This is an edited transcript of “The Ezra Klein Show.” You can listen to the episode wherever you get your podcasts.
What is the foundation upon which a new, more moral, more just American foreign policy could be built, particularly after the devastation Donald Trump has wrought on international norms and rules?
One solution that I’m witnessing a lot of people come to, particularly on the left, is that international law, which has fallen into such disrepair, could be a source of renewal — that if America simply followed the rules it had helped write, a much better world could be possible.
And I’ve wondered: Could international law — which has been so weak at times but also so inspiring at others — actually bear that weight?
Linda Kinstler is a junior 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 what we’re watching is the death or the renewal of international law. She joins me now.
Ezra Klein: Linda Kinstler, welcome to the show.
Linda Kinstler: Thanks so much for having me.
I want to begin with this video that Mayor Zohran Mamdani released not that long ago, arguing for the arrest of Benjamin Netanyahu.
Archival clip of Zohran Mamdani: 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 enforce this warrant. The federal government, however, does, and I call on them to join the I.C.C. and execute this warrant.
And I want to be equally clear: Benjamin Netanyahu is not welcome in New York City, nor is any other war criminal at large.
What did you make of that? Not just the decision to release it, which has been controversial, but the focus in it on the relationship between America and the International Criminal Court?
First of all, that was an immensely rhetorically powerful thing to do, even in enunciating the crimes in Gaza. We cannot underestimate the 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.
What that did was call attention to the fact that international law is not separate from politics, that it is something we need politicians to speak about as a force that exists and can be used if we choose to use it.
Of course, while he was calling attention to the fact that he doesn’t have the authority to execute the I.C.C. arrest warrant ——
And America is not a party to the I.C.C.
Exactly.
And the secretary of state in America wants to destroy the court.
Archival clip of Marco Rubio: 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, its prosecutors or its president, and you shouldn’t have to. But as we speak, the I.C.C. and its friends are waging a war against our country — not with bullets or missiles, but with statutes and compacts and the force of so-called international law.
Right. There are all these reasons it’s completely not actionable.
It’s a double-edged sword because, on the one hand, you’re calling attention to the fact that the I.C.C. 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 the imagery of Netanyahu being arrested in New York City versus the reality, which is that it’s never going to happen.
I think that disjuncture is kind of dangerous for the perpetuation of international law.
Before we go further on this, when we talk about international law, what are we talking about?
When many people think of international law, they often are actually just thinking about international criminal law, which is how we get the arrest warrant for Netanyahu or for Vladimir Putin, for example. They’re maybe not thinking about international law writ large, where we have things that govern aviation law across the oceans, international transactions, things like that.
So formally speaking, you’re talking about the institutions that compose international law.
You could say the International Court of Justice, the International Criminal Court, the 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 more theoretical way of thinking about it as a kind of grammar, as a language.
There is this romantic idea of international law as dispassionate. If you look at 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.
So this system was created to 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 and its ability to persist in a fallen world.
We’re in a really strange moment in the foreign policy politics of the Democratic Party. I think they’re in rupture.
Joe Biden comes to the presidency in 2021, and he promises to restore the rules-based international order.
Archival clip of Joe Biden: I speak to you today as president of the United States at the very start of my administration, and I’m sending a clear message to the world: America is back. The trans-Atlantic alliance is back. And we are not looking backward. We are looking forward together.
He believes in international institutions and international alliances with a force that maybe no other modern president really does.
Then Ukraine happens on his watch, and then Gaza happens on his watch. Now I see many on the left saying: Well, what did you all believe in?
If your rules-based international order allowed this, if you protected Israel at the U.N. over this, if you gave the arms for this, if you are not technically a signatory, if you want to protect Netanyahu from this, then what was this order?
Yeah. 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.
There’s also this nostalgia, I suppose, for the very fleeting moment of liberal peace that came after the Cold War — this moment of U.S. hegemony when you did have the I.C.C. created. You had this real feeling that international law could be upheld by American strength alone. And, of course, we now live in the ruins of that vision.
