When Geraldine Ferraro Said No to U.N. Israel-Bashing

For Immediate Release: March 28, 2011 *NEW* Follow us on Facebook and Twitter.

Contact: Anne Bayefsky info@EYEontheUN.org

When Geraldine Ferraro Said No to U.N. Israel-Bashing

This article by Anne Bayefsky appears today on National Review Online.

From 1994 to 1996, Geraldine Ferraro was the American ambassador to the U.N. Human Rights Commission in Geneva. I was an adviser to the Canadian delegation to the commission and had the opportunity to watch Ferraro in action behind closed doors in meetings of the “Western European and Others Group” (WEOG). At WEOG meetings, Western states hammered out shared policy on issues of common interest before stepping into the full morass of the U.N.’s top human-rights body. At that time, one quarter of all the resolutions adopted by the commission that were critical of specific states condemned Israel alone, while the commission remained silent on almost all egregious violations of human rights around the world. For 25 years, the formal agenda of the commission, which governed every meeting, had contained one item devoted to demonizing Israel and one item to human rights on the almost 200 other U.N. members. This was the environment into which Ferraro stepped. In addition, she found herself in the middle of an attempt at U.N. “reform.” The reform effort of that era came to a head in one memorable meeting of WEOG when it became clear that the Europeans had caved to Arab and Muslim states and were prepared to agree on proposals for “reform” that left the Israel-demonization agenda item exactly as it was. In walked Geraldine Ferraro. I don’t remember her staying long or saying much. She just said no. Such a reform sham was not consistent with American values and the United States would not be part of it. She couldn’t be bullied by the multilateral pressure to appear “cooperative.” With extraordinary poise and straight talk she put everyone else in that room to shame. I remember having to restrain myself from jumping up and clapping in that stuffy chamber, composed almost entirely of men who had spent their careers clawing to the top of foreign offices by being exactly the opposite of Geraldine Ferraro. In a twist of fate, only a day before she died, virtually the same scenario played out in Geneva 15 years later. A “reform” package was before the Human Rights Council. Again it was a sham. And again it left the same demonization-of-Israel agenda item in place. Only this time, President Obama and Eileen Donahoe, a former fundraiser and his ambassador to the council, desperate for the approval of an un-American audience, waved it through by consensus. Today among Democrats the moral courage necessary to withstand the U.N. hordes is in short supply. Ferraro will be missed.

For more United Nations coverage see www.EYEontheUN.org.

No illusions; Intervention in the Arab awakening

No illusions; Intervention in the Arab awakening The Economist March 19, 2011

The Arab awakening is succumbing to violence. The outside world has a duty to act

UNTIL the Arab awakening reached Libya, protesters seemed able to prevail armed with little more than self-belief. Not any more. In Bahrain the regime's troops, reinforced by foreigners—mostly Saudis—have stormed the protesters' tent-city at Pearl roundabout, shooting as they went. In Yemen the regime of President Ali Abdullah Saleh has taken to firing live rounds into the crowds. And in Libya itself, as Muammar Qaddafi seizes back the rebel towns strung along the Mediterranean coast, the people are reaping the whirlwind. Torture and death are rampaging through Brega and Zawiya. Terror and despair loom over Tobruk and Benghazi.

As the violence escalates, the outside world no longer has the easy option of simply backing the "reform" of corrupt and oppressive regimes. Instead, it faces hard choices. Are countries content to sit on their hands and watch rebels die? And if they feel they must step in, what exactly can they do?

In Libya, at least, those questions are fast becoming the business of historians rather than policymakers. The moment will soon have passed when a no-fly zone designed to stop Colonel Qaddafi from using his air force could offer civilians much protection. As The Economist went to press, the UN Security Council was at last discussing this but Colonel Qaddafi was advancing towards Benghazi (see

). If he arrives at the city, its people will need more than just air cover to save them in what could be a bloody and long-drawn-out battle.

Democracies wisely set obstacles in the way of those who seek to put the world to rights by fighting—however good their motives. Bitter experience in Iraq has taught how liberators soon come to be seen as oppressors. Western troops have found that when they wage war, they own the mess they have created. You cannot fight people into behaving well.

At the same time, democracies shrink from the idea that might is right. After the genocide in Rwanda, nations took on a duty to stop mass-killing if they could. Kosovo, Sierra Leone and Liberia all showed that outsiders can in fact help avert catastrophes. The Arab awakening is all about human dignity and the rights of ordinary people—values that the West lives by and seeks to promote. For the West to turn its back on Libya's rebels and to stand aside while its allies shoot protesters in Bahrain betrays its own values.

Confronted by the contradictory urges to do good and steer clear, the West has so far accomplished neither. Even as the Arab League and the Gulf Co-operation Council have called for international action against Colonel Qaddafi, the West has temporised and rebel towns have fallen. Europe is at its chaotic worst. France and Britain want a no-fly zone, but Germany, deaf to the pleas of Libyans, sees only risks and entanglement. And in America Barack Obama has summoned up the will to condemn violence and oppression, but, until far too late, studiously avoided summoning up the means to do much about it—a weak stance for a superpower (see Lexington).

Those who wish America to be a force for good will find that disappointing. But those who rejected George Bush's searing and bloody pursuit of democracy should reflect on how they got what they sought.

No universal formula can cut through the contradiction between values and interests in foreign policy—that is why intervention in Vietnam and Somalia led to neglect in Rwanda, which set the scene for intervention once more in Bosnia and Iraq. And it is why foreign policy is condemned to live with an age-old dilemma. If the West sacrifices its place in the world to its values, then it will be less able to promote them. On the other hand, if the West always puts narrow realpolitik before its values, then its values will be tainted in the eyes of the world.

By that test, the West let down the Bahrainis: sterner talk from Mr Obama may have deterred their attackers. Yet the West does still have options in Libya. To send in Western ground forces would be to own a dysfunctional, violent place. But the West can seize upon Arab backing to help protect eastern Libya. It should jam Colonel Qaddafi's communications and rush in a no-fly zone. If the regime begins to pound Benghazi, then aircraft—including Arab aircraft—should destroy Colonel Qaddafi's tanks, artillery and gunboats.

