Testimony Delivered Before the
Subcommittee on International Operations and Organizations,
Democracy and Human Rights of the Committee on Foreign Relations of
the United States Senate on July 26, 2006
Mr. Chairman, thank you for providing me with the opportunity to
testify on how the new United Nations Human Rights Council (HRC)
has performed in its first year and the prospects for reform. With
permission, I would like my full written statement submitted for
Since the birth of the United Nations, protecting and advancing
fundamental human rights has been one of the organization's primary
objectives. The drafters of the U.N. Charter included a pledge by
member states "to reaffirm faith in fundamental human rights, in
the dignity and worth of the human person, in the equal rights of
men and women." U.N. treaties and conventions, such as the
Universal Declaration on Human Rights, which the General Assembly
passed in 1948, form the core of international standards for human
Yet the U.N.'s recent record in promoting fundamental human
rights is riddled with failure and inaction. For nearly six
decades, the U.N. Commission on Human Rights (CHR) epitomized this
failure as the premier U.N. human rights body charged with
reviewing the human rights performance of states and promoting
human rights around the world. Sadly, the Commission
devolved into a feckless organization that human rights abusers
used to block criticism and a forum for attacks on Israel. The
Commission's disrepute grew so great that even former U.N.
Secretary-General Kofi Annan acknowledged, "We have reached a point
at which the Commission's declining credibility has cast a shadow
on the reputation of the United Nations system as a whole, and
where piecemeal reforms will not be enough."
After lengthy deliberations and negotiations, the U.N. General
Assembly voted to replace the Commission with a new Human Rights
Council in March 2006. Regrettably, during the negotiations, the
General Assembly rejected many basic reforms and standards that had
been proposed to ensure that the Council would not repeat the
mistakes of the Commission. For instance, the U.S. wanted a much
smaller body than the 53-member Commission to enable it to act more
easily; a high threshold for election to the Council (a two-thirds
vote of the General Assembly); and a prohibition on electing
nations to the Council that are under U.N. Security Council
sanction for human rights abuses.
Negotiators produced a 47-member Council that is only marginally
smaller than the Commission. The HRC has no hard criteria for
membership other than quotas for each of the regional groups in the
U.N. and a requirement that Council members be elected by a simple
majority of the General Assembly (currently 97 of 192 votes). No
state, no matter how poor its human rights record, is barred from
membership. Even states under Security Council sanction for human
rights abuses may become members.
The resolution, instead, instructs U.N. member states that "when
electing members of the Council, [they] shall take into account the
contribution of candidates to the promotion and protection of human
rights." Candidates are also asked to submit
"voluntary pledges and commitments" on their qualifications for the
Council based on their past and future adherence to and observance
of human rights standards. The toothlessness of this instruction
quickly became evident when notorious human rights abusers Algeria,
Cuba, China, Iran, Pakistan, Saudi Arabia, and Russia ran for
election, asserting their strong commitment to human rights and
pledging their commitment to such standards in the future.
Because of these weaknesses, the U.S. voted against the
resolution creating the HRC and announced that it would not run for
a seat on the Council, but would consider running in the future if
the Council proved effective. "Absent stronger mechanisms
for maintaining credible membership, the United States could not
join consensus on this resolution," explained then U.S. Ambassador
to the U.N. John Bolton. "We did not have sufficient confidence in
this text to be able to say that the HRC would be better than its
predecessor." Ambassador Bolton's statement has proven
Less than half of the old Commission's members in 2005 were
considered "free" by Freedom House. China, Cuba, Egypt, Pakistan,
Sudan, and Zimbabwe--some of the world's worst human rights
abusers--routinely used their positions on the Council to block
scrutiny of their own practices and to launch spurious attacks on
other countries for political reasons (e.g., Israel) or for
speaking openly about their human rights violations (e.g., the
The May 2006 election showed that simply creating a new Council
had not convinced the General Assembly to spurn the candidacies of
human rights abusers. Overall, the Council's membership in 2006 was
only marginally better than the Commission's membership in 2005.
