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From New York Times opinion, this is the Ezra Klein Show.
On Friday May 10th, the UN General Assembly passed a resolution saying Palestinians qualify for full member status at the UN. In the end, the vote was overwhelming. In favor 143, against nine, abstentions 25. [APPLAUSE] This was new. The General Assembly had never voted for that before. But they did so now in overwhelming numbers. The final vote was 143 to 9, Israel voted against it, so did the United States.

Now to make Palestinians, to make Palestine a full member of the UN would take a Security Council approval. The US would veto that. Our position is that a Palestinian state should only emerge through negotiations between Palestinians and Israelis. But the vote itself was a sign of the chasm that is opening between not only Israel and the UN, but America too.

Israelis have long felt the UN is biased against them. In 1975, the UN voted to declare Zionism a form of racism. They were appealed that in 1991. From 2015 to 2022, the UN General Assembly adopted 140 resolutions on Israel. Over that same period, it passed 68 resolutions on all other countries combined.

At the same time, the UN was instrumental in the creation of Israel, voting to partition the land of historic Palestine between Jews and Palestinians. And giving a majority of it to Jews. Palestinians feel the UN, in particular, and international law in general, has been a procession of false promises. Where is their state, their self-determination? Where is the right of return for their displaced? What have all these resolutions and condemnations amounted to?

Aslı Ü. Bâli is a professor at Yale Law School who specializes in international law. Now I want to have her on to trace a deeper question here too. One that stretches beyond Israel and Gaza, to Russia, Ukraine, and really the whole world. What is international law actually for?

Aslı Bâli, welcome to the show.

Thank you for having me.

EK: So I think the way we normally think about laws is that they are rules where, if you break them, some kind of external actor comes in to enforce a punishment, right? Maybe a sanction, maybe imprisonment. With that definition, is international law actually made up of laws?

AB: It is made up of laws, and it sort of depends on where you sit.

So if we take an average-sized country with an average military capacity and an average economy, it might be very much deterred, just by the presence of the rules themselves, from doing things that it could reasonably anticipate would be subject to punishment under the rules, like sanctions, or punishment like international adjudication, and it would depend a little bit what kind of violation it was and whose interests were at stake. But there are many, many contexts in international law where it operates just the same way that you expected to operate in a domestic legal system.

AB: We are thinking about international law from the perspective of sitting in the United States, a country that is the author of most of the rules, a rule maker, and not very often a rule taker, in part because it’s by far the most powerful state in the international system. And we tend to project, from that experience of understanding international law in, let’s say, an a la carte manner, to how all states in the international system might regard international law. But that’s wrong.

EK: I think that makes sense to me, but one of the things I was looking at before we talked was what, since roughly 2000, have been the conflicts with the most terrible casualty accounts. And when you look at that, you actually do see a lot of countries that are not hugely powerful international actors. I mean, you see Syria on there, you see Yemen, you know, the Yemen Civil War, you see Ethiopia and Eritrea. And all of these, and some of them in particular, have had terrible atrocities associated with them. But the fact that the perpetrators weren’t particularly powerful did not seem to create some opening by which the international community could stop the bloodletting.

AB: Yeah. In the two specific examples you just gave that you began with in Syria and Yemen, the reason for this is because smaller or less powerful actors can seek great power patrons in the international system. And those very powerful states can disable mechanisms of enforcement and accountability.

AB: So in the case of Syria, it has cultivated a relationship with Russia, and Russia has effectively used its veto power at the Security Council to shield Syria from various forms of accountability that were very much on the table. With respect to Yemen, the source of impunity has been the United States, and Saudi Arabia has been able to wield its own influence backed by the United States at the UN through a variety of backroom negotiations and open threats. So the cases you began with are cases where great powers stopped accountability from occurring through their veto in the Security Council and other means.

AB: That still leaves the other example you gave, which is Erit rea and Ethiopia. And I would add to that one more, which is the conflict that has consumed the Great Lakes region in Africa since the late 1990s, where you have had millions of people displaced, millions of people killed and injured, and essentially very little by way of international intervention. These are cases where no great power is interested and is willing to generate the political will to engage the institutional accountability mechanisms that exist, because there isn’t, for example, a domestic audience cost. There isn’t an outcry domestically over that particular conflict in the Great Lakes region DRC example that I gave you. There’s no comparison between the level of attention and scrutiny given by the American public to conflicts that are occurring in Europe or in the Middle East, and those that are occurring in parts of Africa, where the United States is not historically deeply implicated or engaged.

EK: So what I hear you saying here in different directions, is that for international law, like for other kinds of law, power really matters.

