← The Ezra Klein Show
The Ezra Klein Show
The Warring Visions of American Power
00:54:15
We’re in a really strange moment in the foreign policy politics of the Democratic Party. People are looking for an alternative vision — an approach to American power in the world that would feel more moral and just, after the failures of President Biden, and the wrecking ball President Trump has taken to international rules and norms. The answer many on the left are coming to is powerfully simple: international law. America could just start following the rules that we helped write. Is that possible? Is that enough? What would that even look like? To talk through these questions, I invited Linda Kinstler on the show. She’s a member of the Society of Fellows at Harvard, 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 what we’re watching is the death of international law. In this conversation, we talk about the Biden administration’s failures to l...
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A
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B
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 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 disrepairs, 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. 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 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. Linda Kinsler, welcome to the show.
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C
Thanks so much for having me.
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B
So I want to begin with this video that Mayor Zoran Mamdani released not that long ago arguing for the arrest of Benjamin Netanyahu.
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D
There is a reason the International Criminal Court issued a warrant for his arrest. As human beings, we have spent generations building a shared understanding that there are crimes so grave they offend all of humanity. Anyone with their eyes, with their heart, with their conscience should recognize the devastation he has wrought and understand that he belongs before a court of law. It is clear that we do not have the independent legal authority to 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.
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B
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.
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C
Yeah, I mean, I think first of all, that was an immensely rhetorically powerful thing to do, even in enunciating the crimes in Gaza, that I think we cannot underestimate just the kind of moral Force of enunciating what those crimes were and articulating them precisely at the moment when they have been negated and denied in so many different places around the world, especially in the United States. I think what that did was call attention to the fact that international law is not separate from politics, that it is something that we need politicians to speak about as a force that exists and can be used if we choose to use it. Of course, while he was, you know, he was calling attention to the fact that he doesn't have the authority to execute the ICC arrest warrant.
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B
And America is not a signatory.
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C
Exactly. So there is, you know, but.
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B
And the Secretary of State in America wants to destroy the court.
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E
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, compacts, and the force of so called international law.
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C
Right? No, there's all these reasons. It's like completely not actionable. It's a double edged sword because on the one hand you're calling attention to the fact that the ICC does exist, perhaps alerting 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 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.
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B
I think before we go further on this, when we talk about international law, when you talk about international law, what are you talking about?
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C
When many people think of international law, I think they often are actually just thinking about criminal law, international criminal law, which is how we get the arrest warrant for a Netanyahu or for Putin, for example. And they're maybe not thinking about international law writ large, where we have things that govern, like aviation law across the oceans, international transactions, things like that. So formally speaking, you're talking about the institutions that compose international law. You could say the International Court of Justice, the International Criminal Court, the kind of many, many webs of treaties and conventions, the United nations, these make up the edifice of international law. When we refer to it, but there's also a kind of more theoretical way of thinking about it as a kind of grammar, as a language. And I think there is this kind of romantic idea of international law as dispassionate. If you look to its origins. It came about when we no longer had the divine right of kings and we needed some kind of order to fill the void, to order a world without God and without divine right. And so now this system was created to kind of guide us through the moral void of the world and the inevitability of conflict. And when it fails to do that, as it so often does, we are left questioning its viability, its ability to persist in a fallen world.
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B
I think we're in a really strange moment in the foreign policy politics of the Democratic Party. I think they're 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.
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E
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.
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B
And he believes in international institutions and international alliances with a force maybe that no other modern president really does. And then Ukraine happens on his watch, and then Gaza happens on his watch. And now what I see many on the left saying is, well, what did you all believe in? If your rules based international order allowed this, if you protected Israel at the UN over this, if you gave the arms for this, if you are not a signatory, if you want to protect Netanyahu from this, then what was this order?
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C
Yeah, I mean, I think. And you can almost see the move away from that commitment in the reluctance to use that phrase as the administration progressed. Right. We get fewer and fewer invocations of the rules based international order. We get extreme reluctance to use words like war crimes and things of that nature. I think there's also this nostalgia, I suppose, that for the very fleeting moment of liberal peace that came after the Cold War, this moment of US Hegemony. When you did have the ICC created, you had this 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.
