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Episode 104 – Laws of War 101 with Janina Dill

Stephanie vd Berg

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Janet H. Anderson

Yes, do buy us a coffee on Patreon.

That way you also get to hear our special War Criminals Book Club recordings with our fellow international justice reporter, Molly Quell.

(excerpt) 

He steadfastly insisted that he was guilty, quote, only of aiding and abetting in the commission of the crimes with which he was charged, that he himself had never committed an overt act.

And I think I could have written that sentence basically for every single defense of a suspect I have ever covered in any trial in any court for war crimes, genocide, crimes against humanity.

Janet H. Anderson

It’s often a bit of a riot.

Stephanie vd Berg

And sometimes it’s a serious discussion about books and sometimes not and sometimes films.

And we’ll pick things that portray the worlds of international courts and war crimes.

Janet H. Anderson

And it’s only on Patreon.

Stephanie vd Berg

Come find us there.

Clip Janina Dill

IHL’s central message really is that even in that moment of dire emergency, not all means are justified.

(Intro)

Medieval crimes are being committed.

I come with clean hands.

Victims of horrific crimes want justice.

This is Asymmetrical Haircuts, your international justice podcast, with Janet Anderson and Stephanie van den Berg.

All rise.

Janet H. Anderson

Hi, Steph.

Stephanie vd Berg

Hi, Janet.

These days, lots of people think themselves international humanitarian law experts, media and politicians call out alleged violations of IHL or declare actions to be in line with international humanitarian law.

So we wanted to go back to the basics for this episode with an actual IHL expert, Janina Dill.

Hi, Janina.

Janet H. Anderson

Janina is a professor of Global Security at the Blavatnik School of Government at the University of Oxford.

She’s also a fellow at Trinity College there and co-director of the Oxford Institute for Ethics, Law and Armed Conflict.

And this podcast is for Iva Vukusic

Iva, along with many others who really enjoy hearing your clarity and have been lobbying us to tell us to have you on.

So, Janina, international law, I mean, my goodness, it’s so firmly in the public spotlight at the moment.

Do you think that’s a good thing?

Janina Dill

Generally, yes, this is good news.

We want to normalise the idea that political relations, also in the international context, are subject to the rule of law.

Law is often, though not always, a vehicle for moral considerations to enter behaviour and discourse.

So legal claims can be, ideally they are, a way to hold each other to moral standards.

So particularly when it comes to war and violence, law discourse among ordinary people and in the media suggests that people expect a justification for the use of force, that violence requires legitimisation.

And law is one source, as it turns out, quite a dominant source of legitimisation.

The alternative, where the use of force is normalised, does not require justification, where we do not start from a legitimacy deficit with war, because it is simply historically normal, generally accepted part of life.

That would be much worse, in my view.

Janet H. Anderson

But doesn’t it actually set up such high expectations from people?

You see these crowds of people around, for example, the International Court of Justice, kind of somehow expecting rulings from the judges there to stop the war or stop the violence.

Janina Dill

Yeah, that’s right.

And I think it’s useful to understand why that is happening, right?

The prototype of law that most of us have in our heads is domestic law.

So the law that reigns in the United States, the Netherlands, wherever our listeners are.

And while domestic jurisdictions differ from each other, they have certain things in common that separates them from international law.

And in a direct comparison, usually international law does not look great.

I can explain this if we think about the functions that laws have, right?

So we can focus on the three most important functions in the context of war, which is arguably that law is meant to constrain behaviour.

It’s meant to provide a basis for us evaluating behaviour and is meant to provide accountability for wrongdoing.

Now, no domestic law fulfils all these functions perfectly all the time, right?

There are many laws that are vague, that are contested.

There’s often impunity for certain types of crimes, and there’s a lot of kind of inequality before the laws in domestic context.

But generally speaking, domestic laws fulfil these functions systematically better than international law does.

And I’m happy to explain why that is the fact, but that in some sense accounts for that problem with expectations.

But the more we focus on international law in our daily approach and our expectations of politics, the more glaring these deficits become.

So disillusionment and backlash against international law are definitely risks that come with this increased attention.

Stephanie vd Berg

But you talk about the difference between international and local law.

We see a lot of the times where there are things that are illegal if you look at international law, but not criminalised.

