What if America Followed the Rules?

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Particularly after the devastation Donald Trump is wrought on international norms and rules. One answer I'm watching a lot of people come to, and particularly on the left is an international law, which is fallen into such disrepair, can possibly be a source of renewal. But if America is simply followed, the rules it it helped write than a much better role as possible. And I've ordered Can International Law, which is both been so weak at times,

and also been so inspiring that I've as can it actually bear that weight. Linda Kinsler is a fellow at Harvard. She's a contributing writer at the New York Times magazine.

“And the author of "Come to this Court and Cry," how the Holocaust ends.”

She does some incredible writing and reporting on whether or not what we're watching is the death

or the renewal of International Law. She joins me now. [MUSIC] Linda Kinsler, welcome to the show. Thanks so much for having me.

So I want to begin with this video that Mary Zaron Omdani released not that long ago. Arguing for the arrest of Benjamin Netanyahu. There is a reason the international criminal court issued a warrant for his arrest. As human beings we have spent generations building a shared understanding that there are crimes so grave, they offend all of humanity.

Anyone with their eyes, with their heart, with their conscience should recognize the devastation he has wrought and understand that he belongs before a court of law. It is clear that we do not have the independently go authority to enforce this warrant. The federal government, however, does. And I call on them to join the ICC and execute this warrant.

And I want to be equally clear. Benjamin Netanyahu is not welcome in New York City or is any other war criminal at large. What did you make of that? Not just the decision to release it, which has been controversial. But the focus in it on the relationship between America and the international criminal court.

“Yeah, I mean, I think first of all that was an immensely rhetorically powerful thing to do.”

Even in enunciating the crimes in Gaza, that I think we cannot underestimate. Just the kind of moral force of enunciating what those crimes were and articulating them precisely at the moment when they have been negated and denied in so many different places around the world, especially in the United States. I think what that did was call attention to the fact that international law is not separate

from politics, that it is something that we need politicians to speak about as a force that exists and can be used if we choose to use it. Of course, while he was calling attention to the fact that he doesn't have the authority to execute the ICC arrest warrant. And America is not a signatory.

Exactly. So there is. And the Secretary of State and America wants to destroy the court. Halfway across the world, there's an institution that calls itself the international criminal court.

Maybe you've heard of it. Maybe you haven't. The chances are you don't know the names of its judges, of its prosecutors or its president. And you shouldn't have to. But as we speak, the ICC and its friends are waging a war against our country.

Not with bullets or missiles, but with statutes, compacts and the force of so-called international law. Right, no. There's all these reasons. It's like completely not actionable.

It's a double-edged sword because on the one hand you're calling attention to the fact that the ICC does exist, perhaps alerting to people to the fact that there isn't arrest warrant. And on the other hand, there's a danger because you're also calling attention to the positive international law of its inability to work.

And this disjuncture between this idea of arresting the imagery captured of Netanyahu

being arrested in York City versus the reality, which is that that's never going to happen.

I think that disjuncture is kind of dangerous for the perpetuation of international law.

about international law, what are you talking about?

“When many people think of international law, I think they often are actually just thinking”

about criminal law, international criminal law, which is how we get the arrest warrant for Netanyahu or Putin, for example. And there may be not thinking about international law, writ large, where we have things that govern aviation law across the oceans, international transactions, things like that. So formally speaking, you're talking about the institutions that compose international law.

You could say the international court of justice, the international criminal court, the kind of many, many webs of treaties and conventions, the United Nations. Please make up the edifice of international law when we refer to it.

But there's also a kind of more theoretical way of thinking about it as a kind of grammar

as a language. And I think there is this kind of romantic idea of international laws dispassionate. If you look to its origins, it came about when we no longer had the divine right of kings. And we needed some kind of order to fill the void, to order a world without God and without divine right.

Now, this system was created to kind of guide us through the moral void of the world and the inevitability of conflict. And when it fails to do that as it so often does, we are left questioning its viability, its ability to persist in a fallen world.

“I think we're in a really strange moment in the foreign policy politics of the democratic”

party.

And one thing that I think is interesting about the way they have rupture is that you've

provided in coming to the presidency in 2021. Any promises to restore the rules based international order? I speak today as president of the United States at the very start of my administration, and I'm sending the clear message to the world. America is back.

