Kinstler Says US Must Fund War Victims as Global Legal Order Fails

Kinstler称全球法律秩序失灵，美国须资助战争受害者 在经历数十年制度性破坏及在加沙问题上的同谋之后，空谈遵守国际法已无法恢复美国信誉，向受害者提供实质性赔偿成为追究责任的唯一现实途径。 Klein与Kinstler审视了美国政治左翼关于美国应当直接遵守国际法的主张，质疑一个充斥着选择性执法和制度缺陷的体系是否真能约束大国。他们分析了加沙的毁灭与乌克兰战争如何打破冷战后由美国主导的善意秩序幻象，暴露了美国两党长期以来对International Criminal Court等机构的敌意。该讨论超越了重回规则的空洞怀旧呼吁，探讨了法律程序主义的局限、起诉种族灭绝罪行的困难，以及缺乏持久政治解决方案的战争的兴起。Kinstler最终认为，与其指望国际法庭充当道德救世主，外交政策更应采纳一项简约的反侵略协定，并转向直接援助受害者的切实补救性正义。 美国政治左翼呼吁美国直接遵守国际法，但这一诉求面临着数十年来美国两党均不遵守国际法的现实，使得华盛顿重新成为值得信赖的“同侪之首”的设想基本不可行。 (10:02) 美国对International Criminal Court的态度仍以选择性参与为特征：一方面对针对Vladimir Putin等对手的逮捕令表示欢迎，另一方面在Benjamin Netanyahu等盟友成为指控目标时，则以制裁、切断软件服务以及依据《海牙入侵法》（Hague Invasion Act）进行法定军事干预相威胁。 (24:53) 为防止国际法在难以兑现的承诺重压下崩溃，法学学者Samuel Moyn和Oona Hathaway主张用严格以相互主权和反侵略禁令为核心的“简约”秩序，取代扩张性的自由主义干预主义。 (31:30) 未来的美国政府无需寻求在政治上不可行的条约批准，而是可以通过ICC的受害者信托基金（Trust Fund for Victims）和乌克兰损害登记册（Register of Damage for Ukraine）等机构优先提供实质性赔偿，以此挽回国际信誉。 (52:08)

Ezra Klein and legal scholar Linda Kinstler examine whether international law can anchor a more moral American foreign policy, concluding that treating legal frameworks as an autonomous panacea ignores decades of bipartisan American exceptionalism and the structural limitations of international tribunals. Institutional Limits and the Grammar of Law (4:12) International law operates on two distinct levels: as an institutional edifice comprising courts and treaties that govern daily transnational activities like aviation and maritime borders, and as a secular, shared "grammar" designed to adjudicate human conflict. Public debate, however, often reduces the field entirely to international criminal law, as illustrated by New York politician Zohran Mamdani's call to enforce the International Criminal Court (ICC) arrest warrant against Israeli Prime Minister Benjamin Netanyahu. While Kinstler acknowledges that Mamdani's invocation of the court carries moral force by articulating war crimes, she emphasizes that it also exposes the systemic weakness of international law. The United States is not a state party to the Rome Statute, and American domestic officials lack the legal authority or institutional apparatus to execute such arrests. When symbolic appeals to universal law clash with geopolitical realities, Kinstler warns, public disillusionment with the credibility of the entire international order only deepens. Bipartisan Exceptionalism and Selective Enforcement (21:59) Postwar American foreign policy long operated under the assumption of an "enlightened hegemon" whose military and diplomatic supremacy underwrote global legal rules. In practice, Washington has consistently maintained an exceptionalist posture. The George W. Bush administration unsigned the Rome Statute, and Congress enacted the 2002 American Service-Members' Protection Act—popularly dubbed the "Hague Invasion Act"—authorizing military force to liberate American or allied personnel held by the ICC. More recently, Secretary of State Marco Rubio advocated dismantling the court, and the U.S. government imposed financial sanctions directly on ICC judges and prosecutors. This legal exceptionalism results in stark geopolitical opportunism. As Klein and Kinstler observe, political leaders routinely embrace international accountability for adversaries while shielding allies: Senator Lindsey Graham championed ICC arrest warrants against Russian President Vladimir Putin while threatening retaliation over warrants for Benjamin Netanyahu and Yoav Gallant. Drawing on international relations scholar Patrick Porter, Kinstler characterizes this doctrine as Machtpolitik—a degraded realism where a superpower sheds normative constraints, forgetting the classic lesson of Thucydides that unconstrained power inevitably marches toward self-destruction. The Gaza Rupture and Limits of Legalism (5:59) The war in Gaza has triggered an ideological crisis inside the Democratic Party, exposing a fracture between party leadership and progressive critics. While Joe Biden campaigned on restoring the "rules-based international order," his administration's diplomatic shielding and continuous weapons transfers to Israel led officials to quietly abandon the phrase and avoid terms like "war crimes." Klein notes that while Americans felt no direct complicity in Russia's invasion of Ukraine, U.S. material and diplomatic backing in Gaza forces an unresolved moral identity crisis over the nation's international role. This rupture highlights the profound limitations of legalistic institutions. Klein and Kinstler note that international tribunals act as ex post procedural accounting mechanisms rather than preventive shields. International Court of Justice (ICJ) thresholds for genocide require specific proof of intent to destroy a group, meaning states can justify catastrophic civilian harm under the legal umbrella of targeting combatants. Consequently, legal proceedings fail to satisfy the public's yearning for immediate political restraint and moral clarity, as court rulings arrive years after the fact and cannot undo physical devastation. Parsimonious Restraint and the Reparative Turn (31:30) As rival powers like China step into multilateral vacuums to advance self-serving definitions of sovereignty, legal scholars Samuel Moyn and Oona Hathaway propose replacing overextended liberal interventionism with a "parsimonious" international order. Rather than relying on expansive, underenforced humanitarian courts, this model refocuses international law on a strict, core anti-war taboo against territorial aggression and state conquest. To restore American credibility without relying on empty declarations about returning to the rules, Kinstler advocates for a shift toward "reparative politics." Instead of awaiting improbable treaty ratifications like joining the ICC, an administration could direct material resources to victims. Tangible steps include financing the ICC's Trust Fund for Victims, which operates in parallel to criminal prosecutions, and funding the Register of Damage for Ukraine to convert logged losses into direct reparations. By prioritizing material relief over purely punitive trials, legal institutions can deliver practical justice when political avenues are gridlocked. The dialogue leaves open whether American policymakers can transcend short-term conflict management—such as temporary ceasefires that sidestep enduring political sovereignty—and recover the moral daringness necessary to reconstruct a viable, restraining legal framework in an increasingly fragmented, multipolar world.

面对美国外交政策的动荡与加沙等冲突引发的道义危机，Ezra Klein与学者Linda Kinstler指出，单纯呼吁“遵守国际法”无法成为重建外交信誉的灵丹妙药。国际法长期受困于大国的选择性适用与执行力短缺；美国若要重构合法性，必须告别“开明霸权”的技术官僚幻想，在制度自律、核心反侵略禁忌与赔偿性正义中确立新的政治担当。 选择性正义与“开明霸权”幻觉的破灭 (5:59) 拜登政府虽曾宣称重返“基于规则的国际秩序”，但在加沙战争爆发后，白宫与国务院几乎停止使用这一口号，且对“战争罪”等法律定性讳莫如深。Kinstler指出，二战后寄望于由一个“自我开明的霸权国”以绝对实力托底国际法的模式早已瓦解。美国不仅从未签署《罗马规约》，而且长期存在跨党派瓦解国际刑事法院（ICC）的敌意：从小布什政府撤回签署、博尔顿公开宣称任由法院自生自灭，到2002年通过授权总统采取武力营救被拘人员的《海牙入侵法》，再到特朗普政府与卢比奥对ICC法官实施切断金融与软件系统的制裁。这种对抗在面对以色列官员逮捕令时尤为剧烈。与此同时，当ICC对普京发出逮捕令时，参议员Lindsey Graham等人却转而积极呼吁参议院支持。Klein与Kinstler强调，这种依地缘利益随意取舍的态度，加上美国直接向以色列输送武器和外交掩护所带来的国民共谋感，彻底动摇了美国以国际法领导者的身份行事的资格。 强权政治对决“被缚的奥德修斯” (12:33) Klein指出，当前美国外交辩论呈现深度两极化：一方是特朗普圈子推崇的“强权政治”（Machtpolitik），将权力视为不应受任何条约束缚的特权，并错误地将修昔底德在《密罗斯对话》中关于强权的警示当作现实主义教条；另一方则是进步派主张的彻底守法论，引用学者Robert Wright的观点，将国际法比作将“奥德修斯捆绑在桅杆上”的自我约束机制，认为若非历届政府漠视联合国授权与国会战争权力，美国本可避免深陷伊拉克等战争浩劫。然而Kinstler强调，单纯倡导自律并不能解决历史遗留的制度矛盾。在1990年代卢旺达与波斯尼亚危机中，正是安理会的程序僵局导致救援瘫痪，迫使北约在1999年绕过安理会轰炸塞尔维亚，开创了法外人道干预的先例。盲目退出多边机制并不能让美国免于掣肘，反而让中国等竞争对手借机重塑国家主权话语；但若将守法视为推卸现实决断的避难所，同样无法化解复杂的国际危机。 法律主义的局限与事后追责的悲剧底色 (17:58) Klein与Kinstler进一步剖析了将道德诉求过度“司法化”的内在局限。Kinstler援引政治理论家Judith Shklar对“法律主义”的批判指出，过度的程序崇拜往往掩盖了国际法最初的道德内核。司法审判本质上具有悲剧性：法庭裁决总是滞后数年，既不能及时制止正在发生的暴行，也无法挽回已经造成的毁灭。更重要的是，国际法框架本身包含了大量免责空间。例如在国际法院（ICJ），认定“种族灭绝”需要证明极度严苛的特定意图；只要交战方声称以消灭哈马斯等合法军事目标为目的，附带的毁灭性伤亡就难以在狭隘的法条上被定罪，而这种技术性脱责往往与公众的基本道德直觉背道而驰。Klein指出，公众在加沙问题上对国际法庭的狂热关注，本质上源于对真正政治领导力的极度渴求；指望国际法庭扮演救世主，不仅超越了法官自身的职责，也无法填补政治意愿缺失所造成的真空。 务实重构：精简主权秩序与赔偿性正义 (31:30) 面对自由国际主义过载引发的公信力危机，讨论提出了两条重构路径。其一是法学家Samuel Moyn与Oona Hathaway倡导的“精简秩序”：剥离过于膨胀的人权法庭与人道干预幻想，将国际法浓缩为一项明确的互不侵犯反战公约，全力守住禁止侵略这一最核心的底线。其二是Kinstler力推的“赔偿性正义”转向。当前外交体系日益陷入以临时停火代替持久和平条约的官僚管理主义，刑事法庭也容易因管辖权争端陷入僵局；但国际刑事法院旗下的“受害者信托基金”具备在漫长审判前直接发放援助的功能，针对乌克兰建立的“损失登记册”也为战后补偿提供了实体框架。Kinstler指出，如果未来的美国政府试图重建全球公信力，与其空谈不切实际的条约批约，不如直接以国家财力注资这些受害者基金与损失核算机制，用切实的物质赔偿弥补制度承诺的亏欠。 该对话揭示出，国际秩序的深层危机不仅在于大国公然践踏规则，更在于现行体系长期以僵化的法律程序替代实质性的道德勇气。若想走出兼具强权任性与虚伪承诺的死胡同，未来的外交构想必须在直面大国自身局限的前提下，从空洞的法律主义辞令转向切实的自我约束与可执行的赔偿政治。

## Background 该内容由《纽约时报》旗下的《埃兹拉·克莱因秀》（The Ezra Klein Show）于2026年8月14日发布在YouTube平台上。节目简介指出，在经历拜登政府的外交挫败与特朗普对既有国际准则的破坏后，美国外交政策正处于关键十字路口，主持人克莱因邀请哈佛大学学者琳达·金斯特勒（Linda Kinstler）共同探讨国际法能否为后特朗普时代的美国提供一套更加道德与公正的行动框架。 ## TL;DR 本期节目深入剖析了美国外交政策面临的道义困境，以及进步派寄望于“重返国际法”这一设想的深层局限。克莱因与金斯特勒指出，拜登政府标榜的“基于规则的国际秩序”在加沙与乌克兰危机中因明显的双重标准而信誉扫地，而美国政客对待国际刑事法院（ICC）的选择性态度更暴露了强权政治的本质。对话进一步揭示，冰冷的法律程序主义不仅无法替代公众所渴望的道德与政治领导力，甚至常沦为暴行的脱罪借口。金斯特勒最后主张，国际法若想重获生机，必须走出空洞的合规说教，转向以受害者信托基金等形式为苦难者提供物质补偿的“修复性”正义。 ## Atmosphere & style 整场对谈洋溢着智识密集、清醒克制且充满历史悲剧感的反思氛围。克莱因与金斯特勒在法哲学思辨与现实主义政治剖析之间深入穿梭，没有陷入流于表面的党派攻讦，而是直切超级大国道德合法性崩塌的本质痛处。对话在剥离了自由主义秩序的浪漫幻象后，展现出一种既直面废墟、又试图在废墟上寻找务实修复可能的审慎温度。 ## Bulletin - [10:02](https://www.youtube.com/watch?v=QlPd1RovWl4&t=602s) 美国左翼提出的“重返国际法”外交愿景遭遇现实主义挑战，金斯特勒指出美国长期自我豁免与践踏规则的历史已使其道德领导信誉彻底破产，单靠机械地“遵守旧规则”绝无法挽救当前秩序危机。 - [21:59](https://www.youtube.com/watch?v=QlPd1RovWl4&t=1319s) 华盛顿在国际法适用上呈现出高度精神分裂的双重标准：一方面盛赞国际刑事法院对普京签发逮捕令，另一方面却对调查美军或以色列涉嫌罪行的法官施加严厉单边金融与技术制裁，并保留《海牙入侵法》等强权军事威胁。 - [40:18](https://www.youtube.com/watch?v=QlPd1RovWl4&t=2418s) 现代国际法面临被繁琐程序主义与官僚术语绑架的困境，“合法军事目标”等豁免条款为暴行提供了免责空间，公众迫切渴望的是展现道德底线的政治领导力，而非漫长滞后且脱离现实的法庭裁决。 - [52:08](https://www.youtube.com/watch?v=QlPd1RovWl4&t=3128s) 后特朗普时代重建国际信誉的现实突破口不在于加入《罗马规约》，而在于激活国际法的“修复性”潜能，通过向国际刑事法院受害者信托基金注资或兑现乌克兰战争损害登记册，赋予国际法切实的物质实效性。 ## Key takeaways - [01:06](https://www.youtube.com/watch?v=QlPd1RovWl4&t=66s) 国际刑事法院逮捕令的道义呼吁与现实执行之间存在巨大断层：呼吁在纽约逮捕内塔尼亚胡在修辞上极具道义威慑力，但由于美国非缔约国身份及政界的高层抵触，该诉求在司法上绝无兑现可能。 - [05:59](https://www.youtube.com/watch?v=QlPd1RovWl4&t=359s) 拜登政府所宣称的“基于规则的国际秩序”在乌克兰与加沙危机中彻底丧失公信力，源源不断输送军火并在联合国包庇盟友免受司法追责，促使官方语境逐渐淡化规则叙事与战争罪定性。 - [08:02](https://www.youtube.com/watch?v=QlPd1RovWl4&t=482s) 加沙冲突成为美国外交政策最具毁灭性的道德试金石，与援助乌克兰抵抗外侮不同，美国在加沙人道灾难中的深度卷入让公众承受着强烈的“道德共谋感”，直接叩问国家的外交身份认同。 - [12:33](https://www.youtube.com/watch?v=QlPd1RovWl4&t=753s) 国际法对超级大国的核心价值在于如同“奥德修斯绑在桅杆上”般的自我约束机制，美国近二十年来经历的重大外交溃败几乎完全源于霸权膨胀与缺乏外部制衡。 - [14:49](https://www.youtube.com/watch?v=QlPd1RovWl4&t=889s) 1999年北约绕过安理会空袭科索沃打破了“国际法学者如天神下凡拯救世界”的神话，暴露出国际法在预防暴行与沦为主权国家法外行动执照之间的内在认知分裂。 - [17:58](https://www.youtube.com/watch?v=QlPd1RovWl4&t=1078s) 国际法繁琐的官僚规则为现实暴行创造了抗辩空间，极为严苛的“主观意图认定标准”与“合法军事目标”豁免说辞，反向被加害方滥用以洗脱种族灭绝指控。 - [20:16](https://www.youtube.com/watch?v=QlPd1RovWl4&t=1216s) 奥巴马在诺贝尔和平奖演说中暴露了美国建制派的内在撕裂：既标榜继承非暴力抗争道德遗产，又坚信唯有凭借帝国的强制武力铁拳才能维持残酷现实中的和平秩序。 - [24:53](https://www.youtube.com/watch?v=QlPd1RovWl4&t=1493s) 特朗普政府及新保守主义阵营对国际刑事法院展开露骨拆解，不仅将正式法官视同制裁对象切断其金融与软件服务，还借助《海牙入侵法》授权军事营救被拘人员。 - [26:59](https://www.youtube.com/watch?v=QlPd1RovWl4&t=1619s) 两党政客对待国际法采取高度功利化的“强权政治”（Machtpolitik）态度，当规则指向对手时被盛赞为正义利刃，当波及自身或核心盟友时则被斥为必须铲除的威胁。 - [30:18](https://www.youtube.com/watch?v=QlPd1RovWl4&t=1818s) 中国正在积极填补规则真空并重塑国际法话语，极力强化“主权不容侵犯”原则以拓展在发展中国家的引领地位，但其对主权的采纳同样呈现出高度选择性与工具性。 - [31:30](https://www.youtube.com/watch?v=QlPd1RovWl4&t=1890s) 莫恩与哈撒韦构想的“后美国世界秩序”主张退守至最基础的“反跨国侵略”协定，剥离过度膨胀的干预诉求，以门槛更低的底线共识替代繁复空洞的自由主义干预体系。 - [33:45](https://www.youtube.com/watch?v=QlPd1RovWl4&t=2025s) 战后“通过法律实现和平”的法律主义陷入《俄瑞斯忒亚》式的永恒悲剧难题，人类试图用脆弱世俗的司法程序终结复仇，却难以衡量与审判超越理解极限的巨大道德罪行。 - [37:02](https://www.youtube.com/watch?v=QlPd1RovWl4&t=2222s) 加沙冲突中的种族灭绝国际诉讼争夺的核心已不仅是战场停火，更在于争夺对国家行为性质与未来历史记忆的永久定义权。 - [40:18](https://www.youtube.com/watch?v=QlPd1RovWl4&t=2418s) 公众寄希望于法庭裁决化解冲突是陷入了狭隘的法律主义误区，人们内心真正渴求的是敢于设定道德底线的政治领导力，而非漫长滞后且缺乏执行力的法律条文。 - [46:17](https://www.youtube.com/watch?v=QlPd1RovWl4&t=2777s) 国际社会日益依赖权宜脆弱的“停火”口号取代具有终局约束力的持久和约，这在客观上冷冻了核心政治矛盾，成为各方规避艰难政治抉择的借口。 - [48:24](https://www.youtube.com/watch?v=QlPd1RovWl4&t=2904s) 国际法体系逐渐丢失了最初的道德想象力，被冷漠的官僚管理主义所取代；民主党若想重构对外战略，不能仅停留在“重回规则”的程序口号，必须确立积极的价值指引。 - [50:57](https://www.youtube.com/watch?v=QlPd1RovWl4&t=3057s) 审视国际法的功用应从传统的“惩罚性司法”转向“修复性司法”，依托受害者信托基金等机制在审判推进的同时向受难者提供直接的经济补偿与物质生活救济。 - [52:08](https://www.youtube.com/watch?v=QlPd1RovWl4&t=3128s) 后特朗普时代美国展现国际承诺的可行抓手，在于跳出加入条约的空想，转而为乌克兰战争损害登记册及受害者基金提供真金白银的赔付兑现，使国际法获得实质落地效力。 ## Detailed walkthrough ### [00:00](https://www.youtube.com/watch?v=QlPd1RovWl4&t=0s) 国际法的幻象与美国外交政策的道德困境 在唐纳德·特朗普（Donald Trump）对既有国际准则与规则带来颠覆性冲击之后，一个关键问题摆在眼前：重建一个更具道德感、更公正的美国外交政策，其基石究竟在何处？不少人——特别是左翼政治群体——给出了一个看似极为简明的方案：重返国际法（international law）。许多人认为，即便国际法目前处于年久失修的破败境地，但若美国能够严格遵守当年自己亲手协助写下的规则，世界或许就能迎来转机。然而，国际法在历史上既曾扮演过极其脆弱无力的角色，也曾激发出崇高的道义光芒，它能否真正承担起重塑国际秩序的重压？ 哈佛大学青年学者学会（Society of Fellows at Harvard）学者、《纽约时报杂志》撰稿人、著作《来到法庭哭泣：大屠杀如何终结》（*Come to This Court and Cry: How the Holocaust Ends*）的作者琳达·金斯特勒（Linda Kinstler）受邀对此进行深入探讨。她长期追踪并报道国际法究竟是走向死亡还是正在经历重生的议题，审视拜登政府在自身设立的原则面前所经历的挫败，以及面对强权政治与现实冲突时，国际法制度深层次的结构性矛盾。 ### [01:06](https://www.youtube.com/watch?v=QlPd1RovWl4&t=66s) 佐兰·马姆达尼的呼吁与国际刑事法院的现实鸿沟 对话从佐兰·马姆达尼（Zohran Mamdani）发布的一则呼吁逮捕以色列总理本雅明·内塔尼亚胡（Benjamin Netanyahu）的争议性视频切入。马姆达尼在视频中强调，国际刑事法院（ICC）对其签发逮捕令并非偶然，几代人共同确立的底线表明，某些严重罪行侵害了全人类的良知。尽管地方层面缺乏独立管辖权来执行此令，但他公开呼吁联邦政府加入国际刑事法院并协助执行该逮捕令，直言纽约市绝不欢迎内塔尼亚胡或其他在逃战犯。金斯特勒指出，这一举动在修辞上极具道义力量，尤其是在全球诸多地方——特别是美国本土——不断淡化甚至否认加沙罪行的背景下，公开精准指认这些罪行具有不可低估的道义威慑力。 然而，这也折射出国际法现实中的“双刃剑”效应与荒谬性：一方面，它向公众普及了国际刑事法院的存在及逮捕令的有效性，强调国际法绝非脱离政治的空中楼阁，需要政治人物主动运用；但另一方面，美国根本不是《国际刑事法院罗马规约》的缔约国，美国政界高层甚至曾公开抨击该法院，直斥其以“所谓的国际法”侵犯主权国家。这种让公众遐想“内塔尼亚胡在纽约街头被戴上手铐”的政治修辞，与现实中“绝无可能落实”的冷酷现状之间，存在着触目惊心的割裂感。这种期望与现实的严重脱节，反而在一定程度上削弱了公众对国际法持久效力的信任。 ```mermaid flowchart TD accTitle: 国际法的道义号召与现实执行脱节流程 accDescr: 展示政治人物援引国际刑事法院逮捕令时面临的道义宣示与实际执行障碍之间的断层。 subgraph MoralClaims["道义与政治宣示"] A["国际刑事法院 (ICC)<br/>签发逮捕令"] --> B["政治人物公开发声<br/>（如呼吁逮捕内塔尼亚胡）"] B --> C["揭示并定性战时罪行<br/>展现道德威慑力量"] end subgraph RealistBarrier["现实主义与主权壁垒"] D["美国非缔约国身份<br/>（未签署罗马规约）"] E["高层政治抵触<br/>（视法院管辖为侵权）"] F["执法实体缺位<br/>（地方与联邦均不执行）"] end MoralClaims -.->|遭遇现实鸿沟| RealistBarrier RealistBarrier --> G["司法不可执行性<br/>象征性口号 vs. 零现实惩戒"] ``` ### [04:12](https://www.youtube.com/watch?v=QlPd1RovWl4&t=252s) 究竟何为“国际法”：从实定条约到世俗信仰 当大众谈论“国际法”时，绝大多数人的认知往往狭隘地局限在国际刑法（international criminal law）层面——即关注国际法庭能否对内塔尼亚胡或弗拉基米尔·普京（Vladimir Putin）签发逮捕令。但实质上，国际法涵盖了庞杂的技术性规则网络，上至跨洋民用航空规制、海商法，下至跨国金融交易与电信协定。从制度构架来看，它是由联合国（UN）、国际法院（ICJ）、国际刑事法院（ICC）以及盘根错节的多边条约和公约共同筑起的庞大制度大厦。 从更深层的法哲学维度观察，国际法则像是一种专门的“语法”与表述语言。它的诞生伴随着一种浪漫主义设想：当“君权神授”的传统秩序瓦解、人类试图在一个没有上帝神谕的世界中建立秩序时，国际法便作为填补道德真空的理性工具应运而生，试图化解不可避免的人类冲突。然而，正因人们寄予了这种近乎超然的道德期许，每当国际法在现实世界的强权冲突中屡屡失灵、退避三舍时，人们便不可避免地陷入剧烈的信仰崩塌与虚无感中。 ### [05:59](https://www.youtube.com/watch?v=QlPd1RovWl4&t=359s) 拜登政府的“基于规则的国际秩序”及其溃败 在民主党内部，外交政策正经历着一场前所未有的撕裂与破裂。乔·拜登（Joe Biden）在2021年入主白宫之初，曾信誓旦旦地向全球宣告“美国回来了”（America is back），跨大西洋联盟重新稳固，誓言要全力恢复“基于规则的国际秩序”（rules-based international order）。拜登对多边建制与传统国际同盟的执着信仰，在当代历任美国总统中极为罕见。 然而，乌克兰危机与加沙战事的相继爆发，彻底击碎了这一叙事的公信力。美国左翼群体发出了极其尖锐的质问：如果所谓的“基于规则的秩序”，最终导向的是在联合国为以色列的行动提供外交庇护、源源不断地输送致命武器弹药、极力保护盟友免受国际司法追责，那么这一套规则究竟代表了谁的利益？金斯特勒指出，伴随危机的加剧，拜登政府内部在措辞上也出现了微妙的退却： - “基于规则的国际秩序”这一宏大概念被提及的频率断崖式下跌； - 官方对在冲突中直接定性“战争罪”（war crimes）表现出极度犹疑与回避； - 冷战后由美国绝对霸权支撑、以自由主义和平为假象的短暂蜜月期（包括当年推动建立国际刑事法院的乐观情绪）彻底成为过眼云烟，如今的世界不过是生活在这套残存幻梦的废墟之上。 ### [08:02](https://www.youtube.com/watch?v=QlPd1RovWl4&t=482s) 加沙焦点背后的同盟合谋与双重标准 面对围绕加沙战事的激烈声讨，以色列的支持者以及部分犹太群体内部也弥漫着强烈的不解与委屈：全球各地战火不断，为何只有以色列和加沙被推到了国际道德与法律审判的绝对暴风眼？无论是在苏丹发生的血腥冲突、叙利亚旷日持久的内战，还是俄罗斯对乌克兰发动的全面进攻，都未能激起西方舆论场同等烈度的内部政治震荡。金斯特勒曾撰文探讨战后加沙的惨烈图景在历史记忆中可能会被赋予如同“大屠杀”一般的转折点地位，这更让部分人质疑是否存在针对以色列的单方面严苛审视。 金斯特勒回应指出，最根本的差异在于：以色列是美国最为亲密的盟友，加沙的惨剧美国无论在武器提供还是外交阻拦上都深度卷入其中；相比之下，俄罗斯则是美国的明确敌手。但类似面对国际司法的双重标准同样存在于对待普京的案例中——普京同样身负国际刑事法院的逮捕令，但当他有意踏足友好国家时，许多标榜捍卫法治的国家同样极力回避执行逮捕。正如一位法学学者所言：“口头捍卫国际法价值是一回事，但这绝不意味着你真得邀请普京来巴黎购物。”这种价值宣示与地缘现实利益之间的公开虚伪与两面派操作，使得加沙危机成为了美国外交政策体系最具毁灭性的道德试金石。 ### [10:02](https://www.youtube.com/watch?v=QlPd1RovWl4&t=602s) “重归规则”的诱惑与美国信誉的破产 在经历拜登政府被外界（以及埃兹拉·克莱因本人）视为失败的外交政策，以及特朗普时代赤裸裸的腐败、侵略和单边主义（例如“如果我们想要马杜罗，派人去抓就是了”）之后，美国政坛尤其是民主党内部陷入了剧烈的动荡与迷茫。许多人开始探索一种看似极其简洁的替代路径：美国能否重新回归“遵守规则”？克莱因援引了民主党州长候选人阿卜杜勒·埃尔-萨耶德（Abdul El-Sayed）在接受报社编委会采访时的言论。当被问及如何决策军事援助和介入外部冲突时，埃尔-萨耶德回答：“国际法。我认为我们应当成为执行国际法的‘同侪之首’（first among equals）。在人类历史上最惨烈的人类世界大战之后，我们付出巨大努力建立了所有这些制度和框架，但随后我们自己却成了这些框架的最大破坏者。”左翼阵营正日益流行这样一种论调：现成的结构就在那里，我们只需要重新信仰它、遵守它。 克莱因向长期追踪国际法效能争论的琳达·金斯特勒（Linda Kinstler）发问：国际法本身真的具备这种力量吗？它足以解决当下这重重危机吗？金斯特勒给出了极为冷静的否定回答：“单靠它本身绝无可能。”她指出，“同侪之首”这个词恰恰暴露了问题的症结所在——美国重塑道德领导地位的“这艘船早就已经开走了”。美国对国际法院和国际机构参与度的破坏极其深重，全世界如今都心知肚明，美国绝不可能被信赖去履行任何可能对其产生约束的承诺。更何况，“以国际法为政策准绳”是一句含义模糊的修辞：正如历史所揭示的那样，国际法本身也可以被用来赋予犯罪合法性。认为美国还能重新在全球舞台上振臂一呼、强化法治体系，在当前的政治现实下未免过于脱离实际；国际法体系确实亟待重构，但这绝非简单地“重返旧秩序”所能解决。 ```mermaid flowchart TD accTitle: The Divergent Views on Reviving International Law accDescr: A comparison between the optimistic view of returning to international law and Linda Kinstler's critique of systemic erosion and US credibility loss. subgraph OptimisticView["理想路径：左翼的规则重置论"] A["战后历史遗产<br/>(美国牵头设立多边框架)"] --> B["严守国际法准则<br/>(自我约束与重拾信誉)"] B --> C["美国扮演'同侪之首'<br/>(重振全球法治秩序)"] end subgraph RealisticCritique["现实困境：金斯特勒的冷峻研判"] D["霸权破坏前科<br/>(违背承诺与绕过机构)"] --> E["全球信任破产<br/>(世界已不再信赖美国)"] E --> F["制度性漏洞<br/>(法律反被用作免责掩护)"] end ``` --- ### [12:33](https://www.youtube.com/watch?v=QlPd1RovWl4&t=753s) 绑在桅杆上的奥德修斯：国际法作为超级大国的自我约束 为了进一步探讨规则的价值，克莱因提出了罗伯特·赖特（Robert Wright）等学者常持的一种论辩立场：回顾过去二十余年的历史，如果美国仅仅是按部就班地遵守规则，局势是否会比现在好得多？比如，在未获得联合国安理会授权时，就坚决不出兵伊拉克；同样，没有国际授权就不对伊朗妄动干戈，即便是特朗普政府，若能接受这种程序限制也会明智得多。克莱因借用《奥德赛》中奥德修斯将自己绑在船桅上的典故指出，国际法对超级大国最核心的价值恰恰在于“自我捆绑”。超级大国往往自以为无所不能、应当为所欲为，而正是这种膨胀酿成了最灾难性的错误。国际法、多边程序甚至国会的立法审查，本质上都是一种外在的约束机制；美国近年来的灾难性溃败，几乎无一例外源于“缺乏约束”，而非“约束过度”。 金斯特勒认同程序约束机制的重要性，尤其肯定了美国国会立法权作为制衡力量的必要价值，但也补充了审慎的视角。她驳斥了那种认为国际法只让世界变得更糟的彻底虚无主义论调： * 国际法的存在绝非毫无意义，即便在无法即刻执行或屡遭践踏的情况下，人类依然能够援引这些准则去正式定性“种族灭绝”（genocide），去在侵权发生时主张人权诉求。 * 仅仅寄希望于“重返过去的美好时代”是不切实际的幻觉，昔日的世界体系早已支离破碎，必须直面规则被严重削弱的崭新政治现实。 --- ### [14:49](https://www.youtube.com/watch?v=QlPd1RovWl4&t=889s) 90年代的人道主义危机：科索沃与“英雄式救赎”的幻象 克莱因回顾了自身经历的外交周期。2005年他初到华盛顿，正是“9·11”之后的反恐战争时代，而往前推及1990年代，世界正处于被普遍视为“最尊崇国际法”的巅峰期。然而在那个时期，人道主义阵营对国际秩序的最大批判恰恰是“规则本身失灵了”——面对卢旺达和前南斯拉夫的大屠杀，联合国体系由于繁文缛节与安理会否决权的扯皮而步履维艰、反应迟钝。克莱因提到乔治·帕克（George Packer）为外交家里查德·霍尔布鲁克（Richard Holbrooke）撰写的传记《我们的人》（*Our Man*），全书正是生动展现了霍尔布鲁克如何竭力绕开官僚规则以阻止屠杀。曾几何时，人道主义者愤怒于规则捆住了阻止惨案的手脚，而今他们却反过来在国际法框架中寻找庇护。 金斯特勒剖析了这一历史断层，指出国际法阵营内部正是在这一时期发生了深刻分裂： * **两种对立的认知**：一方将国际法视为预防与惩罚最恶劣暴行的利器；另一方则察觉到，国际法正在为国家提供合法侵害的执照，将其残酷行径巧妙编织进“合法性”的技术范畴。 * **1999年科索沃危机**：北约越过联合国安理会直接对前南斯拉夫的塞尔维亚军事目标展开空袭，这是北约建军50年来首次对主权国家发动进攻性军事打击。时任联合国秘书长科菲·安南（Kofi Annan）虽然承认武力行动的实质正当性，但严肃质疑了北约绕过安理会的行径，强调安理会才是维护国际和平与安全的首要责任机构。 * **“英雄式拯救”的神话破灭**：国际法院法官希拉里·查尔斯沃思（Hilary Charlesworth）将科索沃危机视作一个塑造法学界认知的关键节点。当时，无数年轻人被“国际法学者如天神下凡拯救世界”的崇高使命感吸引入行；然而事后证明，该行动实质上完全是一场法外操作（extra-legal operation）。国际法在此类危机应对中，不可避免地反复陷入“直面自我废墟”的周期性崩解。 --- ### [17:58](https://www.youtube.com/watch?v=QlPd1RovWl4&t=1078s) 法律官僚制下的漏洞与奥巴马的诺贝尔和平奖悖论 针对国际法条文如何反向为暴行创造抗辩空间的问题，金斯特勒给出了极为具体的剖析。最典型的范例便是国际法中对“种族灭绝”极为严苛的**主观意图认定标准**（standard of intent）： * **意图抗辩与免责**：只要加害方声称其军事行动的真实意图是清剿哈马斯（Hamas）等战斗力量，即便实际造成的破坏与屠杀在公众眼中已具有灭绝性，在法律技术层面，国际法院也难以将其直接裁定为种族灭绝。 * **“合法军事目标”的说辞**：冲突各方普遍利用“合法军事目标”（legitimate military target）的技术性豁免条款掩盖攻击行径，这一漏洞正在全球冲突中被肆无忌惮地钻营。在普通公众听来，那些冰冷冗长的法律官僚术语对残酷现实的脱罪解释，无异于一种道德上的公然背弃。 克莱因顺此谈及巴拉克·奥巴马（Barack Obama）在刚上任即不可思议地获颁诺贝尔和平奖时发表的那场著名演讲。在制作人杰克·麦考迪克（Jack McCordick）建议重读该文本后，克莱因感叹这篇演讲在回溯时展现出惊人的两面下注： 奥巴马一方面自命为甘地与马丁·路德·金非暴力抗争精神的直接继承人，动情地宣称：“我本人就是非暴力道德力量的活生生见证。我知道，在甘地与金的信条和生命中，绝无脆弱，绝无被动，也绝无天真。”但另一方面，他又冷酷地现实指出，没有美国维系和平的强制武力，就绝无和平可言；终结第二次世界大战的是赤裸裸的武力，而非一纸条约。“作为宣誓保卫国家的国家元首，我不能仅仅以他们的榜样为指引。”这种在崇高道德律令与帝国暴力铁拳之间的撕裂，恰恰成了美国面对国际法规则时最真实、最无法化解的内在矛盾。 ### [20:16](https://www.youtube.com/watch?v=QlPd1RovWl4&t=1216s) 奥巴马的诺贝尔演讲与“不可或缺的超级大国”困境 一段奥巴马当年领取诺贝尔和平奖时的标志性演讲录音切入对话：“我必须面对这个世界的本来面目，面对对美国人民的威胁，我不能坐视不管。毫无疑问，邪恶确实存在于这个世界上。非暴力运动无法阻挡希特勒的军队，谈判也无法说服基地组织的头目放下武器。承认武力有时确有必要，绝非屈从于犬儒主义，而是对历史的清醒认识。”这段话集中体现了冷战后美国主流建制派对自身角色的定位：美国是那个“不可或缺的超级大国”（indispensable superpower），唯有凭借美国的实力支撑，国际理想与规范才有可能在残酷的现实中落地生根。 然而，埃兹拉·克莱恩指出，这种逻辑随即会将人拖入无休止的死循环：假如联合国安理会因为常任理事国的阻挠，无法为应对侵略（例如俄罗斯对乌克兰的军事行动）的干预行动提供合法授权，美国究竟该何去何从？琳达·金斯特勒补充道，奥巴马在那场演说中极力试图在“理想主义”与“现实主义”之间维持微妙平衡，警惕因盲信其中任何一种而陷入盲目。过去六十余年间的国际法大厦，很大程度上依赖于一种“开明的霸权”（self-enlightened state hegemon）假定——即美国愿意依靠自身力量去维护自己参与构建的规则。但在当下，这种自我开明的共识已经荡然无存，美国正公开撕毁这些承诺、宣称其不再适用，而世界在伊朗等地已经真切品尝到了这种自我免除规则约束所带来的灾难性后果。 --- ### [21:59](https://www.youtube.com/watch?v=QlPd1RovWl4&t=1319s) 国际法正在走向消亡吗：特朗普、卢比奥与针对国际刑事法院（ICC）的制裁 金斯特勒此前为《卫报》长篇特稿（The Guardian Long Reads）撰写了一篇引起广泛关注的文章，标题正是直击要害的提问：“我们正在见证国际法的消亡吗？”（Are we witnessing the death of international law?）。促使她动笔的，正是特朗普政府对各项国际公约与条约的决绝退出，以及对那些作为国际法实体象征的国际机构所抱持的露骨敌意。特别是随着国务卿马可·卢比奥宣布要“一砖一瓦地拆解”（take apart brick by brick）国际刑事法院（ICC），国际舆论场上充斥着国际法已成“行尸走肉”（dead man walking）的悲观论调。 虽然美国本身早已不是《罗马规约》（Rome Statute）的缔约国，无权在法律层面直接废除该法院，但美国正在利用金融和科技霸权让国际刑事法院瘫痪。美国对国际刑事法院的现任法官实施单边制裁，其严厉程度令人咋舌——法官们被切断与美国金融系统的联系，无法刷信用卡，甚至无法使用任何涉及美国底层技术的办公软件与数字工具。克莱恩惊叹道，美国竟然把国际刑事法院正规任命的法官当成了“普京政权的核心高官”一样予以严厉惩罚。 ```mermaid flowchart TD accTitle: 美国两党对国际刑事法院（ICC）的工具化与打压逻辑 accDescr: 展示美国面对敌对势力与面对自身盟友时对国际法体系截然相反的态度与手段 subgraph AgainstEnemies ["针对地缘对手（如俄罗斯）"] A["ICC 针对普京发布逮捕令"] --> B["林赛·格雷厄姆等两党政客盛赞"] B --> C["借国际法道德高地强化对敌制裁与孤立"] end subgraph AgainstAllies ["针对自身及盟友（如以色列）"] D["ICC 调查美军或对内塔尼亚胡发布逮捕令"] --> E["定性为对美国家安全与盟友的'严重威胁'"] E --> F["对 ICC 在任法官实施严厉金融与技术制裁"] E --> G["诉诸《海牙入侵法》等强权立法威胁"] end ``` 这种制度性敌意并非特朗普及卢比奥凭空发明，而是有着深厚的历史渊源： - **小布什时代的毁约先例**：小布什政府时期，美国就撤回了在设立 ICC 的《罗马规约》上的签署。时任政要约翰·博尔顿（John Bolton）曾公开宣称美国绝不协助、绝不合作、更绝不加入，要任由 ICC 自身枯萎崩溃，并直言：“无论从任何意图或目的来看，ICC 对我们而言早就已经死了。” - **制裁借口**：美国国务院当前所宣称的制裁法官理由，是 ICC 对内塔尼亚胡（Benjamin Netanyahu）和约亚夫·加兰特（Yoav Gallant）等人签发的逮捕令“对美国人员及其盟友构成了不可接受的威胁”。 --- ### [24:53](https://www.youtube.com/watch?v=QlPd1RovWl4&t=1493s) 选择性正义与“海牙入侵法”：权力的工具与政治伪善 国际法在华盛顿政客手中呈现出高度精神分裂的特质：当它指向敌人时，它是正义的化身；当它约束自身时，它便成了必须铲除的眼中钉。克莱恩和金斯特勒特别提及参议员林赛·格雷厄姆（Lindsey Graham）戏剧性的立场转变。长期反感 ICC、坚决反对美国加入的格雷厄姆，在 ICC 宣布对普京因侵略乌克兰期间犯下的战争罪发布逮捕令时，却表现得异常兴奋，不仅积极推动参议院通过决议支持 ICC 调查普京及其政权的反人类罪行，更大声呼吁美国必须协助国际社会逮捕普京，“绝不能遗忘与原谅”。 这种“虚伪是恶德向美德支付的贡税”在国际政治中屡见不鲜：普京本人极度热衷于指责美国践踏国际法，而美国也习惯于将国际法降格为服务自身权力目的的趁手工具。一旦司法利刃可能波及美国本土人员或核心盟友，华盛顿便会露出极其强硬的獠牙。其中最极端但也最典型的立法代表，就是臭名昭著的《美国服役人员保护法》（American Service-Members' Protection Act），在华盛顿圈内被直接戏称为“海牙入侵法”（The Hague Invasion Act）——该法案公然授权美国总统动用包括军事打击在内的一切必要手段，强行闯入海牙，将被 ICC 扣押拘留的美国及盟友军事与政治人员营救出来。 --- ### [26:59](https://www.youtube.com/watch?v=QlPd1RovWl4&t=1619s) “强权政治”（Machtpolitik）与美国外交政策的深度撕裂 谈及特朗普政府自诩的“灵活现实主义”（flexible realism），克莱恩直言这在实践中不过是“为所欲为的许可证”。金斯特勒引用了学者帕特里克·波特（Patrick Porter）的学术界定，引入了德语词汇 **“Machtpolitik”**（强权政治）。波特将其称为“现实主义的腐化表亲”：当权力彻底挣脱了所有自我克制机制，不再清醒地认知自身能力的边界时，强权政治就会走向致命的狂妄并开始犯下灾难性错误。人们总喜欢把修昔底德在《伯罗奔尼撒战争史》中的名言“强者为所欲为，弱者逆来顺受”当作现实主义信条顶礼膜拜，但那句话在古希腊语境中其实是一记警钟——不受节制的盲目力量，必然迅速将一个城邦引向灭亡。 这引发了当下美国外交路线上前所未有的意识形态两极分化： - **强权意志路线（右翼/特朗普派）**：深信美国体内积攒着庞大的“盈余权力”（surplus power），只是过去被这套繁琐的国际协定与多边机构捆住了手脚，导致力量无法施展；他们试图打破自由主义左派的软弱束缚，直接将美国的意志凌驾于世界之上。 - **让渡与服从路线（进步派/左翼新构想）**：主张美国必须从根本上服从国际法，将其置于国家权力之上。哪怕一项行动美国自认为在道德上再正义、再良善，只要无法在联合国获得通过、无法获得北约盟友背书，抑或无法拿到国会授权，美国就必须忍受挫败感而绝不擅自越界动武。 面对克莱恩关于“服从国际法是否削弱了美国权力”的提问，金斯特勒给出了深入反驳。她指出，真正的现实主义者其实懂得将国际法视作一种高级的权力倍增工具，放弃参与反而是自废武功。最鲜明的例证正是中国：中国并没有退出这个舞台，反而在积极利用自身力量深刻重塑国际法的内涵与话语定义。例如，中国在各类国际法框架中极力守护并强化“主权不容侵犯”的核心原则，这不仅服务于其自身的政治与地缘诉求，更使中国在许多发展中国家和国际法治领域中，逐步树立起美国曾经享有的国际规则引领者形象。 ### [30:18](https://www.youtube.com/watch?v=QlPd1RovWl4&t=1818s) 中国对国际法的功利性运用与主权的悖论 埃兹拉·克莱因对中国填补美国留下的国际真空提出了尖锐质疑。他指出，中国虽然在极力推崇一种避开道德与价值观、纯粹聚焦于“领土边界刚性”的国际规则愿景，但北京自身是否真正信奉这一原则令人怀疑——面对西藏、台湾问题，或是面对普京对乌克兰的军事入侵，中国显然没有表现出对主权原则的一贯坚持。在克莱因看来，这种立场的背后存在一个巨大的制度漏洞：只要一方单方面宣布某块土地原本就属于自己而非真正的外部边界，国际秩序根本无人能加以阻止。 琳达·金斯特勒对此完全赞同，并指出这恰恰暴露了国际法的非完备性（non-completist）——它充斥着双重标准与漏洞。金斯特勒提到，她曾与美国最负盛名的现实主义学者约翰·米尔斯海默（John Mearsheimer）交流，米尔斯海默非常直白地表示：“我们当然只在符合自身利益时才遵从国际法。”中国当下的作为与这种现实主义逻辑如出一辙，这再次印证了国际法在本质上往往沦为主权国家权力的投射与博弈工具。 - 米尔斯海默的现实主义论断戳穿了自由主义法治叙事：大国对国际规则的采纳具有高度的选择性与工具性。 - 中国倡导的“主权至上”与其实际地缘政治策略之间存在不可忽视的内在张力，显示出国际法在缺乏统一界定权时的脆弱。 --- ### [31:30](https://www.youtube.com/watch?v=QlPd1RovWl4&t=1890s) 后美国世界秩序：莫恩、哈撒韦与更克制的主权协定 针对主权在未来秩序中的位置，克莱因提到了耶鲁大学法学学者塞缪尔·莫恩（Samuel Moyn）与欧娜·哈撒韦（Oona Hathaway）在《卫报》（The Guardian）上发表的文章。金斯特勒曾对该文公开表示赞赏。克莱因解读称，两位学者勾勒了一种更为精简、门槛更低的“后美国世界秩序”构想：放弃包罗万象的复杂法庭与繁琐条约，回归最底线的主权互不侵犯协议，本质上构建一个“我们互不入侵”的反战公约。 金斯特勒进一步阐明了她认同该构想的核心逻辑：面对加沙和乌克兰的惨剧，国际法未能阻止滔天暴行，导致外界极易彻底否定其价值。尤其是许多身处霸权地位（hegemon）的美国律师，常轻蔑地将国际法斥为“根本不存在的笑话”，但在世界上许多弱小或非西方国家，人们绝不会如此轻率地将其一笔勾销。金斯特勒强调，世界不能因挫败而放弃国际法，但同样不能沉湎于过去那种已被证明带来巨大破坏的“自由主义国际主义”虚幻图景中；当务之急是回归常识基石，重新树立对“侵略罪”（crime of aggression）和武力征服的绝对禁忌。 - 莫恩与哈撒韦主张的精简型框架意在剥离过度膨胀的国际干预诉求，退守至最基础的“禁止跨国侵略”。 - 视国际法为无物的犬儒主义多源自不受制约的霸权国精英，而非广大国际法体系的承受者与诉求方。 --- ### [33:45](https://www.youtube.com/watch?v=QlPd1RovWl4&t=2025s) 程序的迷宫与法律的初衷：从《俄瑞斯忒亚》到法律主义 讨论随后切入国际法最根本的执法难题：当规则遭到践踏，在没有“全球警察”与强制执行力的情况下，法律究竟意味着什么？克莱因观察到，如今捍卫国内外法治秩序的中左翼精英普遍身处机构之内，这导致人权律师与国际法专家极易陷入繁琐的“程序主义”（proceduralism）与官僚技术细节中，反而遮蔽了最初建立这套秩序所追求的根本道德价值。 金斯特勒回顾了战后国际体系建立时的浪漫理想——“通过法律实现和平”（peace through law），即彻底终结用暴力解决国家争端的时代。哲学家朱迪丝·施克拉（Judith Shklar）曾精辟地指出，这种将法律奉为至高的“法律主义”（legalism）在历史上早已与自由主义紧密捆绑、不可分割。然而，当庞杂的程序与官僚体系将道德初衷稀释殆尽时，法律便面临着极其严峻的哲学困境：人类如何利用一套极其脆弱、充满缺陷的世俗规则，去衡量并审判那些彻底超越人类理解范畴和惩罚能力的巨大道德罪行？ 金斯特勒援引了叶史瓦大学（Yeshiva University）一位学者关于艾希曼审判（Eichmann trial）的经典论述：人类至今仍未能走出埃斯库罗斯古希腊悲剧《俄瑞斯忒亚》（Oresteia）所昭示的永恒母题——试图将滔天罪恶纳入司法程序，借此终结冤冤相报的血腥复仇循环。法律体系在此过程中反复暴露出其无能为力，却又奇特地保有一种人类尚不完全知晓如何驾驭的精神力量。 ```mermaid flowchart TD accTitle: 法律主义的演变与道德困境 accDescr: 展现从通过法律实现和平的初衷，到程序官僚化，再到面对特大暴行时司法局限性的演变路径。 subgraph Origin["秩序的诞生初衷"] A["浪漫主义构想：<br/>通过法律实现和平"] --> B["自由主义与法律主义深度捆绑<br/>(朱迪丝·施克拉)"] end subgraph Degeneration["现实异化与瓶颈"] B --> C["制度化与官僚程序主义泛滥<br/>原始道德诉求被淹没"] C --> D["《俄瑞斯忒亚》式的永恒难题：<br/>脆弱世俗法律无法承载超越极限之恶"] end ``` --- ### [37:02](https://www.youtube.com/watch?v=QlPd1RovWl4&t=2222s) 历史记忆的裁决：加沙、种族灭绝定性与国际法院的边界 克莱因将讨论引向对暴行问责的深层意图：国际法体系的存在，究竟是为了事前预防、事后救济，还是最终争夺对历史记忆（historical memory）的定义权？在加沙冲突的语境下，哈马斯发动了10月7日的袭击，而以色列的军事报复被广泛批评为滑向野蛮。克莱因指出，有关“种族灭绝”（genocide）的法庭诉讼之所以引发白热化争端，关键在于一旦罪名被国际司法机构坐实，它将彻底重构以色列的国家历史叙事与存在意义——一个脱胎于大屠杀种族灭绝创伤的国家，如果被正式判定犯下了同样的罪行，其实质惩罚是该国在未来历史记忆中的永久定性。 金斯特勒完全同意国际法院（ICJ）在裁定此类案件时所具备的巨大象征意义。她提到了国际法学者莱拉·萨达特（Leila Sadat）的洞见：萨达特目前正全力推动一项“反人类罪”（crimes against humanity）公约，试图矫正将种族灭绝单方面捧为“万罪之罪”（crime of crimes）的失衡倾向。萨达特犀利地指出，由于适用门槛极高且极少被实质应用，1948年的《防止及惩治灭绝种族罪公约》在很大程度上已经退化为一座“对犹太大屠杀的纪念碑”；迄今为止，国际法院仅在波斯尼亚诉塞尔维亚案中有过实质判决先例。 