Tom Dannenbaum:
Does it still make sense to articulate what we're seeing as violations of international law? Does it make sense to continue to invoke these principles when they seem to be no longer sustainable? My own view on that is that it does still make sense to articulate them in those terms in the current moment.
Aslı Ü. Bâli:
I think what's distinctive about the U.S.'s conduct is that one might argue that the U.S. is in fact taking aim directly at the legal system itself rather than merely engaging in lawlessness.
Madhav Khosla:
Welcome to “Lawyering Without Law,’ a podcast by the Knight First Amendment Institute, where we explore the unique and important role that lawyers and the legal profession play in defending democracy or facilitating a country's slide into authoritarianism. I'm Madhav Khosla. I'm the Knight Institute senior fellow and a professor at Columbia Law School. Joining me back on the podcast is my co-host, Katy Glenn Bass, the Knight Institute's research director. Hi, Katy. Welcome back.
Katy Glenn Bass:
Thanks, Madhav. Joining us today are two guests, Tom Dannenbaum and Aslı Bâli. Tom is a professor of law at Stanford University, whose work focuses on the laws of war, international accountability and human rights. Asli is a professor of law at Yale University, whose scholarship explores international law, human rights, and comparative constitutional law, with a focus on the Middle East.
Madhav Khosla:
We're having both scholars on the podcast to discuss the role of international law in times of conflict, the pursuit of accountability, and what the future of the international order may look like. Tom, Aslı, welcome to Lawyering Without Law.
Tom Dannenbaum:
Thanks for having me.
Aslı Ü. Bâli:
Thanks so much for having us, Madhav.
Madhav Khosla:
So just to start us off, international law is often described as a mechanism for accountability, but one question I think we might ask is accountability for what? Individual crimes, state conduct, structural violence, impunity, or the broader political order that makes repeated violations possible? Asli, I was wondering if we might actually begin with you.
Aslı Ü. Bâli:
Sure. So to begin with, I think it's a great question. And where you ended the question, which is thinking about international law as a mechanism for accountability for broader structural systems that make violations possible, is almost exactly the inverse of how international law works. In other words, international law is actually the permissive structure that makes that possible in many ways because it's the structure that regulates relations between states and sets the terms of those relations, and has done so since before two thirds of states in the international system today were sovereign. So it was the legal order that permitted things like colonialism, slavery, and the like. It only outlawed or held accountable those who challenged in some ways the order of power in which gross asymmetry is dictated, the terms on which interstate relations were conducted. That changed to some degree in the 20th century, but the system continues to bear the hallmarks of its origins in many respects.
And when we speak about accountability in the international legal system, we are speaking of something far, far narrower than the frame that you provided. For individuals, there's accountability for only a tiny fraction of the kinds of crimes for which they might be held accountable in a domestic context. In fact, the cognizability of something as a crime at the international level is very, very different than in the domestic context. There's only a narrow band of affairs that are governed through international criminal law. Accountability for states is a slightly different matter, and it also depends on how you define accountability. I think we have to shift our lens on what constitutes law away from an imagined universe of courts and police enforcement structures and executives and towards a system in which reciprocal constraint and ex ante expectations are the principle deliverables of international law in terms of constraint.
And there's a very limited repertoire of ex post measures that can be taken to hold anything or anyone to account. And they rely much more on political mechanisms than on legal mechanisms, much more on bilateral conduct between states, and sometimes multilateral conduct between states, than determinations in a court, whether it be a criminal court, in the case of individuals, or a standing interstate court in terms of holding states accountable. Having said all of this, there have been some very high profile instances of what appear to be efforts at accountability at the international level that have concentrated the mind, if you like, on the possibilities that international law could offer something more, including some version of ex-post accountability.
And there are an array of examples one could point to. The much more active and geographically broader mandate that the ICC, the International Criminal Court has, in the period since the Russian invasion of Ukraine, exercised, escaping at least from the criticisms of its first two decades, that it was exclusively a court for Africa or some high profile ICJ cases, including especially the case brought by South Africa against Israel alleging violations of the Genocide Convention, which was preceded by a case brought by the Gambia against Myanmar on similar allegations.
Andrea Sanke:
Can a case against genocide succeed at the International Court of Justice? Gambia's legal action against Myanmar for the systematic persecution of its Rohingya minority begins at the ICJ. But with the rule of international law more fragile than ever, will the Rohingya see justice, and will future cases against genocide see their day in court?
