Harold Hongju Koh Interview: Conversations with History; Institute of International Studies, UC Berkeley

Transnational Legal Process and World Order: Conversation with Harold Hongju Koh, Gerard C. and Bernice Latrobe Smith Professor of International Law at Yale, October 3, 2003, by Harry Kreisler
Photo by Jane Scherr

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International Law and U.S. Foreign Policy

My training is in political science, and there's an old saying in political science: "Can you have a system of law if you don't have a cop on the beat?" In international relations, there's no cop on the beat, except somebody with enough power to take an action. How do you respond to that? Clearly, international law is more important than it ever was, but as you just suggested, it's harder to make people see that [today].

I guess I'd ask you this: Do we have burglaries in Berkeley?

Yes.

Well, the fact that domestic law is under-enforced or imperfectly enforced doesn't mean it's not enforced. The core way in which you enforce law in Berkeley, Berkeley law, is not by coercion, but by norm internalization -- people internalize a norm against burglary.

I would argue in the same way, internationally. There is a system of international law. It's imperfectly enforced. It's under-enforced. But, again, the same mechanism is at work -- norm internalization. Why don't nations attack each other all the time and take them over? Maybe it's because they fear coercion or sanction, but in fact, it's because of a sense of internalized restraint. Why don't people sitting next to each other in a restaurant in Berkeley, get up and start punching each other? Maybe if they did, they might get arrested for disorderly conduct; but in fact, it's because of a sense of internalized restraint. So the element I'm trying to find is, what is it that internalizes this restraint? How do you bring international law home? That's been the focus of my research, particularly since I came back from the government.

America, before 9/11 and the current administration, had an important voice in making that internalization possible for other countries. We had a lot of power; we could have pushed people around, used force and coercion, but we actually tried to influence other nations by setting up this process of internalization that you've just described.

When I came to the government, the first conclusion I reached was that the rule of law should be on the U.S. side. That's a system of law that we helped to create. We saw it in our self-interest, and we accepted certain constraints because we thought that in the long-run overall costs and benefits, the benefits far outweighed the cost. So that's why we support various systems of international adjudication. That's why we support the U.N. system. We need these institutions, even if they cut our own sovereignty a little bit. I think that in the post - Berlin Wall period, there was a feeling that this is a chance for the system to become really effective.

I now view this period, from 1989 to September 2001, as a period of global optimism, where people thought, "We can use global cooperation to solve global problems." One of the problems is AIDS. Another is global warming. Another is international crimes. Another is terrorism. Then 9/11 came along and there were suddenly two radically different views as to how to respond. One group said, "Just forget this; throw it all out the window." The other said, "Look, the same approach should still apply. Use global cooperation to solve global problems." I think the administration that came in took the first approach: "Let's go it alone. Let's do it unilaterally." They broke out of the Kyoto protocol; they turned away from the ICC; they attacked Iraq with a coalition of the willing, rather than with U.N. support; and now they're surprised when they've alienated the people whom they need to rebuild Iraq.

That's what makes this point in time, 2003, an interesting watershed. The question is: "Will the United States continue to be the world's primary advocate of norm-based internationalism, or are we going to put forth a power-based internationalism as our prime mode of doing business?"

Before we talk about the changes under the Bush administration, let's go back, because you were in a pivotal role at a very creative time for moving this whole process of internationalization of norms further along. Let's talk a little about that, because it's not just the American political tradition of dealing with these problems that is at work, but also the particular leaders and academic ideas, and also nongovernmental organizations and activism. So talk a little about that dynamic in that very creative period before everything hit the fan with 9/11.

The best image that someone gave me about being assistant secretary of state is that you walk onto a tennis court and someone gives you a tennis racket, and they say, "The balls are going to start coming over the net," and balls start coming over the net almost faster than you can see them. You start trying to return them, and then after a while you're returning most of them, and then you say to yourself, "Why don't I hit them to one place. Why not have a plan?" And you try to hit the ball to the left side. Then suddenly, a moment comes where you say, "Why am I not throwing the ball? Why is my only approach reactive, rather than proactive?" Then you have to ask yourself, "Well, what do I think are our proactive principles?"