The transatlantic alliance is back. We are not looking backward, we are looking forward together. And he believes in international institutions and international alliances with a force maybe that no other modern president really does. And then Ukraine happens on his watch and then Gaza happens on his watch.

And now what I see many on the left saying is, well, what did you all believe in? If your rules based international order allowed this, if you protected Israel at the UN

“over this, if you gave the arms for this, if you are not a signatory, if you want to protect”

Netanyahu from this, then what was this order? Yeah, I mean, I think and you can almost see the move away from that commitment in the reluctance to use that phrase as the administration progress, right? We get fewer and fewer invitations of the rules based international order. We get extreme reluctance to use words like war crimes and things of that nature.

I think there's also, you know, this nostalgia, I suppose, that for the very fleeting moment of liberal peace that came after the Cold War, you know, this moment of US ceremony when you did have the ICC created. You had this real feeling that international law could be appealed by American strength alone. And of course, we now live in the ruins of that vision.

Let me give voice to the discomfort I've heard from it on the other side, which is a lot of, you know, Jews I know as a participant of Israel. I know one thing I hear them ask a lot is, why is Israel and Gaza the center of all this? There is this sense that Israel has become the locus of all this ferman. I mean, you've written pieces, you know, reviewing books about how Israel is assault on Gaza.

It's war in Gaza after October 7th. When I sit in historical memory the way the Holocaust does, there'll be another moment of sort of a historical turn. And you know what I hear people say is, why Israel not Sudan, not Syria, not even Russia? Why is there this much focus on this country and its particular conflicts and wars?

Well, the apparent answer to that is that Israel is the closest United States ally and Russia is not, for example. But I don't think it's fair to say that these same questions don't come up when we think about, you know, Vladimir Putin is also wanted by the ICC. And I think we see similar behavior events by friendly nations that don't want to arrest him

if he comes onto their territory, you know. And one legal scholar said, it's all very well to say that you uphold the values of international law,

You know, there is this kind of double speak when it comes to these events to values.

“And I think, you know, but I think what the war in Gaza, the United States is implicated in that in a different way.”

I think foreign policy on the left, the response of foreign policy. And here I don't mean the democratic social stuff, I mean like the broad tent of the democratic party, including, you know, moderates, leftists, all these folks. I think what comes next is very unsettled. After the failures of the Biden era, or what are perceived as the failures of the Biden era,

what I perceived as the failures of the Biden era. And of course, then the just want in corruption and aggression and unilateralism of the Trump era, where it's like, if we want maduro, we just go in and take him. And one thing I see people trying to explore is could the next move just be follow the rules. So Abdullah Sayed, who's now the Democratic nominee for sending a Michigan, he was asked in a newspaper,

kind of editorial board interview, how he would make decisions about military aid and getting

a conflicts and his answer was, quote, international law, I believe we ought to be first among

equals to enforce international law. We worked really hard after the worst world war in human history to build all these institutions, to build all these frameworks. And then we became the chief violator of all the frameworks. So the thing I see sort of happening more and the left side of the party, but not only is sort of saying, this structure is already there. We just need to follow it and believe in it. And I guess my question for you is somebody who has really been covering the debate

inside international law of what a canon can't do is, does it have that strength in it? Can it be

“enough of an answer to these problems? Not in and of itself. And I think the key phrase in his”

responses first among equals, right? I think at this point the ship has sailed and it's the extent of the destruction of United States participation in these international courts and its institutions has been so grave. Of course, the rest of the world is now on notice that we can't be

relied upon to uphold any commitments that would result. And that's always been the case. You know,

to say that your policy is going to be international law. That can mean any number of things, right? As we were just discussing, it can also sanction crimes. Of course, that's not what he means. But I think this idea that you can return to a world in which the United States is leading the charge to strengthen the rule of law and the global stage given the situation we're in is perhaps far fest. However, I think there's no question that the field is in need of regeneration and a

“lot of people are calling for that. What form that will take? I think is the crux of the problem.”

Well, let me make the argument for the rules for a minute. Can you see how you respond to it? One argument that I've heard people like Robert Wright make and others is that America would be much better off over its past 20 some years. If it had just followed the rules. If when it couldn't get UN authorization to enter Iraq, it didn't. That if that matter, there would not have been UN authorization to enter Iran. And I think frankly, the Trump administration would be

better off if it had accepted that. And so one argument that I take fairly seriously is I just did Biggie's on the Odyssey and that one value of international law to a superpower is actually that it ties it to the mast. That that is not a drawback. That in fact, it is one we think we can do anything and should that we make our worst mistakes and international law and procedures and institutions for that matter Congress impose of restraint. Absolutely.

