Gerry Simpson on International Law at Cumberland Lodge

Resource type: Webinar

Exploring International Law with Gerry Simpson was recorded in April 2024 as a part of our ongoing Rule of Law programme. Pulling on Gerry’s over 30 years of experience in the field of international law, it explores the foundations of international law, its limitations, and the impact of international law on modern life.

About Gerry Simpson

Gerry was appointed to a Chair in Public International Law at the LSE in January, 2016. He previously taught at the University of Melbourne (2007-2015), the Australian National University (1995-1998) and LSE (2000-2007) and has held visiting positions at ANU, Melbourne, NYU and Harvard.

He is the author of Great Powers and Outlaw States (Cambridge, 2004), winner of the American Society of International Law Annual Prize for Creative Scholarship in 2005 and Law, War and Crime: War Crimes Trials and the Reinvention of International Law (Polity 2007), and co-editor (with Kevin Jon Heller) of Hidden Histories (Oxford, 2014) and (with Raimond Gaita) of Who’s Afraid of International Law? (Monash, 2016). His most recent book is The Sentimental Life of International Law: Literature, Language and Longing in Global Politics (Oxford, 2021). Gerry is now writing a book on the Cold War and a meditation on nuclearism entitled: The Atomics: My Nuclear Family at the End of the Earth. Gerry is a Fellow of the British Academy.

Webinar transcript

00:00 – 00:26

Professor Melissa Butcher (MB)

Hello and welcome to this Cumberland Lodge Rule of Law podcast. My name is Melissa Butcher, Programme Director at Cumberland Lodge and Professor Emeritus of Social and Cultural Geography. As part of our program examining the rule of law, I’m really pleased to welcome Professor Gerry Simpson to Cumberland Lodge today. Gerry is Chair in Public International Law at LSE. He previously taught at the University of Melbourne, the Australian National University and has held visiting positions at New York University and Harvard.

00:27 – 00:52

He’s the author of numerous articles and several books, including Great Powers and Outlaw States, which was the winner of the American Society of International Law Annual Prize for Creative Scholarship, Law, War and Crime: War crime Trials and the Reinvention of International Law, and with Raimond Gaita, the book Who’s Afraid of International Law? His most recent book is The Sentimental Life of International Law Literature, Longing and sorry in Literature, Language and Longing in Global Politics.

00:52 – 01:11

And that work is what we’re going to be focusing on in our conversation today. Gerry, thank you so much for joining us today.

Professor Gerry Simpson (GS)

Pleasure, Melissa.

So, Gerry, you’ve been exploring international law for over 30 years now. And and you note in the book that there is something not quite right about it, that you have a sort of a sense of unease.

01:11 – 01:49

Maybe could you elaborate for us? What is this unease you feel about international law? What is not quite right about it?

Well, I’ve been a sort of longstanding lover and critic of international law for at least 20 of those 30 years. And I guess what I was trying to do in the book, at least, was to hold on to some of the, utopian enthusiasm that I had when I was starting out as a sort of 20, 25-year-old graduate student in the United States on my sort of international law adventure.

01:49 – 02:12

Trying to keep hold of that while, align it to, a sort of scepticism, I’ve had about the system for the last, I’d say about 20 years since, since studying with various people in the United States and elsewhere and the reading, a lot of work which has been deeply critical of international law.

02:12 – 02:32

And I guess that work is critical of it in a number of different ways. I mean, I won’t go into them in any detail here, but, one is the idea that international law has its roots in the facilitation of imperial relations from the 16th to the 19th century. And it’s never really quite escaped that origin.

02:32 – 03:14

I mean, it purports to be, of course, you know, anti-racist, humanitarian and so on, but it sort of still carries some of the defects and certainly the shadow of that unconscious. So that’s one, one problem that many other people have identified. A second, that I speak about a little bit more in the book, is that I feel as if, international law and human rights law sort of colonised our language, our language of outrage, or betrayal, or loyalty, or affection, or whatever it is in international diplomatic relations, so that almost everyone knows, seems to be speaking like a lawyer about global politics, global ethics.

03:14 – 03:41

And I guess one of the arguments I make in the book is that there are losses in that transition from morality and strategy to, to law. And that law may be doing damage to our ability to express our deepest feelings and intuitions about the international, diplomatic, and legal order.

Picking up that point about language, Gerry.

03:41 – 04:12

You describe it as opaque, pretentious and self-satisfied. But it is dealing, I guess, with issues like some of the worst of human behaviour, genocide, for example. It does have to translate the unspeakable, some would use the word evil at times, into language that we can somehow grasp in a court of law. So is there a danger, do you think, in taking that the cultural approach and trying to deconstruct the language of law that that there’s a minimisation of, of that suffering?

04:12 – 04:29

In other words, if we critique international law, the language of international law, too much, that we’re actually also there’s a danger that we might go the other way and minimise the suffering that it’s trying to prevent or address

Possibly, I mean, there is a there is a danger in that. But I think, I think the danger mostly works the other way.

