Abstract: The record of the U.N. Commission on Human Rights was a disgrace. Three years ago, the commission was replaced by the Human Rights Council, and its record has been equally dismal. The Obama Administration sought a seat at the council in an attempt to reform the council from within. Evidence from the first council sessions with the U.S. as a member demonstrates that the Obama Administration has failed to improve the human rights body. "Defamation of religions" resolutions continue to threaten free speech around the world. Brutal regimes continue to influence council deliberations. Israel remains unfairly targeted. The Heritage Foundation's Brett Schaefer and Steven Groves discuss recent developments at the council and urge President Obama to stand up for human rights in the U.N. and pursue fundamental changes that would improve the performance of the U.N.'s premier human rights body.
The United Nations Human Rights Council was created in 2006 to replace the U.N. Commission on Human Rights that had failed to hold governments to account for violating basic human rights and fundamental freedoms. During negotiations to establish the Human Rights Council, many basic reforms and standards to ensure that the council would not simply be a repeat of the commission did not receive sufficient support in the General Assembly. As a result, the council has been no better -- and in some ways, worse -- than the commission it replaced.
Anticipating this outcome, the Bush Administration voted against the resolution creating the council and decided not to seek a seat at the Geneva-based council in 2006. Based on its subsequent disappointing record, the U.S. again declined to seek a seat in 2007 and 2008. The Bush Administration also withheld a portion of its contribution to the U.N. regular budget (equivalent to the part of the U.S. contribution allocated to the council), and distanced itself from the council's proceedings except in instances of "deep national interest."
Once in office, the Obama Administration quickly reversed Bush Administration policy by participating in council deliberations and seeking a council seat. Several Obama Administration officials argued that the Bush policy of distancing the U.S. from the council had not improved its performance, and that as a member, the United States would be able to improve it from within. It is now apparent, following the conclusion of the first regular session and the first special session with the U.S. as a voting member, that the performance of the council with the U.S. as a member will be virtually indistinguishable from its performance absent U.S. membership. One significant aspect has changed, however: Now the council can claim added legitimacy for its decisions and resolutions because the U.S. supports the institution and is included among its membership.
Instead of seeking to improve the council at the margins by working behind the scenes and compromising on critical human-rights issues, the U.S. should be a vocal, unapologetic defender of human rights and focus its efforts on garnering support for the reforms necessary to make the body more effective, particularly on establishing serious membership criteria, in the mandatory 2011 review of the council to be conducted by the U.N. General Assembly.
The United States must continue to lead the international community in working with the U.N. when it can be effective, but the U.S. must also be a leader in establishing alternative mechanisms, coalitions, partnerships, alliances, and organizations to act when the U.N. proves unable or unwilling.
The Human Rights Council's record over its first three years of existence is gravely disappointing. Short of drastic reform, there is little prospect that its performance will improve. If reform efforts fall short in 2011, the Administration should be prepared to sever its relations with the council and explore options for an alternative human-rights organization composed of governments that respect and observe human rights and are willing to promote them.
The Obama Administration and the Human Rights Council
The Obama Administration re-engaged with the Human Rights Council and participated in its 10th session in March 2009. On March 31, U.S. Secretary of State Hillary Clinton and U.S. Permanent Representative to the U.N. Susan Rice announced that the U.S. would seek a seat on the council to "make it a more effective body to promote and protect human rights." The United States was elected to a seat on the council with support from 167 of 192 member countries in the U.N. General Assembly on May 12, 2009. Afterwards, Ambassador Rice stated that:
We ran for the Human Rights Council because this Administration and indeed, the American people, are deeply committed to upholding and respecting the human rights of every individual. While we recognize that the Human Rights Council has been a flawed body that has not lived up to its potential, we are looking forward to working from within with a broad cross section of member states to strengthen and reform the Human Rights Council and enable it to live up to the vision that was crafted when it was created.
Although America's term on the council officially started in late June 2009, the first session during which the U.S. was present as a voting member (as opposed to an observer) was the 12th regular session held from September 14 to October 2, 2009. At the outset of that session, U.S. Assistant Secretary of State for International Organization Affairs Esther Brimmer stated that:
We cannot pick and choose which of these rights we embrace, nor select who among us are entitled to them. We are all endowed at birth with the right to live in dignity, to follow our consciences and speak our minds without fear, to choose those who govern us, to hold our leaders accountable, and to enjoy equal justice under the law. These rights extend to all, and the United States cannot accept that any among us would be condemned to live without them....
Make no mistake; the United States will not look the other way in the face of serious human rights abuses. The truth must be told, the facts brought to light and the consequences faced. While we will aim for common ground, we will call things as we see them and we will stand our ground when the truth is at stake.
