Episode 79: Lawrence Douglas
On the paradigms of international criminal law
As gas reaches stratospheric prices and the cost of living continues to climb, war seems to be on everyone’s mind these days. What better time, then, to be joined by Lawrence Douglas, the James J. Grosfeld Professor of Law, Jurisprudence and Social Thought at Amherst College, to discuss his brand new book, The Criminal State: War, Atrocity, and the Dream of International Justice?
The episode begins with an overview of two paradigms in international criminal law. Douglas argues that international law has replaced the “aggression paradigm,” which emerged out of the Nuremberg trials, in favor of an “atrocity paradigm,” which focuses on sanctioning grievous acts of violence, especially towards civilians. However, Douglas suggests that both the atrocity paradigm and the now-defunct aggression paradigm suffer from serious deficiencies. Sam asks whether there really has been an aggression-atrocity shift or, instead, whether the aggression paradigm utterly failed, with a long delay before the separate construction of an atrocity paradigm — which itself proved short-lived. David queries whether Douglas’s story is too formalistic and already out of date. And, fortunately for everyone, we resist the urge to do the entire episode in Seinfeld voices.
Referenced Readings
Humane, by Samuel Moyn
From Aggression to Atrocity: Rethinking the History of International Criminal Law,” by Samuel Moyn
The Internationalists, by Oona Hathaway and Scott Shapiro
A Running List of Nominations for the Canon of American Legal Thought (1975-2025)
A Matter of Interpretation, by Antonin Scalia [Grove]
“A Neo-Federalist View of Article III”, by Akhil Reed Amar [Grove]
“The Anticanon”, by Jamal Greene [Grove]
The Economic Structure of Corporate Law, by Frank Easterbrook and Daniel Fischel [Macey]
In this episode, Douglas proposed co-teaching an international law seminar with Sam. If you could teach a seminar on anything, unencumbered by ABA requirements or Yale Law School bureaucracy, what would you teach?
David: Hmmm… Stoicism: From Marcus Aurelius to O.G. Anunoby. Or perhaps Art History 601: The Art of Walt “Clyde” Frazier’s suits. Or maybe Negotiation 401: How Jalen Brunson Won By Taking Less
Sam: “French Pastry”? I would have listed “Why I Dropped Out of Law School and You Should Too” but then I realized I manage to include the material in most of my classes…
Episode Transcript
[00:00.000] David: This podcast is generously supported by Themis Bar Review. For more information about Themis, check out themisbar.com. That is T-H-E-M-I-S-B-A-R dot com. Thank you very much, and now back to the show. All right, all right, all right. Welcome to Digging a Hole, the Legal Theory podcast. On this podcast, my co-host and colleague and friend Sam Moyn and I, David Schleicher, talk about legal theory and whatever else is on our mind. How you doing, Sam?
[00:50.720] Sam: Doing well. Have a bit of a head cold, but that just means I’m hopped up on cold medicine to chat about legal theory.
[00:57.240] David: And amazingly enough, the wonderful thing about you having a head cold, I mean, there are many bad things about it for you, I’m sure, is that someone is more nasal than me on this podcast. It’s really, it’s like I would have had to get like prime Woody Allen to get me at something more nasal than me on the podcast, but I’ve achieved it through having you on while you’re RPL.
[01:17.160] Sam: That’s right, yeah…I hadn’t anticipated that development.
[01:23.200] David: I feel like we should do the whole thing doing Seinfeld. What’s the story with international law? I mean, what’s up with atrocities? So who do we have on the podcast today, Sam?
[01:36.160] Sam: Okay, we have a great Yale law grad, actually, named Lawrence Douglas, who spent his career at Amherst College in the jurisprudence and social policy undergraduate program they have there. And he’s the Lawrence Grossfeld Professor of Law, Jurisprudence and Social Thought. And we invited him on to talk about his blockbuster new book, which is called The Criminal State: War Atrocity and the Dream of International Justice, which appeared from Princeton University Press just a couple of days ago. It will be a great conversation.
[02:13.960] David: There you go. Really looking forward to it. It’s a fun convo. Okay, let’s get to it.
[02:17.960] Sam: All right, welcome, Lawrence Douglas, and congratulations on your new book, The Criminal State. So just as an opener, could you just describe what the so-called aggression paradigm in international law was?