The first Council election in 2006 produced a Council in which 25
out of 47 members (53 percent) were ranked "free" by Freedom House.
Some of the more disreputable human rights abusers--Burma, North
Korea, Sudan, and Zimbabwe--did not run for seats. Iran and
Venezuela ran for seats but were unsuccessful, although Venezuela
received enough votes (101) to win a seat if other states had not
won more support.
Despite these minor successes, a number of states with dismal
human rights records won seats, including Algeria, Azerbaijan,
Cameroon, Cuba, China, Pakistan, Saudi Arabia, Tunisia, and
All Council members pledge their commitment to human rights
standards when they run for election. As a Council member, a
country is supposed to "uphold the highest standards in the
promotion and protection of human rights." This requirement
did not translate into better promotion and protection of human
rights at the HRC. On the contrary, the Council's actions reveal a
profound lack of commitment to human rights. Council decisions
reveal that the bulk of its membership has declined to scrutinize
major violators of human rights and has instead focused
disproportionately on censuring Israel.
In its first year, the Council failed to address ongoing
repression in Belarus, China, Cuba, North Korea, and Zimbabwe and
many other dire human rights situations around the world. Nor did
the HRC censure the government of Sudan for its role in the
genocide in Darfur. Instead, it held one special session on Darfur
and adopted one mild resolution and four mild decisions expressing
"concern" regarding the human rights and humanitarian situation in
Darfur, dispatching a "High-Level Mission to assess the human
rights situation in Darfur and the needs of the Sudan in this
regard." However, the Council did find the time to
hold three special sessions on Israel and pass 10 resolutions
condemning Israel and another four decisions on Israel's human
rights record. More than 70 percent of the Council's
country-specific resolutions and decisions have focused on
Even the discredited Commission had a better record. Over a
40-year period, only 30 percent of its resolutions condemning
specific states for human rights violations focused on Israel.
Some of this disappointing performance can be blamed on the
negligible difference in quality between the Council's membership
and the Commission's membership. The situation is aggravated by the
shift in proportional representation of regions. The Commission had
greater representation of Western democracies, while Africa and
Asia control a majority of the Council. This has dramatically
increased the influence of groups like the Non-Aligned Movement
(NAM) and the Organization of the Islamic Conference (OIC). Members
of the NAM also held a majority of seats in the Council's first
year. The OIC held 17 seats, more than the one-third (16 seats)
required to call a special session. Unsurprisingly, both groups
have repeatedly used their influence to attack Israel and to
protect abusive states from Council scrutiny.
However, the most frustrating aspect of the Council's first year
has been the reluctance of free, democratic states, including South
Africa and India, to support human rights efforts on the Council. A
UN Watch analysis of significant actions taken by the Council
during its first year concluded that only 13 of the Council's 47
members were net positive contributors to its human rights agenda.
Four free democracies--Indonesia, Mali, Senegal, and South
Africa--were among the countries with the worst record.
Prospects for Reform
The topic of today's hearing is the prospects for reform of the
Human Rights Council. Based on the past year's record in the
Council, the 2007 membership, and the record of the General
Assembly, the prospects for reform or improvement are dim.
The prospects for improved performance by the Council depend
entirely on the members of the HRC who set and adopt the agenda,
rules, procedures, and resolutions and on the General Assembly that
elects the Council membership and could reform the body in the
The resolution creating the Council requires the General
Assembly to review the status of the Council within five years, or
by 2011. However, many member states have clearly indicated that
they are pleased to have a dysfunctional Council and support for
strengthening the body in the General Assembly cannot be counted
An illustration of this is the May 2007 election of members to
the Council. The 2007 election marked a regression from 2006.