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B
Let me give voice to the discomfort I've heard from it on the other side, which is a lot of 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 locus of all this ferment. I mean, you've written pieces reviewing books about how Israel, it's 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.
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C
Right.
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B
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?
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C
Well, the apparent answer to that is that Israel is the closest United States ally and Russia is not, for example. But I don't think it's fair to say that these same questions don't come up. When we think about Vladimir Putin is also wanted by the icc. And I think we see similar behavior evinced by friendly nations that don't want to arrest him if he comes onto their territory. And one legal scholar said, it's all very well to say, say that you uphold the values of international law, but that doesn't mean you have to invite Putin to come shopping in Paris. There is this kind of doublespeak when it comes to these evinced values. But I think what the war in Gaza, the United States is implicated in that in a different way.
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B
I think foreign policy on the left, the response of foreign policy. And here I don't mean the democratic socialist left, I mean the broad tent of the Democratic Party, including 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 Abdullah Sayed, who's now the Democratic nominee for Senate in Michigan, 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 to build, and then we became the chief violator of all the frameworks. So the thing I see Sort of happening more on the left side of the party. But not only is sort of saying this 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?
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C
Not in and of itself. And I think the key phrase in his response is first among equals. Right. I think at this point the ship has sailed and the extent of the destruction of United States participation in these international courts and institutions has been so grave. Of course, the rest of the world is now on notice that we can't be relied upon to uphold any commitments that would result. And that's always been been the case to say that your policy is going to be international law. That can mean any number of things. Right. As we were just discussing it can also sanction crimes. Of course, that's not what he means. But I think this idea that you can return to a world in which the United States is leading the charge to strengthen the rule of law on the global stage, given the situation we're in, is perhaps far fetched. However, I think there's no question that the field is in need of regeneration and a lot of people are calling for that. What form that will take, I think is the crux of the problem.
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B
Well, let me make the argument for the rules for a minute to see how you respond to it. One argument that I've heard people like Robert Wright make and others is that America would be much better off over its past 20 some years if it had just followed the rules. If when it couldn't get UN authorization to enter Iraq, it didn't, 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.
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C
Right.
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B
And so one argument that I take fairly seriously is I just did a big piece on the Odyssey and that one value of international law to a superpower is actually that it ties it to the mast, that that is not a drawback. That in fact it is 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 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.
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C
Yeah, no, I think that's very fair and perhaps true. Although of course we don't know what the counterfactual would be. I guess I would say that the kind of legislative power of Congress is indeed really powerful and should be used as a mechanism of restraint. And I think we would not be better off in a world in which these international laws did not exist. Like, I think what you could call the cynical argument that they have only made the world worse is unjust. And I think that's kind of not 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. 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.
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B
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 in 2005. And so obviously it's the post 911 period.
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C
Yeah.
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B
But one memory that is occurring in that period and certainly the years before 911 is the 90s, when in some ways this is like the apex of the world 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 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. It was too easy to tie things up in process and Security Council vetoes and sort of now the people are humanitarians, are sort of taking refuge in at least what international law is supposed to do. So how do you balance that?
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C
Yeah, well, I think you're pointing to this moment also when we started to see the split in the field between this perception of international law as something that indeed can prevent and punish the worst atrocities and something that actually provides license to states to commit those crimes by essentially codifying how they can do it within the realm of quote, unquote, legality. And I think, you know, in the 90s you have the Kosovo crisis, United
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E
States forces acting with our NATO allies, have commenced airstrikes against Serbian military targets in the former Yugoslavia, the first time in its 50 year history that the military action would be an offensive action and against a sovereign country.
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B
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.
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C
The ICJ Judge Hilary Charles talks about this moment as kind of formative for the perception of international law as this heroic endeavor and international lawyers coming to save the world. Right? And that draws a lot of people to the discipline. Even after then it becomes very clear that that was a kind of echo extralegal operation. And so you constantly have these moments of international law responding to crisis and then kind of confronting its own ruin and that you see that throughout the 20th century.