Have no illusions about the risks of such a policy. Bombing Libyan armour would endanger the lives of pilots and, inevitably, civilians. It would, at least temporarily, partition Libya. The eastern groups under the protection of the outside world may include Islamists and killers who turn out to be just as savage as Colonel Qaddafi. And that is if the policy succeeds.

Even so, these are risks that the West should now take before it is too late. Saving lives in eastern Libya will be hard. Not even trying to save them would be worse.

Pause and engage; Europe's far right

Pause and engage; Europe's far right The Economist March 19, 2011

The best way to stop the populist far right is to counter not pander to its crude message

FROM the tip of Scandinavia to the shores of the Mediterranean, far-right leaders and parties are doing well in opinion polls. Given Europe's history, this has set nerves jangling.

The biggest shock is the rise of Marine Le Pen, leader of France's National Front. Polls put her ahead of both President Nicolas Sarkozy and any likely Socialist challenger in 2012. She will not win the presidency, but she has shed the jackbooted imagery of her father, Jean-Marie, who shamed France by getting into the run-off against Jacques Chirac in 2002.

The right is on the rise for old reasons and new. Hostility to immigration is sharpened by Islamist terrorism; alienation from the political system is exacerbated by both globalisation and the bail-outs of failing euro-zone countries. Ms Le Pen and her kind trade on anti-Islamist sentiment to resist not just more immigration from north Africa but also Islamification at home. In northern Europe far-right parties play more on hostility to Brussels and the euro. The German government is worried about the possible emergence of a nationalist party pushing to restore the D-mark.

Europe's political establishment has tried many different tactics to defang the far right, none of which has wholly succeeded. The first was to ignore it in the hope that it might go away. Next came a policy of ostracising extremists, throwing a cordon sanitaire around parties that won municipal or parliamentary seats. Then came its opposite: embracing the far right and even bringing it into government, in the hope that contact with reality would both moderate it and reduce its appeal.

Mr Sarkozy tried another approach in the run-up to the 2007 election: he occupied the National Front's ground by ranting about immigrants and using coded anti-Islam discourse. A charitable interpretation (善解) is that by broadening the respectable right, he left less space for the extremists. Whatever the intent, this strategy had some success in winning back voters. But it is a dangerous path to follow. By espousing the arguments of the far right, the centre may legitimise them; and voters may opt not for the ersatz party but the real thing, especially in a more respectable guise—Ms Le Pen, for instance.

Mainstream parties would do better to address the extremists head on. Instead of stoking anti-Muslim sentiment by claiming, as Germany's interior minister has, that Islam has no place in a country, explain the importance of integrating minorities. Instead of demonising the Greeks, spell out the arguments for keeping the euro together. Instead of hinting that governments can hold globalisation at bay, explain its benefits and the costs of resisting it. That may sound Panglossian, but it is better than raising voters' expectations only to dash them later. That's what Mr Sarkozy did in 2008 when he pledged to keep a steel plant from shifting production abroad. The jobs went anyway. Little wonder if voters flock to parties that seem to offer a more robust bulwark against painful change.

Dealing with extremists is never easy for moderates, but addressing voters' concerns honestly, and making the argument against the far right stoutly, is the best approach. Those who steal extremists' clothes end up looking too much like them.

Airstrikes continue while Obama seeks to resolve command impasse

Posted By Joshua Keating Wednesday, March 23, 2011 - 9:16 AM

Top news: Western airstrikes appear to have silenced the pro-Qaddafi forces engaged in shelling the town of Misrata. The town have been under constant bombardment, but the firing of artillery stopped after two bombinbs by allied planes this morning. At least two explosions were also heard in Tripoli this morning. Western warplanes have now flown more than 300 sorties over Libya and fired 162 Tomahawk missiles.

In an apparently live television broadcast, Muammar al-Qaddafi vowed not to surrender and called the western powers carrying out the airstrikes "a bunch of fascists who will end up in the dustbin of history."

On Tuesday, President Obama called President Nicolas Sarkozy of France and Prime Minister David Cameron of Britain in an attempt to resolve an impasse over command of the mission. The U.S. plans to cede control of the mission within days but France has been resistant to having NATO take the primary coordinating role. The emerging deal would western forces rely on NATO assets but not flag the mission as a NATO-one to avoid alienating Arab countries.

Libya, Domestic Authority, and the Proper Analogy

http://www.lawfareblog.com/2011/03/libya-domestic-authority-and-the-proper-analogy/

by Jack Goldsmith

Bruce Ackerman and Oona Hathaway argue at the Huffington Post that President Obama lacks the constitutional authority to impose a no-fly zone in Libya in the absence of congressional authorization. Their main argument is that “[i]f Obama goes it alone, he must return to Bush-era assertions that the president, as commander-in-chief, can unilaterally launch the nation into war.”

This is wrong, for several reasons. George W. Bush sought and received congressional approval for both of his wars – against those responsible for 9/11, and in Iraq. Bush did proclaim unilateral presidential power to engage in preemptive self-defense, broadly conceived. But that rationale is not in play here, for as Ackerman and Hathaway note, “nobody suggests that Gaddafi’s assault on his domestic enemies is a threat to the United States.” Ackerman and Hathaway further claim that “President Obama immediately withdrew opinions written by John Yoo and others making . . . extreme claims” about the president’s power unilaterally to launch the nation into war. But this did not happen. Obama officials withdrew many Bush-era OLC opinions. But they did not withdraw the two very broad opinions in support of the president’s unilateral war powers related to terrorism and Iraq (and indeed probably never had an opportunity to consider them before now).

