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Doctoral theses, the limitations of the legal response to domestic violence in england and wales: a critical analysis.

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• Family and children

Domestic Abuse Act 2021

In January 2019, the government introduced the Domestic Abuse Bill 2017-19 following a consultation on transforming the response to domestic abuse .

The legislation was reintroduced in March 2020 as the Domestic Abuse Bill 2019-21 , and received royal assent on 29 April 2021 .

We welcome the government’s commitment to tackling domestic abuse. 

• creates a statutory definition of domestic abuse
• establishes the office of Domestic Abuse Commissioner
• prohibits offenders from cross-examining their victims in person in the family courts
• creates a domestic abuse protection notice (DAPN) and domestic abuse protection order (DAPO)
• provides a statutory basis for the Domestic Violence Disclosure Scheme (Clare’s law) guidance
• creates a new domestic abuse offence in Northern Ireland to criminalise controlling or coercive behaviour
• creates a statutory presumption that victims of domestic abuse are eligible for special measures in the criminal courts
• enables domestic abuse offenders to be subject to polygraph testing as a licence condition following release from custody
• places a duty on local authorities to give support to victims of domestic abuse and their children in refuges and safe accommodation
• requires local authorities to grant new secure tenancies to social tenants leaving existing secure tenancies for reasons connected with domestic abuse
• extends the extra-territorial jurisdiction of the criminal courts  of England and Wales, Scotland and Northern Ireland to further violent and sexual offences

Definition of abuse  

The act creates a statutory definition of domestic abuse based on the existing cross-government definition .

‘Abusive behaviour’ is defined in the act as any of the following:

• physical or sexual abuse
• violent or threatening behaviour
• controlling or coercive behaviour
• economic abuse
• psychological, emotional or other abuse

For the definition to apply, both parties must be aged 16 or over and ‘personally connected’.

‘Personally connected’ is defined in the act as parties who:

• are married to each other
• are civil partners of each other
• have agreed to marry one another (whether or not the agreement has been terminated)
• have entered into a civil partnership agreement (whether or not the agreement has been terminated)
• are or have been in an intimate personal relationship with each other
• have, or there has been a time when they each have had, a parental relationship in relation to the same child
• are relatives

Read the government’s statutory definition of domestic abuse factsheet

Domestic Abuse Commissioner  

Under the act, the government must appoint and fund the office of independent Domestic Abuse Commissioner responsible for:

• representing victims and survivors
• educating the public about domestic abuse
• monitoring the response of local authorities, the justice system and other statutory agencies
• holding statutory bodies to account in tackling domestic abuse

The commissioner would have the power to hold statutory bodies and government to account and recommend how they can improve the response to abuse.

The act places a duty on certain public bodies and government ministers to cooperate with the commissioner and to respond to each recommendation within 56 days.

Read the government’s Domestic Abuse Commissioner factsheet

Cross-examination in family courts  

The act prohibits offenders from cross-examining their victims in person in the family courts.

There would be an automatic ban on cross-examination in person where:

• one of the parties has been convicted of, given a caution for, or charged with certain offences against the other
• an on-notice protective injunction is in place between the parties
• there's ‘other evidence’ of domestic abuse perpetrated by one party against another

The government has said that it will specify the offences and evidence of abuse required for this automatic ban in later regulations.

The act gives the court powers to:

• prohibit cross-examination in person where likely to either diminish the quality of the witness’s evidence or cause significant distress to the witness
• appoint a legal representative to carry out cross-examination on behalf of a party who is prohibited from cross-examining the witness in person

The government has said that this court-appointed representative will be funded centrally.

Read the government’s cross-examination in the family courts factsheet

Register as a qualified legal representative on the Domestic Abuse Advocacy Scheme

DAPNs and DAPOs  

The act introduces two new civil protection injunctions:

• a domestic abuse protection notice (DAPN) – for immediate protection following an incident
• a domestic abuse protection order (DAPO) – flexible, longer-term protection for victims

These new injunctions are based upon the existing domestic violence protection notice (DVPN) and domestic violence protection order (DVPO) .

A DAPN could provide that the accused party may not:

• contact the person for whose protection the notice is given
• come within a specified distance of any premises in England or Wales in which that person lives
• evict, exclude, prohibit from entering or require leaving that person from the premises (if they live together)

It could be issued by law enforcement against a party in response to a domestic abuse incident where there are reasonable grounds to believe that:

• the party has been abusive towards a person aged 16 or over to whom the party is personally connected
• it's necessary to give the notice to protect that person from domestic abuse, or the risk of domestic abuse, carried out by the party

Under the act, a DAPO could be used to prevent a party from being abusive to another person aged 16 or over to whom they are personally connected by:

• prohibiting the party from doing things described in the order, and/or
• requiring the party to do things described in the order

The conditions in a DAPO could be varied over time by the courts and would be able to cover positive and/or negative requirements. For example, a DAPO could:

• prohibit any form of contact between the parties
• require the party to be assessed for suitability for a substance misuse programme

Under the act, a DAPO could be applied for in different courts by:

• law enforcement
• other third parties specified in the legislation

The courts would also be able to make a DAPO during existing court proceedings.

A court can make a DAPO where it’s satisfied that:

• on the balance of probabilities, the party has been abusive towards a person aged 16 or over to whom the party is personally connected
• the order is necessary and proportionate to protect that person from domestic abuse, or the risk of domestic abuse, carried out by the party

Read the government’s domestic abuse protection factsheet

Domestic Violence Disclosure Scheme guidance  

The act would create a statutory basis for the Domestic Violence Disclosure Scheme guidance . This places duties on law enforcement agencies, such as the police.

Under the scheme, an individual or third party can ask law enforcement to check whether a current or former partner has a violent or abusive past.

Law enforcement should consider disclosing the information if records show that the individual may be at risk of domestic abuse.

Law enforcement may also make a disclosure to an individual if they receive information (for example, through a criminal investigation or from a third sector agency) about the violent or abusive behaviour of a person that may impact on the safety of that person’s current or ex-partner.

Any disclosure made by law enforcement must be:

• proportionate
• based on a credible risk of harm

Read the government’s Domestic Violence Disclosure Scheme factsheet

Special measures in criminal courts  

The act creates a statutory presumption that victims of domestic abuse are automatically eligible for special measures in the criminal courts on the grounds of fear or distress.

A party would be automatically eligible whenever an allegation is made that the behaviour of the other party falls within the definition of ‘domestic abuse’ set out in the act.

Under special measures, witnesses could give evidence, for example:

• using a live video link
• from behind a screen

Currently, special measures are only provided in the criminal courts when there is a belief that the quality of the witness’s evidence is likely to be diminished due to their fear or distress about testifying.

Victims will not have to satisfy the fear or distress test to be eligible for special measures.

It will remain a matter for the court to decide which (if any) of the measures would be appropriate.

Read the government’s special measures factsheet

Secure tenancies and housing  

The act requires local authorities to grant a new lifetime tenancy to a tenant or a member of their household when re-housing an existing lifetime social tenant or offering an existing lifetime social tenant a new sole tenancy in their home if it’s satisfied that the:

• tenant or a member of their household has been a victim of domestic abuse
• new tenancy is granted in connection with the abuse

The act places a duty on tier one local authorities in England to provide support victims of abuse and their children living in:

• specialist safe accommodation
• dispersed accommodation
• sanctuary schemes
• second stage accommodation

Tier one local authorities include county councils, the Greater London Authority, and metropolitan and unitary authorities.

Under the duty, local authorities must provide domestic abuse support. This includes:

• support for children
• counselling and therapy
• housing-related advice and support
• communicating with other health and social care providers
• specialist support for victims with complex needs and/or protected characteristics
• helping victims to recognise the signs of abusive relationships to prevent re-victimisation

Read the government’s secure tenancies factsheet

Read the government’s statutory duties on accommodation-based services factsheet

Extra-territorial jurisdiction  

The act extends the courts’ extra-territorial jurisdiction to prosecute ‘certain violent and sexual offences’ committed outside the UK by either:

• a UK national
• a person habitually resident in England and Wales

If a party is not prosecuted in the jurisdiction where the offence took place, a prosecution could take place in the UK if:

• if the party is physically present in this jurisdiction (following extradition if necessary)
• there’s enough evidence to provide a realistic prospect of conviction
• it’s in the public interest to prosecute

Read the government’s extraterritorial jurisdiction factsheet

We welcome:

• the inclusion of ‘economic abuse’ into the statutory definition of domestic abuse
• the inclusion of children aged 16 and 17
• measures to prohibit the cross-examination of domestic abuse victims by their perpetrators

However, legislation alone is not enough. Services for victims of domestic abuse must be properly funded.

The current Domestic Abuse Gateway fails to reflect the wider definition of abuse used in the act and does not include ways in which emotional, controlling or coercive abuse can be recognised. This should be rectified.

Any proposals made within new domestic abuse legislation must also be supported by a full programme of education.

Our priorities for the Domestic Abuse Act

Cross-examination.

We welcome steps to prohibit the cross-examination of victims of domestic abuse by their alleged abusers.

We encourage the government to extend this provision to include examination-in-chief.

Funding for services

We believe that further funding is required for domestic abuse services and other vital public services in order to adequately tackle this issue, particularly given the increase in cases as a result of coronavirus.

Availability of legal advice and support

We encourage the government to make sure that victims of domestic abuse can access legal advice and support.

The legal aid means test is preventing many living in poverty from accessing justice.