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B
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.
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C
I mean I think 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.
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B
Right. If their intent is to destroy, destroy Hamas, even if what they do is genocidal, from one perspective, in theory, the ICJ would not rule a genocide.
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C
Exactly. And so, and the other example of this is, you know, if it's a legitimate military target, you can explain it away if you're attacking it and avoid legal accountability in that way. And we've seen that qualification exploited all around the world and continue to see that happening. And so it's these very bureaucratic, legalistic terms that when you hear them explained as, like, this is why this doesn't qualify as genocide, for example, to people on the street, that just seems like a moral abrogation oftentimes.
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B
When we were prepping for this episode, my producer, Jack McCordick, had me reread the speech Barack Obama gave when he was somewhat wildly given the Nobel Peace Prize, like, upon taking office. And it gives this very strange, 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 and Kingian nonviolence and that movement.
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H
I am living testimony to the moral force of nonviolence. I know there is nothing weak, nothing passive, nothing naive in the creed and lives of Gandhi and King, but also
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B
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.
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H
As a head of state sworn to protect and defend my nation, I cannot be guided by their examples alone. I face the world as it is and cannot stand idle in the face of threats to the American people. For make no mistake, evil does exist in the world. A nonviolent movement could not have halted Hitler's armies. Negotiations cannot convince Al Qaeda's leaders to lay down their arms. To say that force may sometimes be necessary is not a call to cynicism. It is a recognition of history.
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B
And he really gives his defense of America as, like, the indispensable superpower that is needed to make any of these ideals real. But then you're sort of back in this, like, endless runaround of, well, what happens if, you know, you can't get the UN Security Council to bless your military intervention against Russian aggression in Ukraine?
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C
Yeah, totally. And I think in that speech, he also, if I'm recalling correctly, he speaks of the necessity of being both an idealist and a realist and of not committing to either one of those ideologies and letting it blind you, perhaps. And this idea of the kind of self enlightened state hegemon who follows international law, of course there's a question if 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 irrelevant anymore. In Iran, we are seeing the implications of that abnegation.
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B
And you did this big piece for Guardian, long reads, are we witnessing the death of international law?
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C
Yeah.
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B
Tell me why.
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C
Well, I think that was brought about by the Trump administration's explicit rejection and withdrawal from these conventions and treaties and hostility towards all of these institutions that are the physical embodiments of international law as we think of them. And I think with Secretary of State Marco Rubio announcing this campaign to dismantle the ICC that has led people to say, oh, is international law a dead man walking? Can the US Actually take this down? And the answer is it's not up to the United States to dismantle it. We are not a party to the icc and we haven't been for some time. But what's happening is we're making it very, very difficult for it to operate through sanctions on the sitting judges. They can't use their credit cards, they can't use American technology. They've spoken about this at length.
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B
It's worth saying this for a minute, that we are treating the judges of the International Criminal Court like they are top members of Vladimir Putin's government. Yeah, we are using punitive tools to harm them. For what? What is our description of why we were sanctioning dully appointed judges of the
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C
ICC because of this perceived threat? The language that the State Department has used in its messaging has been about this perceived threat to American personnel and allies. Right. So we could think the arrest warrants for Benjamin Netanyahu in Gallant. But I think it's also important to note that this isn't the first time that this has happened. Under Bush, the United States nullified its signature to the Rome Charter, which is what established the icc. And John Bolton at the time said that the United States would make the ICC wither and collapse.
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E
We will not cooperate with the icc. We will provide no assistance to the icc and Certainly will not join the icc. We will let the ICC die on its own. After all, for all intents and purposes, the ICC is already dead to us.
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C
Rubio might have said, we're going to take apart the ICC brick by brick, and they might very well be committed to doing so. But this is not a kind of anomaly.
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B
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. Senator Lindsey Graham says Russian President Vladimir Putin should be investigated for war crimes. And he is urging the Senate to pass a resolution supporting an International Criminal Court investigation into Putin and his regime's, quote, crimes against humanity and war crimes against the people of Ukraine and others, close quote.