04:29 – 05:16

So I think, I think the assumption in our culture is that international law, you know, speaks to our deepest intuitions about, wrongdoing. and pain in the international system and elsewhere, for that matter, that human rights is the appropriate language to use. So so I’d say that’s a very, very dominant cultural norm, an idea that circulates amongst almost everyone in the political class, from sort of Radio 4 through to the, to a certain extent, to the Daily Telegraph. If you want to take the political spectrum in Britain as an example, there’s a sort of consensus that international law is generally a pretty good thing, and that it just needs to

05:16 – 05:41

be enforced a bit more. I mean, obviously there are outliers and there are defectors from that view, but mostly that seems to be the view of the liberal intelligentsia in Britain. And I suppose my book wants to sort of ask people to, you know, stop and think about whether this way of thinking about the world is the most appropriate, best, or could be potentially damaging.

05:41 – 06:00

I just to go back to your question, I think we I think your question is very revealing because it demonstrates almost perfectly how used to thinking about these wrongs in international legal terms, we are. You suggest, if we don’t speak in international law, international human rights terms about these things, we won’t be able to speak at all.

06:00 – 06:22

That somehow I will sort of minimise these wrongs. And there’s something in that. It may be that, like any other language, it may it the learning of it, from childhood as it were, or from our early 20s means that we don’t learn other languages. We don’t learn about other ways of speaking about, human experience.

06:22 – 06:47

And I think international law might be a bit like that. It’s, you know, useful. And if you’re speaking in it, you think probably that it’s the right way to speak about love and pain and so on, like the English language. But one wonders, and I think probably linguists would know much more than I would about this, but one wonders if perhaps, you know, Persian or French are better languages to speak about personal relationships and love.

06:47 – 07:18

I don’t know, but but that’s my intuition about international law, that it’s the language that we seem to think is the, I mean, it’s a it’s an extremely powerful resource in contemporary life and politics. It’s the language, as I say, almost all of us speak. I mean, I was very struck, for example, by Liz Truss’s resignation speech outside, outside Downing Street after the, you know, the disasters of the, of the budget and her very short prime ministership.

07:18 – 07:45

She, you know, she talked about, very briefly about the resignation itself. didn’t really offer any thoughts about why she was resigning or what had happened, the sort of catastrophe of mortgages and so on. But she finished by saying, and we must resist this illegal war in, in Ukraine. And it struck me as quite interesting that this, this international legal language has become a kind of default language for people who are in crisis, almost.

07:45 – 08:08

So in her case, it was a kind of tick, something that you just have to say now in order to establish yourself as a, as a decent person. So I think there is there is something in that. And I think, I think I think there have been serious, there’s, there’s serious dangers in thinking through, situations like those in Ukraine and Gaza through an international, an international legal lens.

08:08 – 08:52

But I just want to go back to the again to the question. So the question sort of assumes that international law is largely about, ameliorating human pain. And I’ve spoken in that sort of way about it so far in this conversation. But most of what international law does isn’t remotely about human rights or about preventing war. It’s really about facilitating the relations between sovereigns or promoting free trade, or protecting, protecting diplomats or ensuring that our plane can leave Australia, as mine did last week, fly to Dubai and then fly across the Middle East to Britain

08:52 – 09:10

without being shot down. And that’s the Chicago convention. So, you know, we live and breathe a certain sort of international law all the time. That’s that’s, as I say, complied with most of the time by most people in most states. So it’s an extremely, so it’s powerful, unusually powerful in two ways is the way I put it.

09:10 – 09:46

So but the image of international law is that it’s weak and virtuous, but I’d say it’s extremely powerful in two ways that it organises our lives in unexpected and underappreciated and largely invisible ways. One, my Chicago convention, example. But secondly, it’s the language that sort of colonised our moral response to war and peace.

So there’s quite a few points in there, Gerry, that it’d be great to unpack, just before we move on, if there, for those who are listening online, if you have any questions, please feel free to pop them in the webinar chat.

09:46 – 10:04

And if we have time, we’ll come to those as well in the course of the discussion with Gerry. But Gerry, can I pick up, you mentioned Liz Truss’s speech and the idea of illegal defining the war in Ukraine as illegal. And this is something else that you talk about in the book, like who who gets to define what is an international crime?

10:05 – 10:25

And I found this fascinating because it’s something that I hadn’t thought about, is that we don’t, for example, regard deaths created by a system of economic production, which we might call capitalism, we don’t regard those as a crime, even though we know that economic inequality causes the deaths of multitudes globally. So you can think structural adjustment adjustment programmes, for example.

10:25 – 10:56

Could you elaborate a bit more on that, like the idea of how did we get to a system where, some things are defined as, as an international crime and, and other things or not, even though they might cause just as much pain and suffering?

Yeah, that’s a really interesting question. I mean, I suppose I preface it by saying that, the area of international criminal law or international war crimes law is very niche in a way, and also very novel.

