Colloquium on American Interests and the United Nations
Working Group #3 - The United Nations and Human Rights
Below is the rapporteur's summary of the working group on management and accountability. A list of the working group’s participants in provided at the end of the summary.
Summary
The Working Group on the United Nations and Human Rights explored the UN’s role in preventing and responding to human rights violations and discussed what could be done to improve the record of the international community in this regard. The Group agreed that the UN performance, except in select areas such as refugee resettlement, was mixed at best. Some organizations, such as the present UN Commission on Human Rights, have become politicized, ineffective, or even counterproductive.
A number of factors such as the consensus rule, regional caucuses, and the lack of any real operational capability have contributed to this. Furthermore, many participants noted a lack of commitment by many nations to shared human rights values. This made implementation of these human rights norms, even prevention of genocide or gross violations of human rights, difficult. Nevertheless, many speakers noted that the Secretary General’s High-Level Panel on Threats, Challenges and Change, endorsed by the Secretary General in his report “In Larger Freedom,” had made a potentially important contribution in the field of human rights.
In particular, they strongly endorsed the concept of "Responsibility to Protect" civilians from large-scale violence and the call for the replacement of the Human Rights Commission by a smaller, more professional Human Rights Council with a two-thirds super-majority. Some expressed caution about the ability of the United States to secure the two-thirds majority and control the make-up of the Council, however. To promote its interests, particularly in the field of human rights, Washington must be actively engaged in multilateral diplomacy at the highest levels.
Presentations
David Birenbaum, Woodrow Wilson International Center for Scholars
David Birenbaum led off by asking what can be done to prevent another Darfur. Specifically, what to do about the United Nations to make it a more effective instrument for preventing genocide, other crimes against humanity, and for upholding human rights.
The first and most obvious prerequisite, according to Birenbaum, is to gain approval of the permanent members (P-5) of the UN Security Council. The Secretary-General’s High Level Panel on Threats, Challenges and Changes embraced the concept of the responsibility to protect, i.e. "… if national authorities are unable or unwilling to protect their citizens, then the responsibility shifts to the international community to use diplomatic, humanitarian and other methods to protect human rights and the well-being of civilian populations. When such methods appear insufficient, the Security Council may out of necessity decide to take action under the Charter of the United Nations, including enforcement action, if so required." In other words, preventing genocide, ethnic cleansing and other crimes against humanity – where the state is complicit or incompetent to provide protection – becomes the responsibility of the Security Council. State sovereignty, which is conditional on protection, is not infringed, according to Birenbaum, but is nullified by failure to perform the protection condition.
When should the Council have recourse to force? Birenbaum alluded to five conditions endorsed by the Secretary-General: the seriousness of the threat; the purpose of the proposed intervention; whether means short of the use of force might work; whether the proposed intervention is proportional to the threat; and whether there is a reasonable prospect of success. Where these guidelines support a decision to use force to prevent crimes against humanity, this action is not only lawful, it is legitimate. In fact, inaction is “irresponsible,” according to Birenbaum.
The Secretary-General proposed that the Security Council adopt a resolution codifying the responsibility to protect and specifying guidelines for action. Would such action prevent another Darfur? Birenbaum argued that the very process of reaching a resolution would encourage more reasoned and accountable decision-making among the P-5 members. Even the Chinese and Russians, according to Birenbaum, would have a hard time saying “no” – particularly when the other P-5 members are saying “yes.” Even China has shown little appetite to actually exercise its veto unilaterally, except when Taiwan is involved. Birenbaum went further and asked why not seek a P-5 understanding that no member will veto a resolution supported – or, at least, not opposed, by a majority of the others authorizing a humanitarian intervention under the protection principle.
Birenbaum acknowledged that such a proposal would meet opposition within the P-5, not least of which from the United States, but argued that the P-5 had a “stewardship” responsibility which should weigh heavily in situations involving massive human rights abuses. In any case, he noted, there would be no restriction on the use of the veto where vital national interests are involved. What to do if the Security Council refuses to act? Birenbaum noted that the Responsibility to Protect Commission called for the proponents for intervention could put the question to the General Assembly under the Uniting for Peace Resolution and, if authorization is not forthcoming, get approval of an appropriate regional organization and seek Council ratification after the event. Kosovo provides a useful precedent.