The recent actions of the U.S. at the council -- with the U.S. delegation standing silent in the face of injustice or supporting actions that eroded basic human rights -- do not match that inspirational rhetoric.
The U.S. Stood Silent on Expulsion of Honduras
Honduras does not currently hold a seat on the 47-member Human Rights Council, but attends council sessions as an observer. On the first day of the 12th Session, the Honduran ambassador to the United Nations in Geneva was prohibited from participating as an observer and was ejected from the council chamber at the behest of Cuba, Argentina, Brazil, and Mexico. Representatives of these countries objected to his presence because he supported Honduras's de facto ruler Roberto Micheletti rather than ousted President Manuel Zelaya.
The evidence indicates that Zelaya acted illegally in attempting to hold a popular referendum on changing the Honduran constitution to allow him to seek another term in office. The non-partisan Law Library of Congress issued a report concluding that Zelaya was removed from office through legal and constitutional measures:
Available sources indicate that the judicial and legislative branches applied constitutional and statutory law in the case against President Zelaya in a manner that was judged by the Honduran authorities from both branches of the government to be in accordance with the Honduran legal system.
Despite claims to the contrary, Zelaya was not removed from office by a coup d'état. He was removed lawfully. Regardless, ejecting an ambassador from the council chamber for such a reason flies in the face of U.N. practice. Leaving aside the fact that the council includes authoritarian and repressive regimes like China, Cuba, Saudi Arabia, and Russia, the U.N. includes at least 13 governments as member states in good standing that were established through a coup. All of these governments are allowed to send representatives as observers to the council, and three -- Burkina Faso, Qatar, and Madagascar -- are currently members of the council.
A principled position by the U.S. would have been to demand that the Honduran ambassador be permitted to take his seat, while demanding that all representatives of governments that actually had been established through a coupbe ejected. Instead, the U.S. looked the other way.
Moreover, it appears that Zelaya was no friend of the United States. After his narrow election victory in 2006, Zelaya soon joined the Bolivarian Alternative of the Americas, a political and economic bloc controlled by Venezuela and Cuba. Zelaya also sought and received assistance from Venezuela through the Venezuelan government's oil-financing facility Petrocaribe and tightened his ties with Fidel Castro. Throughout all of this, the Obama Administration has supported Zelaya and has pressed the interim government to accept a deal to restore Zelaya to power.
The U.S. should rectify its shameful silence by calling on the U.N. to deny recognition of governments established through coups d'état and suspend their credentials until they hold a credible election.
Supporting "Defamation of Religions"?
For the past several years, the U.N. Human Rights Council has adopted resolutions recognizing and promoting the concept known as "defamation of religions." The proponents of resolutions banning "defamation of religions" seek to ban all criticism of religion regardless of context or setting. According to the Organization of the Islamic Conference (OIC) -- the major proponent of such resolutions -- criticism of Islam is in and of itself an incitement to violence and discrimination and therefore must be banned as "Islamophobic." According to the OIC's definition, any speech, book, film, or other form of expression that depicts Islam, Mohammed, or Muslims in an unflattering light constitutes "defamation."
For many years, the United States was at the forefront of opposing the OIC's "defamation of religions" resolutions at the council and at the General Assembly. This no longer appears to be the case. The Obama Administration's delegation to the 12th session of the council and OIC-member Egypt co-sponsored a resolution on freedom of opinion and expression that contains the essential elements of the resolutions on "defamation of religions" that the U.S. opposed in the past.
Many references in the U.S.-Egyptian resolution are very similar to those in the most recent "defamation of religions" resolution that the council passed in March 2009. That resolution expressed "deep concern at the negative stereotyping and defamation of religions and manifestations of intolerance and discrimination in matters of religion or belief still evident in the world" and concern over "the continued serious instances of deliberate stereotyping of religions, their adherents and sacred persons in the media."
The U.S.-Egyptian resolution on freedom of expression echoes these sentiments, stating that the council is concerned "that incidents...of negative racial and religious stereotyping continue to rise around the world...and urges States to take effective measures...to address and combat such incidents." The resolution further states that the council "expresses regret at the promotion by certain media of false images and negative stereotypes of vulnerable individuals or groups of individuals."
The U.S.-Egyptian resolution also refers repeatedly to Article 19 of the International Covenant on Civil and Political Rights (ICCPR), which permits restrictions on freedom of expression for the purpose of "respect of the rights or reputations of others." When it ratified the ICCPR in 1992, the U.S. specifically included a reservation about Article 19 because it was deemed inconsistent with the First Amendment to the U.S. Constitution on freedom of speech and freedom of the press. By including these references to Article 19 in the resolution, the U.S. is effectively acceding to the notion that constraints on freedom of expression are acceptable under certain circumstances.