Let me give voice to the discomfort I’ve heard from it on the other side, which is, one thing I hear a lot of Jews I know, supporters of Israel I know, ask is: Why are Israel and Gaza the center of all this?
There is this sense that Israel has become the locus of all this ferment. You’ve written pieces reviewing books about how Israel’s assault on Gaza, its war on Gaza after Oct. 7, will now sit in historical memory the way the Holocaust does, that it will be another moment of a historical turn.
Right.
And what I hear people say is: Why Israel? Why not Sudan, not Syria, not even Russia? Why is there this much focus on this country and its particular conflicts and wars?
Well, the apparent answer to that is that Israel is the closest United States ally, and Russia is not, for example.
But I don’t think it’s fair to say that these same questions don’t come up when we think about other countries. Vladimir Putin is also wanted by the I.C.C. I think we see similar behavior evinced by friendly nations that don’t want to arrest him if he comes onto their territory.
One legal scholar said: It’s all very well to say that you uphold the values of international law, but that doesn’t mean you have to invite Putin to come shopping in Paris.
There is this kind of doublespeak when it comes to these evinced values. But I think with the war in Gaza, the United States is implicated in that in a different way.
I think foreign policy on the left, the response of foreign policy — and here, I don’t mean the democratic 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 what I perceive to be the failures of the Biden era.
And then just the wanton corruption and aggression and unilateralism of the Trump era, where, if we want Nicolás Maduro, we just go in and take him.
One thing I see people trying to explore is: Could the next move be to just follow the rules?
Abdul El-Sayed, who’s now the Democratic nominee for Senate in Michigan, was asked in a newspaper editorial board interview how he would make decisions about military aid and getting into conflicts. His answer was:
International law. I believe we ought to be the first among equals to enforce international law. We worked really hard after the worst world war in human history to build all these institutions, to build all these frameworks, and then we became the chief violator of all the frameworks.
So the thing I see happening — more on the left side of the party, but not only — is saying: The structure is already there. We just need to follow it and believe in it.
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: Does it have that strength in it? Can it be enough of an answer to these problems?
Not in and of itself. I think the key phrase in his response is “first among equals.”
I think at this point, the ship has sailed. The extent of the destruction of the United States’ participation in these international courts and institutions has been so grave that 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 has always been the case.
To say that your policy is going to be international law, that can mean any number of things, 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 is the crux of the problem.
Well, let me make the argument for the rules for a minute to see how you respond to it.
An argument that people like Robert Wright and others make 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 U.N. authorization to enter Iraq, it didn’t. For that matter, there would not have been U.N. authorization to enter Iran, and frankly, the Trump administration would be better off if it had accepted that.
Right.
So one argument that I take fairly seriously is — I just did a big piece on “The Odyssey” — that one value of international law to a superpower is actually that it ties it to the mast.
That is not a drawback. In fact, it is when we think we can do anything and should, that we make our worst mistakes. International law and procedures and institutions, and for that matter Congress, impose a restraint that would otherwise be easy to forget.
More of our recent terrible errors seem like they have come from the absence of restraint rather than an excess of it.
Yeah. I think that’s very fair and perhaps true. Although, of course, we don’t know what the counterfactual would be. I would say that the legislative power of Congress is indeed really powerful and should be used as a mechanism of restraint.
I think we would not be better off in a world in which these international laws did not exist. What you could call the cynical argument that they have only made the world worse is unjust. I think that’s 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, even when they’re not enforced.
I guess what I’m saying is that it’s not going to be sufficient to just say: Oh, let’s go back to that. Because that world has gone, and we need to confront the new political reality in which these things have been weakened.
I’ve become old enough now to have lived through a couple of cycles in foreign policy history. I moved to Washington in 2005, so obviously it’s the post-Sept. 11 period.
One memory that is recurring in that period, and certainly in the years before Sept. 11, is the feeling in the 1990s when it was the apex of the world “respecting international law.”
