On 15 March 2006 the UN General Assembly adopted Resolution 60/251 establishing the new Human Rights Council ("the Council"). The adoption of the Council had become necessary since its predecessor – the Human Rights Commission – had lost its credibility due to the politicising and double-standards of its work. This often resulted in the effective protection of human rights having little or no bearing on the agenda of the Commission. The Commission was further tarnished by the fact that its membership was open to countries which systematically violated the most basic civil and political rights of its citizens, culminating with Libya chairing the Commission in 2003.
While the improvements made from the old Commission were very modest and mostly theoretical in nature, Resolution 60/251 does state, inter alia, that the Council shall
"address situations of violations of human rights, including gross and systematic violations, and make
recommendations thereon" and "that the work of the Council shall be guided by the principles of universality, impartiality, objectivity and non-selectivity."
According to former Deputy Secretary General Mark Malloch Brown the reform of the Commission was a "litmus test" of UN renewal. At his statement on 19 June 2006 at the Council's first day of work, former Secretary General Kofi Annan proclaimed a "new era in the human rights work" of the UN. Annan also expressed his hope that the Council would entail "a change in culture" from the Commission.
However, rather than ushering in a new era of non-partisan commitment to the efficient protection of international human rights, the work of the Council has so far proved even more politicised, biased and hostile to the protection of basic rights than the work of the Commission. In particular, the failure to limit Council membership to States with proven human rights records has proven costly.
The 3 regular and 4 special sessions held by the Council so far, have shown fundamental and bitter differences between Western and non -Western – in particular Muslim – States. The Muslim States are often co-ordinated by the Organization of the Islamic Conference ("OIC"), which has a substantial number of members on the Council which consists of a total of 47 members. The Muslim States can often count on the votes of the members of the African group, as well as the votes of countries such as Cuba and China. The Western states can only sometimes hope to count on the support of other liberal democracies such as South-Korea and Japan.
In effect, this forms a majority coalition of States with a very questionable, if not hostile attitude toward classic, civil and political human rights. Accordingly, countries based on Western style liberal democracy with separation of powers, constitutionalism and protection of individual rights at its core, form a marginalised minority within the Council. These States are thus powerless to prevent the aforementioned coalition from setting the agenda of the Council and in the name and with the moral authority of the Council, adopting resolutions and decisions which are blatantly at odds with the effective protection of human rights.
While the first regular session was largely ceremonial in nature and the third concentrated on institution building, the second regular session of the Council -supposed to achieve substantive results – offers a good window into the workings of the Council.
Western States continually found themselves unable to gain support for decisions or resolutions on issues such as freedom of speech and religious tolerance, Sri Lanka, which experienced wide-spread violence at the time, and Darfur, which continues to be the worst current example of systematic human rights violations in the world. According to an anonymous EU official:
"the unsuccessful attempts to reach consensus, despite exhausting efforts, have showed once again that the EU simply cannot muster enough support for its proposals and was repeatedly forced into an underdog position."
The coalition of non-Western States also successfully obstructed other attempts at any country specific discussions, decisions and resolutions, which would otherwise seem a prerequisite for the Council since human rights violations are committed by states and, that the obligation of human rights conventions rest upon states.
According to another anonymous EU official:
"Country mandates were more vigorously attacked than previously; the "hardliners" did not accept that the Council "took note" of reports of SRs (Special Rapporteurs)[..] and discussing human rights violations by countries, appeared to be increasingly difficult."
The Report also claims that most likely a majority of the Council will seek to do away entirely with the current possibility of appointing Special Country Rapporteurs charged with investigating human rights violations in designated countries.
The second ordinary session resulted in no substantive decisions or results and the session had to be suspended with a view to further discussion of different proposals.
The EU official paints a bleak picture of the future work of the Council:
"Still, the past three weeks have shown that it will be an uphill battle for those who want a strong Council effectively equipped to promote and protect HR worldwide, in a non-selective and non-politicised atmosphere, and to ensure that its objective and balanced recommendations are adequately implemented."
The Israeli Exception
Despite the resistance of non-Western States to country specific reports, these countries have shown themselves willing to make a notable exception. In the Council's first regular session the Council decided to ask various Special Rapporteurs to report "on the Israeli human rights violations in occupied Palestine", as well as on:
"human rights violations and implications of the Israeli occupation of Palestine and other occupied Arab territories at its next session and to incorporate this issue in following sessions".