In their rush to paint intervention in Libya as a return to Bush-era assertions of presidential power, Ackerman and Hathaway miss the closest analogies. Perhaps the closest is President Clinton’s 1999 air campaign in Kosovo, without congressional authorization, which was justified legally on the basis of the President’s “constitutional authority to conduct U.S. foreign relations and as Commander in Chief and Chief Executive.”

Letter to Congressional Leaders Reporting on Airstrikes against Serbian Targets in the Federal Republic of Yugoslavia (Serbia and Montenegro), 1 Pub. Papers of William J. Clinton 459, 460 (1999). The Kosovo intervention was not premised on self-defense, or on protecting American citizens or property, but rather on some combination of humanitarian protection and preserving peace and stability in the region. These are very similar to the rationales that appear to be on the table for a possible intervention in Libya.

If the U.N. Security Council supports a no-fly zone, other precedents will come into play, most notably the Korean War and the 1992 intervention in Somalia. There are many other precedents that must be considered to assess the legality of an intervention in Libya. None of them comes from the George W. Bush administration.

This was written by Jack Goldsmith. Posted on Thursday, March 10, 2011, at 1:33 pm

Libya No-Fly Operation: What Comes Next?

by Peggy McGuinness

Now that the supporters of a no-fly zone over Libya have got the legal authority they required — both international and domestic (I agree with Peter that the president does not need additional congressional authority to vote for and contribute to a UN SC action) — what comes next? Despite herculean efforts by the punditry to analogize the situation in Libya to Iraq, Kosovo, Bosnia, Sudan, Afghanistan, etc., the end game for this conflict seems to be more of a black hole than any in recent memory. And the swiftness of this turn of events is pretty stunning. President Obama’s State of the Union address at the end of January had no mention of Egypt, Tunisia, Bahrain, or Libya. Just 45 days later, we have committed to an open-ended UN Chapter VII operation that authorizes “all means necessary” to protect the civilian population of Libya from its own government. Outside of the response to the attacks of the 9/11, I can’t think of any time there has been so swift an enforcement action against a member state of the UN. And, in the case of Afghanistan post-9/11, the “government in exile”, not the Taliban, continued to hold the Afghan seat at the UN. There are many observers, like Anne-Marie Slaughter, who believe the international community has been too slow in this case. But relative to past Chapter VII actions, this is lightening speed.

So, what next? The history of Chapter VII operations — and other non-UN authorized interventions like Kosovo and Iraq — tells us that lots can go badly wrong for the intervening powers at this stage. Andrew Sullivan has usefully rounded up the reactions from the punditry here. I share Marc Lynch’s sense of feeling conflicted, which he discusses here at Foreign Policy. Lynch describes what it means for the no-fly to “succeed”:

The intervention is a high-stakes gamble. If it succeeds quickly, and Qaddafi’s regime crumbles as key figures jump ship in the face of its certain demise, then it could reverse the flagging fortunes of the Arab uprisings. Like the first Security Council resolution on Libya, it could send a powerful message that the use of brutal repression makes regime survival less rather than more likely. It would put real meat on the bones of the “Responsibility to Protect” and help create a new international norm. And it could align the U.S. and the international community with al-Jazeera and the aspirations of the Arab protest movement. I have heard from many protest leaders from other Arab countries that success in Libya would galvanize their efforts, and failure might crush their hopes.

The problem with even this rosiest view of success is that it doesn’t tell us what, beyond the end of Qaddafi’s regime, the end game is. What does post-Qaddafi Libya look like? (Or, to frame it as a question I heard asked last week: can you name three Libyans in public life other than Qaddafi or someone with the last name Qaddafi?) Frederic Wehry has a useful primer up at Foreign Affairs on the Libyan political landscape and the likely make-up of the post-Qaddafi ruling class, which raises lots more questions about who would be in control. And is there any historical precedent to suggest that the western powers leading the no-fly effort (with only a thin veneer of political cover from the Arab League) would not be (a) drawn directly into and/or (b) held responsible for what happens next? Who among the regional powers has the capacity to broker and, most importantly, keep some kind of post-conflict peace arrangement? Military, economic, political, and administrative capacity matters in these sort of large-scale interventions, and interventions that take place before a workable peace agreement is in place are the least likely to succeed. (Two 2005 Rand studies on UN- and US-led interventions documented the importance of settlements on the ground before stability and nation building operations can succeed.)

Even the idea that the intervention could establish a new “norm” for R2P and humanitarian intervention is on pretty shaky ground. In Libya’s neighborhood the bloody crackdown in Bahrain is being largely played down and the only intervention has been by the Saudis seeking to bolster the status quo rather than hasten a path to reform. Norms only solidify if they are broadly accepted and are seen as effective. So, if Qaddafi does go quickly? Lots of hard decisions to come about stabilization and nation building. And if he doesn’t go quickly? No norm setting, and lots of hard decisions ahead about the escalation of regional and international involvement.

Mar 18, 2011

Libya and the Codification of the Crime of Aggression

There has been a lot of attention in the press and blogosphere about the worrisome situation in Libya, the (in)adequacy of the United States' and United Nations' response thereto, and the Security Council's unanimous referral of the situation to the International Criminal Court via Resolution 1970 on February 26, 2011. (See our prior coverage here). On March 2, 2011, the ICC Prosecutor announced that he had opened his investigation into potential crimes committed in Libya (see his press conference here). The President of the ICC, Judge Sang-Hyun Song (S. Korea), thereafter assigned the situation to Pre-Trial Chamber I.

In undertaking his investigation into international crimes committed since February 15th, the ICC Prosecutor has already signaled that he will consider the commission of crimes against humanity—a constellation of acts made criminal under international law when they are committed within the context of a widespread or systematic attack against a civilian population with knowledge of that attack. Certainly the strafing of peaceful demonstrators with helicopter gunships, the indiscriminate bombing of residential neighborhoods by warplanes (left,photo credit), and the unleashing of mercenaries and snipers on the ground collectively rise to the level of such an attack. This is especially true given that at least a thousand people have been killed and thousands others have been injured and/or displaced. (Although, I should note that Judge Kaul, who does not sit on this PTC, will likely disagree here).

