Author Archive for
Kevin Jon Heller

Kim Priemel, “The Betrayal: The Nuremberg Trials and German Divergence”

by Kevin Jon Heller

I want to call readers’ attention to Oxford University Press’s publication of my friend Kim Priemel‘s new book, The Betrayal: The Nuremberg Trials and German Divergence. Here is the publisher’s description:

At the end of World War II the Allies faced a threefold challenge: how to punish perpetrators of appalling crimes for which the categories of ‘genocide’ and ‘crimes against humanity’ had to be coined; how to explain that these had been committed by Germany, of all nations; and how to reform Germans. The Allied answer to this conundrum was the application of historical reasoning to legal procedure. In the thirteen Nuremberg trials held between 1945 and 1949, and in corresponding cases elsewhere, a concerted effort was made to punish key perpetrators while at the same time providing a complex analysis of the Nazi state and German history. Building on a long debate about Germany’s divergence from a presumed Western path of development, Allied prosecutors sketched a historical trajectory which had led Germany to betray the Western model. Historical reasoning both accounted for the moral breakdown of a ‘civilised’ nation and rendered plausible arguments that this had indeed been a collective failure rather than one of a small criminal clique. The prosecutors therefore carefully laid out how institutions such as private enterprise, academic science, the military, or bureaucracy, which looked ostensibly similar to their opposite numbers in the Allied nations, had been corrupted in Germany even before Hitler’s rise to power. While the argument, depending on individual protagonists, subject matters, and contexts, met with uneven success in court, it offered a final twist which was of obvious appeal in the Cold War to come: if Germany had lost its way, it could still be brought back into the Western fold. The first comprehensive study of the Nuremberg trials, The Betrayal thus also explores how history underpins transitional trials as we encounter them in today’s courtrooms from Arusha to The Hague.

I cannot recommend the book highly enough. It’s a remarkable piece of scholarship, weaving together legal history, political history, and intellectual history into a seamless and compelling whole. Kim is a superb historian — and one who writes about law as well as most legal scholars. The book also does something almost unprecedented: tell the story of the IMT and NMTs together, which is necessary for understanding both. The book’s only competitor in that regard is Telford Taylor’s wonderful book The Anatomy of the Nuremberg Trials: A Personal Memoir — but Taylor’s book is, as the title indicates, a memoir, not an “objective” legal history.

Anyone interested in Nuremberg, international criminal law, or transitional justice will want to pick up a copy of The Betrayal. To appropriate Larry Solum: read Priemel!

New Article on SSRN

by Kevin Jon Heller

I have posted a short article on SSRN, entitled “Taking a Consenting Part: The Lost Mode of Participation.” Here is the abstract:

This short article, my contribution to a special issue of the Loyola International and Comparative Law Review commemorating the 70th anniversary of the Nuremberg Trial, critically examines “taking a consenting part” in an international crime – a mode of participation that was applied by the Nuremberg Military Tribunals but then disappeared into the ether of international criminal law, never to be seen again. The article is divided into three sections. Section I briefly explains how the NMTs understood the basic principles of individual criminal responsibility. Section II discusses the essential elements of “taking a consenting part” as a sui generis omission-based mode of participation. Finally, using Hadžihasanović at the ICTY as a case study, Section III asks whether international criminal law would be better off if it rediscovered “taking a consenting part” in an international crime.

As always, comments welcome!

Vacancy: Director of the Irish Centre for Human Rights

by Kevin Jon Heller

The National University of Ireland Galway seeks to appoint a Professor of Human Rights Law and Director of the Irish Centre for Human Rights, within the School of Law.

The Irish Centre for Human Rights has developed a global reputation for excellence in the field of human rights teaching, research and advocacy, which has enabled it to attract high quality students to its acclaimed postgraduate and undergraduate programmes. Its success is reflected in the calibre and diversity of its doctoral and masters students in particular.


In filling the Established Professorship in Human Rights Law, NUI Galway is seeking a person with an international reputation for academic excellence in Human Rights Law combined with strong leadership skills who will complement the existing strengths of the Centre and enable it to develop new areas of activity in line with its future strategic priorities. S/he will normally have a doctoral- level degree in Human Rights Law and a substantial record of teaching and research, the later evidenced by substantial publications in the broad field of human rights. The post-holder will also be the Director of the Irish Centre for Human Rights at a critical time in its development having enjoyed tremendous success, nationally and internationally, particularly since 2000.


