What if America Followed the Rules?

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What is a foundation upon which a new, moral, or just American foreign policy can be built?

Particularly after the devastation Donald Trump has 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 followed as such disrepair, can possibly be a source of renewal.

But if America simply followed the rules that it helped right, then a much better world

is possible.

And I've ordered can international law, which has both been so weak at times, and also

been so inspiring that it actually can 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.

Please join me now.

Linda Kinsler, welcome to the show.

Thanks so much for having me.

So I want to begin with this video that Mayor Zaron Romdani 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 brought and understand that he belongs before a court of law.

It is clear that we do not have the independently goal 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, nor 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, you know, but.

And the secretary of state in 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.

But 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 and 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 is an arrest

warrant.

And on the other hand, there's a danger because you're also calling attention to the

posity of international law of its inability to work.

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

being arrested in New 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.

I think before we go further on this, when we talk about the

international law, when you talk 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 they're maybe 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, these 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 law is 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 ruptured is that you've

jobied in coming to the presidency in 2021.

Any promises to restore the rules based international order?

I speak to you today as president of the United States at the very start of my administration

and I'm sending a clear message to the world.

America is back.

The trans-Atlantic alliance is back.

And 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

that and you are 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.

We get fewer and fewer invocations 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 this nostalgia, I suppose, that for the very fleeting moment of liberal

peace that came after the Cold War, this moment of U.S.

Segemony when you did have the ICC created, you had this real feeling that international

law could be appelled 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, a supportive 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 ferment.

I mean, you've written pieces, you know, reviewing books about how Israel, it's assault on

Gaza, it's war in Gaza after October 7th.

And I sit in historical memory the way the Holocaust does, that it'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 on to their territory, you know.

And when legal scholars said it's all very well to say that you uphold the values of international

law, but that doesn't mean you have to invite Putin to come shopping in Paris, you know,

where is this kind of double speak when it comes to these events 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 self, 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

it received as a failure, so the Biden era, what I perceive to be the failures of the

Biden era.

And of course, then the just wanton 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 Abdul Asayad, 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 conflict.

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 on the left side of the party, but not only

is sort of saying, the 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 cannon 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.

You know, and I think the key phrase in his response is 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 institutions has been so grave.

You know, 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 fetched.

However, I think there's no question that the field is in need of regeneration and a lot

of people are calling for that.

But for them, that will take, I think, is the crux of the problem.

Well, let me make the argument for the rules for a minute to 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 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 a big piece 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, after that matter, Congress,

impose a restraint that it would otherwise be easy to forget.

And more of our recent terrible errors seem like they have come from the absence of a

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.

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 borne 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, right, 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 weakened.

One of the things that has been on my mind is I've become old enough now to have lived

through a couple of cycles in foreign policy history.

And I moved to Washington in 2005.

And so obviously it's the post-911 period.

But one memory that is occurring in that period and certainly the years before 911 is

the 90s.

When in some ways this is like the apex of the world, the 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 I recently read George Packers really fascinating.

I really recommend this book to people by the way of Richard Holberg called the R-Man.

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 too easy to tie things up in process and security council vetoes.

And sort of now the people of humanitarians are sort of taking refuge in at least what

international law 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 and punish 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 a close-up of crisis.

The United States forces acting with our NATO allies have commenced airstrikes 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.

You and Secretary General Kofi Annett will say this may be a legitimate use of force.

Question NATO's decision not to seek security council approval.

Under the Charter, 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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Let me more about what is something you just kind of touched quickly, which is the way

in which these structures of legality have also created ways to open legal space maybe for

things people consider atrocious.

I mean, I think you, the most evident place you see this and perhaps that 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 conviction

on that.

Right.

If their intent is to destroy Hamas, even if what they do is genocidal from one perspective,

in theory, the ICJ would not rule a 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 the world and continue to see that

happening.

And so it's these very bureaucratically ballistic terms that when you hear them explained

of, 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.

And we are prepping for this episode, my producer, Jack McCordack had me reread the speech

Barack Obama gave when he was about wildly given the Nobel Peace Prize, like upon taking

office.

And it gives us very strange, particularly in retrospect, very playing both sides of the

argument speech where he talks about himself as a sort of direct descendent of Gandhian

and Kenyan nonviolence.

And that movement.

I am living testimony to the moral force of nonviolence.

I know there's nothing weak, nothing passive, nothing naive in the creed in lives of Gandhi

and King.

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

are not what ended Rollbård II, that force was what ended Rollbård 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 nonviolent 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 the indispensable superpower that is needed

to make any of these ideals real.

But then you're sort of back in this endless run-around of what happens if you can't

get the UN Security Council to bless your military intervention against Russian aggression.

Yeah, totally.

