Geneva is beautiful in the spring, with the light growing longer each day on Lake Leman. Periodically over the past five years, I have come to an elegant conference room in the reconstructed Palais Wilson (site of the original League of Nations) that overlooks the water. There, in fulfillment of the modest duties of a treaty expert, I have listened, with candies and Perrier at hand, as representatives of dozens of countries have reported on their human rights performance under the International Covenant on Civil and Political Rights.
There is a loping rhythm to our sessions thanks to problems of translation, erratic schedules, and the difficulties of posing empirical questions to countries that don’t have reporting systems or administrative transparency. The work is recondite and often self-referential; there is no broadcast of our proceedings, and the dry list of recommendations we make to states that have joined the Covenant is rarely headline news. But it is honest work, and when a minister of the interior or a minister of justice comes to call, there is always the hope that the critique offered by human rights experts from around the world may do some good. Our members—including a former Chief Justice of India, a former Chief Justice of Mauritius, a former Vice-President of the European Court of Human Rights, a French judge from the Cour de Cassation, and a host of law professors and retired diplomats—pose questions that sometimes have serrated edges. The World Bank and the UN Development Fund pay attention to our work, so a bad report card can have consequences. Podcasting might eventually allow members of the public in non-democratic states to follow our conversation on the web and share the surprise that at least their governments have to answer questions somewhere. That could have consequences, too.
This spring, however, is a season of regret for human rights work. This year’s Geneva session provided evidence that the most recent round of UN human rights reforms has actually made things worse. And owing to the fact that world institutions can be reformed only at occasional intervals, this failure means that human rights work is liable to be crippled for the indefinite future. How did this come to be?
In the last year of Kofi Annan’s term as UN Secretary-General, in the interval of 2005–06, a concerted attempt was launched to reform the political side of human rights work. The Human Rights Commission, sitting as a political assembly of responsible governments, was begun in June 1946 by grand worthies such as Rene Cassin and Eleanor Roosevelt. In a world wrecked by war, Roosevelt and Cassin sought to restore and extend the principles of the Enlightenment, declaring as all people’s birthright the norms of due process, freedom of speech, thought and religion, and the right to take part in government.
In 1948, the UN General Assembly approved a Universal Declaration of Human Rights by a unanimous vote, and the Human Rights Commission then began the work of monitoring compliance with it. The Declaration’s norms have since been reinforced by treaties such as the binding Covenant on Civil and Political Rights, which now spans 161 countries, including the United States. Still other specialized treaties address economic and social rights, racial discrimination, torture, the rights of women and children, a prohibition on child soldiers and, most recently, new protections for migrant workers and the handicapped. Under these agreements a surprising number of countries file reports and listen every five years to criticism from specialized technical committees peopled by law professors and representatives of non-governmental organizations.
Nevertheless, the possibility for serious political action on human rights has deteriorated steadily over the years. Chances to take action against notorious offenders have been stymied time and again—first by Cold War politics, in which Cuba served as a faithful political whip for the Soviet bloc, and later by the corrosive effect of regional politics. The Human Rights Commission invariably echoed the tone of the UN General Assembly, where the political weight of regional groups come to rule the roost. The newer members of the United Nations could agree on little, except that they should criticize Israel. The only standing item on the Commission’s agenda, and the perennial target of “special sessions”, was the situation of Israel, a state that forty members of the United Nations have refused even to recognize.
In light of these problems, the post of High Commissioner for Human Rights was created in 1993, with the strong support of the United States, in order to provide a high-profile official who could intercede when governments needed special chiding. But the High Commissioner himself often wound up taking heat because of the prejudices of the Human Rights Commission. There are also “special rapporteurs” sent to inquire into problems of extrajudicial executions, disappearances and interference with judicial independence, and they often do important work. But here again, mandates have been shaped and buffeted by the desultory politics of the Commission. The special rapporteur for Cuba, for example, was never allowed into the country and received little support from the other members of the Commission. And marring the fine work of rapporteurs on issues such as extrajudicial executions and disappearances were other special rapporteurs who were openly political and one-sided.
In 2006, there was fervent hope for a fresh start in the human rights enterprise. But the reforms—in particular, the launch of the so-called Human Rights Council to replace the Commission—were botched, proving yet again that the utopianism of Saint Simon and Fourier has no place on the trading floor of a political body. Regional politics still drags like a befouled trawler net across the ideals of the United Nations organization. The dismay of Bolingbroke and Burke over the effect of political parties in 18th-century England applies equally in this 21th-century multilateral setting. There are no self-instructing “patriot kings” voting at the United Nations in Geneva or New York, but rather a form of geographic syndicalism. The tendentious force of regional blocs, alas, still determines the outcome of most conversations.
