Disclaimer: Asymmetrical Haircuts is produced as a podcast, meaning it is meant to be listened to and not read. Because of this, we recommend that you listen to the episode while reading, because the written word does not do justice to the emotion or tone used by our speakers. However, because we recognise there might be bandwidth issues or you might be using a hearing aid, we have provided written transcripts for all our available episodes.

[INTRO MUSIC]

Janet: 0:38  Hi Steph, 

Stephanie: Hi Janet. 

Janet:  So there are a slew of articles and kind of pieces around right now about the way that the norms of international law are being smashed.

Stephanie: 0:49  Yeah, I just stepped out of the bubble of the NATO summit that I was covering. There was a lot of questions about what was a violation of international law around some of the specific issues with Iran and Israel that I’m sure will come up here. And at this point, I think we should probably change the title of this podcast to, is this podcast against international law, yes or no, or something like that, because that is the question you get at every incident, is this against international law? And nobody really goes into what actually that means. But maybe we can tackle some of the things on this podcast.

Janet: 1:23  Yeah, maybe, I mean, I put it down as eroding, and I’m now, like, under the rubble, or something like that. I don’t know where, where it is now. So we’ve got Israel’s attack on Iran, the US joining in, arguments about self defense. We’ve got what is a threat to international security, what is an imminent threat. And then I mean, you know, you were there covering it, Steph, the agreement of NATO leaders. And I can’t help but do the reference to, you know, daddy Trump, yes, you did the right thing, daddy. If anybody doesn’t know what that reference is, then please just look it up, because I’m sure you’ll find it. And they all said this was the right thing to do.

Stephanie: 2:02  Yeah, that NATO Summit got me some whole new daddy issues, all of with all the cringe references to that. But all the talk about in NATO about was it against international law? And this leader thinks not, and that leader thinks self defense. This is balanced up against all the law professors that we also see on Twitter, or a lot of the law professors saying it’s illegal, it’s unacceptable. We’re returning to a pre 1945 state, which means that states, rather than the United Nations or the United Nations Security Council, decide who they can invade or bomb or take over.

Janet: 2:41  Well, we just keep on doing this, don’t we Steph? Hello our previous podcast with Janina Dill, one with Oona Hathaway, and even last week’s pod with Cordula Droege, we keep on asking these basics. You know, is international law alive? Are states applying the rules? Is it really any worse now than was, let’s say, around the invasion of Iraq.

Stephanie: 3:03  And this week, we have Samuel Moyn to help us tease out what is what in international law. Hi, Samuel, or Professor Moyn, maybe we should say, Can we call you Samuel?

Samuel Moyn: 3:12  Most people call me Sam even shorter.

Janet: 3:15  Well, the reason why we’re, we’re hesitating a bit, is because you’re one of those people who’s written an enormous amount of things. You’re the Kent Professor of Law and history at Yale University, and I, yeah, I was bit surprised when you said yes, you’d come on the pod. So I’m very grateful that you could make time for us in your in your schedule. 

Samuel Moyn: Thanks for having me. 

Janet: Steph, why don’t you kick us off with you know, where you want to take this out of your, what everyone was going on about at NATO.

Stephanie: 3:44  Well the big question, of course, in NATO, during the whole NATO Summit, is, were the US strikes on on Iran’s nuclear program sites, are those illegal under international law? Or can you even oppose that question? Is there such a thing as legal or illegal in international law?

Janet: 4:03  Of course, Sam, what we want here is a one word answer, please.

Samuel Moyn: 4:06  Well, I think they were illegal, and I’ll explain why. But you know, I’m probably a little different than most folks you have on because I’m not like a believer, certainly not true believer in the law, and especially international law, which is just like a domain where states usually agree to disagree about what they accept, and never have there been like common norms that states concede that they they broke. That’s why they have lawyers to interpret their obligations. Now, the US has no case that the strikes were legal, unless it was so called collective self defense of Israel, because the, as you know very well, the only way to you know, to make a strike legal is to say that the Security Council authorized it, which didn’t happen in this case, or that it was in self defense, but there was no threat to the United States or its soldiers. There was no war. And so it’s very hard to see how the US could avoid the charge that it broke the law, and some of its defenders, including Israeli defenders, most especially, have claimed that well, Israel was already engaged in an armed conflict that was legal against Iran, and the US was pitching in, and that’s what’s called collective self defense. Well, I don’t think that’s a very good argument, but it’s the only one that’s really available to Americans. And we can get into why it’s weak, but I I’d agree with you, that almost all international lawyers think that it’s it’s flimsy.

