Harold Hongju Koh, Assistant Secretary of State
for Democracy, Human Rights, and Labor
Remarks at Columbia Law School
New York City, September 18, 2000
It's a great day to be here and to be drinking bottled water in the city of New York. Since I've been in this job, which is now a little bit more than 22 months, I've been to 45 countries. But this is only my second trip to Columbia Law School. The first time was last year during the UN General Assembly when I came to speak at the inauguration of Lou Henkin's Chair and it was very touching to be here for that occasion.
First, let me mention the great Lou Henkin. I don't have that many heroes. They include my parents, Justice Blackmun, Ted Williams, but Lou Henkin is one of them. No more remarkable human being exists on this planet. Also here are some of my dearest friends whom I'm delighted to see here and are part of the tremendous legacy that you have here working on international issues and on international human rights.
My goal is not to give a speech but really to try to speak to some of the substantive and personal concerns that you must be having at this time. Obviously between inspiration and impact lies a fair bit of perspiration and a lot of dumb luck. I'm very mindful of the fact that even as you're listening to me, many of you are about to start interviewing for jobs, at which you will make more money than I make now. And I want to suggest to you that human rights lawyers are made; they are not born. I know that it wasn't something I thought I would do. In fact, I think Jerry Neuman would attest to the fact that one of the more unlikely things that he's observed in his lifetime is my evolution into this position.
But let me just give a little bit of background on how I came to be at this job and the lessons that I've learned in doing it and then talk a little bit about the work bit and what I'm tying to do at the State Department before returning to academic life. My parents came to this country as academics. My father was a South Korean law student who studied at Harvard Law School, was very committed to democracy in Korea and, before the government of Korea was overthrown by a dictatorship, he became the ambassador to the United Nations. That was in the early '60s. He then devoted his life to teaching international law, trying to promote understanding between Korea and the United States, and trying to understand the need for return to democracy in Korea as a way of achieving human rights.
Now if that sounds similar to what I do now, you would suggest that my career was predetermined for me. But instead, his own thought was that I should study physics. Because after all I was a Korean-American. English was not our language, but science had its own language. Frankly, I think he was driven by two other concerns as well. One was discrimination. I think he thought that as a non-native speaker he had had trouble and he thought his children would as well. I think he also thought it was too political. We Asians are a pacific people, in more ways than one, and we shouldn't get ourselves involved in politics. And in a very fundamental way I think he felt that he had paid a price for his own views, and he didn't want his children to have to pay the same price. So I went off to college as a physics major, but I had a problem because I was not good at physics. And so I switched to political science and ultimately to the study of law and I went to Harvard Law School.
In discussing what my career ought to be, one of my first thoughts was that I should keep my options open. I'm sure that's something that many of you say to yourself. Now this turns out as one of the most ridiculous decision principles you could adopt. And everyone in my class seems to have adopted it. We actually are not going to have to make any choices, we will just let the choices be made for us. By that set of possibilities which we want to leave open, we finally end up doing something that we never dreamed that we would do.
The other principle that I let guide my life was that I should try to repay my loans. This is really hilarious because, after all, the reason I had gone to law school was to pursue some purpose. I took out loans as a means to that, and then if I let repaying the loans guide where I was going to go, I had completely inverted my original ambition. But, unaware of this contradiction in my own life, I went off and began working for a large law firm. I found that that was not to my taste and then decided to go work for the Department of Justice. At the time it was the Reagan Administration, and I remember discussing this with my father. He had said to me "Well, you're going to be a lawyer." And I said "yes." And he said, "In Korea, you know, law is the second most reviled profession" and I said, "What's the most reviled profession?" He said, "being an actor." When I told him I was going to work for the Department of Justice in the Reagan Administration, he said "You're going to be a lawyer for an actor?"