War crimes may also have been committed, depending on whether the situation in eastern Libya or elsewhere rises to the level of armed conflict.Common Article 3, whose prohibitions are listed as war crimes in Article 8(2)(c) of the ICC Statute, is applicable once there is an "armed conflict" occurring "on the territory of" a party to the Geneva Conventions. The determination of when violence rises to the level of an "armed conflict" depends on the level of violence and the degree of organization of the parties. Certainly, the formation of an increasingly hierarchized and united armed opposition—populated and led by courageous defectors from Libyan armed forces' officer corps—goes far toward finding the necessary degree of organization. In addition, there are indications that swaths of the country are under the control of opposition groups forging a transitional government (the Libyan National Council) after governmental authorities collapsed.

All this implies that the heightened threshold of Protocol II, which also governs non-international armed conflicts and whose prohibitions may be prosecuted as war crimes pursuant to Article 8(2)(e) of the ICC Statute, may also be satisfied. That treaty becomes applicable when there is a non-international armed conflict

which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol.

It explicitly excludes situations

of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature, as not being armed conflicts.

There thus may be reasonable grounds to conclude the existence of a full-scale civil war, albeit an unbalanced one according to comparative military assessments, which would lay the groundwork for war crimes charges.

The crime of aggression is not immediately implicated in the Libyan situation. For one, the aggression amendments will not come into force until 2017 at the earliest. Moreover, the definition of the crime does not envision the act of aggression being committed by or against non-state actors that are not linked to a state. Nonetheless, the crime of aggression may bear on responses by the international community to the crisis in Libya.

Indeed, military options are not off the table, according to recent comments by President Obama and other world leaders. In particular, it has been proposed that the international community—or some subset thereof—should impose a no-fly zone over the country in an effort to prevent Libya's increasingly erratic and vicious leader from committing further violence against his own people. The Gulf Cooperation Council and Arab Leaguereportedly support such a measure as do several vocal members of Congress. France and Britain are working on a draft Security Council resolution that would authorize such a response, although it is unclear if Russia and China would support this measure, which sounds of military intervention.

This raises the prospects that a group of states, such as NATO or some other coalition of the willing, might move forward without explicit Council approval. This is exactly the kind of scenario that worries detractors of the codification of the crime of aggression in the ICC Statute.

The imposition of a no-fly zone without prior Council approval might run afoul of the prohibition of aggression as it has been defined in the aggression amendments. Article 8bis(2) of the amendments defines “act of aggression” broadly as

the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State...

The amendments go on to list the following as acts of aggression:

a) The invasion or attack by the armed forces of a State of the territory of another State ...;
b) Bombardment by the armed forces of a State against the territory of another State or the use of any weapons by a State against the territory of another State; ...
d) An attack by the armed forces of a State on the land, sea or air forces, or marine and air fleets of another State...

Simply policing the no-fly zone might constitute a breach of Libya's territorial integrity, and for a no-fly zone to be effective, it would likely be necessary to neutralize Libya's air defense capabilities, which would involve air strikes. To be sure, such acts would only be prosecutable as the crime of aggression if they are deemed to constitute a "manifest" violation of the U.N. Charter with reference to their character, gravity and scale as per Article 8bis(1). As we have discussed at length in our crime of aggression series, no explicit exception was carved out for bona fide humanitarian interventions or for considerations of a state's motives for engaging in military action. However, important understandings adopted in Kampala imply that a consideration of the "consequences" of military action might shield actions from being characterized as an act of aggression. This would depend, of course, on the views of

• the prosecutor (exercising prosecutorial discretion),
• the Pre-Trial Division (which would need to approve aggression charges), and
• the Security Council (which also acts as a filter to aggression charges and can defer prosecutions for a renewable period of a year).

In any case, the ICC is poised to enter the debate about such humanitarian interventions in the event that they occur once the aggression amendments are operational. The situation in Libya offers yet another potential scenario in which a deployment of armed force might be warranted and beneficial, but may not—for whatever reason—be able to garner Security Council approval.

International Gender Justice: Progress in International War Crimes Tribunals and the UN Security Council

On International Women’s Day, it is appropriate to recognize the remarkable progress that women and girls have secured for gender related crimes in contemporary international war crimes tribunals. The International Criminal Tribunal for the former Yugoslavia (ICTY) was established in 1993 and its sister tribunal, the International Criminal Tribunal for Rwanda (ICTR), was set up the following year. These two tribunals, set up by the UN Security Council, have together successfully prosecuted rape as a war crime, a crime against humanity, and an instrument of genocide (the groundbreaking cases which established the leading precedent are ICTR:Akayesu, Muhimana; ICTY: Celebici, Furundzija, Kunarac); they’ve recognized rape and enslavement as a form of sexual slavery (ICTY:Kunarac); they’ve recognized rape as forms and means of torture (ICTR:Akayesu; ICTY: Celebici, Furundzija, Kunarac), as well as forms and means of persecution (ICTY: Krstic, Kvocka), that gender crimes may form part of a joint criminal enterprise (JCE) and both perpetrators and others participating in the JCE may be held responsible for intended or foreseeable crimes committed in furtherance of the JCE (ICTY: Krstic, Kvocka), and that men and boys are subjected to sexual violence (ICTY: Tadic, Celebici). They have also noted that other gender-related crimes, such as forced marriage, forced nudity, forced pregnancy and forced abortion, may constitute an international crime (ICTY: Kvocka).


In 1998, the Rome Statute of the permanent International Criminal Court (ICC) formally listed rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, and “other forms of sexual violence of comparable gravity,” as war crimes and crimes against humanity (arts. 7 and 8) and also emphasized that gender based persecution as well as trafficking in women and children may be prosecuted (art. 7). While no judgment has yet been rendered in the ICC, the court has accused individuals of rape or sexual slavery as war crimes and crimes against humanity committed in Uganda (Kony et. al), the Democratic Republic of Congo (Katanga & Ngudjolo; Mbarushimana), the Central African Republic (Bemba), and the Darfur region of Sudan (Harun & Ali Kushayb; Bashir). There will likely be sex crimes included in the situations in Kenya and Libya once charges are formalized and arrest warrants sought for these situation.
(See here for more on the gender report card at the ICC).