Read our research on the impact of legal aid capital and contribution thresholds for victims of domestic violence

What we’re doing

• March 2023 – we welcome changes that will make it easier for victims to provide evidence of domestic abuse
• November 2021 – we held a webinar on the Domestic Abuse Act 2021 , with advice for practitioners advising clients on the new regime
• April 2021 –  the bill received royal assent on 29 April 2021
• January 2021 – we put together a  parliamentary briefing ahead of committee stage in the House of Lords (PDF 217 KB)
• July 2020 – the bill was voted through the House of Commons  to be debated in the House of Lords
• April 2020 – we briefed MPs on our priorities and concerns ahead of the bill's second reading in the House of Commons
• March 2020 – we welcomed the introduction of the Domestic Abuse Bill 2019-21 to Parliament for its first reading
• November 2019 – Parliament was dissolved and all unfinished parliamentary business (including the Domestic Abuse Bill) fell
• October 2019 – we welcomed the return  of the bill to Parliament
• September 2019 – the 2017–19 bill failed to gain Royal Assent before the end of the parliamentary session
• March 2019 – we called for the government to support any domestic abuse legislation by increasing funding for legal aid, support services and policy
• January 2019 – the government responded to the consultation and published the draft Domestic Abuse Bill 2017–19
• September 2018 – we published research on the impact of legal aid capital and contribution thresholds  for victims of domestic violence
• June 2018 – we responded to the government’s consultation  on transforming the response to domestic abuse
• March 2018 – the government consulted on proposals for a draft domestic abuse bill
• Criminal justice
• Social welfare and housing
• Civil legal aid

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• Crime, justice and law
• Violence against women and girls

The Domestic Violence, Crime and Victims Act 2004.

Broad subject: Justice

Issue date: Fri Mar 04 00:00:00 GMT 2005

From: National Offender Management Service, Criminal Law Policy Unit

Linked circulars: No linked circulars

Copies sent to: Directors of Social Services, Chief Executives of Local Authorities, Area Child Protection Committees

Sub category: Criminal law

Implementation date: Mon Mar 21 00:00:00 GMT 2005

For more info contact: Diana Symonds - 020 7035 6989

Addressed to: Chief Officers of Police (England and Wales), The Chief Crown Prosecutor, Chief Crown Prosecutors, Resident Judges, Crown Court Managers, Justices’ Chief Executives, The Law Society, The Bar Council, The Director of Criminal Operations (Court Service), Senior District Judge (Magistrates’ Court), The Judicial Studies Board, The Justices’ Clerks’ Society, The Magistrates’ Association, HM Chief Inspector of Constabulary, Clerks to the Police Authorities, The Head of Criminal Justice Delivery Unit (DCA), HM Chief Inspector of Probation, Youth Offending Team Managers, Chairmen of Police Authorities, Lord Chief Justice of England and Wales, Lords Justice of Appeal, Queens’ Bench Division of Judges

Introduction

The Domestic Violence, Crime and Victims (DVCV) Act 2004 is the biggest overhaul of the law on domestic violence in the last 30 years. It contains a wide range of reforms in the three distinct areas; domestic violence, crime and victims. Its provisions will be commenced in stages.

The purpose of this circular is to provide guidance to those working in the criminal justice system on the provisions of sections 5 and 6, which introduce a new offence of causing or allowing the death of a child or vulnerable adult and new procedural measures linked to the offence. The offence will come into force in England and Wales on 21st March 2005. This Circular is for guidance only and should not be regarded as providing legal advice. Legal advice should be sought if there is any doubt as to the application or interpretation of the legislation.

The new offence and procedural changes form a package of measures which are intended to solve the problem that arises when a child or vulnerable adult suffers an unlawful death and it can be proved that one or more of a small group of people living in the same household as the victim caused the death, but not which of them. In such circumstances there may be no case to answer against any member of the household for murder/manslaughter. Until now this loophole in the law has enabled those co-accused of the death of a child or vulnerable adult to escape justice by remaining silent or by blaming each other. However it is also a serious stand-alone offence which puts a new legal responsibility on adult household members who could be charged with the offence even for example where there is no charge of murder/manslaughter or where evidence suggests that the defendant could not themselves have committed the criminal act which killed the victim.

The offence provides that members of a household who have frequent contact with a child or vulnerable adult will be guilty if they caused the death of that child or vulnerable adult or three conditions are met:

• they were aware or ought to have been aware that the victim was at significant risk of serious physical harm from a member of the household
• they failed to take reasonable steps to prevent that person coming to harm
• the person subsequently died from the unlawful act of a member of the household in circumstances that the defendant foresaw or ought to have foreseen

The offence may therefore be applicable in two different circumstances – the defendant may have caused or allowed the death of a child or vulnerable adult. The prosecution do not have to prove which of the two circumstances apply to the defendant. The maximum penalty is 14 years.

The text of the Act including the new offence and procedural measures can be found on http://www.hmso.gov.uk/acts/acts2004.htm .

The offence applies in England, Wales and Northern Ireland. The procedural measures are different for Northern Ireland in order to take account of the different court system and legal process there. It will apply to acts committed on or after the date of commencement. The ‘allowing’ element of the offence will generally be continuous rather than a single event, but for the offence to apply some failure to take reasonable steps to protect the victim, or continuation of a failure to take steps, must have taken place after the commencement of the provisions in the Act.

This Circular should in particular be brought to the attention of officers working in Child Abuse Investigation Units and Major Crime Teams which deal with homicide cases involving children and vulnerable adults, and to those staff in Social Services departments who deal with children, carers, vulnerable adults and wider domestic violence issues.

This circular is in four parts:

A. Background to the offence B. Formulation and purpose of the offence C. Issues relevant to the investigation of offences D. The procedural measures

Its terms have been agreed with ACPO.

A. Background to and context for the legislation

The loophole in the law, which can enable those co-accused of the death of a child or vulnerable adult to escape justice, has been recognised for some time. The potential problems of investigation and prosecution of these offences has been addressed by a number of organisations, prompted by a number of high-profile cases. This has included the NSPCC who organised a seminar called ‘which of you did it’ in November 2002. Subsequent work resulted in a detailed report issued the following year, and drawing on contributions from the police, academics, health and social services, the Criminal Bar Association and the Crown Prosecution Service. The Law Commission were also working on the problem from the point of view of criminal law reform, and they issued a consultation document in April 2003, followed by a report in September of that year (report no 282 Children: Their non-accidental death or serious injury.) The full report is available on the internet at www.lawcom.gov.uk.

Although the loophole can result in no charges of murder/manslaughter being brought, it is sometimes possible to bring instead charges of child cruelty. In cases where the child has suffered injury, rather than death, child cruelty offences under the Children and Young Persons Act 1933 may be an appropriate charge and provide appropriate penalties. But the child cruelty offence does not reflect the seriousness of the criminal behaviour if it has resulted in the death of a child. Nor can child cruelty be used where the victim is a vulnerable adult. The new offence will help deal with the ‘which of you did it’ cases, so that offenders can be brought to justice, and charges and sentences are available which properly reflect the seriousness of the criminal behaviour involved.

We would not necessarily expect a high volume of cases where charges under the new offence would be appropriate. It is difficult to be precise. Most recent Home Office statistics show that in the year 2003/4 there were a total of 70 victims of homicide under 16. In 30 of these the suspected perpetrator was a parent. But it is likely that only a small proportion of these would fall within the category where there was insufficient evidence to justify a charge of murder or manslaughter, and the new offence would result in additional people being charged. Moreover the offence is not limited to ‘which of you did it’ cases, but can be used where, even if there is strong evidence that one individual caused the death, there is evidence that other adult members failed to act to protect the victim in the circumstances set out in the legislation. So there may be additional cases resulting from this. We also need to add to this figure the cases where the member of the household who is suspect is not the parent, and the cases involving vulnerable adults rather than children. Based on current statistics, we would expect the number of cases to be small. Nevertheless, these may be important and difficult cases.

B. Formulation and purpose of the offence

The offence is contained in section 5 of the DVCV Act. A summary of the offence is given above. The offence will only apply to a person who, because they were members of the household who had frequent contact with the victim, had a duty to protect the victim from harm. It is reasonable that a person in those circumstances should be expected to take some action if this is possible, not simply stand by and do nothing. It is also reasonable that such a person should be expected to account to the court for the circumstances of the victim’s death. It is expressly mentioned within the offence that it is not necessary for the prosecution to prove whether the defendant caused the death or allowed the death to occur. This is to enable a prosecution to be brought against both defendants even where they remain silent about what happened or blame each other. Charges can be brought under the offence when evidence suggests that the defendant could not have directly caused the death, but there is sufficient evidence that he or she allowed the death to occur.

The offence will not apply for example where the death was an accident, or was the result of a cot death (sudden infant death syndrome). Nor will it apply where there was one specific known risk within a household, such as a violent or abusive person, but the child or vulnerable person died or may have died from a different cause. The offence therefore does not criminalise members of the household for allowing the death if the death was the result of an event which they could not have anticipated or avoided.

Frequent contact

• The offence applies to members of the household who have frequent contact with the victim. This may include family members or carers, but is not confined to that group. This is different from other offences such as those in the Children and Young Person’s Act 1933, which are based on cruelty or negligence by a carer. This is for a number of reasons. One is that the offence encompasses vulnerable adults, who often do not have an identifiable ‘carer’. The other is that it is a frequent scenario that a child is placed at risk when a new member of the household arrives, such as when a parent strikes up a relationship with a new partner after splitting up with a previous one. The new partner might legitimately claim that he or she has no caring role for the child. But the new offence makes clear that if he or she is in the position of a household member who has frequent contact with a child or vulnerable person, he does have a responsibility to protect that child or vulnerable person from harm.