So what can international law actually achieve, and why is it so much defined, but not all criminalised?

Janina Dill

So what can international law achieve depends on the law and the context, but maybe we can start by what law ideally should achieve, if you allow me a very brief foray into the theory of law.

If we take a first-person perspective, then law should help us guide us towards acting in a way that’s morally right.

And if law does that successfully most of the time, then from a third-person perspective, so for societies at large, it has really salutary effects in terms of peaceful and just community life.

Now you could say, why do I need law to guide me towards acting morally right?

Can’t I just figure out myself what to do?

And there are, however, certain contexts, actually a lot of contexts, where human beings have systematically a lot of trouble figuring out what they should be doing from a moral perspective.

There are mostly kind of two types of obstacles for us to act morally right, and that’s where law then comes in.

One is that it’s just hard to discern the facts or the moral truths, right?

We call that epistemic obstacles to acting right.

And then the other problem is that we have strong incentives not to do the right thing, which we could call volitional obstacles.

Now, if you think of war or violence generally, there’s a lot of epistemic and volitional obstacles to acting in the right way.

So morality will tell you, or at least one very dominant theory of permissible violence will tell you, only ever kill a person that has forfeited their right to life.

So that’s individually morally liable to killing.

Now, in war, you have no idea who on the other side has forfeited their right to life.

So that’s the epistemic obstacle.

And if you wait too long, if you try too hard to figure that out, you might get killed or you might lose the war, which is the volitional obstacle to doing the right thing.

Now, law can be much more specific.

It can take that moral theory and then account for these epistemic and volitional obstacles and tell you something to do that is typically right in this context and which has like a bright line action guiding rule, and which is, in fact, what it tells you to do is always kill combatants, never intentionally kill civilians, right?

So there’s not a perfect way to avoid acting morally wrongly because not all combatants are in fact morally liable to be killed, right?

But following the law here is generally morally better than trying to figure out what to do morally for yourself.

As a bonus, law can sort of cure the volitional defects or the incentive to do the wrong thing by holding you to account if you intentionally kill civilians.

But basically, in short, they’re in the context like war, what law can achieve, it can make things morally better than they would be without law, and basically IHL can save lives.

But that cannot make war morally unproblematic, because even when you follow the law, you’re not always necessarily doing the morally right thing.

You’re just more likely to do the morally right thing.

So we must insist on compliance with law for moral reasons, but we must sort of give ourselves the illusion that a war fought in compliance with IHL, with law is then morally unproblematic.

Janet H. Anderson

I really appreciate the broad, but I know it’s very short, but broad way that you’ve managed to position law to enable us to understand what function it holds in our society.

Can we really just pull it right down to a really more basic level from this highfalutin language that you’ve been using, which I think a lot of our listeners will really enjoy hearing what you have to say.

But let’s say Steph or I are in the street and we’re having to explain what international humanitarian law is.

I mean, we’ve seen the rise of this thing on TikTok called International Law on TikTok, for example.

How do you start by just explaining what this concept is, why it is?

Janina Dill

So it’s an unfathomably bold project in historical context, right?

Because in fact, it’s law that tells states in what is always inevitably an emergency, right, that may well put state survival on the line, that they can’t just do whatever it takes, that there are limits to what they are allowed to do, even in war, right?

IHL’s central message really is that even in that moment of dire emergency, not all means are justified.

We sometimes hear arguments to the effect that, well, Israel must prevent another October the 7th, Ukraine’s survival is threatened.

Surely, that must limit the applicability of IHL, or at least shape how we interpret it.

It must be more permissive here.

But that is fundamentally, logically misunderstanding what IHL is, because it is already designed for the emergency, for the extreme circumstance of war.

It largely accommodates what states want and need to do in war.

It’s kind of a pact with the devil.

But if it never took off the table some militarily really sensible courses of action, we really wouldn’t need the law.

If IHL were only applicable in wars that are not emergencies or perceived as emergencies for those who fight them, we really wouldn’t need the law in the first place.

So in some sense, this law is already designed for the most dire circumstances.

And the very idea that you have law governing these dire circumstances is really, really bold.

But on the other hand, we must also then see that from a moral perspective, IHL is the bare minimum.

