The United States and the Human Rights Council – a tumultuous relationship?

Human Rights Watch (HRW) is a nonprofit human rights organization made up of roughly 400 staff members around the globe with its headquarters in New York City. Established in 1978, HRW publishes more than 100 reports and briefings on human rights conditions in some 90 countries.[i] Laila Matar, Senior UN advocate at HRW, monitors the Human Rights Council (HCR) and works together with delegates of the HRC and “regional groups like the African Union and the European Union, financial institutions, and corporations”[ii] to identify opportunities for change when it comes to human rights.

HBS: The Human Rights Council has received a lot of criticism since its establishment in 2006, some even call it obsolete. Looking at statistics, the number of resolutions increased immensely over the past years. In 2006 for example, it adopted 43 resolutions and 89 in 2015. The number of Commissions of Inquiry (international investigative bodies that respond to situations of serious violations of international humanitarian law and international human rights law) rose to 16.[iii] Do these statistics say anything about the Council’s efficiency? How do you measure progress?

Laila Matar: The Human Rights Council (HRC) was established in 2006 to replace the previous Commission on Human Rights. Part of the reason why this Commission failed, was because it was seen as being too politicized. The composition of the current Council with 47 member states,  elections and a certain standard for membership that was set when the Council was established, were meant to make it a less politicized body. I think the trend you described in it having become more efficient, is generally true. Of course there are very tense and difficult situations- for example, in sessions and hearings in which the geopolitical situation prevents the HRC from collaborating and reaching consensus on key issues. On the other hand, there have been times, like right after the Arab spring, where there was an opening for cooperation, meaning more flexibility and less bloc politics. While I therefore agree that the HRC has been getting more efficient since its establishment, it’s not necessarily a linear progress.

HBS:  The establishment of the Commission of Inquiry for North Korea has been praised by human rights advocates. Even though rapporteurs, who are supposed to be watching the situation on the ground, aren’t allowed to enter the country, more and more details about the human rights abuses in North Korea are coming to the surface. Can you name some other examples of the Council’s work?

Laila Matar: Yes, there have been concrete initiatives that are important, as you mentioned the North Korea Commission of Inquiry. Another example is the work the HRC has done on South Sudan. In 2016, they established a three person Commission on Human Rights in Sudan, a new type of mechanism for the Council. These persons are tasked with monitoring and reporting on the situation in South Sudan and to provide guidance on transitional justice, accountability, etc. They came back with a strong report, which led to a renewal and an expansion of their mandate. This means, we now have a body that is mandated with full investigative functions to collect evidence on crimes and violations committed in South Sudan, to clarify responsibility and to identify perpetrators. Without the Council, we might not be able to get this information. Another example is the Commission of Inquiry on Burundi, which is currently undertaking its work and about to report back in September. The Commission was established after an initial report that was mandated by the Council that found reasonable grounds to believe that crimes against humanity have been committed in Burundi. This is an illustration of a situation where the Council actually responded relatively fast. I could name even more of those situations where the HRC was able to engage while other UN bodies such as the Security Council did not, either because of competing priorities or because of the veto of powerful members.

HBS: Coming back to its flaws, the majority of members aren’t democracies and many are accused of committing human rights abuses themselves. A mechanism that was introduced within the Human Rights Council in 2006 is the so called “Universal Periodic Review (UPR).” According to the Council’s website, it’s a “state-driven process, under the auspices of the Human Rights Council, which provides the opportunity for each State to declare what actions they have taken to improve the human rights situations in their countries and to fulfill their human rights obligations.”[iv] During those reviews, every member state can make recommendations regarding the human rights situation of the reviewed countries. The countries receiving the most recommendations from 2008 until 2014 were: Cuba, Iran, Egypt, the Democratic People’s Republic of Korea, and Vietnam. Do these countries also adapt recommendations or is this just a farce? And addressing the criticism behind it, are these topics controversial?

Laila Matar: I think there is a whole scope of topics being addressed at the Council. The UPR is one mechanism of the Council. We definitely have a lot of concerns about the direction the UPR is taking. Unfortunately, many countries use it to commend their allies for imagined human rights progress that is simply not there. It’s certainly true that it is easier to get critical states to address issues like children’s rights and women’s rights, which are of course important, but they shy away from other controversial issues. When it comes to the HRC more generally, I think we have resolutions across the board. Women’s rights can indeed be very controversial when it comes to reproductive rights for instance. The most controversial work of the HRC has unfortunately to do with country specific engagement. That’s where you see the biggest polarization of HRC member states. But human rights violations don’t happen in a vacuum, they happen within national borders, which is why the most critical function of the HRC is addressing situations in specific countries.

HBS: How are autocratic states like the Republic of Congo, Cuba and Egypt addressed in the Council?

Laila Matar: One main problem at the Council is that powerful states shield themselves and their allies from being scrutinized with regards to their human rights situation. I agree with the criticism that it’s certainly quite hurtful to the credibility of the HRC to have countries like China, Saudi Arabia and others as members. We are very concerned about that and continuously encourage UN members to prevent some of the biggest violators of human rights from joining, for example by having competitive elections. That said, as much as it is ironic to have countries like Burundi as members, despite its membership, the HRC has been able to provide attention to the situation of human rights there (see previous answer), even if the outcome isn’t always consensual. In other words, the overall picture is not black and white. Yes, it embarrassing that the membership of the HRC is as weak as it is, but it is still able to address serious situations.