The term ‘household’ will be given its ordinary English meaning by the courts. This means it is not likely to include care homes or, for example, nurseries where a child is looked after with a number of others. A child or vulnerable person who is being cared for in this situation will be covered by professional safeguards and standards and professional duties of care. A paid or voluntary domiciliary carer or housekeeper or an au-pair or similar may come under the definition of ‘household’ if it would be reasonable in the circumstances to regard them as such (see paragraph 16 below). They may therefore come within the offence. But the offence will mainly cover domestic situations where the ‘which of you did it’ scenario is most likely to occur, and where members of the household may feel under pressure to remain silent in order to protect themselves and protect other members of the household.

The offence also allows for the fact that, with modern lifestyles and increasingly flexible family arrangements, a person may be a member of more than one household at any one time. But if this is so, the offence will only apply to members of the household where the victim was living at the time of the act which caused their death. Increasingly children may live in one household, for example with their parents, but spend most of their time in another, for example grandparents or aunts and uncles. In the example above, the grandparents would not have responsibility for what happened in the parents’ household and vice versa.

The DVCV Act stipulates that a person may be regarded as a member of the household for the purpose of this offence if they visit so often and for such periods of time that it is reasonable to regard that person as a member of the household. Whilst the mere fact of frequent and long visits can in itself be sufficient to show that a person can be regarded as a member of the household, other relevant factors may include taking meals in the household or routinely being included in outings and other household social activities and routines. Membership of the household will be for the courts to determine on a case-by-case basis, taking all the circumstances into account.

In order to prove the offence, it will be necessary to show that the defendant either caused the death of the victim or failed to take reasonable steps to protect the victim from a foreseeable risk of serious physical harm. What will constitute those “reasonable steps” will depend on the circumstances of the person and their relationship to the victim, and will vary from case to case. The court will need to take all the circumstances into account. For example, if the defendant is a foster-child of 16, the steps which he or she could be expected to take to protect a younger member of the household might be limited. If one of the defendants has themselves been the victim of domestic violence, the steps that defendant could have reasonably taken may be more limited than someone not suffering that violence. Depending on the facts of the particular case the court may find that the defendant may have been too frightened to take some of the steps which in other circumstances might have been available to them.

Subsection (3) establishes that only those who are 16 or over may be guilty of the offence, unless they are the mother or father of the victim. This is intended to reflect the special responsibility which parents have towards their children. It is also intended to reflect that the parent under 16 will normally have support and advice available to them from social services, health visitors and their GP amongst others. Other members of the household who are under 16 may not have this sort of support available, and are not under the same duty of care as the parents of the child.

In cases where it is not clear which of the co-accused caused the death, the offence, together with the procedures which support it, should provide a mechanism to help ensure that the person who caused the death is identified and appropriately charged and sentenced. It will therefore often be appropriate for the defendants in the case to be charged with the new offence and with murder/manslaughter. But the offence is self-standing and household members could be charged with the new offence for example, where there is no charge of murder/manslaughter or where evidence suggests that the defendant could not themselves have committed the criminal act which killed the victim. The CPS will issue legal guidance to assist prosecutors in making charging decisions.

The offence only applies where the victim died of an unlawful act. Subsection (5) defines an unlawful act, as one that constitutes an offence, or would be were it not for the fact that the person lacks criminal responsibility. This means that if the person who caused the death lacks criminal responsibility or may lack criminal responsibility, the other household members can still be charged with the ‘allowing’ part of the new offence in respect of their failure to protect the victim. In this circumstance, it is possible that no charge of murder or manslaughter would be brought, but it would still be possible to pursue charges for the offence of causing or allowing the death.

C. Issues relevant to the investigation of offences

Victims of domestic violence.

Investigating officers will need particularly to be aware that in some of the households where this offence has occurred, more widespread violence and abuse may be present. Witnesses and co-defendants may therefore also be victims of domestic violence in these cases. It should be borne in mind that the defendant may be in fear of further violence. Domestic violence may seriously undermine the confidence of the victim and create an atmosphere of intimidation, shame and low self-esteem. It may not be easy for people to come forward if they are the victims of or witnesses to domestic violence or abuse. They may be very reluctant to admit that they are victims of domestic violence and therefore may not make clear their true circumstances, including any extenuating circumstances such as fear of the perpetrator. They may be afraid that they will be blamed for what has happened and that the family will be broken up and children will be taken into care. This is important since in cases where the defendant has also been the victim of violence, there may be limited steps which they could reasonably have taken in order to protect themselves, and even more limited steps which it would be reasonable for them to take to protect the child or vulnerable person who was at risk from violence. And the victim of domestic violence may not be ready to volunteer such information at the outset.

The offence should therefore be investigated and dealt with sensitively. The ACPO/Centrex guidance on child abuse and safeguarding children, published on 3rd March 2005 and the ACPO/NCPE Guidance on Investigating Domestic Violence (launched in November 2004) will provide further direction to the Police Service of England and Wales. Where there is a need to carry out a joint enquiry under section S47 of the Children Act 1989 involving social services and the police this should be undertaken in accordance with the guidance set out in working together to safeguard children.

But it should also be remembered that this offence is premised on a duty to protect the vulnerable person from harm. All members of the household who had frequent contact with the victim would have that duty. The fact that the defendant may be young and uncertain, feel intimidated or have suffered violence, will not in itself be conclusive evidence that it was reasonable for the defendant not to take any steps to protect the victim. In most cases (although not necessarily all) there will be steps, however limited, which the defendant could have taken. Investigating officers will need to identify those steps. They will then need to make a judgement about what steps a court is likely to conclude that the defendant in all the circumstances could have reasonably been expected to take.

Reasonable steps

• What steps a person might reasonably have taken will depend on their situation. It is an objective test and it will be for the courts to decide what was reasonable for a person in that situation. A judgement will need to be taken on a case-by-case basis as to whether a court would be likely to hold particular steps to have been reasonable in the circumstances of each particular case. As cases come before the courts, a body of caselaw will develop which will help in that judgement. Reasonable steps might include, for example:
• reporting suspicions of abuse to the police
• contacting social services. Most local authorities have websites and helplines for those seeking further advice
• making sure that the child or vulnerable person is treated promptly and appropriately for any injuries or illnesses which they may suffer
• explaining concerns to their family GP or health visitor
• contacting their teacher, head teacher or school nurse
• contacting organisations such as the NSPCC or Childline
• ringing one of the other voluntary agencies that support families, such as Home-Start
• contacting grandparents, an aunt or uncle, or another responsible adult member of the family
• exploring concerns with neighbours or others who may have contact with the person who is at risk
• making sure that alcoholism or drug dependence in other members of the household are acknowledged and appropriately treated
• attending anger management or parenting classes if appropriate, or ensuring other members of the household attend such classes

This list is not exhaustive, but gives examples of the steps which might be considered reasonable. Some of these steps could be taken anonymously, if the defendant were afraid of being identified. This may particularly be the case if the defendant has been a victim of domestic violence. If the defendant has chosen to do any of these things anonymously, it may be more difficult to prove conclusively at a later stage that they did take the appropriate steps. If there are no records, for example, of an anonymous report having been received by social services, then the court will have to make a judgement on the evidence available about whether they believe reasonable steps were taken.

The victim must have been at significant risk of serious physical harm from a member of the household. The risk is likely to be demonstrated by a history of violence towards the vulnerable person, or towards others in the household. For example, a person cannot be guilty of allowing the death of a child or vulnerable person if the victim died from a blow when there was no previous history of abuse, nor any reason to suspect a risk. Where there is no reason to suspect the victim is at risk, other members of the household cannot reasonably be expected to have taken steps to prevent the abuse and eventual death. They would therefore not be guilty of allowing the death if the death could not have been foreseen, even where it is clear that one of the household is guilty of a homicide offence. In that case every effort should be made by the investigating officer to obtain as much evidence as possible so that other appropriate charges can be considered. Appropriate charges might include murder/ manslaughter, or child cruelty or neglect under the Children and Young Person’s Act 1933.

Investigating officers should remember that a victim can be put at risk by neglect. If a child dies of neglect and other household members knew of the significant risk of serious injury from neglect, they could be guilty of the new offence. Where a vulnerable adult dies of neglect, this may not necessarily mean that the death was caused by a criminal act which would be caught by the offence. It would only be caught if the neglect was so serious that it would constitute gross negligence manslaughter (a criminal act). In that event it may be possible to charge all or some of the parties with gross negligence manslaughter rather than the new offence. The CPS guidance referred to previously should help to establish what charges may be most appropriate.

Vulnerable adult

• The offence defines the term ‘vulnerable adult’ as any person aged 16 or over whose ability to protect himself from violence, abuse or neglect is significantly impaired through physical or mental disability or illness, through old age or otherwise. The age of 16 rather than 18 is used in this context because the term ‘child’ is defined as under 16, and the term ‘vulnerable adult’ needs to include anyone who is vulnerable but is no longer defined as a child. Legal convention means that the term ‘or otherwise’ will be read with the words which have gone before, so that it will cover those who are unable to protect themselves for reasons similar to those listed. Although there are a range of definitions of the term ‘vulnerable’ in other legislation and in guidance, it was necessary to define the term for the purposes of this offence so that it would be as inclusive as possible. It covers those who are vulnerable temporarily as well as permanently, and those who are vulnerable due to mental as well as physical incapacity. Although the term ‘vulnerable’ is clearly defined in the legislation, the extent of the term in this context will emerge as offences under this part of the Act come to court.

D. Evidential and procedural changes

Although the new offence will enable charges to be brought against all those in the household who had a responsibility for the death of a child or vulnerable adult, even where no charges were previously possible, the policy goal remains that the person who has caused the child’s or vulnerable adult’s death should be identified and convicted of murder or manslaughter if appropriate.