Accordingly, the Council decided to make specific consideration of Israel a permanent issue of future sessions, all the while unwilling to consider any substantive human rights issues in other countries with serious human rights problems. Moreover, the wording of the decision is markedly biased in that it only mentions Israeli human rights violations and omits any reference to terrorism and the killing of civilians by Palestinian groups.
It is noteworthy that the countries voting in favour of this decision included Algeria, China, Cuba, Saudi-Arabia and Pakistan, whose human rights records are notoriously poor. The Western States were easily outvoted, demonstrating the power of the OIC to set the agenda on the Council. When the Special Rapporteurs, appointed by the Council, reported back on their findings with regard to Israeli human rights violations in Palestine, their conclusions were vigorously opposed by the very same majority which had requested the Special Rapporteurs to initiate their work. This opposition seemingly resulted from some of the Special Rapporteu
rs – while roundly condemn
ing Israel – also mentioned Palestinian killings of innocent civilians, which the majority found tantamount to pro-Israeli bias. Accordingly the OIC states worked actively to drop any reference to the conclusions of the reports of the Special Rapporteurs from the Council's decisions and resolutions.
3 out of 4 of the Council's special sessions have been called in order to discuss Israel and issues such as Palestine, Lebanon and Beit Hanun. All of these extraordinary sessions have resulted in completely one-sided, strong-worded condemnations of Israel – often based on no verifiable factual background and/or media reports. Moreover, these condemnations include no reference to the abduction of Israeli soldiers or terrorism by Palestinian factions and Hezbollah. These decisions have been carried through despite Western States voting against the proposals.
Of particular interest is the Council's second special session on " The grave situation of human rights in Lebanon caused by Israeli military operations", a session called by Tunisia on behalf of the Group of Arab States and the OIC. The title of the session – attributing the war and its civilian casualties solely to Israel without mentioning Hezbollah – is indicative of the extreme level of bias demonstrated by the Council during this session.
The Council adopted a resolution, which, inter alia, condemned Israeli military operations in Lebanon as "gross and systematic violations of the Lebanese People" – language ordinarily reserved for circumstances such as the ethnic cleansing of the Former Yugoslavia and Rwanda. The Council was moreover, "appalled at the massacre of thousands of civilians", an accusation which should only be employed by the body of an international organization if backed by solid facts and clear supporting evidence, which was not the case.
The Council also decided to establish a high-level commission of inquiry comprising of eminent experts on human rights:
"To investigate the systematic targeting and killings of civilians by Israel in Lebanon[…] to assess the extent and deadly impact of Israeli attacks on human life, property, critical infrastructure and the environment".
The Council had thus already concluded that Israel was guilty of "systematic and targeted killings of civilians" before the independent experts whose job it was to investigate the conflict had even been appointed, let alone commenced their work.
The Council also ensured that the mandate of the Commission of Inquiry would be limited to deal only with Israeli human rights violations, so as to effectively shield the actions of Hezbollah from any scrutiny. In fact, Hezbollah is not mentioned once in the Council's resolution, nor are the deaths of Israeli civilians mentioned therein.
The wording of the Council's resolution is not consistent with the Security Council's balanced Resolution 1701, which does not speak of massacres, but rather, makes mention of hundreds, rather than thousands of deaths, and specifically mentions Hezbollah attacks on Israeli civilians as well as the abduction Israeli soldiers by Hezbollah. Once again, the Western States were helpless in preventing the Council from hijacking the cause of human rights in order to pursue the political agenda of its majority – or perhaps rather the agenda of the OIC – an agenda which is completely at odds with the mandate of the Council as set out in Resolution 60/251.
The conflict in Lebanon would have been the perfect occasion for the Council to prove to the world that it had risen above the Commission's old failing ways. There was good reason to initiate an impartial investigation of the behaviour of both parties to the conflict in Lebanon, including those Israeli violations of human rights and international humanitarian law, which did occur. Instead, the Council descended into practices and rhetoric so one sided as to practically constitute a defence of Hezbollah, thereby exhausting what legitimacy it still possessed.
When the Council, in its fourth special session, finally decided to investigate a country other than Israel, namely Sudan, the difference in the approach adopted was stunning. In its decision, the Council merely expressed its concern about the situation in Darfur. Moreover, the Council commended the Sudanese Government for its cooperation with the Human Rights Council.
This despite the fact that the Sudanese government has persistently frustrated the efforts of the international community to solve the crisis in Darfur. The decision included no condemnations of Sudan and made no mention of the wide spread massacres which have occurred in Darfur with impunity for years.