AB: Yeah, and if you would let me indulge in just one more example, in the context of the 1990s, when the United States was by far the most powerful state in the international system and uncontested sort of unipolar moment, there were two major crises that involved clear evidence of crimes against humanity, possibly genocidal crimes and violence. One was in Yugoslavia, and the other one was in Rwanda, and there was enormous international attention to these contexts, and yet there was still a reluctance to do the first thing that international law might have required, which is to trigger measures through the UN Security Council that would wield international power to get the violence to stop. And there were constant calls for this, but from the United States perspective, in painful punishing experience in Somalia earlier in the 1990s, had yielded the lesson that we will not be implicated in judgments by the Security Council suggesting that such an obligation might exist, for example, by characterizing the conflict in Rwanda as a genocide, we will not allow this because this will drag us into engagements that we do not wish to be part of.

AB: Eventually, of course, because the Yugoslav conflict was unfolding on European soil, eventually you did have a direct intervention, but it took a very long time. And so that’s another example of a place, it’s sort of in between, where international law is definitely being used. It’s shaping the responses of actors, but it’s being deployed in a way that defers the urgency of the moment and allows bloodletting to continue. Before we get into the conflict, we’re actually really here to talk about, I guess I want to ask a more personal question of view, which is this seems from everything you are describing here to be an incredibly frustrating world to work in. I know a number of international lawyers, I know people who care deeply about international law, and they are unerringly some of the most idealistic, most just disoriented people I have ever met. And yet what we’re describing here, what you’re describing here is a world where powerful states decide whether enforcement actions will be taken, where power decides whether the law will apply at all, where the relevant body of the UN that decides on security actions is dominated by a small number of very powerful players wielding vetoes. How do you balance the sort of belief in the laws as written, and your sort of recognition of the way that practical politics and power end up shaping and warping their application? So the international peace and security order that we have emerged out of the Second World War, which resulted in the deaths of at least 30 million civilians, which caused untold damage to the world over, although we tend in the United States to focus exclusively on the European theater. So the architecture that was established for the international legal order in the aftermath of the Second World War prioritized peace over justice without any doubt in my view. The nations were united. The big five China, Russia, Britain, France, and the United States led the peoples of the world as they launched a rule of international law and a bill of human rights, a rule of law they believed . No nation, large or small, would dare defy. The architecture of the United Nations security order gives asymmetric power to the victors of the Second World War that were also assessed at that time to be the most powerful states in the international system, states that now have nuclear weapons. Any war between those five states threatens planetary extinction and as a result must at all costs be avoided. The architecture of the UN endows them with this asymmetric power as a mechanism to keep them inside of the institution, negotiating the differences amongst them rather than resort ing to extra diplomatic, extra political means to resolve their conflicts. Now, imagine a universe in which the great majority of countries agree that the circumstances in Israel, Palestine represent a threat to international peace and security and require imperatively international intervention. The United States would interpret such an intervention as a direct threat to one of its most core interests of enormous consequence. And so immediately you would be in a situation in which one nuclear power would be on one side of the equation and arguably one or more nuclear powers would be on the other side of a conflict. There is a real risk that any number of geopolitical zones of conflict, including Israel, Palestine, including the Middle East, could become the site of a metastasizing, globalizing conflict in which one or more of these nuclear states is ranged against the other. But the institutional design of the United Nations system is intended to prevent that by enabling each of these powers to paralyze any action when one of these great powers understands its interests to be threatened. That’s the design of the system. International law, though, has other characteristics too. For one thing, it is a recognition of the sovereign equality of all states, regardless of their ability to defend their borders milit arily. So it’s a system that as a de jure matter recognizes equality amongst fundamentally unequal units in the international system and affords some possibility for smaller states to protect their own independence using a normative language in which all actors recognize the states in the international system have a shared vocabulary. That’s an incredibly valuable possibility. It’s a language that makes it possible to make normative claims on the powerful and to limit the degree to which they exercise their power in ways that are deeply compromising of the interests of states that are far weaker. So the basic decision made to build an international institutional architecture that recognizes those asymmetries of power and keeps those countries in, even at the price of paralyzing the security order in circumstances where they believe their interests are at stake, is a decision to prioritize the avoidance of a Third World War over justice as part of the actual internal institutional structure of international law itself. You’ve said that the creation of the state of Israel and the creation of the of international law as we know it today are interw oven. How so? So one of the things that the League of Nations did after World War I was oversee the territories of collapsed empires that were defeated in the course of the First World War and whose territories were now no longer under imperial dominion. On the land empire of the Ottoman Empire in the Middle East, the territories were not deemed capable of self-government and were placed instead under mandates, a kind of trusteeship, in the hands of colonial powers. One of those was the Palestine mandate and it was bequeathed to Britain to oversee as a mandate that was supposed to enable the self-determination of the people on that