The new offence may assist in achieving this goal. But by itself the new offence might not always open the way to such a conviction. The less culpable party could still not be willing to explain what happened. Or he or she might only give their version of what happened after the close of the prosecution case, by which time the judge would already have withdrawn the murder/manslaughter charge on the basis of there being no case to answer.

The DVCV Act has therefore provided for two procedural changes to be made to usual court procedures in trials involving the section 5 offence. Their aim is to enable more charges of murder/manslaughter in “which of you did it?” cases to get past a “case to answer” submission made at half-time and be safely left to the jury. The changes relate to:

a) the drawing of adverse inferences from silence in court, and b) the postponement, until the end of the defence case, of the decision on the question of whether there is a case to answer

Both have effect in relation only to the charge of murder or manslaughter, when those charges are accompanied by charges under the new offence. These procedural changes were proposed by the Law Commission in their report, Children: Their Non-accidental Death or Serious Injury, although the Act adopts a tighter mechanism for triggering them to keep them closely targeted at the “which of you did it?” cases.

Inferences from silence

Where a person is charged with an offence (including the new one) and that person fails to give evidence in court, section 35 of the Criminal Justice and Public Order Act 1994 (the 1994 Act) allows the jury a discretion to draw an adverse inference from the failure (or refusal) in relation to that offence, subject to certain safeguards. But in the “which of you did it?” cases where a case to answer cannot be established, section 35 of the 1994 Act does not help in respect of the murder/manslaughter charge, since the Court of Appeal has ruled (Cowan [1996] 1 Cr.App.R.1) that it only applies where there is already a case to answer.

Now, however, where a person is charged with the new offence and fails to give evidence, and if the jury would be able to draw adverse inferences in respect of the new offence under section 34 of the 1994 Act, section 6(2) of the DVCV Act provides that the jury may also draw an adverse inference from the silence in respect of the murder/manslaughter charge. Similar safeguards will apply to the drawing of an adverse inference under this new provision as apply to those drawn under section 35 of the 1994 Act. If the defendant stays silent and the requirements of the safeguards are met, then the inference that the jury may draw is that he or she has no reasonable explanation for his or her silence.

The safeguards which apply are similar to those that apply to adverse inferences drawn from silence under section 35 of the 1994 Act and aim to prevent a jury from drawing an adverse inference in inappropriate circumstances and from giving improper weight to any inference they did draw. Firstly, the jury would only be able to draw an inference if it was “proper” to do so. The judge would have to direct the jury only to draw an inference if it was satisfied that the defendant’s silence could only be attributed to the defendant having no answer to the charges against him or none that would stand up to cross-examination. This safeguard means that the jury would not be able to draw an inference against the defendant if it thought that the defendant’s silence could be attributable to other reasons, such as his desire to protect another person/defendant.

Secondly, there is a prohibition (section 38(3) of the 1994 Act, read with ECHR caselaw) on a conviction being based wholly or mainly on the inference from silence. But this does not mean that a conviction which would not have been obtained but for the inference is prohibited. The inference can be important and decisive in obtaining the conviction without being the whole or main basis for the conviction. If this were not so, the inference would clearly be worthless. The Law Commission, in its Report, said: “…where the evidence was such that the defendant was so close to the events that he or she must either have been the perpetrator, or been complicit in it, or be able, even if only by exculpatory evidence, to cast light on which other person was responsible for the child’s death or injury, then the court may well conclude that the circumstances so called for an explanation from him or her, as a person with the statutory responsibility, that it would be proper to permit the jury to draw an adverse inference from the defendant’s silence. In such a case the “eloquent silence” of the defendant might be said to be the “decisive” element in a decision to convict but it would not mean that the defendant was convicted “solely or mainly” on an inference from silence any more than the “decisive” straw is the “sole or main” cause of the camel’s broken back” ( paragraphs 6.86 and 6.87 of the Law Commission Report).

Postponement of the decision whether there is a case to answer

Where a person is charged both with the new offence and with murder/manslaughter, section 6(4) of the DVCV Act provides that the decision on a defence submission of “no case to answer” made at the end of the prosecution case shall be postponed until the close of all the evidence, providing that the prosecution has successfully established a case to answer on the charge of the new offence. If the decision on whether there was a case to answer were not postponed, and new evidence emerged about who caused the death, the murder/manslaughter charges would already have been dropped and, despite new evidence, it would not be possible to achieve a conviction for murder/manslaughter.

The purpose of section 6(3) is to prevent the normal procedures by which the defence can apply for charges to be dismissed at the pre-trial stage from undermining the impact of the other procedural changes.

Anticipated impact

• The ability to draw an adverse inference from silence in respect of the murder/manslaughter charge, coupled with the postponement of the case to answer decision, should have a real impact in certain cases. We expect these measures to lead to convictions for murder/manslaughter that would not otherwise have been obtained. The impact should be felt in several ways:
• firstly, when the judge makes his or her decision as to whether there is a case to answer at the end of the defence case -if the judge considers that the jury could properly draw an adverse inference, he or she will be able to take the inference into account in making his or her decision on case to answer. It is anticipated that this will lead to more cases being put to the jury than is currently the case
• secondly, when the jury make their decision - if they consider that the safeguards in relation to drawing an adverse inference are met, they will be able to take the inference into account when making their decision
• thirdly, and more generally, the prospect of the adverse inference being drawn - in relation to murder/manslaughter as well as the new offence - may encourage one or more parties to give evidence explaining what happened

ECHR issues

• The Parliamentary Joint Committee on Human Rights looked carefully at whether the procedural measures would be compatible with the ECHR requirements to provide a fair trial (ECHR Article 6). They concluded that the measures would be compatible with a fair trial, because they are confined to the very particular circumstances in which the new offence would apply. The Law Commission have also pointed out that there is an obligation under the ECHR for signatory states to ensure that deaths are properly investigated as part of the obligation to ensure that everybody’s right to life is protected by law. Ministers have certified that in their view the DVCV Act is compatible with the ECHR rights.

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New legislation aims to expand domestic violence prevention training for salon workers

(InvestigateTV) — More than 10 million people are victims of domestic violence each year in the United States.

According to the National Coalition Against Domestic Violence, about 20 people per minute are abused by an intimate partner.

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The hotline was started back in 1996 and has fielded more than seven million calls in the years since.

Copyright 2024 Gray Media Group, Inc. All rights reserved.

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The Disastrous Relationship Among Israel, Palestinians and the U.N.

The legal scholar aslı ü. bâli traces the history of international law and its role in the israeli-palestinian conflict..

[MUSIC PLAYING]

From New York Times Opinion, this is “The Ezra Klein Show.”

On Friday, May 10, the U.N. General Assembly passed a resolution saying Palestinians qualify for full member status at the U.N.

In the end, the vote was overwhelming. In favor, 143. Against, 9. Abstentions, 25.

[GAVEL SOUNDS]

This was new. The General Assembly had never voted for that before, but they did so now in overwhelming numbers. The final vote was 143 to 9. Israel voted against it. So did the United States. Now, to make Palestinians, to make Palestine, a full member of the U.N. would take a Security Council approval. The US would veto that. Our position is that a Palestinian state should only emerge through negotiations between Palestinians and Israelis.

But the vote itself was a sign of the chasm that is opening between not only Israel and the U.N., but America, too. Israelis have long felt the U.N. is biased against them. In 1975, the U.N. voted to declare Zionism a form of racism, though repealed that in 1991. From 2015 to 2022, the U.N. General Assembly adopted 140 resolutions on Israel. Over that same period, it passed 68 resolutions on all other countries combined.

At the same time, the U.N. was instrumental in the creation of Israel, voting to partition the land of historic Palestine between Jews and Palestinians and giving a majority of it to Jews. Palestinians feel the U.N. in particular, and international law in general, has been a procession of false promises. Where is their state, their self-determination? Where is the right of return for their displaced? What have all these resolutions and condemnations amounted to?

Aslı Bâli is a professor at Yale Law School who specializes in international law. Now, I wanted to have her on to trace a deeper question here, too, one that stretches beyond Israel and Gaza to Russia, Ukraine, and really, the whole world. What is international law actually for? As always, my email, [email protected].

Aslı Bâli, welcome to the show.

Thank you for having me.

So I think the way we normally think about laws is that they are rules where if you break them, some kind of external actor comes in to enforce a punishment, right? Maybe a sanction, maybe imprisonment. With that definition, is international law actually made up of laws?

It is made up of laws, and it sort of depends on where you sit. So if we take an average-sized country with an average military capacity and an average economy, it might be very much deterred, just by the presence of the rules themselves, from doing things that it could reasonably anticipate would be subject to punishment under the rules, like sanctions, or punishment, like international adjudication.

And it would depend a little bit what kind of violation it was and whose interests were at stake. But there are many, many contexts in international law where it operates just the same way that you expect it to operate in a domestic legal system.

We are thinking about international law from the perspective of sitting in the United States, a country that is the author of most of the rules, a rulemaker, and not very often a rule taker, in part because it’s by far the most powerful state in the international system. And we tend to project from that experience of understanding international law, in, let’s say, an a la carte manner, to how all states in the international system might regard international law. But that’s wrong.

I think that makes sense to me. But one of the things I was looking at before we talked was, what, since roughly 2000, have been the conflicts with the most terrible casualty counts? And when you look at that, you actually do see a lot of countries that are not hugely powerful international actors.

I mean, you see Syria on there. You see Yemen, you know, and the Yemen Civil War. You see Ethiopia and Eritrea. And all of these — and some of them in particular — have had terrible atrocities associated with them. But the fact that the perpetrators weren’t particularly powerful did not seem to create some opening by which the international community could stop the bloodletting.

