The Warring Visions of American Power | The Ezra Klein Show transcript

What is the foundation upon which a new, more moral, more just American foreign policy can be built? Particularly after the devastation Donald Trump has wrought on international norms and [music] rules. One answer I'm watching a lot of people come to, and particularly on the left, is it international law, which has fallen into such disrepair, >> [music] >> can possibly be a source of renewal. That if America simply followed the rules that it helped write, then a much better world is possible. >> [music] >> And I wonder if it can international law, which has both been so weak at times, and also been so inspiring at others, can it actually bear that weight?

Linda Kinstler [music] 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's done 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 Kinstler, welcome to the show. >> Thanks so much for having me. >> So, I want to begin with this video that Mher Azar Mamdani 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. >> [snorts] >> It is clear that we do not have the independent legal 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. >> [gasps and sighs] >> 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. Uh 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, uh especially in the United States. I think, you know, 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.

Um and so, I think of course, while he was, you know, he was calling attention to the fact that he doesn't have the authority to execute the ICC arrest warrant. >> And America's 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. Right. No, there's all these reasons it's like completely, uh 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 paucity of international law, of its inability to work, and this disjuncture between um you know, 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 when we talk about 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 would, you know, put which is how we get the arrest warrant for Netanyahu or for Putin, for example.

And they're maybe not thinking about international law at large, where we have things that govern like, you know, aviation law across the oceans. Um 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, uh the kind of many, many webs of treaties and conventions, the United Nations.

Um these make up the edifice of international law when we refer to it. Um You know, 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 what, you know, there is this kind of romantic idea of international law as dispassionate. Um you know, if you look to its origins, it came about when we no longer had, you know, the divine right of kings, and we needed some kind of order to fill the void, to you know, to order a world without God and without divine right.

And so now this system was created to kind of guide us through the 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 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. I think they're in in rupture. And one thing that I think is interesting about the way they have ruptured is that you have Joe Biden come into the presidency in 2021.

And he promises to restore the rules-based international order. >> Mhm. >> I speak 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 transatlantic 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? Right? 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 then what was this order? >> Mhm. Yeah, I think I think and you can almost see the move away from that commitment in the reluctance to use that phrase as the administration progresses, right?

We get fewer and fewer invocations of the rules-based international order. We get you know, 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 hegemony when you did have the ICC created, you had this um real feeling that international law could be upheld by American strength alone.

And of course, we know 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, supporters of Israel I know, one thing I hear them ask a lot is why is Israel and Gaza the center of all this? >> Mhm. >> There is this sense that Israel has become the locus >> Mhm. >> of all this ferment. I mean, you've written pieces, you know, reviewing books about how, you know, Israel uh it's, you know, assault on Gaza, its war in Gaza after October 7th, will now sit in historical memory the way the Holocaust does, that it'll be another moment of sort of a historical turn. >> Right. >> 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? >> Mhm. Well, the apparent answer to that is that Israel is the closest United States ally and Russia is not, for example. Um and I think but I I 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. Um and I think we see similar behavior evinced by our, you know, friendly nations that don't want to arrest him if he comes onto their territory, you know?

And one legal scholar said it's 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? There is this kind of double speak when it comes to these evinced values. And I think, you know, but I think what the war in Gaza it it it 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 Socialists left, 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 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 El-Sayed, who's now the Democratic nominee for governor he was asked in a newspaper kind of editorial board interview how he would make decisions about military aid and getting into 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, you know, more on the left side of the party, but not only, is saying, 'The structure is already there. We just need to follow it and believe in it.' And I guess my question for you as somebody who has really been covering the debate inside international law of what it can and 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? If the United States I I think at this point the ship has sailed and it's 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 you know, we can't be relied upon to uphold any commitments that would result and that's always been the case.

Um and I think 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. Um 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 on the global stage um 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. What form that will take, I think is is the the crux of the problem. >> Well, let me let me make the argument for the rules for a minute to see how you respond to it. You know, one argument that uh 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 >> Mhm. >> it didn't. >> [snorts] >> That I mean for 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. >> Right. >> And so one argument that I take fairly seriously is uh I just did a big piece on 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 when we think we can do anything and should that we make our worst mistakes in international law and procedures and institutions and for that matter Congress impose a restraint >> Absolutely. >> 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 that's very fair and 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 the the what you could call the cynical argument that they have only made the world world worse is is unjust.

