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History As It Happens
Bombing and Starving International Law
00:40:01
Eighty years ago, during the final weeks of the worst war ever fought, the United Nations Charter was signed in late June 1945, outlawing aggression and upholding universal human rights. World leaders agreed a legal edifice was necessary for the...
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- [00:01]
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- [00:28]
Martin DeCaro
History as it happens. July 1, 2025 Bombing and starving International law.
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Historical Figure
The Charter for World Peace has been completed. But this is not the end. It is only the beginning. Let us therefore, each in his own nation and according to its own way, seek immediate approval of this charter and make it a living thing.
- [00:51]
Martin DeCaro
Eighty years after the UN charter was signed in late June 1945, in the final weeks of the worst war, the world is aflame with war and genocide, leading some to ask if international law hasn't been killed off too. From Ukraine to Gaza, Sudan, Myanmar, the Democratic Republic of Congo, today there are dozens of conflicts tormenting the lives of millions of people. If might makes right, the rules based order is over. That's next as we report history as it happens. I'm Martin DeCaro.
- [01:24]
Antonio Guterres
Today we see assaults on the purposes and principles of the UN Charter.
- [01:29]
Adeel Haq
Like an Israeli newspaper report saying that soldiers were ordered to shoot at unarmed civilians waiting for food aid in Gaza has been strongly rejected by Israel's Prime Minister. Russia fired more than 400 drones and 40 missiles at Ukraine overnight.
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Martin DeCaro
For 40 years, Iran has been saying death to America, death to Israel. This is a clear and present danger to Israel's very survival.
- [01:54]
Adeel Haq
International law is not dead, but it is facing a series of very serious challenges. So first we have an accumulation of very serious violations of core rules of international law by Russia, by the United States, by Israel, by others, all at the same time. And that is a problem because international law, like all law, seeks to make a difference in the world and achieve certain purposes. And to the extent that it's violated, it's not serving those purposes.
- [02:27]
Martin DeCaro
President Truman congratulates the 280 delegates and.
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Historical Figure
Expresses the world's hopes for the new international organization.
- [02:34]
Martin DeCaro
When the UN Charter was signed in San Francisco outlawing aggressive war and upholding universal human rights, President Harry Truman captured the spirit of the moment. His remarks were a warning come true.
- [02:47]
Historical Figure
Between the victory in Europe and the final victory in Japan, in this most destructive of all wars, you have won a victory against war itself. If we had had this charter a few years ago, and above all the will to use it, millions now dead would be alive. If we should falter in the future in our will to use it, millions now living will surely die.
- [03:18]
Martin DeCaro
That was Truman. June 1945. Here is UN Secretary General Antonio Guterres a few days ago.
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Antonio Guterres
But let's be clear. Today we see assaults on the purposes and principles of the UN Charter like never before. The threat and use of force against sovereign nations, the violation of international law, including international humanitarian law and international human rights law, the targeting of civilians and civilian infrastructure, the weaponization of food and water, the erosion of human rights. On and on we see an all too familiar pattern follow when the Charter suits ignore when it does not.
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Martin DeCaro
The law itself then, is not the problem. Wars of aggression and indiscriminate violence against civilians are as illegal today as they were in the aftermath of the Second World War. A problem, as always, comes from politicians and militaries who stretch the definition of, say, self defense to the breaking point. Eighty years ago, the Jewish people were the victims of a holocaust perpetrated by the Nazi regime. Today the Jewish state refuses to be a victim of a nuclear holocaust perpetrated by the Iranian regime. That was Israeli Prime Minister Benjamin Netanyahu explaining why he ordered military strikes against Iran a couple of weeks ago. Now you'll remember that Netanyahu was charged with war crimes by the International Criminal Court because of what's happening in Gaza. And he was supposed to have been arrested when he visited Viktor Orban's Hungary in April. Instead, Orban quit the icc. In an essay for the Guardian titled Are We Witnessing the Death of International Law? The scholar Linda Kinsler writes, the creation of the ICC in 1998 was the realization of the most romantic aspirations of international law, holding perpetrators of emblematic crimes to account whenever their own nations failed to do so. The court opened its doors at a unique and perhaps unreplicable moment in international relations, when the world's powers were still enjoying the afterglow of the end of the Cold War. That period turned out to be short lived. The icc, she says, could never fully live up to the aspirations that ushered it into being. In its 23 year history, it has only delivered 11 convictions, all of which have been for crimes committed on the African continent. And again, that is Linda Kinsler writing for the Guardian. I'll share a link to her essay in my weekly newsletter. You can sign up@historyasithappens.com or just search for history as it happens on Substack. There is also the UN Security Council, which is supposed to decide when nation states may resort to violence. It is paralyzed because of the veto power of its permanent members. Would Russia ever vote to sanction itself for invading Ukraine? Would the United States agree to any resolution saying it or Israel violated the UN Charter by bombing Iran on the possibility it might have a nuclear weapon one day? Well, right now, much of the US Media's attention is focused on the Middle East. I've done several episodes about the question of genocide in Gaza because of Israel's indiscriminate bombing, denial of food and medicine, and more recently, the Israeli newspaper Haaretz reported IDF soldiers were given orders to shoot Palestinian civilians at that monstrous aid distribution site where hundreds have been shot dead seeking food.
