The UN Human Rights Council has many flaws – but by walking away, the US may have made things worse

US Ambassador to the United Nations Nikki Haley and US Secretary of State Mike Pompeo have announced the US was withdrawing from the UN Human Rights Council.

In doing so, they claimed the council was a roadblock to genuine global human rights protection. This move by the Trump administration has been anticipated for some time. In a sense, the elephant has left the room. But in doing so, the elephant has belled the cat on a number of serious issues regarding the Human Rights Council.

Is the United States’ decision sound in terms of international human rights protection? Is it one that Australia, an Human Rights Council member from 2018-2020, should follow?

What is the Human Rights Council?

The UN Human Rights Council was established in 2006 to replace the UN Commission on Human Rights, which ran from 1947 to 2006. By the time of its demise, the commission was criticised from all sides for being overly politicised.

The Council’s 47 seats are divided between the five official UN regions in the following way: Africa (13); Asia (13); Latin America and the Caribbean (8); Western Europe and Other (7); Eastern Europe (6). The US (and Australia) is in the Western Europe and Other Group, known as WEOG.

One-third of the council is elected each year by the UN General Assembly, and members serve three-year terms. No member may serve more than two consecutive terms. A member can also be suspended from the council in a vote of two-thirds of the UN General Assembly: Libya was suspended in 2011 after Muammar Gaddafi’s crackdown on Arab Spring protesters and armed dissidents. No other member has been suspended.

The Human Rights Council meets three times a year for a total of around 10 weeks. Its 38th session has just begun. It also meets for one-day special sessions at the initiative of one-third of its members. It has so far held 28 special sessions.

The Human Rights Council’s functions include the drafting and adoption of new human rights standards, as arose in its first year with the adoption of new treaties dealing with the rights of people with a disability and the scourge of enforced disappearances, as well as the adoption of the Declaration on the Rights of Indigenous Peoples in 2007.

The Council also authorises independent investigations into particular human rights issues, either thematic (dealing with a human rights issue such as torture or LGBTI rights) or, more controversially, focused on a particular state. At the time of writing, there are 46 thematic mandates and 12 country mandates for these “special rapporteurs”.

It has one major new function compared to its predecessor, the Universal Periodic Review(or UPR), whereby the human rights record of every UN member is reviewed by the Human Rights Council (as well as all other “observer” nations) every five years.

The US’ grievances against the Human Rights Council arise with regard to the human rights records of its members, and its politicised character. Its key red line concern seems to be the Council’s “unconscionable” and “chronic bias” against Israel (to quote from this morning’s press conference). These issues are examined in turn below.

HRC membership

Membership criteria as they stand are very soft: candidates commit to the highest standards of human rights, and states should take into account a nominee’s human rights record when voting. Both of these rules are basically unenforceable.

Human rights criteria were mooted as prerequisites for membership when the Human Rights Council was created. However, the UN’s nearly 200 members could not agree on substantive criteria, as they have very different views on human rights. The US, for example, wanted only “democratic nations” to be eligible. Such a criterion would have led to debates over the meaning of “democracy”, and would seem to prioritise civil and political rights over economic, social and cultural ones. A focus on the implementation of economic and social rights might have led to the exclusion from eligibility of the US itself.

In any case, the “measurement” and respective ranking of human rights records across states is contentious. While comparisons between two states may lead to easy conclusions over which one is better or worse, it is a fraught exercise across the entirety of the UN membership.

Procedural criteria, such as a nation’s record on ratification of human rights treaties, would be more objective. However, such criteria might have led to the exclusion of the two most powerful countries in the world – the US and China, which have both failed to ratify crucial treaties. Realpolitik indicates that such an outcome is very unlikely.

In the press conference, Haley and Pompeo decried the presence of human rights abusers on the council, including China, Cuba, Venezuela and the Democratic Republic of the Congo. Consternation has also commonly been expressed over the common presence of Saudi Arabia and Russia on the Human Rights Council. Certainly, none of those states is remotely close to upholding the highest standards of human rights. Haley and Pompeo went further, claiming that these states manipulate the Human Rights Council to shield abusers and target blameless states in its resolutions.