The post-holder, as the recognised leader of the sub-discipline of Human Rights in the School of Law, will contribute to the development of the education and research programmes of the School. The Established Professor of Human Rights Law, in his or her role as Director of the Irish Centre for Human Rights, will also contribute positively and proactively to the collective leadership of the School of Law. S/he will be expected to work with colleagues in the Irish Centre for Human Rights, the School of Law and other stakeholders to develop an ambitious Strategic Plan for the Centre reflecting the most relevant emphases of the University’s current strategic plan, Vision 2020.


For informal enquiries, please contact Professor Donncha O’Connell, Head of the School of Law, NUI Galway, Email donncha [dot] oconnell [at] nuigalway [dot] ie or telephone: +353 (0)91 492388.

Additional information on the Irish Centre for Human Rights, NUI Galway is available at:
Information on the University’s Strategic Plan is available at:

€106,515 to €136,275

(This appointment will be made on the Established Professor scale in line with current Government pay policy)

(For pre 1995 public sector entrants in Ireland, the D class Salary rates will apply)

Closing date for receipt of applications is 17:00 (Irish Time) on Thursday, 20th October 2016. It will not be possible to consider applications received after the closing date.

New (And Better) Eligibility Rules for the Lieber Prize

by Kevin Jon Heller

Last year, I criticised ASIL for limiting its very prestigious Lieber Prize to academics under 35. I described that limit as “ageist,” noting that in today’s academic world there are many law professors over 35 who, because they joined academia late, should rightfully be considered junior scholars. So I am delighted to note that ASIL has changed the eligibility criteria for the 2017 Lieber Prize:

Anyone may apply for the article or book prize. For those in academia or research institutions, the prize is open to those who are up to 8 years post-PhD or JD or those with up to 8 years in academic teaching or research position. Membership in the American Society of International Law is not required. Multi-authored works may be submitted if all the authors are eligible to enter the competition. Submissions from outside the United States are welcomed.

This is a much better approach to eligibility. Kudos to ASIL for the change.

Trump Advocates World War III

by Kevin Jon Heller

I know pointing out stupid things Donald Trump says is a fool’s errand — pretty much everything Donald Trump says is stupid. (Note to non-hack conservative friends: I genuinely feel sorry for you.) But I’m struck by how little attention pundits have paid to this gem:

I think that once the nuclear alternative happens, it’s over. At the same time, we have to be prepared. I can’t take anything off the table.Because you look at some of these countries, you look at North Korea, we’re doing nothing there. China should solve that problem for us. China should go into North Korea. China is totally powerful as it relates to North Korea.

There are, shall we say, a couple of problems with this suggestion. First, Trump is openly advocating China invading North Korea without provocation. You don’t have to be a Kim Jong-un apologist to suggest that international law might look rather unkindly at that. Second, although China is no doubt “totally powerful” compared to North Korea, North Korea has something of an equalizer — nuclear weapons. (The topic Trump had been asked to discuss.) Does anyone doubt that Kim Jong-un would use them against China if, as Trump wants, China tried to wipe North Korea off the face of the earth?

PS: I’m being good and not pointing out that Trump was openly advocating genocide…

Sixth Annual Junior Faculty Forum for International Law

by Kevin Jon Heller


Earlier today, Dino Kritsiotis (Univ. of Nottingham), Anne Orford (Univ. of Melbourne) and JHH Weiler (NYU) launched the Sixth Annual Junior Faculty Forum for International Law, which will be held at the University of Nottingham in May 2017. All details regarding the Forum procedure and process are available here:

Israel Shows Its Contempt for Academic Freedom

by Kevin Jon Heller

The headline is almost a generic one, applicable to dozens of Israeli actions. I’m using it now specifically in connection with Israel denying entrance to my SOAS colleague Dr. Adam Hanieh, who was scheduled to give a series of lectures at Birzeit University:

Dr. Hanieh, a Senior Lecturer in the Department of Development Studies at the School of Oriental and African Studies at the University of London, was deported back to London on the morning of September 13, 2016. He was held for questioning for 10 hours at Ben Gurion airport, and then taken overnight to a detention centre outside the airport. In addition to being refused entry, Dr. Hanieh was banned from entering the country for ten years.