It would otherwise be easy to forget. And more of our recent terrible errors seem like they have come from the absence of restraint rather than an excess of it. Yeah. No, I think that's very fair and perhaps true. Although, of course, we don't know what the counterfactual would be. I guess I

would say that the kind of legislative power of Congress is indeed really powerful and should be used

as a mechanism of restraint. And I think we would not be better off in a world in which these international laws did not exist. Like I think what you could call the cynical argument that they have only made the world worse is unjust. And I think that's kind of not born out. And what we see and I think people are better off for being able to name a genocide when it occurs and to claim human rights, even in the breach, even when they're not enforced. I guess what I'm saying is that

it's not going to be sufficient just to say, oh, let's go back to that. Right, because that world has gone and we need to kind of confront the new political reality in which these things have been

live through a couple of cycles in foreign policy history. And I moved to a Washington in 2005, and so obviously

“it's the post-9/11 period. But one memory that is occurring in that period and certainly the”

years before 9/11 is the 90s. In some ways, this is like the apex of the world, quote unquote respecting international law. And the big critique is that the UN and these systems were not able to move fast enough, or clearly enough to prevent terrible massacres in Rwanda and Yugoslavia, and that recently read George Packers really fascinating, I really recommend this book to people, a biography of Richard Holberg called Arman, and it's all about sort of him like trying to work

around this to stop massacres. And so I remember a period when the people who understood themselves as humanitarians, their big critique was that the rules just didn't work. There was two easy to tie things up in process and security council vetoes, and sort of now that the people are humanitarians are sort of taking refuge in the least what international is supposed to

“do. So how do you balance that? Yeah, well I think you're pointing to this moment also when we”

started to see the split in the field between this perception of international law as something that indeed can prevent unpunished the worst atrocities. And something that actually provides license to states to commit those crimes by essentially codifying how they can do it within the realm of quote unquote legality. And I think you know in the 90s you have the Kosovo crisis. United States forces acting with our NATO allies have commenced air strikes against Serbian military

targets in the former Yugoslavia. The first time in its 50-year history that the military action

would be an offensive action and against a sovereign country, UN Secretary General Kofyanin will saying this may be a legitimate use of force. Question NATO's decision not to seek security council approval. Under the charterer, the security council has primary responsibility for maintaining international peace and security. Therefore the council should be involved in any decision to resort to force. The ICJ Judge Hillary Charles talks about this moment as kind of

formative for the perception of international law as this heroic endeavor and international lawyers coming to save the world, right? And that draws a lot of people to the discipline even after then it becomes very clear that that was a kind of extra legal operation. And so you constantly have these moments of international law responding to crisis and then kind of confronting its own ruin and that you see that throughout the 20th century.

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these structures of legality have also created ways to open legal space, maybe, for things

“people consider atrocious. I mean, I think the most evident place you see this and perhaps the”

listeners would be familiar with is the standard of intent for proving genocide. And if it falls short of that standard, then you don't have the grounds for a conviction on that acrylic. Right. If they're intent is to destroy Hamas, even if what they do is general side all from one perspective, in theory, the ICJ would not really genocide. Exactly. And so, another example of this is, you know, if it's a legitimate military target, you can explain it away. If you're attacking it,

and avoid legal accountability in that way. And we've seen that qualification exploited all around

terms that when you hear them explained as, like, this is why this doesn't qualify as genocide,

for example, to people on the street, that just seems like a moral abrogation oftentimes. When we are prepping for this episode, my producer, I'm Jack McCordek, had me reread the speech Barack Obama gave when he was, somewhat wildly given the Nobel Peace Prize, like upon taking office. And it gives this very strange, I particularly in retrospect, very playing both sides of the argument speech where he talks about himself as a sort of direct descendant of Gandhian and Kinyan

non-violence and that movement. I am living testimony to the moral force of non-violence. I know there's nothing weak, nothing passive, nothing naive in the creed and lives of Gandhian King.

But also that there is no peace without America's ability to enforce that peace that

treaties are not what ended World War II that forces what ended World War II. As a head of state, sworn to protect and defend my nation, I cannot be guided by their examples alone. I face the world as it is, and cannot stand idle in the face of threats to the American people. For make no mistake, evil does exist in the world. A non-violent movement could not have halted Hitler's armies.