And I think in that speech, he also, if I recall incorrectly, 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, hegemon 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 abnegation.

And you did this big piece for Guardian Longreads.

Are we witnessing the death of international law?

Yeah.

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 embodiments 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 for a sense for a minute that we are treating the judges of the International Criminal

Court like they are top members of Vladimir Putin's government.

We are using punitive tools to harm them for what?

What is our description of why we are sanctioning Dolly a point to 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 Golan.

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 Rome 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, for all intents and purposes, the ICC is already dead to us.

Rubio might have said we're going to take a part of the ICC brick by brick, and they

might very well be committed to doing so, but this is not a kind of anomaly.

But what's sort of odd about it is that at the same time that we have this intents hostility

towards it, you also see them flip at weird moments.

Like Lindsey Graham was very excited about the judgments 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 regime's quote, crimes against humanity and war crimes

against the people of Ukraine and others.

Closed quote.

I thank you to Senator American's interest to make sure that Putin, who has now has an

arrest warrant issued by the ICC for his war crimes that we do not forgive and forget

as a nation, and we help the international community.

Graham was no friend of the ICC.

He was not saying America should become a signatory to it, but they were saying, well,

if we can't arrest Putin for it, we should.

And you 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 like violations

of international law.

That there is this constant, what is it, hypocrisy is the tribute like peace to virtue that

happens in the way you'll 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 US 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 US to literally invade the Hague

to extract US personnel who hypothetically would have been arrested by the court.

You read a great piece about what gets called flexible realism, the Trump conversations

flexible realism, which I think in practice is a license to do whatever you want.

There's a German word you have in that piece.

Marked politic.

What is mocked politic?

Could you define that for a second?

Yeah, yeah, yeah.

And so that comes from the scholar Patrick Porter who says this is the corrupt cousin

of realism, right?

It's when 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 the acidities, 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

play out in Trump's foreign policy.

I don't think it is ended up being enhancing for American power, but certainly their 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 you 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 not 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 at other times, at least

in my time covering foreign policy.

Yeah, I mean, I think there is a debate about whether what you call a subordination to international

law is a limitation of power rather than an expression of it, right?

I think, you know, this is some realist expressed this view that 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 know, you see China expressing power by trying to actually influence how international

law is conducted and what definitions it uses.

For example, one of the things that they are guarding is this principle of sovereignty.

That's very, very important to them.

And so by strengthening the international commitment to sovereignty, 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 are 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.

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.

Well, who's going to stop you?

Yeah, totally.

And I think what that's getting to is this perception that international law is not

completed, right?

Like it's full of loopholes.

It is full of hypocrisies.

What I spoke to John Muirshimer who's one of the most prominent realists in the country,

said, of course, you know, we subscribe to international law when it suits us.

And I think China is showing that also.

And that gets back to this question about international law as an expression of power and

as a vehicle of power.

I want to stay for a second on this question of perhaps sovereignty as a principle, because

one thing that I was thinking about as you began 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 Moyne and Azabali who are two scholars, I have great respect for.

Azabali has been on the show.

They're a piece in the Guardian about what the post-American world order should look

like.

You tweeted it out very approvingly.

And as I read that, it was a much more person monious, much thinner conception of like what

the agreement should be that were 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 in 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.

In my conversations with particularly American lawyers, sometimes they say, oh international

law is a joke, it doesn't exist.

And that is coming from the position of the Jomon, 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 were 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.

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 help.

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 have a liberal persuasion face right

now.

And here I mean like broadly liberal, liberal in a way that unites left and 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, the ICC, we have these kind of beautiful values that

then need to be made real in the world through flawed institutions run by human beings.

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 let me drop 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 almost now sends 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?

There was this notion of peace through law, very romantic ideal.

Because the philosopher, Dutus Schler 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 log it so caught up in this.

And it also makes it hard to understand from the outside that that is actually where precisely

these moral values that undergirded the project and the first place get lost and get

drowned out.

And 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 and

certainly punish?

How do you nevertheless make them legible in this extremely brittle and perfect system

that we have created?

And there's this wonderful scholar at Yosal Rogat, who many years ago about the Icoman

trial wrote that we've never escaped the problem of the orastia of the Eskullis 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 vengeance.

And our legal systems are constantly showing themselves to be inadequate, but also to hold

the strange power that we don't always and our legal systems are constantly showing themselves

to be inadequate, but also to hold the strange power that we don't always know how to use.

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The opinions podcast from New York Times' opinion bringing you a mix of conversations

and new ideas.

featuring the voices of our writers and columnists.

To me, the single most underestimated force in international relations is actually stupidity,

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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.

And those are all different kinds of operations.

And maybe the way I put this in the terms that we're really arguing in now, there's

a question of homosidax on October 7th, there's obviously a deep history in that conflict

right.

