On March 23, President Obama nominated Harold Koh to be the next
Legal Adviser, which is the top legal position at the U.S.
Department of State.
While Koh has had a distinguished career in government service
and legal academia, his views raise serious national security
and constitutional questions. Koh's opinions regarding the role
that international law and the rulings of foreign courts should
play within the U.S. legal system should be explored during his
Senate confirmation hearing before the Committee on Foreign
Relations, currently scheduled for April 28.
Transnationalism v. American
A trend that runs through Koh's scholarship and public
statements is the great weight that he gives to the authority of
international courts and organizations. Koh should be questioned
during his confirmation hearing regarding his views on crucial
matters of national security, sovereignty, and the U.S.
Such inquiries should include:
U.N. Security Council "Authorization" for Use of Force.
In October 2002, you wrote that U.S. forces should not attack
Saddam Hussein's Iraq "without explicit United Nations
authorization" and that without U.N. authorization, "such an attack
would violate international law." These statements were made
despite the fact that the U.S. Congress had already authorized the
use of force against Iraq.
- Would you please describe under what circumstances you
believe that the U.S. must receive authorization from the U.N.
Security Council prior to using military force while remaining in
compliance with international law?
- Was the NATO bombing of Yugoslavia in 1999-an attack that
was not "authorized" by the U.N. Security Council-a violation of
The International Criminal Court (ICC). In November 2005,
an ambush of a U.S. Marine convoy in Haditha, Iraq, resulted in
tragic civilian deaths-deaths that many in the international
community called a war crime. If, as you have advocated, the
U.S. were to ratify the Rome Statute of the ICC, the ICC prosecutor
would have the power to bring war crimes indictments against those
Marines if, in the prosecutor's opinion, the U.S. was "unwilling"
to do so.
- Since the U.S. ultimately dropped all charges against most
of the Marines involved in the Haditha incident, would they not be
exposed to prosecution at the ICC if the U.S. were to ratify the
Second Amendment Rights. In 2002, you argued that one of
the most pressing issues facing the world is the need for "the
global regulation of small arms" and that you support a "global gun
control regime." You also praised the Inter-American
Convention Against the Illicit Manufacturing of and Trafficking in
Firearms, Ammunition, Explosives, and Other Related Materials as
"the best model" for the control of illicit manufacturing and
trafficking. You stated that the convention requires states "to
standardize national laws," that "the only meaningful mechanism to
regulate illicit transfers is stronger domestic regulation," and
that "supply-side control measures within the United States" were
In this context, you proclaimed references to the constitutional
right to bear arms as "needlessly provocative." Finally, you argued
that the U.S. could support global gun control "without committing
itself to a regime that would affront legitimate Second Amendment
concerns." The convention explicitly recognizes that, because
"states have developed different cultural and historical uses for
firearms," a standardized model is unacceptable.
- In the context of a multilateral gun control treaty, please
explain your views as to what are "legitimate Second Amendment
concerns" and what concerns are illegitimate.
- Given your support for what you describe as "global gun
control," "supply-side control" within the United States, the
development of "legal and policy arguments" for gun control, and
your beliefs that the convention would require the U.S. to
standardize its national laws and that "stronger domestic
regulation" is essential, what is your position on the U.N. Arms
Trade Treaty, which is essentially a global version of the
- Do you believe the Second Amendment protects an individual
right of ordinary Americans to keep and bear arms unrelated to
- What regulations of private gun ownership do you think are
The International Court of Justice and the
MedellinCase. In 2003, the government of Mexico sued the
U.S. at the International Court of Justice (ICJ) regarding 51
Mexican nationals-including one Jose Ernesto Medellin, the
ringleader in a brutal gang rape and murder of two teenage girls in
Texas-who had been convicted of crimes in the U.S. The ICJ
ultimately "ordered" the U.S. to provide additional legal
proceedings to the Mexican nationals because they had not been
informed that a treaty entitled them to assistance from the Mexican
consulate. You filed amicus briefs in support of Medellin both in
Texas and in the U.S. Supreme Court.