territory. There were a range of events for two decades as the British maintained this mandate authority in which you had increasing emigration of Jews from Europe and elsewhere to Palestine as part of their goal to establish a state on the Palestinian territory that would realize the ambitions of the Zionist movement which was born in Europe in the 19th century and the British authorities were extremely supportive of the goal of Jewish communities to establish a Jewish homeland in Palestine. It was something that was conceived of as a solution to an ongoing problem of Europe which was the kind of raging antisemitism and the violence that came with it that culminated horrific ally in the Shoah in the Second World War but of course had punctuated European history for centuries before that with pogroms and persecution across the continent. And then of course you had the indigenous Arab population of Palestine that were seeking self-determination and independence as were the Arab populations of the other mandates, Syria, Jordan, Lebanon, etc. And so of course this was producing intercommunal clashes because you now had two communities that were seeking to engage in self-determination on one land. And so this conflict raged for two decades and at the end of the Second World War the British basically having difficulty maintaining imperial control as a general matter turned its mandate in Palestine over to the newly formed United Nations and was asked to make a judgment about what should be done about these competing ambitions for a homeland. At a special session the General Assembly of the United Nations established a special committee on Palestine and sent it to this troubled area to study the problems and make recommendations. The judgment that the United Nations made was that the land would be partitioned between the Jewish community which would get roughly 55% of the land and the Arab community which would get roughly 45% of the land. The Palestinians of the territory were accord ed less than half of the territory that had been part of the mandate. They objected to this, they also constituted a very very large majority on that territory at the time. But the Arab rejection led to a war and in that war the Jewish forces gained a larger proportion of the territory even than had been assigned to them in the partition leaving 22% of the territory under Arab control and the remainder under Jewish control. Israel was admitted to membership in the United Nations and her flag was raised at Lake Success. Again the United Nations had through peaceful mediation resolved an international dispute which had been a threat to world peace. So that’s as of 1949 but in the following two decades the UN presided over a much much wider scale decolonization of territories that had been colonial possessions of Britain and France and other European powers across the Middle East, Africa and parts of Asia. And this enormous wave of decolon ization brought dozens of new countries into the United Nations, newly independent countries all of whom were highly committed to a model of decolonization that enabled populations under colonial rule to achieve self-determination. So one thing I think this gets at is the way in which there are these two narratives that sit alongside each other about the foundation of the state of Israel and the sort of world we know and inhabit around that which is one is it it was an act of the United Nations right it was a there was a piece of paper there was a partition plan and another is that the UN was a bit of a sideshow and there was a war and that sort of understanding Israel and for that matter Palestine and Palestinians as constructs of international law has both always been tempting because international has always been right there but has actually been wrong because in the end the UN did not send in peacekeepers or soldiers to enforce its own partition it did not send in people to create its own preferred outcome and so there’s been this tendency to look outside of the conflict for this arbitrating authority of the UN that has always been right there alongside the conflict and still is but has never actually been able to manage or effectively structure it how do you think about the way these sort of two tracks of interpretation have evolved alongside each other. So I think that the second track that you describe which just views the creation of the state of Israel as a fact of war is problematic for a couple of reasons the first is that it doesn’t ask a set of questions that are the predicate to that war being possible how was it that there was an idea that an Israeli state would emerge on a mandate from the Ottoman Empire that was called the Palestine mandate for the population that was on that territory at the time of the end of the First World War that too was an instrument of international law the mandates were created as a consequence of the Versailles peace treaty and the British exercised its power as a matter of international law over Palestine and of course many would argue violated the terms of a mandate by enabling a kind of pattern of immigration and demographic change along with commitments political and legal to another community to achieve self determination on that same territory. And this connects to the ways in which international law itself has long been prior to World War II and since a system of rules that essentially have facilitated European let’s say now Western or global North control over swaths of territory that were defined lawfully as colonies. So the thing you’ll hear from Israelis on this is they feel the UN is biased against them. You’ll hear that from 2015 to 2022 the UN General Assembly adopted 140 resolutions on Israel it adopted 68 resolutions on all other countries combined even though this is a period when there was a lot of war a lot of atrocity a lot of human rights abuses in places like Syria and Yemen. So there is a specific level of interest in Israel and the Palestinians that I think if you’re just looking at I’d say casual accounts of different wars and conflicts you wouldn’t be able to predict. So it’s the only territory that had been slated to be decolonized at the creation of the United Nations that had inherited from that previous system that has not been decolonized. It is not disproportionate to the attention that was paid to apartheid South Africa where the territory continued to be under white minority rule. For decades in the United Nations these two challenges were understood as ongoing examples of incomplete decolonization that continued long after the rest of the world had been fully decolonized. At the beginning of the 1990s there was an expectation globally that both of these remaining dossiers of incomplete decolonization were on the cusp of being resolved one of them because of the transition within South Africa to a post-dep artheid constitutional regime and