So how bad is the Human Rights Council membership? Freedom House is a non-government organisation that rates states as “free”, “partly free”, or “not free”, according to certain civil and political rights criteria, such as press freedom. While Freedom House’s methodology is assailable, I will use its rankings in assessing the current Human Rights Council, as the US itself historically uses them in making certain policy choices.

According to its 2018 rankings, the Human Rights Council of 2018 contains 21 “free” states, 12 “partly free”, and 14 “non-free”.

2018 is in fact one of the worst years in terms of the numbers of non-free Human Rights Council members. Nevertheless, free states always outnumber unfree states on the Human Rights Council, and can easily pass or block any resolution with the cooperation of just a few partly free states, if they vote together.

Any problem with “bad” resolutions on the Human Rights Council arises not from a preponderance of bad states, but from bloc voting within regions, like-minded groups and alliances.

The phenomenon of clean slates

Nevertheless, one can still fairly criticise the Human Rights Council for containing 14 non-free states. How do such states get elected?

A major problem for Human Rights Council elections is the issue of “clean slates”, whereby the number of candidates presented by a UN region correlates exactly to the number of seats it is scheduled to have elected at any particular time. For example, a region might put forward only two candidates for two seats. In such circumstances, the various candidates’ election seems to be a fait accompli. This phenomenon of clean slates was what Pompeo was referring to when he said that some states were elected by a rigged, collusive process.

Yet clean slates are a problem with all of the UN regions. The US itself was initially elected to the Human Rights Council on a clean slate in 2009. Australia was elected to the Human Rights Council on a WEOG clean slate in 2017, due to France’s belated withdrawal of its candidature.

Genuine elections do occur when open slates are presented by regions. This is how Russia was rejected in 2016, an unprecedented and humiliating blow that probably led to Russia’s failure to even stand for election in 2017. Other serious human rights abusers, such as Azerbaijan, Sri Lanka and Belarus, have failed to gain seats in similar circumstances.

Although states are elected on a regional basis, each member must still attain the majority of votes in the general assembly in order to be elected. There remains a possibility that an unacceptable candidate will simply not reach that threshold, even in the case of a clean slate.

That possibility has in the past led to the late replacement of controversial candidates, such as Syria’s replacement by Kuwait in 2011. This author eagerly awaits the day when the General Assembly finally flexes its muscle by refusing to elect an entire clean slate, thus depriving a region of a seat for a year. Such an outcome, in the absence of a relevant reform, is one way to dissuade future clean slates.

Finally, while states – particularly WEOG countries – might rail against the awful records of other members, those sentiments might not be reflected in their actual voting. After all, voting is by secret ballot. For example, given that Saudi Arabia is a key US geopolitical ally, it seems likely that the US (and even Australia) has voted for it on occasion. Certainly, the UK seems to have done so.

The US is correct that membership criteria should be revisited. Certain obstacles could be put in the way of the worst abusers, such as compulsory open slates, public voting (which might help prevent UK votes for Saudi Arabia), and a requirement that an eligible state must allow visits by all special rapporteurs.

Politicisation of the HRC

As the Human Rights Council’s members are representatives of their governments, the Human Rights Council is a highly politicised body, like its predecessor. State governments are political constructs, so any institution made up of government representatives is inevitably political too.

Unfortunately, states will generally vote in favour of their national interests rather than human rights interests if the two should clash. Pompeo inadvertently admitted that this morning, when he praised Haley by saying that she always put “American interests first”.

Politicisation inevitably leads to the manifestation of political biases. The most notorious Human Rights Council bias concerns Israel. It seems that the US’ biggest complaint over the Human Rights Council, and the “red line” that has led to its withdrawal, is the Human Rights Council’s treatment of Israel.

Israel and the HRC

The Human Rights Council is biased against Israel. It has aimed a disproportionate number of resolutions against that country. The Human Rights Council’s regular agenda of 10 items contains only one item that focuses on a particular state, that state being Israel.

