State Department Legal Adviser Harold Koh describes rights review process
The Brookings Institution
Tuesday, February 16, 2010
Well, let me say first how great it is to be back at Brookings where I spent many happy hours as a trustee before I was forced to resign, to serve in the U.S. government. It’s also great to be here with so many good friends and colleagues from the human rights world.
I had the pleasure of serving on the delegation to the now discredited Human Rights Commission with my dear friend, Nancy Rubin who was our ambassador, Karin Ryan who was also on the delegation, to work with Mort Halperin and Ted Piccone, and to work with so many of our colleagues from the human rights community and other parts of the world.
This is my fifth time in the U.S. government, and every time I’m struck by a story. Forgive the parochialism, but it comes from the American sport of baseball. It concerns a now famous athlete called Mickey Mantle who was a great baseball player for the New York Yankees, and he was also–oh, George Moose is here too.
George, how are you? He was also the leader of our delegation for these many years.
Mickey Mantle was a great baseball player, but he was also a famous carouser and drunkard. One night, he hurt himself, and so he was told he wouldn’t play the next day. He went out and got extraordinarily drunk. Then the next day during the game, in the ninth inning, he was summoned out to pinch hit.
As it’s told, he staggered to the plate, swung mightily at the first pitch and missed by several feet. The second pitch comes in, he swung mightily and missed by several by several feet. And the third pitch came in, and he hit a tremendous home run, and he ran around the bases.
And they won the game. There was cheering and a call for him to emerge from the dugout to receive his congratulations. And he squinted at the crowd, and he said, “Those people don’t know how hard that really was.”
This, of course, is a reminder to me that every time I’m outside the government it seems very obvious what the U.S. government should do. Every time I’m in the government, I’m amazed at how hard it is to get done even the most modest of things.
The second point, the second story is the story told of two Irishmen who were in the wilds of Connemara and one of them says to the other, “How do we get to Dublin?” And the other says, “I don’t know, but I wouldn’t start from here.”
When you’re looking at many of the issues that face this administration, not just the economy, foreign policy questions, et cetera, if it was our choice, we wouldn’t start with the hand that we were given. We would not have started with Guantanamo. We would not have started with the policies of detainee treatment. We wouldn’t have started with two wars. We wouldn’t have started with a recession. We wouldn’t have started with the kind of bitterly divided legislative environment in which we’re functioning.
So when people ask me, “Well, why don’t you ratify Treaty X, Y or Z,” I ask them, “Have you noticed them getting the 60 votes necessary for health care?” Since they have not, that seems seven votes short of what you might hope they could do with regard to a human rights treaty. It’s just the basic politics of the situation.
Or how about this basic fact? Betty King, our Ambassador to ECOSOC in the last administration, nominated to succeed George Moose as Ambassador to Geneva, an extraordinarily well-qualified person, was confirmed two days ago in the middle of the night, for the political problem of actually being qualified for her position.
Eileen Donahoe, who is being nominated for the Special Human Rights Ambassador position, was actually not confirmed, for no obvious reason.
I, myself, now know what a treaty feels like. I was held for several months.
Mike Posner, who is the Assistant Secretary of Human Rights, didn’t get confirmed for many months.
And so, even the most basic aspects of what we’re supposed to do have been rendered difficult by the situation that we’re in. This is not an excuse, but it is at least a partial explanation as to why those people don’t know how hard it really is.
That having said, I’m here playing a little bit out of position in that my previous job was Assistant Secretary for Human Rights. Now I’m the Legal Advisor of the State Department, but my lifelong commitment has been to human rights. So I thought I would give a quick overview, focusing on five points:
First, what I’d call the emerging Obama-Clinton Doctrine in foreign policy;
Second, how that doctrine or that approach affects our approach to the Human Rights council;
Third, what the approach had been before we arrived and what the United States government under this administration is trying to do, both with regard to the Council and the 2011 Review, applying three principles- -the principle of engagement, the universal application of human rights law and fidelity to the truth;
And then suggest what this means for particular issues before the Council–thematic topics like defamation of religions, the Goldstone Report, country-specific situations, the Iran Universal Periodic Review that occurred yesterday.
And one reason that I’m here is that Mike Posner, who I think was originally hoping to be here, appeared for the U.S. yesterday to speak on the Iran UPR, and then the United States’ own approach to its own UPR which is coming up in November of this year.