[02:45.280] Douglas: Yes, so the aggression paradigm is, so I described this as the paradigm that emerges out of the Nuremberg trial. Remember, Nuremberg is the first really international criminal trial in human history. And I think for many observers today, they often think of Nuremberg as a trial that was focusing on, let’s say, Nazi extermination, the Holocaust. But in fact, the main charge that was brought against the 22 defendants at Nuremberg was that they had committed what was called crimes against peace, namely they had launched a criminal war of aggression. And that really was the main focus of the charges against the defendants. And I would even, you know, maybe I think I even make a somewhat stronger claim to say that the idea of focusing on the crime of aggression was that the jurists at Nuremberg really kind of hoped to create a post-war order of international law that kind of focused on aggression as the paradigmatic crime of a state, as the kind of chief crime. So aggression would really be the centerpiece of this emerging system of post-war international criminal law.
[04:05.020] Sam: Amazing. I mean, obviously there is some kind of enduring myth of Nuremberg, in part because in the course of the developments in the 1990s that you do reach in this very capacious book, there were a lot of like retroactive claims on Nuremberg’s legacy, whereas you have a theory that there was a shift. On the other hand, maybe most is at stake because it’s very obvious once you get beyond the myth that there was some kind of shift. I guess the debate would have to focus more on like causes, dating and the meaning of it all. So could you give us a sense, like in the broadest terms, like why you think the shift away from aggression towards a more atrocity framework happened? When it happened and like, was it good or bad?
[05:02.460] Douglas: Yeah, absolutely. And I think one of the things that I tried to do in the book is to say that, you know, if you go back and look at the creation of the charter for the Nuremberg trial, if you look at the debates that were going on, that the jurists who participated themselves, even though they wanted to focus on aggression as this kind of the paradigmatic crime of Nazi Germany, they really had some confusions as to what exactly they were criminalizing. So there was this very interesting conversation that took place between this French delegate to the drafting of the charter for the International Military Tribunal for the Nuremberg charter. This guy, this French professor, a jurist named Andre Gross and Robert H. Jackson, who recall was the sitting associate justice, he was an associate justice of the US Supreme Court who took a leave of absence to kind of run the US prosecution. And Andre Gross said, okay, if we’re going to criminalize aggression, what makes it a crime if it’s not associated with any, let’s say, other awful things like war crimes or crimes against humanity? What makes simply, let’s say, violating the territorial integrity of another state or violating the political independence of another state? Again, it might be an illegal thing. We might not like it. But what makes it an international crime? And Jackson gets pretty impatient. He’s like, it’s like a technical issue here. Obviously, Nazi aggression was associated with all these awful things. And you even see that in the judgment of the Nuremberg tribunal, they say, you know, however we define aggression, what Nazi Germany did in World War Two is going to satisfy that definition. So in a way, I try to argue that the Nuremberg prosecutors and jurors, they’re almost bamboozled
by the very extreme nature of Nazi aggression. And the problems with their aggression paradigm really resurfaced pretty quickly. You know, I try to say they resurfaced, you know, as early as these follow-up trials that the subsequent trials that the U.S. military conducted in Nuremberg, the problems with this aggression paradigm manifested itself in the Tokyo trial, which was a kind of companion trial to Nuremberg that took place in the Far East. And certainly these problems with the aggression paradigm became very clear in the 1950s through the 1960s when the U.N. tries to arrive at some kind of satisfactory definition of what is this crime of aggression.
[07:55.460] Sam: You know, that’s very helpful and we’ll get into the shift more later. But I’ve always, you know, wondered if our ancestors kind of were operating with a greater includes the lesser type theory, like aggression is like a gateway crime or drug that predictably could involve a lot of other bad things, some illegal like atrocities, but also other things like wasted money,
Whereas just focusing on atrocity is, you know, in a sense to start with the consequences, not the causes. But as you say, it’s just very difficult to get into like who was who was in the right and starting a war. The Nazis prevents presents such a clear-cut case, as you narrate, that they kind of sidestep the thorny difficulties.
