10 Oct Trump vs. International Law: Rope-a-Dope at the O.K. Corral
[Sam Zarifi is the Secretary General of the International Commission of Jurists.]
Prof Harold Hongju Koh in his new book, Trump vs. International Law, has issued an explicit call to arms to American lawyers and bureaucrats to resist Donald Trump’s egregious attempts at dismantling the ‘postwar system of global governance’ and replacing it with ‘a far nastier, more brutish world, less respectful of democracy, human rights, and the rule of law’.
In response to this threat, Prof Koh calls on liberal-leaning lawyers and government officials to resist, slow, and curb the duly elected government’s impulses, in a process Koh compares [p.15] to Muhammad Ali’s ‘rope a dope’ strategy of defeating his furious, more energetic challenger George Foreman by absorbing enough punishment until Foreman tired himself out.
As such, the book is a great stocking stuffer for US Democrats and ‘never Trump’ Republicans who already despise what the president is doing to the country and the world and need a handy compendium of complaints and a roadmap to resistance using Prof Koh’s theory of ‘transnational legal process. As such, the book is clear and cogent and convincing (to those already convinced). It is a book that should be read widely by American lawyers facing the Trump administration’s onslaught international law, and the rule of law in general.
But Prof Koh’s call to arms is, unfortunately, mostly a lecture to the choir. That’s not a bad thing at this time when good-hearted lawyers may face despair, but the book suffers from some fundamental shortcomings that limit its impact and utility, coming as it does from one of the United States’ most influential practitioners of international law at the intersection of elite academia and government.
The problem is that Prof Koh’s approach seems like it’s bringing ‘rope-a-dope’ to a gunfight.
The current moment (the post-Kavanaugh Supreme Court, attacks on the International Criminal Court, withdrawing from various treaties and accountability mechanisms) feels like the gunfight at the O.K. Corral, and Koh assumes (and I agree) that his side is the ‘good guys’. But remember that at the time of that famous fight, and for decades after, public sympathy waivered greatly as to whether it was the Earps and Doc Holliday who were the good guys, or the ‘Cowboys’ who were viewed alternatively as outlaws or free spirits, depending on one’s partisan politics: the Republicans supported the Earps, the Democrats supported the Cowboys (just to remind us that partisan rancor is neither new nor unprecedentedly harsh right now).
Prof Koh’s book is good on defense, but it is a bit short on offensive firepower. To be more specific, in some key aspects, the book is parochial, it is partisan, and as a result it suffers from poverty of imagination (to steal a line from my wife).
For a book on international law, and one whose central strategy for resistance [p.9] is the mix of ‘interaction-interpretation-internalization’ from the outside and ‘engage-translate-leverage’ from the inside, the book barely acknowledges any sources outside the Anglo-American world—out of its nearly 400 footnotes, literally a handful of citations are to sources from scholars or commentators from anywhere aside from the US and the UK. This is a shortcoming that as Prof Anthea Roberts points out is not limited to Koh, but one that he, of all lawyers, should do a better job of overcoming, because the entire point of the book is to strengthen the bond between American law—and lawyers—and the rest of the world. There is very little interaction with or translation from lawyers or thinkers outside the US here.
The book is also parochial in its view of the world—this is still a solipsistic world where the US is at the heart (and head) of all issues and therefore all solutions around the globe. Even when discussing such global issues as climate change or immigration, there is very little acknowledgement of opinions or actions outside the US (and where Koh does acknowledge these, he does it through the lens of an American outlet). Millions of people in North Korea an Iran are simply witnesses or victims of an ideological contest between Trump and Obama/Clinton, with no voice or agency of their own as to which approach they would prefer.
Prof Koh has at least improved his central argument regarding Trump in acknowledging that Trump’s authoritarian populism is not an outbreak of boils unique to the US, but shares important characteristics with similar developments in the Philippines, Poland, Hungary, Turkey, China, Venezuela, etc. [p.145].
Despite this acknowledgement, Koh’s parochialism manifests itself in the limited nature of his proposed resistance strategy: bureaucratic foot-dragging and NGO litigation may be (maybe) suitable in the US but it’s much harder to envision in places where institutions are weaker (the majority of States around the world), or where government opponents routinely end up killed, imprisoned, or if they’re lucky, placed on government black lists and hounded and exiled. Trump’s damage to international law hurts the whole world, and the response can only succeed if it marshals global resources.