And then, fifth and finally, taking a hard look at our own human rights practices and what the U.S. government is attempting to do in that regard.
Let me start first with what I’d call the Obama-Clinton Doctrine. We’re at the one-year anniversary, and you hear a lot of pundits and others saying, there’s a basic continuity of foreign policy, or they haven’t changed that much, or things like that. I disagree. I think that it may well be that many of the particular actions being adopted by the U.S. government have similar substance to things that were done in the past. That’s always true with regard to foreign policy.
But I believe that the foreign policy of this administration is guided by four basic commitments. The first is to multilateral commitments, a strategic multilateralism, and I think this is just something that’s very endemic to our President’s approach to thinking. This is a man whose father came from Kenya. He spent his life as a child in Indonesia. He has said in Cairo that the challenges of the 21st Century can’t be met by any one leader or nation. He’s committed to working across regional divides, and much of what we have been trying to do in our initial relationship with the Human Rights Council is to infuse the spirit of Cairo into what the Human Rights Council ought to be doing.
The second plank is what I would call a universality, and this has been expressed both by President Obama from his inaugural address to Secretary Clinton in the speech that she gave in Georgetown, that our commitment to human rights starts with the universal standards, holding everyone accountable to those standards, including ourselves.
The third, and this is where my current role as Legal Advisor comes in, is commitment to our values and expressed in fidelity to laws, domestic and international law. If there’s a difference between our counterterrorism policy, it is one that is going to be conducted consistently with our values and consistently with the law, domestic and international.
Now that doesn’t mean that we are not able or not able to operate within the legal framework to battle against people who are trying to blow buildings in the United States or blow up aircraft or anything else. There’s nothing illegal about certain forms of response. It’s a basic tenet that the last administration too quickly abandoned these values and fidelity to law, in doing what was a necessary national task, and what we’re trying to do is to bring that policy back within the framework of law and our values.
And this suggests, as the President said in his Nobel lecture, that adhering to international standards strengthens those who do and isolates those in don’t. In other words, it’s a reaffirmation of our basic commitment to the framework of international law.
And then fourth and finally, the approach to be applied to this multilateralism, this commitment to universal values, this fidelity to our values and the rule of law should be expressed through the exercise of what Secretary Clinton likes to call smart power–in other words, not just military tools but a kind of principled pragmatism, the intelligent use of all policy tools at our disposal, not just diplomacy, development, human rights, but also promotion of democracy and use of the legal tool.
What I would argue is that our approach to the Human Rights Council is just a particular instance of the application of this broader Obama-Clinton Doctrine. You can see it in many different settings, but the first and most important focus was the decision to join the Human Rights Council.
The last administration had participated in the negotiations. Ended up voting against the adoption of the General Assembly resolution that created the Council. Then decided not to run for a seat. Participated as observer, but then decided that even that level of engagement was too much. Withdrew even further.
Now none of us who went to the old Commission would say that it was a perfect institution. It was flawed in many respects. It was dominated by regional groups. It was often dominated by countries– China and Cuba–who could use the Commission to pursue their particular goals. And so in 2060, when the General Assembly created the new body, the Human Rights Council, it would have been great if the United States had been able to be there in the early going, to help to influence the way in which the Council operated. That did not happen. So this is another example of what I would call the “I wouldn’t start from here”.
Here it is then, the fall of 2009, with the Council which has already had some unfortunate incidents, and the United States faced with one of two choices, which are: Do we maintain the distance, let the Council continue along a path without U.S. engagement? Or do we try to engage and fight for better outcomes?
The administration made a very important and necessary decision, I think, to be engaged.
Now, notice that the Council is different from the Commission in at least four respects. First, the Universal Periodic Review process, about which we’ll say more, it requires each member state to defend its record every four years. There are about close to seven weeks a year in which there’s representation. It creates a possibility for a real human rights dialogue.
Second, the Human Rights Council meets much more frequently throughout the year. Our mission in Geneva, as George Moose and Nancy Rubin would recognize, is now so consumed with the business of the Human Rights Council. It’s extraordinarily exhausting, particularly when the key ambassadorial figures haven’t been confirmed.