Because in order to be complied with, to be able to talk to states in that emergency, it actually allows you to do a lot of things that are morally problematic.

It puts up mainly these really bright line rules.

It doesn’t actually hold you to our normal peacetime moral standards.

And so if it looks like you’re violating IHL, you are in heaps of moral trouble.

If you’re complying with IHL, you’re not necessarily in the moral clear.

That would be the bottom line.

Stephanie vd Berg

And you explained a bit already about, you know, we’re going to use IHL, and then a lot of people are also now always referring to the Geneva Convention, which is kind of the bedrock of the IHL.

One of the things I think you just clarified that people don’t understand is that this is already for the emergency situation.

What is another thing that kind of people get wrong about Geneva Conventions or IHL that you keep seeing repeated in the media, or I’m sure you get a lot of questions at birthday parties and drinks about this when you’re not hanging out with your international law friends?

So what is the other misconception you hear a lot?

Janina Dill

Where to start?

One thing I actually have a lot of time for is that it’s really hard for people to understand that what you’re allowed to do in war is independent of whether or not you’re fighting for a just cause or whether your war overall is legal, right?

That really departs from our very ingrained moral intuitions.

Because ultimately when you use violence in everyday life, it all hinges, the legality and the morality of it hinges on whether it’s designed to defend a purpose, right?

A morally just purpose or whether you have a legal goal in the use of violence.

And so in the international context, that’s not true, right?

The question whether or not you have resorted to force for a legal reason or an illegal reason, whether you are the aggressor or the defender doesn’t affect how the rules for the conduct of war apply to you.

And that’s really genuinely very difficult to understand.

And it’s a huge departure from what the morality of violence would suggest.

But it is actually a departure that has good moral reasons.

Again, when we think about epistemic and volitional problems, right?

There hasn’t been a belligerent in the history of mankind, I think, that didn’t go to war with the notion that they had a just cause.

And since 1945, every state at war has always claimed they had a legal cause to go to war.

So if you imagine you have two types of IHL, one for the illegal and one for the legal war, one for the aggressor and one for the state acting in self-defense, the one for the aggressor would never be used.

Only the more permissible one would ever be resorted to, because no state will come onto the international stage and say, well, we’re fighting this war, we’re the aggressor, sorry, and we’re going to actually obey the more restrictive IHL.

So it is absolutely morally necessary for IHL to be equal for all belligerents, regardless of their cause, regardless of the cause or regardless of the reason for why they are in the war.

But I can understand why that is difficult to understand, because we ultimately are asking, why is a state fighting a war?

And that does shape our attitudes towards what we think they should be allowed to do on the battlefield.

Stephanie vd Berg

We see this very much in the Israel Hamas discourse, but also partly in the Ukraine-Russia discourse, where there is a huge focus on the right to self-defense.

And whenever there is a critique of Israel, for example, the go-to line from Israel and also from Western politicians who back Israel is that we support Israel’s right to self-defense.

So what should people really understand about this right to self-defense?

And is it in fact a part of IHL, as the discourse would suggest sometimes?

Janina Dill

Yeah, the answer to that is straightforwardly no, right?

But I think it’s useful for us to take a step back and understand that self-defense is the most powerful legitimization of violence, right?

There is a moral theory, the dominant moral theory of violence, suggests that the only legitimate violence is defensive, right?

So it is easy to understand for why states always claim that they’re acting in self-defense collective or potentially third-party defense.

And international law recognizes this kind of deep-seated and important narrative that legitimate violence is defensive violence and actually says states have an inherent right to self-defense.

But that doesn’t mean limitless.

And that’s the critical thing that we need to understand or that we need to kind of inject in the discourse.

An inherent right is not a right without limit.

And states’ right to self-defense has two types of limits.

And the existence of these limits is totally uncontroversial, even though there’s a lot of controversy about what exactly the limits mean.

Their existence is such as completely uncontroversial.

So one set of limits is actually IHL.

And so this is a category error to say, when I accuse you of violating IHL, you say, but I have a right to self-defense.

These are two totally different things.

And even acting in self-defense doesn’t give you a right to commit atrocities, but it doesn’t even allow you to violate IHL or to stretch IHL.

Again, it’s independent from what you’re trying to achieve in war.

So compliance with IHL is absolutely necessary.