The resolution does include language that strongly supports freedom of expression. The resolution states, for instance, that the "special duties and responsibilities" linked to the exercise of the right to freedom of expression do not permit constraints on political debate, peaceful demonstrations, reporting on human rights, or "expression of opinion and dissent, religion or belief, including by persons belonging to minorities or vulnerable groups."
But these bright spots do not mitigate the damage done by the resolution's provisions supporting the "defamation of religions" concept. On the contrary, while the resolution seems to bolster freedom of expression, in reality it weakens it by allowing advocates of "defamation of religions" to point to the provisions in the resolution that back their position. In essence, the resolution confuses rather than clarifies the debate over freedom of expression by allowing each side to interpret it to fit its position.
What was needed was a clear, unambiguous defense of freedom of expression. Historically, the U.S. has been the strongest advocate for freedom of expression in the U.N. system. By co-sponsoring this resolution, the U.S. signaled that its support for freedom of speech is no longer as robust, thereby undermining support for freedom of expression among the rest of the council members.
Israel and the Goldstone Report
The Obama Administration was correct to vote against a resolution adopting a report on the "United Nations Fact Finding Mission on the Gaza Conflict to the Human Rights Council" (also known as the Goldstone Report) in the 12th special session of the Human Rights Council. That report falsely accuses Israel of "deliberate attacks" against civilians during its January 2009 military response to Hamas rocket attacks, and of other actions that "might justify a competent court finding that crimes against humanity have been committed." As noted by Colonel Richard Kemp, former commander of British forces in Afghanistan,
The truth is that the IDF [Israeli Defense Forces] took extraordinary measures to give Gaza civilians notice of targeted areas, dropping over 2 million leaflets, and making over 100,000 phone calls. Many missions that could have taken out Hamas military capability were aborted to prevent civilian casualties. During the conflict, the IDF allowed huge amounts of humanitarian aid into Gaza. To deliver aid virtually into your enemy's hands is, to the military tactician, normally quite unthinkable. But the IDF took on those risks.
Despite all of this, of course innocent civilians were killed. War is chaos and full of mistakes. There have been mistakes by the British, American and other forces in Afghanistan and in Iraq, many of which can be put down to human error. But mistakes are not war crimes.
More than anything, the civilian casualties were a consequence of Hamas's way of fighting. Hamas deliberately tried to sacrifice their own civilians.... [T]he IDF did more to safeguard the rights of civilians in a combat zone than any other army in the history of warfare.
The council's adoption of the Goldstone Report was an even more one-sided action than the report itself. Specifically, the resolution condemned Israel in detailed fashion while failing to mention -- even once -- Hamas's indiscriminate firing of rockets and mortars at Israeli civilian settlements that, according to the Goldstone Report, "constitute war crimes and may amount to crimes against humanity." Illustrated here, is the central flaw of U.S. "re-engagement" with the council based on the assumption that the U.S. can work from within to "make the council a more effective forum to promote and protect human rights." 
The final vote on adopting the Goldstone Report easily passed with 25 in favor, 6 against, 11 abstentions, and 5 "no show" votes. The 25 votes in favor of the resolution included Israel's perennial enemies and major human rights abusers China, Cuba, Egypt, Pakistan, Qatar, and Saudi Arabia. The abstentions included nations that should have voted with the U.S. -- Belgium, Bosnia, Japan, Norway, and Slovenia -- especially in light of the Obama Administration's new commitment to the council. Only five other nations -- Hungary, Italy, the Netherlands, Slovakia, and Ukraine -- stood with the U.S. and voted against the shameful resolution. Inexplicably, the United Kingdom and France were among the countries that skipped the vote entirely. This vote illustrates the limits of U.S. influence in the council.
What the U.S. Should Do
The Human Rights Council seems destined to repeat the gravely disappointing record of its first three years, even with a U.S. seat at the table. The majority of the council is simply uninterested in having the council be an objective advocate of basic human rights and fundamental freedoms. Rather than focusing its efforts on a futile attempt to overcome the voting dynamics of the council, the Obama Administration should:
Congress also has an important role to play in determining the efficacy of the Human Rights Council, and should:
U.S. Weak on Human Rights
The failure of the U.S. delegation to the Human Rights Council to defend American values is consistent with the Obama Administration's seeming lack of commitment to human rights and freedom as a major component of its foreign policy.