金斯特勒最后引述了一位国际法院现任法官在判决书末尾的一句沉痛感言。该法官在详尽罗列了所发生的一切骇人罪行与违规行径后写道：“法院终究只是一座法院，它的权力是有限的。”司法机构无法单凭判词抚平创伤或平息战火，国际法在历史记忆与严酷现实之间，始终横亘着不可逾越的力量边界。 - 国际诉讼对加沙局势的干预，核心争夺点已不仅是战场停火，而是对国家行为与冲突性质的历史定义权。 - 莱拉·萨达特主张引入更易适用的“反人类罪”框架，避免法律因过度依赖象征性极强却极难定罪的“种族灭绝”而陷入适用瘫痪。 - 国际法院内部法官对法庭角色的清醒认知，揭示了国际司法机制在缺乏强制执行依托时的物理局限。 ### [40:18](https://www.youtube.com/watch?v=QlPd1RovWl4&t=2418s) 法律主义的局限：公众渴求的是政治领导力而非裁决 如果人们把所有视线都聚焦在国际法“能做什么”和“不能做什么”上，辩论就会迅速退化为狭隘的法律主义（Legalism）。埃兹拉·克莱恩指出，当前的公共舆论往往寄希望于法律解决超越其承载力的问题。假设国际法院（ICJ）最终裁决认为，以色列在很大程度上真诚地认为自己只是在打击隐藏在平民中的哈马斯武装，因而根据严格的法律要件无法在法庭上确凿证实其构成了“种族灭绝”。即便出现这一纸裁决，那些深信正在发生种族灭绝的人也绝不可能坦然接受并说一句“好吧，国际法院秉公审理过了，既然不算种族灭绝，那就算了”。这表明大众内心深处渴望的根本不是枯燥的法条，而是道德与政治意义上的领袖担当——正如克莱恩所直言：“人们真正想要的，我认为不是法律，而是领导力（leadership）。”国际法在阻止当下的杀戮上从来都不具备前瞻与预防功能。 这种诉求未得到回应的怒火正在将民主党内部撕裂。拜登在任期尾声获得了伯尼·桑德斯（Bernie Sanders）与亚历山大·奥卡西奥-科尔特斯（Alexandria Ocasio-Cortez）等左翼力量的极力支持，但与此同时，正是拜登政府纵容并协助推动了加沙惨剧的延续。左翼与活动人士迫切希望看到一种不愿再次容忍此类惨剧的执政力量，这种力量并不单由具体的法律条文捆绑，而源于某种普遍的道德共识。然而残酷的现实在于，民主党内部乃至美国社会根本不存在这种道德一致性：一方眼中完全不可想象的人间灾难，在另一方看来却仅仅是战争难以避免的残酷常态。 - 国际法院（ICJ）对“种族灭绝意图”的极高证明门槛，注定了漫长的司法审理无法平息现实中迫在眉睫的道德怒火。 - 拜登政府一方面维系着党内进步派建制力量的支持，另一方面其对以政策被广泛视作加沙人道灾难的同谋，加剧了党内路线分裂。 - 当前外交争端的核心矛盾不在于具体条款的解释，而在于政界对暴力底线的道德定义存在根本分歧。 ### [43:52](https://www.youtube.com/watch?v=QlPd1RovWl4&t=2632s) 共谋感与道德困境：乌克兰与加沙为何引发截然不同的政治震荡 琳达·金斯特勒指出，公众平时很少关注国际法院或国际刑事法院（ICC），但在某些关键节点，国际法院的审理不仅登上各大媒体头条，大批民众更聚集在海牙和平宫（Peace Palace）外紧盯直播，期待法庭降下一个匡扶正义的道德判决。然而，法律程序既不可能迅速给出裁定，也绝非万能的“救赎（salvific）”。无论最终判定结果如何，政客们做出何种迟来的政策修正，都无法抹去已经造成的创伤。金斯特勒认为，国际法在本质上是一门“带有悲剧色彩的领域（tragic field）”，而当下政坛所显现的领导力真空，恰恰映射出当权者在政治话语中极力回避、无法坦承这种悲剧性的无能——因为坦承悲剧与现代选举政治推崇的口号叙事背道而驰。 克莱恩进一步将这种无力感与美国公众对待俄乌战争与加沙冲突的心理机制进行了对比。美国虽然未能阻止俄罗斯全面入侵乌克兰，但通过援助予以阻击，美国人在此事件中感受不到自身的道德过失；而在加沙，美国民众却背负着极其强烈的“共谋感（feeling of complicity）”。虽然美以之间深厚交织的历史联结、亲缘关系乃至反犹主义的争论长期吸引着非同寻常的关注，但在加沙问题上，最折磨人且悬而未决的根本问题是：“这究竟折射出我们是谁？我们的外交政策底色到底是什么？”这种对国家道德身份认同的叩问，让两场冲突在美国国内激起了完全不同性质的政治震荡。 ```mermaid flowchart TD accTitle: 乌克兰危机与加沙冲突在美国政治中的认知分歧 accDescr: 对比美国公众在面对俄乌战争与加沙冲突时因“共谋感”差异所导致的截然不同的心理与政治反应。 subgraph Ukraine["俄乌战争"] U1["俄罗斯对外侵略"] --> U2["美国全力提供军援阻击"] U2 --> U3["美国无道德共谋负担"] end subgraph Gaza["加沙冲突"] G1["以军大规模报复行动"] --> G2["美国提供持续军火与外交庇护"] G2 --> G3["引发公众强烈的道德共谋危机"] end U3 --> Outcome["界定国家外交认同：'我们究竟是谁？'"] G3 --> Outcome ``` ### [46:17](https://www.youtube.com/watch?v=QlPd1RovWl4&t=2777s) 无休止的冲突：当“停火”沦为回避根本政治解决方案的替代品 放眼全球战局，无论是乌克兰还是加沙，都在滑向“不公正的和平”。在乌克兰，一场捍卫国家主权的正义自卫战，很可能最终在不利于乌克兰的妥协协议中落幕；而在加沙，特朗普阵营宣扬的所谓终战前景，更是近乎彻底无视巴勒斯坦人民的自决与主权。金斯特勒长期关注冲突如何终结的议题，她敏锐地察觉到人类已经步入了一个“无明确终点的战争时代（wars with no discernible end）”，使外界做出清晰的道德定性和裁断变得愈加艰难。 在这一背景下，国际社会普遍以“停火协议”取代了真正具有约束力的持久和平解决方案。加沙冲突爆发后，抗议潮中最响亮的口号莫过于“立即停火（Ceasefire Now）”。虽然停火确实能立竿见影地遏制流血，但金斯特勒强调，要求停火并不等于终结冲突，其潜台词其实只是“现在先暂停”。历史表明，停火协议极易破裂，更往往成为国际社会规避核心政治矛盾与历史责任的借口。造成这种局面的根源在于单极秩序的崩塌与政治意愿的匮乏——在如今多极分化、大国竞争的世界里，要想让所有关键地缘力量共同坐下来促成一份具有终局意义的和约，在现实中已变得极为罕见。 - 现代外交逐渐丧失了促成决定性和平条约的意愿与能力，转向依赖脆弱、权宜的临时休战与停火。 - 乌克兰的战局走向预示着可能以领土妥协为代价换取不公正的和平，而加沙的政治未来则面临巴勒斯坦主权被全面剥夺的危险。 - “停火”在阻断暴力蔓延的同时，客观上也起到了冷冻矛盾、推迟艰难政治抉择的作用。 ### [48:24](https://www.youtube.com/watch?v=QlPd1RovWl4&t=2904s) 告别“管理主义”：国际法道德想象力的萎缩与重建愿景 克莱恩指出，过去那种相信和平协议切实可行的信念已经荡然无存。回顾往昔，美国曾拥有召集并迫使冲突各方开展严肃和平谈判的号召力，而如今这种权威已然消逝。金斯特勒回应称，在过去的数十年里，国际法体系逐渐丢失了曾经激励其向前推进的“道德想象力（power of moral imagination）”，原本崇高的理想主义被冷漠的“官僚管理主义（managerialism）”取而代之。面对未来的外交政策蓝图，民主党如果仅仅机械地声称要“重回规则”，无异于在自由主义国际秩序的废墟之上自欺欺人。政客们必须展现出道德勇气，清晰阐明维护这些准则的根本动机与价值所在。 克莱恩反思道，几十年前曾广泛流传的雄心壮志——例如20世纪60至70年代人们真诚地相信可以创造一个“没有战争的世界”，或者80年代全力以赴追求“彻底消除核武器”——在今天看来竟显得如此天真而虚幻。现实政治与官僚体制的沉重锁链让人透不过气，但金斯特勒在长期的实地采访和学术研讨中发现，法律界与学界内部并未完全陷入绝望。许多法学者与从业者正清醒地认识到现有范式已走到尽头，并开始积极探索构建一种打破既有框架、具备全新生命力的国际法体系。 - 国际法从二战后的大胆道德构想，逐步退化为维持现状的程序化管理主义（Managerialism）。 - 民主党若要重建具有说服力的对外政策，必须超越“遵守规则”的程序口号，确立具有感召力的积极道德愿景。 - 尽管公众舆论被机构现实主义所禁锢，学术界与实务界内部已开始酝酿重塑战后国际法基本逻辑的思潮。 ### [50:57](https://www.youtube.com/watch?v=QlPd1RovWl4&t=3057s) 国际法的历史悖论与“修复性”重构 在谈及国际秩序的脆弱性时，琳达·金斯特勒指出，从历史上看，国际法的重大飞跃往往伴随着近乎嘲弄般的剧烈危机，仿佛历史总在第一时间推翻法律所标榜的崇高理想。例如，19世纪末期旨在维系持久和平的海牙和平会议刚刚召开不久，第一次世界大战便全面爆发；同样，具有里程碑意义的《纽伦堡宪章》签署之时，恰逢美军向长崎投下第二颗原子弹。每一次国际法规则取得实质性进展的时刻，几乎都会被随之而来的深重灾难所笼罩，使这些规则所倡导的价值显得苍白无力。 面对这一历史怪圈，金斯特勒认为当下迫切需要对国际法在现实世界中的功用进行全新评估。国际法不应仅仅被视作一种“预防性”或“保护性”的惩戒工具，更应被发掘出“修复性”（reparative）的潜能。公众通常将国际刑事法院（ICC）窄化为一个单向宣判罪行、将战犯绳之以法的审判台，但事实上，根据《国际刑事法院罗马规约》设立的“受害者信托基金”（Trust Fund for Victims）具有同等重要的地位。该基金往往在漫长的刑事调查推进的同时、甚至在开庭审判之前，就已开始向战乱和暴行中的受害者发放赔偿金与生活救济。这种超越纯粹刑罚的物质修复，才是国际法真正介入现实苦难的支点。 ### [52:08](https://www.youtube.com/watch?v=QlPd1RovWl4&t=3128s) 后特朗普时代：美国如何展现真实的国际法承诺？ 埃兹拉·克莱因将讨论引向现实政治：假定在特朗普时代结束后，一位民主党总统于2029年入主白宫，并试图向世界宣告美国将重返国际规则与秩序，那么他们究竟该采取何种具体行动，才能释放出非虚伪的、实质性的信号？ 金斯特勒轻叹了一口气，直言这考验着政治领导层的“道德想象力”（moral imagination）。仅仅在口头上重申“我们将回归规则”是远远不够的。尽管像佐兰·马姆达尼（Zohran Mamdani）这样的进步派政客曾明确呼吁美国应正式加入国际刑事法院（ICC），但在残酷的地缘政治现实下，很难想象任何一届美国政府能真正迈出这一步。然而，即便不签署条约，美国依然能够通过提供实质性的物质支撑来展现诚意——例如，向国际刑事法院受害者信托基金注入大额资金，以真金白银保障其运转。 金斯特勒进一步以“乌克兰战争损害登记册”（Register of Damage for Ukraine）为例说明：该机构详尽记录了普通乌克兰人在冲突中蒙受的生命财产损失，但在眼下，它仅仅是一份由于缺乏资金兑付而可能沦为空谈的债权清单。美国完全有能力将这一纸清单变为切实的赔偿。金斯特勒强调，她目前最关切的核心命题是“如何让国际法具有物质实效性”（How do we make international law material）。唯有摆脱空洞的说教，走向一种弥合创伤的“修复性政治”（reparative politics），将道德准则转化为能切实改变受害者境遇的生活补偿，国际秩序才能真正填补自身的道义裂痕。 ```mermaid flowchart TD accTitle: 国际法功能的范式转型 accDescr: 展现从传统的惩罚性司法转向更具物质实效的修复性司法的路径 subgraph Punitive["传统惩戒路径（惩罚性司法）"] A["ICC 刑事调查与起诉"] --> B["漫长审理与定罪"] B --> C["政治阻力巨大<br/>（强权国家拒绝加入）"] end subgraph Reparative["物质重构路径（修复性司法）"] D["国际法道德价值落地"] --> E["受害者信托基金 / 损害登记册"] E --> F["提供直接赔偿与经济救济"] F --> G["切实改变受害者现实生活"] end C -.->|"弥补效力落差"| D ``` - **司法与救济并行**：ICC 不仅负责签发逮捕令与审判，其配套的受害者信托基金能够在司法程序漫长推进的阶段，提前为受害者提供人道救济与物质赔偿。 - **现实突破口**：相较于美国直接加入 ICC 这种政治上几乎不可能完成的任务，为受害者信托基金注资或推动乌克兰损失登记赔付，是后特朗普时代重建信誉的可行抓手。 ### [53:57](https://www.youtube.com/watch?v=QlPd1RovWl4&t=3237s) 嘉宾书单推荐：裂痕、外交红线与气候危机 对谈接近尾声，克莱因按照节目惯例请金斯特勒向听众推荐三本书籍。金斯特勒给出了三部兼具古典哲学反思、前沿外交内幕与生态文学关怀的作品： - **《分裂的城邦》（*The Divided City*）**——法国古典学学者妮可·洛罗（Nicole Loraux）著。金斯特勒赞叹洛罗文笔极为优美。该书带领读者回到古典时期的古雅典，借雅典这座典型的“分裂之城”，深层剖析政治本身固有的党争与裂痕，并反思人类群体在经历不可逆的深刻剧变与创伤之后，弥合分歧、重铸共识究竟有多么艰险。 - **《越过红线》（*Crossing the Red Line*）**——《赫芬顿邮报》（HuffPost）资深外交记者阿克巴尔·沙希德·艾哈迈德（Akbar Shahid Ahmed）即将于9月出版的新作。金斯特勒透露自己来演播室的火车上正在通读此书。这是一部详实深入的调查报道，精准记录了拜登政府在加沙冲突爆发后对以政策的妥协与转向。克莱因插话指出，这指的正是拜登政府对内塔尼亚胡划定、却随后任由其践踏的外交红线；金斯特勒证实，书中尤为详尽地复盘了白宫在以色列进军拉法（Rafah）问题上不断后撤防线的博弈全过程。 - **《淹没》（*Underwater*）**——塔拉·梅农（Tara Menon）最新出版的小说。印度著名作家阿米塔夫·戈什（Amitav Ghosh）曾提出一个著名论断：现代虚构文学尚未找到一种恰切的叙事范式，去描绘气候危机的浩瀚规模以及它带来的地壳板块般宏大的损失与断层。梅农的这部小说正是对戈什这一追问的有力回应，以极具文学美感的笔触成功刻画了生态巨变带给人类社会的沉重震荡。 ## Notable quotes > [10:02](https://www.youtube.com/watch?v=QlPd1RovWl4&t=602s) 国际法。我认为我们应当成为执行国际法的‘同侪之首’。在人类历史上最惨烈的人类世界大战之后，我们付出巨大努力建立了所有这些制度和框架，但随后我们自己却成了这些框架的最大破坏者。 — 阿卜杜勒·埃尔-萨耶德 > [17:58](https://www.youtube.com/watch?v=QlPd1RovWl4&t=1078s) 我本人就是非暴力道德力量的活生生见证。我知道，在甘地与金的信条和生命中，绝无脆弱，绝无被动，也绝无天真。 — 巴拉克·奥巴马 > [17:58](https://www.youtube.com/watch?v=QlPd1RovWl4&t=1078s) 作为宣誓保卫国家的国家元首，我不能仅仅以他们的榜样为指引。 — 巴拉克·奥巴马 > [20:16](https://www.youtube.com/watch?v=QlPd1RovWl4&t=1216s) 我必须面对这个世界的本来面目，面对对美国人民的威胁，我不能坐视不管。毫无疑问，邪恶确实存在于这个世界上。非暴力运动无法阻挡希特勒的军队，谈判也无法说服基地组织的头目放下武器。承认武力有时确有必要，绝非屈从于犬儒主义，而是对历史的清醒认识。 — 巴拉克·奥巴马 > [21:59](https://www.youtube.com/watch?v=QlPd1RovWl4&t=1319s) 无论从任何意图或目的来看，ICC 对我们而言早就已经死了。 — 约翰·博尔顿 > [26:59](https://www.youtube.com/watch?v=QlPd1RovWl4&t=1619s) 强者为所欲为，弱者逆来顺受 — 修昔底德 > [30:18](https://www.youtube.com/watch?v=QlPd1RovWl4&t=1818s) 我们当然只在符合自身利益时才遵从国际法。 — 约翰·米尔斯海默 > [37:02](https://www.youtube.com/watch?v=QlPd1RovWl4&t=2222s) 法院终究只是一座法院，它的权力是有限的。 — 国际法院法官 > [40:18](https://www.youtube.com/watch?v=QlPd1RovWl4&t=2418s) 人们真正想要的，我认为不是法律，而是领导力。 — 埃兹拉·克莱因 > [52:08](https://www.youtube.com/watch?v=QlPd1RovWl4&t=3128s) 如何让国际法具有物质实效性 — 琳达·金斯特勒 ## Mentioned 唐纳德·特朗普, 乔·拜登, 琳达·金斯特勒, 佐兰·马姆达尼, 本雅明·内塔尼亚胡, 弗拉基米尔·普京, 埃兹拉·克莱因, 阿卜杜勒·埃尔-萨耶德, 罗伯特·赖特, 乔治·帕克, 里查德·霍尔布鲁克, 科菲·安南, 希拉里·查尔斯沃思, 巴拉克·奥巴马, 马可·卢比奥, 约翰·博尔顿, 约亚夫·加兰特, 林赛·格雷厄姆, 帕特里克·波特, 约翰·米尔斯海默, 塞缪尔·莫恩, 欧娜·哈撒韦, 朱迪丝·施克拉, 莱拉·萨达特, 伯尼·桑德斯, 亚历山大·奥卡西奥-科尔特斯, 妮可·洛罗, 阿克巴尔·沙希德·艾哈迈德, 塔拉·梅农, 阿米塔夫·戈什, 联合国 (UN), 国际法院 (ICJ), 国际刑事法院 (ICC), 北大西洋公约组织 (NATO), 《国际刑事法院罗马规约》, 《美国服役人员保护法》（海牙入侵法）, 《防止及惩治灭绝种族罪公约》, 受害者信托基金 (Trust Fund for Victims), 乌克兰战争损害登记册 (Register of Damage for Ukraine), 《来到法庭哭泣：大屠杀如何终结》, 《我们的人》, 《分裂的城邦》, 《越过红线》, 《淹没》, 《卫报》 ## Video description American foreign policy is at a crossroads. Could international law provide a framework for a foreign policy after President Trump? We're in a really strange moment in the foreign policy politics of the Democratic Party. People are looking for an alternative vision — an approach to American power in the world that would feel more moral and just, after the failures of President Biden, and the wrecking ball President Trump has taken to international rules and norms. The answer many on the left are coming to is powerfully simple: international law. America could just start following the rules that we helped write. Is that possible? Is that enough? What would that even look like? To talk through these questions, I invited Linda Kinstler on the show. She's a member of the Society of Fellows at Harvard, a contributing writer at The New York Times Magazine, and the author of “Come to This Court and Cry: How the Holocaust Ends.” She's done some incredible writing and reporting on whether what we're watching is the death of international law. In this conversation, we talk about the Biden administration’s failures to live up to the principles it set for itself, the Trump administration’s campaign to destroy the International Criminal Court and what it would take to reinvigorate international law. 0:00 Intro 1:06 Zohran Mamdani’s statement on Benjamin Netanyahu 4:12 What is international law? 8:02 Why Israel gets so much attention in U.S. foreign policy debates 10:23 What if America followed the rules? 14:49 Balancing process and outcomes in the rules-based order 17:58 Loopholes 21:59 Is international law dying? 31:30 Sovereignty in a new order 34:58 Values behind the system 37:02 Genocide and historical memory 40:26 Leadership beyond courts 50:35 Reimagining and repairing international law 52:08 What a new era requires 53:57 Book recommendations Read the full transcript here: https://www.nytimes.com/2026/08/14/opinion/ezra-klein-podcast-linda-kinstler.html Watch more on @EzraKleinShow Thoughts? Guest suggestions? Email us at ezrakleinshow@nytimes.com. You can find transcripts (posted midday) and more episodes of “The Ezra Klein Show” at nytimes.com/ezra-klein-podcast. Book recommendations from all our guests are listed at https://www.nytimes.com/article/ezra-klein-show-book-recs.html [Source](https://www.youtube.com/watch?v=QlPd1RovWl4)

[10:02] 阿卜杜勒·埃尔-萨耶德: 国际法。我认为我们应当成为执行国际法的‘同侪之首’。在人类历史上最惨烈的人类世界大战之后，我们付出巨大努力建立了所有这些制度和框架，但随后我们自己却成了这些框架的最大破坏者。 [17:58] 巴拉克·奥巴马: 我本人就是非暴力道德力量的活生生见证。我知道，在甘地与金的信条和生命中，绝无脆弱，绝无被动，也绝无天真。 [17:58] 巴拉克·奥巴马: 作为宣誓保卫国家的国家元首，我不能仅仅以他们的榜样为指引。 [20:16] 巴拉克·奥巴马: 我必须面对这个世界的本来面目，面对对美国人民的威胁，我不能坐视不管。毫无疑问，邪恶确实存在于这个世界上。非暴力运动无法阻挡希特勒的军队，谈判也无法说服基地组织的头目放下武器。承认武力有时确有必要，绝非屈从于犬儒主义，而是对历史的清醒认识。 [21:59] 约翰·博尔顿: 无论从任何意图或目的来看，ICC 对我们而言早就已经死了。 [26:59] 修昔底德: 强者为所欲为，弱者逆来顺受 [30:18] 约翰·米尔斯海默: 我们当然只在符合自身利益时才遵从国际法。 [37:02] 国际法院法官: 法院终究只是一座法院，它的权力是有限的。 [40:18] 埃兹拉·克莱因: 人们真正想要的，我认为不是法律，而是领导力。 [52:08] 琳达·金斯特勒: 如何让国际法具有物质实效性

[1:06] 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. [20:16] Barack Obama: I face the world as it is and cannot stand idle in the face of threats to the American people. For make no mistake, evil does exist in the world. A non-violent movement could not have halted Hitler's armies. Negotiations cannot convince Al-Qaeda's leaders to lay down their arms. To say that force may sometimes be necessary is not a call to cynicism, it is a recognition of history. [21:59] John Bolton: We will not cooperate with the ICC. We will provide no assistance to the ICC, and we certainly will not join the ICC... We will let the ICC die on its own. After all, for all intents and purposes, the ICC is already dead to us. [24:53] hypocrisy is the tribute vice pays to virtue. [26:59] Thucydides: the strong do what they will and the weak suffer what they must [30:18] John Mearsheimer: Of course, you know, we subscribe to international law when it suits us. [31:30] international law is a joke; it doesn't exist [37:02] The court is just a court.