The most influential actor is the “Group of 77”, organized in 1964 as a coalition of “southern” states after the newly independent African and Asian states gained effective power in the General Assembly. The G-77, as it is called, now has 132 members and maintains the type of unyielding solidarity that, for example, keeps the African Union impotent in Darfur. The so-called Non-Aligned Movement also exercises discipline over a subset of 115 countries. The Organization of the Islamic Conference, which keeps an official presence at the United Nations, weighs in on the votes of 56 African, Asian and Middle Eastern countries. If a proponent of deliberative discourse came through the front door—say, Jürgen Habermas, the idealist German philosopher who has explored what it means to “give a reason”—he would be sorely disappointed by the raw politics on display in bloc-group closed meetings, where all other countries and NGOs are excluded from even observing the proceedings.
The failure to take account of these political realities set in train the latest of the UN’s many misadventures. In his final year of tenure Secretary-General Kofi Annan sought a reform package that might lift institutional morale after the disappointments of the “oil for food” scandal and the blow-up over the intervention in Iraq. After the 2006 General Assembly summit, on the occasion of the UN’s 60th anniversary, Swedish diplomat Jan Eliasson, a long-time friend of the Secretary-General and President of the 60th General Assembly, was tasked with creating a new Human Rights Council to replace the desultory ways of the dysfunctional Human Rights Commission. Despite worthy motives, the reformers’ political naivety quickly became apparent.
Both the Secretary-General and the General Assembly President were openly committed to reaching a deal before the end of their terms, within the stated “year of reform.” But any restructuring of the UN’s human rights bodies requires General Assembly approval, where the regional voting blocs dominate. This had the effect of allowing the G-77 to set its own terms, and the result was not pretty. Though some would prefer to blame U.S. Ambassador John Bolton for this, the fact remains that a better package required a willingness to walk away, meaning, at the very least, a delay on a vote until after the Secretary-General and Ambassador Elaisson left office. But the major NGO players decided not to push for this in the wishful belief that everything would come out alright in the end. The opposition of the American press to the new Council—in particular that of the New York Times and the Washington Post—came too late to be effective. The United States voted against the new Council package in March 2006, but it passed anyway with a resounding huzzah. This was not a case of one step back, two steps forward, as the rule for all difficult work goes. It was just two steps back.
The new Human Rights Council is smaller than the old Commission, with 53 members reduced to 47, but in this case, small is not beautiful. The same political caucuses that patrolled the hallways of the Commission also control the election process for Council seats. Some reform-minded NGOs chose to believe that a real contest between worthy states would be held for each Council seat, but regionally aligned slate voting again allowed ugly governments to win. The Council is dominated by the Organization of the Islamic Conference, strengthened by the misplaced solidarity of African states, and so it continues the tradition of insisting on the Israel-Palestine issue as the singular topic of conversation—the only permanent agenda item in the Council’s program.
Not surprisingly, then, a recent report by special rapporteur John Dugard critically examines Israel’s treatment of Gaza, but it disclaims any need to examine who is launching Katyusha rockets toward Ashkelon and Qassam rockets into Sderot, or which UN member states are helping them do so. The Council’s other early signature achievement was to free Belarus and Cuba from the scrutiny of special rapporteurs. The Council is flirting with proposals to prevent the “defamation” of religion in a nod to the radical Muslim side in the Danish cartoons controversy, and it has heard a proposal from its Cuban member on the need of human rights rapporteurs to constrain their criticisms of member states.
Many reformers, including major American human rights organizations, also opined back in the spring of 2006 that a new system of Universal Periodic Review would allow better leadership of the Council. Any state joining the Council would be first in line for an obligatory examination of its own human rights performance, and so nasty governments would not seek to serve. This rosy view ignored the proven political ingenuity of governments that retain autocratic power at home. In a cram-down session of the Council last year, over the protest of a brave Canadian delegate who cried foul at the absence of any direct vote on the merits, the rules for Universal Periodic Review were shaped in a way that threatens to scatter political bouquets among a crowd of human rights violators. Human rights experts across the ideological spectrum were thunderstruck when they learned of the limp rules devised by the Council, rules clearly devised to unerringly produce anodyne reviews.
The devil is in the details, as usual. Each country will be “examined” in a working group session held in a cavernous room at the Palais des Nations—a forum where NGOs cannot speak. Source materials are strictly limited to forty pages. The specific facts and incidents that give punch to the recommendations of expert treaty bodies will therefore have to be truncated to fit a Procrustean bed. Only a few paragraphs can be spared for key issues such as political dissent and retaliation against the press, the independence of judges, problems of due process, overcrowded jails, criminal penalties, police violence, the rights of women and children, the problems of minorities and indigenous peoples, handicapped persons, migrant workers and religious freedom. The Council working group will meet for a single afternoon or morning, only half as long as a treaty body, and no committed experts will be present to conduct the examination. Rather, the course of the “conversation” will be in the hands of the diplomats of three countries chosen by lot.