Its special rapporteur mandate stands until the occupation is over, so its renewal is automatic rather than the subject of periodic debate, as is the case with other mandates. The mandate-holder investigates its actions rather than those of the Palestinian authorities, whose abuses are largely ignored.

Israel has been the subject of more special sessions than any other state (more than a quarter of the 28 sessions). Having said that, it was the subject of the first three special sessions in 2006, and four of the first six, so the “hit rate” of 4 out of 22 is less stark since then.

Why is the Human Rights Council preoccupied with Israel? For a start, Israel has committed serious human rights abuses that are worthy of the Human Rights Council’s condemnation. It is absurd for Pompeo to have implicitly suggested that Israel has “committed no offence”. Any Human Rights Council bias does not mean that the substance of its criticisms is wrong. The recent killings of Palestinian protesters, targeted killings, illegal settlements, forced evictions, war crimes, the Gaza blockade and, most fundamentally, an ongoing occupation of Palestine that has lasted for more than 50 years, will cause critics to proliferate.

Nevertheless, that does not explain the Human Rights Council’s disproportionate attention to one country, given the scale of human rights abuses by other states that receive far less attention.

Ardent supporters of Israel often contend that the bias is driven by anti-Semitism. While such a motivation cannot be dismissed, there are other reasons that seem likely to be driving this phenomenon. The equation of “anti-Israel” with “anti-Semitic” is simplistic.

Israel has many enemies among UN states. Some have never accepted Israel’s right to exist, believing that it was established illegitimately on Arab (Palestinian) land. Indeed, the Organisation of Islamic Cooperation was set up in 1969 to unite Muslim states after the 1967 war in which Israel seized the occupied territories, so opposition to Israel has been an article of faith since its inception. The Organisation of Islamic Cooperation routinely brings as much diplomatic pressure to bear on Israel as possible. As Organisation of Islamic Cooperation states straddle the two biggest UN groupings, Africa and Asia, they can rely on significant bloc solidarity for support in their initiatives.

The racial element, whereby the Jewish State of Israel illegally occupies lands populated by Arabs in the occupied territories, attracts the ire of developing states, which have historical grievances regarding racial oppression. Yet other instances of racial tension – such as the oppression of the Tibetans, the Kurds, the West Papuans, the Tamils or the Chechens – fail to attract the same Human Rights Council scrutiny.

One difference is that Israel’s occupation of the Palestinian Territories is not recognised as legitimate by any other state, unlike for example China’s sovereignty over Tibet or Indonesia’s sovereignty over West Papua.

Indeed, increasing numbers of states have diplomatically recognised the occupied territories as the State of Palestine, and the UN General Assembly voted in 2012 to recognise Palestine as a non-member state.

Occupation also allows states to feel safe in attacking Israel without being too hypocritical. While human rights abuses are sadly common, the status of “occupier” is rare. Indeed, Israel is sometimes seen as a remnant of colonialism, and its actions certainly breach the right of self-determination enshrined in the UN Charter.

However, Israel is not the only occupier. Morocco has long annexed the [Western Sahara], yet the global silence on that situation is deafening in comparison.

Israel is also seen as a surrogate for the West, particularly the US. Given that Israel is almost always defended within the UN by the US, and is often defended by much of WEOG, the question of “Israel-bashing” has become part of a greater North/South divide in the UN. Anti-American states such as Cuba, Venezuela, Ecuador and Russia see Israel as a US surrogate in the Middle East, and exploit the issue accordingly.

Bias against Israel is matched by biased displays of support for Israel by its allies, such as the US and Australia. For example, the US instinctively presumed that the recent border killings were justified. Past bombings of Gaza (in 2009 and 2012) have been blithely dismissed by Australia as an exercise of Israel’s right to self-defence. But a legitimate case of self-defence can still result in an illegal use of excessive, indiscriminate or unnecessary force.