Secretary of State Hillary Clinton stated earlier this year that, "We believe every nation must live by and help shape global rules that ensure people enjoy the right to live freely and participate fully in their societies." Yet over the course of its first nine months, the Obama Administration has downplayed or simply ignored human rights concerns in its discussions with China and Russia. The President refused to meet with the Dalai Lama in deference to the Chinese regime. He also failed to back Iranian citizens who protested fraudulent election results earlier this summer, and recently cut funds that had been dedicated to promoting democracy in Iran.
The disappointing actions of the U.S. at the council paint an alarming record of indifference toward human rights. If it is truly dedicated to improving human rights around the world, the Obama Administration must do more than compromise and work behind the scenes. Hopes to improve the council through persuasion are futile in the face of the many countries determined to undermine its mission and twist its agenda. The best course of action is for the U.S. to be a vocal, unapologetic defender of human rights at the council and focus on garnering support for the reforms necessary to make the body more effective in the mandatory 2011 review of the Council.
The past few weeks should be a wake-up call for anyone who believed that the mere presence of the United States on the council would result in any improvements. Quite simply, fundamental reform of the council, particularly establishing strong membership criteria, should be the principal objective of the Obama Administration's agenda for the U.N. Human Rights Council. Failure to achieve these reforms in the upcoming review would serve as a stark reminder of the necessity of creating an alternative arbiter of international human rights outside the U.N. system.
Brett D. Schaefer is Jay Kingham Fellow in International Regulatory Affairs and Steven Groves is Bernard and Barbara Lomas Fellow in the Margaret Thatcher Center for Freedom, a division of the Kathryn and Shelby Cullom Davis Institute for International Studies, at The Heritage Foundation.
Daily Press Briefing, Sean McCormack, Spokesman, U.S. Department of State, June 6, 2008, at http://2001-2009.state.gov/r/pa/prs/dpb/2008/jun/ 105716.htm (October 27, 2009), and "Statement by Zalmay Khalilzad, U.S. Permanent Representative, on the Durban II Conference and the Human Rights Council," April 8, 2008. (The original statement by Ambassador Khalilzad is no longer available at the U.S. Mission to the United Nations Web site. A copy is available at http://www.eyeontheun.org/assets/ attachments/documents/6581.doc (October 27, 2009).) For a summary of Bush Administration policy regarding the Council, see Luisa Blanchfield, "The United Nations Human Rights Council: Issues for Congress," Congressional Research Service Report for Congress RL33608, June 1, 2009, pp. 11-12, at http://www.fas.org/sgp/crs/row/RL33608.pdf (October 27, 2009).
Press release, "U.S. to Run for Election to the UN Human Rights Council," U.S. Department of State, March 31, 2009, at http://www.state.gov/r/pa/prs/ ps/2009/03/121049.htm (October 27, 2009).
Press release, "United States Elected to Human Rights Council for First Time..." United Nations General Assembly, May 12, 2009, at http://www.un.org/News/Press/docs/2009/ga10826.doc.htm (October 27, 2009).
U.S. Mission to the United Nations, "Remarks by Ambassador Susan E. Rice, Permanent Representative to the United Nations, Regarding the Election of the U.S. to the Human Rights Council, at the General Assembly Stakeout," May 12, 2009, at http://usun.state.gov/briefing/ statements/2009/may/128514.htm (October 27, 2009).
Robert Evans, "Honduras Envoy Says 'Ordered Out' of U.N. Rights Body," Reuters, September 14, 2009, at http://www.reuters.com/article/ latestCrisis/idUSLE66094 (October 27, 2009).
The Law Library of Congress, "Honduras: Constitutional Law Issues," Report for Congress, August 2009, at http://www2.nationalreview.com/dest/2009 /09/28/8519cf8ceca6f1fffd32ee9aa0c5dd82.pdf (October 27, 2009).
For details on U.N. member states governed by coup leaders, see Patrick Goodenough, "Regimes Arising from Coups Should Be Barred From U.N. Institutions, African Official Says," CNSNews, September 29, 2009, at http://www.cnsnews.com/news/article/54694 (October 27, 2009).
Ray Walser, "Honduras Fires Its Runaway President: Constitutional Order Is Preserved," Heritage Foundation WebMemo No. 2511, June 29, 2009, at http://www.heritage.org/Research/LatinAmerica/wm2511.cfm.
Ray Walser, "Honduras's Conservative Awakening," Heritage Foundation WebMemo No. 2566, July 27, 2009, at http://www.heritage.org/Research/ LatinAmerica/wm2566.cfm.