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E
I think it is in Americans 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.
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B
And Graham was no friend of the icc. He was not saying America should become a signatory to it, but then he was saying, well, if we can arrest Putin for it, we should. And you sometimes get this movement even inside the Republican Party, where there can be this remarkable hostility to the ICC that, 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 there is this constant, what is it? Hypocrisy is the tribute vice priest to virtue that happens in the way people talk about this.
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C
Yeah. And that is a way of using international law to serve the ends of power. Right. Of course, when it's being used against our enemies, we can say, yeah, great, issue the arrest warrant. And it's a different thing when in the history of US Policy it's been wielded against our own allies and personnel. And, you know, famously, we have what's called the Hague Invasion act that allows us to 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.
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B
You read 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. There's a German word you had in
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C
that piece, Macht politique.
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B
What is Machtpolitik? Could you define that for a second?
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C
Yeah, yeah, yeah. And so that comes from the scholar Patrick Porter, who says this is the corrupt cousin of realism. Right. It's precisely when the restraints have been blown away, when a power is no longer cognizant of its own limits, and that's when it really starts to make mistakes. And so everyone quotes Thucydides. 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 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.
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B
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 kneed liberals and leftists were not allowing it to do. And so then you see emerging on the other side something that would much more subordinate America's power even beyond where it was in the Obama or Biden or Clinton conceptions of foreign policy, which is we should really follow international law. We should follow the rules if we want to do something, even we think it is moral or right or good. And we cannot get the UN to say yes to it, or we cannot get NATO to say yes to it, or we cannot get Congress, for that matter, to say yes to it. We should not do it, even if we find that frustrating. And so it actually seems to me like the foreign policy visions that are emerging are actually much more polarized about how American power should be used than at other times, at least in my time covering foreign policy.
- [30:54]
C
Yeah, I mean, I think there's 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, 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 guarding is this principle of sovereignty that's very, very important to them. And so by strengthening the international commitment to sovereignty, which of course has implications for their own policy, you kind of see them establishing themselves as the leader 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
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B
by absence, but to push on that. China, to the extent they are stepping into the breach left by America, is pushing a vision of the rules that is less about the application of values or morality and more about the strength of territorial borders. But do they believe in that with Tibet? Do they believe in that with Taiwan? Have they been all that critical of Xi's dear friend Vladimir Putin entering Ukraine? Certainly, they say that. But when I look at China's behavior, at the very least, it seems there's a large loophole for if you say, those are not real borders, that's ours, well, who's gonna stop you?
- [32:26]
C
Yeah, totally. And I think what that's getting to is this perception that international law is not completest. Right? Like it's full of loopholes. It is full of hypocrisies. When I spoke to John Mearsheimer, who's one of most prominent realists in the country, said, of course we subscribe to international law when it suits us. And I think China is showing that also. And that gets back to this question about international law as an expression of power and as a vehicle of power.
- [32:50]
B
I want to stay 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 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 Moyn and Azabali, who are two scholars I have great respect for, Azabali'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 very approvingly. And as I read that, it was a much more parsimonious, much thinner conception of what the agreements should be that were really based on sovereignty. It was a sort of anti war pact. So can you maybe explain. Explain what their vision looked like and what you found interesting in it?
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C
What I took them to be saying is that we should almost kind of return to brass tacks and kind of not discount international law as a meaningful force in the world. What I am concerned about is that when people see it not working, for example, in Gaza or in Ukraine, in its conspicuous failure to hold back these terrible atrocities, that they will discount it entirely. And in my conversations with particularly American lawyers, sometimes they say, oh, international law is a joke. It doesn't exist. And that is coming from the position of the hegemon. Right. The position of strength and power. It's not something that you hear in other parts of the world, generally speaking. And I think what they were saying is, no, it absolutely does exist and it should be preserved. But we can't return to this kind of fantastical vision of a liberal internationalism that has proven quite destructive in many ways.
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B
So you should go back, not to where you have maybe criminal courts and all these different treaties, but just saying, and this is me characterizing what I thought I was reading, but I'm not an international lawyer, that the agreement should be, we don't invade each other.