Yeah, in the two specific examples you just gave that you began with in Syria and Yemen, the reason for this is because smaller or less powerful actors can seek great power patrons in the international system, and those very powerful states can disable mechanisms of enforcement and accountability. So in the case of Syria, it has cultivated a relationship with Russia, and Russia has effectively used its veto power at the Security Council to shield Syria from various forms of accountability that were very much on the table.

With respect to Yemen, the source of impunity has been the United States, and Saudi Arabia has been able to wield its own influence, backed by the United States at the U.N. through a variety of backroom negotiations and open threats. So the cases you began with are cases where great powers stopped accountability from occurring through their veto and the Security Council and other means.

That still leaves the other example you gave, which is Eritrea and Ethiopia. And I would add to that one more, which is the conflict that has consumed the Great Lakes region in Africa since the late 1990s, where you have had millions of people displaced, millions of people killed and injured, and essentially very little by way of international intervention.

These are cases where no great power is interested and is willing to generate the political will to engage the institutional accountability mechanisms that exist because there isn’t, for example, a domestic audience cost. There isn’t an outcry domestically over that particular conflict in the Great Lakes region, D.R.C. example that I gave you. There’s no comparison between the level of attention and scrutiny given by the American public to conflicts that are occurring in Europe or in the Middle East and those that are occurring in parts of Africa where the United States is not historically deeply implicated or engaged.

So what I hear you saying here in different directions is that for international law, like for other kinds of law, power really matters.

Yeah, and if you would, let me indulge in just one more example, in the context of the 1990s, when the United States was by far the most powerful state in the international system, an uncontested sort of unipolar moment, there were two major crises that involved clear evidence of crimes against humanity, possibly genocidal crimes and violence. One was in Yugoslavia, and the other one was in Rwanda. And there was enormous international attention to these contexts.

And yet there was still a reluctance to do the first thing that international law might have required, which is to trigger measures through the U.N. Security Council that would wield international power to get the violence to stop. And there were constant calls for this.

But from the United States’ perspective, a painful, punishing experience in Somalia earlier in the 1990s had yielded the lesson that we will not be implicated in judgments by the Security Council, suggesting that such an obligation might exist, for example, by characterizing the conflict in Rwanda as a genocide. We will not allow this because this will drag us into engagements that we do not wish to be part of.

Eventually, of course, because the Yugoslav conflict was unfolding on European soil, eventually, you did have a direct intervention, but it took a very long time. And so that’s another example of a place — it’s sort of in between — where international law is definitely being used. It’s shaping the responses of actors, but it’s being deployed in a way that defers the urgency of the moment and allows bloodletting to continue.

Before we get into the conflict where we’re actually really here to talk about, I guess I want to ask a more personal question of you, which is, this seems, from everything you are describing here, to be an incredibly frustrating world to work in. I know a number of international lawyers. I know people who care deeply about international law, and they are unerringly some of the most idealistic, most justice oriented people I have ever met.

And yet what we’re describing here, what you’re describing here, is a world where powerful states decide whether enforcement actions will be taken, where power decides whether the law will apply at all, where the relevant body of the U.N. that decides on security actions is dominated by a small number of very powerful players wielding vetoes. How do you balance the sort of belief in the laws as written and your recognition of the way that practical politics and power end up shaping and warping their application?

So the international peace and security order that we have emerged out of the Second World War, which resulted in the deaths of at least 30 million civilians, which caused untold damage to the world over, although we tend, in the United States, to focus exclusively on the European theater. So the architecture that was established for the international legal order in the aftermath of the second World War prioritized peace over justice without any doubt, in my view.

The nations were united. The big five, China, Russia, Britain, France, and the United States, led the peoples of the world as they launched a rule of international law and a bill of human rights, a rule of law they believed no nation, large or small, would dare defy.

The architecture of the United Nations security order gives asymmetric power to the victors of the Second World War that were also assessed at that time to be the most powerful states in the international system, states that now have nuclear weapons. Any war between those five states threatens planetary extinction, and as a result, must at all costs be avoided.

The architecture of the U.N. endows them with this asymmetric power as a mechanism to keep them inside of the institution, negotiating the differences amongst them, rather than resorting to extra diplomatic, extra political means to resolve their conflicts.

Now, imagine a universe in which the great majority of countries agree that the circumstances in Israel-Palestine represent a threat to international peace and security and require imperatively international intervention. The United States would interpret such an intervention as a direct threat to one of its most core interests of enormous consequence. And so immediately, you would be in a situation in which one nuclear power would be on one side of the equation, and arguably, one or more nuclear powers would be on the other side of a conflict.

There is a real risk that any number of geopolitical zones of conflict, including Israel-Palestine, including the Middle East, could become the site of a metastasizing globalizing conflict in which one or more of these nuclear states has ranged against the other.

But the institutional design of the United Nations system is intended to prevent that by enabling each of these powers to paralyze any action when one of these great powers understands its interests to be threatened. That’s the design of the system.

International law, though, has other characteristics, too. For one thing, it is a recognition of the sovereign equality of all states, regardless of their ability to defend their borders militarily. So it’s a system that is a de jure matter, recognizes equality amongst fundamentally unequal units in the international system, and affords some possibility for smaller states to protect their own independence using a normative language in which all actors recognize the states in the international system have a shared vocabulary.

That’s an incredibly valuable possibility. It’s a language that makes it possible to make normative claims on the powerful and to limit the degree to which they exercise their power in ways that are deeply compromising of the interests of states that are far weaker.

So the basic decision made to build an international institutional architecture that recognizes those asymmetries of power and keeps those countries in, even at the price of paralyzing the security order in circumstances where they believe their interests are at stake, is a decision to prioritize the avoidance of a third World War over justice as part of the actual internal institutional structure of international law itself.

You’ve said that the creation of the state of Israel and the creation of international law as we know it today are interwoven. How so?

So one of the things that the League of Nations did after World War I was oversee the territories of collapsed empires that were defeated in the course of the first World War and whose territories were now no longer under imperial dominion. On the land empire of the Ottoman Empire in the Middle East, the territories were not deemed capable of self-government and were placed instead under mandates, a kind of trusteeship, in the hands of colonial powers.

One of those was the Palestine mandate. And it was bequeathed to Britain to oversee as a mandate that was supposed to enable the self-determination of the people on that territory. There were a range of events for two decades, as the British maintained this mandate authority, in which you had increasing emigration of Jews from Europe and elsewhere to Palestine as part of their goal to establish a state on the Palestinian territory that would realize the ambitions of the Zionist movement, which was born in Europe in the 19th century.

And the British authorities were extremely supportive of the goal of Jewish communities to establish a Jewish homeland in Palestine. It was something that was conceived of as a solution to an ongoing problem of Europe, which was the kind of raging anti-Semitism and the violence that came with it that culminated horrifically in the shoah in the Second World War. But of course, it punctuated European history for centuries before that with pogroms and persecution across the continent.

And then, of course, you had the indigenous Arab population of Palestine that were seeking self-determination and independence, as were the Arab populations of the other mandates, Syria, Jordan, Lebanon, et cetera. And so, of course, this was producing inter-communal clashes because you now had two communities that were seeking to engage in self-determination on one land. And so this conflict raged for two decades.

And at the end of the Second World War, the British, basically having difficulty maintaining imperial control as a general matter, turned its mandate in Palestine over to the newly formed United Nations and was asked to make a judgment about what should be done about these competing ambitions for a homeland.

At a special session, the General Assembly of the United Nations established a special committee on Palestine and sent it to this troubled area to study the problems and make recommendations.

The judgment that the United Nations made was that the land would be partitioned between the Jewish community, which would get roughly 55 percent of the land, and the Arab community, which would get roughly 45 percent of the land. The Palestinians of the territory were accorded less than half of the territory that had been part of the mandate.

They objected to this. They also constituted a very, very large majority on that territory at the time. But the Arab rejection led to a war. And in that war, the Jewish forces gained a larger proportion of the territory even than had been assigned to them in the partition, leaving 22 percent of the territory under Arab control and the remainder under Jewish control.

Israel was admitted to membership in the United Nations, and her flag was raised at Lake Success. Again, the United Nations had, through peaceful mediation, resolved an international dispute, which had been a threat to world peace.

So that’s as of 1949. But in the following two decades, the U.N. presided over a much, much wider scale decolonization of territories that had been colonial possessions of Britain and France and other European powers across the Middle East, Africa, and parts of Asia.

And this enormous wave of decolonization brought dozens of new countries into the United Nations, newly independent countries, all of whom were highly committed to a model of decolonization that enabled populations under colonial rule to achieve self-determination.

So one thing I think this gets at is the way in which there are these two narratives that sit alongside each other about the foundation of the state of Israel and the world we now inhabit around that, which is, one, is that it was an act of the United Nations, right? There was a piece of paper. There was a partition plan.

And another is that the U.N. was a bit of a sideshow, and there was a war, and that sort of understanding Israel, and, for that matter, Palestine and Palestinians, as constructs of international law, has both always been tempting, because international has always been right there, but has actually been wrong, because in the end, the U.N. did not send in peacekeepers or soldiers to enforce its own partition. It did not send in people to create its own preferred outcome.

And so there’s been this tendency to look outside of the conflict for this arbitrating authority of the U.N. that has always been right there alongside the conflict and still is, but has never actually been able to manage or effectively structure it. How do you think about the way these sort of two tracks of interpretation have evolved alongside each other?

So I think that the second track that you describe, which just views the creation of the state of Israel as a fact of war, is problematic for a couple of reasons. The first is that it doesn’t ask a set of questions that are the predicate to that war being possible. How was it that there was an idea that an Israeli state would emerge on a mandate from the Ottoman Empire that was called the Palestine mandate for the population that was on that territory at the time of the end of the first World War?

