Joint Open Letter to the Editorial Board of the Blog of the European Journal of International Law (EJIL: Talk!)

Note by the editors: the text of the letter inclusive of footnotes is available in PDF here: EJIL-Letter_18 Sept ; the response of the editors is available here.

Re:      Providing a Platform to an Occupying Military Force Implicated in Violations of Jus Cogens Norms

We, the undersigned scholars and practitioners of law, including international law, are writing to express our dissent and profound disappointment with your choice to provide a platform for the Israeli military through a symposium on the customary law of armed conflict. This symposium was based on a conference panel held at the 4th Israeli Military Advocate General (MAG) Conference on the Law of Armed Conflict, held in Herzliya in May 2023 (if we understand correctly from the pieces you published in the symposium, members of your editorial board attended the conference as well). 

Our primary concern is that the Israeli military is the direct, long-term perpetrator of systemic and widespread violations of international law in, among other places, the occupied Palestinian territory (OPT). The public record is replete with incontrovertible evidence of this. But for the sake of brevity, we need only emphasize Israel’s violations of three jus cogens norms, derogation from which is not permitted under any circumstances: (1) the inadmissibility of acquisition of territory through the use of force; (2) the violation of the Palestinian people’s right to self-determination; and (3) the imposition of a regime of alien subjugation, domination and exploitation rooted in racial discrimination and/or apartheid. While the first two of these have been firmly established by the International Court of Justice in the Wall advisory opinion (2004) and affirmed by each relevant principal organ of the UN, including the Security Council and General Assembly, the last of these has been documented in detail by numerous reputable reports, including by the Former United Nations Special Rapporteur on the Situation of Human Rights in the Palestinian Territories Occupied by Israel Since 1967 Michael Lynk, Amnesty International, Human Rights Watch, B’Tselem, Alhaq, and others.

The Israeli Military and MAG lawyers are not merely independent actors in a benign ‘temporary’ occupation. Rather, they have been instrumental in providing the legal and material scaffolding for policies and practices that the international community has extensively documented as being in clear violation of international humanitarian law (IHL) and international human rights law (IHRL). At the heart of it all has been Israel’s policy of transferring its civilian population into the OPT in violation of the Fourth Geneva Convention (art. 49), the Rome Statute of the International Criminal Court (art. 8), and customary international law (Rule 130). Israel’s illegal settlement of the OPT is the single most important factor animating its violations of the above noted jus cogens norms, and the Israeli military has been one of the primary means through which these settlements have been established and maintained.

In short, it is beyond reasonable doubt that the Israeli military (including its lawyers) are part of this unlawful enterprise, facilitating the establishment of illegal settlements throughout the occupied Palestinian territory, while imposing a rule of racial discrimination and apartheid against the native population aimed at permanently disenfranchising them and impeding their right to self-determination.

We therefore write this letter to highlight the deeply troubling thinking behind your decision to host the Israeli military through your platform.

As a leading journal of international law, your actions give rise to questions regarding your commitment to the most basic principles of the UN Charter and international law. By hosting this symposium, EJIL: Talk! appears to be legitimizing the ‘scholarship’ of regular armed forces of a state actively engaged in war crimes, and impliedly dismissive of the struggle of the people it continues to subjugate. EJIL: Talk! holds a prominent place in the discourse on international law. It is for these reasons that we seek clarification of the rationale behind your decision to host the Israeli military in this way. Has the editorial board of the EJIL: Talk! considered the extensive and ongoing documentation of the Israeli military’s violations of jus cogens norms? Would the editorial board extend similar opportunities to other military forces allegedly engaged in perpetrating international crimes and human rights violations such as Russia, Syria, and Myanmar? Is it an EJIL: Talk! editorial policy to amplify the views of potential co-perpetrators of international crimes? And what message is the EJIL: Talk! editorial board sending to the many victims of these crimes?

We believe that engaging in scholarly debate is necessary for the progressive development of international law. However, we firmly believe that such development should be conducted within a framework that respects the principles of justice, equality, and the integrity of the discipline itself.

By platforming a conference on the laws of armed conflict organized by the military of an occupying power that is actively colonizing another people’s territory, EJIL: Talk! is compelling the scholarly community, including the undersigned, to question the integrity of the blog as a space for serious debate on international law.

We appreciate your prompt attention to this matter and look forward to your response.

Sincerely,

List of signatories:*

1. Alice Panepinto (Senior Lecturer in Law, Queen’s University, Belfast)
2. Anis F. Kassim (Founder and Consulting Editor of the Palestine Year Book of International Law)
3. Ardi Imseis (Professor of Public International Law, Queen’s University)
4. Chantal Meloni (Professor for International Criminal Law, University of Milan, Italy)
5. Christine Schwöbel-Patel (Co-Director, Centre for Critical Legal Studies, Warwick Law School)
6. Diana Buttu (Lawyer and former negotiator)
7. Gail Lythgoe (Lecturer in Global Law, Edinburgh Law School)
8. John Dugard (Emeritus Professor of International Law, University of Leiden)
9. John Reynolds (Associate Professor in International Law, National University of Ireland Maynooth)
10. Lex Takkenberg (Non-resident Professor of Humanitarian Affairs, Fordham University)
11. Luigi Daniele (Senior Lecturer  in Law,  Nottingham Law School, Nottingham Trent University)
12. Mazen Masri (Senior Lecturer in Law, University of London)
13. Michael Lynk (Professor Emeritus, University of Western Ontario)
14. Michelle Burgis-Kasthala (Senior Lecturer in Public International Law, University of Edinburgh)
15. Michelle Staggs Kelsall (Senior Lecturer in International Law, SOAS University of London)
16. Mutaz Qafisheh (Professor of International Law and Legal Clinic Director, Hebron University)
17. Neve Gordon (Professor of International Law and Human Rights, Queen Mary University of London)
18. Nicola Perugini (Senior lecturer of International Relations, University of Edinburgh)
19. Nimer Sultany (Reader in Public Law, SOAS University of London)
20. Noura Erakat (Associate Professor of Africana Studies, Rutgers University)
21. Ntina Tzouvala (Associate Professor, Faculty of Law, Australian National University)
22. Penny Green (Professor of Law and Globalisation, Queen Mary University of London)
23. Richard A. Falk (Professor Emeritus of International Law, Princeton University)
24. Shahd Hammouri (Lecturer in Law, University of Kent)
25. Sujith Xavier (Associate Professor and Associate Dean, University of Windsor)
26. Susan M. Akram (Clinical Professor and Director, International Human Rights Clinic, Boston University School of Law)
27. Susan Power (Head of Legal Research and Advocacy, Al-Haq)
28. Triestino Mariniello (Professor of Law, Liverpool John Moores University)
29. Valentina Azarova (Feminist Autonomous Centre for research)

*Institutional affiliations are for identification purposes only.

(The response of the editors is available here. )