[0:00] What is the foundation upon which a new, [0:03] more moral, more just American foreign [0:05] policy can be built? [0:07] Particularly after the devastation [0:09] Donald Trump has wrought [0:10] on international norms and [music] [0:11] rules. [0:13] One answer I'm watching a lot of people [0:15] come to, [0:16] and particularly on the left, is it [0:18] international law, which has fallen into [0:21] such disrepair, [0:22] >> [music] [0:22] >> can possibly be a source of renewal. [0:25] That if America simply followed the [0:26] rules that it helped write, [0:28] then a much better world is possible. [0:30] >> [music] [0:31] >> And I wonder if it can international [0:32] law, which has both been so weak at [0:35] times, [0:36] and also been so inspiring at others, [0:37] can it actually bear that weight? [0:40] Linda Kinstler [music] is a fellow at [0:41] Harvard. She's a contributing writer at [0:43] the New York Times Magazine, [0:45] and the author of Come to This Court and [0:47] Cry: How the Holocaust Ends. She's done [0:50] some incredible writing and reporting on [0:52] whether or not what we're watching is [0:53] the death or the renewal of [0:55] international law. She joins me now. [0:58] >> [music] [1:03] >> Linda Kinstler, welcome to the show. [1:05] >> Thanks so much for having me. [1:06] >> So, I want to begin with this video that [1:08] Mher Azar Mamdani released not that long [1:10] ago, [1:11] arguing for the arrest of Benjamin [1:15] Netanyahu. [1:16] >> There is a reason the International [1:18] Criminal Court issued a warrant for his [1:19] arrest. [1:20] As human beings, we have spent [1:22] generations building a shared [1:24] understanding that there are crimes so [1:25] grave, they offend all of humanity. [1:28] Anyone, with their eyes, with their [1:30] heart, with their conscience, should [1:33] recognize the devastation he has wrought [1:35] and understand that he belongs before a [1:38] court of law. [1:39] >> [snorts] [1:39] >> It is clear that we do not have the [1:41] independent legal authority to enforce [1:43] this warrant. The federal government, [1:44] however, does, and I call on them to [1:47] join the ICC and execute this warrant. [1:49] And I want to be equally clear. Benjamin [1:52] Netanyahu is not welcome in New York [1:53] City, nor is any other war criminal at [1:56] large. [1:57] >> What did you make of that? Not just the [1:59] decision to release it, which has been [2:01] controversial, [2:03] but the focus in it [2:05] on the relationship between America [2:08] and the International Criminal Court. [2:11] >> [gasps and sighs] [2:11] >> Yeah, I mean, I think first of all, that [2:12] was an immensely rhetorically powerful [2:15] thing to do [2:17] even in enunciating the crimes in Gaza. [2:21] That I think we cannot underestimate. [2:24] Uh just the kind of moral force of [2:26] enunciating what those crimes were and [2:28] articulating them precisely at the [2:30] moment when they have been negated and [2:31] denied in so many different places [2:34] around the world, uh especially in the [2:36] United States. I think, you know, what [2:38] that did was call attention to the fact [2:41] that international law is not separate [2:43] from politics, that it is something that [2:46] we need politicians to speak about as a [2:49] force that exists and can be used if we [2:51] choose to use it. Um and so, I think [2:54] of course, while he was, you know, he [2:56] was calling attention to the fact that [2:58] he doesn't have the authority to execute [3:00] the ICC arrest warrant. [3:01] >> And America's not a signatory. [3:03] >> Exactly. So, there is, you know, but [3:05] >> And the Secretary of State in America [3:06] wants to destroy the court. [3:07] >> Halfway across the world, there's an [3:09] institution that calls itself the [3:10] International Criminal Court. Maybe [3:12] you've heard of it. Maybe you haven't. [3:14] But chances are you don't know the names [3:16] of its judges, of its prosecutors, or [3:18] its president. [3:20] And you shouldn't have to. [3:22] But as we speak, the ICC and its friends [3:24] are waging a war against our country. [3:27] Not with bullets or missiles, but with [3:29] statutes, and compacts, and the force of [3:31] so-called international law. [3:34] >> Right. Right. No, there's all these [3:35] reasons it's like completely, uh not [3:38] actionable. It's a double-edged sword [3:40] because on the one hand, you're calling [3:42] attention to the fact that the ICC does [3:43] exist, perhaps alerting to people to the [3:45] fact that there is an arrest warrant. [3:48] And on the other hand, there's a danger [3:49] because you're also calling attention to [3:51] the paucity of international law, of its [3:53] inability to work, and this disjuncture [3:55] between [3:57] um you know, this idea of arresting the [3:59] imagery captured of Netanyahu being [4:02] arrested in New York City versus the [4:03] reality, which is that that's never [4:05] going to happen. I think that [4:07] disjuncture is kind of dangerous for the [4:10] perpetuation of international law. [4:12] >> I think before we go further on this, [4:13] when when we talk about international [4:16] law, when you talk about international [4:18] law, [4:19] what are you talking about? [4:21] >> When many people think of international [4:22] law, I think they often are actually [4:24] just thinking about criminal law, [4:25] international criminal law, which would, [4:27] you know, put which is how we get the [4:30] arrest warrant for Netanyahu or for [4:32] Putin, for example. [4:33] And they're maybe not thinking about [4:35] international law at large, where we [4:38] have things that govern like, you know, [4:40] aviation law across the oceans. [4:43] Um [4:44] international transactions, things like [4:46] that. So, formally speaking, you're [4:51] talking about the institutions that [4:53] compose international law. You could say [4:56] the International Court of Justice, the [4:59] International Criminal Court, uh the [5:01] kind of many, many webs of treaties and [5:04] conventions, the United Nations. Um [5:07] these make up the edifice of [5:09] international law when we refer to it. [5:11] Um [5:13] You know, but there's also a kind of [5:14] more theoretical way of thinking about [5:16] it as a kind of grammar, as a language. [5:18] And I think what, you know, there is [5:20] this kind of romantic idea of [5:22] international law as dispassionate. [5:24] Um you know, if you look to its origins, [5:26] it came about when we no longer had, you [5:30] know, the divine right of kings, and we [5:31] needed some kind of order to fill the [5:34] void, to you know, to order a world [5:36] without God and without divine right. [5:37] And so now this system was created to [5:41] kind of guide us through the the moral [5:44] void of the world and the inevitability [5:46] of conflict. And when it fails to do [5:49] that as it so often does, we are left [5:51] questioning its its viability, [5:54] its ability to persist in a fallen [5:58] world. [5:59] >> I think we're in a really strange moment [6:02] in the foreign policy politics of the [6:05] Democratic Party. I think they're in in [6:06] rupture. [6:07] And one thing that I think is [6:08] interesting about the way they have [6:10] ruptured [6:11] is that you have Joe Biden come into [6:14] the presidency in 2021. [6:16] And he promises to restore the [6:17] rules-based international order. [6:19] >> Mhm. [6:19] >> I speak today as president of the United [6:21] States at the very start of my [6:23] administration and I'm sending a clear [6:26] message to the world. America is back. [6:30] The transatlantic alliance is back. [6:33] And we are not looking backward. We are [6:36] looking forward together. [6:38] >> And he believes in international [6:39] institutions [6:41] and international alliances with a force [6:44] maybe that no other modern president [6:45] really does. [6:47] And then Ukraine happens on his watch [6:49] and then Gaza happens on his watch. [6:52] And now what I see many on the left [6:55] saying is [6:57] well, what did you all believe in? [6:59] Right? If your rules-based international [7:01] order allowed this, if you protected [7:03] Israel at the UN over this, if you gave [7:05] the arms for this, if you are not a [7:08] signatory, if you want to protect [7:09] Netanyahu from this, [7:11] then then what was this order? [7:13] >> Mhm. Yeah, I think I think and you can [7:16] almost see [7:17] the move away from that commitment in [7:20] the [7:21] reluctance to use that phrase as the [7:24] administration progresses, right? We get [7:26] fewer and fewer invocations of the [7:27] rules-based international order. We get [7:30] you know, extreme reluctance to use [7:31] words like war crimes and things of that [7:33] nature. [7:34] I think there's also, you know, this [7:36] nostalgia, I suppose, that for the very [7:40] fleeting moment of liberal peace that [7:42] came after the Cold War. You know, this [7:45] moment of US hegemony when you did have [7:48] the ICC created, you had this [7:52] um [7:53] real feeling that international law [7:55] could be upheld by [7:58] American strength alone. And of course, [8:00] we know we now live in the ruins of that [8:01] vision. [8:02] >> Let me give voice to the discomfort I've [8:04] heard from it on the other side, which [8:05] is [8:07] a lot of, you know, [8:09] Jews I know, supporters of Israel I [8:10] know, [8:12] one thing I hear them ask a lot is [8:14] why is Israel and Gaza the center of all [8:17] this? [8:18] >> Mhm. [8:18] >> There is this sense that [8:21] Israel has become the locus [8:23] >> Mhm. [8:23] >> of all this ferment. I mean, you've [8:26] written pieces, you know, reviewing [8:27] books about how, you know, Israel uh [8:30] it's, you know, assault on Gaza, its war [8:32] in Gaza after October 7th, will now sit [8:35] in historical memory the way the [8:36] Holocaust does, that it'll be another [8:39] moment of sort of a historical turn. [8:41] >> Right. [8:42] >> And, you know, what I hear people say is [8:45] why Israel not Sudan, not Syria, not [8:48] even Russia? Why is there this much [8:50] focus [8:52] on this country and its particular [8:55] conflicts and wars? [8:56] >> Mhm. Well, the apparent answer to that [8:58] is that Israel is the closest United [9:00] States ally and [9:02] Russia is not, for example. Um [9:05] and I think but I I I don't think it's [9:07] fair to say that these same questions [9:09] don't come up when we think about, you [9:11] know, Vladimir Putin is also wanted by [9:13] the ICC. [9:15] Um and I think we see similar behavior [9:17] evinced by our, you know, friendly [9:20] nations that don't want to arrest him if [9:22] he comes onto their territory, you know? [9:24] And [9:25] one legal scholar said it's it's all [9:27] very well to say that you uphold the [9:30] values of international law, but that [9:32] doesn't mean you have to invite Putin to [9:34] come shopping in Paris, you know? There [9:35] is this kind of [9:37] double speak when it comes to [9:40] these evinced values. And I think, you [9:41] know, but I think what the war in Gaza [9:44] it it it the United States is implicated [9:46] in that in a different way. [9:48] >> I think foreign policy on the left, the [9:50] response of foreign policy, and here I [9:52] don't mean the Democratic Socialists [9:53] left, I mean like the broad tent of the [9:55] Democratic Party, including, you know, [9:57] moderates, leftists, [9:59] all these folks. [10:01] I think what comes next is very [10:02] unsettled after the failures of the [10:04] Biden era or what are perceived as the [10:06] failures of the Biden era, what I [10:07] perceive to be the failures of the Biden [10:09] era. [10:10] And of course then the [10:12] just wanton [10:14] corruption and aggression [10:17] and unilateralism of the Trump era, [10:19] where it's like, if we want Maduro, we [10:20] just go in and take him. [10:23] And one thing I see people trying to [10:25] explore is could the next move just be [10:30] follow the rules? [10:31] So, Abdul El-Sayed, who's now the [10:33] Democratic nominee for governor [10:36] he was asked in a newspaper kind of [10:38] editorial board interview [10:40] how he would make decisions about [10:41] military aid and getting into conflicts, [10:43] and his answer was, quote, [10:45] "International law. I believe we ought [10:46] to be first among equals to enforce [10:48] international law. We worked really hard [10:51] after the worst World War in human [10:52] history to build all these institutions, [10:55] to build all these frameworks [10:56] and then we became the chief violator of [10:58] all the frameworks. So, the thing I see [11:00] sort of happening, you know, [11:02] more on the left side of the party, but [11:03] not only, is saying, 'The structure is [11:06] already there. [11:07] We just need to follow it and believe in [11:10] it.' [11:11] And I guess my question for you as [11:12] somebody who has really been covering [11:15] the debate inside international law of [11:16] what it can and can't do is, [11:18] does it have that strength in it? Can it [11:20] be enough of an answer [11:22] to these problems? [11:23] >> Not in and of itself. You know, and I [11:25] think the key [11:27] phrase in his response is first among [11:29] equals, right? If the United States I I [11:31] think at this point the ship has sailed [11:34] and it's it's [11:36] the extent of the destruction of United [11:39] States participation in these [11:41] international courts and institutions [11:42] has been so grave. You