[08:56.000] Douglas: Exactly. And it’s not just that the Nazi aggression was so, let’s say, clearly unprovoked, because we can all you can always, you know, play some historical game about well, 100 years before that, weren’t they attacked? I think it really was exactly as you’re saying, I think one of the things that kind of confused the jurists at Nuremberg was it seemed like Nazi war making was so intimately tied with acts of atrocity, that, you know, these kind of, you know, they kind of treat all the atrocities that Nazi Germany committed kind of as knock on effects to the way they waged war themselves. And so, you know, it kind of was plausible, it was trying to say, like, look, we wouldn’t have extermination, we wouldn’t have all these other atrocities if we didn’t have the war in the first place. But that, again, kind of left open the question that this French jurist had asked Jackson, it’s like, well, what if you really had a relatively, again, maybe all war is horrific, but a relatively clean war, a war that abided by the laws of armed conflict, wasn’t associated with atrocities, wasn’t associated with war crimes, what makes that criminal? And again, at Nuremberg, the answer was, we don’t have the answer to that question, because it’s so clearly the case that Nazi war making, particularly in the East, was basically waged through atrocity.
[10:26.760] David: Really good. So I have a bunch of, like, questions of my own, but I want to start off with trying to stir up a little trouble that’s directly on this point. So the book at various points in footnotes issues some dissents from a book written by our colleagues, Oona Hathaway and Scott Shapiro, on the primacy of the Kellogg-Briand Pact making aggression, or war making, illegal as a kind of prime mover in understanding all legal history, international legal history and legal politics after that. You don’t quite directly attack it, but I get the sense that you really disagree. So maybe you could just tell me what you think they get wrong and what your book tells us about what they get wrong.
[11:13.080] Douglas: Right. So remember, Kellogg-Briand, that is this kind of lapidary instrument from 1928, which basically says that states are going to avoid recourse to war. Not recourse to law, hopefully. And one of the things that, at the most basic level, is let’s assume that Hathaway and Shapiro are correct that it was an important declaration about the illegality of war. As we all know, there’s still a huge difference between saying something is illegal and saying something is criminal. And I think it’s a kind of implausible stretch to say that Kellogg-Briand established the criminality of law (war). First of all, no one who either negotiated or was a signatory to Kellogg-Briand thought that it was establishing war as an international crime. And even the weaker claim that it was emphatically establishing the illegality of war, well, again, if you look at many leading international jurists at the time, they’ll say it did nothing of the sort. It was basically kind of like a nice piece of paper. And yeah, so I’m not particularly convinced by either their weaker claim and certainly the stronger claim where they tried to say that Nuremberg was basically simply an almost an elaboration of the legal understanding that was already put in place in 1928. I find that, yeah, I would say completely implausible.
[13:01.640] David: So one criticism that book got is quite a criticism that I think your book could get too, which is that it’s too focused on the formalities of international law or on doctrine and not as much enough on like geopolitics or real politics. So it’s one thing that seems to me like, I mean, I’m an outsider to it, but systems of international law will have trouble working if they work against the interests of the most powerful leading countries, that it just could be extremely hard to constrain the very most powerful countries. And so I wonder a little bit about whether the decline of the aggression paradigm in the post Nuremberg period was inevitable because it was just not in the interests of the United States and the Soviet Union in a way that an atrocity paradigm was. Maybe it was a decent fit for a multipolar world, holding aside the kind of interesting discussion you have of colonial wars, but like it just never would have made sense in the context of a bipolar and certainly not of a unipolar world. Well, yeah, I certainly try to point out that the Cold War did nothing for trying to give legs to this Nuremberg aggression paradigm. And you know, again, I try to kind of make it pretty clear the unseemly amount of effort that is wasted, let’s say in the UN, of trying to come up with a definition of aggression, of the crime of aggression. In fact, you know, even if you go back and look at the Nuremberg Charter, Nuremberg Charter is a pretty precise definition of crimes against humanity. It has a pretty precise definition of war crimes. It has no definition whatsoever of aggression. And then, you know, you find these kind of hilarious or, you know, pathetic debates that take place, you know, in the 1950s through the 60s through the 70s in the UN where they’re trying to come up with a definition of the crime of aggression. Obviously, they’re doing this against the backdrop of vying superpowers. And then you also find the kind of unseemly fact that at some point the, you know, delegates and jurists at the UN, they ceased debating the definition and then start debating the efficacy of even having a definition. So, you know, they waste all this time saying like, well, what’s the point of it? Should we even try to have a definition? Yes, no, maybe. And the other point that you’re making, David, which I think is obviously an important one is, you know, any of these systems of international criminal law is going to be, I think one of the ways I often discuss this is, you know, to kind of go back to the hoary metaphor of the glass half full or the half glass half empty is, you know, is the glass nine tenths empty or one tenth full? And you know, I think I’d be more inclined to say, yeah, maybe it’s one tenth full. And why is it nine tenths empty? Well, because some of the most powerful actors aren’t going to be necessarily restrained by the norms that we would like to or the laws that we’d like to see them restrained. And a legal system that doesn’t constrain the most powerful is, you know, that’s a problematic legal system. Of course, we see some of the same things, you know, on the domestic front as well. Many ways in which, you know, the most powerful are able to kind of escape legal reckoning, whereas the most vulnerable and the weakest are the ones who find themselves on the side of, you know, facing prosecution.