Aslı Ü. Bâli:
So there are these high profile instances that present the possibility at least of some measure of accountability. What that would mean remains a political question, ultimately. And one should understand the international legal order as an order that is structured around a set of norms that were agreed by states, consensually, but that is in effect a political system of both mutual self-constraint and of an order through which multilaterally new rules can be set again in a consensual fashion by states, not by some external grand legislator or some philosopher kings that are identifying what the best norms would be to structure the system. Instead, the norms and their content are political agreements that have been come to by states oftentimes made concrete in treaties. And for our purposes here, treaties like the Geneva conventions that regulate international humanitarian law or the way that force may be used between states once an armed conflict has been initiated, or the Rome statute, which defines categories of international crime.
But essentially what I'm saying, I guess in response to your initial question is, it's not totally incoherent to speak of accountability, but we would need to adjust our lens dramatically from the ways in which we speak of law enforcement and accountability in the domestic context to make sense of the scope of that kind of a claim at the international level. And I'll just close by saying that the likelihood of accountability is already vanishingly small in all cases across the board, if we're talking about exposed accountability at the international level, but it becomes that much more infinitesimal if we are talking about a powerful actor in the international system.
Katy Glenn Bass:
So just following on that, so we have this critique of the international legal system as something that serves to embed the world in an order dominated by powerful states and by their allies rather than supplying tools to escape that order. And then you also have, as Asli mentioned, the critique that powerful states have an easier time resisting that accountability or evading that accountability. And looking at this current moment, we have several examples, which Asli listed, of efforts to hold more powerful actors accountable under the international system. We also have a number of ongoing events, the boat strikes by the U.S. military in the Caribbean, the U.S. and Israeli attacks on Iran and on Lebanon, and Israel's attacks in Gaza, all of which clearly violate international law, but for which accountability is proving fairly elusive.
Aslı Ü. Bâli:
I'm sorry, I just wanted a two finger to clarify that I did not intend my opening to be a critique actually. I view it as just descriptive. And I do want to caution that we can't imagine an alternate counterfactual universe in which international law could be structured differently than this, in light of the realities of the actual interstate order that we are in, and that international law can't be treated as a magic wand that could somehow just by legislating normatively erase those asymmetries between states that are a descriptive reality of our world.
Katy Glenn Bass:
Yeah. No, understood. I think it's a fair point. It is also a point that is raised as a critique by many other people in terms of the ultimate failure of the international legal system to really achieve the kind of accountability we might hope for.
Aslı Ü. Bâli:
Again, just a very quick two finger, that would be a category mistake. International law can't fail on grounds on which it was never designed to perform. Because we don't have a mechanism. We have an international legal order that explicitly exempts the powerful, as through the UN Security Council in veto. It can't be described as a failure of international. And I'm sorry if this comes across as pedantic, but I just want to be clear. It's not that such a thing cannot exist at the international level, but the idea that it's a failure of international law to expose, hold accountable great powers that are not actually subject to meaningful constraint institutionally under the law, apart from the self-constraint of the norms themselves, to me, is a category mistake.
Tom Dannenbaum:
I think framing the discussion in terms of accountability specifically is capturing only a narrow sliver of what international law is about at all. And part of the problem of contemporary international legal discourse is that it tends to be drawn to the frame of accountability, to the exclusion of other mechanisms that international law is supposed to set up and supposed to facilitate. And the consequence of that is that we actually get distorted into a discussion about the wrong kind of possibility and the wrong kind of action. Because even where the accountability mechanism functions, it functions only on a very narrow level with respect to a small number of actors, and the actors against which it is effectively invoked are, by definition, those without political power in the system. But international law is also about providing a focal point for political mobilization, collective mobilization among states transnationally, political mobilization domestically.
And there, I think there are at least potentially more opportunities for invoking international law in response to violations by powerful actors. Those possibilities are being diminished by the current attack on international law and international institutions, but they do exist. And it's partly a question of political will and partly a question of imagination in terms of whether or not they can be evoked more successfully going forward. But at the initial stage, the provisional measures processes were about prevention and about providing a focal point around which multiple different actors in the system could orient their action with a view to prevention as opposed to with a view to exposed accountability. And that also then goes to how law is internalized within institutions and within governments. And when we think about how this relates to the history of international law and its facilitation of power, one way in which it facilitates the application of power is through according it some form of legitimacy.