know, of course [11:44] the rest of the world is now on notice [11:46] that you know, we can't be relied upon [11:48] to uphold any commitments that would [11:50] result and that's always been the case. [11:53] Um and I think you know, to say that [11:56] your policy is going to be international [11:57] law, that can mean any number of things, [11:59] right? As we were just discussing, it [12:00] can also sanction crimes. Um of course [12:03] that's not what he means. [12:05] But I think this idea that you can [12:08] return to a world in which the United [12:10] States is leading the charge to [12:12] strengthen [12:14] the rule of law on the global stage um [12:18] given the situation we're in is perhaps [12:19] far-fetched. However, I think there's no [12:21] question that the field [12:24] is in need of regeneration and a lot of [12:26] people are calling for that. What form [12:28] that will take, I think is [12:30] is [12:31] the the crux of the problem. [12:33] >> Well, let me let me make the argument [12:36] for the rules for a minute to see how [12:37] you respond to it. [12:39] You know, [12:40] one argument that [12:41] uh I've heard people like Robert Wright [12:43] make and others is that America would be [12:46] much better off over its past [12:49] 20-some years [12:51] if it had just followed the rules. [12:54] If when it couldn't get UN authorization [12:57] to enter Iraq [12:58] >> Mhm. [12:58] >> it didn't. [13:00] >> [snorts] [13:00] >> That I mean for that matter, there would [13:02] not have been UN authorization to enter [13:04] Iran and I think frankly the Trump [13:05] administration would be better off if it [13:07] had accepted that. [13:09] >> Right. [13:09] >> And so one argument that I take fairly [13:12] seriously [13:14] is uh I just did a big piece on on the [13:16] Odyssey and that one value of [13:18] international law to a superpower [13:20] is actually that it ties it to the mast. [13:23] That that is not a drawback. That in [13:25] fact it is when we think we can do [13:27] anything and should that we make our [13:29] worst mistakes in international law and [13:32] procedures and institutions [13:35] and for that matter Congress impose a [13:38] restraint [13:39] >> Absolutely. [13:39] >> would otherwise be easy to forget [13:42] and more of our recent terrible errors [13:45] seem like they have come from [13:48] the absence of restraint [13:50] rather than an excess of it. [13:52] >> Yeah. [13:53] No, I think that's that's very fair and [13:55] and perhaps true. Although of course we [13:57] don't know what the counterfactual would [13:59] be. I guess I would say that the kind of [14:03] legislative power of Congress is indeed [14:06] really powerful and should be used as a [14:09] mechanism of restraint. And I think we [14:12] would not be better off in a world in [14:15] which these international laws did not [14:16] exist. Like I think the the what you [14:19] could call the cynical argument that [14:20] they have only made the world world [14:22] worse is is unjust. Um and I think [14:25] that's kind of not born out in what we [14:26] see and I think people are better off [14:28] for being able to name a genocide when [14:30] it occurs and to claim human rights even [14:32] in the breach, right? Even when they're [14:34] not enforced. [14:35] Um I guess what I'm saying is that it's [14:37] not going to be sufficient just to say, [14:40] "Oh, let's go back to that." Right? [14:41] Because that world has gone and we need [14:43] to kind of [14:45] confront the new political reality in [14:47] which these things have been weakened. [14:49] >> One of the things that has been on my [14:51] mind is [14:52] I don't know. I've become old enough now [14:54] to have lived through a couple of cycles [14:55] in foreign policy history. [14:58] And I moved to a Washington in 2005. And [15:00] so obviously it's the post-9/11 period. [15:02] >> Yeah. [15:03] >> But one memory that is occurring in that [15:06] period and certainly uh the the years [15:08] before 9/11 [15:10] is the '90s. [15:11] >> Mhm. [15:12] >> When the feeling at in some ways this is [15:15] like the apex of the world quote unquote [15:16] respecting international law. [15:18] >> Mhm. [15:19] >> And the big critique [15:21] is that the UN and these systems were [15:24] not able to move fast enough or clearly [15:27] enough to prevent terrible massacres in [15:30] Rwanda and Yugoslavia. [15:32] And that, you know, I recently read a [15:34] George Packer's really fascinating, I [15:36] really recommend this book to people, [15:37] biography of Richard Holbrooke called [15:38] Our Man. And it's all about sort of him [15:40] like trying to work around this to stop [15:42] massacres. [15:44] And so I remember a period when the [15:46] people who understood themselves as [15:47] humanitarians, [15:49] their big critique was that the rules [15:53] just didn't work. There was too easy to [15:54] tie things up in process and Security [15:57] Council vetoes. [15:58] >> Yeah. [15:59] >> And and sort of now the people who are [16:00] humanitarians [16:02] are sort of taking refuge in at least [16:04] what international law is supposed to [16:05] do. [16:06] >> Mhm. [16:06] >> So how do you balance that? [16:09] >> Yeah, well, I think you're pointing to [16:11] this a moment also when we started to [16:13] see the split in the field between [16:17] this perception of international law as [16:20] something that indeed can prevent and [16:22] punish the worst atrocities. [16:24] Uh and something that actually provides [16:26] license to states to commit those crimes [16:29] by essentially codifying how they can do [16:32] it within the realm of {quote} legality. [16:35] Um and I think, you know, in the '90s, [16:38] you know how you have the Kosovo crisis. [16:41] >> United States forces acting with our [16:44] NATO allies [16:46] have commenced air strikes [16:49] against Serbian military targets in the [16:51] former Yugoslavia. [16:52] >> The first time in its 50-year history uh [16:55] that the military action would be an [16:57] offensive action and against a sovereign [17:01] country. [17:01] >> UN Secretary-General Kofi Annan, while [17:03] saying this may be a legitimate use of [17:05] force, questioned NATO's decision not to [17:08] seek Security Council approval. [17:10] >> Under the charter, [17:12] the Security Council has primary [17:14] responsibility [17:15] for maintaining international peace and [17:18] security. [17:19] Therefore, the council should be [17:21] involved in any decision to resort to [17:24] force. [17:25] >> You know, the ICJ judge Hillary [17:27] Charlesworth talks about this moment as [17:29] kind of formative for the perception of [17:31] international law as this heroic [17:33] endeavor and international lawyers [17:35] coming to save the world, right? And [17:37] that draws a lot of people to the [17:39] discipline even then even after then it [17:42] becomes very clear that that was a kind [17:44] of extra-legal operation. Um and so you [17:47] constantly have these moments of [17:50] international law responding to crisis [17:52] and then kind of confronting its own [17:55] ruin. And that you see that throughout [17:56] the 20th century. [17:58] >> Tell me more about what is something you [17:59] just kind of touched quickly, which is [18:02] the way in which these structures of [18:04] legality [18:05] have also created ways to [18:08] open legal space maybe for things people [18:11] consider atrocious. [18:13] >> Abs- I mean, I think you just the most [18:16] evident place you see this and perhaps [18:18] that listeners would be familiar with is [18:19] the [18:20] standard of intent for proving genocide. [18:23] And if it falls short of that standard, [18:25] then you don't have the grounds for [18:27] conviction on that crime. [18:28] >> Right, if their intent is to destroy [18:29] Hamas, even if what they do is genocidal [18:33] from one perspective, in theory the ICJ [18:36] would not consider it would not rule it [18:38] genocide. [18:38] >> Exactly. And so And the other example of [18:41] this is, you know, if it's a [18:43] you know, a quote legitimate military [18:45] target, you can explain it away if [18:47] you're attacking it [18:49] um [18:50] and avoid legal accountability in that [18:52] way and we've seen that [18:55] uh qualification exploited all around [18:57] the world and continue to see that [18:59] happening. And so it's these very [19:00] bureaucratic legalistic terms that when [19:03] you hear them explained of as like this [19:05] is why this doesn't qualify as genocide, [19:07] for example, [19:08] to people on the street, that just seems [19:10] like a moral abrogation often-times. [19:13] >> Um when we were prepping uh [19:15] for this episode, my producer um Jack [19:17] McCordick uh had me reread the speech [19:21] Barack Obama gave when he was somewhat [19:23] wildly given the Nobel Peace Prize like [19:25] upon taking office. [19:27] >> And he gives this very strange like [19:29] particularly in retrospect very playing [19:32] both sides of the argument speech where [19:33] he talks about himself as a sort of [19:35] direct descendant of Gandhian of [19:37] Gandhian and King Kingian non-violence [19:40] and and and that movement. [19:41] >> I am living testimony to the moral force [19:45] of non-violence. [19:47] I know there's nothing weak, nothing [19:49] passive, [19:50] nothing naive [19:52] in the creed and lives of [19:54] Gandhi and King. [19:56] >> But also that there is no [19:59] peace without America's ability to [20:01] enforce that peace, that treaties are [20:03] not what ended World War II, that force [20:05] is what ended World War II. [20:06] >> As a head of state sworn to protect and [20:09] defend my nation, [20:11] I cannot be guided by their examples [20:13] alone. [20:16] I face the world as it is [20:18] and cannot stand idle in the face of [20:20] threats to the American people. [20:23] For make no mistake, evil does exist in [20:25] the world. [20:28] A non-violent movement could not have [20:30] halted Hitler's armies. [20:33] Negotiations cannot convince Al-Qaeda's [20:35] leaders to lay down their arms. [20:39] To say that force [20:41] may sometimes be necessary is not a call [20:43] to cynicism, it is a recognition of [20:45] history. [20:46] >> And he really gives this defense of [20:47] America as like the indispensable [20:50] superpower that is needed to make any of [20:54] these ideals [20:55] real. But then you're sort of back [20:58] [laughter] in this like endless [21:00] >> Totally. [21:00] >> you know, run around of a what happens [21:02] if you know, you can't get the UN [21:04] Security Council to bless your military [21:07] intervention and you know, against [21:09] >> Yeah. [21:10] >> Russian aggression in Ukraine. Like [21:11] >> Yeah, totally. And I think in that [21:12] speech he also I if I'm recalling [21:14] correctly, he speaks of, you know, the [21:16] necessity of being both an idealist and [21:18] a realist and of not committing to [21:20] either one of those ideologies and [21:21] letting it blind you perhaps. And you [21:24] know, this idea of the kind of [21:25] self-enlightened [21:26] state hegemon who, you know, follows [21:29] international law. Of course, there's [21:31] the question if, you know, he was making [21:33] the argument we can't pretend that this [21:35] edifice hasn't been upheld for the past [21:37] 60 years without American strength and [21:39] power. And then of course now we are [21:42] confronting a world in which we are no [21:44] longer self-enlightened in that way [21:46] perhaps and explicitly destroying all of [21:48] these commitments or saying, you know, [21:50] perhaps they're not relevant anymore. [21:53] And we are I think, you know, in Iran we [21:56] are seeing the implications of that [21:58] abnegation. [21:59] >> And you did this big piece for Guardian [22:01] long reads. I think it was titled, are [22:03] we witnessing the death of international [22:05] law? [22:06] >> Yeah. [22:06] >> Tell me why. [22:08] >> [gasps] [22:08] >> Well, I think [22:11] that was brought about by the Trump [22:13] administration's [22:15] kind of [22:16] uh, explicit [22:18] rejection and withdrawal of from these [22:21] conventions and treaties and hostility [22:23] towards all these institutions that you [22:27] know, are the physical embodiments of [22:28] international law as we think of them. [22:31] And I think [22:33] you know, with um, Secretary of State [22:35] Marco Rubio announcing this campaign to [22:37] dismantle the ICC [22:39] that has led people to say, oh, is [22:42] international law a dead man walking, [22:44] right? Can the US actually take this [22:46] down? Um, and