That, too, was an instrument of international law. The mandates were created as a consequence of the Versailles Peace Treaty, and the British exercised its power as a matter of international law over Palestine, and, of course, many would argue, violated the terms of a mandate by enabling a kind of pattern of immigration and demographic change, along with commitments, political and legal, to another community to achieve self-determination on that same territory.

And this connects to the ways in which international law itself has long been, prior to World War II and since, a system of rules that essentially have facilitated European, let’s say, now Western or global North control over swaths of territory that were defined lawfully as colonies.

So the thing you’ll hear from Israelis on this is, they feel the U.N. is biased against them. You’ll hear that from 2015 to 2022, the U.N. General Assembly adopted 140 resolutions on Israel. It adopted 68 resolutions on all other countries combined, even though this is a period when there was a lot of war, a lot of atrocity, a lot of human rights abuses in places like Syria and Yemen. So there is a specific level of interest in Israel and the Palestinians that I think if you’re just looking at, say, casualty counts of different wars and conflicts, you wouldn’t be able to predict.

So it’s the only territory that had been slated to be decolonized at the creation of the United Nations that it inherited from that previous system that has not been decolonized. It is not disproportionate to the attention that was paid to apartheid South Africa, where the territory continued to be under white minority rule. For decades in the United Nations, these two challenges were understood as ongoing examples of incomplete decolonization that continued long after the rest of the world had been fully decolonized.

At the beginning of the 1990s, there was an expectation globally that both of these remaining dossiers of incomplete decolonization were on the cusp of being resolved, one of them because of the transition within South Africa to a post-apartheid constitutional regime, and the other because of the Oslo peace process and the imminent possibility of the emergence of a Palestinian state.

In the context of Israel-Palestine, the two-state solution did not come to fruition. And as a consequence now, Palestine remains the one instance that goes right back to the founding of the United Nations of an example that a majority of states at the U.N. continue to interpret through the lens of incomplete decolonization.

So from the US perspective, decolonization is over. It was a good thing, and now we’re in this post-Cold War order. But from the perspective of the world that was subject to colonial dominion, the question of decolonization remains very live, and the continuities between the experience quite recent, I would add, historical experience, of their nations and the current scenes that are emanating out of Israel-Palestine, makes this an ongoing issue of concern for them, if only for symbolic reasons and if only to a limited extent.

So voting on U.N. General Assembly resolutions is not exactly the same as having serious skin in the game. But those 143 states in the international system understand the Palestinians as entitled to self-determination and a state. 50 countries in the world don’t recognize Palestinian statehood. And there’s an enormous overlap between those 50 countries and the former colonial powers in the international system.

And so in that circumstance, I think you can see why it is that what you’re describing as disproportionate attention is actually attention to the one case that continues to reflect this longstanding grievance of the global South over the role that international law has played in enabling subordination.

The view I often hear from Israelis about this is that they feel there is something unusual about the belief that Israel itself is unusual. And it’s an attack they often lob specifically at the United States, which is itself a nation that was settled, settled with enormous violence to it. There is a lot of blood in the founding and blood in the early years of the country, and that at some point, that is no longer a question, right? There isn’t an effort anywhere to sort of say, should the US continue to exist?

And to israelis, there are many countries that look like that, that their foundations have a war in them, the foundations have an expulsion in them, but that country is now kind of accepted as just a country, not sort of an open case file, whereas Israel, they feel like there is somehow softer clay around them than other countries that don’t look all that different in their origins. Do you think there’s validity to that feeling? And if so, does it reflect that Israel emerges after the formation of the U.N. and this world of international law, or is it something else?

I do think it has to do with the fact that Israel emerges after the rules have changed. So it’s quite true that the United States was founded in a very similar fashion with European settlement, and in fact, much more violent — the genocide of the indigenous population, expropriation of its lands, enslavement of peoples, trans-Atlantic slave trade, et cetera.

There’s nothing to celebrate about the origin story of the United States from that perspective as a matter of international law, except that at the time that all of that happened, there weren’t clear laws that excluded that. In fact, quite the opposite. As I mentioned, international law facilitated colonial conquest of non-European lands and territories and offered a set of justificatory frameworks for enabling that.

So, first of all, there was already international law applicable that treated Palestinians differently than indigenous populations of earlier centuries. As a consequence of the end of the first World War and the creation of the League of Nations, Palestinians had already been recognized as a people with a legitimate right of self-determination, subject to a mandate that was understood as a trust in order for them to have their welfare preserved, I mean, however cynically, by a colonial power until such time as they could exercise their right of self-government.

And secondly, following the end of the Second World War, there were new rules about the conduct of war and the protection of refugees. So it was against that backdrop that Israel came into existence. And it’s less that it’s considered a state unlike all other states, and it’s not an incomplete file as such just on the Israeli side. It’s rather the idea that, today, you have 14 million people on this territory. Half of them were recognized as having their own right of self-determination, and that has been frustrated. The other half has achieved its right of self-determination.

So Israel has created a state that is an expression of the recognized right of self-determination of the Jewish people, but is continually behaving in ways that essentially deny Palestinians the ability to achieve the same. All of those efforts that you described of external actors to impose solutions of one kind or another, whether they be unilaterally the British or the Americans or the United Nations as an international organization, one thing they run up against is that there are actually two communities on the ground whose preferences need to be taken into account.

One of them is asymmetrically more powerful than the other. Each of the rounds that you described or that we’ve discussed so far have greatly favored the Israeli side in one way or another. The least example of that is the U.N. partition plan. All subsequent plans have enabled Israel to retain far larger swaths of territory, territory acquired by use of force in a time when international law prohibits the acquisition of territory through the use of force.

So these agreements, these externally backed agreements, have systematically favored the more powerful side. And the inconvenient reality on the ground is that there are two populations of equal size on the territories, 7 million Palestinians, 7 million Jewish citizens of Israel. And it has proven impossible to force, through external pressure or by dint of arms, Palestinians to simply accept their subordination as a legal matter. And so you have an ongoing conflict.

Let me pull us into the present here and look at another body of international law, which is the international laws around war and conflict. And let me begin on the part that I think people are talking less about right now, which is that on 10/7, you have Hamas fighters cross into Israel. They kill around 1,200 people, most of them civilians. They take hundreds of hostages, many of them civilians. What does international law have to say about that?

So they clearly violated the laws of war by first deliberately targeting civilians; secondly, taking civilians hostage, which is also impermissible. And then ongoing indiscriminate rocket fire is another source of violation. So there’s undoubtedly war crimes committed by armed Palestinian factions, including Hamas, on Oct. 7.

If Israel wanted to rely on U.N. international law here as both a matter of defense and a matter of justice, what would it have said or done?

So it had a number of potential options. It could have engaged in a police action in Gaza seeking to apprehend individuals that they held responsible for the Oct. 7 attacks. It would probably have begun with investigation on Israeli territory of who actually was responsible for taking the individuals that had been captured alive on Israeli territory, interrogating them, and then seeking to gain access to or jurisdiction over those that were held responsible.

It could have engaged in a much narrower set of engagements, attempting to target facilities that made it possible for armed actors to cross the border in the way it had. And primarily, it could have shored up its own defenses because the conditions that enabled the Oct. 7 attack to occur was not some new, unexpected capacity on the part of armed actors that represent an ongoing existential threat to Israel, but rather a failure to maintain basic defenses at the border with Gaza.

Israel has responded with the view that Hamas is a kind of organized fighting force that cannot be allowed to continue to exist as any kind of fighting force. That as long as Hamas exists as a structure, it will continue planning and using creative means to try to figure out how to strike at Israel’s weaknesses, and so that they need to destroy Hamas. They can’t just treat it as something where a couple people committed a crime. The thing that was Hamas cannot be allowed to exist. How does that fall within the way international law understands the kinds of responses that are reasonable here?

I think the view that the absolute destruction and extermination of your adversary is the war objective is simply grossly disproportionate and impermissible as a matter of use ad bellum, which is to say the law governing resort to the use of force. Hamas does not represent an existential threat to Israel. Israel is saying that our objective in this war is to destroy all Hamas military presence, period. So then it’s basically a no holds barred situation because the argument is there are tunnels underneath everywhere.

So the way that Israel is interpreting international humanitarian law here, its deliberate choice to prioritize military necessity over the principles of proportionality and distinction, and also to describe military necessity with respect to its overall strategic objectives, rather than answering the question whether this object in this concrete and direct way is contributing to a specific military advantage in that moment, is reinterpreting the rules in a way that undermine both the spirit and the law of international humanitarian law, because it eviscerates the law’s ability to protect civilians.

What’s made much more complicated is that Israel is not always clear in claiming that it’s Hamas as an armed actor that must be destroyed. Oftentimes, it seems as if it’s just Hamas as a whole, and Hamas has many different characteristics. It is an armed faction in Gaza, but it is also the governing authority that represents all of the civil service, all of the bureaucracy, all of the municipal services, everything that enables any territory to run from crossing guards to sanitation workers to people who are operating the hospital systems.

And so the idea of destroying the governing authority is totally impermissible and would be actually targeting of the civilian infrastructure, which is, indeed, something I think we’re seeing. And so there’s a troubling question of, how does Israel define the object that it’s seeking to eliminate or exterminate? And in the context of Gaza, which is a very, very small territory with a very dense civilian population, is going to have the kinds of consequences we’ve seen of just grotesque, disproportionate harm to civilians.

Is this a place where international law and what you might call international practice diverge? Because it is difficult for me to imagine all that many countries suffering the kind of attack from a neighboring territory that Israel suffered, and not believing their objective is to wipe out the governing authority that planned, financed and launched that attack.