the other because of the Oslo peace process and the imminent possibility of the emergence of a Palestinian state. In the context of Israel-Palestine the two-state solution did not come to fruition and as a consequence now Palestine remains the one instance that goes right back to the founding of the United Nations of an example that a majority of states at the UN continue to interpret through the lens of incomplete decolonization. So from the US perspective decolonization is over it was a good thing and now we’re in this post-Cold War order but from the perspective of the world that was subject to colonial dominion the question of dec olonization remains very live and the continuities between the experience quite recent I would add historical experience of their nations and the current scenes that are emanating out of Israel-Palestine makes this an ongoing issue of concern for them if only for symbolic reasons and if only to a limited extent. So voting on UN General Assembly resolutions is not exactly the same as having serious skin in the game but those 143 states in the international system understand the Palestinians as entitled to self-determination and a state. 50 countries in the world don’t recognize Palestinian statehood and there’s an enormous overlap between those 50 countries and the former colonial powers in the international system and so in that circumstance I think you can see why it is that what you’re describing as disproportionate attention is actually attention to the one case that continues to reflect this long-standing grievance of the global south over the role that international law has played in enabling subordination. The view I often hear from Israelis about this is that they feel there is something unusual about the belief that Israel itself is unusual and it’s an attack they often lob specifically of the United States which is itself a nation that was settled, settled with enormous violence to it. There is a lot of blood in the founding and blood in the early years of the country and that at some point that is no longer questioned, right? There isn’t an effort anywhere to say should the US continue to exist and to Israelis there are many countries that look like that, that their foundations have a war in them, they’ve finished and have an expulsion in them but that country is now kind of accepted as just a country, not sort of an open case file whereas Israel they feel like there is somehow softer clay around them than other countries that don’t look all that different in their origins. Do you think there’s validity to that feeling and if so does it reflect that Israel emerges after the formation of the UN in this world of international law or is it something else? I do think it has to do with the fact that Israel emerges after the rules have changed. So it’s quite true that the United States was founded in a very similar fashion with European settlement and in fact much more violent the genocide of the indigenous population, expropriation of its lands, enslavement of peoples, trans atlantic slave trade, etc. There’s nothing to celebrate about the origin story of the United States from that perspective as a matter of international law except that at the time that all of that happened there weren’t clear laws that excluded that. In fact quite the opposite as I mentioned, international law facilitated colonial conquest of non- European lands and territories and offered a set of justificatory frameworks for enabling that. So first of all there was already international law applicable that treated Palestinians differently than indigenous populations of earlier centuries as a consequence of the end of the First World War and the creation of the League of Nations. Palestinians had already been recognized as a people with a legitimate right of self-determination subject to a mandate that was understood as a trust in order for them to have their welfare preserved by I mean however cynically by a colonial power until such time as they could exercise their right of self-government. And secondly following the end of the Second World War there were new rules about the conduct of war and the protection of refugees. So it was against that backdrop that Israel came into existence and it’s less that it’s considered a state unlike all other states and it’s not an incomplete file as such just on the Israeli side. It’s rather the idea that today you have 14 million people on this territory, half of them were recognized as having their own right of self-determination and that has been frustrated. The other half has achieved a threat of self-determination. So Israel has created a state that is an expression of the recognized right of self-determination of the Jewish people but is continually behaving in ways that essentially deny Palestinians the ability to achieve the same. All of those efforts that you described of external actors to impose solutions of one kind or another whether they be unilaterally the British or the Americans or the United Nations as an international organization. One thing they run up against is that there are actually two communities on the ground whose preferences need to be taken into account. One of them is asymmetrically more powerful than the other. Each of the rounds that you described or that we’ve discussed so far have greatly favored the Israeli side in one way or another. The least example of that is the UN Partition Plan, all subsequent plans have enabled Israel to retain far larger swaths of territory. Territory acquired by use of force in a time when international law prohibits the acquisition of territory through the use of force. So these agreements, these externally backed agreements, have systematically favored the more powerful side and the inconvenient reality on the ground is that there are two populations of equal size on the territory. 7 million Palestinians, 7 million Jewish citizens of Israel and it has proven impossible to force through external pressure or by dent of arms Palestinians to simply accept their subordination as a legal matter and so you have an ongoing conflict. Let me pull us into the present here and look at another body of international law, which is the international laws around war and conflict. And let me begin on the part that I think people are talking less about right now, which is that on 10/7 you have Hamas fighters crossing to Israel. They kill around 1200 people, most of them civilians. They take hundreds of hostages, many of them civilians. What is international law to say about that? So they clearly violated the laws of war by first deliberately targeting civilians, secondly taking civilians hostage, which is also imper missible. And then ongoing indiscriminate rocket fire is another source of violation. So there’s undoubtedly war crimes committed by armed Palestinian factions, including Hamas on October 7 th. If Israel wanted to rely on an