- [06:50]
Adeel Haq
More aid seekers were killed and wounded on Friday at an aid distribution point run by the controversial Gaza Humanitarian foundation, or ghf. The injured were taken to a medical facility without the capacity, equipment or staff to deal with more casualties.
- [07:09]
Martin DeCaro
Take a look across the globe and you'll see violent conflict everywhere. The Geneva Academy's Rule of Law and Armed Conflict online portal counts 110. Most are what are called non international armed conflicts, civil wars, or situations involving numerous armed groups who fight against the government and against each other. The United nations says it currently deploys tens of thousands of peacekeepers across 11 operations, so the picture is not entirely hopeless. Meanwhile, Europe's largest land war since 1945, Russia's invasion of Ukraine is well into its fourth year with no end in sight.
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Adeel Haq
Russia has launched one of its biggest.
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Antonio Guterres
Drone and missile attacks yet on Ukraine's.
- [07:52]
Adeel Haq
Capital, killing at least 15 people.
- [07:54]
Martin DeCaro
In 1945, no one expected peace to reign for all time. In fact, because these horrors would return, an international legal edifice was built to peacefully arbitrate disputes and to hold aggressors accountable. It is not working. Adeel Haq is a Distinguished professor of Law at Rutgers Law School. He writes on the law and ethics of armed conflict and the philosophy of international law. His first book, Law and Morality at War, was published by Oxford University Press in 2017. Our conversation next History is defined by.
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- [08:57]
Martin DeCaro
Adeel Haack welcome to the podcast.
- [08:59]
Adeel Haq
Thanks so much for having me.
- [09:00]
Martin DeCaro
We're delighted to have you here. Your first time, you know, my most recent episode, I asked Joe Cirincione, is the non proliferation regime dead? I'm going to ask you a similar question, even though it's not a yes or no type situation, so you can take this in any direction you want. Is international law dead?
- [09:18]
Adeel Haq
International law is not dead, but it is facing a series of very serious challenges. So first, we have an accumulation of very serious violations of core rules of international law by Russia, by the United States, by Israel, by others, all at the same time. And that is a problem because international law, like all law, seeks to make a difference in the world and achieve certain purposes. And to the extent that it's violated, it's not serving those purposes. Second, the institutional mechanisms through which international law is supposed to be applied and enforced are facing unprecedented bottlenecks, most notably in the Security Council, where the abuse of the veto by both Russia and the United States is preventing the Security Council from discharging its responsibility for the mainten of international peace and security and also the enforcement of international law. And finally, in at least some cases, we're seeing the rules themselves under challenge, where expansive or permissive interpretations of certain rules are being put forward by some states and not always getting the pushback from the rest of the international community that one might want to see.
- [10:32]
Martin DeCaro
Well, my question is metaphorical. The law is not a living being. It's not either dead or alive, just like the US Constitution. It is words on a piece of paper and has to be enforced. It doesn't enforce itself. We've always had these institutions since, well, 1945, although the laws of war go back many centuries about what is acceptable behavior. Right. So we've had this set of rules since 1945, institutions and mechanisms that are designed to prevent, say, aggressive war, to deter it. But at the end of the day, hasn't it always been difficult to punish people who break the law?