The number of "free" countries on the Council according to Freedom
House rankings declined, and the number of "not free" countries
The only significant victory was blocking Belarus from winning a
seat. Yet until about a week before the election, Belarus and
Slovenia were the only two candidates for the two open Eastern
European seats. Only enormous pressure from human rights groups and
the U.S. persuaded Bosnia and Herzegovina to run, narrowly denying
Belarus a seat on the Council. However, Angola, Egypt,
Qatar, and Bolivia--states with dismal human rights records--were
An additional concern is that, unlike the robust competition for
seats in the 2006 election, only two regions--Eastern European
States and the Western Europe and Other States--offered more
candidates than the number of available seats in the 2007
election. The decision of the African, Asian, and
Latin American and Caribbean regions to offer only enough
candidates to fill their open seats marked a disturbing return to
the practices of the Commission and defeated the purpose of
competitive elections in the General Assembly, which were supposed
to offer a larger choice of possible candidates in order to select
the best possible members for the Council.
Nor do the Council members seem inclined to strengthen the body.
On the contrary, the Council made a series of decisions in its 5th
session that significantly weakened the its ability to objectively
advance and advocate human rights or fall far short of the
expectations of the United States and most human rights groups.
- Universal Periodic Review. The Council, as required in
the General Assembly resolution creating the body, adopted a
"universal periodic review" of the human rights situation in all
U.N. member states. This step is welcome, but the proposed
procedures for the review are very weak and virtually assure a
milquetoast outcome. The review for every country, whether it is
Sweden or Sudan, is limited to three hours. The review will be a
country-led process in which the "country under review shall be
fully involved in the outcome" and requires the review to "take
into account the level of development and specificities of
countries." Input from non-governmental organizations
will be minimal. Moreover, reviews will occur every four years
regardless of circumstances in the country and only after
exhausting "all efforts to encourage a State to cooperate with the
UPR mechanism" would the Council "address, as appropriate, cases of
persistent non-cooperation with the mechanism." In other words, a
genocide or massive political crackdown could occur in Sudan,
China, Venezuela, or some other country and the Council could wait
four years or more before examining whether a country has addressed
the human rights concerns raised during the review.
- Independent Experts. The Council decided to maintain the
system of independent experts charged with thematic human rights
issues, such as freedom of opinion and expression, torture, the
right to food, but weakened their ability to investigate and report
their findings. Under the new procedures, a committee appointed by
the HRC will appoint these experts from a roster of "qualified"
candidates. This process increases opportunities for the Council to
directly pressure and influence the experts.
- New Code of Conduct. Moreover, the experts will be
subject to a new Code of Conduct designed to restrict the
independence of the human rights experts and the sources for their
reports. For instance, experts are required to "show restraint,
moderation and discretion" when implementing their mandate, avoid
using "unfounded or politically motivated" communications or
"abusive" language, and not rely on "reports disseminated by mass
media" or non-governmental organizations or persons unless they are
the "victim of violations…and claim to have direct or
reliable knowledge of those violations substantiated by clear
information." These restrictions offer ample
opportunities for countries to dispute, block, and otherwise
criticize reports by experts.
- Country-Specific Experts. A majority of the Council
sought to eliminate all experts focused on investigating human
rights abuses in specific countries. The effort failed when
European countries threatened to walkout. However, the Council did
eliminate the experts focused on Belarus and Cuba, despite
extensive evidence of ongoing violations. The Council chose to
maintain experts for Burma, Burundi, Cambodia, the Democratic
Republic of the Congo, Haiti, Liberia, North Korea, Somalia, and
Sudan, but many countries plainly plan to eliminate them in the
near future through a "review" process. As with the thematic
experts, the country experts will also have to abide by the Code of
Conduct and will be selected by the committee appointed by the
- Israel. In a disappointing repetition of one of
the Commission's most egregious discriminatory practices, the
Council voted to keep Israel as the sole country assigned a
permanent expert charged with investigating the "the situation of
human rights in the Palestinian territories occupied since 1967."
While it sounds as if this mandate might cover possible human
rights abuses by Palestinians and Israelis in the territory, this
is not the case. John Dugard, the special rapporteur on the
situation of human rights in the occupied Palestinian territory,
said "it was understood that his mandate was limited to investigate
human rights violations by Israelis and not by Palestinians."