international law here as both a matter of defense and a matter of justice, what would it have said or done? So it had a number of potential options. It could have engaged in a police action in Gaza, seeking to apprehend individuals that they held responsible for the October 7th attacks. It would probably have begun with investigation on Israeli territory of who actually was responsible for taking the individuals that had been captured alive on Israeli territory, interrogating them, and then seeking to gain access to or jurisdiction over those that were held responsible. It could have engaged in a much narrower set of engagements attempting to target facilities that made it possible for armed actors to cross the border in the way it had. And primarily, it could have shorted up its own defenses because the conditions that enabled the October 7th attack to occur was not some new unexpected capacity on the part of armed actors that represent an ongoing existential threat to Israel, but rather a failure to maintain basic defenses at the border with Gaza. Israel has responded with the view that Hamas is a kind of organized fighting force that cannot be allowed to continue to exist as any kind of fighting force, that as long as Hamas exists as a structure, it will continue planning and using creative means to try to figure out how to strike at Israel’s weaknesses and so that they need to destroy Hamas. They can’t just treat it as something where a couple people committed a crime. The thing that was Hamas cannot be allowed to exist. How does that fall within the way international law understands the kinds of responses that are reasonable here? I think the view that the absolute destruction and extermination of your adversary is the war objective is simply grossly disproportionate and impermissible as a matter of USAD Bellum, which is to say the law governing resort to the use of force. Hamas does not represent an existential threat to Israel. Israel is saying that our objective in this war is to destroy all Hamas military presence, period. So then it’s basically a no holds barred situation because the argument is there are tunnels underneath everywhere. So the way that Israel is interpreting internationally monetary in law here, it’s deliberate choice to prioritize military necessity over the principles of proportionality and distinction and also to describe military necessity with respect to its overall strategic objectives rather than answering the question whether this object in this concrete and direct way is contributing to a specific military advantage in that moment is reinterpreting the rules in a way that undermine both the spirit and the law of internationally mandatory law because it eviscerates the law’s ability to protect civilians. What’s made much more complicated is that Israel is not always clear in claiming that it’s Hamas as a armed actor that must be destroyed. Oftentimes it seems as if it’s just Hamas as a whole and Hamas has many different characteristics. It is an armed faction in Gaza, but it is also the governing authority that represents all of the civil service, all of the bureaucracy , all of the municipal services, everything that enables any territory to run from crossing guards to sanitation workers to people who are operating the hospital systems. And so the idea of destroying the governing authority is totally impermissible and would be actually targeting of the civilian infrastructure, which is indeed something I think we’re seeing. And so there’s a troubling question of what does Israel, how does Israel define the object that’s seeking to eliminate or exterminate. And in the context of Gaza, which is a very, very small territory with a very dense civilian population is going to have the kinds of consequences we’ve seen of just grotesque, disproportionate harm to civilians. Is this a place where international law and what you might call international practice diverge? Because it is difficult for me to imagine all that many countries suffering the kind of attack from a neighboring territory that Israel suffered and not believing their objective is to wipe out the governing authority that planned, financed and launched that attack. I mean, the obvious, I think, analogy for Americans is Al- Qaeda after 9/11 was certainly the way the American political establishment initially absorbed this moment, right? Joe Biden kind of making the point of how many 9/11s this would feel like to Israel, even as many of us really push the idea that our response to 9/11 was misguided. But it wasn’t an effort to invoke that same sense of how a country might reasonably be expected to respond to this kind of security risk. So there’s a question of international law here, but there’s also the question of what do countries typically do under this kind of pressure. And I wonder if those two diverge for you. So it’s an interesting question to begin with the idea of a country facing an armed attack from another country. And what does it do is, of course, the premise of all of the laws of war. And let’s think of the context of Ukraine and Russia, for example, we don’t imagine a scenario in which it’s permissible for either of those actors to have as a war objective the complete elimination and extermination of all fighting forces and the governing structure of the other. We would understand that to be a kind of total war that’s ruled out. And if either parties seem as if it was pursuing that kind of a maximalist goal, that would be rejected out of hand. So it really depends on where you sit. If you’re the United States and you choose to see Hamas as the equivalent of al-Qaeda on 9/11, you might choose one set of repertoires. And as you say, international law required constraints that the United States did not observe post 9/11 and came to regret it for the reasons you were suggesting. Many of us believe that the U.S. response post 9/11 was disastrous, not only for those that were the targets of U.S. force, but also for the United States itself, which in fact suggests that there is a purpose to the rules and that enabling their constraining function may actually be in the interest of all parties. But if you’re sitting elsewhere in the world, for example, in the global south, then you might not think of Hamas as similar to al-Qaeda, but rather to the national liberation movement that achieved independence in your own country. And the rest of the world, the global south at least, fought very hard for a law that entrenched that right of armed resistance in the international legal order through the additional protocols, to the Geneva Conventions and through a range of subsequent customer international law that has grown up around the Geneva Conventions and the additional protocols that recognize national liberation movements as a very different kind of actor, a sort of proto-state military, rather than an actor that can be compared