Stephanie: 6:01  One of the things that I noticed when this was being discussed, and especially from from the political side, is a lot of the terminology that was used, like imminent threat, seemed to be coming from US domestic law, yes, and kind of applying those kinds of norms, and not the IHL language that I’m used to, is that?

Samuel Moyn: 6:26  Well, well, no, I mean imminence matters in jus ad bellum, so called the law on the use of force that we’re discussing. And that’s because of this so-called Caroline test, which comes to us from before the UN Charter from the 19th century. And it basically says you don’t have to wait for the armed attack. That the UN Charter says is the predicate to a claim of self defense. If there’s an imminent attack, well, you can stop it before it starts. And that the main thing that states have struggled on is how to distinguish anticipatory self defense, namely, stopping an attack when it’s imminent, but before it started from preemption, which is George W Bush’s doctrine, which is that, well, we have to eliminate all the threats there are before they come close to materializing like this one. Since there is no nuclear weapon that Iran holds, everyone agrees about that. And so that test of imminence is really important. And the thing that many of us have been complaining about for years is that imminence became almost redefined to mean its opposite in the war on terror. And I won’t name names, but there were senior liberal lawyers serving the Democratic Party who coined the term elongated imminence to explain how even if a particular terrorist didn’t pose an imminent threat to the United States. The country could kill him by crossing a border, otherwise illegally. And like many of us at that time, kind of, you know, were upset because elongated, imminent, and then sounds like, you know, red, blue, or, you know, single, married. It’s like an oxymoron, and yet there’s been erosion of the idea of imminent to mean something longer. Now, in the end, Trump and his people aren’t claiming that there was an imminent threat to the United States. That’s what we thought in the initial hours after the attack, that that’s what they were going to claim. But then it seems like looking at their article 51 letter, which they have to send to the United Nations, that the claim is more this parasitic, collective self defense, right? So it’s really Israel’s self defense that’s at stake, and the claim is not that there was an imminent threat to Israel, it’s that Israel was already under attack by Iran, and have been for years.

Janet: 9:10  I really appreciate your in depth stuff on imminent and I’m wondering if I could also go back to one word that was used there: nuclear (Yes) I mean, does that not, even if Iran does not have the bomb yet, does that there’s not the nuclearness, the potential, sort of step it up in some way.

Samuel Moyn: 9:33  It could. And honestly, you know, it’s a great question, because it reminds us…

Janet: 9:40  Is that threat that Israel says that it’s facing?

Samuel Moyn: 9:43  Yeah, absolutely, absolutely. I mean, of course, it has many nuclear warheads, and Iran has none. But if, if your, if your view is that even the bare possession by an adverse state is is an imminent threat, well then a lot. Like getting close to having one warhead is an imminent threat, and then Israel has a self defense right now. Again, it’s, it’s kind of claiming that it’s not going there, because it’s claim is more that Iran attacked us already so and, and, you know that like that, then it’s kind of saved from the problem of coming up with a new reason to attack the nuclear sites, or for America to attack Fordow and so forth. So I think it’s a great question, but note that all through the Cold War, when there was mutually assured destruction, there was no argument that the Caroline test should be thrown out the window, you know, so only with George W Bush did you get a strong American move towards preemptive attacks, precisely because they were just, even though they were hypothetical, the damage that would be involved would be so great that we were in a new world. And of course, you’re right that we could all decide that the imminence test makes no more sense, or we have to redefine it radically in light of the sheer damage nuclear weapons would cause. But remember, those have been in the possession of states since 1945 and no one changed the test. Indeed, absolutely the opposite. The UN Charter was ratified at the very same time as like Hiroshima and Nagasaki had just occurred. And so it seems as if, like, there’s nothing new about nuclear weapons. So what’s new is that states are going there and saying, We really either need to junk the imminence requirement or redefine it in this elongated way to allow for preemption, at least in the case of nuclear strikes or terrorists out there, or whatever.