[16:30.800] Sam: Sorry, but just to, is your thought that even in the face of that kind of hierarchy and selectivity, at least we should say that it’s amazing that anyone is ever held accountable? Well, so that leads to a question about the early part of the book. You have an interesting chapter about Carl Schmitt as kind of defender of the mystical conception of sovereignty in the Westphalian order that the aggression paradigm and later the atrocity paradigm both overcome. And then you have some material in the Tokyo trial, which is not, you know, all that often mentioned in this context. But, you know, another way of reading Schmitt is as a kind of anti-imperialist, or at least a critic of liberal imperialism that kind of talks a lot about high ideals, like the end of mystical conceptions of the state while actually camouflaging its own power grabs. And, you know, that connects, you know, very famously to Justice Paul’s dissent at Tokyo, where, you know, he says, well, the aggression paradigm is really about imperialism, because it’s basically saying everyone had several centuries to pillage the world and annex territory, like the making of the United States. And then we just kind of call stop, like at the end of the musical chairs, and it’s the post-colonial, what is going to become the post-colonial states that are prohibited from aggression in part because, as you say, the powerful, the US and the Soviet Union still get to wage wars. So I don’t know, talk a little bit about that. Like what, is there anything to Schmitt not as so much as a Westphalian, but as a critic of imperialism?
[18:30.420] Douglas: Yeah, even though, you know, Schmitt is such a kind of reptilian figure. And you know, he has certainly very interesting things to say. And at the same time, you know, if you look at kind of what he has to say about kind of, you know, colonialism and things like that, he doesn’t have a whole lot to say about these kinds of things. And I’m not sure that I would kind of make him into a proto-advocate of what we now call, you know, 12, a third world approaches to international law. But I do think, you know, as you point out Justice Paul in his incredibly long-winded dissent in the Tokyo trial, you know, this 700 page dissent, you know, I think he really kind of goes to the heart of some of the problems with this aggression paradigm. You know, exactly as you point out, you know, Paul goes at excruciating lengths to say, for centuries, aggression was considered sovereign prerogative of states. And by states, who do we mean? Well, we basically mean Western states. So Western states had centuries to kind of carve up the world to their liking. And I kind of love, Sam, your musical chairs metaphor, which is now, you know, suddenly stop and we’re going to freeze the status quo that has been carved up by aggression and now say that any tampering with that status quo is now going to be an international crime. So again, what was the world that was carved up by sovereign aggression that was basically considered a prerogative of Western states is now created, you know, now has gets frozen in place when anyone else tries to challenge that status quo. So that’s a pretty powerful critique of that aggression paradigm. And also, as you point out, it still doesn’t really touch, you know, the superpowers from basically engaging in their proxy wars.
[20:44.140] David: Really good. So the book goes through the kind of evolution of the or the end of the atrocity of everyone into the aggression of everyone into the atrocity paradigm or where international criminal law is about the prosecution of atrocities. And it has this bravura chapter about the Eichmann trials that I think is kind of like a lot of ways the centerpiece of the book. But it again, I still wondered a little bit about the degree to which the doctrinal moves are epiphenomenal to real things happening in the world. So like, I mean, just like again, as an outsider, I wonder a little bit like, is atrocity the kind of thing you focus on when or world focuses on when, you know, in the 1990s, which is when we see the rise of universality and the ICC. And even though the US opposes it, it seems like it’s a product where people believe that the real work of politics was over, where end of history for Fukuyama moment. And like the real challenge was cleaning up moral disasters and, you know, like savage things happening in weird places rather than adjudicating the disputes of real big powers.