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C
Yeah. And returning to the taboo against the crime of aggression and of conquest. Right. Which has been totally blown out of the water in recent years.
- [34:55]
B
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 what do you do when it is violated? What is law without the police? What is law without enforcement? I think there is a particular challenge that people of a liberal persuasion face right now. And here. I mean, like, broadly liberal. Liberal in a way that 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 to 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.
- [35:43]
C
Yeah.
- [35:44]
B
And because the broad left has become the party that is in the institutions, people become human rights lawyers and international law experts. They fundamentally believe in it, and so their friends are in these institutions. You get very caught in the questions of proceduralism.
- [36:03]
C
Yeah.
- [36:05]
B
But let me drop us 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?
- [36:20]
C
They were trying to realize a liberal order in which violence would no longer be the way that states would settle disputes. Right. There was this notion of peace through law, very romantic ideal. And, you know, the philosopher Judith Schlar writes about how this idea of law, above all legalism, became inseparable from liberalism. And I think what you were speaking about, about this kind of turn to proceduralism and this emphasis on bureaucracy that often law gets so caught up in this, and it also makes it hard to understand from the outside that that is actually where precisely these like moral values that undergirded the project 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 make moral wrongs, wrongs that exceed our capacity really to understand and certainly punish? How do you nevertheless make them legible in this extremely brittle and perfect system that we have created? And there's this wonderful scholar, Yossel Rogat, who many years ago about the Eichmann trial, wrote that we've never escaped the problem of the Oresteaev, 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 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.
- [38:36]
G
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- [38:49]
B
Ish.
- [38:50]
G
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- [39:32]
B
This message comes from Betterment Betterment's Dan Egan talks about tax loss harvesting. Tax loss harvesting is a tax management strategy. When you have a position that's gone down over time, we intentionally sell out of it to realize a loss, which we then say to the irs, hey, we lost money. You get to use that to offset your ordinary income. Every year decreasing your tax burden. Investing involves risk performance. Betterment does not offer tax advice. TLH may not be suitable for all customers. Learn more@betterment.com TLH terms 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, or is what we're really, in the end arguing about the historical memory of them and those are all different kinds of operations. And maybe the way I put this, to put it in the terms I think that we're really arguing in now, there's a question of hamas attacks on October 7th. There's obviously a deep history in that conflict. There's occupation, 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 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 such a white hot debate is because if genocide is proven, it changes the meaning of Israel. Right. It changes what it exists in as historical memory. Right. The real punishment is what you mean going forward. Right. If Israel is a country formed out of genocide and then also one of the very few proven guilty of it, then what is Israel? But it's really, in a way, I feel like so much of the fights right now are like, can you use international law to impose a meaning on things that have happened such that it exists as a warning to others?
- [41:53]
C
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 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 elevation of genocide as the kind of crime of crimes. But she argues that the genocide Convention has become a memorial to the Holocaust precisely because it hasn't been able to be used. And we only have one decision from the ICJ in the Bosnia vs Serbia case that some people have pointed to as a precedent for what might happen in the litigation against Israel. These are all questions about historical memory and with this question of prevention. One of the sitting judges on the icj, in one of his rulings, at the very end, he said, after describing all of the crimes that had been commissioned and all of the violations, and he ended and he said, the court is just a court. You know, there is a limit to its power. And I think we have to think about what happens outside the court of law. Right. You know, if we talk about only what international law can and cannot do, then we get right back into legalism. Right.
- [43:16]
B
Well, this, to me, is one of the places where maybe this conversation is bearing more weight than it can hold. You know, you imagine a world where the ICJ rules that maybe entirely or at least for the most part, that what Israel plausibly believed it was doing was destroying Hamas, which was embedded in civilian populations. And so what they did is the same either way, but it cannot be proven as genocide. So one, I don't think any of the people believe it's genocide would say after that, well, never mind. We went to the international courts. The courts ruled, you know, without fear or favor, and were willing to say maybe that went too far, but it's not a genocide. But on the other side, what people really wanted, I think, was not law, but leadership, that international law is not preventive in this way. And I think so much of the fury that is actually splitting apart the Democratic Party right now is. 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 the left. And yet it was Biden's administration that, as much as anyone did, allowed this to happen, abetted this happening. And I think that what is sort of operating but without people having exactly the way to say what it means in policy is they want to see leadership that would not accept that again, and that it's not that it's bound by any one rule or any one law, but that it is. But, like, how do you see if there is agreement on morality? Because I think some of the split in the Democratic Party is that it turned out there wasn't. It turned out what some people thought was unimaginable and what other people thought was just part of war were different.