The Special Court for Sierra Leone (SCSL) has successfully prosecuted rape, sexual slavery, and inhumane acts of forced marriage (AFRC) and in 2009 the Extraordinary Chambers in the Courts of Cambodia convicted the head of a Khmer Rouge torture facility of a number of crimes, including rape (Duch). Mixed chambers in East Timor and Bosnia have also brought war crime and crime against humanity charges for rape crimes.

Unquestionably, in the last 18 years, unprecedented progress has been made on securing justice for gender related crimes in international/ized war crimes tribunals. Yet to be sure, the number of indictments charging individuals with gender crimes, particularly senior military and civilian leaders far from the battlefield, is grossly inadequate, and many sex crime charges that have been brought have been dropped or acquitted. Moreover it is past time for the tribunals to prosecute other recognized crimes, including forced pregnancy and enforced sterilization, which are committed far too commonly in this era when sexual violence is intentionally committed both with random abandon and with callous calculation – as powerful weapons of terror and destruction.

In part in recognition of the strategic use of sexual violence as powerful tools of warfare, as well as its common occurrence because the atmosphere of war and the long history of impunity for sex crimes exploits the opportunity, the UN Security Council has stepped up its efforts to ensure wartime sexual violence is redressed. Over the last decade the council has devoted no fewer than nine resolutions exclusively to ending and punishing war time sexual violence and enhancing the empowerment of women in peacemaking and peacekeeping: 1325 (2000), 1612 (2005), 1674 (2006), 1820 (2008), 1882 (2009), 1888 (2009), 1889 (2009), 1894 (2009), and 1960 (2010). (Prior posts). To reinforce these efforts, in 2010, the Secretary-General appointed a Special Representative on Sexual Violence in Conflict (Margot Wallstrom).

Clearly, enormous – albeit unsatisfactory – progress has been achieved on securing justice for survivors of gender related crimes. Much remains to be done, yet the situation is far from bleak. When leaders who order, ignore, or acquiesce to crimes committed by subordinates are tried, thousands in the victimized communities can have their crimes addressed by those most responsible – perhaps even more so than the physical perpetrators – for the crimes committed against them. As international and domestic courts increasingly go up the power chain to prosecute top leaders, wider justice will be provided. And great satisfaction can be gained in recognizing that over the last fifteen years, there is now worldwide recognition that sex crimes are among the most serious international crimes committable, and these crimes are regarded as those that threaten international peace and security and thus demand action to halt and punish such crimes. If as much progress is made on gender justice in the next fifteen years as the past fifteen, the world community will be well on its way to ending impunity for gender related sex crimes, and for reversing the shame and stigma wrongly attached to victims, instead of perpetrators, of sex crimes.

See our Women & ICL series for more.

TUESDAY, MARCH 8, 2011

Terrorism said to be defined

WEDNESDAY, MARCH 9, 2011

Terrorism said to be defined

Terrorism law is the central concern of the Netherlands-based Special Tribunal for Lebanon, an internationalized tribunal about which we've posted in the past. Established in 2007, it is charged with investigation and adjudication stemming from the 2005 assassination in Beirut of Prime Minister Rafik Hariri.

An ASIL Insight by our colleague Michael P. Scharf reports that last month the tribunal's "Appeals Chamber handed down a landmark ruling"; to be precise, it sets forth what its judges consider to be "the customary international law definition of terrorism."

Entitled Interlocutory Decision on the Applicable Law: Terrorism, Conspiracy, Homicide, Perpetration, Cumulative Charging (available in Arabic, English, and French here), the 154-page decision was written by President Antonio Cassese (below right) (prior IntLawGrrls posts) on behalf of a five-man panel (men make up all the judges of this tribunal; a couple of the prosecution and defense officers listed are women).

Scharf quoted paragraph 85 of the decision -- issued in answer to request of the pre-trial chamber considering whether to confirm a pending indictment -- which sets forth the elements of the definition of terrorism at customary international law as follows:

► '[P]erpetration of a criminal act (such as murder, kidnapping, hostage-taking, arson, and so on), or threatening such an act';
► '[I]ntent to spread fear among the population (which would generally entail the creation of public danger) or directly or indirectly coerce a national or international authority to take some action, or to refrain from taking it'; and
► '[T]he act involves a transnational element.'

Scharf predicted that the definition will have ramifications that extend past the work of this tribunal -- into the work of the U.N. Security Council Counter-Terrorism Committee (DO- CTC) established pursuant to Resolution 1373 (2001), and even into national legal systems.

That is not an entirely comforting thought.

The definition, at least as stated above, would appear to know few bounds:

► The definition would seem to sweep in state as well as non-state actors. That should make more than a few countries uncomfortable. (DO- Israel ? ; boundary between two bodies of law - laws of war and terrorism ; once sweeping in state actor, war of character of international could be terrorism )

► What's more, the definition would seem potentially applicable to many transnational offenses not colloquially understood to be terrorism. To name one example, much violence committed in the course of cross-border smuggling enterprises would seem to fit the bill.
Those concerns are reflected in definitions set forth elsewhere on the subject. (DO- political nature of terrorism, which is distinct from ordinary crime)

► For instance, 22 U.S.C. § 2656f(d)(2), which requires annual country reports on terrorism, withdraws many state actors from the net by stating:

the term 'terrorism' means premeditated, politically motivated violence perpetrated against noncombatant targets by subnational groups or clandestine agents ...

► The catchall definition set forth in Article 2(1)(b) of the 1999 International Convention for Suppression of Financing of Terrorism also is narrower, for it applies only to acts

intended to cause death or serious bodily injury to a civilian, or to any other person not taking an active part in the hostilities in a situation of armed conflict.