Stephanie: 12:01  I just want to circle back to the Caroline principle, because we deal a lot with laws of war, meaning when conflict is happening and not with leading up to and when you go to conflict. Now, I’ve recently listened to a podcast where they explained it in great detail, but it’s not that well known, I think maybe probably in the circles of the people who deal with kind of war crimes litigation, quite specifically. Is there a nut graph you can give us about what the Caroline principle is? I think it involves Canada. There’s a ship, there’s rebels. I remember that I will think of the which podcast I listened to which to explain it, and link to that in the show notes. But now that I have a preeminent professor in front of me who has to teach this, maybe there is a cliff notes version for us. 

Janet: 12:53  Cliff Notes is one thing. Nut graph is, what is what journalists use, as the as the like, tiny little explainer of what it is that we’re talking about. So, you know, that’s your challenge. Sam is the tiny little explainer?

Samuel Moyn: 13:07   Well, you know, this is probably the time for me to acknowledge that I don’t teach international law anymore. So, you know, I it’s a it’s a big challenge to teach it, and there is a recent book about it. We probably listened to the same podcast episode of the jib jab podcast. I’ve forgotten the author’s name regrettably, but he’s invited on to talk about the kind of facts and the diplomacy and all that matters for international lawyers who know nothing in general about what transpired between America and Canada is that Daniel Webster wrote this letter at the time, which basically defined the circumstances in which a looming threat could engage a self defense, right. Because otherwise you’d have a prohibition of war, except when you were literally being attacked or already had been. And everyone agrees that that’s too restrictive, so states have to have some kind of anticipatory self defense, right? And the question is, what it is? And Daniel Webster’s letter basically says, No, it has to be really imminent. And there’s a quote from him that’s kind of like instant you know about to happen. It’s like someone standing by in the other country with the thumb near the trigger, and at that’s the instant at which you can go and the alternative is to say, Well, no, that’s not enough time because of new threats, nuclear weapons, terrorists, out in the shadows, etc. The trouble is that every permission slip you give to states is also an excuse for them to abuse the permission and. In a range of, you know, future situations. And so generally, a lot of international lawyers really do want to contain the, you know, the scope of anticipatory self defense. It’s just that our time, unlike the Cold War, has seen a big, you know, broadening of that right, even though, as I said, it’s not applicable, as I in my as I understand it, and in this case, since no one’s claiming that they were engaged in anticipatory self defense. 

Janet: 15:30  Were there though, some similar arguments being used by Russia when invading the full, full scale invasion of Ukraine, that, again, this was in some form of self defense and that they needed to preempt. Do we need to also make that comparison? 

Samuel Moyn: 15:51  Sure, I think I mean the Ukraine war, it a lot depends on what you believe Putin’s war aims were, because a lot of people think that that was just a kind of conquest move. I’m not sure that’s true. I think there’s probably, you know, not enough evidence. There’s certainly the suggestion that he wanted to install a friendly government in Kyiv. But when he, like, made the argument, I think actually his, one of his main arguments was humanitarian intervention, not anticipatory self defense. And he gave a speech in which he pointed to the Libyan incursion, or before that, the Kosovo War, which was not authorized by the UN Security Council. And he said, look, there are some folks suffering under the perfidious Ukrainian regime, like propped up by the West and Russia is just trying to help them out, especially in those eastern provinces. But absolutely I mean you to the extent that you make an anticipatory self defense claims it means that your enemies will predictably make it too. And so the kind of the main idea, I would say, in jus ad bellum, is that any authorization of force is going to be a pretext for someone else. So even when you have a very good argument, you should take care, because you’re giving your permission slip to yourself to your own government as a lawyer is going to be used by your adversaries lawyers. And so those of us who are basically anti war as a default are very concerned about how this permission slips for to governments are being so widely distributed by lawyers in our time, it’s just they don’t realize that when they give it to their own government, they’re also, in effect, giving up to their enemies governments.

Janet: 17:56  I think this is the point at which you’re allowed to say, read my book “Humane”, which is, discusses this in detail. But I’m, I’m wondering whether you see this sphere as basically being eroded again and again over the years? I mean, if you point to all of these different examples, I mean is it just states giving themselves again and again, more and more latitude.