10:56 – 11:41

It’s only been around since arguably Nuremberg and Tokyo, so judged by the history of the English legal system. It’s it’s really very, very, very, very new, very young. So, and also it’s, it’s it simply didn’t exist before 1945. International laws wouldn’t have recognised that. So it’s really striking also the way in which this field, which was a very much a minority taste for so long, even during the Cold War people rarely spoke about it, has become such a powerful way of thinking and has become very strongly associated with international law in the public mind.

11:41 – 12:14

And it’s obvious why that is, because it offers us reckoning with spectacular injustice through the operation of spectacular justice. So what I mean by that is that it focused, it tends to focus on, sort of moments of violence that are obvious and, and, and highly visible and tends to leave out all the very difficult stuff that you describe, the sort of structural or economic.

12:14 – 12:43

So it deals with a very, very small number of, of injuries and deaths in the international system. And those tend to be associated with only certain wars and certain forms of spectacular violence. And then it does that through what I would call spectacular justice, in other words, the spectacle of the court. And since people tend to associate law, I think wrongly with what happens in the court, only a very small amount of law does happen in court.

12:43 – 13:10

And that’s even more true for the international legal order. But because of that, when something does take place in court, people tend to then associate it with international law and to take notice of it. So we see that in the turn to courts in relation to Gaza, Israel is two big cases at the International Court of Justice, and the possibility of proceedings at the International Criminal Court have really energised a whole generation of people.

13:10 – 13:36

I mean my daughters have become very interested in international law because it’s happening in a court, in a court courtroom. They don’t call them courtroom dramas for nothing. I mean, the that there is drama in the courtroom, it really is a sort of clarifying device in some ways. But it also, I think, constrains us to think of the diplomatic world as, as a sort of choice between good and evil or between two views of the world.

13:36 – 13:55

And that’s what’s been played out in the ICJ in relation to war crimes. And then, of course, a war crimes trial at an international criminal court puts these individuals on trial and, and, and then there’s a resulting acquittal. But usually a conviction. And at least in the early stages of international criminal law, a hanging or an execution.

13:55 – 14:15

So that’s a very, dare I say, glamorous form of justice. And it’s easy for people to get their head around that sort of thing. A wrong is done. A man, and it’s usually a man has committed this wrong and this man, then is executed. That’s a sort of simple and slightly childlike picture of what justice might be.

14:15 – 14:42

And I think applied, the international system is even more childlike or childish. To think of international wrongs, to think of war and genocide and poverty as somehow the creation of single individuals is, sort of insubstantial and slightly impoverished way of thinking about how how the international system works. And, of course, lets a lot of people off the hook.

14:42 – 14:59

I mean, in a way, it tells us that if we could get rid of a few bad apples, then the system would be fine. It’s what they used to say about racism and the Metropolitan Police, you know, in the 1950s and say just a few bad apples. And then we discover those institutional racism. We started to do something about that.

14:59 – 15:23

And I suspect there’s something, something about the individualisation of justice that is problematic in the same way. But I think it’s these two ideas of spectacle that I would put into conversation here in answer to the question.

So following up, is that part of the reason, that you would argue, as you do in the book, that it is possible to be sick of justice, to be sick of giving it, and sick of receiving it.

15:23 – 15:48

And again, I suppose that’s a surprising point of view. People have this idea, as you say, that international law and justice and human rights, these are noble things. But actually it is possible if we think about sort of power relations behind them, this idea that perhaps it’s also related to a colonial project, that it is actually something that we do have to critique and maybe have, too much of sometimes to the point that we are sick of it.

15:48 – 16:08

Yeah. I mean, I realise, I realise again, that that’s not, a common position, not in any way a fashionable position and not a particularly attractive one either. You know, if you if you’re at a dinner party and you say, I’m, I’m so sick of justice, sick of giving it, sick of receiving it, people will tend to turn round to you

16:08 – 16:39

And think you’re completely mad because, you know, most people who embark on a career in global politics or humanitarianism or international law tend to have some sort of belief in justice, obviously. Why would you do it otherwise? I did, we all do. We enter the system with some idea of justice. The question really is whether this form of doing justice is the best way to make good on these, on these commitments we have about justice.

16:39 – 17:07

So I was very struck by this phrase, when I read in a novel by Sloane Wilson, the man in the, gray suit, gray flannel suits, famous film with Gregory Peck from the 1950s. I thought, you know, that’s interesting. Hear, hearing the judge in that particular book speak like that. He’s just had a client on the phone, and he turns to the person he’s in the room with him, says, it’s just somebody asking for justice.

17:07 – 17:30

I’m sick of justice, blah, blah, blah. And I think he’s responding to, the righteousness of those who seek justice. The the claim of the absolute claim for justice that can get in the way of so many other ends. We see it all the time in the British media, persons sort of demanding justice for X or Y.