Negotiations cannot convince Al Qaeda's leaders to lay down their arms. To say that force may sometimes be necessary, is not a call to cynicism, it is a recognition of history. And he really gives his defense of America as like the indispensable superpower that is needed to make any of these ideals real. But then you're sort of back in this, like endless totally.

Run a rod of all what happens if you can't get the UN Security Council to bless your military

“intervention against Russian aggression in Ukraine?”

Yeah, totally. And I think in that speech, he also, if I'm recalling correctly, he speaks of the necessity of being both an idealist and a realist and of not committing to either one of those ideologies and letting it blind you, perhaps, and this idea of the kind of self-enlightened state hedge amon who follows international law. Of course, there's the question, if he was making their argument, we can't pretend that this edifice hasn't been upheld for the past 60 years

without American strength and power. And then, of course, now we are confronting a world in which we are no longer self-enlightened in that way, perhaps, and explicitly destroying all of these commitments or saying, you know, perhaps they're not irrelevant anymore. And Iran, we are seeing the implications of that obligation. You did this big piece for Guardian Long Reads. Are we

“witnessing the death of international law? Yeah. Tell me why? Well, I think that was brought about”

by the Trump administration's explicit rejection and withdrawal from these conventions and treaties and hostility towards all of these institutions that are the physical and bottomants of international law as we think of them. And I think with Secretary of State Marco Rubio announcing this campaign to dismantle the ICC, that has led people to say, oh, is international law a

dead man walking? Can the U.S. actually take this down? And the answer is, it's not up to the United

States to dismantle it. We are not a party to the ICC and we haven't been for some time, but what's happening is we're making it very, very difficult for it to operate through sanctions on the sitting judges. They can't use their credit cards. They can't use American technology. They've spoken about this at length. It's where it stands for a minute that we are treating the judges of the International Criminal Court, like they are top members of Vladimir Putin's

government. Yeah. We are using punitive tools to harm them for what? What is our description of why we were sanctioning? Dolly appointed judges of the ICC? Because of this perceived threat, the language that the State Department has used in its messaging has been about this perceived threat to American personnel and allies, right? So we could think of the arrest warrants for Benjamin

“Netanyahu and go on. But I think it's also important to note that this isn't the first time”

that this has happened. Under Bush, the United States nullified its signature to the room charter, which is what established the ICC and John Bolton at the time said that the United States would make the ICC wither and collapse. We will not cooperate with the ICC. We will provide no assistance to the ICC and we certainly will not join the ICC. We will let the ICC die on its own. After all,

a part ICC brick by brick and they might very well be committed to doing so, but this is not a kind of

anomaly. But what sort of odd about it is that at the same time that we have this intense hostility towards it, you also see them flip at weird moments like Lindsey Graham was very excited about the judgements rendered against Putin. Senator Lindsey Graham says Russian president Vladimir Putin should be investigated for war crimes, and he is urging the Senate to pass a resolution supporting an international criminal court investigation into Putin and his regimes quote "war crimes against

“humanity and war crimes against the people of Ukraine and others" close quote. I think it is an”

American's interest to make sure that Putin who has an arrest warrant issued by the ICC for his

war crimes that we do not forgive and forget as a nation and we have the international community.

And Graham was no friend of the ICC, he was not saying America should become a signatory to it, but then he was saying, "Well, if we counter us Putin for it, we should." And sometimes get this movement, even inside the Republican Party where there can be this remarkable hostility to the ICC that what when they like a ruling or they see it as useful and by the way from other countries too, nothing Putin loves accusing America of violations of international law. There is this constant

what is it, hypocrisy is the tribute, Vice-Paste of virtue, that happens in the way people talk about this? Yeah, and that is a way of using international law to serve the ends of power, right? Of course, when it's being used against our enemies, we can say, "Yeah, great, issue the arrest warrant, and it's a different thing when in the history of U.S. policy it's been wielded against our own allies and personnel." And you know, famously we have what's called the Hague invasion act

that allows us the authority or that Congress has given the authority for the U.S. to literally invade the Hague to extract U.S. personnel who hypothetically would have been arrested by the court. You read a great piece about what gets called flexible realists, some of the Trump administration's flexible realism, which I think in practice is a license to do whatever you want. Well, there's a German

word you had in that piece. Mach policy. What is Mach policy? Could you define that for a second?