Samuel Moyn: 18:22  I think I you know that’s a common story, and it’s not wrong, and it’s certainly true that you see a pattern since roughly 1989 that seems to involve more and more latitude that lawyers are giving to states, or that states are claiming by means of their lawyers. I  think maybe I would say that we shouldn’t prettify the past. And remember there was no UN effectively from 1950 when the Korean War was authorized by the UN Security Council to 1989 and it’s, it’s, in effect, been deadlocked in many situations since 1989 because of the structure of the UN Security Council. And so there’s a big problem. I’m not sure. I would say the basic problem is erosion, because the Cold War was much worse, honestly, than the kinds of things we’re seeing now, especially if you’re just interested in the number who died as a result of of wars. What I think is is the real problem is great power and hierarchical power among states, and that that is a different way of kind of framing the the what, what? What’s at root, the difficulty than the erosion story, which is is, I think, a story told by a lot of people, my friends, like Oona Hathaway, whom you’ve had on this show, my colleague, a treasured one, who really kind of says things are going wrong now, and I don’t disagree with that, but there’s a question of when they went right and what then reforms would be required. And the implication of of her story is control the bad actors who are making a good system go bad. My story is a little bit darker. It’s that things were always bad, and we need much more profound change to the interstate system to make it like a plausible system for the goal of peace, and that the reason for that is just the continued rule of great powers, including the United States.

Stephanie: 20:44  Do you in that kind of see still a role for, for example, the UN Security Council and the broader UN system, or is your vision more that never worked very well, and we should do it radically different?

Samuel Moyn:  21:01  Well, it didn’t work very well, so we have to reform it. And so if you have a system that’s designed from the beginning to allow great powers to remain immune to international law, because that’s what was, that was the plan, then you’ve got a system where selected states and their clients can get away with murder. So that doesn’t seem like something worth defending to me, and the evidence is enormous that the morally that the results are unconscionable. I mean, none of the wars we’re talking about have been condemned by the Security Council. It’s worth noting that Israel’s last strike on Iraq was condemned by the Security Council, but nothing like that has occurred since, and so my view would be, we need a UN – it’s just we haven’t had it. You know, Mahatma Gandhi was asked what he thought of Western civilization, and he replied, It sounds like it would be a nice idea, and that’s kind of my view of the United Nations Security Council. We should have one, but we’d have to engage in reform of the system, and maybe, like, get rid of the veto and get rid of the P5 and have, like, more democratic system. And that’s why the General Assembly is much more important now, and it needs to claim more authority as it’s trying to do the trouble as the UN Charter is pretty clear on these points, yeah.

Stephanie: 22:31  And if you look at things like responsibility to protect and genocide prevention, you think that should also just get more prominence in a reformed UN.

Samuel Moyn: 22:41  It could but when we’ve learned, I think the reason that’s largely dead is because R2P was converted into a permission slip for regime change in Libya in 2011 and so the again, you could argue, well, we need to save R2P from the P5 and their great power politics that they, you know, use humanitarian intervention as a smoke screen for their their designs. So I’d be for that, you know, if we had a more credible system for making sure that that permission slips given to states to save civilians weren’t converted into like policies that actually make things worse. That’s happened in so many cases, but especially the Libyan one, then I’d be more more optimistic.

Janet:  23:33  Since I contacted you to ask you on the pods, what we were expecting has actually happened, which is that there’s a new tribunal in town and aggression tribunal, yes, that’s the one that deals with Ukraine only. And therefore the only kind of parties that could be in the dock on aggression would be Russia, Belarus, North Korea. If we were talking still in terms of axis of the evil then again, those would be, you know, the kind of countries that would be in it, there’s there’s a critique of this kind of development to say that we’re returning to a form of justice that is essentially one sided, and is that, even though it might be quite legitimate to try to put people on trial for aggression, It’s really only happening to one group, and it’s happening from another group of essentially, NATO states behind it.

Samuel Moyn:  24:28  Yeah, I’m, I’m not enthusiastic for that reason, and it’s not that I want to let Vladimir Putin off the hook. I mean, he would still have to be captured for such a tribunal to work, because no one’s going to try like the accused in absentia.

Stephanie: 24:45  Well, actually, yes, in this new aggression tribunal, and because it’s Ukrainian law, they have special provision that he could be tried in absentia.

Samuel Moyn:  24:55  Right, well, that’s, that is the option. That is noxious, in my view. I mean, it’s just we, you know, but I take your correction factually. I mean, I guess the broader point would be, no, I mean, like any tribunal that functions to exempt our own crimes from scrutiny is a parody of the law. So who’s engaged in the most illegal war in the past century? My country, the United States. How many illegal interventions took place in the Cold War? The Soviets did one in Afghanistan? How many did the United States do? How many since the end of the Cold War? Vladimir Putin, again, one. I mean, horrendous things in Chechnya, Georgia, but how many times has the United States broken the law? So to my mind, any tribunal that doesn’t include the United States is incredible because it’s like, you know, domestic law, like in my country, where you have a criminal justice system that is basically for punishing blacks, arresting them, stopping them in their cars, and not whites. But that’s that’s a parody of the rule of law, not the rule of law.

