Closing Channels

In this piece, we offer some reflections on our time as Editors-in-Chief at Völkerrechtsblog. In doing so, we do not speak for the blog as a whole, but also not in a purely personal capacity. What we offer are subjective impressions of the state of academic discourse on international law in Germany from our experience of being in a key position inside a Germany-based blog deeply committed to the idea of opening up debates in and beyond German legal academia.

In 2022, amidst the Russian invasion of Ukraine, our former Editor-in-Chief, Raffaela Kunz, and our former Managing Editor, Cathérine Van de Graaf, published an editorial “On Academic Boycotts” on the blog. They highlighted the selectivity of academic boycotts and the threats such boycotts pose to the free flow of knowledge. Today, we write at a time when German academic and cultural outlets are targets of calls for such boycotts. Our aim is to highlight the risks the current insulation of the German legal discourse poses and what needs to be done to address this.

Double Standards in Responding to International Crises

Over the course of the past two years, we have noticed stark differences between topics on which international legal scholars would happily like to comment – and those on which ones they choose to stay silent. When we started our term as Editors-in-Chief in July 2022, the main topic in the international law sphere was Russia’s act of aggression in and full-scale invasion of Ukraine. For months, the blog was flooded with unsolicited pieces on the war in Ukraine. These pieces were often of high scientific and legal quality and covered virtually any aspect of the war. See here for a collection of examples.

This was entirely different after the atrocities committed by Hamas and other armed groups on October 7th 2023 and Israel’s military operation that followed. This is despite the fact that the legal issues arising of these events are undoubtedly manifold and there has been an unprecedented range of legal mobilisation with respect to the ongoing large scale international crimes. South Africa instituted proceedings before the International Court of Justice against Israel under the Genocide Convention, leading to three rounds of provisional measures. Nicaragua instituted proceedings against Germany, inter alia, for complicity in genocide. The Prosecutor of the International Criminal Courts issued applications for arrest warrants for the Israeli Prime Minister and Minister of Defense and three Hamas leaders. Sufficient food for thought for international lawyers, one would have thought.

Instead, it has been extraordinarily difficult for our blog to publish high-quality commentary reflecting on these unfolding events. Not only have we received a remarkably low number of submissions – especially high-quality submissions – relating to Gaza; it has also been extremely difficult to proactively commission pieces. When we reached out to potential expert authors whose comments on specific aspects of the conflict we believed would be valuable for the German and international audiences alike, we were met with widely spread reluctance and, frequently, refusal. The reasons for this response, which is so unlike what we experienced in the context of Ukraine in 2022, are apparent and often all-too understandable, as we will explain in what follows.

The Impact of Silence and Censorship

We have become acutely aware of the damage that German politicians’ enforcement of and German academics’ adherence to the German Staatsräson has done to the quality and the reputation of the German academic landscape. The Palestinian diaspora and people standing in solidarity with the Palestinian people are noticeably and understandably hesitant to publish on a ‘German’ platform. Especially when our team members reached out to Palestinian scholars to ask whether they would be willing to write for Völkerrechtsblog, these scholars repeatedly replied stating that they would not write for a blog based in Germany. This is in part due to the ‘Strike Germany’ campaign, which calls for the boycott of German cultural institutions, and in part due to more personal but related reasons. Written pieces on topics related to Palestine often undergo additional scrutiny. And even after submitting to this additional scrutiny, scholars cannot trust that a piece will eventually be, in fact, published, even after a long and cumbersome peer review and editing process. While this is true, to some degree, within any context in which submitted texts are reviewed and only a select few of them published, authors writing about Gaza and Palestine seem to be faced with an even more unpredictable publishing process at many Western outlets. The decisions of Harvard Law Review Blog not to publish Rabea Eghbariah’s article titled The Ongoing Nakba and of the Columbia Law Review’s board to take down the entire website rather than publishing Eghbariah’s article titled Toward Nakba as a Legal Concept are only the most striking examples.

During our time as Editors-in-Chief, we have also applied above-average scrutiny and additional procedures to articles covering topics related to the situation in Gaza, if out of very different motivations. For months, in addition to our usual peer review and editing process, all three Editors-in-Chief read every piece on this topic before we decided on whether to publish it. We felt that this extra level of both quality control and caution was warranted not because of a lack of trust in the capabilities of our authors but to fulfil our goal of providing a trusted and open platform for discussion in an extremely difficult discursive environment and of protecting our authors in that very environment. We approached our comments section with the same caution as we experienced an increase in abusive and defamatory comments on posts by authors of Palestinian origin.