Um and I think that's kind of not born out in 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. Um 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 don't know.

I've become old enough now to have lived 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. >> Yeah. >> But one memory that is occurring in that period and certainly uh the the years before 9/11 is the '90s. >> Mhm. >> When the feeling at in some ways this is like the apex of the world quote unquote respecting international law. >> Mhm. >> 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, you know, I recently read a George Packer's really fascinating, I really recommend this book to people, biography of Richard Holbrooke called Our 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. >> Yeah. >> And and sort of now the people who are humanitarians are sort of taking refuge in at least what international law is supposed to do. >> Mhm. >> So how do you balance that? >> Yeah, well, I think you're pointing to this a 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.

Uh 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} legality. Um and I think, you know, in the '90s, you know how 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 uh that the military action would be an offensive action and against a sovereign country. >> UN Secretary-General Kofi Annan, while saying this may be a legitimate use of force, questioned 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. >> You know, the ICJ judge Hillary Charlesworth 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 then even after then it becomes very clear that that was a kind of extra-legal operation.

Um 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. >> Tell 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. >> Abs- I mean, I think you just 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 crime. >> Right, if their intent is to destroy Hamas, even if what they do is genocidal from one perspective, in theory the ICJ would not consider it would not rule it genocide. >> Exactly. And so And the other example of this is, you know, if it's a you know, a quote legitimate military target, you can explain it away if you're attacking it um and avoid legal accountability in that way and we've seen that uh qualification exploited all around the world and continue to see that happening.

And so it's these very bureaucratic legalistic 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 often-times. >> Um when we were prepping uh for this episode, my producer um Jack McCordick uh had me reread the speech Barack Obama gave when he was somewhat wildly given the Nobel Peace Prize like upon taking office. >> And he gives this very strange like particularly in retrospect very playing both sides of the argument speech where he talks about himself as a sort of direct descendant of Gandhian of Gandhian and King Kingian non-violence and and 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 Gandhi and 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 force is 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 this 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 [laughter] in this like endless >> Totally. >> you know, run around of a what happens if you know, you can't get the UN Security Council to bless your military intervention and you know, against >> Yeah. >> Russian aggression in Ukraine. Like >> Yeah, totally. And I think in that speech he also I if I'm recalling correctly, he speaks of, you know, 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 you know, this idea of the kind of self-enlightened state hegemon who, you know, follows international law. Of course, there's the question if, you know, he was making the 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 relevant anymore.

And we are I think, you know, in Iran we are seeing the implications of that abnegation. >> And you did this big piece for Guardian long reads. I think it was titled, are we witnessing the death of international law? >> Yeah. >> Tell me why. >> [gasps] >> Well, I think that was brought about by the Trump administration's kind of uh, explicit rejection and withdrawal of from these conventions and treaties and hostility towards all these institutions that you know, are the physical embodiments of international law as we think of them.

And I think you know, with um, 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, right? Can the US actually take this down? Um, and the answer is it's not the 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, you know, use their credit cards. They can't use American technology. They've spoken about this at length. >> It's worth to stand for a minute that we are sanc- we are treating the judges of the International Criminal Court like they are top members of Vladimir Putin's government. >> Yeah. >> We are are using punitive tools to harm them for what? Well, what is our What is our description of why we are sanctioning duly appointed judges of the ICC? >> Because of this perceived threat that the court poses to I mean, 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 Gallant. But, I think it's also important to to note that this isn't the first time that this has happened. You know, the 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 uh 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. >> [applause] >> We will let the ICC die on its own. After all, for all intents and purposes, the ICC is already dead to us. >> So, this is, you know, Rubio might have said we're going to take apart the ICC brick by brick, and and they might very well be committed to doing so, but but this is not a kind of uh anomaly. >> But, what sort of odd about it is that at the same time that we have this intense hostility towards it, you will also see them flip at weird moments.