[21:49.980] Douglas: Yeah, well, I mean, I’m not sure if I would agree in describing it as epiphenomenal. I mean, we could go back to your colleagues of Hathaway and Shapiro saying like war had been solved as a problem. Now, I’m not sure if I entirely believe that. I think it actually migrated to colonial contexts and post-colonial contexts and civil war contexts. But at least, you know, you could say that the shift was born out of a recognition that the that the that the gravest threats to human rights and to basically human existence had kind of migrated from interstate conflict to these kind of atrocity, these acts of atrocity to things like genocide in Rwanda or genocide in Cambodia or, you know, the kind of, you know, whether we want to say these are entirely international, like the civil war in Yugoslavia. So I do think that there is this this almost kind of maybe natural migration to these, you know, these spectacular acts of mass atrocity. And, you know, as I do point out and as you just mentioned, I do think that one of the inflection points in that kind of transformation is the Eichmann trial in the way the Eichmann trial does decouple the logic of the Holocaust, which I think when I was talking with Sam just a little bit before mentioned, you know, Nuremberg kind of treats the Holocaust, what we now call the Holocaust, as kind of a knock on effect from this war of aggression. And the Eichmann trial really tries to decouple it and say that, wait a second, no, no, no, this is a crime sui generis. You can’t simply associate the Holocaust and the exterminatory actions of this German state as simply a consequence of war. It’s a separate logic altogether. And I think that does kind of, you know, contribute to this human rights community focusing on these acts of atrocity. And, you know, the other thing I would mention, David, is, you know, in a kind of I think in the second or maybe third to last chapter, I talk about the way in which, you know, these acts of atrocity or the atrocity paradigm, it really actually pushes past just prosecution. And it really does push to kind of these more muscular things of intervention, which I do think, you know, gets us back to, well, we’re not just in this kind of world of legal niceties. We’re in this world of actually, you know, powers intervening in the states of in the affairs of other nations.
[24:34.140] Sam: So I love the book and I love I don’t know if it’s doctrinalism, but I would say it’s definitely a kind of conceptualist book like you. Your big narrative is one, I mean, very literally of paradigm shift. And then you’re sensitive to how in the various lawsuits there’s like doctrinal development that is, in a sense, you know, implicated in some big conceptual shift. And I just wondered, you know, whether or not we should talk more about events, what would you what would you say to a kind of counter narrative that would say, OK, there were things that happened at the, you know, the so-called successor trials and the Eichmann trial is obviously about detaching atrocity from aggression and treating it on its own terms. But wouldn’t it be more, let’s say, accurate historically to say, OK, there’s an aggression regime, but it fails immediately and nothing replaces it. There’s Eichmann, but it’s kind of the exception that proves the rule. I mean, there are no other atrocity trials for decades. And then you get some very specific circumstances in the 1990s that, you know, create an opening for something radically new. So the counter narrative would say, no, there wasn’t a shift. There was a Nuremberg one off. There was a pause. And then there was a 1990s one off. What do you say?
[26:12.940] Douglas: Yeah, so first of all, I have to just begin by saying I love that you say that it’s kind of I mean, when I try to present, I’ve had a couple of opportunities to discuss this book. I had one last night and I did try to say it’s not a legal history. It’s a conceptual overview. So just want to say that we are very much on the page with that one. And I think you’re absolutely right to point out that, you know, certainly during the Cold War, where is our aggression, our atrocity paradigm during the Cold War, except during maybe this one blip during, you know, in the case of the Eichmann trial in 1961? I mean, what do we have between there then and the creation of these ad hoc tribunals by the UN in 93 and 94? You know, and I guess I would say we do have some things along that way. You know, we do have some of these. I mean, because it’s not simply international courts that are responsible for bringing prosecutions based on international criminal law. You can have, you know, domestic courts doing that as well. And you do have some, you know, quite prominent trials, for example, taking place in France. You have like this Tuvier trial, then you have the Papon, yeah, the Tuvier trial, then the Klaus Barbie trial. And then again, in the 90s, then you have the Papon trial. So you do, you know, you do find, you know, places in the world. And then in Israel, again, you have in 1986, I mean, it’s a very unhappy trial, but you do have this Damyaniv trial that takes place in Israel. So you do have these kind of domestic national trials that I think are moving along in this, you know, with this focus on atrocity. Whereas if you had to say, you know, what kind of trials do you have with regards to aggression? Well, you don’t have anything. In fact, you don’t have anything at all after, you know, basically after 1949. There are no trials at all. The only trials you get, what 2016, you have these two Russian soldiers who in a kind of improper use of the aggression paradigm are convicted. So I wouldn’t necessarily agree that, you know, we don’t see anything after the eclipse of the aggression paradigm. I think we do see these kinds of developments of this, what I’m saying is the atrocity paradigm and that it does take, you know, obviously it gains a lot of traction with the creation of the Yugoslavia tribunal and then the Rwanda tribunal. And then again, as I try to point out, it also kind of, you know, takes a very different form in this kind of war of humanitarian intervention in Kosovo and Libya as well. So, yeah.