the answer is [22:49] it's not the it's not up to the United [22:51] States to dismantle it. We are not a [22:52] party to the ICC and we haven't been for [22:54] some time, but what's happening is we're [22:56] making it very, very difficult for it to [22:58] operate through sanctions on the sitting [23:00] judges. They can't, you know, use their [23:03] credit cards. They can't use American [23:04] technology. [23:06] They've spoken about this at length. [23:08] >> It's worth to stand for a minute that [23:11] we are sanc- we are treating [23:14] the judges of the International Criminal [23:16] Court [23:17] like they are top members of Vladimir [23:19] Putin's government. [23:20] >> Yeah. [23:21] >> We are are using punitive tools to harm [23:26] them for what? Well, what is our [23:29] What is our description of why we are [23:30] sanctioning [23:32] duly appointed judges of the ICC? [23:34] >> Because of this perceived threat that [23:36] the court poses to [23:39] I mean, the language that the State [23:41] Department has used in its messaging has [23:43] been about this perceived threat to [23:45] American personnel and allies, right? [23:47] So, we could think of the arrest [23:49] warrants for Benjamin Netanyahu and [23:51] Gallant. But, I think it's also [23:53] important to to note that this isn't the [23:54] first time that this has happened. You [23:57] know, the under Bush, the United States [24:01] nullified its signature to the Rome [24:04] Charter, which is what [24:06] established the ICC. And John Bolton at [24:08] the time said that uh [24:11] the United States would make the ICC [24:13] wither and collapse. [24:14] >> We will not cooperate with the ICC. We [24:17] will provide no assistance to the ICC, [24:20] and we certainly will not join the ICC. [24:25] >> [applause] [24:32] >> We will let the ICC die on its own. [24:36] After all, for all intents and purposes, [24:39] the ICC is already dead to us. [24:41] >> So, this is, you know, Rubio might have [24:43] said we're going to take apart the ICC [24:45] brick by brick, and and they might very [24:47] well be committed to doing so, but but [24:49] this is not a kind of [24:51] uh [24:52] anomaly. [24:53] >> But, what sort of odd about it is that [24:56] at the same time that we have this [24:57] intense hostility towards it, [25:00] you will also see them flip [25:02] at weird moments. Like Lindsey Graham [25:03] was very excited about the judgments [25:07] rendered against Putin. [25:08] >> Yeah. [25:09] >> Senator Lindsey Graham says Russian [25:10] President Vladimir Putin should be [25:12] investigated for war crimes, and he is [25:14] urging the Senate to pass a resolution [25:17] supporting an International Criminal [25:19] Court investigation into Putin and his [25:22] regime's quote war crimes against [25:24] humanity and war crimes against the [25:26] people of Ukraine and others, close [25:28] quote. [25:29] >> I think it is in America's interest to [25:30] make sure that Putin, who is now has an [25:33] arrest warrant [25:35] issued by the ICC for his war crimes, [25:37] that we do not forgive and forget as a [25:39] nation, and we help the international [25:41] community. [25:42] >> And Graham was no friend of the ICC. He [25:44] was not saying America should become a [25:45] signatory to it, but then he was saying, [25:47] well, you know, if we can arrest Putin [25:49] for it, we should. [25:50] And you you sometimes get this movement [25:54] where, you know, even inside the [25:56] Republican Party where there can be this [25:57] remarkable hostility to the ICC, [26:00] that well, when they like [26:02] >> Yeah. [26:03] >> a ruling [26:04] or they see it as useful. And by the [26:06] way, from other countries, too. Nothing [26:08] Putin loves accusing America of, like [26:10] violations of international law, that [26:13] that there is this constant what is it? [26:15] Hypocrisy is the tribute vice pays to [26:18] virtue that happens in the way people [26:20] talk about this. [26:21] >> Yeah, and that is a way of using [26:23] international law to serve the ends of [26:25] power, right? Of course, when it's being [26:26] used against [26:28] our enemies, we can say, yeah, great. [26:31] Uh, issue the arrest warrant. And it's a [26:33] different thing when, you know, in the [26:35] history of US policy, it's a different [26:37] thing when it's been wielded against our [26:39] own [26:40] um allies and personnel. And, you know, [26:43] famously, we have what's called the [26:46] Hague Invasion Act that allows us the [26:48] authority, or that Congress has given [26:50] the authority for the US to literally [26:52] invade The Hague to extract US personnel [26:55] who hypothetically would have been [26:57] arrested by the court. [26:59] >> You wrote a a great piece about what [27:00] gets called flexible realism. The Trump [27:02] administration's flexible realism, which [27:05] I think in practice is a license to do [27:08] whatever you want. [27:09] >> Mhm. [27:09] >> Well, there's a German word you had in [27:11] that piece. [27:12] >> Machtpolitik. [27:12] >> What is Machtpolitik? Could you define [27:14] that for a second? [27:15] >> Yeah, yeah, yeah. And so so that comes [27:16] from the scholar Patrick Porter who says [27:18] this is the corrupt cousin of realism, [27:20] right? It's when it precisely when the [27:22] restraints have been blown away, when [27:25] power is no longer cognizant of its own [27:27] limits, and that's when it really starts [27:29] to make mistakes. And so you know, [27:31] everyone quotes Thucydides, you know, [27:33] that [27:34] the strong will do what they will and [27:36] the weak will suffer what they must as [27:38] this kind of creed of realism. And [27:40] actually that's a warning that [27:42] unrestrained power leads to the demise [27:44] of a of a nation. And so I think that's [27:47] what he's saying is there's this kind of [27:49] idea that if you have a form of politics [27:52] that's purely driven by strength and the [27:55] will to power, that is a quick way to [27:57] reach your own demise. [27:59] >> And so you have that on the one side, [28:01] which I think is a little bit of what [28:04] we're seeing play out in Trump's foreign [28:05] policy. I don't think it is ended up [28:06] being enhancing for American power, but [28:09] certainly their belief in it, what they [28:11] have articulated to me personally about [28:13] their belief, [28:14] is it America had all of this surplus [28:17] power that it was not using because it [28:21] was tied up in all these international [28:23] forums and agreements. And they were [28:25] going to use that power, and America was [28:26] going to exercise its [28:29] will upon the world [28:30] >> Mhm. [28:31] >> in a way that these weak knee liberals [28:33] and leftists were were not allowing it [28:34] to do. [28:35] And so then you see emerging on the [28:37] other side something that would much [28:39] more subordinate America's power, even [28:41] beyond where it was in, you know, the [28:43] Obama or Biden or Clinton conceptions of [28:45] foreign policy, which is we should [28:47] really follow international law. We [28:49] should follow the rules if we want to do [28:51] something even we think it is moral or [28:54] right or good [28:55] and we cannot get the UN to say yes to [28:57] it or we cannot get NATO to say yes to [29:00] it or we cannot get Congress for that [29:01] matter to say yes to it, we should not [29:04] do it even if we find that frustrating. [29:06] >> Mhm. [29:07] >> And so it actually seems to me like the [29:09] foreign policy visions that are emerging [29:12] are actually much more polarized [29:14] about how American power should be used [29:17] than at other times at least in my time [29:19] covering foreign policy. [29:21] >> Yeah, I mean I think there's a debate [29:22] about whether what you call a [29:24] subordination to international law is a [29:26] limitation of power rather than an [29:28] expression of it, right? I think there's [29:30] this [29:31] you could and I think, you know, this is [29:34] some realist express this view that [29:35] international law can be a tool of power [29:37] and that we are weakening ourselves when [29:39] we do not subscribe to it and we do not [29:41] play the game. You know, you see China [29:44] expressing power by trying to actually [29:46] influence how international law is [29:48] conducted and what definitions it uses. [29:51] For example, one of the things that [29:53] they're [29:53] you know, guarding is this um principle [29:56] of sovereignty. That's a very, very [29:58] important to them and so by [29:59] strengthening the international [30:00] commitment to sovereignty, which of [30:02] course [30:03] um has implications for their own [30:05] policy, you kind of see them [30:09] establishing themselves as [30:11] the leader in the field in the way that [30:13] the United States used to be. [30:16] They're kind of demonstrating how you [30:18] can flex muscle by participation and not [30:20] by absence. [30:22] >> But to to push on that, China, to the [30:24] extent they are stepping into the breach [30:26] left by America, is pushing a more is [30:29] pushing a vision of the rules that is [30:31] less about the application of values or [30:35] morality and more about the [30:37] strength of territorial borders. [30:39] But do they believe it? Do they believe [30:41] in that with Tibet? Do they believe in [30:43] that with Taiwan? Have they been all [30:45] that critical of Xi's dear friend [30:47] Vladimir Putin entering Ukraine? [30:50] Certainly they say that, but when I look [30:52] at China's behavior, I don't see [30:56] at the very least it seems there's a [30:57] large loophole for if you say those are [30:59] not real borders, that's ours. [31:02] Well, who's a who's going to stop you? [31:04] >> Yeah, totally. And I think what that's [31:05] getting to is this this perception that [31:07] international law is not completist, [31:09] right? Like it's full of loopholes, it [31:11] is full of hypocrisies. [31:13] You know, when I spoke to John [31:15] Mearsheimer, who's one of the most [31:16] prominent realist in the country, he [31:17] said, "Of course, you know, we subscribe [31:19] to international law when it suits us." [31:21] Um, and I think China is showing that [31:23] also. [31:24] And that gets back to this question [31:25] about international law as an expression [31:27] of power and as a vehicle of power. [31:30] Um [31:30] >> I want to stay for [snorts] a second [31:31] though on this question of [31:32] perhaps sovereignty as a principle [31:34] because one thing that I was thinking [31:36] about as you began talking about China [31:37] is it yes, you can say that the way [31:41] China frames its relationship to [31:43] international law, [31:45] whether or not they really believe in [31:46] sovereignty as maybe it looks to me is [31:48] questionable, fair enough. [31:50] On the other hand, some interesting [31:52] convergence here. So, Samuel Moyn and [31:54] Oona Hathaway, who are two scholars I [31:56] have great respect for. Oona Hathaway's [31:57] been on the show. [31:59] They wrote a piece in The Guardian about [32:01] what the post-American world order [32:02] should look like. You tweeted it out in [32:04] a very approvingly. And as I read that, [32:07] it was a much more parsimonious, [32:09] much thinner conception of like what the [32:11] agreements should be that were really [32:13] based on sovereignty. It was a sort of [32:14] an anti-war pact. So, can you maybe [32:16] explain what their vision looked like [32:19] and what you found interesting in it? [32:21] >> Well, I think what [32:23] what I took them to be saying is that [32:27] we should almost kind of return to brass [32:29] tacks and kind of um [32:33] not discount international law as a [32:36] meaningful force in the world. And I [32:38] think what I am concerned about is that [32:41] when people see it not working, um for [32:44] example, you know, in Gaza or in [32:47] Ukraine, and it's in its conspicuous [32:49] failure to hold back these terrible [32:51] atrocities, that they will discount it [32:53] entirely. And and in my conversations [32:55] with particularly American lawyers, you [32:58] know, sometimes [32:59] they say, "Oh, international law is a [33:01] joke. It doesn't exist." And that is [33:02] coming from the position of that jamon, [33:04] right? position of strength and power. [33:06] It's not something that you hear in [33:07] other parts of the world, generally [33:09] speaking. And I think what they are [33:11] saying is, "No, it absolutely does [33:12] exist, and it should be preserved, but [33:14] it can't we can't return