And we can go one step further and just say that, if it is in principle impossible for a state to effectively defend itself without violating IHL, then the implication of law is that it demands the self-abandonment.

Because the notion that you can just do whatever you want if you’re acting in self-defense is incompatible with the idea of IHL.

So that separation of IHL from the larger questions of why you are in war has that effect too.

IHL doesn’t yield to self-defense.

And that’s uncontroversial.

The second set of limits is actually a little bit more tricky.

And that’s that self-defense itself must in principle be necessary and proportionate.

So the overall defense of war must be necessary and proportionate.

And what that means in law is fundamentally unclear and very highly contested.

In principle, from a moral perspective, necessity would mean that you have to use the least injurious means of self-defense.

So if, for instance, at the moment, Israel’s right to self-defense hinges on getting to a point where another October the 7th would be impossible, then the question would be, is this war really the way with the least harm to innocent bystanders to achieve that aim?

Is it the most effective, least harmful means?

And if the answer is no, then there wouldn’t be a right to use force and self-defense.

And proportionality would mean that the overall harm caused in this war would have to be not excessive in relation to the value of preventing the next October the 7th.

That’s a moral understanding.

And in international law, most of the time, necessity and proportionality are not understood in this way, partly because that would often straightforwardly imply that a state that has a genuine right to self-defense, this is contested in this case, but even a state that has a very genuine right of self-defense may not be able to exercise it.

And states generally don’t like that interpretation, so we don’t have a lot of state practice that actually supports these understandings of necessity and proportionality at the overall self-defense level as limits on self-defense.

Janet H. Anderson

I feel we could carry on with a whole discussion on self-defense separately, so maybe we’ll just park that one and carry on down our list of common misconceptions.

And we want to turn to the Genocide Convention, which I can’t remember a time kind of five years ago when there was so much discussion around what the Genocide Convention means and how it can be applied.

What is it that you think that people don’t get right about what the Genocide Convention is and what it’s for?

Janina Dill

It’s actually not so much about the Genocide Convention, but about genocide and this idea that it is in the class of its own.

And unless you can accuse someone of genocide, better you prove it to a criminal standard that they’re committing it.

They are in the clear, legally speaking.

That is a little bit the character of the discourse at the moment, and that is the fundamental mistake.

There are crimes against humanity and even war crimes that are very much genocide adjacent, like extermination, persecution in the context of widespread attacks against civilians, but also masturbation as a crime against humanity.

If the chief prosecutor of the ICC finds reasonable grounds to believe that a head of government and the defense minister are engaged in starvation as a war crime, a crime against humanity, there is no solace in the notion that he didn’t yet seek a war for genocide and that it may never be possible to prove genocide in front of the ICC.

Genocide hinges, and I think everybody knows that by now, on this special intent, the intent to destroy in whole or in part a protected group.

And this intent is really kind of an evil making, a wrong making feature of action.

But when we look not towards individual accountability or punishment, when we look towards constraining action, and when third parties try to evaluate and make sense of a conflict, then arguably this special intent is significantly less important as a feature of action than we generally think.

Because what is it really that we’re trying to avoid?

We’re trying to avoid a risk of group destruction.

And the ICJ has told the world now three times that such a risk exists in Gaza, and that we must mobilize against it in some sense.

And still we focus a lot on this intent.

If you allow me to get technical for a minute, that intent, that special intent is mostly considered to be a direct intent.

That means you have to try to bring those consequences about with purpose.

That has to be kind of your goal of action to destroy another group.

But there’s a different way to understand intent, which is called indirect or oblique.

So where you’d simply act with the knowledge that in the ordinary course of event, this consequence will happen, group destruction.

And what we should look at for at the ICJ provisional measures rulings, what we should take away from them is that the rougher military operation and the humanitarian deprivation in Gaza, that they pose this risk and that everyone who engages in these actions now acts with knowledge, at least with kind of reckless disregard for the risk that these operations pose to Palestinians as a group.

And so I don’t want to say that it isn’t important whether there’s purpose, right?

Whether there’s a purpose to destroy the group.

This is a morally very important matter, and it matters for blame worthiness.

But when we really try to figure out how to act towards this conflict, then the objective risk to me is much, much more important than this question of purpose of intent.