- Why is it that you supported the intervention of an
international court into a purely domestic criminal
- Did the U.S. Supreme Court's rejection of your position
change your mind, or do you think the Court made the wrong
- Do you believe that the Vienna Convention on Consular
Relations and its Optional Protocol create a personal cause of
action for convicted criminals such as Jose Medellin?
- Should not this issue have been resolved through diplomacy
between the U.S. and Mexico rather than through transnational
Use of Foreign Jurisprudence in U.S. Courts. In 2004 you
wrote that in "an interdependent world, United States courts should
not decide cases without paying 'a decent respect to the opinions
of mankind.'" The phrase "a decent respect to the
opinions of mankind" comes from the Declaration of Independence:
"When in the Course of human events it becomes necessary for one
people to dissolve the political bands which have connected them
with another and to assume among the powers of the earth, the
separate and equal station to which the Laws of Nature and of
Nature's God entitle them, a decent respect to the opinions of
mankind requires that they should declare the causes which impel
them to the separation."
- Are you saying that your interpretation of the document in
which America's Founding Fathers cut all legal and political ties
from Great Britain supports the citation of and reliance upon the
legal opinions of foreign courts?
- Do you believe that U.S. courts at all levels should factor
in foreign legal opinions when deciding domestic law issues? When
should a U.S. court factor in such opinions, and when should they
not do so?
The Legal Adviser Position Is
Koh's legal opinions must be closely scrutinized because, due to
its international scope, the position for which he has been
nominated is unlike any other legal position in the federal
government. According to the State Department's Web site, the Legal
Adviser "furnishes advice on all legal issues, domestic and
international, arising in the course of the Department's work,"
including "formulating and implementing the foreign policies of the
United States, and promoting the development of international law
and its institutions as a fundamental element of those policies."
If confirmed, Koh will travel worldwide for the next four years
to "negotiate, draft and interpret international agreements
involving ... peace initiatives, arms control discussions ... and
private law conventions on subjects such as judicial cooperation
and recognition of foreign judgments." He would also represent the
U.S. at treaty negotiations and international legal conferences and
be involved in drafting U.N. Security Council resolutions.
The Legal Adviser must therefore be motivated to:
- Protect and defend the rights of American citizens and soldiers
from interference from international organizations;
- Promote policies that preserve U.S. national security
prerogatives and self-governance; and
- Defend American sovereignty from encroachment by transnational
Critical determinations regarding international law will be made
during the next four years regarding, among other matters, threats
to U.S. national security. In a world where the Iranian nuclear
program is advancing unabated and missile launches from North Korea
are reaching ever closer to U.S. coastlines, America needs a Legal
Adviser who will not subordinate U.S. national interests to the
will or whim of the international community.
Steven Groves is Bernard
and Barbara Lomas Fellow, and Ted R. Bromund, Ph.D., is
Senior Research Fellow, in the Margaret Thatcher Center for
Freedom, a division of the Kathryn and Shelby Cullom Davis
Institute for International Studies, at The Heritage
Statement of Harold Hongju Koh before the
Senate Judiciary Committee, Subcommittee on the Constitution,
September 16, 2008, 110th Cong., 2nd Sess. ("In addition, the
Administration should reengage diplomatically with the Contracting
Parties to the ICC to seek resolution of outstanding U.S. concerns
and pave the way for eventual U.S. ratification of the Rome
Harold Hongju Koh, "A World Drowning in Guns,"
Fordham Law Review, vol. 71 (2003), pp. 2333-2361.
e.g., Harold Hongju Koh, et al., Brief of Former United States
Diplomats as Amici Curiae in Support of Petitioner Jose Ernesto
Medellin, Court of Criminal Appeals of Texas, July 29, 2005,
and Brief of Former United States Diplomats as Amici Curiae in
Support of Petitioner, U.S. Supreme Court, June 28, 2007.
Harold Hongju Koh, "Agora: The United States
Constitution and International Law: International Law as Part of
Our Law," American Journal of International Law, vol. 98
(January 2004), p. 43.
Office of the Legal Adviser, U.S. Department of
State, "Practicing Law in the Office of the Legal Adviser,"
February 11, 2009, at http://www.state.gov/s/l/3190.htm (April