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Tom Dannenbaum

Tom Dannenbaum

Professor

Sep 3, 2026

7:27
Tom, if you could jump in, because I also really would love to hear what Tom and Margaret, you have to say with respect to the second part of that, which is, you know, are you surprised we haven't had any results of an investigation now six months in? What do you think explains that? And how do you think about that aspect of it?
7:47
On the question of whether there's a law of armed conflict violation, I think there are two different levels on which we can analyse that before even getting to the question of whether there's a potential war crime.
7:58
The first is whether there's a violation of the principle of distinction as informed by the rule on doubt, and the second is whether there's a violation of the rules on precautions, and particularly precautions relating to verification.
8:11
And I think there are serious reasons for concern on both of these.
8:15
In my view, it's clearly a violation of the requirements relating to precautions, given the information that we already have.
8:22
But it may also be a violation of the principle of distinction as informed by the rule on doubts.
8:27
The principle of distinction precludes attacking or directing attacks at civilian objects.

20 MINS LATER

28:49
Tom, are there any on your mind?
17:51
W- Was there ever going to be a scenario in which the Israeli Prime Minister was arrested when he arrived in New York for the UN General Assembly in September?
18:01
No, I don't think there was.
18:03
It's clear that municipal officers under the local New York City government cannot unilaterally execute an ICC arrest warrant, and although there's more of a possibility for federal officers, first of all, it's clear that the federal government has no interest in pursuing that avenue, and secondly, even federal action in this case does face some legal complexities.
18:26
So I think what Mayor Mamdani was doing here was not Genuinely seeking to pursue an arrest, but rather seeking to refocus our attention on the fact that Benjamin Netanyahu is wanted by the ICC for war crimes and crimes against humanity, and indicating that that ought to be at the forefront of any discussion of his visit to New York.
18:47
Tom, does the UN General Assembly throw up questions in this regard, uh, often anyway? Because we have all sorts of world leaders, uh, and their delegations coming to New York for this gathering.
19:00
Well, that's precisely why this would have been legally complicated, even for the federal government had it wished to pursue that avenue.
19:08
And there are two different legal complications it would have faced.
19:11
The first is that Benjamin Netanyahu is the sitting head of government of Israel and therefore is protected by head of government immunity.
9:58
to me, is a category of mistakes.
9:59
I think framing the discussion in terms of accountability specifically is capturing only a narrow sliver of what international law is about at all.
10:10
And part of the problem of contemporary international legal discourse is that it tends to be drawn to the frame of accountability, to the exclusion of other mechanisms that international law is supposed to set up and supposed to facilitate.
10:25
The consequence of that is that we actually get distorted into a discussion about the wrong kind of possibility and the wrong kind of action, because even where the accountability mechanism functions, it functions only on a very narrow level with respect to a small number of actors, and the actors against which it is effectively invoked are by definition, those without political power in the system.
10:56
But international law is also about providing a focal point for political mobilization, collective mobilization among states transnationally, political mobilization domestically.
11:08
And there I think there are at least potentially more opportunities for invoking international law in response to violations by powerful actors.
11:17
those possibilities are being diminished by the current attack on international law and international institutions.

27 MINS LATER

38:36
It's really a kind of lawless world of its own that raises very serious questions about the professional responsibility and accountability that lawyers themselves should be held to.
8:18
Do you, like Trita, kind of disagree with that assessment?
8:21
Well, I think the key question to start with is did Israel have a legal basis for resorting to force against Iran? And under international law, there are only two bases on which one can resort to force.
8:36
to resort to military action.
8:39
One is the authorization of the Security Council, which has not authorized this action.
8:43
And the other is self-defense.
8:44
And self-defense has to be either against an ongoing or an imminent armed attack, a specified and imminent armed attack with respect to which there's no alternative other than defensive reaction.
8:58
And even on Israel's own account, the action in this case does not meet that defensive imperative because it is about precluding Iran's capability vis-a-vis a possible future attack.
10:58
So, you know, are we quibbling around the calendar timing here?

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