to al-Qaeda or a terrorist group that isn’t connected to a claim of national self-determination. I want to go back to something you said a minute ago about Russian Ukraine, because I actually did understand something like the governing authority of this country is illegitimate and a danger to us and needs to be wiped out completely as Russia’s at least stated objective of what they were trying to do in Ukraine. And I think this gets to this question somewhat of enforcement where I think Russia’s general invasion was rejected within international law. And yet there is this kind of shimmering, crazy-making sense around it, where Russia did the thing that is most abhorred under international law, just launched an invasion of a neighboring country for functionally no reason whatsoever. And yet Russia maintains its standing in the international system as it has always been. It’s sitting there on the UN Security Council. The fact that its efforts have been rejected has not mattered all that much. If we are looking at the Russia-Ukraine analogy alongside this, I do think that is one where people look at the system and they say, “This is no system at all. This is just power dressed up as laws. Not laws that actually act to constrain power.” In Russia and Ukraine, it ‘s one thing to say that the goals of Russia are to defeat the Ukrainian government and to perhaps remove the leadership of the Ukrainian government. And it’s another thing to say that the goal of Russia is to wipe them out and exterminate them. So I don’t think we have any evidence to suggest at this point that they have articulated an expectation, for example, of taking every person who has served in the Ukrainian government from trash collectors to sanitation workers, to civilian crossing guards, to policemen, to K-12 teachers, et cetera, and just kill them all. Is that Israel’s goal though? Because that’s also to mine. I have a deep critique of the way Israel is conducted this war, but I don’t hear them saying that every doctor who works for the Hamas government should be killed here. I mean, that also sounds like beyond what Israel has described as their goal. I was just pointing out that the goal of wiping out Hamas has the potential to be read in three different ways. There’s the armed actor, there’s the governing infrastructure, and there’s the social movement, and there ‘s ambiguity in the way that Israel describes it. More generally, Israel has targeted, for example, the police force, it has targeted civilian infrastructure of a variety of kinds. It’s hard to say exactly what their goals are, but I didn’t mean to assert that they had the goal of killing those people. I’m just saying, if that were a goal, it would be impermissible. That kind of total war would be impermissible under any circumstances in any context, whether between states or with respect to a non-state actor, et cetera. That was the sense in which I was invoking Russia and Ukraine earlier in our conversation, that we don’t understand that to be the Russian war goal. The challenge that we have in saying that Israelis have established the complete destruction and elimination of Hamas as the objective of the war raises troubling implications of total war that I think we wouldn’t permit in any context. Even the suggestion of destroying the entire military, I mean, for example, the United States clearly had in mind in its invasion of Iraq and subsequent occupation of Iraq, destroying Saddam Hussein’s capacity to wield his military. It didn’t entail destroying every last fighting man or fighting age man in Iraq. Indeed, it didn’t involve even disarming all Iraqis. These are not the kinds of objectives that we have. Typically, it’s a decapitation of the leadership and then a preservation to the extent possible of infrastructure that will make governing the day after possible. It’s not always clear in the case of the war against Hamas that Israel is making any of these distinctions. What are in your view the clearest violations of the laws of war that have happened during Israel’s invasion of Gaza? I think the one that is probably the easiest to document and substantiate is the blocking of access to humanitarian aid and what is now amounting to the crime of starvation. Because Israel, the officials declared in the immediate aftermath of October 7th that they were going to cut off all food, all fuel, all water and have proceeded to oversee a scheme in which they control today all points of entry and egress from Gaza and have precluded humanitarian aid necessary for subsistence of the Gaza population to enter the territory and have also denied humanitarian actors the ability to supply that aid. So blocking humanitarian assistance, including food, medicine, fuel, water treatment, hospitals, that I think is the clearest and most easily established war crime. I think the deliberate targeting in some instances or at least indiscriminate bombardment of areas that have dense concentrations of civilians is difficult in the context of war crimes, as you know, and the violations of international humanitarian law to establish the requisite intent. But examples of indiscriminate killing that are well known includes the killing of Israeli hostages when they were had escaped and were walking clearly unarmed with their hands up carrying white flags and were nonetheless executed. And then the strike on the world central kitchen for car convoy. These are cases where because of the identity of those that were struck, Israel has felt the need to explain its conduct and others have scrutinized the conduct. But I think these are very small examples of a much, much wider pattern. Unfortunately, the deaths of 34,000 plus Gazans has simply not attracted the same level of international focus. But there are statements that have been made on the record by Israeli military authorities and idea of spokespeople together with the empirical record of enormous destruction of all civilian infrastructure in Gaza that make it relatively more straightforward than in other context to establish that the war crime of indiscriminate bombardment of civilian areas has occurred. There are, I think, two major categories here that I want to think about not separately, but for different reasons. So one is the actions that I think it is fair to say are targeted at civilians, or at least indiscriminately, truly indiscrim inately targeted at civilians like the siege. And I mean, that has always seemed to me to be a war crime. And the sort of American defense of it has, I think, been disappointing. The other piece of it, which you brought up around these tunnels, what Israel says is that Hamas is using international law against it. That Hamas uses civilian shields. And I cannot judge whether this is true, but take it as plausible for the moment that Hamas works out of schools and hospitals. And the Israelis have said, well, because of that, it means