The big critique is that the U.N. and these systems were not able to move fast or clearly enough to prevent terrible massacres in Rwanda and Yugoslavia.
I recently read George Packer’s really fascinating biography of Richard Holbrooke called “Our Man.” I really recommend this book to people. It’s all about his trying to work around this to stop massacres.
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 now the people who are humanitarians are sort of taking refuge in at least what international law is supposed to do.
So how do you balance that?
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 “legality.”
In the ’90s, you have the Kosovo crisis.
Archival clip of Bill Clinton: United States forces acting with our NATO allies have commenced airstrikes against Serbian military targets in the former Yugoslavia.
Archival news clip: The first time in its 50-year history that the military action would be an offensive action and against a sovereign country.
Archival news clip: U.N. Secretary General Kofi Annan, who was saying this may be a legitimate use of force, questioned NATO’s decision not to seek Security Council approval.
Archival clip of Kofi Annan: Under the charter, the Security Council has primary responsibility for maintaining international peace and security. Therefore, the council should be involved in any decision to resort to force.
The I.C.J. judge Hilary Charlesworth talks about this moment as formative for the perception of international law as this heroic endeavor, and international lawyers coming to save the world. And that draws a lot of people to the discipline — even after it becomes very clear that it was an extralegal operation.
So you constantly have these moments of international law responding to crises and then confronting its own ruin. You see that throughout the 20th century.
Tell me more about what you just touched on quickly, which is the way in which these structures of legality have also maybe created ways to open legal space for things people consider atrocious.
The most evident place you see this, and perhaps that listeners would be familiar with, is the standard of intent for proving genocide. If it falls short of that standard, then you don’t have the grounds for conviction on that crime.
Right. If their intent is to destroy Hamas, even if what they do is genocidal from one perspective, in theory, the I.C.J. would not consider it. They would not rule it a genocide.
Exactly. The other example of this is: If it’s a “legitimate military target,” you can explain it away if you’re attacking it and avoid legal accountability in that way. We’ve seen that qualification exploited all around the world, and we continue to see that happening.
So it’s these very bureaucratic, legalistic terms that, when you hear them explained as, for example: This is why this doesn’t qualify as genocide — to people on the street, it just seems like a moral abrogation oftentimes.
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 upon taking office.
He gives this very strange, particularly in retrospect, playing-both sides-of-the-argument speech in which he talks about himself as a direct descendant of Gandhian and Kingian nonviolence and that movement.
Archival clip of Barack Obama: I am living testimony to the moral force of nonviolence. I know there’s nothing weak, nothing passive, nothing naïve in the creed and lives of Gandhi and King.
But also that there is no peace without America’s ability to enforce that peace, that treaties are not what ended World War II, that force was what ended World War II.
Archival clip of Obama: 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.
He really gives his defense of America as the indispensable superpower that is needed to make any of these ideals real.
But then you’re back in this endless runaround of: What happens if you can’t get the U.N. Security Council to bless your military intervention against Russian aggression in Ukraine?
Totally. And I think in that speech — if I’m recalling correctly — he also 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. This idea of the self-enlightened state hegemon who follows international law.
Of course, he was making the argument that we can’t pretend that this edifice hasn’t been upheld for the past 64 years without American strength and power. And 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 they’re not relevant anymore.
In Iran, we are seeing the implications of that abnegation.
You wrote this big piece for the Long Read section in The Guardian: “Are We Witnessing the Death of International Law?” Tell me why.
Well, that was brought about by the Trump administration’s explicit rejection and withdrawal from these conventions and treaties and hostility toward all of these institutions that are the physical embodiments of international law as we think of them.
With Secretary of State Marco Rubio announcing this campaign to dismantle the I.C.C., that has led people to say: Oh, is international law a dead man walking? Can the U.S. actually take this down?
The answer is that it’s not up to the United States to dismantle it. We are not a party to the I.C.C., and we haven’t been for some time.
But what’s happening is we’re making it very, very difficult for it to operate through sanctions on the sitting judges. They can’t use their credit cards. They can’t use American technology. They’ve spoken about this at length.