- [11:10]
Adeel Haq
Absolutely. You know, states have a monopoly on the use of force. They have armies, they have, you know, nuclear weapons. And so to enforce the law against them is always going to be challenging. And so international law has sought to create mechanisms to first get states to internalize the rules so they don't seek to violate them and then create other reputational or economic consequences for violation. But coercive enforcement is almost always off the table when again, we're talking about highly militarized states.
- [11:42]
Martin DeCaro
Well, the powerful states in history have written the laws in a way that allows each of them a lot of leeway, right. When it comes to dealing with security threats, real or perceived.
- [11:54]
Adeel Haq
Arguably, states have created a legal regime that would constrain their policy objectives if they were uniformly enforced. But that what we see in practice is that states insist on those strict rules with respect to their adversaries, but seek to exempt themselves or subvert those rules when it comes to themselves and their allies, which is a slightly different problem.
- [12:18]
Martin DeCaro
So let's then try to illustrate by example, take what's going on today, because I agree with you. Right now we're in a bad situation. And it's not just despotic regimes that are breaking international law, so called democracies, where within these countries the rule of law is under assault under international law. Were Israel's attacks June 12th and 13th on Iran, were they legal? Why or why not?
- [12:43]
Adeel Haq
So Israel's attacks on Iran were illegal. They were a clear violation of the UN Charter. So the UN Charter prohibits the use of force in international affairs with two narrow exceptions. So the first is when the Security Council authorizes the use of force in order to maintain international peace and security. And that obviously did not happen here. And in fact, it's not clear whether any member of the Security Council other than the United States would have authorized Israel to take this action if Israel had sought the Security Council's permission. The second exception is self defense. So under the UN Charter, states do have a right to use force in self defense if an armed attack occurs. Iran was not carrying out an armed attack against Israel at the time that Israel launched its operation. Now, many states think that it is also permissible for a state to use force in self defense in anticipation of an imminent armed attack from another state. But again, there was no imminent armed attack potentially emerging from Iran against Israel at the time that Israel took its action. What we essentially have here is a state looking at a rival, an adversary, a hostile state that is developing a nuclear capability that could at some point in the future be converted into a weapons program which then would shift the regional balance of power in a way that the state in question doesn't like. And the core idea of the UN Charter is that those sort of long term threats to the peace sources of instability or concern that create future risks of conflict, those are not to be dealt with through the unilateral use of force. They're to be dealt with diplomatically and through a collective security mechanism working through the UN system and in particular the Security Council. So put into more simple terms, Iran's nuclear program raises a number of concerns. But those concerns were to be addressed through the non proliferation regime, not through the unilateral use of military force.
- [14:49]
Martin DeCaro
Benjamin Netanyahu would say the UN Security Council, the United nations would not assist Israel in that process. What would you say to a couple of law professors in Israel? They were quoted in the New York Times, Amakai Cohen and Yuval Cheney. They argue that Israel is entitled to take self defense measures. However one defines self defense, I think we can see that definition is being stretched. At the very least self defense measures against Iran, since some of its proxies, Hamas and the Houthis, continue to launch rockets against Israel almost on a daily basis with Iran's substantial involvement. And there's another layer to this as well, that this is just one long ongoing self defense war starting on October 7, 2023, because Iran in the past has supported Hamas.
- [15:39]
Adeel Haq
So I think there are two problems with this line of argument, at least two. So one is that Israel's military operation was clearly not directed at Iran's support for the Houthi. So it was not targeting, you know, weapons that Iran was about to ship to the Houthi or IRGC commanders who were directly involved in coordinating with the Houthis. Except in a, in a few cases this was obvious. Obviously a much broader operation intended to destroy Iran's nuclear program and severely damage its military command structure. So most of this had nothing to do with the Houthi or Hamas or any of these other armed groups. And so even if Israel's right of self defense was implicated here, these actions would exceed what are called the limits of necessity and proportionality because the use of military force has to be directed at the armed attack that you are responding to. So if the argument is that the armed attacks here are not being carried out by Iran, but rather by the Houthi, then Israel could only use force against the Houthi or Iran's lines of support for the Houthis. So that's the first main problem with this line of attack, even if you grant the premises which could be questioned.