Yeah, yeah, yeah, and so that comes from this color Patrick Porter, who says this is the corrupt cousin of realism, right? It's when it precisely when the restraints have been blown away, when a power is no longer cognizant of its own limits, and that's when it really starts to make mistakes. And so everyone quotes through cities the strong will do what they will and the weak will suffer what they must as this kind of creative realism. And actually that's a warning

“that unrestrained power leads to the demise of a nation. And so I think that's what he's saying”

is there's this kind of idea that if you have a form of politics that's purely driven by strength and the will to power, that is a quick way to reach your own demise. And so you have that on the one side, which I think is a little bit of what we're seeing played in Trump's form policy. I don't think it is ended up being enhancing for American power. But certainly they're belief in it. What they have articulated to me personally about their belief is that America had all of this

surplus power that it was not using because it was tied up in all these international forums and agreements. And they were going to use that power. And America was going to exercise its will upon the world in a way that these weak need liberals and leftists were not allowing it to do. And so then you see emerging on the other side something that would much more subordinate, America's power, even beyond where it was in the Obama or Biden or Clinton conceptions of foreign policy, which is,

we should really follow international law. We should follow the rules. If we want to do something, even we think it is moral or right or good. And we cannot get the UN to say yes to it or we can cannot get NATO to say yes to it or we cannot get Congress for that matter to say yes to it. We should not do it even if we find that frustrating. And so it actually seems to me like the foreign policy visions that are emerging are actually much more polarized about how American

power should be used than in other times at least in my time covering foreign policy.

“Yeah, I mean I think there's a debate about whether what you call a subordination to international”

is a limitation of power rather than an expression of it, right? I think this is some realist expressed this view. The international law can be a tool of power and that we are weakening ourselves when we do not subscribe to it and we do not play the game. You see China expressing power by trying to actually influence how international laws conducted and what definitions it uses. For example, one of the things that they're guarding is this principle of sovereignty. That's a very,

which, of course, has implications for their own policy. You kind of see them establishing themselves as the leader and the field in the way that the United States used to be, they're kind of demonstrating how you can flex muscle by participation and not by absence. But to push on that, China to the extent they are stepping into the breach left by America is pushing a vision of the rules that is less about the application of values or morality and more about

the strength of territorial borders. But do they believe in that with Tibet? Do they believe in

that with Taiwan? Have they been all that critical of Xi's dear friend Vladimir Putin entering

Ukraine? Certainly they say that. Right. But when I look at China's behavior, at the very least, it seems there's a large loophole for if you say those are not real borders. That's ours.

“Who's going to stop you? Yeah, totally. And I think that's getting to is this perception that”

international law is not complete. It's full of loopholes. It is full of hypocrisies. What I spoke to John Mirashimer, who is one of the most prominent realists in the country, said of course, you know, we subscribe to the international law when it suits us. And I think China is showing that also. And that gets back to this question about international laws and expression of power and is the vehicle of power. I want to stay for a second though, in this question of

perhaps sovereignty is principle because one thing that I was thinking about as you

begin talking about China is it, yes, you can say that the way China frames its relationship to international law, whether or not they really believe in sovereignty as maybe it looks to me, is questionable fair enough. On the other hand, some interesting convergence here. So Sam Moine

“and Azabali, who are two scholars, I have great respect for Azabali's been on the show.”

There are a piece in the Guardian about what the host American world artist should look like. You tweeted it out very, provingly. And as I read that it was a much more personmonious, much thinner conception of like what the agreement should be that we're really based on sovereignty. It was a sort of anti-war pact. So can you maybe explain what their vision looked like and what

you found interesting in it? What I took them to be saying is that we should almost kind of

return to brass tax and kind of not discount international law as a meaningful force of the world. What I am concerned about is that when people see it not working, for example, in Gaza or in Ukraine and its conspicuous failure to hold back these terrible atrocities that they will discount it entirely. And in my conversations with particularly American lawyers, sometimes they say oh international laws a joke it doesn't exist. And that is coming from the position of that jaman, right? The position

of strength and power, it's not something that you hear in other parts of the world generally speaking. And I think what they are saying is no, it absolutely does exist and it should be preserved, but we can't return to this kind of fantastical vision of a liberal internationalism that has proven