Stephanie vd Berg

Just for the, if in case we have some non-law geeks listening, and we’re mixing a lot of things here, we’re talking about the ICC, the International Criminal Court, in relation to the Israel-Gaza conflict.

They have just announced that they are seeking arrest warrants.

They have not yet been confirmed by the judges as we’re recording this, and that is indeed for starvation.

They’re looking at starvation in Gaza and trying to charge that as extermination and persecution.

And there is, of course, also the case before the International Court of Justice, the UN’s highest court that South Africa has filed against Israel, accusing it of violating the genocide convention.

And I have to explain this a lot, so I’ll do this on the podcast while I think most listeners do.

International Criminal Court is for individual criminal responsibility, putting people on trial.

ICJ is for putting states on trial.

And it has jurisdiction over the genocide convention, because when states sign the genocide convention, they give the court the jurisdiction to rule on disputes that they have about that.

So that’s why what the ICJ says kind of also shapes how the genocide convention is understood, and that could then later kind of also filter back in the ICC cases, if it were ever to charge genocide.

But we are not at that level now because of that very, very pesky intent question that is always at the core of genocide.

Janina Dill

The interesting thing, if I could add to that, is that both as an individual crime, but also as the action of a state which incurs state responsibility, genocide supposedly requires that special intent.

And of course, we kind of know what intent means when it inheres in an individual, right?

But there are additionally really tricky questions for what it means for a state to have genocidal intent.

But even at the ICJ, where it’s the conduct of the state that’s in question, not the conduct of an individual, as you said, even there to show genocide, that intent has to be shown.

And of course, you know, whose intent is Israel’s intent?

There are a couple of really thorny doctrinal questions that make it even less likely that the ICJ will render a verdict of genocide.

And it’s a real danger for us to misunderstand a non-finding of genocide, as in some sense an exculpation and the notion that nothing’s wrong with them here.

Something can be incredibly wrong and there can be a dire risk to the Palestinians in Gaza without it being possible that either the actions of Israel as a state or the actions of individuals there qualify as genocide.

Stephanie vd Berg

And when we’re talking about, well, now we’ve talked about Gaza a lot, but also looking at Ukraine, these are two of the conflicts that really monopolize the discourse on war that we have.

Are there things there that have particularly shocked you and incidents where you think the world should be more focused on than what they’re focusing on?

You mentioned there’s a lot of attention on is this genocide or not, but look at mass starvation.

Are there similar things that you see in Ukraine, for instance?

Janina Dill

Honestly, the shock of starvation is really something that I find very, very difficult to get a grip on because the population in Gaza is so young, right?

We are subjecting a generation of children to debilitating, torturous hunger from which they will never fully recover.

And the aid trucks are just mere kilometers away.

I feel this is a moral failing of such magnitude it will reverberate through the generations and through the international community.

And I don’t know how we will come back from it.

And it’s not because the biggest amount of moral harm in the world is done in Gaza, right?

That’s not the case.

Tigray, Ukraine, Myanmar, there’s plenty of catastrophes, right?

And this moral magnitude of the same harm.

The problem in this particular instance is, I think, the gratuitousness, right?

There’s no moral, political, strategic or legal rationale.

None, obviously, that could ever justify that, but none at all.

Nothing good comes from starving the civilian population of Gaza, and it could be cured tomorrow, right?

Moral disasters very rarely have that precise structure that they cause foreseen, possibly intended catastrophic harm to a half underage population, have no benefit and a very, very straightforward way to prevent or at least halt them.

This is the structure of this particular moral disaster, and I think it’s very difficult to understand how we’re still here and not prevent it.

Sorry, this was a little bit incoherent, but I really grapple with that.

I find it’s very hard to fathom how we let this happen.

Janet H. Anderson

I noted you’d also written in the last couple of months about something I don’t think’s had any attention.

I don’t suppose it’s the biggest, most important thing, but it struck me.

You wrote about the attacks on cemeteries, and I just thought, I mean, really?

I can’t believe that that’s another thing that I’m going to have to think about.

Janina Dill

Yeah, I mean, the living take moral priority, right?

And so we are obviously all animated about killing and the violation of rights of living individuals, but there is something very specific about the symbolic value of the fact that not even people, once they’re dead, are left in peace.