17:30 – 18:04

And of course, it’s often appropriate, but it also sometimes gets in the way of more structural reforms that might actually alleviate substantial poverty and so on. So that, that that phrase struck me and it reminded me of something that had happened at the beginning of the international or the European state system back in 1648. So, you know, international relations scholars, historians, to certain extent, international lawyers to a large extent, have tended to trace the roots of the European international legal order to 1648.

18:04 – 18:42

And this this peace in the centre of Europe at Westphalia. These two treaties that ended the great religious wars during the late medieval period in Europe, and also led to the dissolution of the Holy Roman Empire and the reconstitution of the state system. So all of that is quite familiar. But in one of these treaties, they, in effect, say that one of the things they want to do is to offer an amnesty to all those who have committed wrongs in what they call these troubles, and that these wrongs should be cast into oblivion.

18:42 – 19:08

And to me, that’s a very interesting and provocative way to think about the possibilities of justice and diplomacy, or to at least emphasise the diplomatic over the just. So you know, one of the projects I’ve been interested in recently is to try and advance the claims of the diplomatic work over the legal or just, in relation to, in particular, Ukraine.

19:08 – 19:40

And here in 1648, we see that these these states are in effect saying, we’re not interested in war crimes trials. We realise that terrible wrongs have been done, and we realise that there’ll be people picking up the phone if they could, in 1648 and, phoning the judges and saying, we want justice, but we’re actually sick of justice because justice was the problem in the first place, that these religious wars were, in a way, produced by the varying claims through religious justice on behalf of Protestants and Catholics throughout Europe.

19:40 – 20:06

And in a way, what Westphalia’s doing is doing the same. Put that aside. Let’s let’s stop arguing about these claims of religious truth, and at the same time, let’s give away any prospect of applying some justice to those who committed, what we would now call crimes against humanity, during those wars that will just be so incredibly messy and worthless and would probably lead to further wars.

20:06 – 20:28

It would make people feel good for a while, though. But that’s to be resisted. So to me, that seems like a very mature form of politics. It’s a sort of unattractive diplomacy that I feel is more attractive than the apparently attractive allure of war crimes trials.

Well, on that question of diplomacy, you talk in the book about a friendship.

20:28 – 20:52

and again, this I suppose, is now moving into how you would rethink the system or what we can do about the system to address some of these, uneasiness or contradictions or juxtapositions within the system. But you bring friendship into your analysis, which I found really interesting, and how, in your view, how might, an international law of friendship impact on diplomacy?

20:52 – 21:30

Yeah. I try and reconstruct, an idea of friendship out of various materials, both drawn from the sort of international legal and political order and also from philosophers and writers like Montaigne, Derrida, Nietzsche, and so on. What led me to do that? I guess there are two reasons. One is, one was that I wanted to write a book that offered at least the prospect of, some sort of solution to the problems that I identified.

21:30 – 21:52

I didn’t want to just write a book criticising the international legal order, that’s been done a hundred times. I wanted to offer something I call it redemptive, a kind of message in a bottle. So I have these two chapters at the end, one’s on friendship, the other is on gardening, in which I talk about how we might begin to think about constructing a slightly different international order.

21:52 – 22:20

One is, you know, frankly, utopian the latter, but the earlier one is sort of grounded more in existing material and and secondly, I was very struck by the fact that international law textbooks have, have, tend to have chapters on, enemies, neutrals, pirates, criminals, outlaws, and so on. But they, they not they don’t have chapters on friendship.

22:20 – 22:50

They don’t have they don’t conceive of a world of friends, or they don’t tell us what friendship might be. I mean, there is a 1970 UN declaration, a very famous declaration for international lawyers, a declaration on friendly relations. So it’s not as if friendships entirely absent. but usually it’s a sort of mask for something else. I think I said somewhat facetiously in a, in a conversation I had recently that that if you sign a friendship treaty with the United States, that generally means things are very, very bad.

22:50 – 23:16

So in Nicaragua had one, Iran had one, and they ended up in court over these friendship treaties, treaties of amity they were called. So I tried to think about what friendship would look like. And one of the phrases that was really helpful for me in thinking about this, was, something that Nietzsche said, namely, you know, be my enemy.

23:16 – 23:44

This was the phrase, be my enemy. And what I think he was saying or suggesting there, or what I took from it, was that maybe one form of friendship and international law is the idea of taking our enemies seriously, trying to understand the predicament they find themselves in and trying to anticipate, in particular, how we might reconstitute friendly relations after the war is done when we have to become friends again.

23:44 – 24:07

Maybe not friends, but we have to become diplomatic partners. It’s either that or an endless war. So I think, in our commitment to rendering our enemies outlaw, we’re sort of, we are committing ourselves to perpetual war. Endless war. We’re in effect, saying this state or this person is outside the bounds of humanity and must be eliminated.