In other words, rendering it something other than purely the naked application of power, it's the application of authority. And as international law has changed, of course it's sustained privileges for the powerful, but they've also sought to sustain the legitimacy of the exercise of those privileges through articulating what they're doing in a language that is, at least on its face, framed in more universal terms, more egalitarian terms. So I think there is an opportunity there for international law to be more effective if we reframe our discussion around prevention and collective action as opposed exclusively to accountability, and understand that there's always a trade-off when you seek to legitimate the application of power. Because the principles that you articulate to grant that power legitimacy, themselves, can be invoked in reverse.
Katy Glenn Bass:
Okay, thank you. I think one of the things that we're interested in is whether what we are seeing in the current moment, where some great powers are no longer even attempting to cast their actions under this sort of language of legitimacy under international law, is this ordinary hypocrisy under great power politics or is this a sign of a more fundamental breakdown in the authority of international law?
Tom Dannenbaum:
Yeah, so I think on the one hand, what we're seeing at the international level is an intensification of a trajectory that's been going on for several decades. So if we start our analysis subsequent to the end of the Cold War, we've seen the erosion of the law governing the resort to force across multiple different instances, whether it's the intervention in Kosovo in 1999, the invasion of Iraq in 2003, or the extension of armed conflict beyond the scope of what was authorized by Resolution 1973 and 2011, in relation to Libya.
So we've seen this erosion of the law governing the resort to force. That is also being paralleled with an erosion of international humanitarian law, the law governing the conduct of hostilities, through the Torture Memos; the expansion of the concept of what the battlefield is, where armed conflict exists, and for how long it exists; the notion of forever wars and detention without any criminal charge or any foreseeable endpoint; targeted killings based on dubious standards of who qualifies as a combatant in armed conflicts far from the space in which active hostilities are taking place; and attacks on objects that are defined as military objectives because they support the economy of the adversary, as opposed to because they directly support military action.
All of those kinds of phenomena have been going on over the last several decades and the United States has been a key agent in the erosion of those principles. So what we're seeing today is in a sense an intensification of that. But I do think there is also a step change and a qualitative change that renders this different in kind, not just different in degree. And I think that's characterized by four different components of what's happening today. One of those components is the brazenness of the violations. In other words, the violations occurring without even a basic effort towards a legal argument to justify them. Another component is the rhetoric around the violations, that the violations are occurring alongside statements by the Secretary of Defense, by the President of the United States, and by multiple ministers in the Israeli government, that are overtly contemptuous of the notion that law can constrain or should constrain these actors in the pursuit of their foreign policy objectives.
Pete Hegseth:
America, regardless of what so-called international institutions say, is unleashing the most lethal and precise air power campaign in history, B2s, fighters, drones, missiles, and of course, classified effects, all on our terms with maximum authorities. No stupid rules of engagement, no nation building quagmire, no democracy building exercise, no politically correct wars.
Tom Dannenbaum:
A third component is that this is taking place alongside direct attacks on international institutions, and indeed, efforts to dismantle domestic institutions through which international law would be applied. So in the United States, that would include firing the top JAGs within the military, dismantling the Civilian Protection Center, significantly diminishing the number of individuals working on civilian harm mitigation in the Department of Defense. Internationally, it would include the sanctioning of six ICC judges and three ICC prosecutors, multiple civil society organizations, UN Special Rapporteur, and defunding the United Nations. And then the fourth component is that all of these things are happening not just with one violation, but across multiple violations that are occurring with a cadence that is analogous to the flooding of the zone that we see in the domestic context, which make it much harder for states to organize collectively in response because there's violation after violation after violation.
The attacks on Iranian nuclear facilities last year, the abduction of Nicholas Madura, the bombardment of Iran, the invasion of Lebanon, that's not even considering what was happening before the Trump administration in Gaza and elsewhere. And these things are happening with such pace that it becomes almost impossible for states collectively to respond in an effective way. And those four things in combination are basically an attack on the notion that international law can be a relevant factor in how states engaged diplomatically, how they frame that engagement in terms of the language of justification and legitimation. And that, from my perspective, entails a qualitatively different threat to the viability of international law as we know it from the erosion that we've seen over the last several decades. Which itself, to be clear, was obviously significantly diminishing of the viability of that legal framework already.
Aslı Ü. Bâli:
I think I agree with the empirical description that Tom gave, and have just a slightly different analysis of its meaning. So first, I think the practices over the three decades plus now, since the end of the Cold War, of the United States in reinterpreting categories of law in a permissive direction that erodes both the prohibition on the use of force and the protective character of international humanitarian law is just indisputable. And is a parallel to what we talk about at the domestic level around modern authoritarianism, which is not lawless, but rather uses a kind of legalism to authorize itself and redefine the norms in ways that become more and more permissive of kinds of concentrations of power that authoritarians like. And actually, I think there's a convergence here, especially around 9/11, where U.S. preferences, domestically, to dramatically expand the national security state and concentrate power in the executive were then uploaded in ways that Kim Scheppele and her work has ably described to the international system through UN Security Council resolutions.