Arson of a structure known to be unoccupied -- or of a building occupied by combatants -- would be excluded from the Convention's definition, but not, it would seem, from the definition advanced in the new judgment from the Special Tribunal for Lebanon.

These 2 counterexamples of state practice stand in tension with the tribunal's contention that its definition constitutes customary international law.

The tribunal's decision, Scharf reports, further endorsed at least some aspects of the encompassing accomplice-liability doctrine of "joint criminal enterprise," about which we've frequently posted. That embrace of expansive culpability, coupled with the breadth of the definition stated above, creates a risk that the stigma of "international terrorist" could be applied well beyond advisable limits.

Illinois outlaws death penalty

In Illinois, capital punishment is no more.
Today Governor Pat Quinn:

► Signed legislation abolishing the death penalty,
► Commuted all existing death sentences to life without parole, and
► Pledged to commute any death sentence levied before the law takes effect on July 1.

In his signing statement, Quinn said that he had:

concluded that our system of imposing the death penalty is inherently flawed. The evidence presented to me by former prosecutors and judges with decades of experience in the criminal justice system has convinced me that it is impossible to devise a system that is consistent, that is free of discrimination on the basis of race, geography or economic circumstance, and that always gets it right.
As a state, we cannot tolerate the executions of innocent people because such actions strike at the very legitimacy of a government.

Threatening government's legitimacy, he explained, was the troubling fact that since 1977, 20 persons condemned to Illinois' death row had been exonerated in postconviction innocence proceedings. It is that, more than anything, that today makes Illinois the 2d of the country's 5 most populous states to move into the abolitionist column. (By turning blue on the map below (credit), Illinois joins a Midwestern consensus that spreads over to Iowa and up to North Dakota and Michigan.) Said Quinn of the wrongful capital convictions:

To say that this is unacceptable does not even begin to express the profound regret and shame we, as a society, must bear for these failures of justice.

He questioned claims that capital punishment has a deterrent effect, and further stated that

the enormous sums expended by the state in maintaining a death penalty system would be better spent on preventing crime and assisting victims’ families in overcoming their pain and grief.

Quinn, a Catholic who made the announcement on Ash Wednesday, drew support from a quote the late Joseph Bernardin, long Cardinal of Chicago's archdiocese. He expressed thanks for guidance from others -- "prosecutors, judges, elected officials, religious leaders from around the world, families of murder victims, people on death row who were exonerated and ordinary citizens" -- whom he did not identify by name.

Names of at least 3 persons jump to the mind amid this fundamental change in the governance of this 'Grrl's birth state. Recently retired U.S. Supreme Court Justice John Paul Stevens, who often criticized the administration of capital punishment in appearances before lawyers in his native Chicago, and whose recent New York Review of Books essay made points echoedin Quinn's statement. Professor Larry Marshall, who spearheaded innocence cases during his long tenure at Northwestern University School of Law (from which Governor Quinn, Justice Stevens, my classmate Larry, and I all received J.D.s). And the late U.S. District Judge Prentice H. Marshall, who spoke against the death penalty at a commemoration of Haymarket I attended while clerking for him years ago. One imagines each would agree with the words with which the governor concluded today:

... I firmly believe that we are taking an important step forward in our history as Illinois joins the 15 other states and many nations of the world that have abolished the death penalty.

US Court (11th Cir.) Reinstates ATS and TPVA Claims of Columbian Children Whose Labor Organizer Fathers Were Killed by Paramilitary Hit Squads

February 28, 2011

US Court Reinstates ATS and TPVA Claims of Columbian Children Whose Labor Organizer Fathers Were Killed by Paramilitary Hit Squads

The U.S. Court of Appeals for the Eleventh Circuit recently reinstated the claims of the children of three murdered union leaders in Columbia under the Alien Tort Statute (ATS) and the Torture Victim Protection Act (TVPA) (both found in 28 USC sec. 1350) in the case of Locarno Baloco v. Drummond Co., No. 09-16216. The children are seeking damages for emotional harm, loss of companionship and financial support. The U.S. District Court previously had dismissed the case for lack of standing.

The plaintiffs sued the mining firm, Drummond Co., and other related parties after their fathers were pulled off a Drummond bus and murdered by paramilitary soldiers in 2001. The victims were all union leaders involved in organizing Drummond employees in Colombia, where the plaintiffs asserted there exists a “long history of trade union violence.” Plaintiffs allege that Drummond paid members of the United Self-Defense Forces of Colombia—a paramilitary group commonly referred to as the AUC—to carry out the murders in order to facilitate the downfall of the union.

The standing doctrine is derived from Article III of the U.S. Constitution, which requires that plaintiffs present an actual "case or controversy" to invoke the jurisdiction of the courts. Standing requires a plaintiff to demonstrate (1) injury, (2) caused by the defendant, and (3) redressibility. In this case, the court found that loss of a parent was clearly an “injury-in-fact,” the allegations of murder-for-hire provided a connection between that injury and the defendants, and, although monetary damages are an imperfect substitute for loss of a loved one, such awards are viewed as adequately redressing the injury for purposes of standing.

The court then went on to address the statutory requirements of the ATS and the TVPA. The court noted that the ATS gives U.S. courts jurisdiction over violations of established international norms.

In this case, the court stated that the plaintiffs alleged an “intricate and vindictive plot, orchestrated by the defendants, that ultimately led to the assassination of the children's fathers,” which, if true, “establishes a violation of international law sufficient for purposes of triggering ATS liability.”

With respect to the TPVA, the court stated that the statute “provides that the perpetrator of an extrajudicial killing can be held liable for ‘damages to the individual's legal representative, or to any person who may be a claimant in an action for wrongful death.” The plaintiffs submitted evidence to show that under Columbian law, the children are “legal beneficiaries” of their parents, entitling them to sue for their personal damages. The court thus held that they had standing to sue under the TVPA, reversing the lower court.