Moreover, the mandate is one-sided and presumes Israel's guilt
through language on the duration of this mandate, which extends
"until the end of the occupation." Unsatisfied with the
efforts to condemn Israel in earlier sessions or with the
successful effort to permanently install a blatantly discriminatory
mandate focused solely on Israel, the Council passed an additional
two resolutions condemning Israel in June.
As summarized by the U.S. Department of State, these
institution-building procedures are "seriously flawed" and will
make the many problems of the Council "even worse, by terminating
the mandates of the UN Rapporteurs on the Governments of Cuba and
Belarus, two of the world's most active perpetrators of serious
human rights violations, and singling out Israel as the only
country subject to a permanent agenda item."
Some have suggested that the performance of the Council would be
improved if the U.S. had been a member of the Council or could be
improved if the U.S. sought a seat on the Council in the future.
This is very unlikely. Winning a seat on the Council would not
necessarily give the U.S. greater voice or influence. Any U.N.
member state can comment on and speak to issues before the Council,
and the U.S. has frequently expressed its support of or opposition
to various resolutions and decisions.
Because membership is based on geographic representation, even
if the U.S. won a seat on the Council, it would simply displace one
of the seven countries representing the Western Europe and Other
States region, which already vote largely as the U.S. would vote.
In numerous votes over the past year, the Council has adopted
resolutions over the objection of 11 or 12 Western nations.
U.S. membership on the Council would not change this situation. The
gain from a U.S. vote on the Council would be marginal at best.
Indeed, the U.S. experience over the past year would likely
mirror that of Canada. Over the past year, Canada has assumed the
traditional U.S. role of raising controversial resolutions and
demanding votes. Canada's admirable actions have not been
successful. On the contrary, they have resulted in retaliation
and--in one remarkable instance--blatant and willful distortion of
the record when the HRC declared that the new procedures were
adopted by consensus despite Canada's insistence that it never gave
its consent or even received a copy of the resolution text.
Bizarrely, the Council voted 46 to 1 that Canada had indeed agreed
to the consensus. As noted by the U.S., the procedural
maneuvers to obtain consensus on the resolution violated both the
spirit and letter of the rules of the Council:
We are concerned about the procedural irregularities employed
last night denying Council members the opportunity to vote on this
agenda. The Human Rights Council was intended to be the world's
leading human rights protection mechanism. Its proceedings should
be a model of fairness and transparency. Instead, in the interest
of political expediency, procedural irregularities denied members
the right to an up or down vote on principled human rights
concerns--a right guaranteed by the rules of the institution.
There is no reason to expect that the U.S. would be treated
differently than Canada by the human rights abusers that have
successfully used the Council to undermine human rights rather than
Hopes that the Human Rights Council would rectify the poor
record of the U.N. Commission on Human Rights in holding human
rights abusers to account have proven illusory. The Council
ultimately reflects the quality of its membership. The General
Assembly simply did not incorporate the protections and standards
for membership that would have lead to a more effective body.
Predictably, human rights abusers are running the Council agenda in
the same manner they did with the Commission.
The U.S. should not be satisfied with the status quo. Congress
and the Administration should continue their efforts to improve the
HRC's membership, procedures, mechanisms, and institutions.
However, we must also be realistic in recognizing that most members
of the General Assembly and the Council do not want an effective
Council and that America's best efforts will likely fall short.
As a result, the U.S. should refuse to lend the Council the
credibility of U.S. membership or the symbolic support of U.S.
contributions until such time as the Council takes its
responsibilities seriously by censuring major human rights abusers,
exposing their reprehensible actions to public scrutiny, and
eschewing its disproportionate focus on Israel.
Brett D. Schaefer is Jay
Kingham Fellow in International Regulatory Affairs in the
Margaret Thatcher Center for Freedom, a division of the Kathryn and
Shelby Cullom Davis Institute for International Studies, at The