Despite the difficulties, we are glad to have been able to publish a number of articles on different aspects of the situation in Gaza and Palestine/Israel, including pieces that are critical of Israel’s actions as well as of the German government’s complete and uncritical support of Israel. Examples include Selin Altay’s post on internal displacement in Gaza, titled Echoes of Nakba, Moritz Rhades’ piece regarding the rise of settler violence in the West Bank and East Jerusalem and Israel’s apparent unwillingness to avert it, Adrián Agenjo’s text on genocidal intent, and, among the first pieces we published in October and November 2023, Nora Salem’s reflections on historical and political conditions that are prone to foster terrorism, titled Palestine-Israel: Context Matters!, on Teaching International Law in the Middle East, as well as her recent feminist reading of the ICJ’s orders in the South Africa case. In addition, the blog published an interview with Stefan Talmon in which he argued, inter alia, that Nicaragua’s legal action before the ICJ can be seen as ‘a reaction to the conspicuous silence of Western countries with regard to what is happening in the Gaza strip’. Most recently, Jona Höni and Yari-Lasse Jäger reflected on a possible obligation not to pay diplomatic visits to suspected international criminals, Moritz Rhades contemplated the possibility for the EU to impose (targeted) sanctions on Israeli officials and Hamas leaders, and Khaled El Mahmood criticized the lack of impartiality apparent in the language used by the Prosecutor of the International Criminal Court. The Völkerrechtspodcast also dedicated one episode to the war in Gaza more generally and one episode to the proceedings before a Berlin administrative court, which questioned and tried to stop Germany’s arms exports to Israel. Conversely, we have routinely rejected pieces that did little more than reiterate IDF talking points, thus not meeting the threshold of critical engagement with the law that is a basic requirement for any post on Völkerrechtsblog. Our editorial policy of working closely together with the authors who entrusted us with at times controversial but well-researched and well-argued texts on different perspectives on the war – including, of course, also those on general aspects of the conflict and its legal fallout – may have played a role in us being able to publish these texts even in a difficult climate.

Of Warranted Distrust

While we therefore do not think that Völkerrechtsblog ‘deserves’ the suspicions levelled against it as a ‘German’ institution, we understand why people may find it hard to trust the blog to remain independent and critical. This is due to the political climate in Germany and the chilling effect it has had on legal academia, including on tenured legal scholars in Germany.

To remind readers, the following are a few examples of repressions taking place in German academia in the name of the German Staatsräson: Over a couple of social media posts after October 7th, in February 2024, the Max Planck Society ‘ended its working relationship’ with Ghassan Hage, a professor of anthropology renowned for his critical work on ethno-nationalism (see the letters in support of Ghassan Hage here, here, and here). In April 2024, the University of Cologne revoked renowned philosopher Nancy Fraser’s honorary Albertus Magnus Professorship due to her having signed the open letter ‘Philosophy for Palestine’. That same month, the German State imposed a Schengen-wide entry ban on Ghassan Abu-Sittah, rector of the University of Glasgow. At the end of last year, a Berlin-based NGO excluded a commissioned chapter from a collection on decolonial legal scholarship and practice.  Most recently, in June 2024, it came to light that the German Ministry of Education and Scientific Research had explored options to cut research funding or otherwise sanction academics who had signed an open letter denouncing FU Berlin’s decision to let police forcibly end pro-Palestinian student protests on the day of the Rafah offensive. An offensive that took place despite calls, including from world leaders, to not attack Rafah due to the estimated presence of 600,000 displaced children who had ‘nowhere safe to go’.

Reluctance and refusal to publish on Völkerrechtsblog thus demonstrate a justified loss of trust in the impartiality and openness of German legal academia. It is the all-too understandable fallout of the last few months of German public discourse on Gaza. As a result, it has become extraordinarily challenging to offer a platform for open discussions on these topics on this blog – at a time when such platforms are of the utmost importance. Channels between the German international law space and broader international legal debates are in danger of closing. This is deeply worrying to us, and should worry everyone working in Germany, especially because the German debate is in dire need of perspectives from outside of what over here is still unironically called “herrschende Meinung” (the dominating opinion among academics, to which courts will usually adhere).

Conclusion: A Call for Academic Courage and Integrity

However, this enrichment of the debate cannot be a one-way street: We cannot expect scholars from outside the dominant German legal discourse to engage with us if they fear their arguments to be subject to extraordinary levels of scrutiny inconsistent with academic freedom and freedom of speech. And perhaps more importantly, we cannot expect them to engage with German legal academia as long as too many of us – in particular scholars in the comfort of tenured positions in prestigious institutions – prefer not to comment on what is arguably one of the most significant international law issues of and for our time. After the ICJ issued its Advisory Opinion on the Legal Consequences from the Policies and Practices of Israel in the Occupied Palestinian Territory on 19 July 2024, concluding, inter alia, that all States have an obligation not to recognize as legal the situation resulting from Israel’s unlawful presence in the Occupied Palestinian Territory and to refrain from providing any aid or assistance that would support the continuation of Israel’s presence in these territories, the German State will have to rethink its position if it does not want to lose all credibility as a State that respects international law. We hope that the Advisory Opinion will also make it easier for more academics to finally find the courage to speak out.