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 [music] and

rules. One answer I'm watching a lot of

people come to and particularly on the

left is that 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've wondered, 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 Kinsler [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 Kinsler, welcome to the show.

>> Thanks so much for having me.

>> So, I want to begin with this video that

Mayor Zoran Mandani 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. Uh 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

um 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 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. 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 posity 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 a 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 laws 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, um, 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.

>> 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 mean, I think and you can

almost see the move away from that

commitment in the uh reluctance to use

that phrase as the administration

progress, 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. Um 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 hijgemony 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

>> there is this sense that Israel has

become the locust

>> 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 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

>> 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 of 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 um double speak when it

comes to these advanced values. And I

think, you know, but I think what the

war in Gaza it it it imp 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 socialist

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 wanting

>> corruption and aggression and

unilateralism of the Trump era where

it's like if we want Maduro we just go

in and take him

and one thing I see people trying to

explore is could the next move just be

follow the rules so Abdullah sayed who's

now the Democratic uh nominee for Senate

in Michigan he was asked asked uh 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 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 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 um 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

farfetched. 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 20ome 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 and international law and

procedures and institutions

and for that matter Congress impose a

restraint

>> absolutely

>> that it would otherwise be easy to

forget

>> and more of our recent terrible errors

seem like they have come from the

absence of restraint rather than an

excess of it.

>> Yeah. No, I think that's 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 word world worse is is unjust.

Um and I think that's kind of not borne

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 Washington 2005 and so

obviously it's the post 911 period.

>> Yeah. But one memory that is occurring

in that period and certainly uh the the

years before 911 is the '9s

>> when the feeling in some ways this is

like the apex of the world quote unquote

respecting international law

>> and the big critique is that the UN and

these systems were not able to move fast

enough or clearly enough to prevent

terrible massacres in Rwanda and

Yugoslavia

and that You know, I recently read uh

George Packer's really fascinating, I

really recommend this book to people,

biography of Richard Hullbrook 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. It was too easy to tie

things up in process and security

council vetos.

>> Yeah. and and sort of now the people

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 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 unquote

legality. Um, and I think you know in

the '9s you know how you have 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 50year history uh

that the military action would be an

offensive action and against a sovereign

country. UN Secretary General Kofan

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

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 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 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 consider it would not rule a

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

McCordic 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 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 was what ended World

War II. As a head of state sworn to

protect and defend my nation, I cannot

be guided by their examples alone.

I face the world as it is and cannot

stand idle in the face of threats to the

American people.

For make no mistake, evil does exist in

the world.

A non-violent movement could not have

halted Hitler's armies.

negotiations cannot convince al-Qaeda's

leaders to lay down their arms.

To say that force may sometimes be

necessary is not a call to cynicism. It

is a recognition of history.

>> And he really gives his defense of

America as like the indispensable

superpower that is needed to make any of

these ideals real. But then you're sort

of [laughter] back in this like endless

>> totally

>> you know runaround of well what happens

if you know you can't get the UN

security council to bless your military

intervention and you know against

>> 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 hegeimon 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 irre relevant

anymore um and we are I think you know

in Iran we are seeing the implications

of that abnigation and

>> you did this big piece 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 um 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 of these institutions that,

you know, are the physical embodiment 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. Uh they've spoken about this

at length. It

>> it's worth to say this for a minute that

we are s we are treating the judges of

the international criminal court like

they are top members of Vladimir Putin's

government.

>> Yeah. We are are are using punitive

tools to harm them for what? What is our

what is our description of why we are

sanctioning douly appointed judges of

the ICC?

>> Because of this perceived threat that

the court poses to um I mean the

language that uh rub 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 Galant. 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 uh 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 IC. We will provide no assistance to

the IC. And we certainly will not join

the IC.

[applause]

We will let the IC 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's 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 Americ'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

>> 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 pace 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 HEG 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 a great piece about what gets

called flexible realism, the Trump

adversation's flexible realism, which

>> I think in practice is a license to do

whatever you want.