And so you had international law actually reinforcing these authoritarian practices, demanding that states adjust their own internal jurisdictions to adopt counter-terrorism framings and counterterrorism finance framings, et cetera, that basically eroded core constitutional protections domestically around privacy, around property, around procedural protections in the criminal context, and on and on. So we've had this kind of symbiotic relationship in the international changes, introduced by the U.S. largely as a consequence of its own unipolar hegemony at the moment at which the post-Cold War period began, and then its own astonishing over response to the 9/11 attacks and their aftermath. So that was just a secular trend. And it was one that not only paralleled, at the international level, some of the things we've expressed concern about at the domestic level, about authoritarian legality, but also, itself, engendered authoritarian legality within the domestic jurisdictions of the states that happily accepted these resolutions and legislation that led to the concentration of power and their executives, and eroded democracy essentially everywhere.
There are other ways in which I think we see extensions of the same concerns from the domestic arena of authoritarian legality to the international arena, including the ways in which there is a misalignment in the work of professional international lawyers and their role responsibilities towards public law commitments versus their perceived client, or whoever, that leads to the lawyers treating their responsibility in international law as sort of management of sovereign risk or reputational harm or sanctions exposure, or whatever it might be. And therefore, directly contributing to this authoritarian legality by participating in the re-description, redefinition of the norms, authorizing them, legitimating them, furnishing arguments, both inside of government and outside of government, with revolving doors. What we are now witnessing, at the international law level, is the consequences of the unraveling of the imperial order on which the post-World War II international legal system depended. Which was a U.S. willingness, however limited, however episodically subject to defection, et cetera, to engage in a enlightened self-constraint as the patron of an international legal institutional and normative order from which it disproportionately benefited, and therefore was willing to continue to confine itself.
So all of the things that Tom described were things that either the U.S. has done or the U.S. has enabled its allies, especially Israel, to do. What we're saying is, the crisis for international law is a crisis that's being driven by American behavior. And that American behavior, to my mind, is continuous with a three decade period in which you had first the apex of American unipolar power and then the continuous relative decline of that power. Not necessarily because of something the U.S. has done, but because of the reality of shifting distributions of power, the rise of China, the reconsolidation of Russia, a series of things that gave the U.S. less latitude ultimately to dictate terms to its own liking, and forced it to resort more and more often to implausible stretches of existing international legality, as with the Iraq war and with Libya. But today, we have a universe in which the U.S. is now hedging, possibly, against meaningful constraint by international law, in my view.
So that is to say, now, as the distribution of power becomes even more unfavorable and where there's a real possibility of the rise of rivals that, either in the economic domain or in just their capacity to wield political coalitions in their favor, can actually challenge the United States. Not just irritate it at the borders or impose constraints in its periphery, but directly challenge areas of authority in which the United States is deeply invested. The United States is not sure it's willing to tolerate any level of constraint by international law, while at the same time it also understands the ways in which its own legitimacy and authority is parasitic on the claims of international law. And so it does both, and it continues the path of authoritarian legalism by constantly returning to some language of the norms, however implausible, to present argument that there's self-defense against Iran. Iran has been engaging in acts of terrorism and attacks on the United States and Israel for decades, and this is simply self-defense.
Submitting Article 51 letters, creating the Board of Peace. Speaking of it as if it's a rival to the UN Security Council, astonishingly, given the continued asymmetric advantage that the United States enjoys in the Security Council, but then going to the Security Council to get authorization nonetheless for that Board of Peace. So it's both attacking international law in the places where it worries it might face any constraint, and then simultaneously reauthorizing its own conduct through the lens of international laws. It's both willing to continue to work with the existing international legal order and institutions when it believes that they're going to remain arsenals in its own toolkit, largely favoring its power and simultaneously devalue international law because of the worry that another actor might be able to equally well leverage those institutional benefits, and against the interest of the United States.
And that I think is a story less about something changing in international law, as such, than a changing distribution of power, which may result in very serious damage to the international legal order. But it's not yet clear that that's the case. It may also be true that there are states with enough of a stake in the institutions and norms, as they are presently constituted, that they might rally to the defense of this order, notwithstanding the defection of its principal author, which defection has been building for decades.