After some time in doing that I then decided to go into teaching and to go to teach at the Law School, at which point I became a professor, which in Korea was the most respected profession. Now it's interesting because also during that time I heard a lot about the cab rank principle or the taxi-cab principle, which was the idea that somehow as a lawyer I should be indifferent to who my clients were, that I should be like a taxi driver and that whoever got into the cab, whether it was Mother Theresa or Adolf Hitler, I should give a ride because who was it for me to judge who's in the cab? I should therefore represent whoever needed representation. After a while I started to realize I didn't like this principle either. I did not like representing Ronald Reagan. And frankly, if Adolf Hitler got into my cab today, I would suggest politely that he take another cab. Because where you put yourself and where you decide to spend your life's work is much, much, more important than simply serving whoever is paying you.
So I really would suggest to all of you that the first choice that you make toward where you are going to be spending your life is who you choose to serve as your clients. What I have been doing in my recent days is serving the cause of human rights and the people who need help. It seems to me that we who are the most privileged really ought to serve the people who are the least privileged. And if you are not doing that, I think you ought to reconsider it, because frankly, the people who have a lot of resources already have a lot of representation. And why do they need you, who are the best and the brightest and the best and the most well trained?
Now, with all that having been said, I then spent the next number of years pursuing ordinary academic pursuits: teaching, getting tenure, and then my Dad passed away the same year I got tenure. And it suddenly occurred to me -- I had achieved all the stability that he had wanted for me. I had tenure at a fine Law School, I had a career, I was developing a name for myself in various areas. It occurred to me I was the person who really ought to be taking some risks and I ought to be helping some people who needed to be helped. And it was about that moment that Cathy Powell described that some students from Yale Law School came to me with the absolutely ludicrous proposition that we should start an International Human Rights clinic. And their view was "We should do this, and you're a professor that knows something about the subject. We would like very much for you to be our advisor." And I told them "Go away."
But they persisted. And because of their persistence I decided to take a step in that direction. And through that we became involved in a series of domestic litigations involving human rights cases and then ultimately to the representation of Haitian refugees. And that took several years and brought me very close to the human rights NGO community, as well as to people in tremendous need. And I started to realize that in some way this was the job I was born for. This was a job very similar to that which my own father had pursued. But it had taken me a long journey to get to that point.
Another interesting thing happened which was shortly after I represented the Haitian refugees, I was asked to represent the Cuban refugees. And a number of people told me, "Well, if you represent the Haitians you can't represent the Cubans." Why? Because one group is basically associated with liberal democrats and the other is basically associated with conservative republicans. And my view was I do this to represent certain principles, not to represent particular ethnic groups. And that therefore I should be willing to represent anyone who is facing essentially the same human rights problem.
Now, there was a great irony to all of this in the end. Again I say this for those of you who are pursuing your own career choices at the moment. After representing the Haitian refugees and carrying on that litigation after the Clinton Administration maintained the same policy, I assumed I would never ever get a job in the Clinton Administration. But then a couple of years ago I was called and asked whether Madeleine Albright could persuade me to join her team as the Human Rights person. I said that I assumed this administration wouldn't want anything to do with me. "But that is exactly why they want you," I was told. "It shows your independence. It shows that you're not going to cave into pressure. And the Cubans are behind you." And that's how I came to this job.
So just to go back: human rights lawyers I think are made, they are not born. I think you should represent clients that you care about and not just those who get into your taxi cab. You should not follow the principle of keeping your options open or letting how to pay your loans determine how you're going to spend your future. You should not do things based on whether they're going to get you jobs in the future, because for reasons that you don't understand, they may not end up helping you get a job for the future. And I think most important is when something touches your heart. The case of the Haitian refugees fundamentally touched my heart. Follow your heart and do that job, because you will do it better than you can for someone simply paying you money.
After I represented the Haitian refugees, I was very often asked by other Koreans "Why do you represent these black Haitians. What does this have to do with us?" And I would say to them, "You mean to say that in the face of Haitian internment, you don't see Japanese internment? In the face of Haitian old people, you don't see Vietnamese old people? In the face of Haitian refugees, you don't see Cambodian refugees?" These are human rights issues, and they are much broader than our own parochial concerns.