- [16:53]
Martin DeCaro
So I want to ask you about the U.S. but let's just stay with Israel and Iran for another moment. These concepts I think are important to introduce into the conversation right now. Just add bellum the right to war, which I think most people would agree Israel had a right to war after the Hamas attack on October 7. How far or how long that war should continue as an act of self defense? Well, we've been discussing that here. There's also jus in bello conduct in war. Can you apply these concepts to what we just saw here, starting January, sorry, June, June 12th, for 12 days, the Israeli, then US assault on, on Iran.
- [17:34]
Adeel Haq
Sure. So the US ad bellum is the legal regime that governs the resort to military force. So the choice to use military force and then continue to do so. And again, the basic rule is that the use of force is prohibited except with UN Security Council authorization or in self defense. The use in bellow is essentially the law of armed conflict or international humanitarian law. These are the legal rules that govern the conduct of armed conflict. What you can target, what precautions you have to take when harm to civilians is disproportionate. How must you treat detainees? How must you treat civilians under occupation? So it's answering the how question, whereas the ad bellum is asking the why or whether force is permissible in the first place. So with respect to Israel and Iran, for reasons I've just explained, Israel's resort to force, its use of force against Iran violated the UN Charter under the use ad bellum. Israel's particular strikes, some of them complied with the use in Bello because they targeted military targets. They took precautions to avoid harm to civilians, and there was little to no harm to civilians. With respect to some of the strikes on military installations, some of Israel's strikes were clearly illegal because they targeted civilians who may have been, you know, physics professors or civilian scientists who were working in some way on Iran's nuclear enrichment program, but who were not directly participating in hostilities, were not members of the IRGC or the Iranian military. So they were civilians and they should not have been targeted. And then in those attacks, other civilians were killed. Many of these attacks targeted these professors in their homes, in their apartment buildings, killing many other civilians in those buildings. And then there's a third category of targets which involve Iran's oil installations and other economic infrastructure, which most international lawyers would say were also illegal because these are not really military objectives. A few states, including Israel and the United States, might argue that they're legitimate targets because they would sustain Iran's war effort. Again, that's a minority view, but it is out there.
- [19:52]
Martin DeCaro
One of the most depressing aspects of everything we're seeing these days is how civilians are killed in such large numbers, the prohibition on killing non combatants. But Israel has its own doctrine that permits using even cluster bombs in civilian population centers. So it as a sovereign nation says we'll do what we want. International law says you can't do that. And who wins, might makes right.
- [20:20]
Adeel Haq
There's this very serious problem with enforcement and application. What states can always do is react and condemn. And I think, you know, members of the public often think that this is just empty talk, it's talking instead of acting. But from a legal perspective, those condemnations actually perform a very important function, which is to reaffirm the existence and the validity of the rule. Because if a rule is not only violated, but those violations go unremarked upon, they become normalized. Then the rule itself ceases to be part of social reality. It becomes words on a piece of paper somewhere. But it's not a law in practice anymore. So that's at least one thing that states can do. The other thing that I should say is that in its response, Iran also appears to have violated international humanitarian law, the usin bello, because Iran's missiles appear to be so inaccurate that they can't really be directed at specific military targets. So in some cases, it looks like Iran was trying to strike a military target, but missed by quite a lot. And at a certain point, a weapon can become so inaccurate that it simply can't be used in populated areas. And in other cases, it's hard to see what Iran could possibly have been targeting in the first place. So again, that's an example of how the use in Bell, the conduct of war is separate from whether you have a right to use force in the first place.
- [21:47]
Martin DeCaro
An Iranian missile blew up an Israeli hospital. So the United States, the President, not just President Trump, the office of the President. I mean, Congress has not declared war since World War II. Presidents have the power to order airstrikes seemingly anytime they want, wherever they want in the world because of our immense military. No one hires me as a constitutional attorney, but it seemed to my eyes that President Trump violated the Constitution by ordering the bombing of Iran without even consulting Congress. What about international law? What does it say about the US Getting involved in Israel's war?
- [22:25]
Adeel Haq
The US strikes on Iran are illegal for the same reason that Israel strikes are illegal. Again, no UN Security Council authorization, no imminent armed attack against the United States. But also the United States did gesture at a legal rationale at the United Nations. They said that they were acting in collective self defense, which essentially means defense of another state, in this case Israel. But that means that the legality of the US Strike depends on the legality of Israel's military operations. So if, as we've been discussing, Israel's military operations are illegal, then necessarily the US operations will be illegal as well. So the US is simply joining in on a violation of the UN Charter.