that, unfortunately, we have had to destroy. I mean, there’s just a time’s report on the huge proportion of Gaza schools that have just been wrecked. And so Israel’s argument is that this is not Israel’s fault . It is Hamas’s fault that it is Hamas that is decided to hide among civilians and to use both civilians and civilian infrastructure as shields, as disguises, as operating bases. And so the consequence of this falls on them. How does international law treat a question like that? When you do have a force that at least to some degree is using civilians and civilian infrastructure as kind of shields collateral damage and operating bases? Obviously in places and in territories where you have a dense civilian population, there is infrastructure that is helping adversaries armed forces sustain itself on which the civilian population is also deeply dependent. Targeting that on the grounds that it’s dual use is not only in violation of the spirit of international humanitarian law and the goal of protecting civilians and minimizing harm to civilians in conflict. But in many cases , it’s also a violation of the rules, which brings us to human shields and that argument. So the definition of using human shields for a matter of international law is the deliberate placement of civilians and proximity to military objectives during a conflict. It’s not the presence of civilians in densely populated areas from which armed groups also operate. Gaza is a tiny territory and inevitably on a territory that small that has 2.3 million people residing, you’re going to have civilians close to places where Hamas operates no matter what. Under those circumstances, the rules require that Israel take precautions that are available to take. So let’s take an example of the hospitals. Let’s say Arguendo that Hamas was using a hospital or was present underneath a hospital, then what would be the measures that Israel is permitted to take in order to address the tactical military advantage of an actual Hamas presence, an armed presence in that moment near or under that hospital. First of all, Israel would have to evacuate the civilians or create an opportunity for the civilians that are in the hospital to be evacuated. It would have to facilitate access to medical supplies and necessary humanitarian assistance for patients to be transferred for patients in need of care. It would also have to ascertain where it believes Hamas is present and narrowly target whatever strike or attack to that particular location. And it’s not simply that you warn a population of an attack. It’s that you provide them a meaningful opportunity to be evacuated from an area. You will offer them safe passage and you enable them to travel to somewhere where they will be safe. Instead, we’ve seen warnings without opportunities to evacuate or where evacuation passageways have themselves been the subject of targeting for attack and where people have been directed to places that themselves have continued to be bombarded. Let’s just look at the laws of war for a moment and see what they’re designed to do. They’re not designed primarily for ex post accountability and, you know, to be used in an international criminal setting. They’re designed for ex ante incorporation in the military manuals and books and rules that govern armed forces, how they’re trained and what they’re told they can or can’t do. Now, I think there’s good reason to think that there has been a dramatic shift in Israel in the internal rules of engagement. We’re probably not going to be able to establish whether that’s true or not in the immediate period because Israel will remain the most powerful actor on the ground and will not subject itself to that kind of third party inquiry, but the rules are failing to constrain Israel first and foremost because Israel has ceased to internalize those rules. The use of such heavy weaponry as 2,000 pound bombs or the shelling with very heavy artillery of civilian areas where civilian populations remain present is quite distinctive in this context because it’s happened so frequently and with such a high level of ordinance that sets it apart from essentially any other conflict to date, at least that the United States has been involved with or implicated in. One thing that has been interesting to me as the Biden administration has been shifting its position somewhat over the past, you know, I’ll call it two or three months is that as much as international law has not been able to constrain Israel on its own, it is the tool the Biden administration increases seems to be using as it looks for a way to reconcile its own positions. It wasn’t there when they didn’t want it to be there, but when they don’t seem to want their position to simply be, Joe Biden has had enough. He thinks they’ve gone too far. It does sort of operate as this other language, this sort of agreed upon language. I’m curious how you think about that sort of role of this, even where international law cannot work as an in-the-moment enforcement mechanism. It is something that can be used at times to create sort of mounting moral pressure or justified decisions that would not otherwise work politically. Yeah, I mean, I think that’s clear. And again, I just want to go back to where we started at the very beginning of our conversation in thinking about how does law work as a general matter. We don’t say in a domestic system that has periodic surges in murder rates that the law of homicide doesn’t exist or doesn’t work or is unenforceable. Even if it’s the case that there are people that escape the capacity of the law to actually hold them individually accountable for one reason or another, the fact that people break the law and sometimes get away with it doesn’t mean the law doesn’t exist and doesn’t have force. The Biden administration came into office in part signaling at home and abroad that it was breaking from the Trump administration, breaking from a period of what it viewed as lawless rule and returning to a rule-based order rehabilitating the US reputation. What we have now entered into is a period of a return of serious multipolarity. That is to say, the United States faces a range of actors, some larger, some smaller, that for a variety of reasons, either in their particular spheres of influence or globally, have emerged as either adversaries or challengers. In this context, of course, each of them is able to make recourse to the precedent set by the United States of failing to constrain when they want to act. They’ll point to Kosovo, they’ll point to Iraq , they’ll point to Libya, and we’re seeing the consequences of those precedents now when they ‘re wielded to legitimate uses of force we disagree with. There is that phenomenon for starters, and that indicates a universe in which all actors, not just the United States, have to either be far more careful about the ways in which they continue to erode the existing