Anyway, a number of years ago, in fact now 2 years ago, I took my current job which is Assistant Secretary for Democracy, Human Rights, and Labor at the Department of State. When I took that job another government official took me to one side and said, "You know, at the epartment of State we hate four things; political appointees, functional bureaus, lawyers, and professors." And so for me it was a tremendous challenge in trying to figure out how as an outsider coming from the Ivy Tower, I could fit into the world of Foggy Bottom. And the idea finally came to me, when I was listening to my son, who had just attended my confirmation hearing. He went and said to a friend of his, "My dad got a new job," and his friend said, "what is that?" and he said, "my father is the Assistant Secretary for truth, justice, and the American way." And it occurred to me that in fact these were the principles that I ought to pursue. Because in any job you have only a few occasions to really maintain particular points of view. And for me those were the principles that I wanted to hold dear.
What somebody had said to me when I started the job is "when you start it's going to be like walking onto a tennis court and having a ball machine get turned on and the balls will start coming over the net. And for a while you're just trying to return as many balls as you can and then after a while you're returning most of the balls and you're feeling quite good about yourself. And then you think, well instead of just returning the balls maybe I should hit them all to the right hand corner. And then you try that for a while, and you're hitting them all to the right hand corner, and then think maybe I should put a little English on them or try to get them moving a little bit faster. And then suddenly it occurs to you, "Why am I not throwing the balls?" What is my own agenda for this position, rather than simply a reactive agenda?
I am trying what is essentially a rugby scrum of activity, to bring a few consistent set of principles to bear. I think what they amount to are the three that I mentioned: truth, justice, and I figure I would call it, the democratic way.
Now, this brings me to an academic moment, which I hope you'll forgive me for a second. Where are we exactly in the history of human rights, law, and policy? And I would argue that we are in a fourth phase. The first phase, which was right after World War II, is what I call the Age of Universalization. The primary violation was genocide. The effort was made there to try to respond to genocide and scourge of war by creating a UN system and developing certain universal principles. In that first stage standards set in other kinds of universal activities were pursued. Phase two, which pursued the end of the Cold War, is what you can call the Phase of Institutionalization -- creating a variety of intergovernmental and nongovernmental mechanisms to deal with human rights problems. Whether the UN Human Rights Committee, on which Professor Henkins sits, or the UN Human Rights Commission or various Special Rapporteur mechanisms, or on the nongovernmental side, the astonishing rise of nongovernmental organizations as you know them: Amnesty, Human Rights Watch, the International Lawyers Committee, Physicians for Human Rights, etc. And then in the third phase, during which I think it really all started to come together -- the period after 1989 and the Cold War -- is what I would call an Era of Operationalization. This is when these various private, public networks really started to work together much more effectively in various forums to try to promote human rights norms and developments, not just in traditional institutions and forums but also novel ones, domestic courts, and working on different kinds of treaties, the Landsmines Treaty, the International Criminal Court and so on.
The phase that we're now in, and I think it's the phase of the 21st century, is the Era of Globalization. You hear it all the time. You hear globalization discussed both in terms of the globalization of commerce and the globalization of communications and the internet. But there is also the negative face of globalization -- drugs, trafficking of women and children, terrorism, transnational crime. But what were looking at also is, I think, a phase in which we can try to make real progress on the globalization of human freedom and self-governance. For example, we now are in a situation in which some 130 countries of the world of 194 are rated as some kind of democracy, a number that has expanded from 31 in the year 1974. This is an astonishing change; every day there are remarkable new developments. Look at what happened in Peru over the weekend. So how do we bring some sort of consistent approach to bear in this new age in which you have both kinds of globalization going on, negative globalization but also globalization of human freedom? And I think the answer is truth, justice, and the democratic way.