It’s worth staying on 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 are sanctioning duly appointed judges of the I.C.C.?
Because of this perceived threat that the court poses to — the language that the State Department has used in its messaging has been about this perceived threat to American personnel and allies. So we could think of the arrest warrants for Benjamin Netanyahu and Yoav Gallant.
But I think it’s also important to note that this isn’t the first time that this has happened. Under George W. Bush, the United States nullified its signature to the Rome Statute, which is what established the I.C.C., and John Bolton at the time said that the United States would make the I.C.C. wither and collapse.
Archival clip of John Bolton: We will not cooperate with the I.C.C. We will provide no assistance to the I.C.C., and we certainly will not join the I.C.C. We will let the I.C.C. die on its own. After all, for all intents and purposes, the I.C.C. is already dead to us.
So Rubio might have said: We’re going to take apart the I.C.C. brick by brick. And they might very well be committed to doing so, but this is not an anomaly.
But what’s sort of odd about it is that at the same time that we have this intense hostility toward it, you will also see them flip at weird moments.
Like, Lindsey Graham was very excited about the judgments rendered against Putin.
Archival news clip: 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 “war crimes against humanity and war crimes against the people of Ukraine and others.”
Archival clip of Lindsey Graham: I think it is in Americans’ interest to make sure that Putin, who now has an arrest warrant issued by the I.C.C. for his war crimes, that we do not forgive and forget as a nation and we help the International Community.
Graham was no friend of the I.C.C. 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.
You sometimes get this movement where, even inside the Republican Party, there can be this remarkable hostility to the I.C.C., but when they like a ruling or they see it as useful — and by the way, from other countries, too.
Putin loves accusing America of violations of international law. There is this constant sense of: Hypocrisy is the tribute vice pays to virtue — that happens in the way people talk about this.
Yeah. That is a way of using international law to serve the ends of power. Of course, when it’s being used against our enemies, we can say: Yeah, great, issue the arrest warrant. In the history of U.S. policy, it’s a different thing when it’s been wielded against our own allies and personnel.
Famously, we have what’s called the Hague Invasion Act that gives Congress the authority for the U.S. to literally invade The Hague to extract U.S. personnel who hypothetically would have been arrested by the court.
You wrote 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 that piece.
Machtpolitik.
What is “Machtpolitik?” Could you define that for a second?
Yeah. The scholar Patrick Porter describes it as the corrupt cousin of realism. 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.
Everyone quotes Thucydides — that the strong do what they can and the weak suffer what they must — as this creed of realism. And actually, that’s a warning that unrestrained power leads to the demise of a nation.
So I think that’s what he’s saying is there’s this 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.
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 enhancing American power.
But, certainly, 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 of these international forums and agreements. 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.
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 that we should really follow international law.
We should follow the rules. If we want to do something, even if we think it is moral or right or good, and we cannot get the U.N. 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, then we should not do it even if we find that frustrating.
It actually seems to me like the foreign policy visions that are emerging are much more polarized about how American power should be used than at other times during my covering foreign policy.
Yeah. I think there is a debate about whether what you call subordination to international law is a limitation of power rather than an expression of it.
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 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. So by strengthening the international commitment to sovereignty, which, of course, has implications for their own policy, you see them establishing themselves as the leader in the field in the way that the United States used to be.
They are demonstrating how you can flex muscle by participation and not by absence.
But to push on that, China — to the extent that 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 it? Do they believe in that with Tibet? Do they believe in that with Taiwan? Have they been all that critical of Xi’s dear friend Vladimir Putin entering Ukraine?
Certainly, they say that. But when I look at China’s behavior, it seems there’s a large loophole. If you say: Those are not real borders; that’s ours — who’s going to stop you?
Yeah, totally. What that’s getting to is this perception that international law is not completist. It’s full of loopholes, it is full of hypocrisies.
When I spoke to John Mearsheimer, who’s one of the most prominent realists in the country, he said: Of course, we subscribe to international law when it suits us.