international legal infrastructure or in which we are moving in the direction of regional fragmented interpretations of what the international rules are, powerful actors commanding authority within their own era abroad, becoming stronger and over time, the production of precisely the kinds of dynamics that resulted in the world wars of the 20th century. So for much of the war, the US has used its veto at the Security Council to stop any resolutions calling for a ceasefire. Then in March, when another one came along, this one written somewhat differently, the US abstained and allowed it to pass. The Israelis ignored it, and then the US called it non-binding. And there was a State Department briefing where a reporter asked about this. So you don’t believe anything is going to happen as a result of the passage of this resolution. So I think that separate and apart from this resolution, we have active ongoing negotiations to try to achieve what this resolution calls for, which is the an immediate ceasefire and the release of hostages. I don’t know, I can’t say that this impact this resolution is going to have any impact on those negotiations. So I don’t expect you to answer this now, but to me you just stick this in your pocket. If that’s the case, what the hell is the point of the UN or the UN Security Council? That was really a moment, I think, that made the contradictions in our relationship to international law pretty stark. There’s actually a precedent for the United States treating a UN Security Council resolution and turning around and presenting it as non-binding. And strikingly, it was in the South African context. You had a very similar situation during apartheid that we find ourselves in now, in which the UN General Assembly, the overwhelming majority of states in the international system, passed resolution after resolution after resolution with enormous majorities in support of denunciations of the South African regime of apartheid, calls for sanctions, arms and bar goes, all kinds of things. In the General Assembly, while it doesn’t have the power to issue resolutions that have binding law, that are at the force of binding law, it has enormous power to shape agendas. And it did do that, even as the US and the UK, and to some extent France, continued to use their role in the Security Council to shield the South African government. The General Assembly ended up setting the global agenda for how one should understand South Africa. And over time, the Security Council had no choice under enormous pressure to finally agree to some very, very mild measures against South Africa . But the very first such resolution passed by the Security Council involved exactly the same pattern. And then the US delegate turning around and saying, well, this is non-binding and having an enormous debate about how to interpret Security Council resolutions, et cetera. In the end, in the grand scheme of things, it just didn’t matter because the overall momentum in the system was against the South African government. And in the coming years after that, South Africa had come to become such an illegitimate actor globally that the Security Council finally did pass binding resolutions involving arms and margos. And as we know, there was an eventual transition in South Africa to a post-apartheid system. So this non-binding resolution around the ceasefire could also be seen as the first in a series of steps that might occur in this relationship between international public opinion, international law, the General Assembly, international courts, the UN Security Council, that shift our attention away from the longstanding international humanitarian law framework that has dominated and that has forced us to look specifically at the rules for belligerent occupation and the rules of the conduct of hostilities when Israel engages in a variety of kinds of operations against Gaza or against the West Bank to shift our gaze from all of that and instead return our attention to the question of the entirety of the mandate and ask a question about what the future would look like politically and legally under international law for an authority that governs 14 million people where 7 million people, Jewish citizens are fully enfranchised citizens of a democracy and the other population of the territory, the other 7 million people still have unresolved rights and they’re still sitting on the territory as well. And then all is our final question. What are three books you’d recommend to the audience? Yeah, thank you so much for giving me a chance to recommend some great books. The first, I would recommend is Antony Angie’s Imperialism, Sovere ignty, and the Making of International Law, which retails the history of international law as well as the intellectual history of canonical European jurists by centering the colonial encounter as the structuring event that triggered the emergence of international laws. We know it. I would also recommend Nuda Erikaats, Justice for Some, Law and the Question of Palestine, which provides a detailed and highly readable account of how international law first facilitated British colonial rule and then how it’s been used by Israelis and Palestinians to organize on the one hand and resist on the other. I would also recommend Adam get to choose world-making after empire, the rise and fall of self-determination, which returns to the era of decolonization to offer an account of how the principle of self-determination was differently understood by anti- colonial leaders and how that understanding how it prevailed might have yielded alternatives to logics of partition, logics like the logic that underlies the UN’s involvement in Israel-Palestine and ideas of the two-state solution. And then with your indulgence, I’m going to recommend a fourth book, Aziz Rana is the constitutional bind, how Americans came to idolize a document that bails them, which is a wonderful book just published that provides an eye-opening and beautifully rendered account of how we as Americans came to be bound to a constitution that makes it so difficult to hold our own government accountable or to translate public preferences into changes in our policies, a question that I believe has renewed urgency at a time when polls show that consistent majorities in the United States support a permanent ceasefire in Gaza. Osabali, thank you very much. This episode of the Ezra Cl ancheau is produced by Annie Galvin, fact-checking by Michelle Harris, our senior engineers, Jeff Geld, with additional mixing by Almond Sahota and Isaac Jones. Our senior editor is Claire Gordon. The show’s production team includes Annie Galvin, Roland Hu, Elias Iswith, and Kristen Lin. We ‘ve original music by Isaac Jones, audience strategy by Christina Samuluski and Shannon Busta. The executive producer of New York Times opinion audio is Annie Rose Strasser, and special thanks to Carol Saburo. [BLANK_AUDIO]