Third, while the Human Rights Council membership includes still some authoritarian regimes, the election criteria has done a reasonable job, I think, of sorting out some of the membership.
But part of the process of this is that–and this is the fourth difference–the western group lost some seats on the Human Rights Council which has affected a number of human rights initiatives, which created a possibility that you can call for a special session with only 16 votes which means that it’s possible for special sessions to be called for particular agendas such as, for example, criticizing Israel or anything else for which you can get 16 votes. And this, I think, is already becoming clear as an uncomfortable situation for us to engage.
Now in September, last September, the question was how to go to the Council. We were in a very funny situation. We had a confirmed Assistant Secretary for International Organizations, Esther Brimmer. She went and opened our session. Mike Posner, my successor as head of the Human Rights Bureau, was actually, the week before the Human Rights Council session, still unconfirmed. We literally did not know on Thursday whether he could be there for Monday.
One reason that I went and ended up co-chairing our delegation with him was that we literally had no idea whether the Senate would release him. By the way, they had no objections to him; they just wouldn’t confirm him. If you’re going to have a cloture vote, it would probably have taken several more months. On the Friday night, he was confirmed, and so we were there together. But, literally, we bought him a plane ticket without knowing whether he could go.
Then the first issue that came up, of course, was the Goldstone Report which consumed a huge amount of time and energy for our first session, about which I’ll say more in a moment.
Now I would urge to read Mike Posner’s introductory remarks at the September session, where he talked about our commitments to principled engagement, by which he means looking for common ground but being willing to stand alone when necessary, trying to transcend traditional geographical groupings and a very special concern of Secretary Clinton– making sure the Human Rights Council is not just a talk shop, that it actually works for change on the ground, affecting real individuals, and particularly to take up the cause of human rights defenders, who I know are represented broadly in this group, who are obviously the critical force multiplier on human rights issues.
Secondly, the commitment to apply standards universally.
And third, a deep commitment to truth telling, which means that we are concerned by efforts to eliminate or weaken country mandates. On the other hand, we urge that application of country mandates be done in an objective and unbiased and consistent way.
So one of the first things that Mike Posner pointed out, and I think just any fair-minded person would say it, is that the human rights mechanisms of the United Nations have been disproportionately focused on Israel. If you look at the grand scale of human rights conduct and the amount of attention that’s actually devoted to one country that has its own item, it’s disproportionate.
So, with this background, we are very much focused on the 2011 review. Again, the basic focus of the U.S. government is three-fold: First, to help the Human Rights Council become a better collector of information, not just through special rapporteurs, the UPR mechanism. Then secondly, to make sure that information is assessed. And then third, to make sure that action is actually directed or guided based on the collection and the assessment of information.
Now one of the first acts of the U.S. at the plenary session in 2009 was to work on the Freedom of Expression Resolution with Egypt. This actually arose out of the Cairo speech that the President gave. His focus was on how to find a universal understanding of freedom of expression. We believe that that was a very useful resolution and has set the stage for what will be a main focus in March, which is the Defamation of Religions Resolution.
This is a resolution that has been run regularly by the Organization of the Islamic Conference. We think as a matter of human rights, law and practice, religions don’t have rights, individuals have rights, and that the function of the Defamation of Religion Resolution has essentially been one of chilling of freedom of expression, and it’s one that we would like to address at the next session.
Now this brings me to the Goldstone Report.
I should add, by the way, with regard to freedom of expression and hate crimes, this is in no way to sanction hate crimes or to suggest that that’s an acceptable way to proceed. We presented an action plan in October that included robust implementation of anti-discrimination laws, enactment and enforcement of hate crimes laws, governmental approaches to members of minority groups, ensuring that they have full voice in public discourse, human rights education, interface, activities. In other words, we believe there is a way in which the genuine mistreatment of minorities can be addressed without overbroad speech-impeding resolutions.
Now on the Goldstone Report, this has been the subject of tremendous discussion. I’ve expressed my views on this in a number of forums and to Hina herself. I would say on this that the United States’ position I think has been misunderstood. We never impugned any individual of the Goldstone Commission. This is an extraordinarily able group of human rights advocates.
Nevertheless, we didn’t give the report a pass either. I think there are many things about the report that could be challenged, and we did indeed challenge. We think the imputation of intent to attack civilians was not based on strong evidence. We think that the report was imbalanced in terms of its focus.