There's occupation, there's a lot of legal rulings there.

But within international law, Israel was able to respond.

I think the viewers, they've gone way too far into a barbarism in Gaza.

But what would redress mean?

But then I think there's also this question that is operating in particular force there of

what is the meaning of it all.

And 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, right?

It changes what it exists in as historical memory, right?

The real punishment is what you mean going forward, right?

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?

But it's really in a way I feel like so much of the fights right now are like, can you use

international law to impose a meaning on things that have happened, such that it exists

as a warning to others?

Absolutely.

The symbolic value of a genocide ruling in the ICJ cases about Gaza cannot be underestimated.

What that would do for everyone involved.

And the legal scholar, Laila Seddott, who's really pushing for a convention for crimes against

humanity to make them legible before the ICJ 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 the ICJ 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.

With this question of prevention, one of the sitting judges on ICJ 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.

There is a limit to its power.

And I think we have to think about what happens outside the court of law.

If we talk about only what international law can and 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 ICJ rules that maybe entirely or at least for the

most part that what Israel plausibly believed it was doing was destroying Hamas, which was

embedded 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.

Well, never mind.

We went to the international courts, the courts ruled, you know, without fear of 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 the Democratic 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, and Bernie Sanders

and Ocasio-Cortez and that the left.

And yet it was, you know, Biden's administration that as much as anyone did allowed this to

happen, embedded 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 any one 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.

It turned 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 they're not aware of the ICJ and they don't

think about it or the ICC for that matter.

And 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 moral 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 salvific, right?

Whatever judgment comes and whatever political resolution, right?

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 law as 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 the messaging that we want our politicians

to events.

I think 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 to some degree, I think that means a lot in politics, right?

People have this question like, well, what is America?

Now 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 been something about Israel that attracts attention and interest.

And I know people would say it's an decemitism.

I think it can be that, but I think it's also much more complicated than it has to do with

ties and affinities.

It also comes in positive attention, right, where people have like a deep relationship

to Israel in America that they don't have to other countries.

But nevertheless, there is like a question of what does 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 peace, right?

It will be kind of negotiated settlement.

We're already seeing that the terms are likely to be favorable to Russia.

And in Gaza, the terms with which the Trump administration has spoken about bringing an

end to that conflict have similarly kind of almost completely discounted the sovereignty

of the Palestinian people.

And I've long been fascinated by this question of endings and how we now live in this era

of wars with no discernible end that 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 so 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 stops the violence.

You need a ceasefire person for most, 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 side stepping, the more difficult political

questions and moral questions that always come to light in these events.

Why do you think that there's been this turn in international relations away from actual

settlements and towards ceasefires and interim deals and kind of periods of quiet

rather than big 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

it at peace deals.

And you know, 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, you know, lofty ideals that kind of have historically driven the field

forward and replaced them with essentially managerialism.

And I think precisely as the Democratic Party confronts the problem of like, what is

its 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 going to say that, that's all very well and fine, but say,

say that these things have left us after Gaza in particular, having to confront the

ruins of a kind of liberal internationalist order.

Some of you are saying to me recently that they were fascinated by how naive, widely held

ideals of the fairly recent past now feel.

Yeah.

There was a time, you know, the 60s and 70s where people believe that maybe you could

have a world without war, where people believed that they were, you know, into the 80s, engage

effort to have a 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 seemed like a little fantastical now, but could be a source of at least the regeneration

of values.

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

by 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 Hague Peace conferences of the late 19th 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.

These moments of real progress in international law are often followed by profound crises

or things that kind of immediately would seem to invalidate the ideals for which they

are or 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 as 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 a Democratic president in 2029 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 the 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, Mamdani 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, 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 we have the power to kind of make that real.

I think like my interest is in how do we make international law 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've found myself gravitating towards.

So I think that's a good place to end.

So always have our final question.

What are three books you'd recommend to the audience?

The first book I would recommend is called The Divided City by Nicole Auroh, who was

a kind of 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 moments 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 Shaheed Ahmed, which is about the Biden administration's

shifts in policy towards Gaza and precisely how that played out.

And I was just reading in on the train here.

And it is a very in-depth reportage about how the kind of red line was ignored and how

they kind of set it.

This being red lines that Biden said, we would say to Netanyahu, like, that's a red line.

Yeah, I mean, you could specifically the discussion around the invasion of Rafa.

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 gorgeously written and it's this response to Amitav Gosh's

prompt that fiction has not figured out a way to describe the immensity of climate change

and to capture the kind of tectonic losses and shifts that it will bring about.

And that is what Tara is attempting to do in this book.

And it's kind of just beautifully executed.

Linda Kentzer, thank you very much.

Thank you for having me.