The parochialism also disappointingly manifests itself in an unnecessary and counterproductive level of US-centric partisanship. Koh can’t avoid his key role on US international law and foreign policy during the Obama administration—but he fails to face up squarely to the many failures, misjudgments and outright mistakes of the Obama administration (as alluded to only in passing by Koh, but conveniently encapsulated by Daphne Eviatar, Kevin Heller, and Human Rights Watch’s Kenneth Roth). Then Koh doubles down on the partisanship by explicitly aligning his legal strategy with the ‘Obama-Clinton’ approach. This point significantly undercuts Koh’s argument because it holds Koh hostage to the multiple errors, double speak, and disingenuousness of the Obama administration.
The book’s unexpected and unnecessary parochialism and partisanship combine to emphasize precisely the weaknesses and impoverished imagination of the ‘neoliberal globalists’, the Center-Left parties, which have witnessed electoral collapse around the world. Koh asserts without any attempt at argumentation that the neoliberal globalized world order is the preferred (if not the default) path for the world. For his audience in the choir, this goes without saying – but it is precisely this assertion that is denied by Trump and his increasingly successful type of politician around the world (Duterte and Orban, say). Koh states that he is not arguing for an ‘elite project to thwart the will of the voters [p.150], but that is in effect what he is arguing throughout (he encapsulates this as ‘lawfare’ vs. ‘lawfair’ [p.150]), because simply repeating the need for America’s leadership in the world [p.143, 146-147] is not likely to convince those wearing ‘Make America Great Again’ hats, nor policymakers in China, Russia, and India who may have a different view of the preferred world order.
Here Koh had an opportunity—I would argue an obligation—to articulate a new, more robust vision of international law, one worth fighting for. For his strategy of ‘transnational law’ to succeed, he has to advocate for US lawyers to work more closely with their colleagues in other countries; to learn, know, and cite international law and foreign precedents more in their arguments; to reemphasize on their commitment to international law and accountability in principle and in practice.
For instance, Koh nods toward the resentments caused by neoliberal corporatist economy [p.144]—but he doesn’t advocate for greater regulation of, and accountability for, American corporations complicit in human rights violations around the world, or rules demanding consultation with indigenous populations, or for an international treaty governing the human rights conduct of business entities, or better global taxation, for instance.
He admits the failure of the Obama administration [p.98, 111-116] to close Guantanamo, but he does not advocate accountability for those officials responsible for planning and carrying out torture and arbitrary detention at Guantanamo and elsewhere in the US black hole detention system or those who put in place the overweening surveillance state in the US (a mistake that may have opened the road to the Kavanaugh majority on the Supreme Court).
He complains about the current US animosity toward international institutions, including NATO and the World Trade Organization [p.212]– so why not commit the US to strengthening such bonds, and for instance ratifying all the relevant international human rights treaties, submitting to optional protocols for accountability, and embracing the International Criminal Court?
This poverty of imagination has hobbled the ‘resistance’ to Trump. Until the center-left can articulate a more attractive view of the world, it is likely to keep getting clobbered by the dirty bullies of the new axis of intolerance. Prof Koh must describe a vision of the world to come if and when his strategy of resistance succeeds, because simply returning to the supposed glory days of Bill Clinton’s 1990s is not enough.
Koh’s central metaphor of ‘rope a dope’ resistance, in which Muhammad Ali won the bout despite getting pounded, is a dangerous one: As Koh recognizes [p.151, 210] but doesn’t incorporate into his argument, rope a dope means taking a lot of hits, and it’s not at all clear that Muhammad Ali could emerge the victor twice using that strategy. And over the long term, if Foreman lost the bout, he can claim that he won in life: he is now enjoying senior citizen status as a celebrity in relatively good health running around the world whereas Muhammad Ali degenerated into and ultimately died from Parkinson’s disease, maybe caused or aggravated by absorbing rounds of pummeling.
For Koh, and for all of us, the argument would be stronger if it pointed out the tremendous and tangible successes achieved by the international human rights legal framework, to identify this framework’s shortcomings and commit to strengthening it, and to use the tools of accountability and politics to win. Prof Koh is uniquely placed to describe the desired shape of the international legal framework in a post-Trump world; Koh should lead the resistance but to do so he must take off the gloves and reach out to actors around the world for a truly global strategy. This book is a strong performance for the first round; I look forward to Prof Koh’s next shot.