24:08 – 24:29

And that elimination is the philosophy of of international relations is quite disastrous. And I think it’s become a very important part of international law. I think international criminal law, to a certain extent is committed to that idea, it describes our enemies not as enemies, but criminals. And so we have a world in which Vladimir Putin is not an enemy, but a criminal to be prosecuted.

24:29 – 25:03

And in order to prosecute him, you would have to destroy half of Russia. So there’s a, or at least at the very least, engage in a long term attritional war in Europe. So I think we’re sort of committed to that idea, in, in Ukraine. And we see it, too, in the Israeli approach to Hamas, the idea that that our enemies are to be eliminated, rather than be seen as a group that we might have to deal with after the war is finished.

25:03 – 25:25

I remember reading, I read quite recently that Ariel Sharon said in 1982, we have to destroy Beirut in order to eliminate the PLO once and for all. I mean, that was 1982. Beirut was indeed destroyed. There was a Holocaust survivor living in Beirut who was killed during that operation. I remember Robert Fisk writing about that. But the PLO went to Algiers.

25:25 – 26:00

The organisation wasn’t destroyed and in fact became a a negotiating partner for Israel, Oslo. So I think to think about our enemies in those terms is both a moral error, a diplomatic error, and has proved to be historically, wrong-headed anyway, because we do end up negotiating. if you grew up in the 70s, as I did, you came to understand the the IRA and the PLO stood for, sort of outrageous, spectacular terrorism.

26:00 – 26:29

And yet both the IRA and the PLO became, partners, as it were, in peace in the United Kingdom and in Israel and Oslo, respectively. So I think that some of that thinking that the idea that the enemy could become a friend is really, really important in understanding how we might get out of these situations that we find ourselves in, but instead we’re surrounded by a kind of form of legal and political and moral absolutism.

26:29 – 27:03

Everyone is absolutely sure about where they and their enemies stand.

It’s almost like you’re suggesting, Gerry, that the legal system is, again, it’s part of the problem because we have the lessons in front of us that you mentioned the in Northern Ireland. We know that eventually, to bring about peace, peacebuilding, conflict resolution work that that the enemy, as it were, is someone that has to be negotiated with, with having these debates about Afghanistan as well to, to negotiate with the Taliban.

27:03 – 27:33

Is it is it your suggestion that the legal system actually prevents us learning those lessons that we need to actually negotiate with Hamas, that we need to negotiate with Russia? Yes, how how how do we get then a system that leads more to peace building than these, these, perpetuation of these conflicts by the by the idea that there is an evil other that we can’t negotiate with.

27:33 – 28:22

Yeah. I think people who engage in successful negotiations, tend to at least initially sideline the question of justice in particular and the question of legal rights. Of course, these agreements are often legal agreements. So I’m not suggesting the international law is absent entirely. But that kind of righteous version of international law doesn’t really help us much. So I imagine that when Tony Blair went to Ireland in the 1990s to seek an agreement, you know, the Good Friday Agreements, that one of the things that he and his people and on the other side, the Irish Republican Army would have emphasised is that but probably questions of justice have to be sidelined for a while, while

28:22 – 28:53

we reached some sort of agreement. So there would have been people on both sides, the tabloid press in the United Kingdom, the more radical wings of the IRA. Who would have said, until there’s justice, we can’t negotiate, you know, until all our legal rights are exercised and realised, and all reparations are delivered and all historical wrongs are redeemed, we can’t negotiate and to me, that’s a highly legalistic, somewhat retributive view of the world.

28:53 – 29:30

And I feel it is quite dominant at the moment in global politics. And if we take Ireland, which I just happen to have accidentally started speaking about here, in a way we think Ireland is an example. I think it’s because I wrote something about Tony Blair in the Sunday supplements this week. But if we take Ireland as an example, we can see that, you know, it must have been the case that that that many, many people involved in the negotiations were saying, I’m sorry, we’re not going to get justice for your son and daughter or I’m sorry, these, these rights that you think you have full rights and self-determination or full rights to complete sovereignty

29:30 – 30:01

over Northern Ireland, with no exceptions. These rights are not going to be realised if we if we’re also going to reach some sort of negotiated don’t come to this dispute. So I think if we universalise that experience, we see the, the, the states or groups or individuals who come to political negotiation armed with rights, armed with a sense of justice and armed with a sense of righteous indignation, are going to make it much more difficult to reach agreement.

30:01 – 30:22

I mean, I sound like a pragmatist here, and there are obviously dangers in that. People will say, well, well, justice is what I believe in, and I’m not going to step back one bit just so that you can reach some sort of pragmatic outcome. It’s, it’s it’s very difficult. It’s very difficult to put this view because it’s not, as I keep saying, it’s not that appealing.

30:22 – 30:39

It’s much easier to call for justice. But I think there’s something cynical about it, too, because most, many people who call for justice know that it will never be realised. But, but, but, but, but sort of get a cheap thrill out of calling for it. And I think to a certain extent, international criminal law is that cheap thrill.