“quite destructive in many ways. So you should go back not to where you have maybe criminal”

courts and all these different treaties, but just saying, and this is me characterizing what I thought I was reading, but I'm not an international lawyer, that the agreement should be we don't invade each other. Yeah, and returning to the taboo against the crime of aggression and of conquest, right, which has been totally blown out of the water in recent years. But then I think you immediately get into this question, which I take as maybe one of the fundamental

questions of foreign policy of international law, what do you do when it is violated? What is law without the police? What is law without enforcement? I think there is a particular challenge that people of a liberal persuasion face right now, and here I mean like broadly liberal, liberal in a way that, you know, unites left in moderates and just kind of people who believe in both domestic and international rules, which is all these systems, from our courts to the UN,

to the ICC, we have these kind of beautiful values. The then need to be made real in the world through flawed institutions run by human beings. Yeah. And because the broad left has become the party that is in the institutions, people become human rights lawyers and international law experts, they fundamentally believe in it, and so their friends are in these institutions, you get really caught in the questions of proceduralism. Yeah. But then he dropped us like a

level beneath. What are the values of the base of all this? When people were building this system, you've written beautifully about the history here. Maybe in a way that like almost no sense naive, like what were they trying to achieve? They were trying to realize a liberal order in which violence would no longer be the way that states would settle disputes, right?

philosopher due to Scholar writes about how this idea of law above all, legalism became inseparable

“from liberalism. And I think what you were speaking about about this kind of turn to proceduralism”

and this emphasis on bureaucracy that often, you know, law gets so caught up in this, and it also makes it hard to understand from the outside that that is actually where precisely these like moral values that undergirded the project and the first place get lost and get drowned out. And, you know, I think often about the fundamental problem of all law, not just international law, is how do you make moral wrongs, wrongs that exceed our capacity really to understand in

certainly punish, how do you nevertheless make them legible in this extremely brutal and perfect system that we have created? You know, and there's this wonderful Scholar at Yosalero

Gott, who many years ago about the icon trial wrote that we've never escaped the problem of

the or a style of the escalist play that the submission of moral wrongs to a legal order. And that's where we're constantly fighting this battle to end the cycle of engines. And our legal systems are constantly showing themselves to be inadequate, but also to hold this strange power that we don't always, and our legal systems are constantly showing themselves to be inadequate, but also to hold this strange power that we don't always know how to use.

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“I want to stand this idea of the moral wrongs and what are we really trying to do with them?”

Yeah. I think that there is a deep ambiguity about whether the underlying values here were about a system in which certain things could not happen, a system in which there was redress for those things, or is what we're really in the end arguing about the historical memory of them. Those are all different kinds of operations and maybe the way I put this to put it in the terms that we're really arguing. There's a question

of Hamasatex on October 7th. There's obviously a deep history in that conflict. There's a lot of legal rulings there. But within international law, Israel was able to respond. I think the

“view is they've gone way too far into a kind of barbarism in Gaza. But what would like redress mean?”

But then I think there's also this question that is operating the particular force there of what is the meaning of it all? I think genocide in particular, the reason that has been such a white hot debate, is because if genocide is proven, it changes the meaning of Israel. It changes what it exists in a historical memory. The real punishment is what you mean going forward. If Israel is the country formed out of genocide and then also one of the very few

proven guilty of it. Then what is Israel? It's really in a way I feel like so much of the fights right now, or can you use international law to impose a meaning on things that have happened such that it exists as a warning to others? Absolutely. And I think the symbolic value of a genocide ruling in the ICCJ cases about Gaza cannot be underestimated. What that would do for everyone involved.

humanity to make them eligible for the ICCJ to be able to bring suits before them that would correct

this elevation of genocide as the kind of crime of crimes. But she argues that the genocide convention has become a memorial to the Holocaust precisely because it hasn't been able to be used. And we only have one decision from my C.J. in the Bosnia versus Serbia case that some people have pointed to as a precedent for what might happen in the litigation against Israel. These are all questions about historical memory and with this question of prevention, one of the sitting judges on the ICCJ

and one of his rulings at the very end he said after describing all of the crimes that had been

commissioned and all of the violations and he ended and he said the court is just a court,

