJIL proclaims a “commitment to publishing…a diverse range of contributors.” Will EJIL allow a handful of loud, partisan activists to intimidate it into compromising on its own ideals?