- [45:11]
C
Yeah, I think there is this unquestionable desire for leadership. And, you know, I was even thinking about this. I think most people go about their lives and they're not aware of the icj, and they don't think about it, or the icc, for that matter. But there were a few weeks when those proceedings were not only on the front page of the New York Times, but also people were waiting outside the Peace palace in the Hague watching a kind of livestream, waiting for a moral verdict that wasn't going to come, at least certainly not on that day and as you say, certainly not soon. It's not going to be salvific. Right. Whatever judgment comes and whatever political resolution. Right. Whatever policy changes I think the Democrats need to make and will make come of this will not undo the harm done. I think this is when we start thinking about international law as a kind of tragic field. And the kind of void of leadership that we are experiencing now is almost reflective of this inability to kind of articulate the tragic nature of it in politics, because that's anathema to how we normally think about the messaging that we want our politicians to invent, I think.
- [46:26]
B
And it goes to something you were saying earlier about why in American politics, Russia's invasion of Ukraine and Israel's reprisal in Gaza feel different.
- [46:38]
C
Yeah.
- [46:39]
B
Because we were not able to stop Russia's invasion of Ukraine. We have certainly hindered it. But the difference is there isn't a feeling of complicity in it. And to some degree, I think that means a lot in politics. Right. People have this question of like, well, what is America now? I don't know. I'm not 100% sure this is true because I think there is something about and has for a long time been something about Israel that attracts attention and interest. And 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 also comes in positive attention, Right. Where people have like a deep relationship to Israel, Israel in America that they don't have in other countries. But nevertheless that there is like a question of what does it say about who we are and what does it say about what our foreign policy is. And that feels like the deeply unanswered question.
- [47:42]
C
I think we're kind of seeing that play out, particularly if you look at Ukraine right now where you have what is a war of self defense trying to preserve Ukrainian sovereignty. That will certainly end if it does end. If we can speak of an end in an unjust peace. Right. It will be kind of negotiated settlement. We're already seeing that the terms are likely to be favorable to Russia and in Gaza, the terms with which the Trump administration has spoken about bringing an end to that conflict have similarly kind of almost completely discounted the sovereignty of the Palestinian people. And, you know, I've long been fascinated by this question of endings and how we now live in this era of wars with no discernible end that make making these moral judgments and categories very difficult.
- [48:34]
B
What do you mean? We live in an era of wars with no discernible end. How is this era different than what's come before it?
- [48:39]
C
I think you know well and I have written about how ceasefires have become a replacement for lasting peace settlements. And I was really struck by this when, as part of the protest, protests against the war in Gaza, the kind of prevailing slogan was ceasefire now and ceasefire now, that's very powerful, that stops the violence. You need a ceasefire first and foremost. But that's not the same as saying, we are going to put a stop to this conflict. That is essentially saying, we are going to stop it for now. And ceasefires almost always break down, and it almost kind of serves as an excuse for sidestepping the more difficult political questions and more moral questions that always come to light in these events.
- [49:24]
B
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?
- [49:40]
C
There are many explanations, right? It's a matter of political will. It's also a matter of the fact that we are no longer in a unipolar world. There are many competing factors, right? You're more likely to have a lasting settlement when you have multiple states who are signing on to solving the problem, which increasingly is extremely rare.
- [50:00]
B
How much does it also just reflect a loss of belief in the possible? I mean, on Israel and the Palestinians, for one, there was a long period of attempts at peace deals and the days when it felt like America the power to convene and force a real discussion. Even if it didn't work at the end, those days were. They've been gone for a long time.