“you know, there is a limit to its power. And I think we have to think about what happens outside”

a court of law, right? You know, if we talk about only what international law can it cannot do then we get right back into legalism, right? Well, this to me is one of the places where maybe this conversation is bearing more weight than it can hold. You know, you imagine a world where the ICCJ rules that maybe entirely or at least for the most part that what Israel possibly believed it was doing was destroying Hamas which was in bed in civilian populations. And so what they did is the same

either way but it cannot be proven as genocide. So one, I don't think any of the people believe

it's genocide would say after that. We'll never mind. We went to the international courts,

the courts ruled, you know, without fear or favor and we're willing to say maybe that went too far

“but it's not a genocide. But on the other side, what people really wanted, I think,”

was not law but leadership that international law is not preventive in this way. And I think so much of the fury that is actually exploding apart that I'm kind of party right now is, you know, it's such a strange thing. It's like Joe Biden had few bigger supporters, particularly at the end than Bernie Sanders and Ocasio-Cortez and that the left and it was, you know, Biden's administration that as much as anyone did allowed this to happen, a bed of this happening. And I think that what

is sort of operating but without people having exactly the way to say what it means in policy is they want to see leadership that would not accept that again and that it's not that it's bound by any one rule or anyone law. But that it is, but like how do you see if there is agreement on morality because I think some of the split in democratic parties, it turned out there wasn't to turn out what some people thought was unimaginable. And what other people thought was just part of

war were different. Yeah, I think there is this unquestionable desire for leadership and, you know, I was even thinking about this. I think most people go about their lives and are not aware of the ICJ and they don't think about it or the ICC for that matter. But there were a few weeks when those proceedings were not only on the front page of the New York Times but also people were waiting outside the peace palace and the Hague, watching a kind of live stream, waiting for a

moreal verdict that wasn't going to come at least certainly not on that day and as you say, certainly not soon. It's not going to be selfish, right? Whatever judgment comes and whatever political resolution, whatever policy changes I think the Democrats need to make and will make, come of this will not undo the harm done. I think this is when we start thinking about international laws, a kind of tragic field and the kind of void of leadership that we are experiencing now is

almost reflective of this inability to kind of articulate the tragic nature of it in politics because that's anathema to how we normally think about messaging that we want our politicians to have it. I think and it goes to something you were saying earlier about why in American politics rushes invasion of Ukraine and Israel's reprisal and Gaza feel different because we were not able to stop rushes invasion of Ukraine. We have certainly hindered it but the difference is there isn't

“a feeling of complicity in it and the some degree I think that means a lot in politics, right?”

People have this question, well, what is America? I don't know. I'm not 100% sure this is true because I think there is something about and has for a long time and something about Israel, the attraction

but I think it's also much more complicated than it has to do with ties and affinity so it's also

comes in positive attention, right, where people have like a deep relationship to Israel in America that they don't have to have other countries but nevertheless that there is like a question of what is it say about who we are and what is say about what our foreign policy is and that

“feels like the deeply unanswered question. I think we're kind of seeing that play out particularly”

if you look at Ukraine right now where you have what is a war of self-defense trying to preserve Ukrainian sovereignty that will certainly end if it does end if we can speak of an end in an unjust

piece, right? It will be kind of negotiating the settlement we're already seeing that the terms are

likely to be favorable to Russia and you know in Gaza the terms with which the Trump administration has spoken about bringing an end to that conflict of similarly kind of almost completely discounted the sovereignty of the Palestinian people and you know I've long been fascinated by this question of endings and how we now live in this era of wars with no discernible and that make making these moral judgments and categories very difficult. What do you mean we live in an era of

wars with no discernible and how is this era different than what's come before it? I think you know well and I have written about how ceasefires have become a replacement for lasting peace settlements and I was really struck by this when as part of the protests against the war in Gaza the kind of prevailing slogan was ceasefire now and ceasefire now that's very powerful

“that stopped the violence you need to ceasefire first and foremost but that's not the same as”

saying we are going to put a stop to this conflict that is essentially saying we are going to stop it

for now and ceasefire is almost always breakdown and it almost kind of serves as an excuse for

sidestepping the more difficult political questions and moral questions that always come to light in these events. What do you think that there's been this turn and international relations away from actual settlements and towards ceasefires and intermedials and kind of periods of quiet rather than big and negotiated finality? There are many explanations right there's it's a matter of political will it's also a matter of the fact that we are no longer

in a unipolar world there are many competing factors right you're more likely to have a lasting settlement when you have multiple states who are signing on to solving the problem which

“increasingly is extremely rare? How much does it also just reflect a loss of belief in the possible?”