Even the forty-page limit is not what it seems. Twenty pages of these meager written portfolios are reserved for claims made by the state in question. Only ten pages are available to set out the critiques of the expert treaty bodies, the High Commissioner for Refugees, the High Commissioner for Human Rights, the Council’s own special rapporteurs, the UN Development Program in its rule-of-law work, and the views of the Secretary-General himself. The factual investigations conducted by international, regional and local NGOs, including such groups as Human Rights Watch, Amnesty International, the International Commission of Jurists and Freedom House, have to be shortened to fit the last ten pages. This virtually guarantees that there will be no chance to call attention to cases of particular political prisoners, or to press upon the abusive political use of mental hospitals, since there is no space even to spell out the names of the victims, let alone to explore the abuses in depth. This rule is in fact not a page limit but a new form of gag order. Eventually, there will be a one-hour plenary discussion of the results of the Working Group, and it is here that NGOs will finally have a right to talk. But unless liberal democratic states are exceedingly well-organized, the operative motion summing up the results will be tabled by a friendly regional caucus, and there will be little reason for human rights offenders to fear the plenary sessions.
Human rights professionals have two concerns: The reviews are liable to be whitewashes, and those whitewashes will be used to undercut the trenchant observations of the expert treaty bodies, which have been framed in a far less political atmosphere. In addition, as human rights experts know, it is the process of developing a comprehensive human rights report that often leads to useful self-scrutiny by a government. Many governments lack any other impetus to monitor their own performance. The treaty bodies have pushed hard to encourage governments to collect empirical information, and the typical report runs to a hundred pages or longer, with added reams of materials from NGOs being used in the examination. None of this will be a part of the method of the new, heavily politicized Human Rights Council.
It’s not surprising that the current High Commissioner for Human Rights has decided to beat a safe retreat from this environment. Canadian judge Louise Arbour was a highly effective war crimes prosecutor at the UN criminal tribunal for the former Yugoslavia, but she has had a hard time adjusting as High Commissioner in Geneva. She has kept her distance from the new Council’s work instead of diving into the politics and attempting to make things come out right. According to the Washington Post, Judge Arbour has recounted that “naming and shaming is a loser’s game” in regard to China, Russia and countries of the global South, and should apparently only be used in more responsive states. Her exit is also timed to sidestep any responsibility for the Council’s plan to run a $9 million sequel to the disastrous Durban “human rights” conference of September 2001.
The South African government sponsored the first Durban conference to examine the problem of racism, but it soon turned into a celebration of it. Openly anti-Semitic materials were displayed in the NGO meeting areas and anti-Semitic messages poured forth in so-called debates, both in official corridors and over public airwaves. Secretary of State Colin Powell ordered the U.S. delegation to walk out of the conference rather than appear to lend legitimacy to such a travesty. In the scheduled 2009 conference, there will no doubt be little discussion of the Kenyan tribes that are tearing the country apart or the depredations of Zimbabwe’s President Robert Mugabe. Instead, the global South will discuss, as always, Israel’s status as the lone outlaw nation in the world—a conversation conducted with venomous rhetoric directed not just toward Zionism but Judaism. The alliance of African and Islamic states began as a package deal in the original fight against apartheid in South Africa; it has decayed into an agreement that the only solution for the Arab-Israeli conflict requires attacking the Jewish state. Many individual African states have maintained a happier relationship with Israel, but they don’t dare oppose the group in a public setting. One can understand why the High Commissioner, having viewed the original show, wants to skip the sequel.
Curing this recurrent misuse of UN machinery will require a transformation of the UN and its politics. Though an Israeli Ambassador recently served as Vice President of the UN General Assembly, Israel is banned from membership in any of the regional groups that structure UN events in Geneva. Although Israel has been admitted to the “Western European and Others Group” (WEOG) in the New York organs of the United Nations (to which the United States, Canada, Australia, New Zealand and Turkey also belong), the Jewish state remains an outcast in Geneva. In a segregated structure that should give pause to any fair-minded observer, the chairman of the WEOG deigns to hold a separate private briefing for Israel on the decisions taken by the Western democracies in Geneva. Several European powers have taken turns in blocking any change in this exclusion, and in the course of reforming Geneva’s human rights institutions, the Secretary-General’s office somehow failed to insist upon a solution to this singular act of disrespect, as well.
The United States has chosen not to campaign for membership on the new Human Rights Council, and it is unlikely that its stance will change. Instead, the U.S. government is wisely seeking to keep other venues open to human rights matters, including the economic and social affairs “third committee” in New York and the General Assembly itself, when the occasion permits. It would also help if, during the Universal Periodic Review, independent human rights analysts would publicize the criticisms that are shunted aside by the gag-rule techniques of the Human Rights Council.
There is an unspoken chagrin in the human rights community at having accepted as shoddy a bill of goods as the Human Rights Council. American NGOs have been reluctant to speak out publicly, even though international human rights professionals and treaty committee experts are gravely concerned that the “reform” will undercut the important fact-based monitoring that has evolved in UN political space over the past fifty years.
The danger is real, and so is the fact that fixing the political machinery of human rights enforcement will take a certain savoir faire. It will require a Machiavellian virtue that knows how to harness the reputational interests and political maneuverability of respectable governments. The work of human rights is too important to abandon to the depredations of self-interested governments. The long mornings and afternoons we spend at Palais Wilson hearing fact-based reports before adjourning to an evening of Geneva languor away from our families should not be rendered moot by ostentatious political back-scratching in the new Human Rights Council. But from the looks of things, they just might be.