Regardless of its causes, the HRC’s perceived bias against Israel is counterproductive. It provides Israel with a ready-made argument to reject even legitimate condemnation, thus providing cover for human rights abuses. Indeed, claims of bias (within and outside the UN) have become a dominant part of the Middle East narrative on both sides, detracting from a focus on the actions of the actual protagonists. It has facilitated Israel’s progressive disillusionment with and disengagement from the UN, and now, the disengagement of the US. It reduces the Human Rights Council’s credibility and opens it up to charges of hypocrisy. None of these outcomes is useful for those who sincerely wish for improvements in human rights for all in Israel and the Palestinian occupied territories.

Finally, the biggest problem with the focus on Israel is the corresponding lack of focus on other serious human rights situations. While it is impossible to demand or expect that a political body, or even an apolitical one, should achieve perfect balance in its human rights focuses, it is fair to expect that such focuses not be way out of balance.

The US and human rights

Haley and Pompeo reassured us that the US will continue to play a leadership role in human rights, despite its withdrawal from the Human Rights Council. And certainly, the US’ role on the Council was in many ways positive. For example, it took the lead in addressing impunity in Sri Lanka. The WEOG group suffers from some dysfunctionality on the part of EU states, which generally seek a common position. Strong non-EU voices are important in this regard.

Yet the US is as political as other players on the Human Rights Council. Just as some states instinctively oppose Israel, the US instinctively supports it. Neither position is principled. The US has also protected other allies, such as Bahrain.

Outside the HRC, US President Donald Trump is not a credible leader on human rights. He seems to have an affinity with leaders with horrible records, such as the Philippines’ Rodrigo Duterte. Most recently, he responded to comments about North Korea’s human rights record, which is possibly the worst in the world, by praising the “talented” Kim Jong-un.

And of course, the US has long had its own serious human rights problems, which are too numerous to mention, but which include torture and the highest proportion of incarceration in the world. Its recent decision to separate migrant children from their parents and intern them reflects its status as the only country in the world that has failed to ratify the Convention on the Rights of the Child.

Furthermore, it is nonsense for Pompeo to suggest that the Human Rights Council had sought to infringe on US sovereignty. This betrays a serious misunderstanding of the concept of sovereignty, indicating that it dictates immunity from criticism. It does not.

Is the council salvageable?

The US is correct to note there are major deficiencies in the current Human Rights Council. Is its response therefore the correct one? If so, that would seem to indicate that Australia should also quit the Human Rights Council. It is very unlikely that Australia will do so.

The Human Rights Council is the peak global intergovernmental human rights body, which may represent the world of today, warts and all. The battle for universal human rights observance will not be won by adopting an “us and them” mentality, which excludes significant numbers of countries in the world from “the human rights club”. Such a solution is more likely to lead to balkanised human rights discussions, and possible competing institutions inside and outside the UN.

The Human Rights Council must remain a forum where non-like-minded states, and civil society, can talk to each other, and occasionally cross divides to make important human rights decisions.

Furthermore, the Human Rights Council is meant to be a political body. Other parts of the UN human rights machinery are made up of independent human rights experts, and accordingly take a more impartial approach than the Human Rights Council. While their human rights findings are more credible, it also seems that states generally take their findings less seriously.

States tend to care more about what their peers think than what human rights experts might think. Hence, human rights would suffer in the absence of a relevant intergovernmental global body.

Despite its flaws, the Human Rights Council does make decisions that benefit human rights, even in the face of political lobbying by members with scurrilous motives. For example, a special rapporteur was appointed to investigate Iran (after the application of US pressure), and it remains in place, despite that influential country’s forceful efforts to dismantle the mandate. A special rapporteur on LGBTI rights was appointed in 2016, despite fierce opposition from the Organisation of Islamic Cooperation and homophobic states, due to an alliance of developed and developing states, and civil society.

The Human Rights Council will continue to be an imperfect institution for as long as the UN is made up of states with imperfect human rights records. However, the council still can and must be improved.

But the worst way to achieve that goal is by just walking away.

Sarah Joseph, Professor, Director, Castan Centre for Human Rights Law, Monash University.

This article first appeared on The Conversation.