30:39 – 31:08

It’s the it’s the thrill of saying we’re going to put Vladimir Putin on trial, you know, over the dead bodies of many Ukrainian and Russian boys, though I would say. I think it’s a danger, and not that everyone is calling for trial is of that view, but there are certainly some people, particularly in the British political classes, whose idea of trying Putin for war crimes seems to me to be largely a political move

31:08 – 31:33

not really so much based on a sense of justice, in all honesty. But it’s certainly borrowing from that sense of justice, and it’s borrowing heavily from the existing institutions of international criminal law.

So you also bring in the idea of laughter as a way to try and deal with some of these, what you see as the deficiencies of international law, the uneasiness that you have with international law.

31:33 – 32:01

Can you elaborate a bit more on that, Gerry? Why, why laughter? Particularly again, when you’re that sort of contradiction between laughter and the seriousness that some people see international law dealing with things like genocide or war?

Well, I was I was very struck by something the psychoanalyst Adam Phillips once said, which is that we can only be ironic about the sorts of things we’re not ironic about.

32:01 – 32:33

You know, in other words, the irony is a response to sort of deep seriousness. And sometimes, sometimes laughter is too. So, I’ve often, when I was younger, I had the experience, as I think many people have, of being at a funeral and wanting to laugh, and finding that the sort of solemn declarations about the dead person were somehow the wrong choice of language, that there was a kind of teenager in me or a child in me that just wanted to laugh.

32:33 – 33:05

Because laughter is often a response to, pain or agony or tragedy. People undoubtedly experienced, trauma in that way at times. So I wondered if there was something to be said about laughter in relation to international law. And I noticed also the that people spoke about international law in two registers. They, in public, they adopted this kind of tone of what I call turgid solemnity.

33:05 – 33:31

They would sort of offer up, a sort of language that seemed dead in their hands. You know, you hear all the time. Politicians use it a lot, the sort of endless incantation of certain ideas that people know will never come to fruition. We will end child poverty in three years. We’re committed to equality. We want to stop the boats, whatever it is that’s, you know, these things feel like acts of acts of cynicism sometimes.

33:31 – 34:01

I think I felt like the solemnity with which officials and many of us speak about international relations ought to be put into relation with the highly ironic, sometimes subversive, way we spoke in private about these things. So, you know, who hasn’t been at an opening ceremony of a conference and heard the opening speaker and sat there nodding and clapping at the end, and then rushed off to the bar to pour utter scorn on the speech.

34:01 – 34:28

So I wondered if that private mentality, that private irony, wasn’t actually the most appropriate way to think about this world full of pain that we encounter, full of pain that could be prevented in so many, so many cases. And that perhaps the solemn language, and this is a language that I also implicate international law in, if this solemn language wasn’t part of the problem.

34:28 – 34:56

So I asked, I mean, unbelievably, there are two chapters in the book about comedy. One is about horror, but about what you might think of as the comic. One is about bathos, and, the other is about irony. And funnily enough, the bathos chapter is the one lots of people talk about, I think because they hadn’t encountered the word bathos that much.

34:56 – 35:28

So it’s sort of a word that’s become associated with the book. But, I was very struck by the way in which, in the encounter with war crimes trials, the person encountering the trial very often felt a sense of huge disappointment at the trial. Somehow the trial or the language was inadequate to the wrongdoer. And this was something that Hannah Arendt experienced in Jerusalem and wrote about in her famous book Eichmann in Jerusalem, from where the famous phrase the banality of evil comes from.

35:28 – 35:47

But I wasn’t interested in the banality of evil so much. I was more interested in the disappointment of the encounter and the slightly comic tone she takes in relation to it. At one point, the court describes Eichmann as a latter-day pirate in order to try and establish some precedent for the trial. You know, he’s a bit like a pirate.

35:47 – 36:17

He somebody who who was an enemy of the human race, who we had to abduct from the high seas. But in fact, in fact, in this case, Buenos Aires and dragged back to trial and execution. But Hannah Arendt said the world’s press hadn’t gathered to see Bluebeard on trial. And some of that irony spoke to me much more powerfully than the sort of solemn regurgitation of legal rules or righteous indignation that I see as being very, very common, in the field.

36:17 – 36:39

And it’s a sort of equivalent. And sort of thing you often hear around sort of middle-class dinner parties where people will say, oh God, it’s just terrible what’s happening in X. And that that idea that it’s just terrible what’s happening in X and acts seems to me to be a way of expressing one’s complete indifference to what’s happening in X.

36:39 – 36:58

In a way, is suggesting that it’s that need to laugh at the absurd. That laughter and irony, as you as you speak about it, it’s a form of moral vigilance, and that there is power in laughing at the absurd. But I guess for me, the question is, is there a danger that that ironic laughter becomes the only tool for those without power?

36:58 – 37:25

If if they can’t change the system, if they are subject to the to the force of others? If all you can do is laugh, is that is that really enough?