Tom Dannenbaum:
So I agree with much of what Asli said, with a couple of caveats. There was an alternative path, where the United States, recognizing the unique privileges it has within the existing international legal order, would've done everything possible to shore up that legal order precisely so as to sustain the privileges that it has within that order. And what the current administration is doing is I think the opposite of that. I don't completely disagree with the hedging analysis that Asli gave, but it's definitely not seeking to shore up this legal system. It's engaged in all-out assault on it. Even with respect to the hedging, I would just offer a slight caveat. So when we look at, for example, the Article 51 letter regarding the attack on Iran. Article 51 letters are letters provided to the Security Council that articulate the resort to force in which the state in question is engaged, is compliant with Article 51, which is the article that provides the right to self-defense under the UN Charter.
That letter is fairly astonishing for its total lack of legal argument. It declares that the United States is acting in self-defense, but it provides no cognizably legal argument for how self-defense follows, from what it's describing. It doesn't identify a specific armed attack. It doesn't identify an imperative to respond to that armed attack. Even when it's describing Iranian proxies, it doesn't articulate a theory of attribution that sounds in the standards of international law. It doesn't articulate an attack that those proxies have engaged in, that would be attributable to Iran, that would generate a right of self-defense. It just doesn't provide a legal argument at all. That's different from the, I agree, implausible arguments that the United States and the UK offered in support of their invasion of Iraq in 2003. I think the violations are equally grave. It wasn't plausible for many reasons, but it was a cognizably legal argument.
And that's different from what we're seeing today, which is, on a very superficial level, a recognition of Article 51 as the prevailing doctrine. But when you actually look at the content of the letter, entails no meaningful engagement with that principle or that structure of restraint on when it's appropriate to resort to force. If anything, it looks more like the kind of declaration of war you would have in the pre-charter and pre-Brian Kellogg Pact era, where states had the sovereign prerogative under international law, as it was understood at the time, to declare war and then resort to war on the basis of that declaration. This looks more like that, to me, than a meaningful engagement with Article 51.
And the only third thing I'd say is that the United States is the primary agent of the threat to international law because it's the most powerful actor in the system, but it's not the only one. Russia's invasion of Ukraine is also a key component of this, and China's actions in the South China Sea are also a component of this. It's just that the United States has been overwhelmingly the most powerful actor. And so when it engages in this kind of conduct, it creates a graver threat to the viability of the system as a whole.
Aslı Ü. Bâli:
One quick note on the points on Russia and China. I do think it's important to distinguish between attacks on the law and violations of the law. So one can take the position that Russians are plainly in violation of international law, or that the Chinese are, without drawing the conclusion that either of those actors is actually at war against international law. I think what's distinctive about the U.S.'s conduct is that one might argue that the U.S. is in fact taking aim directly at the legal system itself rather than merely engaging in lawlessness. There are some idiosyncrasies about the Trump administration that distinguishes it from all other American administrations, quite apart from questions of law and its orientation to law, which is its sort of ranking competence as a consequence of its purging of competent people from the state. It's kind of clownish approach towards traditional understandings of the wielding of power and what authority means and what sources of legitimacy are.
So it's the Trump administration's out of keeping with American conduct and practice with respect to law, but also politics, and any number of other things, economics, et cetera, across the board, advancing almost caricatured versions of policies that have their roots in the way that the United States has conducted itself, as above the law and outside of the law and outside of constraint, for decades. But now, taking it to an extreme and in a kind of vulgar expression of it. And that's true, not just with respect to international law, that's equally true in domestic courts when Trump administration lawyers seek to present, what you might imagine would be arguments where arguments are available, and yet they fail to make them or fail to appreciate that they're available, and instead present a sort of political or ideological presentation as if it were a legal argument before baffled federal judges, over and over again, which is why we have what others are viewing as a revolt of the district courts.
But actually, it's just the district courts really scrambled to try to understand what they're supposed to do with arguments that don't correspond to any actual existing legal framework or doctrinal constraint, et cetera. Until you get to the Supreme Court, you don't see the Trump administration, or maybe some of the appellate courts, even trying to deploy arguments that sound or resonate with what are ordinary legal practices in the federal court system. So some of that conduct, I think, like the content of the Article 51 letter, I don't disagree on. In fact, we saw this in the first Trump administration, strikes on Syria.