This is so despite the fact that the Special Rapporteur on Human Rights in Sudan on 11 January 2006 had issued a report stating, inter alia that she "saw no improvements in the Human Rights situation". The Special Rapporteur also reported that
"the renewed level of conflict too often left civilians the target of attacks by government forces, milita and rebels. Armed men travelling in small groups […] continued to murder, beat and sexually assault IDPs and villagers".
While the Council did decide to dispatch a high-level mission to Sudan, surely the gross and well documented human rights violations in Darfur including the killings of tens of thousands of innocent civilians warrant a condemnation or at the very least an acknowledgement from the UN's premier human rights body. The fact that the Council has repeatedly chosen not to do so while routinely condemning Israel demonstrates that the Council can not be trusted to fulfil its mandate under Resolution 60/251.
An alternative approach?
It is a good measure of how bad things have become that Human Rights Watch and Amnesty International – both vocal supporters of the adoption of the Council – have been critical of the work of the Council. However, organizations such as the abovementioned and other prominent members of what can be labelled as the human rights movement are unlikely to call for the abandonment of the Council and will most likely insist on any reform to be kept within the institutinal framework of the UN. Yet the implosion of the Council demonstrates that serious reform of a UN human rights mechanism, which members consist of UN member States rather than individual and independent persons, is a utopian dream.
Despite the beautiful words in countless UN conventions and resolutions, the UN has never been and never will be the guarantor of basic civil and political rights. Such rights have always – however imperfect – been best secured at the national level by liberal democracies with constitutions much older, more vigorous, and more proven and respected by political institutions and citizens than the UN Charter and its human rights related off springs. This demonstrates that if classic civil and political human rights are to be efficiently protecte
d at the international level, the relevant states must be liberal democracies and share a culture of and commitment to constitutionalism.
A good example of this is the Council of Europe ("CoE"), the brainchild of Winston Churchill. In its preamble, the CoE member States reaffirmed
"their devotion to the spiritual and moral values which are the common heritage of their peoples and the true source of individual freedom, political liberty and the rule of law, principles which form the basis of all genuine democracy".
Liberal democracy and ratification of the European Convention of Human Rights ("ECHR"), supervised by the European Court of Human Rights is compulsory for member states. The CoE, which now includes former fascist states such as Portugal, Spain, Greece, as well as the former communist States in Eastern Europe, has quietly played its part in spreading and consolidating basic civil and political rights in European States.
While the European Court of Human Rights have at times engaged in worrying levels of judicial activism, thereby arguably somewhat diluting the ECHR, it's jurisprudence is generally well respected amongst the member States including the national courts of these. The success of the CoE in the area of human rights is in stark contrast to the failure of the UN. A failure which the UN will be unable to remedy unless it too realises that when membership is open to democracies as well as totalitarian, authoritarian, fundamentalist and communist States, the latter will never be committed to respect classic civil and political rights since systematic violations of these are the means by which the regimes of such states keep themselves in power.
The Western States on the Council should be commended for voting against the often outrageous proposals submitted by the majority. However, their support for the Council as an institution is in the long run, tantamount to acquiescence in the further deterioration of human rights standards and the effective protection thereof, which seems to be the aim of several members of the Council. After all, the mood among EU officials demonstrates that Western states know perfectly well that there is little chance of improving the Council within the UN system.
Thus, rather than protecting the Council and the UN, Western States ought to insist on the intimate link between liberal democracy and human rights and the moral, as well as practical superiority of such a system of government. This would entail abandoning the UN as the principal international organ for the promotion and protection of human rights and the creation of a new international organization better equipped to serve this purpose.
Membership of such an organization should be open to countries of all continents, provided that they are liberal democracies with basic protection of civil and political rights. If one uses Freedom House's "Freedom in The World 2007" survey as inspiration, 25 countries from the Americas, 1 Middle Eastern (Israel), 24 Western European, 16 Asian and 13 Eastern/Central European countries are deemed to be "free" and would thus qualify for membership of the proposed new organization entrusted with the protection of international human rights.
The creation of a new international human rights organization would be a watershed event on the international scene marking the intent of the free countries of the world to stand up for the basic rights and liberties which ensure the freedom enjoyed by their citizens. The work of a competing human rights organization consisting of free countries used to free public debate and criticism of their governmental policies and practises would expose the way the Council majority abuses the rights it is meant to protect. At the same time, it would send a loud and clear message to the authoritarian countries of the world that their form of government lacks the legitimacy of liberal democracies. A message sorely needed at a time where human rights at the international level are expected to be protected by countries where no human rights exist.