[29:12.860] Sam: Love that answer. I mean, I’m going to ask you a question. It’s a version of the question that like, you know, why do you have your job and I have mine? Because you’re teaching at Amherst College. You can be a humanist and integrate law and everything else. And I have to teach these law classes.
[29:31.780] David: You get to teach these law classes, Sam. You get to teach these law classes. It’s an honor and a privilege.
[29:37.500] Sam: It is, absolutely. But when it comes to explaining the developments, I think both David and I are wondering, why did you make the kind of causal and even descriptive narrative so legalist? Because it seems like if you step back, I mean, why do those trials in France happen? Well, the essential reason is Holocaust memory. And you can say, well, the Eichmann trial had something to do with unleashing that globally, but it seems like an incredibly massive phenomenon. It forces people to look back at the 40s and say, you know, either Nuremberg kind of missed the point because it omitted the Holocaust, even to the minor extent, it treated atrocity as a knock on. Or we could just pretend the Nuremberg trials were about the Holocaust. So why not say like what the real causal motor in whatever happened shift, you know, rise of atrocity is something like more cultural than legal, you know?
[30:49.260] Douglas: Yeah. No, I like that. First of all, Sam, I think you and I, wouldn’t we co-teach a terrific course together? We could. On this material, I mean, you could come to Amherst, I could go to, you know, whatever. I look forward to doing it. I think we could do a fantastic job together. Yeah. And the thing that I kind of sort of like about the question is maybe from the perspective of teaching a place like at Amherst College, I don’t necessarily kind of see this separation necessarily between the legal and the cultural, maybe as strongly as you do. So, you know, I think one of the things is that, you know, even if we use a term like genocide, which in my mind has been, you know, now used in a kind of a hopelessly performative way, you know, I think that’s an example of it is a term that has its kind of origins in law, but you might say it has its greatest potency now as a term of culture and a term, you know, it’s a political and cultural term. And so, you know, and even I think that’s one of the things they tried to do in the Eichmann trial is the way in which, you know, again, you have this legal proceeding which really has this kind of tremendous cultural resonance. And so I do think there is a kind of a sort of cross fertilization that goes on between law and a larger culture. And that I think, you know, when we talk about this kind of age of memory or this age of the victim or age of testimony, I think that kind of cultural artifacts or that kind of I think very much the law has contributed to these larger, I don’t know if I would call them cultural actions, maybe cultural practices as a kind of more accurate way of describing. So I would try to kind of emphasize that cross fertilization.
[32:53.780] Sam: That’s very persuasive.
[32:55.100] David: So I wonder a bit if this is like this led me to a couple of thoughts I had to follow on directly from that, which is, is this a book that time has come and gone? Like it’s a big criticism of the of the idea of the atrocity paradigm, which was itself part of a particular political, global political movement and moral moment. And, you know, many people like Mark Carney famously recently have argued one the edge of a new world order, a post post Cold War order where the institutions, the previous era, both the ones you talk about, also economic institutions are out of step with the way the politics of the world and surely are like our cultural discussions of how much we care about what’s going on, atrocities happening in other countries. Like it’s like very hard for me to imagine not only if someone arguing for like a Bosnian style moral intervention, but even like the president of the United States caring at all about anything that happened anyway, you know, seems like very, very it seems very, very far away. And so like I happen to view the 1990s as a particularly beautiful period. I was in college, you know, it was a great time, you know, that but it was it was it was a specific moment and thing. And now we are in a new moment in this. And the dynamics you talk about have been like hopelessly disrupted.