Dr. Hanieh was scheduled to share his vast knowledge of global and Middle East political economy with students in the Ph.D. program as well as the university community in a series of lectures scheduled in the coming two weeks. Hanieh is an accomplished scholar, the author of Lineages of Revolt: Issues of Contemporary Capitalism in the Middle East (Haymarket Books, 2013) and Capitalism and Class in the Gulf Arab States (Palgrave Macmillan, 2011), as well as numerous academic articles.

This act of denial of entry and deportation by the Israeli state and its agencies is part of a systematic policy of denial of entry to international academics, professionals and activists intending to visit Palestine. This policy represents an attack on Palestinian academic freedom, and is routinely practiced at the two entry points, the airport in Tel Aviv and the Jordan valley crossing from Jordan.

Israel is truly the Donald Trump of repressive states — unable to tolerate any criticism that doesn’t stay within the bounds of what it considers “legitimate.” Confident states address critics. Israel prefers to harass and silence them.

Business as usual in the Middle East’s supposed great democracy. Keep Hanieh’s treatment in mind the next time Israel complains about mean BDS-ers “silencing” (ie, protesting) Israeli academics.

The Guardian’s Remarkable Lack of Concern for Accuracy

by Kevin Jon Heller

I love the Guardian. It’s generally a great paper. But its unwillingness to correct even the most basic mistakes constantly amazes me. In an otherwise interesting article about the ICC and environmental crimes, John Vidal and Owen Bowcott — the Guardian‘s environment editor and legal affairs correspondent, respectively — say this (emphasis mine):

The ICC can take action if the crime happens in any of the 139 countries that have signed up to the Rome Statute, if the perpetrator originates from one of these countries, or if the UN security council refers a case to it. Crimes must have taken place after the Rome statue came into force on 1 July 2002.

This is just wrong. Unequivocally wrong. 139 states have signed the Rome Statute, but only 124 have ratified or acceded to it. The ICC has territorial and active-nationality jurisdiction only over the latter.

I tweeted the correction to John Vidal. He’s ignored it — for reasons that are beyond me, given that it would take a web editor 10 seconds to correct. But perhaps Owen Bowcott is to blame: a few years ago he not only refused to correct his blatant mistake concerning the ICTY’s holding in Perisic regarding specific direction, he repeated his mistake in a later article on Charles Taylor.

New Essay: What Is an International Crime? (A Revisionist History)

by Kevin Jon Heller

I have posted the essay on SSRN. Here is the abstract:

The question “what is an international crime?” has two aspects. First, it asks us to identify which acts qualify as international crimes. Second, and more fundamentally, it asks us to identify what is distinctive about an international crime – what makes an international crime different from a transnational crime or an ordinary domestic crime.

Considerable disagreement exists concerning the first issue, particularly with regard to whether torture and terrorism should be considered international crimes. But nearly all states, international tribunals, and ICL scholars take the same position concerning the second issue: an act qualifies as an international crime if – and only if – that act is universally criminal under international law. The international-law aspect of the definition distinguishes an international crime from a domestic crime: although some acts that qualify as domestic crimes are universally criminal – murder, for example – their universality derives not from international law, but from the fact that every state in the world has independently decided to criminalize them. The universality aspect of the definition, in turn, distinguishes an international crime from a transnational crime: although a transnational crime such as drug trafficking involves an act that international law deems criminal through a suppression convention, international law does not deem the prohibited act universally criminal, because a suppression convention does not bind states that decline to ratify it.

This definition of an international crime, however, leads to an obvious question: how exactly does an act become universally criminal under international law? Two very different answers are possible – and the goal of this article is to adjudicate between them. The first answer, what I call the “direct criminalization thesis” (DCT), is that certain acts are universally criminal because they are directly criminalized by international law itself, regardless of whether states criminalize them. Nearly every modern ICL scholar takes this position, as does the ILC.

The second answer, what I call the “national criminalization thesis” (NCT), rejects the idea that international law bypasses domestic law by directly criminalizing particular acts. According to the NCT, certain acts are universally criminal under international law – and thus qualify as true international crimes – because international law obligates every state in the world to criminalize and prosecute them. No modern ICL scholar has taken this approach, although intimations of it date back to Grotius.