I mean, the obvious, I think, analogy for Americans is Al Qaeda after 9/11 was certainly the way the American political establishment initially absorbed this moment, right? Joe Biden kind of making the point of how many 9/11’s this would feel like to Israel, even as many of us kind of really pushed the idea that our response to 9/11 was misguided.

But it wasn’t an effort to invoke that same sense of how a country might reasonably be expected to respond to this kind of security risk. So there’s a question of international law here, but there’s also the question of, what do countries typically do under this kind of pressure? And I wonder if those two diverge for you.

So it’s an interesting question. To begin with, the idea of a country facing an armed attack from another country and what does it do is, of course, the premise of all of the laws of war.

And let’s think of the context of Ukraine and Russia, for example. We don’t imagine a scenario in which it’s permissible for either of those actors to have as its war objective the complete elimination and extermination of all fighting forces and the governing structure of the other. We would understand that to be a kind of total war that’s ruled out. And if either party seemed as if it was pursuing that kind of a maximalist goal, that would be rejected out of hand.

So it really depends on where you sit. If you’re the United States and you choose to see Hamas as the equivalent of Al Qaeda on 9/11, you might choose one set of repertoires. And as you say, international law required constraints that the United States did not observe post-9/11 and came to regret it for the reasons you were suggesting.

Many of us believe that the US response post-9/11 was disastrous, not only for those that were the targets of US force, but also for the United States itself, which, in fact, suggests that there is a purpose to the rules, and that enabling their constraining function may actually be in the interest of all parties. But if you’re sitting elsewhere in the world, for example, in the Global South, then you might not think of Hamas as similar to Al Qaeda, but rather to the national liberation movement that achieved independence in your own country.

And the rest of the world, the Global South, at least, fought very hard for a law that entrenched that right of armed resistance in the international legal order through the additional protocols to the Geneva Conventions and through a range of subsequent customary international law that has grown up around the Geneva Conventions and the additional protocols that recognize national liberation movements as a very different kind of actor, a sort of proto-state military, rather than an actor that can be compared to Al Qaeda or a terrorist group that isn’t connected to a claim of national self-determination.

I want to go back to something you said a minute ago about Russia in Ukraine. Because I actually did understand something like the governing authority of this country is illegitimate and a danger to us and needs to be wiped out completely, as Russia’s, at least, stated objective of what they were trying to do in Ukraine. And I think this gets to this question somewhat of enforcement, where I think Russia’s general invasion was rejected within international law.

And yet there is this kind of shimmering, crazy making sense around it, where Russia did the thing that is most abhorred under international law — just launched an invasion of a neighboring country for functionally no reason whatsoever. And yet Russia maintains its standing in the international system as it has always been. It’s sitting there on the U.N. Security Council. The fact that its efforts have been rejected has not mattered all that much.

If we are looking at the Russia-Ukraine analogy alongside this, I do think that is one where people look at the system, and they say this is no system at all. This is just power dressed up as laws, not laws that actually act to constrain power.

In Russia and Ukraine, it’s one thing to say that the goals of Russia are to defeat the Ukrainian government and to perhaps remove the leadership of the Ukrainian government. And it’s another thing to say that the goal of Russia is to wipe them out and exterminate them.

So I don’t think we have any evidence to suggest at this point that they have articulated an expectation, for example, of taking every person who has served in the Ukrainian government, from trash collectors to sanitation workers to civilian crossing guards to policemen to K through 12 teachers, et cetera, and just kill them all.

Is that Israel’s goal, though? Because that’s also to mine — I mean, I have a deep critique of the way Israel has conducted this war, but I don’t hear them saying that every doctor who works for the Hamas government should be killed here. I mean, that also sounds like beyond what Israel has described as their goal.

I was just pointing out that the goal of wiping out Hamas has the potential to be read in three different ways. There’s the armed actor, there’s the governing infrastructure, and there’s the social movement. And there’s ambiguity in the way that Israel describes it. More generally, Israel has targeted, for example, the police force. It has targeted civilian infrastructure of a variety of kinds.

So it’s hard to say exactly what their goals are, but I didn’t mean to assert that they had the goal of killing those people. I’m just saying if that were a goal, it would be impermissible. That kind of total war would be impermissible under any circumstances, in any context, whether between states or with respect to a nonstate actor, et cetera. And that was the sense in which I was invoking Russia and Ukraine earlier in our conversation, that we don’t understand that to be the Russian war goal.

And the challenge that we have in saying that Israelis have established the complete destruction and elimination of Hamas as the objective of the war raises troubling implications of total war that I think we wouldn’t permit in any context, even the suggestion of destroying the entire military.

I mean, for example, the United States clearly had in mind, in its invasion of Iraq and subsequent occupation of Iraq, destroying Saddam Hussein’s capacity to wield his military. It didn’t entail destroying every last fighting man or fighting age man in Iraq. And indeed, it didn’t involve even disarming all Iraqis. These are not the kinds of objectives that we have.

Typically, it’s a decapitation of the leadership, and then a preservation to the extent possible of infrastructure that will make governing the day after possible. It’s not always clear in the case of the war against Hamas that Israel is making any of these distinctions.

What are, in your view, the clearest violations of the laws of war that have happened during Israel’s invasion of Gaza?

I think the one that is probably the easiest to document and substantiate is the blocking of access to humanitarian aid and what is now amounting to the crime of starvation. Because Israeli officials declared in the immediate aftermath of Oct. 7 that they were going to cut off all food, all fuel, all water, and have proceeded to oversee a scheme in which they control today all points of entry and egress from Gaza and have precluded humanitarian aid necessary for subsistence of the Gazan population to enter the territory, and have also denied humanitarian actors the ability to supply that aid.

So blocking humanitarian assistance, including food, medicine, fuel, water treatment, hospitals. That, I think, is the clearest and most easily established war crime. I think the deliberate targeting, in some instances, or at least indiscriminate, bombardment of areas that have dense concentrations of civilians. It’s difficult in the context of war crimes, as you know, and the violations of international humanitarian law to establish the requisite intent.

But examples of indiscriminate killing that are well known include the killing of Israeli hostages when they had escaped and were walking clearly unarmed with their hands up, carrying white flags and were nonetheless executed. And then the strike on the World Central Kitchen four-car convoy. These are cases where, because of the identity of those that were struck, Israel has felt the need to explain its conduct and others have scrutinized the conduct. But I think these are very small examples of a much, much wider pattern.

Unfortunately, the deaths of 34,000-plus Gazans has simply not attracted the same level of international focus. But there are statements that have been made on the record by Israeli military authorities and IDF spokespeople, together with the empirical record of enormous destruction of all civilian infrastructure in Gaza, that make it relatively more straightforward than in other contexts to establish that the war crime of indiscriminate bombardment of civilian areas has occurred.

There are, I think, two major categories here that I want to think about not separately, but for different reasons. So one is the actions that I think it is fair to say are targeted at civilians, or at least indiscriminately, truly indiscriminately, targeted at civilians, like the siege. And, I mean, that has always seemed to me to be a war crime. And the sort of American defense of it has, I think, been disappointing.

The other piece of it, which you brought up around these tunnels, what Israel says is that Hamas is using international law against it, that Hamas uses civilian shields. And I cannot judge whether this is true, but take it as plausible for the moment that Hamas works out of schools and hospitals. And the Israelis have said, well, because of that, it means that, unfortunately, we have had to destroy. I mean, there was just a Times report on the huge proportion of Gazan schools that have just been wrecked.

And so Israel’s argument is that this is not Israel’s fault. It is Hamas’s fault, that it is Hamas that has decided to hide among civilians and to use both civilians and civilian infrastructure as shields, as disguises, as operating bases. And so the consequence of this falls on them. How does international law treat a question like that when you do have a force that, at least, to some degree, is using civilians and civilian infrastructure as kind of shields, collateral damage, and operating bases?

Obviously, in places and in territories where you have a dense civilian population, there is infrastructure that is helping an adversary’s armed forces sustain itself on which the civilian population is also deeply dependent. Targeting that on the grounds that it’s dual use is not only in violation of the spirit of international humanitarian law and the goal of protecting civilians and minimizing harm to civilians in conflict, but in many cases, it’s also a violation of the rules, which brings us to human shields and that argument.

So the definition of using human shields for a matter of international law is the deliberate placement of civilians in proximity to military objectives during a conflict. It’s not the presence of civilians in densely populated areas from which armed groups also operate. Gaza is a tiny territory. And inevitably, on a territory that small, that has 2.3 million people residing, you’re going to have civilians close to places where Hamas operates, no matter what.

Under those circumstances, the rules require that Israel take precautions that are available to take. So let’s take an example of the hospitals. Let’s say, arguendo, that Hamas was using a hospital or was present underneath a hospital. Then what would be the measures that Israel is permitted to take in order to address the tactical military advantage of an actual Hamas presence, an armed presence in that moment, near or under that hospital?

First of all, Israel would have to evacuate the civilians or create an opportunity for the civilians that are in the hospital to be evacuated. It would have to facilitate access to medical supplies and necessary humanitarian assistance for patients to be transferred, for patients in need of care. It would also have to ascertain where it believes Hamas is present and narrowly target whatever strike or attack to that particular location.

And it’s not simply that you warn a population of an attack, it’s that you provide them a meaningful opportunity to be evacuated from an area. You offer them safe passage, and you enable them to travel to somewhere where they will be safe. Instead, we’ve seen warnings without opportunities to evacuate, or where evacuation passageways have themselves been the subject of targeting for attack, and where people have been directed to places that themselves have continued to be bombarded. Let’s just look at the laws of war for a moment and see what they’re designed to do. They’re not designed primarily for ex-post accountability and to be used in an international criminal setting. They’re designed for ex-ante incorporation in the military manuals and books and rules that govern armed forces, how they’re trained and what they’re told they can or can’t do.

