More on Harold Koh’s statements at his softball hearing (numbered serially from my Part 2 post):
3. Asked about his 2002 op-ed asserting that the Iraq war would violate international law because the United States did not receive “explicit United Nations authorization” for the war, Koh contends that “the only point I made in that article” was that “the consequence of that [lack of explicit UN authorization] was that the intervention into Iraq in 2002 did not have the kind of broad support that we would have preferred.” In fact, Koh made several other points.
One point that Koh understandably would want to obscure is his assertion that “such an attack would [not] make the world or America safer” because “If we attack, we could expect [Hussein] to respond with weapons of mass destruction against Israel and against us if he can reach us.” That’s right: Koh was invoking what was believed to be Saddam Hussein’s control of weapons of mass destruction, and was doing so as a reason not to remove Hussein.
Among Koh’s other points: “Fifth and finally, I do not believe that unilateral pre-emptive attack is what this country stands for.” I also do not believe that unilateral pre-emptive attack is what this country “stands for” (as opposed to something that we may under limited circumstances be justified to resort to). But Koh’s phrasing conceals his more radical position (as discussed in Q32 here) that “we move to a per se ban on unilateral anticipatory war making, with any post hoc justification of such anticipatory actions being asserted as a defense and not in the form of prior permission.”
4. Asked whether those damaged by the United States government’s alleged violation of international law in invading Iraq have a legal remedy they may pursue, Koh denies that the alleged illegality of the invasion would trigger any legal exposure. But Koh’s own positions on customary international law and the Alien Tort Statute readily support an action, based on a customary international law rule against aggressive war, against all American corporations that assisted the war effort for aiding and abetting the commission of war crimes.
In addition, beyond tort liability for American corporations, Koh’s position that the invasion of Iraq violated international law would seem to mean that he believes that President Bush and all members of Congress who authorized the war in Iraq (and who did so without maintaining that additional United Nations authorization for the war was necessary) are vulnerable to prosecution as international war criminals. But that’s probably not a good point for Koh to highlight when he’s trying to get confirmed by senators whom he regards as having been complicit in war crimes.
5. Nearly three decades after Israel’s 1981 attack on the Iraqi nuclear installations at Osirak, Koh is unable to answer whether Israel’s attack was justified as a preemptive act of self-defense or violated international law.