Who will do the intervening? Given the often ad hoc nature of previous UN interventions (e.g., the Congo today), Birenbaum proposed a different approach: a peacekeeping coalition of nations willing to enter into agreements with the United Nations under Article 43 to make troops available for humanitarian interventions under the responsibility to protect principle. This would not be a UN force, according to Birenbaum. Rather, each nation would designate its existing forces to received special training for UN peacekeeping missions. The United States and former colonial powers would be exempted, because of obvious problems, e.g., U.S. forces are already overstretched and the historical baggage of former colonial powers. Countries with a particularly “strong commitment to global justice” such as the Nordic countries, the Netherlands, Canada, Australia and New Zealand, major troop suppliers such as India, Pakistan Bangladesh, and such regional powers such as Brazil, South Africa and Nigeria should be considered. The United States could provide lift and logistics, if not troops.
Turning to the subject of the Human Rights Commission, Birenbaum said there is little disagreement within the human rights community that there have been massive failings in the UN Human Rights Commission. The Secretary-General stated that “the Commission’s capacity to perform its tasks has been increasingly undermined by its declining credibility and professionalism.” The “credibility deficit” of the Commission has “cast a shadow on the reputation of the United Nations system as a whole.”
While Birenbaum’s American Bar Association (ABA) Task Force proposed a number of specific reforms to the Commission, he strongly endorsed the Secretary-General’s “bold proposal” to establish a smaller, standing Human Rights Council, whose membership would be elected by the General Assembly by a two-thirds majority. With a sharply reduced number of members – for example 15 –stronger candidates would emerge from the regions, crowding out the human rights abusers, such as Libya and Syria. While the Secretary General did not specifically address the role of the regional groups in selecting the membership of the Council, Birenbaum acknowledged that the role of these groups is “deeply rooted.” However, it does not follow that the system of automatic deferral should apply. Birenbaum argued that, in order to give meaning to the super-majority voting protocol, each region should reserve the right to reject candidates which do not meet acceptable human rights standards. He alluded to the precedent of Nigeria winning selection to the Security Council, despite the lack of endorsement by the African Union. Moreover, states under Security Council sanctions or censure by the Human Rights Council would not be eligible.
While the Human Rights Council would go far to remove the credibility deficit, assuming that the super-majority voting protocol is maintained, Birenbaum argued that other reforms will also be necessary (taken from recommendations from the ABA Task Force):
- Since any intergovernmental body is by nature a political body, an active and effective democracy caucus is imperative.
- All members of the Council should be required to adhere to a code of conduct whereby they pledge to fulfill their international human rights treaty obligations. Countries that violate the code would be eligible for removal and ineligible for election to the Council.
- The Council should focus on fundamental human rights and not social and economic rights.
- There should be no place on the agenda of the Council for discriminatory treatment of Israel or other countries.
- The investigation processes of the Council should be strengthened, including developing a training program for rapporteurs and a common investigative protocol based on best international practice.
- With an enriched system of highly professional rapporteurs, reports documenting human rights abuses would gain greater credibility.
- The Office of High Commissioner should be strengthened, including substantially increased funding. Furthermore, the High Commissioner should be able to bring cases of imminent human rights crises to the attention of the Security Council.
- The High Commissioner should enhance the program of rule of law assistance to countries seeking to improve their human rights performance.
- The High Commissioner should establish an advisory committee made up of human rights experts.
- NGOs should have greater opportunity to participate in Council meetings.
Anne Bayefsky, Hudson Institute
As a point of departure, Anne Bayefsky asked why we are here. She noted that the Task Force was created to assess the extent to which the United Nations is fulfilling its purposes and advancing U.S. national interests. The historical record of the United Nations regarding human rights protection, she argued, contained serious shortfalls. She pointed to the undemocratic character of many UN members, disagreement about universal characteristics of democracy, and disputes about values even among democratic states.