Which thesis is correct? This article argues that it depends on whether we adopt a naturalist or positivist approach to international law. Although every international criminal tribunal has insisted that international crimes are positivist, not naturalist, phenomena, no extant theory of positivism – not even so-called “instant custom” – is capable of justifying the idea that certain acts are directly criminalized by international law. On the contrary: if we take positivism seriously, the NCT provides the only coherent explanation of how international law can deem certain acts to be universally criminal. Maintaining fidelity to the DCT, therefore, requires rejecting positivism in favour of naturalism – with all of naturalism’s inherent limitations.

I have given a number of talks on this topic over the past couple of years, and my positivist critique of direct criminalisation has always proved controversial. The argument in the essay has evolved substantially, but I doubt it will be any more popular. I still continue to be surprised that, with the exception of a somewhat skeptical Roger O’Keefe, no scholar and no court has ever attempted to provide a comprehensive defence of the idea that certain acts (international crimes) are directly criminalised by international law. The idea is simply taken for granted based on a single statement in the IMT judgment and on the work of the International Law Commission. Indeed, as I try to show, direct criminalisation seems to be little more than an article of faith — a naturalist artifact that has proven very useful for the ICL project, which is predicated on the superiority of international law over domestic law. Indeed, my suspicion, merely noted in the essay, is that ICL is inherently naturalist, at least in the form that has the kind of sovereignty-limiting muscle its acolytes believe it should have.

The essay is very long — 30,000 words, nearly 400 footnotes. I’ve submitted it for consideration by AJIL, but I am sure I will revise it substantially before it is ultimately published there or somewhere else. So comments and criticisms are, as always, most welcome.

Human Rights Hypocrisy — Special Rapporteur for Torture Edition

by Kevin Jon Heller

PassBlue published a very disturbing article yesterday about nominations for five vacant UN Special Rapporteur positions. According to the article, although the President of the Human Rights Council, South Korea’s Choi Kyonglim, has endorsed four of the selection committee’s five first choices, he has refused to endorse its first choice for Special Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, Karim Khan QC, in favour of the committee’s second choice, Nils Melzer. There is no question Melzer is a wonderful choice — he’s an accomplished scholar, has vast practical experience with the ICRC, and is a great person. The article suggests, however, that there may be a darker reason for Choi not endorsing Khan — Khan’s defence work at various international tribunals:

Khan has worked in the prosecutor’s office of the international criminal tribunals for the former Yugoslavia and Rwanda, two courts created to try perpetrators of grave crimes in the Yugoslav wars and Rwandan genocide of the 1990s. He has also represented victims in the Extraordinary Chambers of the Courts of Cambodia formed to prosecute culprits of the Cambodian genocide of the late 1970s.

Khan also has a rich history of defending suspects of mass atrocity crimes. His current clients include William S. Ruto, deputy president of Kenya, who until April was on trial at the International Criminal Court in The Hague, charged with crimes against humanity. Khan has also worked on the defense of Jean-Pierre Bemba, a former vice president of the Democratic Republic of the Congo. In June, Bemba was found guilty by the court of war crimes and crimes against humanity.

One academic critic, based in Britain, who spoke on condition of anonymity, said that Khan had not showed enough dedication to protecting victims, given his defense of alleged criminals. This work, the person said, could clash with Khan’s role as special rapporteur if he had been nominated by the council president, should accusations be made against Ruto or other potential clients of his. (The Ruto case was vacated because of witness interference, but could be reopened if new evidence surfaces.)

In his application for the UN role, Khan wrote that “having acted for all sides in cases where torture is alleged, not only helps demonstrate my independence and ability to be impartial, but I believe that it can lend additional credibility to my role as Special Rapporteur.”

The case involving Ruto was deeply marred by witness intimidation, according to Fatou Bensouda, the chief prosecutor of the International Criminal Court, and judges who heard the case. Fergal Gaynor, who represents victims in the court’s case against Uhuru M. Kenyatta, the president of Kenya, has also questioned the extent of Khan’s commitment to justice for victims of violence.

“Bribery and intimidation of witnesses can and does collapse legitimate cases,” he said. “It is fair to question whether Mr. Khan appreciates how interference with witnesses can completely deprive torture victims of the ability to know the truth about the crimes committed against them, to have the wrongfulness of the torture publicly acknowledged, and to receive fair compensation for that torture.”