Now, I think there’s good reason to think that there has been a dramatic shift in Israel in the internal rules of engagement. We’re probably not going to be able to establish whether that’s true or not in the immediate period because Israel will remain the most powerful actor on the ground and will not subject itself to that kind of third party inquiry. But the rules are failing to constrain Israel first and foremost, because Israel has ceased to internalize those rules.

The use of such heavy weaponry as 2,000 pound bombs or the shelling with very heavy artillery of civilian areas where civilian populations remain present, is quite distinctive in this context because it’s happened so frequently and with such a high level of ordinance that sets it apart from essentially any other conflict to date, at least that the United States has been involved with or implicated in.

One thing that has been interesting to me is the Biden administration has been shifting its position somewhat over the past, I would call it, two or three months, is that as much as international law has not been able to constrain Israel on its own, it is the tool the Biden administration increasingly seems to be using as it looks for a way to reconcile its own positions.

It wasn’t there when they didn’t want it to be there, but when they don’t seem to want their position to simply be Joe Biden has had enough, he thinks they’ve gone too far, it does sort of operate as this other language, this sort of agreed upon language. I’m curious how you think about that sort of role of this. Even where international law cannot work as an in-the-moment enforcement mechanism, it is something that can be used, at times, to create sort of mounting moral pressure or justify decisions that would not otherwise work politically.

Yeah, I mean, I think that’s clear. And again, I just want to go back to where we started at the very beginning of our conversation in thinking about how does law work as a general matter. We don’t say in a domestic system that has periodic surges in murder rates that the law of homicide doesn’t exist or doesn’t work or is unenforceable.

Even if it’s the case that there are people that escape the capacity of the law to actually hold them individually accountable for one reason or another, the fact that people break the law and sometimes get away with it doesn’t mean the law doesn’t exist and doesn’t have force. The Biden administration came into office, in part, signaling at home and abroad that it was breaking from the Trump administration, breaking from a period of what it viewed as lawless rule and returning to a rule-based order, rehabilitating the US reputation.

What we have now entered into is a period of a return of serious multipolarity. That is to say, the United States faces a range of actors, some larger, some smaller, that for a variety of reasons, either in their particular spheres of influence or globally, have emerged as either adversaries or challengers.

And in this context, of course, each of them is able to make recourse to the precedents set by the United States of failing to constrain when they want to act. And so they’ll point to Kosovo. They’ll point to Iraq. They’ll point to Libya. And we’re seeing the consequences of those precedents now, when they’re wielded to legitimate uses of force we disagree with.

So there is that phenomenon, for starters, and that indicates a universe in which all actors, not just the United states, have to either be far more careful about the ways in which they continue to erode the existing international legal infrastructure, or in which we are moving in the direction of regional, fragmented interpretations of what the international rules are, powerful actors commanding authority within their own near abroad becoming stronger, and over time, the production of precisely the kinds of dynamics that resulted in the world wars of the 20th century.

So for much of the war, the US has used its veto at the Security Council to stop any resolutions calling for a cease-fire. Then in March, when another one came along, this one written somewhat differently, the US abstained and allowed it to pass. The Israelis ignored it, and then the US called it nonbinding. And there was a State Department briefing where a reporter asked about this.

So you don’t believe anything is going to happen as a result of the passage of this resolution?

So I think that separate and apart from this resolution, we have active ongoing negotiations to try to achieve what this resolution calls for, which is an immediate cease-fire and the release of hostages. I can’t say that this resolution is going to have any impact on those negotiations —

So I don’t expect you to answer this now, but to maybe just stick this in your pocket. If that’s the case, what the hell is the point of the U.N. or the U.N. Security Council?

That was really a moment, I think, that made the contradictions in our relationship to international law pretty stark.

There’s actually a precedent for the United States treating a U.N. Security Council resolution and turning around and presenting it as nonbinding. And strikingly, it was in the South African context. You had a very similar situation during apartheid that we find ourselves in now, in which the U.N. General Assembly, the overwhelming majority of states in the international system, passed resolution after resolution after resolution, with enormous majorities in support of denunciations of the South African regime of apartheid, calls for sanctions, arms embargoes, all kinds of things.

In the General Assembly, while it doesn’t have the power to issue resolutions that have binding law that are the force of binding law, it has enormous power to shape agendas. And it did do that, even as the US and the UK, and to some extent, France continued to use their role in the Security Council to shield the South African government. The General Assembly ended up setting the global agenda for how one should understand South Africa.

And over time, the Security Council had no choice, under enormous pressure, to finally agree to some very, very mild measures against South Africa. But the very first such resolution passed by the Security Council involved exactly the same pattern, and then the US delegate turning around and saying, well, this is nonbinding, and having an enormous debate about how to interpret Security Council resolutions, et cetera.

In the end, in the grand scheme of things, it just didn’t matter because the overall momentum in the system was against the South African government. And in the coming years after that, South Africa had come to become such an illegitimate actor globally that the Security Council finally did pass binding resolutions involving arms embargoes. And as we know, there was an eventual transition in South Africa to a post-apartheid system.

So this nonbinding resolution around the cease-fire could also be seen as the first in a series of steps that might occur in this relationship between international public opinion, international law, the general assembly, international courts, the U.N. Security Council, that shift our attention away from the longstanding international humanitarian law framework that has dominated and that has forced us to look specifically at the rules for belligerent occupation and the rules of the conduct of hostilities when Israel engages in a variety of kinds of operations against Gaza or against the West Bank.

To shift our gaze from all of that and instead return our attention to the question of the entirety of the mandate and ask a question about what the future would look like politically and legally under international law for an authority that governs 14 million people, where 7 million people, Jewish citizens, are fully enfranchised citizens of a democracy, and the other population of the territory, the other 7 million people, still have unresolved rights, and they’re still sitting on the territory as well.

And then always our final question — what are three books you would recommend to the audience?

Yeah, thank you so much for giving me a chance to recommend some great books. The first I would recommend is Antony Anghie’s “Imperialism, Sovereignty, and the Making of International Law,” which retells the history of international law, as well as the intellectual history of canonical European jurists, by centering the colonial encounter as the structuring event that triggered the emergence of international law as we know it.

I would also recommend Noura Erakat’s “Justice for Some: Law and the Question of Palestine,” which provides a detailed and highly readable account of how international law first facilitated British colonial rule, and then how it’s been used by Israelis and Palestinians to organize on the one hand, and resist on the other.

I would also recommend Adom Getachew’s “Worldmaking After Empire: The Rise and Fall of Self-Determination,” which returns to the era of decolonization to offer an account of how the principle of self-determination was differently understood by anticolonial leaders and how that understanding, had it prevailed, might have yielded alternatives to logics of partition logics, like the logic that underlies the U.N.‘s involvement in Israel-Palestine and ideas of the two-state solution.

And then, with your indulgence, I’m going to recommend a fourth book — Aziz Rana’s “The Constitutional Bind: How Americans Came to Idolize a Document That Fails Them,” which is a wonderful book just published that provides an eye-opening and beautifully rendered account of how we, as Americans, came to be bound to a Constitution that makes it so difficult to hold our own government accountable or to translate public preferences into changes in our policies, a question that I believe has renewed urgency at a time when polls show that consistent majorities in the United States support a permanent cease-fire in Gaza.

Aslı Bâli, thank you very much.

This episode of “The Ezra Klein Show” is produced by Annie Galvin, fact-checking by Michelle Harris. Our senior engineer is Jeff Geld, with additional mixing by Aman Sahota and Isaac Jones. Our senior editor is Claire Gordon. The show’s production team includes Annie Galvin, Rollin Hu, Elias Isquith and Kristin Lin, with original music by Isaac Jones. Audience strategy by Kristina Samulewski and Shannon Busta. The executive producer of New York Times Opinion Audio is Annie-Rose Strasser, and special thanks to Carole Sabouraud.

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Produced by ‘The Ezra Klein Show’

The international legal system was created to prevent the atrocities of World War II from happening again. The United Nations partitioned historic Palestine to create the states of Israel and Palestine but also left Palestinians with decades of false promises. The war in Gaza — and countless other conflicts, including those in Syria, Yemen and Ethiopia — shows how little power the U.N. and international law have to protect civilians in wartime. So what is international law actually for?

[You can listen to this episode of “The Ezra Klein Show” on the NYT Audio app , Apple , Spotify , Amazon Music , YouTube or wherever you get your podcasts .]

Aslı Ü. Bâli is a professor at Yale Law School who specializes in international and comparative law. “The fact that people break the law and sometimes get away with it doesn’t mean the law doesn’t exist and doesn’t have force,” she argues.

In this conversation, Bâli traces the gap between international law as written and the realpolitik of how countries follow it, the U.N.’s unique role in the Israeli-Palestinian conflict from its very beginning, how the laws of war have failed Gazans but may be starting to change the conflict’s course and more.

You can listen to our whole conversation by following “The Ezra Klein Show” on the NYT Audio app , Apple , Spotify , Google or wherever you get your podcasts . View a list of book recommendations from our guests here .

(A full transcript of this episode is available here .)

This episode of “The Ezra Klein Show” was produced by Annie Galvin. Fact-checking by Michelle Harris. Our senior engineer is Jeff Geld, with additional mixing by Aman Sahota and Isaac Jones. Our senior editor is Claire Gordon. The show’s production team also includes Rollin Hu, Elias Isquith and Kristin Lin. Original music by Isaac Jones. Audience strategy by Kristina Samulewski and Shannon Busta. The executive producer of New York Times Opinion Audio is Annie-Rose Strasser. Special thanks to Carole Sabouraud.

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