Bayefsky reviewed the record of the UN political and legal institutions dealing with human rights. On the political side, with entities such as the Human Rights Commission, Third Committee, Economic and Social Council, she argued that the record was “appalling.” The UN Human Rights Commission, as currently constituted, was either unable or unwilling to address human rights conditions in many countries that properly bear criticism. She noted, for example, that the Commission no longer approves of a human rights investigator on abuses in Iran, and has never had a single resolution condemning human rights violations on such countries as China, Syria, or Saudi Arabia. At the same time approximately 30 percent of Commission resolutions condemning a specific state, over the last almost four decades, have been directed at Israel. On the legal side, Bayefsky noted that while 1.5 billion people live in UN member states which permit individuals to complain about human rights violations to UN human rights treaty bodies, the treaty bodies register only about 200 cases a year. Coupled with failures to produce state reports, and the short time available to treaty bodies to consider country situations, the UN human rights legal system indicates a widespread failure to take obligations to protect human rights seriously. As for the special rapporteur or investigator mechanism and the thematic approach to international protection of human rights, she noted the unfortunate proliferation of mechanisms driven by the “quid pro quo” for accepting the creation of a rapporteur on a subject like toxic waste in exchange for one addressing civil and political rights.
Bayefsky questioned the UN’s ability to deal with real emergencies such as those occurring in Darfur. She noted the problem was not confined to non-democracies, considering the disinterest of the European Union in taking stronger action on the genocide in Sudan. In addition, responsibility for inaction could not simply be placed on member states, since in January a UN commissioned report asserted that genocidal policies were not being pursued in Darfur. In fact, much of the criticism was redirected at the United States for its initial refusal to send the matter of individual criminal prosecution to the International Criminal Court (ICC). In other words, according to Bayesky, the Darfur issue at the UN had become an “anti-U.S. exercise.” By focusing on the ICC, the UN avoided taking immediate action to stop the genocide through tougher actions - such as real sanctions and/or stronger forces on the ground. While the UN refused to direct attention at egregious human rights violations in Darfur, Rwanda, or Kosovo by convening an emergency session of the General Assembly, Bayefsky noted that the UN had convened six emergency special sessions of the General Assembly to condemn Israel (out of the ten emergency sessions held since 1956).
Bayefsky then addressed the issues of protecting human rights and the war on terror. She noted that the UN’s ability to play a constructive role in the war on terror was seriously compromised by its lack of a definition of terrorism. Thus, members of the Organization of the Islamic Conference had refused to accept a definition which would include terrorism directed at Israelis. Furthermore, the UN human rights mechanisms repeatedly contrast the protection of human rights with the war on terror, and fail to stress the human rights involved in a state’s duty to protect its citizens from terrorism.
What to do? Bayefsky asserted that the importance of the ICC as a mechanism for preventing human rights violations was seriously exaggerated. The UN human rights system had additional flaws, including the non-independence of “experts.”
Can we design a better system? The fundamental problem is that there is not a “democratic majority” at the United Nations. With the current UN membership, the established procedures, and even the proposed two-thirds voting requirement for a new Human Rights Council, nations that abuse fundamental human rights cannot be excluded from relevant UN organs. Regional bodies, such as the Council of Europe, have democratic pre-conditions for membership. The United Nations does not. Regional bodies such as the Council of Europe, Organization for Security and Cooperation in Europe, Organization of American States, etc., to varying degrees, will have an important role in furthering human rights protection given the institutional impediments of the United Nations.
In conclusion, Bayefsky reasserted that the lack of shared democratic values among UN members made meaningful UN human rights reform extremely difficult.
General Discussion
While a wide range of opinions were expressed during the general discussion about the UN’s role in preventing and responding to genocide and human rights violations, a number of general impressions emerged regarding the UN’s past performance and future options.
Past Performance: There was widespread agreement that UN performance in protecting human rights, particularly that of the Human Rights Commission was mixed at best. While the United Nations has been successful in some areas such as refugee resettlement and has performed admirably in saving lives, other organs have been either so politicized or lack the operational capability to have any positive effect. The inclusion of states, for example Libya, on the Commission undermines the credibility of UN human rights activities in general. The Secretary-General called for major reforms of the Commission including universal membership. In the longer term, and perhaps more importantly, he called for changing the Commission to a smaller, more professional “Human Rights” Council. Many speakers strongly endorsed this proposal noting that abolishing the Human Rights Commission might create a new opportunity to open up the political process -- i.e., by circumventing the power of the regional groups and the consensus criteria.