Let me go through each of these. The first and most obvious is telling the truth. One of the first things I did when I got to my job is call everybody to the room and say, "I want our bureau to have the reputation for telling the absolute, unvarnished truth. And if you think the truth is different, because you have more information, then that's the truth that we push. What do we think: are the facts on the ground from as many different sources as we can get them and we will not bury those facts based on political pressure or anything else? And if people try to roll us on this, our answer is, "it's the truth. What can we do, we have to tell the truth as we see it. We will not shade it." We may suggest a policy to respond to the truth in different ways than others might like, but on the facts themselves we should try, to the extent possible, simply to be as comprehensive, accurate, and authoritative as possible."
Now, what we do every year are Human Rights Country Reports, Reports on International Religious Freedom, Reports on International Labor conditions. We do special reports on ethnic cleansing in Kosovo. And the only directive that I have given consistently to everybody is if it's the truth we'll say it; if it's not the truth we won't say it. Now this might not seem like a big deal, but the fact of the matter is that the Human Rights Bureau of the State Department was known throughout the'70s and '80's for shading the truth in response to governmental pressure or pulling their punches. And it seemed to me that getting the credibility back meant that that we absolutely had to insist on, in our reporting, our monitoring, in our advocacy, in truthful statements of the facts.
The second is justice. It seems that we have to attempt to apply a consistent approach to the past, the present, and the future. With regard to the past, our approach is to promote justice. Now what does that mean? In important respects, it means promoting accountability, accountability in a fashion which is consistent with transition to the future. That's the subject of very extensive writing by academics and policy makers alike. But what I think it means is trying to make sure that the telling of the story and the holding accountable of people who are responsible for large scale human rights violations should not be sacrificed on the alter of political transition. Now this is a very tough role to hold around the world and it does not require a one-size-fits all approach to accountability. There is no single mechanism that works. Two places in which we've seen a very substantial struggle on accountability is Pinochet in Chile or on the new special court which has been created for Sierra Leone, which I'll be happy to talk about in the question and answer period. But it does seem to be that the United States Government ought to have a consistent and disciplined approach to the question of justice. The Rwanda tribunal, the Yugoslavia tribunal, efforts to get international justice in Cambodia are all examples. Now, I know you're going to point to the counter example, the International Criminal Court. And that for me, frankly, is an easy one because I had stated my position on this quite clearly before I took this job. I do think that the new equity which has emerged, is what about peace-keepers? What about those countries which are committing their troops abroad? Will those troops be held liable in international forums simply for the act of going into foreign territory to carry out peace-keeping missions? And certain countries that do a lot of that understand that they want measures of protection. You could talk about what measures of protection are required, but I think that enough of the difficulties that the U.S. has had with the court revolve around that question.
What about the approach to the present if that's the approach to the past, what is a consistent approach to the present? There our approach is principled, purposeful engagement or what I like to call the inside-outside approach. If a country is committing gross human rights violations, or even regular human rights violations, it's very hard to suggest we should simply sanction them or shun them or isolate them. The problem is that this doesn't actually change conduct all that often. If you look at what is an actual approach to changing conduct, it's generally an attitude of engagement. What do you do if one of your neighbors, if your at Columbia Law School, litters, or is obnoxious, or talks too much in class, or talks too little in class? Generally, there is some strategy in which there is a confirmation of having a dialogue with that person who you're trying to engage around certain principles, as well as some background sanctions. And that has been our approach across the board with countries with whom we have diplomatic relations. To try to use a combination of face-to-face diplomacy and other kinds of multilateral and bilateral diplomacy with background exercises, sanctions, as a way of pushing them toward better conduct.
Now, the most proper example, of course, is China. And it's the most difficult example, but I think anybody who believes by sanctions alone you are going to change China's conduct doesn't understand the relative ratio of power between our country and theirs. The idea that China will change its conduct simply because we happen to pose unilateral sanctions on them is just a fantasy. So the only way to do it is to try to organize some sort of ongoing, sustained, bipartisan engagement with them based around certain principles -- and one of them happens to be respect for human rights.