I mean on Israel and the Palestinians for one, there was a long period of attempts at peace deals and the days when it felt like America the power to convene and force a real discussion even if it didn't work at the end those days were they've been gone for a long time. Over the past many decades there's this feeling that international law has lost its power of moral imagination and the politicians who subscribe to it have kind of lost any tie with these kind of lofty ideals

that kind of have historically driven the field forward and replace them with essentially managerialism and I think precisely as the democratic party confronts the problem of like what is it's foreign policy going to be it would be very well served to try to recapture an affirmative vision of that moral daringness I suppose to not just say we're going to revert to the rules and let that be that but to actually if you're if you're going to say that that's

that's all very well and fine but say why say that these things have left us after Gaza in particular having to confront the ruins of the kind of liberal internationalist order. Some of you're saying to me recently that they were fascinated by how naive widely held ideals of the fairly recent past now feel that there was a time you know the sixties and seventies where people believe that maybe you could have a world with that war where people believed that they were you know

into the eighties engage in a forever world without nuclear weapons and that there's very little of that kind of fantastical ambition and so I guess I'm curious when in your reporting and your attending of these conferences do you find that there are pockets of people dreaming about things it's

we feel so trapped by a realism about our institutions and that it's hard sometimes to know

“if there are places where people are less trapped on that. No I mean I think well I don't know if”

there is a place where people feel less trapped but I do think that many practitioners and scholars are trying to actively think about what a new international law would look like there is a clear recognition in the field that something has to change and we had these moments historically right you could look to any like you know the hate piece conferences of the late nineteenth century that were then followed almost immediately by World War I or the fact that the Nuremberg charter was

signed just before the bomb was dropped on Nagasaki like these moments of real progress in international law are often followed by profound crises or you know the things that kind of immediately would seem to invalidate the ideals for which they are that they espouse. I think you know my imagination is that we should have a reappraisal of what international law can do in the world right and whether that is going to be preventive or protective if it's going to be

reparative I think this is a really interesting question you know people think of the ICC is just the court that's delivering criminal convictions in fact it's also the trust fund for victims which is giving out payments often in advance of and in parallel to criminal investigations. After the Trump era I mean let's say you do have a democratic president in 2022 and they want to come in and show that the era of international law of America being a participant in the rules

participant in the international order is back what would they have to do to signal something real there?

“Yeah I think this is with a question of moral imagination you know where do we want to go?”

Like I said I don't think it's enough to just say we're reverting to the rules. I think you could imagine and you know mom Donnie explicitly called for this for the United States to join the ICC frankly it's hard to imagine any administration doing that but I think what you could do is meaningfully lend American support to these institutions you know whether it's for example by giving a lot of money to the trust fund for victims for example um to signal kind of material

support there's a kind of register of damages for Ukraine that has been logging everything that people have lost throughout that conflict and right now you know that is just a list

of claims that may never be fulfilled and and we have the power to kind of make that real I think

like my interest is in how do we make international material right how do we make these moral values actually have a difference on people's lives and that's the kind of reclaiming this reparative idea of international law or a reparative politics that kind of can fill in the breach

“that's where I found myself gravitating towards. So I think that's a good place to end”

so always have a final question what are three books you'd recommend to the audience. The first book I would recommend is it's called the divided city by Nicola Roe who was a kind of a French scholar just a gorgeous writer and it's this book that talks about the inherent division of politics and how you can overcome it and historically it takes us back to the classics to ancient Athens that is the titular divided city and speaks about the difficulty of coming

together after a moment of profound rupture. So that's the first one. The second book is coming

out in September it's called Crossing the Red Line by Akbar Shahid Ahmed which is about the Biden administration shifts in policy towards Gaza and precisely how that played out and you know I was just reading it on the train here and it is a very in in-depth reportage about how the kind of red line was ignored and how they kind of said this being red lines that Biden said reviewed it in that and you know who like that's a red line and then yeah I mean you could

specifically the discussion around the invasion of Rafaah. So I would recommend that and then the third book is by it's a novel called Underwater by Tara Menon that just came out which is a kind of it's gorgeous the written and it's this response to Amitav Gosha's prompt that fiction has not figured out a way to describe the immensity of climate change and to capture the kind of tectonic

it's kind of just beautifully executed. Linda Cancer. Thank you very much. Thank you for having me.