Like Lindsey Graham was very excited about the judgments rendered against Putin. >> Yeah. >> 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 war crimes against humanity and war crimes against the people of Ukraine and others, close quote. >> I think it is in America's interest to make sure that Putin, who is 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. >> 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, you know, if we can arrest Putin for it, we should. And you you sometimes get this movement where, you know, even inside the Republican Party where there can be this remarkable hostility to the ICC, that well, when they like >> Yeah. >> 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 that there is this constant what is it?

Hypocrisy is the tribute vice pays to 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. Uh, issue the arrest warrant. And it's a different thing when, you know, in the history of US policy, it's a different thing when it's been wielded against our own um 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 wrote a a great piece about what gets called flexible realism. The Trump administration's flexible realism, which I think in practice is a license to do whatever you want. >> Mhm. >> Well, there's a German word you had in that piece. >> Machtpolitik. >> What is Machtpolitik?

Could you define that for a second? >> Yeah, yeah, yeah. And so so that comes from the scholar 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 power is no longer cognizant of its own limits, and that's when it really starts to make mistakes. And so you know, everyone quotes Thucydides, you know, that the strong will do what they will and the weak will suffer what they must as this kind of creed of realism.

And actually that's a warning that unrestrained power leads to the demise of a 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 it 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 >> Mhm. >> in a way that these weak knee liberals and leftists were 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, you know, 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 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. >> Mhm. >> 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's 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 there's this you could and I think, you know, this is some realist express 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're you know, guarding is this um principle of sovereignty.

That's a very, very important to them and so by strengthening the international commitment to sovereignty, which of course um has implications for their own policy, you kind of see them establishing themselves as the leader in 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 to push on that, China, to the extent they are stepping into the breach left by America, is pushing a more 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 it? 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, but when I look at China's behavior, I don't see 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 a who's going to stop you? >> Yeah, totally.

And I think what that's getting to is this this perception that international law is not completist, right? Like it's full of loopholes, it is full of hypocrisies. You know, when I spoke to John Mearsheimer, who's one of the most prominent realist in the country, he said, "Of course, you know, we subscribe to international law when it suits us." Um, 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.

Um >> I want to stay for [snorts] a second though 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, Samuel Moyn and Oona Hathaway, who are two scholars I have great respect for. Oona Hathaway's been on the show. They wrote a piece in The Guardian about what the post-American world order should look like. You tweeted it out in a very approvingly. And as I read that, it was a much more parsimonious, much thinner conception of like what the agreements should be that were really based on sovereignty. It was a sort of an anti-war pact.

So, can you maybe explain what their vision looked like and what you found interesting in it? >> Well, I think what what I took them to be saying is that we should almost kind of return to brass tacks and kind of um not discount international law as a meaningful force in the world. And I think what I am concerned about is that when people see it not working, um for example, you know, in Gaza or in Ukraine, and it's in its conspicuous failure to hold back these terrible atrocities, that they will discount it entirely.

And and in my conversations with particularly American lawyers, you know, sometimes they say, "Oh, international law is a joke. It doesn't exist." And that is coming from the position of that jamon, right? 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 it can't 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 This is me characterizing what I thought I was reading, but I'm not a international lawyer.

That the agreement should be, "We don't invade each other." >> Yeah, and 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 >> Mhm. >> that uh people of a liberal persuasion face right now. And here I mean like broadly liberal, liberal in a way that, you know, 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. >> Yeah. >> And because the sort of the broad left has become the party that is in the institutions, right?

People who believe in 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 like caught in the questions of proceduralism. >> Yeah. >> But let me drop us like a a level beneath. What are the values at 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 now sounds naive. Like what were they trying to achieve? >> [snorts] >> They were trying to uh realize a liberal order in which >> [gasps] >> uh violence would no longer be the way that states would settle disputes, right? There was this notion of peace through law, very romantic ideal. And you know, the philosopher Judith Shklar writes about how this idea of law above all, legalism, became inseparable from liberalism. >> [snorts] >> Um and I think what you were speaking about about this kind of turn to proceduralism um and this emphasis on on bureaucracy that often, you know, law gets so caught up in this and and it also makes it hard to hard to understand from the outside >> [sighs] >> that that is actually where precisely these like moral values that undergirded the project in 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, uh is how do you uh 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, you know, and um there's this wonderful scholar at Yeshiva University who many years ago about the Eichmann trial wrote that we've never escaped the problem of the Oresteia, the Aeschylus 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 this strange power that we don't always know how to use. >> I I want to stay on 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, >> Mhm. >> or is what we're really in the end arguing about the historical memory of them?