In an interview in 2014, Khan said of witness problems in the case, “I’m not sure witnesses have been and are being intimidated in this case. As I said, I have prosecuted and defended and represented the victims, and every single case I’ve been involved in has been headlined by ‘This is unprecedented witness intimidation’ and ‘unprecedented’ this and that.”

John Washburn, convener of the American Non-Governmental Organizations Coalition for the International Criminal Court, based at Columbia University, said the issue was “whether Khan’s actions as Ruto’s defense counsel displayed values and judgments that reflect on his suitability as rapporteur.”

The article is careful to avoid directly attributing these ideas to Choi. But given that Khan is the only first-choice candidate Choi has refused to endorse, it seems highly likely that Khan’s defence work is the reason. If so, that’s shocking. Defending individuals accused of serious international crimes is not inconsistent with human-rights work — it is human-rights work. It’s not an accident that Art. 14 of the ICCPR protects a defendant’s right to a fair trial. After all, show trials are a hallmark of repressive states, from Bangladesh to the United States.

This should be Human Rights 101. For some reason, though, the same “human-rights activists” who condemn unfair domestic criminal trials — special courts in Bangladesh and military commissions in the United States alike — fall silent when it comes to international trials. The tacit assumption — which should embarrass anyone who claims to care about human rights — is that an effective defence is unnecessary at international trials, because investigators always do a good job, the OTP is always motivated by a profound love of justice, judges are always infallible, and defendants are always guilty. All of those things are sometimes true. Perhaps even usually true. But not always. Sometimes an international tribunal doesn’t do its job and an innocent person is prosecuted. And it is precisely the job of skilled advocates like Khan to make sure those defendants are not convicted — or convicted only for crimes they actually committed.

I would say this about any defence attorney. (And of course I’m biased, having been one myself.) But it’s particularly appalling that Khan would be vilified for doing his job — anonymously, of course, because the British academic quoted above is a coward who wants to ensure his slander has no professional consequences. (As if anyone really cares what we academics think!) Khan has a sterling reputation as a defence attorney, no matter how contentious some of his trials might have been. I have never seen anyone claim — nor is there even the slightest evidence — that Khan was involved in the Kenyan government’s misconduct in Ruto. And I say that despite being completely convinced that the Kenyan government did, in fact, commit serious misconduct. The comments by Gaynor and Washburn are thus completely misplaced — and all too typical of the tendency, possessed by people who should know better, to conveniently forget that the right to a defence is a human right. But at least Gaynor and Washburn have the courage to attach their names to their opinions!

Finally, although it shouldn’t matter, it is worth remembering — as the article points out, to its credit — that Khan had a distinguished career as an international prosecutor before moving to the other side of the courtroom. He even has experience representing victims. Does he suddenly forget the importance of victims whenever he is retained to act for a defendant? Or does he simply understand that the rights of defendants are no less important than the rights of the other parties to a criminal trial?

I have no doubt Melzer, whom I’ve had the pleasure to know for more than a decade and think the world of, will make an excellent Special Rapporteur. But Khan would have made a great one, as well — and we are left to simply speculate how skilled Khan would have been at convincing states to cooperate with him, given his rich experience defending senior government officials. I hope, despite how it appears, that Choi preferred Melzer for reasons other than Khan’s work as a defence attorney. But if that is why he bypassed Khan, anyone who cares about human rights — all human rights — should be appalled.

A Strange Idea of the Classroom as a “Safe Space”

by Kevin Jon Heller

I have admired Mark Tushnet’s work since I was a law student, so I was very disappointed to read his critique of the now-notorious letter the University of Chicago sent to first-year students about “safe spaces” and “trigger warnings.” Here is the bit that got Tushnet so riled up:

Our commitment to academic freedom means that we do not support so-called trigger warnings, we do not cancel invited speakers because their topics might prove controversial, and we do not condone the creation of intellectual ‘safe spaces’ where individuals can retreat from ideas and perspectives at odds with their own.

Most of Tushnet’s arguments involve reading the letter as uncharitably as possible — such as claiming that the University of Chicago would force a veteran to remain roommates with an anti-war activist who insisted on badgering him about the war every night. (Geoffrey Stone has already made clear that the University was not talking about dormitories.) But I was truly shocked when Tushnet made the following claim about the classroom as a safe space:

Even there, though, sometimes the university should condone the creation of a space in which there is a sharp restriction on “ideas and perspectives different from” the ones being offered in the class. Consider a course described clearly in the catalogue as a course dealing with Austrian economics, with a syllabus whose readings focus tightly on that topic. Students who want to discuss Marxist economics can, I think, properly be silenced in that class – perhaps as long as there is some other university-based venue in which they can explore Marxist economics – so that students only interested in Austrian economics can get on with their studies of that topic. Again – a safe space for the study of Austrian economics.