I do think we retain interests, if not rights, after death, and international humanitarian law certainly protects us after death.

And so in the first instance, for me, it’s a matter of drawing attention to that protective regime and the fact that it’s not complied with.

But there’s also obviously larger implications for the symbolic effect of what it means that the religious expressions of a group and their dead are not left in peace.

Stephanie vd Berg 

Yeah, we’re going to see a lot of that.

I think we saw also some reporting on Gaza mass graves, and the cemeteries are getting more attention.

I wanted to pivot away a bit and also ask you more, I guess, philosophical question or something that we see come up now, that there is this idea, which was very precisely articulated after the ICC application for arrest warrants, that because the state is a democracy, that somehow it shouldn’t be appearing at the ICJ or the ICC, and that the argument is it’s a democracy with a functioning legal system, and therefore international laws shouldn’t be looking at this.

Janina Dill

Yeah, this is bizarre.

We can understand that, I think, in two ways.

These are charity ways of understanding the argument, which just rule out the obvious explanation, which is some kind of outgroup, potentially racist bias.

But one way to understand that is to say that there is a body in political science suggesting that regime types, so the state qualifying as democracy, makes it somewhat more likely to comply with international law in certain circumstances, right?

But that means absolutely not that democracies are incapable of violating international law.

They do so systematically, and there’s plenty of precedent for doing so.

So when we have reasonable grounds to suspect that a democracy is violating international law, then I think the point that it’s a democracy is moot.

Then we should simply investigate its conduct on its own merit.

But one way to look at that is in terms of, well, kind of an epistemic proxy, that we think, well, it’s a democracy, so we may assume that it is in some sense has better capacity or reasons to comply with international humanitarian law.

The other way to think about it is in terms of the sources of compliance.

So why do states generally, or if they do, why do they comply with international humanitarian law or law generally?

And one source of kind of a compliance pull is the idea that publics demand it, right, that in states where the individual or public opinion gets a vote about who governs, those who govern have a reason to comply with international law because all things considered, policies that are legally compliant are more supported than those that are not.

So there’s an audience cost to violating international law.

And so first, there are obviously limits to that argument, and we know this is particularly when societies are under siege, and they feel threatened, public opinion radicalizes, and usually outgroup biases become much stronger, and that preference for legal compliance becomes weaker.

So we know that generally to be the case.

This is actually particularly well established for both the Israeli and the Palestinian public, that people in these societies that are exposed to violence, the more exposed they are, the more radical they are, and the less supportive they generally are of peace deals.

But we also know that in Israel, particularly that kind of endorsement of international law, that preference for legal compliance wasn’t really as strong there in the same way it was in other democratic societies, partly probably because Israel has felt under siege for such a long time.

So the notion that we can assume the Israeli government complies with international law because the public demands it is absolutely not valid in this context.

And so either of my charitable readings of that argument ultimately probably don’t hold.

Janet H. Anderson

I know you just dismissed the racist argument and maybe, yeah, it’s far too superficial.

But I do think that we might need to pay some attention to some kind of concept that this system was set up for us after Second World War, the civilized nations, and therefore it’s not really about us anymore.

It’s about them.

And even Kareem Khan articulated that in his interview with CNN.

We played the clip in a previous podcast where he said that he did have a ruler of some kind of leader of a western state who said, no, why are you doing this?

Basically, your court, the International Criminal Court, it’s for Africans.

It’s not for our kind of country.

Is not the system seen as the right system for them rather than for us?

Janina Dill

Yeah, that statement to me really showed how thin the veneer of liberal cosmopolitanism is that most of us play at and which these institutions supposedly spring from.

But the notion that states set up laws with the expectation that they benefit them but bind the other isn’t as such surprising.

There’s been long a theory about the United States’ approach to international law as the kind of system-maker privilege-taker.

It’s not my term.

But the idea that the United States was a champion of international law precisely with the assumption that it would reap the kind of regulative benefits from the security of expectation of having these laws without necessarily having to obey them and being bound by them.

And that is problematic, per se, because it’s inimical to the idea of law.

That’s precisely what law brings to the table compared to other normative codes is that it binds everybody equally.

And law is only as much law, and it’s only as good as being law to the extent that it actually does that.