Right? And those are all different kinds of operations. And And And maybe the way I'd put this, to put it in in the terms I think that we're really arguing in now, there's a question of, you know, Hamas attacks on October 7th. There's obviously deep history in that conflict, right? You know, there's occupation, there's all there's a lot of legal rulings there. >> Mhm. >> But within international law, like Israel was able to respond.

I think the view is they've gone >> Right. >> 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 with particular force there of what is the meaning of it all? And I think genocide in particular, the reason that has been, you know, such a white-hot debate, >> Yeah. >> is because if genocide is proven, it changes the meaning of Israel, right?

It It changes its what it exists in as historical memory, right? The real punishment >> Mhm. >> is what you mean. >> Yeah. >> Going forward, right? If Israel is a country formed out of genocide and then also one of the very few proven guilty of it. >> Yeah. [snorts] >> Then what is Israel? But it it's really in a way I feel like so much of the the fights right now are like can you use international law to impose a meaning on things that have happened? >> Mhm. >> So that it exists as a warning to others. >> Absolutely.

And I think, you know, the symbolic value of a genocide ruling in the ICJ cases about Gaza cannot be underestimated. What that would do for everyone involved and, you know, I often think about um you know, the the legal scholar Leila Sadat 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, you know, elevation of genocide as the kind of crime of crimes.

Um but she's she argues that the genocide convention has become a memorial to the Holocaust be 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. Um I think you're right. I mean, these are all questions about historical memory and with this question of prevention one of the sitting judges on the ICJ in his in one of his rulings at the very end he said, you know, after describing all of the crimes that had been committed 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.

Um and I I we have to think about what happens outside the court of law, right? This this you know, if we talk about only what international law can and cannot do, then we get right back into legalism, right? >> Well, well, this to me is 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. >> Yeah. >> 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 who believe it's genocide would say after that "Well, never mind. We went to the international courts, the courts ruled, you know, without fear or favor, and um we're willing to say maybe that went too far, but it's not a a genocide." But on the other side what people really wanted, I think was not law, but leadership. >> Mhm. >> 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, than Bernie Sanders and Ocasio-Cortez and and that the left. >> And yet it was, you know, Biden's administration that in many that as much as anyone did allow this to happen, abetted this happening. And I I 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. >> Mhm. >> But that it is But like how do you see if there is agreement on morality? Because I think some of the split in the Democratic Party is that it turned out there wasn't. It turned out what some people thought was like unimaginable. >> Mhm. >> And what other people thought was just part of war were different. >> Yeah, I think there's this unquestionable desire for leadership.

And you know, I was even thinking about this um I think most people go about their lives and they're not aware of the ICJ. They don't think about it or like ICC for that matter. And but there were a few weeks when those proceedings were not only you know, on the front page of the New York Times, but also people were waiting outside the Peace Palace in The Hague watching a kind of live stream waiting for a more moral verdict that wasn't going to come at least certainly not on that day.

And as you say, certainly not soon. Um I think you know, it's not going to be salvific, right? Whenever whatever judgment comes and whatever political resolution, right? Whatever policy changes I think the Democrats need to make and will make come of this uh will not >> [sighs] >> undo the the harm done. Um I think like this is when we start thinking about international law as a kind of tragic field. Um and I think 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 uh in politics.

Because that's that's anathema uh to how we normally think about um the messaging that we want our politicians to evince. >> Well, I think it it goes to something you were saying earlier about why why in American politics Russia's invasion of Ukraine and um Israel's reprisal in Gaza feel different. >> Yeah. >> Because we were not able to stop Russia's invasion of Ukraine. We have certainly hindered it. >> Mhm. >> 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? >> Mhm. >> Now, I don't know. I I I 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 that attracts attention and interest and, you know, I know people would say it's anti-Semitism. I think it can be that, but I think it's also much more complicated than that and 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 in other countries. But nevertheless, if there is like a a question of [snorts] what does it say about who we are? >> Mhm. >> And what does it say about what our foreign policy is. And that feels like the the like the deeply unanswered question. >> Right. And and I think, you know, we're kind of seeing that play out, particularly if you look at Ukraine right now.