What I tried to do was to say, "There are basically four principles we really care about. First is telling the truth in human rights; second, promoting accountability for past violations, while promoting reconciliation; third, with regard to ongoing abuses and present violations, engaging violating countries to try to get them to stop, and with regard to the future, preventing future abuses. And [fourth], the long-term solution is promoting democracy." In the end, torture, genocide -- these are not diseases, they're symptoms, symptoms of bad government. So we try to promote healthy government.

Now, interestingly, my brother, the commissioner of public health, said to me, "I used to treat smoking patients, and then I decided if I wanted to make people not get cancer, I would encourage them not to smoke." He said, "If you promote a healthy body, you don't have to deal with the symptoms of disease." I realized in the same way, if you promote democratic government, you don't have to deal with the symptoms of unhealthy government.

So those were our focal points: Truth-telling, accountability, engagement, and promotion of democracy. And we had a very exciting period. After the fall of the Berlin Wall, that was the largest expansion of freedom in the twentieth century; the second largest came during the time when I was in government. Nigeria and Indonesia, and various parts of the former Soviet Union, all switched to a democratic form of government. There was an amazing fact, which we uncovered, which was that in 1971 there were only 25 democracies in the world, and in 2000 there were more than 120.

In fact, when Colin Powell's people asked me to brief him on what the challenges were for the democracy in human rights policy, they said, "We'd like you to start with a presentation of about fifteen seconds." I thought about it and I said to my staff, "Get me two maps: one is a map of the world in 1970, with all the democracies in blue, and all the non-democracies in red; then get me another one for 2000, same thing." Then, when he said, "Are you ready for your briefing?" I said, "Secretary Powell, I want you to look at these two maps. What you'll notice is there are a lot more democracies now than there were thirty years ago. The countries that are in red, the non-democracies, are the ones that are giving us the most human rights problems. The countries that are in blue are the ones we can cooperate with the most to try to address those problems. And the major difference is that you now have many, many more countries with whom you can cooperate to deal with a much smaller number of countries. So your success in achieving this policy will be your capacity to mobilize the blue countries to address the red countries." I still think that's right. I think that's what we should have done with regard to 9/11.

It seems like they didn't listen, or some parts of the government did ...

Secretary Powell listened. I think he had that view anyway. I'm not sure that others in the government listened to him.

As an academic and somebody whose home base is the university, and just listening to you talk yesterday giving the Jefferson Lecture, I have a sense of the strong idealism that motivates you. By that I mean an image of the future, working toward that as you deal with concrete problems. How do you deal with the situation in government when things go terribly wrong, as obviously happened in Rwanda? That was probably before you were in the government, but you could reflect on that situation, where the good guys may not always do as much good as they can at a particular moment?

We learned a lot from Rwanda, because there were dangerous signals that were clearly ignored -- and then at the end, they were intentionally ignored, to be honest. Nobody was ready to make the commitment necessary to prevent something from happening. People didn't know how bad it was going to be. The major lesson I take away is when those signals are so unmistakable, you should not ignore them.

A second point as well, which is, "Why do you serve in the U.S. government?" -- I was very lucky. I was a tenured professor. One thing I decided to myself is there's always going to be somebody in this job. If you care more about your principles than you do about your job, then you will never fail, because you'll always be viewed as having principles, so I have to be prepared to threaten to resign if necessary. Now, it wasn't a bad threat for me because if I was fired, I could go back to a tenured professorship.

But I was very struck ... six American Foreign Service officers resigned during Bosnia before there was a commitment to the Dayton Accords. I asked a couple of them, "Why did you resign?" They told me they had gone to the Holocaust Museum when it opened. They were looking around, and they saw cables that were sent from the U.S. State Department about the Holocaust, and responses which were essentially saying, "We don't know if anything is happening or not." They realized that they were ignoring similar signals in Bosnia, and that if they did that, they would feel as responsible as if they had witnessed the Holocaust and not done anything about it. So a couple of them came back and resigned on the spot. Those actions, those acts of principle, pushed the Clinton administration to step up to and face the problem.

Next page: Foreign Policy Since 9/11

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