Response to the Letter to the Editors Regarding the Publication of a Symposium based on Papers Presented at an IDF Conference

We are grateful for this letter. It raises important and difficult issues. These are issues that must be identified, aired, discussed, specified and further discussed. This letter has spurred such a process.

The symposium that the letter objects to focused on the question of the identification of custom in international humanitarian law. It consisted of three blog posts: ‘Identifying Customary LOAC in Practice’ by Roni Katzir and David Hardar, both legal advisors at the Israeli Defence Forces (IDF); ‘The Legal Fiction of the Two-Elements Approach: The Role of International Organizations in Customary IHL Identification’, by Magda Pacholska, postdoctoral fellow at the Asser Institute, and ‘The United States’ Practical Approach to Identifying Customary Law of Armed Conflict’, by Jeffrey Kovar, Assistant Legal Adviser for Politico-Military Affairs at the US State Department. The blog posts started with the text: “The following post is part of a symposium based on a conference panel that discussed issues of customary law of armed conflict, at the 4^th Israel Defense Forces (IDF) Military Advocate General (MAG) Conference on the Law of Armed Conflict, held in Herzliya, Israel, during May 8-10, 2023.”

We understand the letter’s main point to be that it is deeply troubling “to host the Israeli military through your platform”, in this case EJIL:Talk! This point gives rise to the important and difficult question as to what editors of this Journal and the Journal’s blog – and others – should do when they receive submissions from an author or a conference connected with a state that has engaged in serious violations of international law, and which in this case has been found to have done so by no less than the International Court of Justice and the United Nations Security Council. For what it is worth, and now writing as individual scholars rather than on behalf of EJIL, none of us disagree with the findings of those bodies to the effect that Israel has engaged in serious violations of international law. 

It may be helpful to separate and consider three different issues regarding whether and when publication ought to be refused on account of some link with a government or other institution.

First of all, the argument could be that it is wrong to publish a piece on account of the connection of the author with an organization that has engaged in particularly egregious violations of international law. In the case of this particular symposium, one post was written by members of the IDF, with the other two posts written by an academic and a legal adviser of another state (the United States). If this argument were accepted, it would invite the editorial team to judge a piece not by its content, but by the identity of the author and who they work for. Our consistent policy has been to assess pieces submitted for publication on the basis of the content and without regard to who the author is, including their governmental affiliation. Moreover, in the case of government officials, including military personnel, we would not consider that wrongdoing by the state should be taken as necessarily tainting all those who work for that state or armed force. (The scenario is different if there were allegations of individual misconduct against the specific authors – but that is not the case here.)  In the unlikely but not impossible scenario that we receive a piece from a government official who argues that the use of force by their own state is unlawful and constitutes an act of aggression, for example, we would not want to have to reject this piece simply because the author is employed by the state committing the aggression. We would, as with any other piece, judge its publication based on its content. Nevertheless, we have a policy that authors disclose relevant affiliations so that our expert readership can draw their own judgments on the extent to which the author’s position may have shaped the content.

The second possible argument that could be at play here is that it would be wrong to publish a piece by an author not simply because of the connection of the author with a government, but rather because that piece, through its content, promotes the offensive policies of the government. In this particular case, the letter asks: “Is it an EJIL: Talk! editorial policy to amplify the views of potential co-perpetrators of international crimes?” and it is stated that “By hosting this symposium, EJIL: Talk! appears to be legitimizing the ‘scholarship’ of regular armed forces of a state actively engaged in war crimes”. Part of the emphasis here seems to be on the authors’ views of the scholarship at issue.

We agree that we should not publish pieces that are aimed at promoting international crimes, or other serious violations of international law. We carefully assess the content of any submissions to us. We would not publish posts that fail to satisfy criteria of quality and rigour, or which deliberately seek to distort the law or the facts.

However, the symposium at issue relates to the methodology for identifying customary international law. The content of the blogposts cover issues such as: whether the well accepted two-element inductive approach of finding custom on the basis of state practice and opinio juris is in fact what really happens in practice; how and where we find state practice and opinio juris; the role of so-called “specially affected states”; the significance of the ICRC’s customary international humanitarian law study; the extent to which that study’s approach should be followed; and the application of existing rules of customary international law to new areas of activity. These are all issues that are the subject of discussion in any standard public international law course. They continue to generate serious debates, in scholarly and other fora, in relation to the methodology by which customary international humanitarian law is identified and evolves. There is no suggestion that any of the views expressed in the symposium aims at the promotion of international crimes or other serious violations of international law.

The third issue that the letter could be raising is whether we should have published a symposium composed of papers that were presented at a conference that was hosted by the IDF.  Only one of the posts in the symposium was written by members of the IDF. Whether we should have published the pieces of the other participants in the symposium is not about the connection of those persons with the IDF (issue 1), since those authors are not part of such forces, and is also not related to the content of their views (issue 2), as there is no suggestion that there is anything objectionable about the content of the blog posts. The question is thus whether, having been aware that the papers were presented at a conference hosted by the IDF, EJIL:Talk! should for that reason alone have decided not to publish them. Or the issue could be that it should not have indicated, as the blogposts did, that the papers were presented at the IDF conference.

The assumption that underlies this third ground for objection is that by publishing papers presented at an IDF conference (or perhaps by saying that the papers were presented there) the blog legitimises the institution in question.

We find this point to be the most complicated. It is on this point that different members of the editorial team come to different conclusions.

On the one hand, it could be argued that, just as publication of posts on the blog does not mean that the editors endorse the views expressed in the blogpost, such publication is likewise not an endorsement of the institution where the papers were presented, and should not be seen as such. On this view, publication of those papers relates to the scholarly merit of those papers and nothing more. Moreover, in the case of debates relating to the law of armed conflict, it could be argued that imposing a blacklist on papers presented at conferences hosted by states that are said to be or have been found to be in serious violation of the law inhibits or diminishes engagement with the very audiences that the law wishes to reach and influence.

On the other hand, government institutions that are involved in flagrant violations of international law may be hosting conferences with a view to being recognized for their international legal expertise and to gain support for their interpretation of international law. There may be good grounds for scholars and blogs not to support such PR exercises.

One of the reasons why this issue of legitimation risk is so difficult is that legitimacy lies in the eyes of the beholder. Some may not consider publication of papers presented at a specific conference as an act of legitimising the host institution, whereas others do. One way to avoid the risk of legitimising the host institution would be to omit the reference to the conference where the paper was presented. However, what is gained in terms of legitimation risk reduction, would be lost in transparency: readers could then no longer take the venue into account when assessing the substance. Another obvious challenge is that the lines are hard to draw: there is no shortage of conference organising institutions with links to states that commit serious violations of international law.

In view of the difficult considerations in relation to this third issue, we are not unanimous on whether we should have hosted this specific symposium. But identifying the issues and hearing various arguments pro and con has been, for all of us, a valuable process. We hope that it will be the same for readers, who can, if they wish, give their views in the comments box below.

Dapo Akande

Diane Desierto

Devika Hovell

Marko Milanovic

Editors of EJIL: Talk!

Sarah Nouwen

Joseph HH Weiler

EJIL Editors-in Chief