- [23:11]
Martin DeCaro
The UN Security Council seems useless if it involves any Action by the us, Russia, China, Israel, because of US support, it would only be able to block or condemn or sanction action taken by a minor power.
- [23:26]
Adeel Haq
So that does seem to be the case. What states have tried to do in all of these contexts is try to either go through the General assembly or really outside the UN system entirely. So if we look at the response to Russia's full scale invasion of Ukraine, step one was to go through the General assembly and get a very broad based resolution condemning Russian aggression and then to put in place a regime of sanctions really outside the UN system, but drawing its legitimacy from this finding of the General assembly.
- [24:00]
Antonio Guterres
That invasion is an affront to our collective conscience. It is a violation of United Nations Charter and international law. We have heard implicit threats to use nuclear weapons. The so called tactical use of nuclear weapons is utterly unacceptable. It is high time to step back from the brink. Complacency will open, deepen the crisis while further eroding our shared principles proclaimed in the Charter.
- [24:32]
Adeel Haq
And that's similar to what some states are trying to do with respect to Israel, for example, in the European Union. Basically take findings and statements within the UN system, but then bring it within the EU system and say, okay, we have this very preferential trade regime with Israel. Let's rethink that in light of what we're seeing as violations of international law. So that that's how states try to get around this bottleneck in the Security Council.
- [24:59]
Martin DeCaro
I alluded to it earlier. The origins of the laws behind the UN Charter do go back a long way. What is the Caroline test?
- [25:08]
Adeel Haq
So the Caroline test is a kind of legal transplant. So in 1837 there was an incident along the border between British Canada and the United States where essentially British backed forces entered the United States, took a ship called the Caroline, boarded it, set it on fire and sent it over a waterfall. And this led to an exchange of letters between the British and the US in which Daniel Webster, the Secretary of State at the time, said that this action by the British would be unlawful unless Her Majesty's government can show a necessity of self defense, instant and overwhelming, leaving no choice of means and no moment for deliberation. And that formulation, that phrase essentially was rediscovered in the 20th century to flesh out the idea of anticipatory self defense against an imminent armed attack by another state. So again, the Charter itself says you can only use force in self defense if an armed attack occurs. That doesn't mean the armed attack has already hit you, but it means that the armed attack is underway. It has at least begun. But again, some states said even that is not enough. We want a right to use force before an armed attack begins. If we think it is about to begin, if we think that it has been planned and prepared and everything is in place, it just hasn't begun yet. And so they found this language from the Caroline incident and drew on it to articulate the legal position that they were trying to put forward.
- [26:43]
Martin DeCaro
How about a more recent example then the 1967 June War or Six Day War where Israel attacked Egypt and Syria because those states were about to attack Israel, Was that legal?
- [26:57]
Adeel Haq
So at the time most states thought it was not legal. Some of states didn't think that Egypt and Syria and Jordan were going to attack. So they rejected the factual premise of Israel's claim. But others just said, look, the charter is clear. It says if an armed attack occurs, occurs, you haven't suffered an armed attack, you attacked, you were the first to use force and that is not permissible. And that remained the international consensus really through the 1980s and arguably into the early 2000s. And it was really in the post 911 period that some states, primarily Western states, though not only Western states, really tried to adopt and develop a vision of anticipatory self defense.
- [27:40]
George H.W. Bush
On my orders, coalition forces have begun striking selected targets of military importance to undermine Saddam Hussein's ability to wage war. These are opening stages of what will be a broad and concerted campaign.
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Adeel Haq
And then there's been a debate about how broad or narrow should that new test be.
- [28:02]
Martin DeCaro
Well, in 1967 you're right, the Egyptians may not have been about to attack, but Nasser had the region riled up again. And he has been blamed by some scholars for provoking other Arab states to join in on something that he maybe in the end of the day wasn't ready to do himself. I mean, whatever the case at the end of that Six Day War, there's an additional problem, and that is Israel occupied territory. That is not allowed, right? You're not allowed to occupy or seize new territory in conflict for yourself.