And then, astonishingly, because other states in part interpret their stake in the continuity of the norms and the order as requiring them to show fealty to the United States or furnish arguments about U.S. conduct, that even the U.S. is not bothering to provide itself, and so somehow, they start generating arguments about the validity of the action against Maduro, or the validity of the action against Syria, where it has no legal basis at all, and in fact, flouts the very core norms of the system that make the system of sovereignty even cognizable. And yet they rush to try to furnish some arguments, while the U.S. remains silent, as to whether there's any legal rationale being presented. But it's hard to parse whether that's an expression of some kind of commitment around institutions and norms or if it's genuinely the kind of recklessness with which the wrecking ball is being wielded by the United States. Not deliberately against international law, but just willy-nilly, as a general matter, without very much concern for even the most short-term consequences, let alone medium and long-term consequences of the conduct in question.
Madhav Khosla:
So Tom and Aslı, some of this, about the extent to which international law is working in similar ways or in different ways, and the extent to which the system is broken or actually functioning perhaps as it always was, or is facing some new kinds of pressures, some of this implicates and necessarily involves actually international lawyers. And some of the things that you both spoke about that came up, just to give a prominent example, Torture Memos. It's hard to think about something like that actually in the absence of the role of international lawyers. And in fact, even insofar as one thinks about critiques of the international law system or open rejections of it, some of that is in fact even being articulated by lawyers themselves, who are framing in some ways that whole international legal order as not in fact being just or legal or fair, or something like that.
And I was wondering if we could slightly pivot to a theme that has been pretty central in this podcast, namely the legal profession's role in upholding the rule of law and in resisting democratic backsliding. And a lot of our previous episodes have focused on lawyers working within national systems, primarily, though not exclusively, the U.S.. How do you think we might think about the professional obligations and responsibilities of international lawyers? And in what ways might they be different from domestic lawyers?
Tom Dannenbaum:
Well, I think one component of this, as Asli already mentioned when she spoke about lawyers engaging in strained interpretations with a view to facilitating the action of their state specifically, or limiting the liability of their state specifically, rather than providing independent legal advice that seeks to, in a good faith manner, apply the legal constraints as they are applicable. And one reason why that kind of strained interpretation is particularly unethical, or particularly inconsistent with any plausible notion of legal ethics in this space, is that often those lawyers are the last voice that a decision maker hears on the law before inflicting violence or other irreparable harm on persons who have no way of having their rights represented on their behalf in the system of decision-making that leads to that irreparable harm.
And so where that's the context in which one's operating, it's, I think, obviously completely implausible to think of one's role as the role of a zealous advocate of a specific client. Because you're not operating before an impartial third actor that is going to hear the claims of the person who has adversarial interests, and then make a determination according to the clash of those competing arguments. You are providing analysis to a decision maker who has some form of extraordinary power that's going to be inflicted on persons who have no power in this decision-making process, and your legal input is going to provide them the shield or cover to inflict that harm or not.
And so, in that context, the bare minimum one can do is to seek to, in a good faith way, and independently, assess the legal constraints to which that state has agreed and consented as the outer limits of how it can apply that kind of power on persons under international law. And so in that context, I think the legal analysis that we saw in the OLC opinions that underpin the torture regime under the Bush administration, are just flagrantly in violation of any plausible concept of legal ethics. And anybody who takes on that role has to see themselves as constrained by a different model of lawyering, that's not lawyering on behalf of a client and advocating, but lawyering as a mechanism of constraint on the otherwise unbridled application of power.
Aslı Ü. Bâli:
I would totally, 100 percent, agree with everything that Tom just said. In a way, lawyers, as a profession, the legal profession is structurally even more powerful in the international domain than it is in the domestic domain, for the very reason he described, in the absence of world government, for the most part, in the absence of adjudication or any really countervailing force, to the argument made by international lawyers and advising states as actors. There is enormous power in how those arguments are forwarded, and moral exposure. And then there's also enormous professional rewards for remaining within that role in a way that is unethical, and embraces this client service model rather than a model in which the international lawyer providing that advice has an obligation to the public law norms of their profession and of the underlying order and its enormative commitment. So as the authors of the Torture Memos went on to become a professor at one of the leading law schools in America and a federal judge on one of the most powerful appellate courts in America, that was the sanction they faced.