[34:14.780] Douglas: Yeah, I’m not sure I entirely agree with it. Obviously, you know, what’s going on in this country should be a source, I think, of concern to all of us. And, you know, the idea that we have someone like a Stephen Miller coming along and saying, might makes right. The only law that operates on the international realm is the law of force. It’s like what? And then, you know, having our secretary of defense, I will say he’s defense, not war, talking about these, what does he say, maximum lethality instead of tepid legality. And, you know, these stupid rules of engagement. Yeah, it’s all very, very disturbing. On the other hand, I mean, if you kind of think about the amount of attention that has been devoted to the war in Ukraine and the war in Gaza, I mean, it seems that people Are, now again, hasn’t necessarily led to prosecutions. But again, this is where I would say that there’s a kind of cross fertilization between the law and cultural and political understandings, where there certainly has been immense amount of attention paid to the atrocities committed in both areas of the world. And I think that continues to be on, you know, might not be centrally on the antenna of our commander in chief, but I think for activists and political actors and jurists around the world remains to be, you know, these things are of deep, deep and abiding concern.
[35:57.140] Sam: So the book speeds up at the end, but it does reach the near present, which is, you know, what part of what makes it amazingly comprehensive. I’d say that a core argument in the last part of the book concerns how the atrocity paradigm, you argue, because it just like, you know, it generates a need for speed, in a sense, licensed aggression by the great powers or not. It encouraged the possibility of aggression. And I’m totally down with that as a kind of, you know, you know, you brilliantly articulated dark side of the atrocitarian paradigm. I miss another big effect, you know, which I’ve harped on, which is, you know, the notion that if we have wars, they still have to be just and maybe legal. But the imperative is that they have to be humane or, you know, less brutal. And that, you know, the let’s say another implication or maybe even drawback of the atrocity paradigm is that it shifts our focus to like how bad in their conduct the wars are. And you just alluded to Gaza, you know, indirectly. And that was I mean, as I understand it, largely a debate. You called it performative about whether the war was too brutal, whether the law like to protect civilians was or wasn’t being followed. Genocide is kind of adjacent. So wouldn’t that be a bigger effect than like the humanitarian interventions, which were again like a kind of 1990s and the decade following phenomenon that is more or less. I mean, no one’s conducting those, whereas the the imperative of having these less brutal wars seems to like dominate how we talk about every war.
[38:08.540] Douglas: Right. Yeah. No, I think that’s an excellent point. And maybe I’d say a couple of things in response. First of all, when I was saying that, you know, I don’t think all the debates about the atrocities in Gaza are performative. I mean, I was just saying that I think particularly that the use of the term genocide has become, at least to my mind, sort of hopelessly problematized that. But I certainly take very seriously claims that that Israel committed war crimes and crimes against humanity in Gaza. It’s almost like res ipsa loquitor, which are you can’t look at images of Gaza. It seems almost as if, you know, very the images speak for themselves in certain ways. But, you know, I think also your point, though, you know, it maybe it connects back to the discussion that we’re having about Carl Schmitt, because one of the things that Schmitt interestingly argues, he says that if you start to think of your enemy as a criminal, then suddenly whatever restraints that the law means to put in place fall to the wayside. And suddenly the effort to wage war in a humane fashion, it’s like, well, why are you limiting yourself when you don’t respect your enemy as fighting with the same kind of justification that you have, but you see your enemy as basically a criminal who is engaged in atrocities and you’re trying to stop the creation of a trial? Well, then I think suddenly that leads to horrific results. In fact, I think that’s one way of thinking about what happened, you know, what’s happened in Gaza. If that the IDF is saying, you know, we’re fighting against a bunch of criminals in the form of Hamas, then, you know, we’re taking all the gloves off. And if they’re going to embed themselves with their citizens, well, to hell with them, something like that. And so I do think that there’s a way in which kind of the need for restraint and humaneness in fighting war is at odds in a certain sense with the atrocity paradigm. You know, the atrocity paradigm actually threatens to lead to really inhumane war because you cease to see your enemy as having any kind of justice on their side and you see them simply as a criminal to be, you know, stopped at all costs.
[40:53.540] Sam: So last question from me, Lawrence, I mean, you I would say this book is ultimately like a chastened progressive narrative in the sense that you think the aggression paradigm made no sense. I mean, that’s the point of citing Gross. And you admit, acknowledge, concede, illustrate that the atrocity paradigm had its dark sides or shortcomings. But basically, like the progress occurred. I guess what would you say to someone who says, no, it’s the opposite, that the atrocity paradigm was a mistake. You know, the main problem in the world remains aggressive warfare. And not just Vladimir Putin and Ukraine, but America before and after. I mean, we could develop a theory that what was wrong with Israel in Gaza was like an unlimited theory of national self-defense, regardless of how the war was fought. But, you know, maybe that would work, maybe not. So I have a little bit more, let’s say, a soft spot for the, I would say a soft spot for the aggression paradigm, because it seems better, like it has its faults. And we can’t say that, like, atrocity is just a knock on effect anymore. But we should reclaim it more than you’re willing. So why is that wrong?