Janet: 26:14  Hi, breaking in here briefly, just to clarify something about this new tribunal. Yes, Steph is correct that Putin may be able to be tried in absentia, but not while he’s still in power because of immunities. Do check the show notes for more details, and if you want to hear more of Steph, fact checking me or me fact checking Steph, yes, we have each other’s backs here. You can also buy us a cup of coffee over at Patreon. Do check the website for more details.

Stephanie: 26:43  I find it very hard to explain kind of international law to people, because if you know, if you’re at a barbecue where you have to explain what you do, right, people, on the one hand, expect much more to be illegal under international law than it actually is, and on the other hand, expects a lot more to be allowed than it actually is. Do you get accosted a lot of barbecues to have to explain this kind of stuff?

Samuel Moyn: 27:08  Well, not at all. Because, you know, I, when I used to teach it, I kind of, I adopted maybe a characteristically American realist approach, and I’ve tried to on our in our conversations, the law is what it’s made and in struggle and great powers get to define the law to their liking. And you know, some folks can protest in journals, but that’s not the law. The law is what it is in action, and the law is what it results not, not something that I would ever idealize. Now that doesn’t mean we can’t have better and worse law, or we can’t make the international law better, but I don’t romanticize the law, so I’m not subject to skepticism from those who think that I’m not acknowledging its limits, or not acknowledging what is done is in its name, which is often horrendous, especially, you know, when the well meaning are part of it. So like, I personally have no trouble at the barbecue, but it also means I’m not all that popular among mainstream international lawyers, but that’s the way I like it.

Janet:  28:20  Thank you so much for coming on the pod. Samuel. We always finish with a few extra questions. And the first one is, is there something that we should have asked you that we didn’t manage to ask you some, something that you wanted to say that you didn’t get the chance to do?

Samuel Moyn: 28:39  No, I mean, it’s been really rich and substantive. I mean, I, I actually am better known for working on the kind of history and politics of the jus in bello, but I, I’ve tried to argue that we should kind of talk about them together, and, you know, be concerned with a project of making war less brutal when there seem to be more and more wars. So maybe we’re in an exciting moment, because a lot more people than just a short while ago are more concerned about the kinds of issues this podcast has been about, like, Why do states have the right to start wars and continue them in the first place. And that’s, I think that’s really, it’s great that you’re interested in that, because it ought to be the main issue, not how wars are fought.

Stephanie:  29:31  Our other asymmetrical haircuts question is always, do you have a favorite case, favorite court case that you like to teach about, or when you were teaching doing, or that you maybe write about, or that comes up you like us, to give us an example, or something that inspired you.

Samuel Moyn: 29:49  I have trouble with that because it has been a while I tried to teach as kind of mainstream an international human rights law class as I could, just because the students are entitled to like knowing where the field stands now. But I was always much more interested in the critical commentary on the cases than in the cases themselves. I think there’s still a lot of interest in, you know, very classic cases like the Lotus case. And I myself was raised at a time when, you know, the International Criminal Tribunal for the Former Yugoslavia was kind of an inspiration to all of us about the possibilities of the law. So, you know, the Tadic case would be one that you know you can never, kind of like, I think, to understand international lawyers who were were formed in the 90s. That’s a case that I think gives a very good sense of how people thought, where people thought the law was going, and where people thought the regulation of violence was going. And we’re in a totally different world now.

Stephanie: 31: 00  We’ll link that in the show notes, I am a huge ICTY nerd. So any ICTY case I’m always very happy to talk about. 

[OUTRO MUSIC]
This was asymmetrical haircuts, your international justice podcast, created and presented by Janet Anderson and Stephanie van den Berg. This episode was created in partnership with Justiceinfo.net,  an independent site covering justice efforts for mass violence, and with the Hague Humanity Hub. You can find show notes and everything about the podcast on asymmetricalhaircuts.com. This show is available on every major podcast service, so please subscribe, give us a rating and spread the word.

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