To read the full text of the case, click here.

(cgb)

Reforming the United Nations: Lessons Learned

United Nations, Human Rights, Global Change, Democracy Promotion, International Relations

Ted Piccone, Senior Fellow and Deputy Director, Foreign Policy

House Committee on Foreign Affairs

M

ARCH 03, 2011 —

In testimony before the U.S. House Committee on Foreign Affairs, Ted Piccone discusses how constructive U.S. engagement at the United Nations serves U.S. interests in international peace, security and democracy. Piccone focuses on key issues of human rights and UN reform, outlining how the United States can best influence outcomes that support its fundamental goals.

U.S. Secretary of State Hillary Clinton listens to a journalist's question during a news conference after her speech at the United Nations Human Rights Council in Geneva February 28, 2011.

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Reuters - Denis Balibouse

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My name is Ted Piccone. I am a senior fellow and deputy director for Foreign Policy at the Brookings Institution, a think tank devoted for nearly a century to independent research and analysis on public policy issues. The views expressed in this testimony are my own and do not represent any official position of Brookings.

For today’s hearing, I would like to focus my comments on the key question of whether U.S. engagement at the United Nations, especially on issues of human rights, is worth continuing and how we can best influence outcomes that support our fundamental goals of advancing international peace, security, democracy and human rights, a longstanding bipartisan tradition.

I come to this question from nearly two decades of experience as a senior foreign policy advisor in the Clinton administration, as a leader of a nongovernmental organization promoting international cooperation for democracy and human rights, and as a researcher studying the international community’s role in protecting human rights at the local level. Since 2003, I have been deeply engaged in examining what role the United States and other governments play in promoting human rights and democracy internationally, particularly through the United Nations and the Community of Democracies. Most recently, I completed an 18-month study last October on the contribution of the UN’s independent experts on human rights to protecting universal values at the national level.

As a student of international organizations, my first rather obvious observation is to note that the United Nations is an instrument of its member states which ultimately control its actions. Therefore, when we talk of the “United Nations,” I try to distinguish between actions controlled by individual sovereign governments, acting alone or collectively, and decisions taken by the UN bureaucracy. As we know, it is the member states that in the end make the place operate as it does. This leads one to recognize quickly that the institution is limited in what it can do and is imperfect. It can certainly, however, be made better. I applaud the Committee for its efforts to consider how best to do that.

I appreciate the frustration that Members of Congress feel toward the United Nations given our longstanding support and investment in its work and the shared desire to ensure our tax dollars are used effectively and efficiently. I also recognize that governments often have competing interests and therefore must engage in the hard labor of negotiation and compromise to get anything done. In such an environment, the United States doesn’t always get its way. But more often than not, with the right style of leadership, it has a proven track record of leading the institution toward effective results that improve the lives of millions of people around the world. As one measure of how the UN serves U.S. interests, I would point to the UN’s role in reconstruction of Iraq and Afghanistan. I can think of no better way to honor our troops’ sacrifice than to ensure that we leave behind effective institutions that will help these societies to heal and move toward a healthier future. The United Nations helps us do that and at a cost much less than if we had to do it alone. Our contribution to the United Nations amounts to only one-tenth of one percent of the federal budget. Given all that the United Nations does around the world to feed people, support elections, keep the peace and shelter refugees, that is a good return for the dollar.

I also want to note at the outset that, according to various polls, the United Nations is viewed favorably by publics in most countries around the world, including by the American people. This means the United Nations can serve as a respected global platform for a range of activities that serve U.S. interests, from peacekeeping and counterterrorism activities, to humanitarian assistance, development projects and human rights promotion. It gives us access and influence we would not necessarily have if we acted alone and helps us share the burden of maintaining international peace in ways that are of direct benefit to the U.S. taxpayer.

You are familiar with the data on the cost efficiencies of UN peacekeeping operations, such as the GAO study that shows it would have cost the United States eight times as much as it cost the UN to respond to the earthquake disaster in Haiti last year. Let me give a similar example from the field of democracy promotion, a topic of particular interest at the moment. In 2005, with the leadership of President Bush, the United States succeeded in establishing a new UN Democracy Fund to support civil society’s efforts to build democracy and promote human rights at the grassroots level. In the first five years of operation, the United States’ cumulative contribution of $33.3 million has leveraged an additional $88 million in donations from a wide variety of countries such as India, Qatar, Sweden, Japan, Korea, Romania, Ecuador and Israel. Among other things, this fund has made grants of nearly $19 million to civil society groups throughout the Arab world for projects to promote women’s rights in Egypt and Yemen, youth empowerment in Lebanon and Jordan and parliamentarian capacity in Bahrain. This is precisely the kind of value added the UN can provide that serves our interests in fostering credible democratic transitions in that part of the world.

The UN Human Rights System

Ever since Eleanor Roosevelt led the campaign for adoption of the Universal Declaration of Human Rights, the United Nations has been instrumental in translating those rights into practice. Despite years of ideological rifts and Cold War polemics, the international community, with U.S. leadership, has built a solid foundation for elaborating universal norms, monitoring behavior, assisting victims and holding abusers accountable. While the Human Rights Council is the principal political forum for considering these issues, this system goes far beyond the debating halls in Geneva and is increasingly being mainstreamed throughout the UN.

Condemning bad human rights behavior by states is important to do. But when evaluating the performance of the Human Rights Council, I encourage the Committee to look beyond the traditional condemnatory resolutions to what the United Nations does to promote human rights more broadly and around the globe. For example, the Office of the High Commissioner for Human Rights, the 20-plus field offices that serve as human rights experts on the ground and more than thirty additional human rights advisers and representatives to peacekeeping missions and country teams, the nine treaty bodies and implementing committees that monitor violations and take testimony from victims, the 41 independent experts mandated by the Human Rights Council to investigate rights abuses and prod states to correct them, the voluntary funds that provide direct support to victims of torture and slavery, the international criminal tribunals – these all serve as reinforcing building blocks for a global support system that seeks to prevent violations, protect victims, hold violators to account, and help states respect and implement international norms. These activities all serve the UN’s core mission of defending universal rights in accordance with its Charter, a point reinforced by leaders at the World Summit in 2005, and should not be dismissed as “indirect activities” that can be spun off from the core budget and subject to the vagaries of voluntary funding.