And I should note that they were providing lawyering advice in a context in which there's actually a bar that could hold them liable for malpractice, if they chose to. But in many instances, international lawyers are operating in places where there is no such ethical guild that governs the profession as a whole, and outside of any kind of standard. Even within that standard, as I say, they were rewarded rather than held accountable in any meaningful sense. Only in the most extreme cases, as with, for example, when there were finally public inquiries in the UK, and notably not in the United States, about the quality of the legal advice that was provided in advance of the Iraq war. But that's an extraordinary example, very rare that you would ever have that kind of return to the underlying advice that's given, or even a counterparty who will press back or push back on that legal analysis in a way that actually is relevant to the decision maker in question. No state's decision maker is going to take note of the legal advice emanating from another state's legal advisor. So it's not adversarial in that sense.
And then, as I say, they often serve in this kind of revolving door fashion, where the very fact that they held senior position in government, or were capable of giving advice, becomes its own qualification to then be a scholar and academic producing scholarship, that then further legitimates the positions taken while in office. And then you have an ecosystem, especially in the Anglo-American or English language international law literature, that furnishes... It's just a completely self-referential closed loop, where people advocate implausible positions while advising government around unwilling and unable. Then they come back into academic positions and write articles defending that position. Then they go back into government and act on it, citing the articles that they or their colleagues have published. It's really a kind of lawless world of its own that raises very serious questions about the professional responsibility and accountability that lawyers themselves should be held to.
Tom Dannenbaum:
So there's another way of understanding this question, which is less about the ethics of government lawyering in the context of international law, or even the ethics of the revolving door relating to government and academia. And that is instead about the question of what we, as participants in international legal discourse right now, should be doing in the face of the crisis that we have identified occurring in international law. Whether you identify it as part of a long-term trajectory or a step change that is still within that trajectory, but maybe qualitatively distinct, whatever one's view on that, there is a question of how we respond to the reality of this obvious existential threat to the international legal system. And does it still make sense to articulate what we're seeing as violations of international law? Does it make sense to continue to invoke these principles when they seem to be no longer sustainable?
My own view on that is that it does still make sense to articulate them in those terms in the current moment. One reason for that is that I think that the two components of the challenge to international law that are mostly about rhetoric and institutions, namely how the administration is framing its contempt for international law through the rhetoric of the Secretary of Defense, the president, and the fact that it's attacking institutions like the International Criminal Court, are themselves responsive to a recognition by the administration that international law is not completely meaningless. Another way of putting that is, it doesn't make sense to sanction ICC prosecutors and judges, and to devote political capital to an attack on this institution, if you think the fact of the arrest warrants for Netanyahu and Gallant, and the fact of a possible, although obviously extremely unlikely, investigation of U.S. officials for war crimes in Afghanistan is meaningless.
If those things are meaningless, why even pay any attention at all? The reason they're paying attention to them is because they recognize that international law still has some validity or utility in international discourse in diplomatic collective action, in the way that certain actors are considered as having legitimacy, or not, in the way that they are outcasts, or not. Such that, for Netanyahu, the threat's not that he's going to be arrested tomorrow, that's obviously extremely unlikely. It's basically inconceivable because he's not going to travel to any state that would arrest him. But he is suffering an enormous legitimacy deficit associated with what has happened in Gaza and the West Bank, frankly, and Lebanon. But also, the fact that an international institution of the status of the International Criminal Court has responded to that by issuing arrest warrants for him and his former Secretary of Defense for their participation in that.
And what the Trump administration is trying to do is, in my view, is completely obliterate the institutional focal point of that kind of response, and deny that there is any way in which we should recognize what the Israeli government has done as illegitimate. And in the face of that, I think it would be an extraordinary capitulation to just say, "You know what? They're right. None of this matters. It's all power." When they, themselves, in virtue of having devoted these political resources to trying to attack this system, are recognizing that it still holds some sway, that there is still some effect to these kinds of actions. The second reason why I think it's important to sustain that response, sustain the response of articulating these things as clear violations of international law is, notwithstanding the fecklessness of some states, prominently states like Germany or Canada, that are essentially willing to withdraw any commitment to international law that they've previously invoked in other contexts when it is politically inconvenient in relation to their connection to the United States or Israel.
There are other states that have actually taken leadership roles and have taken significant actions to try and invoke this legal framework, and invoke it in creative ways, whether those are states that are more aligned with the U.S. than any other powerful actor in the system, such as Spain or Norway, or whether it's other states, such as South Africa, litigating at the International Court of Justice, or The Hague group that is seeking to mobilize around preventing arms transfers and invoking universal jurisdiction, including in Florida, that haven't previously been the primary sites of universal jurisdiction cases, or other actors in the system, including civil society organizations in some of the seats of power from which these violations are emanating. And so I think there is still that activity in the system, and to give up on that while that activity is occurring, including in ways that are to a certain extent unprecedented, I think would be a mistake.