Yeah. No. That’s right. I have a I had a long debate with my friend, the philosopher Raimond Gaita, about this very subject. I think he worried the ironic laughter could neuter political action and a moral sensibility.

37:25 – 38:08

And I see that. I see that problem very starkly. I’m not sort of suggesting we should all go around laughing all the time. I’ve been very struck though by the presence of a kind of satirical laughter at various points in during war crimes trials, for example, but also throughout the history of international criminal law. And sometimes it is the appropriate response to the enormous gap between our aspirations and our language, sometimes our international legal language and the messy world underneath, so that that gap can only really be approached and has been approached historically through forms of irony and satire, sort of very powerful tools.

38:08 – 38:56

And I drew heavily on Paul Fussell’s marvellous book from 1975, I think it is, The Great War and Modern Memory, which talks about the way in which the soldiers in the trenches in the Great War, really changed our language entirely, in the United Kingdom at least, and possibly in Europe generally, from a sort of Edwardian language age of, of pompous solemnity and aristocratic sacrifice and duty, which didn’t make any sense to these soldiers who were being sent to their deaths by the, you know, the donkeys at home, as they called them, and instead adopted a different language, a sort of language of satire, irony, a very, very painful, very moving language

38:56 – 39:20

of of of of of of irony, a comic language that was the language that they it was the language they adopted in order to understand what was happening around them, and in particular to to understand the relationship between what Fussell calls their hopes and the radical abridgment of those hopes. And I think it’s that gap between hope and abridgment that that I speak about in the book.

39:20 – 39:29

And I think irony is probably not just the appropriate way of thinking, but it’s actually a description of that gap.

39:29 – 40:01

Yes. I wondered if you can elaborate a little bit more, though, that that idea of hope. So how do you bring hope back into the system? You’ve mentioned you going right back to the start, this idea of a utopian project, a redemptive project, but in reality, in how do we go about changing these structures to make it more hopeful? Having an international law, a system of international that actually does live up to perhaps those hopeful expectations, that narrows that gap between expectations and reality.

40:01 – 40:23

Yeah. Well, well, one one answer to that is to think of ourselves as having the choice. You said, you know, how do we choose to, I can’t remember the phrase you use. But it implied that there was a choice available. And I think that today, we we have a sense that those choices are not available.

40:23 – 40:42

And so to take my subject, international law, we we just tend to think that the world is organised around 195 sovereigns, and a UN, and a bunch of rules that might or might not be applied to armed conflict, and so on and so forth. And what I guess I was trying to do in the book is to get us to think about those as choices in two ways.

40:42 – 41:09

One is to say, you know what, what could we choose if we chose something different? And secondly, how did we come to these choices in the first place? So I wanted to go back to history, in order to, in a way, destabilise the inevitability of the choice. So we tend to think that what we that the world we live in is a sort of inevitable world, a world that is incapable of being changed because it’s the world we inherited.

41:09 – 41:40

We can’t imagine another one. But I think one of the wonders of history is that we go back and we we notice that A, that the world was different, but B, that we made certain choices in certain moments, that we now live with. So I spent a fair bit of my, one of my classes at the LSE talking about a moment at the Treaty of Versailles in the early 1920s, where the international legal order, began to develop an idea of a war crimes law.

41:40 – 42:04

And, I mean, that gets us it’s very useful because there were serious arguments at that time about whether this was a good idea or not. So we look at those arguments, as if we were contemporaries of those making the argument. So the arguments seem very compelling. And then on both sides, in a way, you know, people argued against war crimes trials on the basis that they were just completely and utterly absurd.

42:04 – 42:23

Somebody in an Imperial War Cabinet meeting said, what? What are you going to try, Moses and Alexander the Great? I mean, the war is just the state of human nature. And somebody else said, no, no, we need crimes against humanity. And they sort of invented the phrase in the argument. So you get this moment of fluidity where there are choices available.

42:23 – 42:46

And I think teaching that to students helps them realise that perhaps those choices remain available. I noticed, for example, that there’s now sort of school of international lawyers, young international lawyers who have organised a conference called the Abolition of International Criminal Law. Just asking, well, you know, it wasn’t around before 1919, what would it be like if it wasn’t around now?

42:46 – 43:11

Would it really make such a difference just to abolish it? It might free a whole cadre of young people who got caught up in a highly technical enterprise which produces very, very few tangible results. It might free them up to work as trade union lawyers, or in the war against poverty, or to help develop legal rules around soup kitchens.

43:11 – 43:36

Whatever it is, it might be more useful work. And yet people think it’s a complete fantasy to talk about abolition. They think you’re a bit mad. In fact, I’ve never called for it. But I have been, I’ve been described as someone who has. In Berlin not that long ago, I was described in that in those terms, and somebody said, are you going to abolish universities as well? As if I was a kind of inveterate abolitionist of all things.