[42:31.380] Douglas: Right. Well, I guess I’m not entirely dismissive of the aggression paradigm. One of the things that I would say is that, you know, even right now, if you look at that, you know, kind of somewhat empty definition that the International Criminal Court now has for defining the crime of aggression, that if it has what the character gravity and scale of a manifest violation of the UN Charter, then acts of aggression become the crime of aggression. And I guess one of the things that I was trying to argue at the very end of the book is that, well, what does this character gravity and scale mean? And I guess one of the things I was trying to argue is that if a war of aggression is waged through acts of atrocity, then to my mind, it is a criminal war of aggression. So the thing is that, so I’m not trying to kind of get rid of the aggression altogether. In a sense, I’m almost trying to revive the understanding that Gross was pushing for at Nuremberg, which is that it’s not just, we’re not just trying to protect the territorial integrity of states. We’re not just trying to protect political independence. We’re still really trying to protect wars from becoming egregious. And then you could ask yourself, well, if a war of aggression only becomes a crime of aggression, if it does have this kind of character of being waged through acts of atrocity, why not you just prosecute the leaders for war crimes or genocide or crimes against humanity? What’s the point of prosecuting them for the crime of aggression? And I guess the only thing I would say is that sometimes creating the link between a leader, the head of a state and an act of genocide can be very tricky. I remember, for example, during the Milosevic prosecution, the main prosecutor for Milosevic was this guy named Jeffrey Nys. And when Milosevic died four years into his trial, I remember talking with Jeffrey Nys, and he said to me that on a certain respect, he obviously regretted that Milosevic had died before the court had reached its verdict. On the other hand, he felt a certain amount of relief because he was positive that Milosevic was going to be acquitted on the genocide charge. And so even if he was convicted on war crimes and crimes against humanity, the headlines all over the world would be Milosevic acquitted on genocide, convicted on war crimes, crimes against humanity. And whereas convicting a leader on aggression, that’s not that hard to do because leaders are almost by definition responsible for the launching of the war. So I do think there is a kind of continued utility for this aggression paradigm or this aggression incrimination. But I do think it will only really kick in both normatively and almost predictably, will only kick in wars in which the waging of the war is done through acts of atrocity.
[45:51.540] David: Yeah. So I like that. And one thing I thought about that made me think about was that it seems like that is leaning into where we are at our moment, which is that aggression is going to be increasingly difficult. And that’s true for reasons because the US is becoming a less powerful nation relative to the rest of the world. And so like that, the more multipolarity makes aggression more difficult or at least more costly. But also technologically, I think one of the things we’ve seen recently is that invading countries is really hard. You see this in Ukraine, a bigger country invades a weaker. You see it in Iran, where the US is the world’s biggest superpower and can blow up many things but can’t really achieve its ends. So I guess like, does that mean that the book actually is exactly where we are? Rather, in contrast to my last question, it’s like that is the understanding of aggression. So maybe only aggression plus atrocity is the only way to do aggression anymore. And therefore, it makes sense to have this legal regime. So how do you think it fits with where we are technologically and geopolitically?
[46:58.420] Douglas: Yeah. So I would certainly, as opposed to the earlier suggestion, David, that the book was already kind of out of date. I kind of like this conclusion, which suggests no, quite to the contrary. The book is almost preternaturally attuned to our present moment.
[47:18.420] David: You got it. You nailed it, man.
[47:19.780] Douglas: I love that. I love that as a way of concluding, yes. So my short and long answer to that question is yes, absolutely. You got it.
[47:34.260] David: All right. Well, Lawrence, thank you so much for coming on the pod. This was awesome. This was really fun conversation. It’s a really fun conversation.
[47:41.940] Douglas: Yeah. Great, great conversation, guys. I really, really enjoyed it. And Sam, I hope you feel better. And I totally look forward to our co-teaching.
[47:50.660] Sam: Absolutely. We should get it on the books sooner or later. Yeah. We really appreciate your coming on the podcast.