I think China is showing that also. That gets back to this question about international law as an expression of power and as a vehicle of power.
I want to stay for a second, though, on this question of sovereignty as a principle. Because you can say that the way China frames its relationship to international law, whether or not they really believe in sovereignty, as it looks to me, is questionable. Fair enough.
On the other hand, there’s some interesting convergence here. So Sam Moyn and Aslı Bâli, who are two scholars I have great respect for — Aslı Bâli’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 antiwar pact.
Can you maybe explain what their vision looked like and what you found interesting in it?
What I took them to be saying is that we should return to brass tacks and not discount international law as a meaningful force in the world.
I think 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.
In my conversations, particularly with 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, the position of strength and power. It’s not something that you hear in other parts of the world, generally speaking.
I think what they were saying is: No, it absolutely does exist, and it should be preserved. But we can’t return to this fantastical vision of a liberal internationalism that has proved quite destructive in many ways.
So you should go back not to where you have maybe criminal courts and all these different treaties but just to saying — and this is me characterizing what I thought I was reading, but I’m not an international lawyer — that the agreement should be that we don’t invade each other.
Yeah. And returning to the taboo against the crime of aggression and of conquest, which has been totally blown out of the water in recent years.
But then I think you immediately get into this question, which I take as maybe one of the fundamental questions of foreign policy, of international health: What do you do when it is violated? What is law without the police? What is law without enforcement?
I think there is a particular challenge that people of a liberal persuasion face right now. I mean broadly liberal, in a way that unites left and moderates, and just people who believe in both domestic and international rules, which is: All of these systems — from our courts to the U.N. to the I.C.C. — we have these beautiful values that then need to be made real in the world through flawed institutions run by human beings.
And because the broad left has become the party that is in the institutions, people who become human rights lawyers and international law experts, they fundamentally believe in it. So their friends are in these institutions. You get literally caught in the questions of proceduralism.
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 almost now sounds naïve. What were they trying to achieve?
They were trying to realize a liberal order in which violence would no longer be the way that states would settle disputes.
There was this notion of peace through law — a very romantic ideal. The philosopher Judith Shklar writes about how this idea of law above all legalism became inseparable from liberalism.
I think what you were speaking about, this turn to proceduralism and this emphasis on bureaucracy that law often gets so caught up in — and it also makes it hard to understand from the outside — that is precisely where these moral values that undergirded the project in the first place get lost and get drowned out.
I think often that 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 to punish — how do you nevertheless make them legible in this extremely brittle, imperfect system that we have created?
There’s this wonderful scholar, Yosal Rogat, who many years ago wrote about the Eichmann trial that we’ve never escaped the problem of “The Oresteia,” the Aeschylus play — the submission of moral wrongs to a legal order. That’s where we’re constantly fighting this battle to end the cycle of vengeance.
Our legal systems are constantly showing themselves to be inadequate, but also to hold this strange power that we don’t always know how to use.
I want to stay on this idea of the moral wrongs and what we are really trying to do with them.
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 arguing about is the historical memory of them?
Those are all different kinds of operations.
To put this in the terms that we’re really arguing in now: There’s a question of the Hamas attacks on Oct. 7. There’s obviously a deep history in that conflict. There’s occupation. There are a lot of legal rulings there.
But within international law, 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? Then I think there’s also this question of: What is the meaning of it all?
I think genocide, in particular, has been such a white-hot debate because if genocide were proven, it changes the meaning of Israel. It changes what it exists in as historical memory.
The real punishment is what you mean going forward.
If Israel is the country formed out of genocide, and then also one of the very few proven guilty of it, then what is Israel?
I feel like so many of the fights right now are about whether you can use international law to impose a meaning on things that have happened such that it exists as a warning to others?
Absolutely. The symbolic value of a genocide ruling in the I.C.J. cases about Gaza cannot be underestimated — what that would do for everyone involved.
I often think about the legal scholar Leila Sadat, who’s really pushing for a convention for crimes against humanity, to make them legible before the I.C.J., to be able to bring suits before them that would correct this elevation of genocide as the crime of crimes.