Then the third question: what about an approach to the future? And here, our goal is a consistent approach that will forestall future abuses. My brother is the Commissioner of Public Health of Massachusetts. When I took this job I called him and I said, "Why did you take your job?" And he said, "Because I'm tired of dealing with the pathology of disease. I want to deal with preventative aspects and I assume that's what you want to deal with too in your line of work." For us, it has really three pieces. First, promoting democracy. Second, preventive diplomacy. And third, building networks.
Let me just say a word about each of these. Human Rights abuse is often a symptom for a much larger deficit, which is an absence of democracy or absence of democratic self-government. And so one of the challenges that we've been facing is how to -- aggressively and along with other countries -- promote the development of new government structures which actually lead to fewer human rights abuses by giving people more channels of governance within their own country? And we've promoted a strategy of just promoting democracy through a number of different channels. First, raising global consciousness about the issue. We've introduced a Right to Democracy resolution in the last few years at the UN Human Rights Commission in Geneva. We just had a major gathering, the first gathering ever of the world's democracies in Warsaw. One hundred six countries attended. It will be followed by a world gathering in Seoul in 2002, in Santiago, Chile, in 2004, Lisbon, Portugal, in 2008, along with some conferences that are being done by developing nations, a conference coming up this fall in Cotonou in December of 2000, as well as, various NGO efforts. In other words, to raise global democratic consciousness.
There are caucuses that deal with developing country concerns, petroleum, exporting, landlocked states. But until now there has been no community of democracies pushing for democracy in other parts of the world. Secondly, we have tried to establish within the U.S. government, priority countries where we think that more energy ought to be devoted toward keeping countries in the democratic column. And the four that we've identified have been Colombia, Indonesia, Nigeria, and the Ukraine. And tremendous energy has gone into trying, in the last 2 years, to keep those countries from falling apart.
Frankly, if you look at what's happening in Indonesia and Colombia now, it's not an easy challenge. But, there's no question that our resources are being devoted to the right effort. We're also trying to coordinate our money with our policy. And that's something that we're doing now that the Agency for International Development has been incorporated more fully into the State Department. We've also tried to move swiftly on countries in which there is backsliding from democracy. This is a global effort -- Peru, Haiti, Ecuador, Cote d'Ivoire, Fiji, Pakistan -- in all of those countries to try to step in and try to be aggressive on our indigenous strategies. Particularly when a country has just slipped back onto the non-democratic path. And finally, in countries that have been devastated, we try to do our best to rebuild democratic institutions, whether in Bosnia, Kosovo, or in East Timor, and really get into the heart of rule of law.
A second aspect of this is trying to engage more in preventive diplomacy -- what is known as diplomacy backed by force, or if necessary, force backed by diplomacy. And I think Kosovo, East Timor, and Sierra Leone are three examples of that. We are trying to use our intelligence networks to create atrocity prevention networks, to prevent major disasters in such areas as Burundi and the Moluccas or the struggle going on now with regard to the Congo, which you read about in today's paper. And finally, we're working to develop partnerships. Not just at the government-to-government level but at the government/nongovernmental level, we're working with corporations on corporate responsibility initiatives; with churches on religious freedom initiatives; with labor unions on the "No Sweat Initiative"; with cyberspace and internet initiatives on using this incredible new tool, the internet, to promote human rights and democracy around the world.
So that's our approach. It's that simple. Telling the truth, promoting justice, and promoting the democratic way by which we mean, principle and purposeful inside-outside engagement with regard to ongoing abuses, promoting democracy, preventative diplomacy, and partnership building with regard to future abuses.
Will this exercise succeed? I don't know. But I think we have the right principles. My father used to say to me, and I used to tell my students, that theory without practice is as lifeless as practice without theory is thoughtless. The value of being in academia and using the theoretical perspectives here to try to influence action is just as important as going out into the world and remembering the lessons you've learned here. And I hope they are about what the role of ethical lawyers ought to be -- which is not simply watching the world's disasters happen and then going off and wondering who else is going to work on them -- but putting yourself out there as a way of helping to address theses problems so that they never happen again.
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