And then the final reason I think it would be a mistake to cease invoking international law and seek identifying these violations is, whatever emerges from this current crisis, it's obviously not going to be just a snapback to what we had in the mid 1990s. And then for reasons, as I mentioned earlier, I don't think that would be desirable anyway, but it is going to require a re-imagining and reconstructing of an international legal order. And part of the foundation of that is going to be identifying what needs to be salvaged from the current legal order, and then trying to sustain those principles as part of the foundation for orienting around a new legal order. And the most fundamental question for any international legal order relates to the resort to force, because everything about how international law works is in part predicated on, under what conditions can states resort to force? And so to give up on that because we're seeing brazen violations of it, would, I think, be an enormous mistake.
Aslı Ü. Bâli:
I'll just chime in to agree with Tom. I don't think any of us who are teaching international law can take a position that international law doesn't exist or should be simply disregarded or set aside. And the resource that it provides, which is made clear in the examples that Tom gave, is the possibility of imminent critique. That is the possibility of using these norms and institutions to advance a critique of the conduct that we wish to see constrained. And one that, even if it doesn't prevail in the sense of traditional accountability, where we began this original conversation, it does prevail in reshaping the political context in which the action is unfolding, increasing the costs to actors that are engaging in violence and violating the rules in ways that, for example, most recently have resulted in the restraint being imposed on, at the moment, for example, Israel. Because there is a circumstance in which you have global revulsion at the conduct of the state that is itself framed by things like, UN Commission of Inquiry, once again, finding that this is genocidal conduct deliberately targeting children.
Having that shared language, having a way to describe the world and categorize and organize the world, and this kind of conduct, in shared and consensus-based classification of what is and is not permissible in the system, remains incredibly valuable. And it's valuable in part because, as Tom said, it may be the case that we're moving into a new international legal order. It's not clear to me, again, that we are at a place of complete unraveling now of this order, either its norms or its institutions. We'll see, but it may be too soon to come to that conclusion. And so it may not be replaced so much as continue to have modest reforms at the margins, as it has done for decades. But those reforms have shown some significant gains, particularly for countries of the global South. And The Hague group could be understood as essentially a coalition of the Global South, trying to leverage support from middle power states that now feel threatened by the defections that they see around them, and as well as the potential for then unconstrained spheres of influence to emerge.
And so what it really points to is, the alternative to this international legal order is not another new international legal order, but actually no shared multilateral institutions, and instead silos of regional power that don't have either a shared vocabulary across them or a shared institutional frame. And the purpose of that frame, and the original logic of the architecture that was created in the wake of the Second World War, was to find ways to channel into institutions forms of competition so destructive that they actually threatened planetary extinction. That was the reality of the post-Hiroshima Nagasaki endpoint of the Second World War. And it's once more made vivid for us now in a way that I think for decades it hasn't been, that the alternative to the international architecture is not a different, better international legal architecture, but potentially no shared legal architecture or institutional architecture, in which we wouldn't have that shared language or capacity to wield influence or engage in imminent critique.
So regardless of how far we think the existing norms and institutional structures fall short of some ideal justice standard, they actually represent something that is a significant increment of improvement over the alternative. And I very much worry that the sort of critical impulse to say flagrant violations mean there is no international law, is an impulse that only accelerates the very things that those expressing those worries are most concerned about.
Katy Glenn Bass:
I think that's a really interesting insight to end on. Tom and Aslı, this has been such a wonderful conversation. Thank you so much for taking the time to join us on Lawyering Without Law for our final episode. We really appreciate it.
Tom Dannenbaum:
Thank you very much for having us.
Aslı Ü. Bâli:
Yes, thank you for having us.
Madhav Khosla:
Thanks so much for being with us.
That's it for this season of “Lawyering Without Law.” You can explore all six of our episodes wherever you get your podcasts. And you can learn more about the Knight Institute at knightcolumbia.org. That's Knight with a K, and follow us on social media.
Katy Glenn Bass:
“Lawyering Without Law’ is a production of the Knight First Amendment Institute at Columbia University. This episode was produced and engineered by Dustin Foote. Fact checking by Harriet Engelke and Arman Amin. Candace White is our executive producer. Our music comes from Envato Elements. The art for our show was designed by Jay Vollmar. Thanks to Tom Dannenbaum and Asli Bali, who joined us for this episode. And thank you for joining us throughout this series. We're grateful for your curiosity, your attention, and for your engagement in these conversations.