So the fact that it has come to the fore now, that it’s become obvious that this is the approach of at least some Western countries that think of themselves as champions of international law, that their commitment to the law goes as far as the law doesn’t actually bind themselves and their allies, is absolutely devastating to international law, to its authority and to its practical relevance.

And I think there’s a lot of hand-wringing among international lawyers, but also people who are experts in international law, trying to raise the alarm about this, like the long-term consequences.

You may now find it convenient to weaken international law because it is currently binding and constraining a country that you consider an ally.

You will find law weakened when you need it again.

Stephanie vd Berg

When you talk about this concept that everybody is equal in front of the law, I think Kareem Khan, when he announced that he applied for arrest warrants, mentioned that, and that got a lot of flak from certain circles.

And there’s also this narrative of equivalence that this ICC application is inherently bad because making an announcement naming that you are seeking arrest warrants for Hamas leaders and Israeli government officials somehow puts them on an equal level and therefore is morally wrong.

I wondered what you thought about that discourse, although I can kind of gather from what you’re saying, what you’re going to say, but I’d like to hear it from you still.

You say it so much better than I do.

Janina Dill

Well, I mean, it’s based on a fundamental misunderstanding of what criminal law does, right?

When the arrest warrants that the chief prosecutor is seeking against Prime Minister Netanyahu and Defense Minister Gallant are not based on a comparison of their conduct to Hamas, they are purely based on a comparison of their conduct to the requirements of the law.

And that when we compare their conduct over the last seven months to the law, then reasonable grounds emerge to suspect that they are engaged in, at least in a common plan, you know, there’s different modes of liability, but that their conduct falls far short of the requirements of law.

That is the only comparison implied in these arrest warrants.

It’s partly because of the fact that international humanitarian law isn’t comparative, right?

It demands distinction and proportionality of you, regardless of how the other side behaves.

But independent of that, criminal law isn’t comparative either, right?

When we have someone arrested and they stand in front of a court in our domestic systems, we don’t think, well, they are here because they behave much worse than some other criminals.

No, they are there because their behavior falls short of the law.

That’s the only comparison implied.

I think there’s a larger question around our fear of equivalence when we make comparison between conduct.

I think this is very life in the Israel-Palestine context.

And I think something that I would want people to understand is that if you reject the moral or legal equivalence between two parties, which is, I think, a valid argument to make that they’re not equivalent, you can only do that based on a comparison, right?

If you reject a comparison, if you say the comparison itself is morally repugnant, then a rejection of equivalence is nothing more than an intuition or a wish.

If you want to have a considered judgment that two sides aren’t equivalent, you need to first compare them.

So I think, morally speaking, even legally speaking, we shouldn’t shy away from a comparison.

But no such comparison was implied in the fact that Karim Khan sought arrest warrants for both sides at the same time.

Janet H. Anderson

And maybe to wrap up, I wanted to ask you how you feel about what I think is a bit of a rise in the anti-impunity rhetoric that I see.

I suppose that comes from people saying, you know, wars are wrong and then also impunity is wrong and all courts need to focus on making sure that nobody is above the law.

To me, it feels very idealistic and not the best way to try to gather people to support what you are doing, to just say that I don’t believe it’s possible to end impunity.

But tell me I’m wrong, Janina.

Janina Dill

I don’t know what it’s supposed to mean, right, to end impunity.

If it means that no one will ever get away again with war crimes, genocide or crimes against humanity, that’s obviously not the case.

That’s impossible.

No jurisdictional system can end impunity in that way.

I’ve always understood it more as we end the centuries long norm that no one gets punished or hardly anyone gets punished for atrocities and war unless they happen to fall in the hands of the other side, right?

So arguably what the ICC and the Revolution International Criminal Law did end is the security of expectations that most world leaders had historically that they will get away with it, right?

That they will die with the Clean Bill of Health and untarnished legal name.

The likelihood that someone like President Putin or Netanyahu will end up in the Hague is still not great, right?

But the likelihood that they die with an untarnished legal reputation is significantly diminished.

And the security of expectation that world leaders historically had that they are probably going to be immune from prosecution, that I think has ended.

Obviously, what you think of that phrase depends a little on your foil of comparison and also whether you think that the pithiness of it warrants the imprecision.

I’m not sure.