And I think the greatest criticism I would have of the report, as a human rights advocate, is it did not set a clear path for what the Human Rights Council should do. It did not designate an institution within the human rights mechanism that should act on the report, to achieve a good human rights outcome.
Now what ended up happening at the end of the September session was that the Goldstone Report was carried over to the March session with all of the participants. Israel, Palestine, Hezbollah were supposed to be preparing for that session with the possibility of doing their own independent investigations.
I would argue that that outcome which existed on September–I forget what day, September 19th, but I then met you at Wilton Park–would have achieved a better outcome than what ended up happening, which was the call for the special session, the bringing of this issue to every conceivable U.N. mechanism, most of these resolutions being voted on political grounds, the Human Rights Council itself not clearly playing a positive human rights role. It allowed the various subjects of the report to call themselves victimized by the report, which took the pressure off of them to do the kinds of independent investigations that they were under pressure to do.
And I think what it revealed is a certain lack of sophistication about what a gigantic report of this nature is supposed to accomplish. It does seem to me the Human Rights Council needs to be managed better to achieve human rights outcomes and not simply commissioning reports that make recommendations to everybody in the whole world.
One thing that all of us, as friends of the Council, can do is to start thinking about that question. Particularly, I think it’s something that’s a challenge to the High Commissioner of Human Rights, whose office I think might have a very special role to play.
On particular country situations–Burma, North Korea, the Sudan situation, Guinea–we can say more as time goes on. The Iran UPR, I think, yesterday was a powerful example of a way in which the U.S. engagement can put attention onto the right set of issues. If you look at the statement that Mike Posner gave yesterday, he talked about the unjust and violent suppression of innocent Iranian civilians, concerns about the electoral process, growing restrictions on the freedom of expression, the status of detainees, governmental violation of religious freedom, including of Bahá’ís and others, and a broader set of issues regarding internet freedom. To me, this is a good example of the way in which human rights law and practice have changed.
In the sixties and seventies, we don’t know how many people died in the Cultural Revolution in China. By 1989, people were faxing for democracy by; this is at Tiananmen Square. And then in the most recent round of Iranian demonstrations, despite other efforts to control the flow of information, Twitter, which I think up until that point had been a tool for teenage kids and 60-year-old politicians, had suddenly become a human rights tool that could send out various forms of messages. I think it’s a challenge for the Human Rights Council how to capture and harness these technologies for human rights purposes.
And let me finally say something about taking a hard look at ourselves. The great Lou Henkin liked to say that in the world of human rights the United States, that in the cathedral of human rights the United States is more a flying buttress than a pillar, standing outside the structure, supporting it, but refusing to come within for its examination.
We are making efforts to change that dynamic. The U.S. will be participating in the Universal Periodic Review this November. Our goal is to make a report which is a model for how such reports ought to be done. As Secretary Clinton has said, holding ourselves accountable doesn’t make us weaker, it makes us stronger.
We think it will give us a chance to engage civil society. People from the State Department and the other governmental agencies responsible are, through the process of the Interagency Working Group on Human Rights convened by the 1998 executive order, meeting to discuss ways in which these reports can be implemented. This is happening along the same track as the second U.S. report on the ICCPR and the Committee Against Torture.
We are doing outreach in about nine different locations around the country. I believe New Orleans, Washington, New York, San Francisco and a number of other locations, to reach out and talk about priorities with members of civil society and the human rights community.
I think this also fits into presentations we’re making under the optional protocol, the convention on the Rights of the Child, our reports on human trafficking, and other goals in revitalizing the interagency process on human rights.
Now I think there are those who would say that this administration hasn’t done enough on human rights. I think that the main point is that it’s a long-term effort to get from where we were to where we would like to be. We are in an important step along the way. I think our commitment to the Human Rights Council is long-term.
I think it’s one in which both the Council and we need to change. There is, of course, the famous joke about how many psychiatrists does it take to screw in a light bulb, and the answer is the light bulb has got to want to change. Here, there are not one, but two light bulbs, and the U.S. government is trying to change.
I think the Human Rights Council has to recall itself to its original function, despite some of the challenges it has faced over its initial years, and I think that working together we can bring about an institution that’s much focused on the actual challenges of individuals and the human rights needs of the 21st Century.