Short Cuts

Chase Madar

Harold Koh is the former dean of Yale Law School and an expert in human rights law. As the State Department’s senior lawyer between 2009 and 2013, he provided the Obama administration with the legal basis for assassination carried out by drones. And despite having written academic papers backing a powerful and restrictive War Powers Act, he made the legal case for the Obama administration’s right to make war on Libya without bothering to get congressional approval. Koh, who has now returned to teaching human rights law, is not the only human rights advocate to call for the use of lethal violence. Indeed, the weaponisation of human rights – its doctrines, its institutions and, above all, its grandees – has been going on in the US for more than a decade.

Take Samantha Power, US Ambassador to the United Nations, former director of Harvard’s Carr Centre for Human Rights Policy and self-described ‘genocide chick’, who advocated war in Libya and Syria, and argued for new ways to arm-twist US allies into providing more troops for Obama’s escalated but unsuccessful war in Afghanistan. This last argument wasn’t successful in 2012, though she was at it again recently when interviewed on Charlie Rose. Or there’s Sarah Sewall, another former director of the Carr Centre, who was responsible for the material on human rights in the reworked US Army and Marine Corps Counterinsurgency Field Manual. Or Michael Posner, the founder of Human Rights First, now a business professor at NYU, who, as assistant secretary of state for democracy, human rights and labour in Obama’s first term, helped bury the Goldstone Report, commissioned by the United Nations to investigate atrocities committed during Israel’s 2008-9 assault on Gaza. Or John Prendergast, a former Human Rights Watch researcher and co-founder of Enough, an anti-genocide group affiliated with the Centre for American Progress, who has called for military intervention to oust Robert Mugabe.

It’s not just Americans: Michael Ignatieff ardently supported the invasion of Iraq in the name of humanitarian values. The inescapable Bernard-Henri Lévy was at the fore in demanding Nato go to war against Gaddafi. (Lévy has ‘moved on’ to other causes now that Libya is deep in chaos.)

Human rights organisations have also been at it. Although it’s the policy of Human Rights Watch not to comment on matters of jus ad bellum – whether or not a war should be waged – in 2011 the UN resolution authorising military force in Libya was warmly endorsed by the outfit’s executive director and top Washington lobbyist. Just days after airstrikes began against the Qaddafi government, a Human Rights Watch researcher called Corinne Dufka called for ‘nothing less than the type of unified and decisive action the UN Security Council has brought to bear in Libya’ to be employed in Côte d’Ivoire in an article published in Foreign Policy. Amnesty International consistently backed US military operations in Afghanistan, which it seemed to view as a Peace Corps programme with soldiers attached.

Many involved with human rights are convinced that they are making warfare less nasty, more humane. This is what Koh’s defenders argue: that he was working to restrain and civilise lethal force. But you could also argue that Koh legitimated acts of military violence with his human rights window dressing. According to an insider account of White House drone policy by the journalist Daniel Klaidman,

Koh began lobbying Secretary Clinton and the White House to let him make a speech in defence of targeted killing … The White House saw an upside in making him the unlikely public face of the CIA’s drone programme. It was a Nixon-goes-to-China play: it would give the president cover with both the human rights community and America’s allies. The military and the CIA, too, loved the idea. They called the State Department lawyer ‘Killer Koh’ behind his back. Some of the operators even talked about printing up T-shirts that said: ‘Drones: If they’re good enough for Harold Koh, they’re good enough for me.’

Koh recently held a visiting professorship at NYU Law School, where this spring a handful of students wrote an open letter questioning his fitness to teach human rights. Koh’s defenders immediately responded with a letter of their own signed by dozens of legal scholars, including a great many progressive luminaries like Thomas Buergenthal, David Cole and Burt Neuborne. Other more right-wing figures vouching for Koh include William Taft, the State Department’s senior lawyer in 2003, who provided the Bush-Cheney administration with its legal rationale for invading Iraq, and John Yoo, the Bush-Cheney lawyer who authorised the use of torture, and is now back teaching law at Berkeley. Even those who might have been expected to criticise Koh have said little against him. The NYU law professor Philip Alston, a former UN special rapporteur for extrajudicial killing who has questioned the legality of US drone strikes, has praised him as a marvellous choice for teaching human rights.

When the modern human rights movement began in the 1970s, no one expected it to become part of the antiwar camp. Indeed, Human Rights Watch’s predecessor, Helsinki Watch, was funded by a fat grant from the Ford Foundation, then led by McGeorge Bundy, a leading architect of the Vietnam War. But it’s also true that no one expected the human rights industry to acquiesce so uncritically in Washington’s militarism. It’s one thing for John McCain to criticise Obama for not being confrontational enough with Russia. But it’s a bit jarring to hear Suzanne Nossel, the former head of Amnesty International’s US branch, sniping at Obama for ‘reiterating that military options are off the table’ in dealing with the Ukraine crisis. Senior figures in the human rights world, in and out of government, have been less sceptical about the humanitarian benefits of assassination and counterinsurgency warfare than many military figures.

Many humanitarian lawyers seem to have persuaded themselves that war can be conducted with clinical precision given the advances in both military technology and the laws that govern how war should be fought – jus in bello. But the casualty figures and consequences of recent wars argue otherwise, and it seems that the real function of jus in bello is less a restraint on lethal force than a licence and a lubricant. Syria’s violations of the laws of war regarding chemical weapons even served, according to Samantha Power and other humanitarian warriors, as a legitimate case for war, an indication that jus in bello has swallowed jus ad bellum whole. Instead of arguing for alternatives that might not involve military force, US humanitarian lawyers discuss the appropriate degree of transparency and the legal procedure for lethal violence. Those issues aren’t negligible but they are secondary to considerations of prudence and morality, first-order questions that legalistic approaches to warfare obscure.