43:36 – 44:08

But so I think, I think I think that that’s a useful way to think into, into the world. As far as the hope part of the enterprise is concerned. I took a quite sentimental view of the project when I began. My two daughters were there in their early 20s, at the time, and I wanted to write a book that they could read, while retaining a sense of hope and fun, should I say.

44:08 – 44:28

I wanted the book to be entertaining, and I wanted the book to, secrete, as it were, a sense of hope, even if that was a rather subtle, indirect hope. And so those chapters on friendship, the chapter on gardening are part of that. But I also sort of offering advice to young scholars.

44:28 – 44:48

There’s a passage in the book about how not to answer questions. And you know, how not to get, this is perhaps the wrong time to bring this up and your questions have been excellent, but, you know, I don’t know how to get so trapped in the wrong question. People. People often get trapped in the wrong question, and they end up giving an answer they wouldn’t give if they if they’d encountered a different sort of question.

44:48 – 45:08

So I’m often struck by, something my friend’s father once said when he was asked a question, he said, I just don’t think like that. And I think it’s very useful sometimes to think about the world in those ways. When you’re asked a question like, should Vladimir Putin be put on trial? The answer may not be yes or no.

45:08 – 45:28

The answer might be, I don’t think like that. I think differently about the diplomatic world. I think about how to get Vladimir Putin into a room in Geneva so that we can somehow end this war in a in an unsatisfactory way, because my unsatisfactory might be a lot better than your unsatisfactory in that, in that regard.

45:28 – 45:49

So I, I was sort of writing out, and I told the story at my book launch about going to the London Library in Piccadilly about a year ago and being given a tour. And at one point I said, where’s the cafe? And they said, it’s on the fifth floor. And I went up to the fifth floor and I saw a sign that said children’s books and International Law.

45:49 – 46:13

And I thought I’d sort of written a book for children, or a book that try to retain or hold on to a sort of childlike enthusiasm for the field while marrying that to the sort of scepticism that the academics sort of inherit as a matter of professional creed as much as anything else.

Yeah. So final question, Gerry.

46:13 – 46:43

But last chance for those listening in online, if you have any questions, pop them into the to the webinar chat for Gerry. You mentioned, I guess the next generation. Is that a way? Is that a part of this redemptive project as well for international law? I find it interesting that you’re suggesting that that part of the training, if you like, for international law or for lawyers, perhaps in general, is developing a sensibility for the world that is literary, that is cultural.

46:43 – 47:06

That’s not just technical. And I wondered if you could elaborate a little bit more on that.

Yeah, you’ve put that really well. I feel as if perhaps that’s what I’m committed to doing at the LSE. So students often, meet me after they go off and they work for international organisations and they say they, they encounter a sort of crisis.

47:06 – 47:27

They come from my classes and they move into the world of international criminal justice. And they try and put the two things together. And it creates a mini crisis because the two perspectives are totally different. So my view is that that’s the role of the academy. They often say they weren’t really prepared for the International Court of Justice or the International Criminal Court.

47:27 – 48:00

And I say, well, you know, thank goodness for that, because I’m not really in the job of preparing you for an institution. I’m in the job of preparing you for life. And I think that’s what I think of education as being fundamentally for. And so I try to offer them a perspective on international law that I describe as as literary, for want of a better word, that is just different and differently imagined and organised from the world that they’ll encounter in their work.

48:00 – 48:31

And it’s that creates a sort of psychological dissonance. Then, you know, so be it. I think it’s very important that we go through a series of crises as we develop our ideas and our professional and and personal life for that matter. So that’s that’s it. I call it, you know, slightly pretentiously, the last of the humanities. Because international law is one of the last places that is sort of protected, as it were, from the attack on the humanities, by being located in a law school.

48:31 – 48:51

But on the other hand, it’s a non-technocratic aspect of law. I mean, you could teach a sort of literary contract law or literary tort law, but it would be a bit of a push, a bit of a stretch. Whereas international law, I think one of its wonders, and I really like it as a field, I mean I like it as a field of study a great deal.

48:51 – 49:11

I like international criminal law as a field of study. I like the people who are in it. I like their thoughtfulness, their imagination, and I love the writing in that field. But I’m not so keen on the institutional structures. So I’m still so very committed to international law as an idea, as a place in which one can think about, think about the world.

49:11 – 49:37

I have no problem with it in that score. I’d hate to see it wither, on those grounds, but I’d like to see it radically, reformulated and changed.

Well, on that note, Gerry, I think we’ll we’ll wrap up. As part of our Rule of Law program, we are working with some young lawyers and people working in the field of law, some of who want to go into the, into the field of international law as well.

49:37 – 49:56

So, we hope that they can take some of the ideas that we’ve spoken about today and build on those as well, in terms of their own working out, their own way of relating to this, to this system. So again, Gerry, thank you very much for taking the time, and for your conversation.

Thanks. Thanks, Melissa. Yeah. Great questions.

49:56 – 49:58

Thanks. Thank you.