But she argues that the U.N. Genocide Convention of 1948 has become a memorial to the Holocaust — precisely because it hasn’t been able to be used. We only have one decision from the I.C.J. in the Bosnia versus Serbia case, which some people have pointed to as a precedent for what might happen in the litigation against Israel.
I think you’re right that these are all questions about historical memory. And with this question of prevention, one of the sitting judges on the I.C.J., in one of his rulings, at the very end, he said, after describing all of the crimes that had been commissioned and all the violations, he ended, and he said: But the court is just a court.
There is a limit to its power. We have to think about what happens outside the court of law. If we talk about only what international law can and cannot do, then we get right back into legalism.
Well, to me, this is one of the places where maybe this conversation is bearing more weight than it can hold.
You imagine a world where the I.C.J. rules that maybe entirely, or at least, for the most part, 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 who believe it’s genocide would say after that: Well, never mind. We went to the international courts. The courts ruled without fear or favor, and we’re willing to say maybe that went too far, but it’s not a genocide.
But on the other side, what people really wanted was not law but leadership.
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 such a strange thing. Joe Biden had few bigger supporters, particularly at the end, than Bernie Sanders and Alexandria Ocasio-Cortez and the left.
And yet it was Biden’s administration that, as much as anyone did allow this to happen, abetted this happening. I think that what is operating, without people having exactly the way to say what it means in policy, is that they want to see leadership that would not accept that again. And that it’s not bound by any one rule or any one law.
But 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.
I think there’s this unquestionable desire for leadership. I think most people go about their lives, and they’re not aware of the I.C.J. They don’t think about it — or the I.C.C. 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 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. Whenever, whatever judgment comes and whatever political resolution, whatever policy changes the Democrats need to make and will make come of this, will not undo the harm done.
This is when we start thinking about international law as a tragic field.
The void of leadership that we are experiencing now is almost reflective of this inability to 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 evince.
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.
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.
People have this question of: Well, what is America?
Now I don’t know, and I’m not 100 percent sure this is true, but I think there is, and has been for a long time, something about Israel that attracts attention and interest. I know people who would say it’s antisemitism. 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, where people have a deep relationship to Israel in America that they don’t have to other countries.
But nevertheless, there is a question of: What does it say about who we are? And what does it say about what our foreign policy is?
That feels like the deeply unanswered question.
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, in an unjust peace. It will be a 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 almost completely discounted the sovereignty of the Palestinian people.
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 these moral judgments and categories very difficult.
What do you mean we live in an “era of wars with no discernible end”? How is this era different than what came before it?
Well, I have written about how cease-fires have become a replacement for lasting peace settlements, and I was really struck by this when, as part of the protests against the war in Gaza, the prevailing slogan was: Cease-fire now.
That’s very powerful. That stops the violence. You need a cease-fire 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.
Cease-fires almost always break down, and it almost serves as an excuse for sidestepping the more difficult political questions and moral questions that always come to light in these events.
Why do you think there’s been this turn in international relations away from actual settlements and toward cease-fire and interim deals and periods of quiet rather than a big negotiated finality?
There are many explanations. 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. You’re more likely to have a lasting settlement when you have multiple states that are signing on to solving the problem — which increasingly is extremely rare.
How much does it also just reflect a loss of belief in the possible?
I mean, for Israel and the Palestinians, for one, there was a long period of attempts at peace deals. The days when it felt like America had the power to convene and force a real discussion, even if it didn’t work in the end, those days have been gone for a long time.
There’s this feeling that, over the past many decades, international law has lost its power of moral imagination and that then the politicians who subscribe to it have lost any tie with these lofty ideals that have historically driven the field forward and have replaced them with essentially managerialism.
Precisely as the Democratic Party confronts the problem of what its foreign policy is going to be, it would be very well served to try to recapture an affirmative vision of that moral daringness, to not just say: We’re going to revert to the rules — and let that be that. But to actually say why. Say that these things have left us — after Gaza, in particular — having to confront the ruins of the liberal internationalist order.