- [28:33]
Adeel Haq
You are not allowed to seize or annex conquer territory. Now if in the midst of an exercise of self defense, your troops on ground find themselves in control of territory of another state, including members of that state's population, then a special regime called the law of occupation applies for the benefit of that civilian population. So for example, at one point Ukrainian forces entered Russia and took control of a small area of Russia. And the first thing they did was set up an administrative office and hand out humanitarian aid to Russian civilians because that's what the law of occupation requires, what is not permissible is to exercise permanent control over another state's territory, disconnected from defensive aims, and certainly not to incorporate that into your own territory. So when the International Court of Justice found that Israel's presence in the West Bank, East Jerusalem and Gaza was unlawful, what they found was that Israel was not merely temporarily occupying this territory and administering it for the benefit of the civilian population, but rather Israel was trying to exercise permanent control over this territory and effectively make it part of Israel.
- [29:53]
Martin DeCaro
It seems to me that the annexation of the west bank is underway de facto. And just a couple of more points about the 1967 war, because I don't want to leave the listeners confused about any of this. There are a number of ways of looking at this, that it was just another chapter in an ongoing war dating to 1948. Nasser withdrew UN peacekeepers from the Sinai. He imposed a blockade on Israeli shipping in the Straits of Tiran Tiran. Israel saw that as aggressive. There was also some Soviet misinformation there, falsely claiming Israel was planning to invade Syria. There were border clashes between Israel and Syria. So there was a lot going on there that led Israel to believe that they had to do something before they were clobbered. So, as we've been discussing, it is very hard to sort out these disputes in the moment. And when it comes to war crimes, crimes against humanity, it often takes years, if ever. The legal system is a slow process, and that is part of the problem here. We're seeing horrors in our world today, true horrors in Russia, Ukraine, Israel, Gaza. We may have dodged a bullet that the war between Israel, Iran, U.S. only went on for, quote, unquote, only, only 12 days. What would happen? Maybe a tribunal maybe will be convened in 10 years or so, and maybe people will be charged with war crimes. Benjamin Netanyahu will never be arrested. Vladimir Putin will never probably be arrested. Can you address that problem? I mean, the ICC has been around for how long now, 25 years or so, and it's only had about 11 convictions, all in Sub Saharan Africa.
- [31:36]
Adeel Haq
Yeah. So the International Criminal Court is the first permanent international criminal Tribunal. And as you said, it has, you know, limited scope, limited jurisdictional reach. There are many conflicts over which it doesn't have jurisdiction in the first place. And even where it does, its ability to actually get defendants in the dock for trial is limited. Nevertheless, often foreign leaders look. Look invulnerable. They look untouchable until they arrive in custody. So recently, the former president of the Philippines, who even a few years ago one would have thought will never face justice was put on a plane to the Hague. And so although right now it looks inconceivable that Vladimir Putin or Benjamin Netanyahu will ever face justice before the International Criminal Court, you never know. Unexpected things happen. And the role of the court is to prepare the leak legal groundwork in case they are actually able to hold some of these individuals accountable.
- [32:38]
Martin DeCaro
And also Hamas and Hezbollah, their leaders also belong in the dock at the Hague. Some of them are dead now, so that won't happen. But still, I mean, we do have to be even about this, even handed. I do pick on the more powerful countries in the world sometimes because, well, they have the most power to do the most damage to the rules based order. I mean, I just, I guess what I'm saying is I expect more from my own country. I, I don't expect anything from Hamas. This takes us back, at least in my mind, to George H.W. bush, his new world order that he talked about after Saddam Hussein invaded Kuwait.
- [33:11]
George H.W. Bush
And we stand today at a unique and extraordinary moment. The crisis in the Persian Gulf, as grave as it is, also offers a rare opportunity to move toward an historic period of cooperation. Out of these troubled times. Our fifth objective, a new world order, can emerge. A new era freer from the threat of terror, stronger in the pursuit of justice, and more secure in the quest for peace.
- [33:46]
Martin DeCaro
He used the words we need to move away from the rule of the jungle and establish the world order that he wanted to see after 1945. But the cold War got in the way.
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Historical Figure
A world where the rule of law.
- [33:58]
George H.W. Bush
Supplants the rule of the jungle. A world in which nations recognize the shared responsibility for freedom and justice.
- [34:07]
Martin DeCaro
But I don't know if we ever got to that new world order. Well, I'm pretty sure we didn't. We still have the rule of the jungle, or might makes right. I mean, just take what Vladimir Putin said at the Munich Security Conference. Do you agree with the way I'm interpreting that speech he made in 2007? He wasn't calling for the toppling of the rules. He wanted Russian autonomy within that order. The US had invaded Iraq. He wants Russia to have the ability to do the same. Do you see it that way?