HBS: And what advantages do countries like Saudi Arabia, which are often accused of human rights violations, get out of their membership in the HRC?

Laila Matar: They are  trying to protect themselves by having more influence with their vote at the HRC. Every time the HRC has tried to address the human rights situation in Yemen, for example, Saudi Arabia has done its best to block any efforts, given their involvement in Yemen. Therefore, part of it is to shield themselves from scrutiny and knowing they can influence outcomes while being a member, while another part of it is the positive reputational image that comes with a membership.

HBS: Taking a look at the role of the Unites States in the Council, it has changed with every administration so far. While the Bush administration refused to join, the Obama administration was convinced that a membership would be useful to influence the agenda. President Trump is still considering leaving it, while the ambassador Nikki Haley announced a close scrutiny of the Council. The US criticizes that way the Council is elected, (“by the majority of members of the General Assembly of the United Nations through direct and secret ballot”[v] arguing that it’s not sufficiently addressing country specific human rights, and that it’s overly focusing on Israel. Do you think the United States should leave the Council?

HBS: Focusing on Israel, this is one of the main concerns originating from the establishment of the so called “item 7” in 2006. This item solely addresses Israel/Palestine, a topic that concerns almost a half of all resolutions passed since the establishment of the HRC. What does this mean for the agenda of the Council and how are the members reacting to it?  

Laila Matar: Item 7 is part of the ten point agenda of the HRC, established when the institution was formed in 2006. For it to change, the Council would have to open itself up to proper reform, something that is planned to take place in 2021. Of course, nothing stops the Council from a reform at any given moment, but for this mechanism, consensus is needed. At Human Rights Watch, we have also noticed the disproportionate focus on the Israel-Palestine issue at the Council, but here again the answer shouldn’t be silence or less scrutiny of a serious human rights situation. Israel needs to be scrutinized for its violations, but this can be addressed under several other items.

HBS: You have mentioned competitive elections and a mechanism to prevent human rights abusers from participating as possible reforms. Are there any other aspects you would want to change for the Council so that it will become more credible?

Laila Matar: Yes, I think there is a lot the Human Rights Council can achieve. Its biggest problem is the cautiousness or unwillingness by some states to address violations without the consent of the country in question. Obviously, if the government itself is a perpetrator of human rights, this country would not want to be held to account. Not addressing these issues would make the whole premise of the HRC fall apart. It’s crucial that the US and the EU, as well as moderate states from Africa, Asia, and Latin America, work in coalitions across regions in order to put forward resolutions and to support them fiercely. This has been very successful in the HRC to this point. Additionally, together with other NGOs, we are encouraging the Council to develop the practice of using objective criteria in assessing when to take action on a country specific situation. When the High Commissioner calls for action, or when there is a group of special rapporteurs saying the situation is dire, for example, the HRC should engage. There needs to be certain criteria, perceived as a trigger for action. 32 states already voluntarily pledged to commit themselves to be guided by these objective principles to balance out the selectivity of the Council.

In terms of specific reform proposals, we have dozens. But all of them require political will and leadership, not necessarily institutional reform, which again is precisely why the US shouldn’t withdraw from the HRC.

HBS: What role does Germany and in general Western countries play? Is there a counterforce against human rights abusers?

Laila Matar: Generally, we are seeing a perfect storm in pushing back against the human rights agenda – there is a rise of populism from Trump to Duterte in the Philippines to many European countries. This rise in populist rhetoric  is at the same time anti human rights. Looking at the migration crisis, the EU is not always taking progressive standpoints either. Their reluctance often comes from having co-operations with countries like Eritrea and South Sudan to curb migration flows. Germany has played a positive role in Europe when it comes to migration but individual EU members are often held back in the attempt to reach EU consensus on key issues.  Individual states can go outside the EU and propose initiatives and resolutions. I have seen how powerful it can be when small  countries play leadership roles and build coalitions that tackle challenging issues collectively.  

HBS: My last question refers to the financial situation of the HRC. Only 3.5 Percent of the UN budget is invested in to the Human Rights Council. In addition, countries can make voluntary contributions. 58 per cent of all voluntary funding was used in 2016 to support work in the field, which receives minimal support from the regular budget.[vi] Is this enough and should we possibly adapt our expectations on what the Human Rights Council can actually do with a limited budget?

Laila Matar: Absolutely! The Human rights pillar within the UN is generally underfunded. The OHCR is not even able to provide the technical cooperation of capacity building to countries that voluntarily request it. It’s a definite weakness. In this regard, concerning the security of human rights, the United States has moved ahead with funding cuts. For the HRC to be a strong body within the United Nations, tasked with protecting and promoting human rights worldwide, it has to increase its credibility and efficiency. But of course, we cannot ask the High Commissioner of Human Rights to do more with less means. The limited funding prevents the HRC from being used in the most effective way.

 HBS: Thank you for your time.