- [50:27]
C
Over the past many decades, there's this feeling that international law has lost its power of moral imagination. And the politicians who subscribe to it have kind of lost any tie with these kind of, you know, lofty ideals that kind of have historically driven the field forward and replaced them with essentially managerialism. And I think precisely as the Democratic Party confronts the problem of what is its foreign policy going to be, it would be very well served to try to recapture an affirmative vision of that moral daringness, I suppose, to not just say, we're going to revert to the rules and let that be that. But to actually, if you're going to say that, that's all very well and fine, but say, why say that these things have left us after Gaza in particular, having to confront the ruins of a kind of liberal internationalist order?
- [51:30]
B
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 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, 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 could be a source of at least the regeneration of values? We feel so trapped by a realism about our institutions and that it's hard sometimes to know if there are places where people are less trapped by that.
- [52:31]
C
No, I mean, I think. Well, I don't know if there is a place where people feel less trapped. But I do think that many practitioners and scholars are trying to actively think about what a new international law would look like. There is a clear recognition in the field that something has to change. And we had these moments historically. Right. You could look to any, like, you know, the Hague peace conferences of the late 19th century that were then followed almost immediately by World War I, or the fact that the Nuremberg Charter was signed just before the bomb was dropped on Nagasaki. Like these. These moments of real progress in international law are often followed by profound crises or things that kind of immediately would seem to invalidate the ideals for which they are or that they espouse. I think my imagination is that we should have a reappraisal of what international law can do in the world 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.
- [53:55]
B
I mean, let's say you do have a Democratic president in 2029, and they want to come in and show that 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.
- [54:15]
C
Yeah. I think this is the question of moral imagination. 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 Mamdani explicitly called for this for the United States to join the icc. Frankly, it's hard to imagine any administration doing that. But I think what you could do is meaningfully lend American support to these institutions, whether it's for example, by giving a lot of money to the trust fund for victims, for example, to signal kind of material support. There's a kind of register of damages for Ukraine that has been logging everything that people have lost throughout that conflict. And right now that is just a list of claims that may never be fulfilled. And we have the power to kind of make that real. I think my interest is in how do we make international law material right? How do we make these moral values actually have a difference on people's lives? And that's the kind of reclaiming this reparative idea of international law or a reparative politics that kind of can fill in the breach. That's where I found myself gravitating towards.
- [55:36]
B
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?
- [55:42]
C
The first book I would recommend is it's called the Divided City by Nicole Leroux, who was a kind of French scholar, just a gorgeous writer. And it's this book that talks about the inherent division of politics and how you can overcome it. And historically it takes us back to the classics, to ancient Athens, that is the titular divided city and speaks about the difficulty of coming together after moments of profound rupture. So that's the first one. The second book is coming out in September. It's called called Crossing the Red Line by Akbar Shahid Ahmed, which is about the Biden administration's shifts in policy towards Gaza and precisely how that played out. And I was just reading it on the train here and it is a very in depth reportage about how the kind of red line was ignored and how they kind of set this being
- [56:39]
B
red lines that Biden set, where he would say to Netanyahu like that's a red line.
- [56:42]
C
And then, yeah, I mean you could specifically discussion around the invasion of Rafah. So I would recommend that. And then the third book is by. It's a novel called Underwater by Tara Menon that just came out, which is a kind of. It's gorgeously written and it's this response to Amitav Ghosh's prompt that fiction has not figured out a way to describe the immensity of climate change and to capture the kind of tectonic losses and shifts that it will bring about. And that is what Tara is attempting to do in this book, and it's kind of just beautifully executed.
- [57:25]
B
Linda Kinsler, thank you very much.
- [57:27]
C
Thank you for having me.
- [57:47]
G
Gun injuries are the leading cause of death for children and teens in the United States. Some people avoid talking about gun violence because they don't think they can make a difference. But every conversation matters. When it comes to gun violence. We agree on more than we think, and having productive conversations about gun violence can help protect children and teens. Learn how to have the conversation@ agreeto agree.org brought to you by the Ad Council.