Stephanie vd Berg

Thank you so much for this superficial but also extensive dive into all these different aspects of law and morality and what we think and expect from law and criminal law.

It helps our audience to get these broad ideas and some of the philosophy behind them.

We are going to wrap up, and we always do that with our asymmetrical haircuts questions, but you still have a chance to add something that you find important because our first question is always, is there something that we didn’t ask or that you wanted to add that we didn’t ask you about?

Janina Dill

I don’t think there is.

I mean, there’s obviously more to say about all of these things, but I think in the first instance, it’s important that we are having these conversations and that we’re starting them and that the broader the movement is of people who are interested in law, who think law and also morality are the appropriate vocabulary and framework within which we should have discussions about war and violence, the better.

I think the one thing I would want to stress is that, you know, saying like, well, there’s people misunderstanding these things about the law.

I prefer that to people not caring about it.

I prefer getting the hundreds of times the question on Twitter, why Netanyahu and not Assad if Assad killed that many more people, right?

I think it is much more important to have these conversations, even if they’re occasionally maybe aggravating, or if we occasionally think, oh, well, I wish we could do more.

It’s better to have these conversations than not have them.

Janet H. Anderson

And our second question is, is there a particular court case that you often refer to or that you remember with some kind of, oh, that was important or something that you always use for your students when you’re teaching that you think might be useful to remind people of?

Janina Dill

I mean, I didn’t remember this in real time because I was too young, but the conduct of hostility cases before the International Criminal Tribunal for the former Yugoslavia and the so-called ICTY were really formative, I think, for me and for the law.

And not because they necessarily held up very well, but because they were the first to try to grapple with what it actually looks like in the contemporary era with contemporary war to establish ex post facto accountability for unlawful conduct of hostilities.

It’s always been possible, I think, to establish these kind of awful crimes at the margins of war, like mistreatment of prisoners.

But what does it look like to launch an attack that’s not just a violation, but that’s criminal?

It’s a conversation that’s ongoing.

I don’t think we have figured this out.

There’s a lot of fragmentation in this law.

But these early cases, like the Galic case, are really worth returning to, to kind of get a sense of the monumental task that is and how far we’ve come in trying to understand what it looks like to hold someone to account for attacking the wrong thing at war.

Stephanie vd Berg

And for this, we also refer our listeners to our earlier podcast that we did with Carolyn Edgerton, who is one of the people who tried those use of force and conduct of war cases where she explains how hard it is, essentially, to prosecute a siege campaign.

And that brings us somewhat neatly to the bridge of what our last Asymmetrical Haircuts question is, which is, is there something you are reading, watching, listening to that you would recommend?

Janina Dill

I wish I had anticipated this question so that I could sound like a balanced human being, but at the moment, I am writing quite a lot on the legal implications of the war in Gaza, and I find it really difficult to switch off from that.

I don’t wish to center myself, because I think the horror is obviously experienced by the people on the ground, by the people in the region.

I want to include in this the Israeli public that’s also suffering.

But to me, to be perfectly honest with you, getting away from daring at the facts of this starvation there, I wish I could say,  I’m reading Tolstoy, but I’m actually watching Bridgerton because I need my brain to be quashed into silence rather than engaging with anything else.

So escapism is what I’m seeking, and I’m reading historical novels and watching Netflix to do it, to be honest.

Janet H. Anderson

Me too, and I think Steph too.

We’re all curled up on our sofas, just deliberately trying to escape from all of this, not whenever we can, but just at the odd moments that we have to be able to not face the horror straight on.

Stephanie vd Berg

Absolutely.

You’re not the first scholar to mention Bridgerton to us.

I think that new season was very happily fell in one of the busiest weeks for me with Gaza and Palestine, because I needed something to not be that for 45 minutes at least.

Janina Dill

I’m also already halfway regretting having admitted to that, but here we are.

The other thing is just rereading Jane Austen.

It’s literally like a sedative, and it’s required when you just need to intellectually mute yourself and can’t cope anymore.

(Outro)

This was Asymmetrical Haircuts, your international justice podcast, created and presented by Janet Anderson and Stephanie van den Berg.

This episode was recorded at the EIG Humanity Hub, home to a community of innovators in the field of peace, justice development, and humanitarian action.

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