to this kind of [33:16] fantastical vision of a liberal [33:18] internationalism that has proven quite [33:21] destructive in many ways." [33:22] >> So, you should go back not to where you [33:25] have maybe criminal courts and all these [33:27] different treaties, but just saying This [33:30] is me characterizing what I thought I [33:31] was reading, but I'm not a international [33:33] lawyer. [33:34] That the agreement should be, "We don't [33:35] invade each other." [33:37] >> Yeah, and and returning to the taboo [33:39] against the crime of aggression and of [33:41] conquest, right? Which has been totally [33:43] blown out of the water in recent years. [33:45] >> But then I think you immediately get [33:47] into this question, which I take as [33:48] maybe one of the fundamental questions [33:50] of foreign policy of international law. [33:52] What do you do when it is [33:54] violated? [33:55] What is law without the police? What is [33:58] law without enforcement? [34:00] I think there is a particular [34:04] challenge [34:05] >> Mhm. [34:05] >> that uh people of a liberal persuasion [34:07] face right now. [34:09] And here I mean like broadly liberal, [34:11] liberal in a way that, you know, unites [34:13] left and moderates and just kind of [34:14] people who believe in both domestic and [34:17] international rules. [34:19] Which is all these systems, from our [34:22] courts to the UN, the ICC, [34:26] we have these kind of beautiful values [34:29] that then need to be made real in the [34:30] world through flawed institutions run by [34:33] human beings. [34:34] >> Yeah. [34:35] >> And because the [34:38] sort of the broad left has become the [34:40] party that is in the institutions, [34:42] right? People who believe in People [34:44] become human rights lawyers and [34:46] international law experts, [34:48] they fundamentally believe in it. And so [34:50] their friends are in these institutions. [34:52] You get really like caught in the [34:55] questions of proceduralism. [34:57] >> Yeah. [34:58] >> But let me drop us like a a level [35:01] beneath. [35:02] What are the values at the base of all [35:03] this? When people were building this [35:05] system, you've written beautifully about [35:08] the history here. [35:09] Maybe in a way that like almost now [35:11] sounds naive. Like what were they trying [35:13] to achieve? [35:14] >> [snorts] [35:14] >> They were trying to uh [35:16] realize a liberal order in which [35:18] >> [gasps] [35:19] >> uh violence would no longer be the way [35:21] that states would settle disputes, [35:23] right? There was this notion of [35:25] peace through law, very romantic ideal. [35:28] And [35:30] you know, the philosopher Judith Shklar [35:32] writes about how this idea of law above [35:35] all, legalism, became inseparable from [35:38] liberalism. [35:39] >> [snorts] [35:39] >> Um and I think [35:41] what you were speaking about about this [35:43] kind of turn to proceduralism [35:46] um and this emphasis on on bureaucracy [35:49] that often, you know, law gets so caught [35:50] up in this and and it also makes it hard [35:52] to [35:53] hard to understand from the outside [35:56] >> [sighs] [35:57] >> that that is actually where precisely [35:59] these like moral values that undergirded [36:01] the project in the first place get lost [36:02] and get drowned out. And you know, I [36:05] think often about the fundamental [36:07] problem [36:09] of all law, not just international law, [36:12] uh is how do you [36:16] uh make moral wrongs, wrongs that exceed [36:21] our capacity really to understand and [36:24] certainly punish. [36:26] How do you nevertheless make them [36:28] legible in this extremely brittle and [36:30] perfect system that we have created, you [36:32] know, and um [36:34] there's this wonderful scholar at [36:36] Yeshiva University who many years ago [36:38] about the Eichmann trial wrote that [36:39] we've never escaped the problem of the [36:41] Oresteia, the Aeschylus play, that the [36:44] submission of moral wrongs to a legal [36:46] order, and that's where we're constantly [36:48] fighting this battle to end the cycle of [36:49] vengeance. [36:51] And our legal systems are constantly [36:53] showing themselves to be [36:56] inadequate, but also to hold this [36:58] strange power that we don't always know [37:00] how to use. [37:01] >> I I want to stay on this idea of the [37:03] moral wrongs, and what are we really [37:05] trying to do with them? [37:06] >> Yeah. [37:07] >> I think that there is a deep ambiguity [37:11] about whether the underlying values here [37:14] were about a system in which certain [37:18] things could not happen, [37:21] a system in which there was redress for [37:24] those things, [37:25] >> Mhm. [37:26] >> or is what we're really in the end [37:28] arguing about the historical memory of [37:29] them? [37:31] Right? And those are all different kinds [37:32] of operations. And And And maybe the way [37:34] I'd put this, to put it in in the terms [37:36] I think that we're really arguing in [37:37] now, [37:38] there's a question of, you know, Hamas [37:40] attacks on October 7th. There's [37:42] obviously deep history in that conflict, [37:43] right? You know, there's occupation, [37:45] there's all there's a lot of legal [37:47] rulings there. [37:47] >> Mhm. [37:48] >> But within international law, like [37:50] Israel was able to respond. I think the [37:52] view is they've gone [37:54] >> Right. [37:54] >> way too far into a kind of barbarism in [37:56] Gaza. [37:57] But what would like redress mean? But [38:01] then I think there's also this question [38:02] that is operating with particular force [38:03] there of [38:05] what is the meaning of it all? And I [38:07] think genocide in particular, the reason [38:09] that has been, [38:11] you know, such a white-hot debate, [38:14] >> Yeah. [38:14] >> is because if genocide is proven, [38:19] it changes the meaning of Israel, right? [38:21] It It changes its what it exists in as [38:24] historical memory, right? The real [38:25] punishment [38:26] >> Mhm. [38:27] >> is what you mean. [38:30] >> Yeah. [38:31] >> Going forward, right? If Israel is a [38:33] country formed out of genocide and then [38:35] also one of the very few proven guilty [38:37] of it. [38:38] >> Yeah. [snorts] [38:39] >> Then what is Israel? [38:40] But it it's really in a way I feel like [38:42] so much of the the fights right now are [38:44] like can you use international law to [38:46] impose a meaning on things that have [38:48] happened? [38:49] >> Mhm. [38:49] >> So that it exists as a warning to [38:51] others. [38:51] >> Absolutely. And I think, you know, the [38:53] symbolic value of a genocide ruling in [38:56] the ICJ cases about Gaza cannot be [38:59] underestimated. What that would do [39:01] for everyone involved and, you know, I [39:04] often think about um [39:07] you know, the the legal scholar Leila [39:09] Sadat who's really pushing for [39:12] a convention for crimes against humanity [39:14] to make them legible before the ICJ to [39:15] be able to bring suits before them. That [39:18] would correct this, you know, elevation [39:19] of genocide as the kind of crime of [39:22] crimes. Um [39:24] but she's she argues that the genocide [39:26] convention has become a memorial to the [39:28] Holocaust be precisely because it hasn't [39:31] been able to be used and we only have [39:33] one decision from the ICJ in the Bosnia [39:36] versus Serbia case [39:38] that some people have pointed to as a [39:40] precedent for what might happen [39:43] in the litigation against Israel. [39:47] Um I think you're right. I mean, these [39:48] are all questions about historical [39:52] memory and with this question of [39:54] prevention [39:56] one of the sitting judges on the ICJ in [39:58] his in one of his rulings at the very [40:00] end he said, you know, after describing [40:04] all of the crimes that had been [40:05] committed and all of the violations and [40:09] he ended and he said the court is just a [40:11] court, you know, there is a limit to its [40:13] power. [40:14] Um and I I [40:15] we have to think about what happens [40:18] outside the court of law, right? This [40:20] this you know, if we talk about only [40:22] what international law can and cannot [40:23] do, then we get right back into [40:25] legalism, right? [40:26] >> Well, well, this to me is is one of the [40:28] places where maybe this conversation is [40:30] bearing more weight than it can hold. [40:33] You know, you imagine a world where the [40:35] ICJ [40:37] rules [40:39] that [40:41] maybe entirely or at least for the most [40:43] part [40:44] that what Israel plausibly believed it [40:47] was doing was destroying Hamas, which [40:48] was embedded in civilian populations. [40:50] >> Yeah. [40:51] >> And so, what they did is the same either [40:53] way, but it cannot be proven as [40:56] genocide. [40:58] So, one, I don't think any of the people [40:59] who believe it's genocide would say [41:01] after that [41:02] "Well, never mind. We went to the [41:04] international courts, the courts ruled, [41:06] you know, without fear or favor, [41:08] and um [41:09] we're willing to say maybe that went too [41:11] far, but it's not a a genocide." [41:14] But on the other side [41:16] what people really wanted, I think [41:19] was not law, but leadership. [41:22] >> Mhm. [41:23] >> That international law is not preventive [41:25] in this way. [41:27] And I think so much of the fury that is [41:29] actually exploding apart the Democratic [41:31] Party right now [41:32] is you know, it's such a strange thing. [41:34] It's like Joe Biden had few bigger [41:36] supporters, particularly at the end, [41:37] than Bernie Sanders and Ocasio-Cortez [41:39] and and that the left. [41:42] >> And yet it was, you know, Biden's [41:43] administration that in many that as much [41:46] as anyone did allow this to happen, [41:48] abetted this happening. [41:50] And I I I think that what is sort of [41:53] operating, but without people having [41:55] exactly the way to say what it means in [41:57] policy, is [41:58] they want to see leadership that would [42:00] not accept that again. [42:03] And that it's not that it's bound by any [42:05] one rule or any one law. [42:07] >> Mhm. [42:07] >> But that it is [42:09] But like how do you see if there is [42:11] agreement on morality? Because I think [42:14] some of the split in the Democratic [42:15] Party is that it turned out there [42:16] wasn't. It turned out what some people [42:18] thought was like unimaginable. [42:21] >> Mhm. [42:22] >> And what other people thought was just [42:23] part of war were different. [42:26] >> Yeah, I think there's this [42:28] unquestionable desire for leadership. [42:31] And you know, I was even thinking about [42:33] this um [42:35] I think most people go about their lives [42:37] and they're not aware of the ICJ. They [42:38] don't think about it or like ICC for [42:40] that matter. And [42:42] but there were a few weeks when those [42:44] proceedings were not only you know, on [42:46] the front page of the New York Times, [42:47] but also [42:48] people were waiting outside the Peace [42:50] Palace in The Hague watching a kind of [42:53] live stream waiting for a more moral [42:55] verdict that wasn't going to come at [42:57] least certainly not on that day. And as [42:59] you say, certainly not soon. [43:01] Um I think [43:02] you know, it's not going to be [43:05] salvific, right? Whenever whatever [43:08] judgment comes [43:10] and whatever political resolution, [43:13] right? Whatever policy changes I think [43:15] the Democrats need to make and will make [43:17] come of this [43:18] uh will not [43:20] >> [sighs] [43:21] >> undo the the harm done. Um I think like [43:24] this is when we start thinking about [43:26] international law as a kind of tragic [43:28] field. [43:30] Um [43:31] and [43:32] I think the kind of void of leadership [43:35] that we are experiencing now is almost [43:38] reflective of this inability to kind of [43:42] articulate the tragic nature of it uh in [43:44] politics. Because that's that's anathema [43:46] uh to how we normally think about um [43:50] the messaging that we want our [43:51] politicians to evince. [43:52] >> Well, I think it it goes to something [43:54] you were saying earlier about [43:56] why [43:58] why in American politics [44:01] Russia's invasion of Ukraine [44:04] and um Israel's reprisal in Gaza feel [44:07] different. [44:07] >> Yeah. [44:08] >> Because we were not able to stop [44:10] Russia's invasion of Ukraine. [44:12] We have certainly hindered it. [44:14] >> Mhm. [44:15] >> But the difference is there isn't a [44:18] feeling of complicity in it. [44:21] And to some degree I think that