Really? As long as the University offers a course in Marxist economics, it’s fine for professors to “silence” a student who wants to use Marxist economics to question Austrian economics? The professor in the Austrian economics class should just say, “sorry, questioning Austrian economics is not permitted in this class. We’re here to learn what Austrian economics is about — not why it’s wrong. If you want to know why Austrian economics is wrong, go take a class with my hippie colleague”?

That strikes me as a terrible idea. Of course reasonable limits on discussion are appropriate — the Marxist student shouldn’t be able to dominate the class by questioning every assertion, nor should he or she be able to bring in Marxist ideas that have no relevance to Austrian economics. (“The proletariat will smash your bourgeois Austrian-economics state!”) But that is a far cry from saying it’s fine to “silence” the Marxist student so students “only interested in Austrian economics can get on with their studies of that topic.” That isn’t a “safe space.” It’s a propagandistic one that reduces learning to the uncritical reception of a professor’s preferred ideas. Little wonder the University of Chicago rejected the idea! Tushnet simply makes the University’s point.

PS: Given my lefty tendencies, it’s not surprising that Tushnet’s particular example got my hackles up. But the same criticism would apply to any course that wanted to create a “safe space” for learning a subject by excluding critical perspectives. I would be no less offended if the professor in an ICL course told a student who tried to challenge the value of punitive trials to shut up and go find a course on transitional justice.

BDS Means Showing Disdain for Israeli Athletes?

by Kevin Jon Heller

As regular readers know, although I’m opposed to academic BDS, I fully support its economic incarnation. Which is why I find stories like this both depressing and infuriating:

“I have no problem with Jewish people or any other religion or different beliefs. But for personal reasons, you can’t ask me to shake the hand of anyone from this state, especially in front of the whole world.” These words, spoken by an individual who has just engaged in a gesture of support for the Palestinian people, are a standard response to the accusation of anti-Semitism which is routinely hurled at pro-justice activists.

The necessary distinction made between the “Jewish people” and the Israeli state is one Israel itself seeks to erase, as it strives to deflect all criticism of its policies, blaming it on anti-Jewish hatred instead. As such, these words do not in themselves establish new grounds, but a new approach to solidarity. Yet as Egyptian judoka Islam El-Shehaby uttered them last week in Brazil, they signified a new milestone: the sports boycott had arrived at the 2016 Olympic Games.

“Shaking the hand of your opponent is not an obligation written in the judo rules. It happens between friends and he’s not my friend,” El Shehaby explained, in the fallout from his action, which resulted in his dismissal from the games, for “poor sportsmanship.”

One day before El-Shehaby’s refusal to shake the hand of the Israeli Olympian he had just competed with, another judoka, Saudi Joud Fahmy, had withdrawn from the competition, in order not to have to compete against an Israeli athlete, should she win and advance to the next round.

You want to know why so many people despise BDS? Because of childish, appalling actions like these — actions that make it all too easy to erase the necessary distinction between criticism of Israel and anti-Semitism. I don’t watch the Olympics, in part because I don’t find them interesting (outside of a few sports like football), but mostly because I find the rampant jingoism sickening. But I would never hold the politics that pervert the Olympics against the individual athletes who compete in the games, all of whom — to a man and a woman — have dedicated their lives to sporting excellence. There is absolutely no justification whatsoever for disrespecting an Olympic athlete simply because of the country he or she represents. None.

Here’s a thought experiment. Imagine you did not view the Olympics solely through the prism of politics. Which country do you think more highly of now that the Olympics have ended? Egypt, whose judoka wouldn’t shake an Israeli judoka’s hand? Or New Zealand, whose 5000-metre runner gave up any shot at a medal to help an injured American runner who had initially helped her?

I don’t think what the Egyptian and Saudi athletes did is anti-Semitic. But I sure as hell think what they did was stupid — and profoundly damaging to the BDS cause. If these actions are a “new milestone” for BDS, as Mondoweiss claims, BDS is in serious trouble.