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Koh’s Goal for the Legal Trade in Arms: Ban It

Posted By Ted R. Bromund, Ph.D. On May 11, 2009 @ 4:41 pm In Legal | Comments Disabled

Harold Koh, the nominee for Legal Adviser to the State Department, supports “the global regulation of small arms” and a “global gun control regime.” And he believes it is “needlessly provocative” for any U.S. representative to refer to the right to bear arms when speaking to a foreign audience: the very mention of the Second Amendment, apparently, is offensive. That has very serious implications for domestic policy, but what does Koh want to do with the legal, international arms trade? The answer is simple: he wants to ban it.

In 2002, Koh spoke on the subject at Fordham Law School. In his remarks, he emphasized the importance of what he called “bright-line norms,” i.e. absolute rules. A bright-line norm that we can all endorse, for example, is that human slavery is wrong. But Koh wants a great many more such norms. One of them is against the production and use of antipersonnel landmines. That, though, is only the start. Koh then noted regretfully that “we are a long way from persuading governments to accept a flat ban on the trade of legal arms.” The emphasis was his.

Yes, a complete ban on the international trade of all arms. Not even a ban on the trade of arms in peacetime, though that would be no better: a flat ban on the arms trade, period. If Koh’s doctrine won out, even the Lend Lease Agreement in World War II, under which the U.S. supplied weapons to nations resisting Nazi Germany and Imperial Japan, would have been illegal. So would the U.S. supply of weapons to its allies who resisted Communism during the Cold War. So, of course, would U.S. arms sales to Israel and many other close allies, including Britain, today.

The kindest thing that can be said about this idea is that it makes no sense. If all states had to rely for their defense on weapons they made themselves, most small to mid-sized states would be completely indefensible. Not even the U.S. makes all of its own weapons, and all the parts that go into them. Banning the trade in legal arms would make U.S. defense considerably more expensive, and expose virtually every other democracy in the world to unresistable attack from, or blackmail by, dictatorships.

This is not a path to peace: it is a prescription for ferocious wars of aggression by the large, strong, and tyrannical against the small, weak, and democratic. As long ago as 1934, Winston Churchill pointed out the fallacy of the belief that disarming the good will discourage the bad: as he put it, the overnight abolition of gunpowder would only result in savage wars launched by men with spears.

And that is not merely a rhetorical flourish, as the terrible experience of Rwanda demonstrates. Koh’s belief that the trade in legal arms needs to go is nothing more than magical thinking at its worst: it blames the arms trade, not bad governments or totalitarian ideologies, for the evils of the world. And that is not merely wrong: it poses a serious danger to the stability and peace of the democratic world.


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