means a [44:23] lot in politics, right? People have this [44:25] question [44:26] like, well, what is America? [44:28] >> Mhm. [44:29] >> Now, I don't know. I I I I'm not 100% [44:32] sure this is true because I think there [44:33] is something about and has for a long [44:36] time and something about Israel that [44:37] attracts [44:39] attention and interest and, you know, I [44:40] know people would say it's [44:41] anti-Semitism. I think it can be that, [44:43] but I think it's also much more [44:44] complicated than that and it has to do [44:45] with ties and affinities. It also comes [44:48] in positive attention, right? Where [44:50] people have like a deep relationship to [44:52] Israel in America that they don't have [44:53] in other countries. [44:55] But nevertheless, if there is like a a [44:57] question of [snorts] [44:59] what does it say about who we are? [45:01] >> Mhm. [45:02] >> And what does it say about what our [45:04] foreign policy [45:06] is. [45:07] And that feels like the the like the [45:09] deeply unanswered [45:11] question. [45:12] >> Right. And and [45:15] I think, you know, we're kind of seeing [45:17] that play out, particularly if you look [45:19] at Ukraine right now. [45:20] Um where you have what was a war of, you [45:24] know, is [45:25] a war of self-defense, kind of, you [45:27] know, trying to preserve Ukrainian [45:29] sovereignty that will [45:31] certainly end if it does end, if we can [45:33] speak of an end in an unjust peace, [45:35] right? It will be kind of negotiated [45:37] settlement. We're already seeing [45:40] that the terms are likely to be [45:41] favorable to Russia. [45:43] And you know, in Gaza [45:47] the terms with which the Trump [45:48] administration has kind of spoken about [45:52] an end, bringing an end um [45:55] to that conflict have similarly kind of [45:58] almost completely discounted the [45:59] sovereignty of the Palestinian people [46:01] and [46:02] I think, you know, I've long been [46:04] fascinated by this question of endings [46:06] and how we now live in this era of [46:09] of wars with no discernible end that [46:12] make, you know, making these moral [46:15] moral judgments and categories very [46:16] difficult. [46:17] >> What do you mean we live in an era of [46:19] wars with no discernible end? How How is [46:20] this era different than what's come [46:21] before it? [46:22] >> I think, you know, well, and I I have [46:24] written about how ceasefires have, you [46:26] know, and have become a replacement for [46:29] lasting peace settlements. And I was [46:30] really struck by this when, as part of [46:33] the kind of protests [46:35] against the war in Gaza, the the kind of [46:39] prevailing slogan was ceasefire now. And [46:42] ceasefire now, that's very powerful. [46:44] That stops the violence, you know, you [46:45] know, you need a ceasefire first and [46:47] foremost, but that's not the same as [46:50] saying we are going to put a stop to [46:52] this conflict. That is essentially [46:53] saying we are going to stop it for now. [46:56] Um [46:57] and, you know, [46:59] ceasefires almost always break down, and [47:02] it it almost kind of [47:04] um serves as an excuse for [47:08] um [47:09] sidestepping the more difficult [47:11] political questions and moral questions [47:13] that always come to light in these [47:15] events. [47:16] >> Why do you think that there's been this [47:18] turn in international relations away [47:20] from [47:21] actual settlements and towards [47:23] ceasefires and interim deals and [47:27] kind of periods of quiet rather than big [47:29] negotiated finality? [47:31] >> Well, I mean, we're not we're no longer [47:34] in this kind of [47:35] There are There are many explanations, [47:37] right? There's [47:39] it's a matter of political will. It's [47:40] also a matter of the fact that we are no [47:41] longer in a unipolar world. There are [47:43] many competing factors, right? You're [47:45] more likely to have a lasting settlement [47:47] when you have, you know, multiple states [47:49] who are signing on to solving the [47:52] problem, which increasingly is extremely [47:55] rare. [47:56] >> How much does it also just reflect [48:00] a loss of belief in the possible? I [48:03] mean, on Israel and the Palestinians for [48:07] one, [48:08] >> Yeah. [48:08] >> there was a long period of attempts at [48:10] at peace deals and you know, the days [48:13] when it felt like America had the power [48:15] to convene and force a real discussion, [48:17] even if it didn't work at the end, [48:19] like those days were [48:21] long they've been gone for a long time. [48:24] >> Over the [48:25] >> past many decades, [48:28] the there's this feeling that [48:31] international law has lost its power of [48:33] moral imagination and the politicians [48:35] who subscribe to it have kind of lost [48:37] lost any tie with these kind of, you [48:39] know, lofty ideals that kind of have [48:42] historically driven the field forward [48:44] and and replace them with essentially [48:46] managerialism. [48:48] And I think precisely as the Democratic [48:51] Party confronts the problem of like what [48:53] is its foreign policy going to be, it [48:55] would be very well served [48:58] to try to recapture an affirmative [49:02] vision of that moral [49:04] daringness, I suppose, to not just say [49:08] we're going to revert to the rules and [49:10] let that be that, [49:12] but to actually if you're if you're [49:14] going to say that, that's that's all [49:15] very well and fine, but say why. Say say [49:18] that these things have [49:20] um [49:22] left us [49:25] after Gaza in particular [49:28] having to confront the ruins of the the [49:30] kind of liberal internationalist order. [49:33] >> Somebody was saying to me recently that [49:36] they were fascinated by [49:39] how naive widely held ideals of the [49:42] fairly recent past now feel. [49:44] >> Yeah. [49:45] >> That there was a time, you know, the [49:48] 60s and 70s [49:50] where people believed that maybe you [49:51] could have a world without war. [49:53] >> Mhm. [49:53] >> Where people believed that they were, [49:55] you know, into the '80s engaged in [49:57] effort to have a world without nuclear [49:58] weapons. [50:00] And that there's very little of that [50:02] kind of fantastical ambition. [50:05] And so I guess I'm curious when, you [50:07] know, in your reporting and your [50:09] attending of these conferences, [50:11] do you find that there are pockets of [50:15] people dreaming about things that seem [50:17] like a little [50:18] fantastical now, [50:20] but but could be a source of at least [50:22] the regeneration of values. We we feel [50:24] so trapped by a realism about our [50:27] institutions. [50:28] >> Yeah. [50:29] >> And that it's hard sometimes to know if [50:32] there are places where people are less [50:34] trapped by that. [50:35] >> No, I mean, I think well, I don't know [50:37] if there is a place where people feel [50:39] less trapped, but I do think that many [50:42] practitioners and scholars are trying to [50:44] actually like actively think about what [50:46] a new international law would look like. [50:50] There is [50:51] a clear recognition in the field that [50:54] something has to change. Um [50:57] and we had these kind of moments [50:59] historically, right? You could look to [51:01] any like, you know, the Hague peace [51:03] conferences of the late 19th century [51:05] that were then followed almost [51:06] immediately by World War I or [51:08] um [51:10] the fact that the Nuremberg Charter was [51:13] signed just before the bomb was dropped [51:14] on Nagasaki. Like these these [51:17] moments of real progress in [51:19] international law are often followed by [51:21] uh [51:22] profound crises or, you know, the things [51:24] that kind of immediately would seem to [51:26] invalidate the the ideals for which they [51:30] are or that they espouse. [51:32] I think [51:34] you know, my imagination is that [51:37] we should have a kind of like [51:40] reappraisal of what international law [51:42] can do in the world, right? And whether [51:44] that is going to be [51:47] preventive or protective, if it's going [51:49] to be reparative. I think this is a [51:51] really interesting question. You know, [51:53] people think of the ICC as just the [51:54] court that's delivering criminal [51:56] convictions. In fact, it's also the [51:59] trust fund for victims, which is giving [52:01] out payments often in advance of and in [52:04] parallel to criminal investigations. [52:08] >> After the Trump era, I mean, let's say [52:09] you do have a Democratic president in [52:11] 2029 and they want to come in and show [52:13] that [52:14] the era of international law of America [52:17] being a participant in the rules, [52:19] participant in the international order [52:21] is back. [52:23] What would they have to do [52:26] to signal something real there? [52:31] >> Yeah, I think [52:32] >> [snorts] [52:32] >> this is the question of moral [52:34] imagination. You know, where do we want [52:36] to go? [52:37] Like I said, I don't think it's enough [52:38] to just say we're reverting to the [52:40] rules. [52:41] I think you could imagine [52:44] and, you know, I'm Donnie explicitly [52:45] called for this for the United States to [52:47] join the ICC. [52:49] Frankly, it's hard to imagine any [52:51] administration doing that. [52:53] But, I think what you could do is [52:57] >> [sighs and gasps] [52:57] >> meaningfully [52:59] lend American support to these [53:01] institutions, you know, whether it's, [53:03] for example, by giving a lot of money to [53:07] the trust fund for victims, for example. [53:09] Um [53:10] to signal kind of material support. Uh [53:14] there's a kind of register of damages [53:16] for Ukraine that has been logging [53:20] everything that people have lost [53:21] throughout that conflict. And right now, [53:24] you know, that is just a list of [53:28] of claims that may never be fulfilled. [53:30] And And we have the power to kind of [53:32] make that real. I think like my interest [53:34] is in the How do we make international [53:36] law material, right? How do we make [53:37] these [53:38] um moral values actually have a [53:40] difference on people's lives and and [53:43] that's the kind of reclaiming [snorts] [53:44] this reparative idea of international [53:47] law or reparative politics that kind of [53:50] can fill in the breach. That's where I [53:52] found myself gravitating towards. [53:55] >> So I think that's a good place to end. [53:57] So always end on our final question. [53:58] What are three books you'd recommend to [53:59] the audience? [54:00] >> The first book I would recommend is it's [54:03] called The Divided City by Nicole Loraux [54:06] um who was a kind of French scholar to [54:10] gorgeous writer and it's this book that [54:12] talks about the inherent division of [54:14] politics and [54:15] how you can overcome it and historically [54:18] it's it's a it's a takes us back to the [54:20] classics to ancient Athens that is the [54:23] titular divided city and speaks about [54:27] you know, the difficulty of coming [54:28] together after a moments of [54:31] profound rupture. So that's the first [54:33] one. [54:34] Uh [54:35] >> [sighs] [54:35] >> the second book is coming out in [54:37] September. It's called Crossing the Red [54:38] Line um by Akbar Shahid Ahmed which is [54:42] about the Biden administration's [54:45] uh shifts in policy towards Gaza and [54:47] precisely how that played out and you [54:49] know, I was just reading it on the train [54:50] here and [54:51] it is a very in in-depth reportage about [54:55] how the kind of red line was [54:59] um ignored uh and how they kind of set [55:02] >> And these being red lines that Biden set [55:04] or he would set in Netanyahu like that's [55:05] a red line and then [55:06] >> Yeah, I mean you could specifically the [55:09] discussion around the invasion of Rafa. [55:10] >> Uh-huh. [55:11] >> So I would recommend that. Uh and then [55:14] the third book is by it's a novel called [55:17] Underwater by Tara Menon [55:19] uh that just came out which is a kind of [55:22] it's it's gorgeously written and it's [55:24] this response to Amitav Ghosh's [55:28] uh prompt that fiction has not found [55:31] figured out a way to describe the [55:34] immensity of climate change [55:36] uh and to capture [55:38] the kind of tectonic losses and shifts [55:41] that it will bring about and that is [55:43] what Tara is attempting to do in this [55:45] book and it's it's kind of just [55:47] beautifully executed. [55:48] >> Linda Kensel, thank you very much. [55:50] >> Thank you for having me. [55:52] >> [music] [56:02] [music]