Um where you have what was a war of, you know, is a war of self-defense, kind of, you know, 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 you know, in Gaza the terms with which the Trump administration has kind of spoken about an end, bringing an end um to that conflict have similarly kind of almost completely discounted the sovereignty of the Palestinian people and I think, you know, I've long been fascinated by this question of endings and how we now live in this era of of wars with no discernible end that make, you know, making these moral moral judgments and categories very difficult. >> What do you mean we live in an era of wars with no discernible end?

How How is this era different than what's come before it? >> I think, you know, well, and I I have written about how ceasefires have, you know, and have become a replacement for lasting peace settlements. And I was really struck by this when, as part of the kind of protests against the war in Gaza, the the kind of prevailing slogan was ceasefire now. And ceasefire now, that's very powerful. That stops the violence, you know, you know, you need a 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. Um and, you know, ceasefires almost always break down, and it it almost kind of um serves as an excuse for um sidestepping 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? >> Well, I mean, we're not we're no longer in this kind of There are 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, you know, 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, >> Yeah. >> there was a long period of attempts at at peace deals and you know, the days when it felt like America had the power to convene and force a real discussion, even if it didn't work at the end, like those days were long they've been gone for a long time. >> Over the >> past many decades, the 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 lost any tie with these kind of, you know, lofty ideals that kind of have historically driven the field forward and and replace 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 if you're going to say that, that's that's all very well and fine, but say why. Say say that these things have um left us after Gaza in particular having to confront the ruins of the the kind of liberal internationalist order. >> Somebody was saying to me recently that they were fascinated by how naive widely held ideals of the fairly recent past now feel. >> Yeah. >> That there was a time, you know, the 60s and 70s where people believed that maybe you could have a world without war. >> Mhm. >> Where people believed that they were, you know, into the '80s engaged in 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, you know, in your reporting and your attending of these conferences, do you find that there are pockets of people dreaming about things that seem like a little fantastical now, but but could be a source of at least the regeneration of values. We we feel so trapped by a realism about our institutions. >> Yeah. >> 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 actually like actively think about what a new international law would look like.

There is a clear recognition in the field that something has to change. Um and we had these kind of 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 um the fact that the Nuremberg Charter was signed just before the bomb was dropped on Nagasaki. Like these these moments of real progress in international law are often followed by uh profound crises or, you know, the things that kind of immediately would seem to invalidate the the ideals for which they are or that they espouse.

I think you know, my imagination is that we should have a kind of like 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 have 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 >> [snorts] >> 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, I'm 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 >> [sighs and gasps] >> 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. Uh 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 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 the How do we make international law material, right? How do we make these um moral values actually have a difference on people's lives and and that's the kind of reclaiming [snorts] this reparative idea of international law or 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 end on our 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 Nicole Loraux um who was a kind of French scholar to gorgeous writer and it's this book that talks about the inherent division of politics and how you can overcome it and historically it's it's a it's a takes us back to the classics to ancient Athens that is the titular divided city and speaks about you know, the difficulty of coming together after a moments of profound rupture.

So that's the first one. Uh >> [sighs] >> the second book is coming out in September. It's called Crossing the Red Line um by Akbar Shahid Ahmed which is about the Biden administration's uh 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 um ignored uh and how they kind of set >> And these being red lines that Biden set or he would set in Netanyahu like that's a red line and then >> Yeah, I mean you could specifically the discussion around the invasion of Rafa. >> Uh-huh. >> So I would recommend that.

Uh and then the third book is by it's a novel called Underwater by Tara Menon uh that just came out which is a kind of it's it's gorgeously written and it's this response to Amitav Ghosh's uh prompt that fiction has not found figured out a way to describe the immensity of climate change uh 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 it's kind of just beautifully executed. >> Linda Kensel, thank you very much. >> Thank you for having me. >> [music] [music]