Somebody was saying to me recently that they were fascinated by how naïve widely held ideals of the fairly recent past now feel.
Yeah.
There was a time, in the ’60s and ’70s, when people believed that maybe you could have a world without war. Where people believed, into the ’80s, that they were engaged in an effort to have a world without nuclear weapons.
There’s very little of that kind of fantastical ambition.
So I guess I’m curious when, in your reporting, in your attending of these conferences, do you find that there are pockets of people dreaming about things that seem 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 that it’s hard sometimes to know if there are places where people are less trapped by that.
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. We had these moments historically. You could look the Hague Peace Conferences, which were then followed almost immediately by World War I. Or the fact that the Nuremberg Charter was signed just before the bomb was dropped on Nagasaki.
These moments of real progress in international law are often followed by profound crises or things that immediately would seem to invalidate the ideals that they espouse.
I imagine that we should have a reappraisal of what international law can do in the world. Whether that is going to be preventive or protective, or if it’s going to be reparative is a really interesting question.
People think of the I.C.C. 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, let’s say you do have a Democratic president in 2029, and they want to come in and show that the era of international law, of America being a participant in the rules, a participant in the international order, is back.
What would they have to do to signal something real there?
I think this is a question of moral imagination. Where do we want to go? I don’t think it’s enough just to say we’re reverting to the rules. I think you could imagine — and Mamdani explicitly called for this — the United States joining the I.C.C.
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, even if it’s by giving a lot of money to the trust fund for victims to signal material support.
There’s a 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. We have the power to kind of make that real.
My interest is in how we make international law material. How do we make these moral values actually have a difference on people’s lives?
That’s reclaiming this reparative idea of international law or a reparative politics that can fill in the breach. That’s where I’ve found myself gravitating toward.
I think that’s a good place to end. Always our final question: What are three books you’d recommend to the audience?
The first book I would recommend is called “The Divided City” by Nicole Loraux, who was a French scholar and just a gorgeous writer. It’s this book that talks about the inherent division of politics and how you can overcome it.
Historically, it takes us back to the classics, to ancient Athens — that is the titular divided city — and speaks about the difficulty of coming together after moments of profound rupture.
So that’s the first one.
The second book is coming out in September. It’s called “Crossing the Red Line” by Akbar Shahid Ahmed. It’s about the Biden administration’s shifts in policy toward Gaza and precisely how that played out.
I was just reading it on the train here, and it is a very in-depth reportage about how the red line was ignored and how they sidestepped ——
This being red lines where Biden would say to Netanyahu: That’s a red line ——
Yeah, specifically the discussion around the invasion of Rafah.
So I would recommend that.
And then the third book is a novel called “Under Water” by Tara Menon that just came out. 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 tectonic losses and shifts that it will bring about.
That is what Tara is attempting to do in this book, and it’s just beautifully executed.
Linda Kinstler, thank you very much.
Thank you for having me.
You can listen to this conversation by following “The Ezra Klein Show” on the NYTimes app, Apple, Spotify, Amazon Music, YouTube, iHeartRadio or wherever you get your podcasts. View a list of book recommendations from our guests here.
This episode of “The Ezra Klein Show” was produced by Jack McCordick. Fact-checking by Kelsey Lannin, with Michelle Harris. Our senior engineer is Jeff Geld, with additional mixing by Aman Sahota and Johnny Simon. Our recording engineer is Aman Sahota. Cinematography by Marina King. Video editing by Steph Khoury and Arpita Aneja. Our executive producer is Claire Gordon. The show’s production team also includes Marie Cascione, Annie Galvin, Rollin Hu, Kristin Lin, Emma Kehlbeck and Jan Kobal. Original music by Pat McCusker. Audience strategy by Shannon Busta. The director of New York Times Opinion Shows is Annie-Rose Strasser. Transcript editing by Sarah Murphy and Marlaine Glicksman.
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