>> What there's a German word you had in

that piece. MK politique.

>> What is mach politique? 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 precisely when the

restraints have been blown away, when a

a 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 Thusidities, 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 has 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 were not allowing it

to

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 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

in other times at least in

>> my time covering foreign policy.

>> Yeah. I mean I think there is a debate

about whether what you call

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 realists 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 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 are 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 she'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 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 completestist,

right? Like it's full of loopholes. It

is full of hypocrisies. you know when I

spoke to John Mirshimer 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 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 [snorts] for 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 that yes

you can say that the way China frames

its relationship ship 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 Mo and Azabali who are two

scholars I have great respect for.

Ozabali has 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, you know, very

approvingly

>> and as I read that, it was a much more

parsimmonious,

much thinner conception of like what the

agreements 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? Well, I think what

what I took them to be saying is that

we should almost kind of return to brass

tax 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

in its 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 the hedgeon,

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 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, and 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 health.

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 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 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 Judishclar 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 undergurted

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 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 Yosella Rogat who many years ago

about the trial wrote that we've never

escaped the problem of the orastia the

escalist play that the submission of

moral wrongs to a legal order and that's

where we're constantly fighting this

battle to end the cycle of 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 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 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 a deep history in that

conflict, right? You know, there's

occupation. There's all there's a lot of

legal rulings there.

>> But within international law, like

Israel was able to respond. I think the

view is they've gone

>> way too far into a kind of barbarism in

Gaza. But what would like redress mean?

But then I think there's also this

question that is operating 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 it 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

>> such 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 uh for

everyone involved. And you know, I often

think about um

you know, the legal scholar Leila Sadat

who's really pushing for uh 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 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 um that some people

have pointed to as a precedent for what

might happen uh 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

commissioned and all of the violations

and he ended and he said, the court is

just a court. You know, there is a limit

to its power. Um, and I think 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.

>> 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 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.

>> That international law is not preventive

in this way. And I think so much of the

fury that is actually like splitting

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 Okasio Cortez and

that the the left

>> and yet it was, you know, Biden's

administration that in many that as much

as anyone did allowed this to happen,

emedded 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

>> 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 is 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 and they don't think about it or the

ICC for that matter.

Um 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 and the HG 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. 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 advance. Well, I

think and 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?

>> 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 been 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. It has to do with

ties and affinities. It's also comes in

positive attention, right, where people

have like a deep relationship to Israel

um in America that they don't have to

other countries. But nevertheless, that

there is like a a a question of [snorts]

what does it say about who we are?

>> And what does it say about what our

foreign policy is? And that feels like

the 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 Uh, 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

discernable 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 discernable 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, uh have become a replacement for

lasting peace settlements. And I was

really struck by this when as part of

the kind of protests uh 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 sidstepping 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?

>> I mean we're not we're no longer in this

kind of uh there 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

>> 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

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, uh,

and let that be that. Um, 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,

>> where people believed that they were,

you know, into the 80s engaged 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 yeah

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

actual 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 mo like, you know, the HEG peace

conferences of the late 19th century

that were then followed almost

immediately by World War I or um

the the fact that the Nermberg Charter

was signed just before the bomb was

dropped on Nagasaki. like the these

moments of real progress in

international law are often followed by

uh profound crises or you know 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, a 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, Mani 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 is 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

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

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 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 Lao.

um who was a kind of a French scholar

just a gorgeous writer and it's this

book that talks about the inherent

division of politics and how you can

overcome it and historically it's it's a

it's 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

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 uh 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

>> this being red lines that Biden set

where he would say to Netanyahu like

that's a red line and then

>> yeah I and you could specifically the

discussion around the invasion of

>> Rafa.

>> So I would recommend that. Uh and then

the third book is by it's a novel called

Underwater by Tara Manon uh that just

came out which is a kind of it's it's

gorgeously written and it's this

response to Amitav Goch'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 Kensler, thank you very much.

>> Thank you for having me.

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