Human Rights Standards: Many speakers noted that the international community did not share common values and understandings on human rights. This makes implementations of these standards difficult. While many speakers agreed it would be useful to have agreed upon human rights guidelines, they also acknowledged it might be impossible to reach consensus on such standards today. One speaker noted that it is doubtful whether the international community would be able to agree upon the UN Charter or whether the United States could agree upon the Declaration of Independence or Bill of Rights today. There are certain points and circumstances in history, such as the end of World War II, when institutions and charters can be created. Many considered it unlikely that such bold initiatives could be launched today. Because any inter-governmental body is by nature political, and often requiring a consensus, it was difficult for any state or idea to get too far ahead of the political consensus. Nevertheless, a number of speakers argued that the United Nations could be more effective in addressing human rights abuses if member States, particularly the United States, were engaged in more active diplomacy and the United Nations were organized in a more focused, professional manner -- e.g., the proposed Human Right Council.
Role of Diplomacy: Some speakers called for a more active U.S. role in the United Nations, arguing that Washington must make the case for advancing the U.S. agenda in the larger UN process. It should not expect others to automatically agree to U.S. positions. Enlightened U.S. diplomacy was largely successful during the Cold War because Washington believed in the institutions it helped create after World War II and was actively engaged in these institutions. Others pointed to the limits of diplomacy. When consensus could not be reached at the United Nations in Kosovo, for example, NATO was able to intervene and the Secretary-General did not object.
U.S. Role: Many argued that the United States must be more actively engaged in multilateral and human rights diplomacy, not only in the United Nations, but also in Washington and capitals. Some noted that only a strong commitment at the highest level to multilateral diplomacy from the President to the Secretary of State to the regional assistant secretaries of state to the ambassadors in capitals could most effectively promote American interests internationally -- i.e., “not leave it to second secretaries delivering demarches in capitals.” Others asserted that the United States had lost some human rights credibility because of events at Abu Ghraib and Guantanamo. These speakers also noted that U.S. credibility had been harmed by not signing certain international treaties. Many, however, said that these events should not affect the United States’ ability to conduct active diplomacy internationally. In any case, many noted that the Administration and Congress should work closely with the international community in promoting human rights norms in the UN system.
Human Rights Council and Two-Thirds Vote: There was significant discussion of this proposal. Some believed that such a body could do serious work, because it would be smaller, more professional, and more amenable to proactive advocacy. Furthermore, it would be harder for a nation like Libya to get on the Council. This would not obviate the need for active diplomacy to get a two-thirds majority, but a number of speakers were sanguine that this could be done. Some thought that regional groups might still nominate rogue states, but others argued that other regional groups, such as the West European and Others Group (WEOG), would not necessarily accept such nominations and that, in any case, the two-thirds vote requirement in the General Assembly would prevent such states from getting on the Council. Some were more cautious, pointing out that the United States and EU did not always agree (e.g., Iraq and Darfur) and that even rogue states might be able to “vote swap” better than the States.
Responsibility to Protect: A number of speakers strongly endorsed this “breakthrough” concept, which implies that being sovereign carries with it a responsibility to adhere to international norms, particularly to prevent genocide and/or major human right abuses. While one speaker lamented that the Secretary General missed an opportunity by not directly endorsing this concept, others argued that the SG had not rejected the concept. In fact, they believed that the concept was strongly accepted in the human rights community and gaining acceptance in the United Nations. A number of speakers stated that the Task Force on the United Nations should explicitly endorse the emerging norm of an international responsibility to protect civilians from large scale violence. Some noted that the norm created not just a right, but an obligation.
Role of the NGOs: Many speakers noted the important role played by non-governmental organizations (NGOs) in promoting human rights internationally. They argued that NGOs should play a larger role in UN organs. They also noted that the United Nations could play an important role in assisting NGOs on the ground by “naming and shaming” human rights violators.
Participants in Working Group #3
Moderator: Sloan Mann, USIP
Rapporteur: Jon Gundersen
Presenters:
David Birenbaum, Wilson Institute
Anne Bayevsky, Hudson Institute
Members:
- Ivo Daalder, The Brookings Institution and Expert, Task Force on the United Nations
- Steve Dimoff, United Nations Association
- Steve Hansch, Georgetown University and Expert, Task Force on the United Nations
- Tod Lindberg, The Hoover Institution and Expert, Task Force on the United Nations
- Joseph Loconte, The Heritage Foundation and Expert, Task Force on the United Nations
- Susan Martin, Georgetown University
- Donald McHenry,
Georgetown University and Member, Task Force on the United Nations
- Margaret Pollack, U.S. Department of State, Bureau of Population, Refugees and Migration
- William Smyser, Georgetown University
- Jennifer Windsor, Freedom House