- [34:33]
Adeel Haq
So I think we have two realities at work at the same time. One is the reality of international law and the other is the reality of power. When those two things collide, the law is always going to be at a disadvantage because international law again doesn't have planes, tanks, submarines, nuclear weapons. And so I think there is always going to remain an important place for international politics to try to blunt the clash between law and power and try to get states to rein in their worst impulses. Because the law alone is not going to stop a bullet in midair or a bomb that's falling. That requires political will not only by states, but also by individuals within states to ensure that states comply with their obligations.
- [35:23]
Martin DeCaro
Two more things. I should have brought this one up earlier in our conversation because it deals with Israel, Hamas, Iran, and that is the so called Nicaragua test. Some defenders of Israel's ongoing campaign will say it is allowed to attack Iran because Iran controls Hamas and Hamas started the war. This is a tricky one, trying to establish how much much real control Iran has over Hamas beyond just say, giving it weapons over the years, funding it, being in communication with it. I mean, there's no evidence that Iran ordered the 107 attack by Hamas. And I'll also mention we just saw this with India, Pakistan. India blamed Pakistan for the attacks by that small group of terrorists who machine gunned down all those tourists in Kashmir.
- [36:10]
Adeel Haq
Yeah. So the International Court of Justice had to answer this question of when are the actions of an armed group, group attributable to a state? So when can we say that what might look like the actions of an armed group are also the actions of a state? And the ICJ set a very high bar. It's called the effective control test. So it essentially said that a state is responsible for the acts of a non state actor only when the state controls that very action. Directing, instructing, ordering, as you, as you say. And it's very unlikely that Iran exercises effective control control over the actions of Hamas, the Houthi or Hezbollah. As we've seen, these are groups with their own agenda, their own ideology. They are allied with Iran on certain issues. They certainly welcome Iran's support. There's some ideological affinity there. But these are groups with their own command structure and their own priorities. So it's not really plausible to say that they are simply arms of Iran. But again, even if they were, Israel's attacks on Iran were not really directed at stopping Iran's flow of information, logistics or weapons to these groups. Israel's attack clearly had a much broader and wider scope. To some extent, this line of argument is a bit of a distraction.
- [37:35]
Martin DeCaro
Okay, why don't we end on a positive note? It's not all a sad, tragic story, right? There are some successes to point to when it comes to the UN and the Security Council and international law. Examples you can name of where it worked and it prevented something bad from happening.
- [37:52]
Adeel Haq
Sure. So the United nations does an immense amount of good in the world through peacekeeping, conflict mediation and through humanitarian assistance. Much of that work we almost kind of take for granted that the World Health Organization, the World Food Program, unicef, these are all UN agencies who save lives and improve lives every single day. And in terms of, you know, conflict resolution, often long running conflicts end in a peace agreement, an armistice, a ceasefire. And because they're resolved with more or less degree of UN involvement, they sort of fade into the background because the story essentially ends there. Whereas the conflicts that don't end, that go on and on, those are the ones that really grip our attention and understandably so, where the UN has not been able to act effectively. And so those ongoing conflicts obviously demand our attention. But we shouldn't overlook the many occasions on which the international system does work to either prevent conflict from occurring in the first place or resolve conflict when it does. And certainly the immense work that the international community does to help the victims of armed conflict.
- [39:08]
Antonio Guterres
The Charter has given us the tools to change destinies, save lives. Lives and deliver hope to the most desperate corners of the world. And we can draw a direct line from the creation of the United nations and the prevention of a third World War. Excellencies. Upholding the purposes and the principles of the Charter is a never ending mission.
- [39:36]
Martin DeCaro
On the next episode episode of History as it Happens. The Democratic Party was lost in the wilderness in the early 1990s. Then came Bill Clinton and eight years in the White House. Today, the Democratic Party seems to have no clear leader, at least at the national level, and nothing to offer voters. Or do they? That's next with historian Sean Wilentz as we report History as it Happens. New episodes every Tuesday and Friday. My newsletter every Friday. Sign up at history as it happens.com or just go to Substack and search for History as it Happens. And you can also find us now on Facebook. SA.