Ray Walser, "Return of the Honduran Prodigal," National Review Online, October 30, 2009, at http://corner.nationalreview.com/post/?q=NDdm NDliMmRiMmM3ZDE4NTllYTVmNGZjZDU4N2RhMWI (November 3, 2009).
Steven Groves, "Why the U.S. Should Oppose 'Defamation of Religions' Resolutions at the United Nations," Heritage Foundation Backgrounder No. 2206, November 10, 2008, at http://www.heritage.org/Research/ LegalIssues/bg2206.cfm.
Resolution 10/22, "Combating Defamation of Religions," U.N. Human Rights Council, 10th session, A/HRC/10/L.11, May 12, 2009, p. 78, at http://www2.ohchr.org/english/bodies/hrcouncil/docs/10session/ edited_versionL.11Revised.pdf (October 28, 2009).
Resolution 12/16, "Freedom of Opinion and Expression," Human Rights Council, 12th session, A/HRC/RES/12/16, October 12, 2009, at http://daccessdds.un.org/doc/RESOLUTION/LTD/G09/166/89/PDF/G0916689.pdf?OpenElement (November 3, 2009).
Ibid. For instance, the opening paragraphs of Resolution 12/16state: "Recalling that the exercise of the right to freedom of expression carries with it special duties and responsibilities, in accordance with article 19 (3) of the International Covenant on Civil and Political Rights" and "Recalling also that States should encourage free, responsible and mutually respectful dialogue." Article 5(l) of the resolution states, "To adopt and implement laws and policies that provide for a general right of public access to information held by public authorities, which may be restricted only in accordance with article 19 of the International Covenant on Civil and Political Rights."
Resolution 12/16, Article 5(p)(i).
"Human Rights in Palestine and Other Occupied Arab Territories: Report of the United Nations Fact-Finding Mission on the Gaza Conflict," Human Rights Council document A/HRC/12/48, September 25, 2009, p. 26, at http://www2.ohchr.org/english/bodies/hrcouncil/docs/12session/ A-HRC-12-48.pdf (October 28, 2009).
Statement by Colonel Richard Kemp to the U.N. Human Rights Council, 12th Special Session on the Goldstone Report, October 16, 2009, at http://www.unwatch.org/site/apps/nlnet/content2.aspx?c=bdKKISNqEmG&b=1313923&ct=7536409 (October 28, 2009).
Resolution A/HRC/12/48, p. 32.
Acting Deputy Department Spokesman Gordon Duguid, "U.S. to Run for Election to the UN Human Rights Council," U.S. Department of State Bureau of Public Affairs, Office of the Spokesman, March 31, 2009, at http://www.state.gov/r/pa/prs/ps/2009/03/121049.htm (November 3, 2009).
Resolution A/HRC/RES/S-12/1, "The Human Rights Situation in the Occupied Palestinian Territory, Including East Jerusalem," 12h Special Session of the U.N. Human Rights Council, October 15-16, 2009, at http://www2.ohchr.org/english/bodies/hrcouncil/specialsession/ 12/doc/A-HRC-RES-S-12-1.pdf (November 3, 2009).
Goodenough, "Regimes Arising from Coups Should Be Barred From U.N. Institutions, African Official Says."
"Not So Obvious: The Secretary of State Underestimates the Power of Her Words," The Washington Post, February 24, 2009, at http://www.washingtonpost.com/wp-dyn/content/article/2009/02/23/ AR2009022302412.html (October 28, 2009), and Andrew Osborn, "Washington to Tone Down Criticism of Russian Human Rights Record," The Telegraph, October 13, 2009, at http://www.telegraph.co.uk/news/worldnews/northamerica/ usa/barackobama/6318943/Washington-to-tone-down-criticism-of-Russian-human-rights-record.html (October 28, 2009).
Kenneth R. Timmerman, "Obama Cuts Pro-Democracy Funds for Iran," Newsmax.com, October 14, 2009, at http://www.newsmax.com/headlines/ obama_iran_human_rights/2009/10/14/272402.html (October 28, 2009).
For reform recommendations, see Brett D. Schaefer, "U.N. Human Rights Council Whitewash Argues Against U.S. Participation," Heritage Foundation Backgrounder No. 2255, April 2, 2009, at http://www.heritage.org/ Research/InternationalOrganizations/bg2255.cfm.
The reasons for this failing are discussed in Brett D. Schaefer, "The Obama Administration Will Not Make the U.N. Human Rights Council Effective," Heritage Foundation WebMemo No. 2432, May 11, 2009, at http://www.heritage.org/Research/InternationalOrganizations/wm2432.cfm.