Human rights as the third pillar of the UN system, which great Americans like Eleanor Roosevelt and Wendell Willkie helped create, is, in fact, starved for support. According to the Office of the High Commissioner for Human Rights (OHCHR), the proportion of the overall UN regular budget devoted to human rights is just 2.8% of the total 2010-11 biennium budget. While this level is actually higher than five years ago, we are still trying to do human rights on the cheap. The results, not surprisingly, fall way short of addressing meeting current needs. Given the bipartisan consensus on the importance of promoting democracy and human rights to our national security, and the high value that victims of abuse place on the direct assistance the UN system provides to them, we should actually be trying to increase our investments in these cost-effective instruments, rather than trying to weaken them.

The Human Rights Council

I now want to turn the Committee’s attention to the Human Rights Council and try to analyze, despite its many imperfections, what works and doesn’t work and why U.S. engagement makes a difference for human rights defenders and victims who count on us to play a leadership role. I want to be clear I do not look at the Council with rose-colored glasses – a lot that goes on in Geneva is downright offensive. But I feel strongly that to abandon the field to adversaries like Cuba, Algeria and China would be an unconscionable act of betrayal of victims around the world who depend on the UN, and U.S. leadership, for their protection.

As I watched the General Assembly’s negotiations to create the Council in 2005 and 2006, it was hard to understand why the United States took a combative approach of isolating itself from the bargaining table rather than shaping a better outcome. It even went so far as to support a guaranteed seat for the five permanent Security Council members despite China’s and Russia’s dubious human rights credentials. After voting with just three other states against the final resolution, the United States chose to withdraw from the Council in its critical formative years, leaving a vacuum that was quickly filled by such countries as Musharaff’s Pakistan and Mubarak’s Egypt. Israel was left without a traditional ally as it faced five special sessions while the United States was absent. Since the United States joined the Council in June 2009, Israel has been the subject of only one special session.

Reducing the disproportionate focus on Israel is just one example of the impact that constructive U.S. engagement has had in turning things around. The Obama Administration has rolled up its sleeves and worked overtime to put in place an effective diplomatic strategy that has led to greater country scrutiny. Most notably, U.S. leadership helped pave the way for the consensus resolution condemning Muammar el-Gaddafi’s actions and demanding Libya be removed from the Council, an unprecedented step of condemnation. This is the kind of tangible progress that can only be achieved by direct engagement in the hand-to-hand diplomatic contest taking place in Geneva. The lesson learned is clear – cutting and running only allows our adversaries more room to control the results while direct participation protects and advances our interests and those of our allies.

Membership

According to the resolution establishing the Council, it is to be composed of states that uphold the highest standards of human rights; candidates are to make commitments demonstrating how they contribute to this goal and are then elected by the General Assembly through regional slates. A member committing gross and systematic violations of human rights may be removed from the Council upon a two-thirds vote of the General Assembly. States may serve for a maximum of six years before rotating off, meaning that governments like Cuba, China and Pakistan no longer have a semi-permanent seat as they did in the past.

While much attention is paid to the unfortunate fact that states that routinely violate human rights are elected to the Council, there is another, more positive side of the story that often gets missed. In every case when regional slates have been competitive, i.e., more candidates than open slots, rights-abusing candidates have lost. Competitive slates led to defeats of Venezuela (2006), Iran (2006), Belarus (2007), Sri Lanka (2008) and Azerbaijan (2009). And thanks to a vigorous but quiet U.S. campaign, Iran was forced to withdraw as a candidate for election to the Council in 2010. I know from personal experience of working with human rights advocates in those countries and knocking on doors at UN missions in New York that this is an effective tool for holding governments accountable to their obligations to uphold human rights. It is critical that the United States remain engaged in this effort to enlist states with better rights records to run for a seat and to defeat states with bad records. It is also essential that competitive slates become the norm.

While it helps to keep some of these governments off the Council, there are still too many members of the Council that seek to weaken the UN’s human rights mechanisms in the name of protecting national sovereignty. One way to address this problem, in addition to more competitive slates, is to lean on the surprisingly high number of democratic states that do not carry their weight at the Council. Governments like Indonesia, India, South Africa, Brazil and the Philippines routinely vote in ways that undermine country scrutiny, weaken norms or threaten the independence of the Special Procedures. Getting these states to use their voice and vote at the UN in more constructive ways should be a key priority for the United States which has close relations with these governments and the unique leadership prowess to build these necessary cross regional coalitions. We can best pressure these states if we are working from within the Council. It would also be helpful if Congress could weigh in directly with their counterparts in these countries to remind them of their obligations as members of the Council to uphold the highest standards of human rights.

I can think of no more powerful tool for cleaning up the Council, however, than the unprecedented action the General Assembly took this week to expel Libya from the Council. This is a historic step, a shot across the bow of those states that believe they can get away with killing innocent civilians and still maintain their reputation in the international community. The support from states like Lebanon, Jordan, Egypt and Pakistan may herald a break in the rigid bloc voting in the Organization of Islamic Conference and the African Union against country scrutiny. As more states transition away from autocratic rule, it will be important that they become good citizens on other issues as well, both at the Human Rights Council and in other international institutions.

Country Scrutiny

Engagement by the United States as an active member of the Council since July 2009 has reversed a growing tendency to avoid country-specific scrutiny, despite the clear language of the Council’s mandate to address specific situations, including responding to human rights emergencies. Most recently, the Council quickly convened a special session to address the Libyan government’s attacks on civilians which resulted in the unprecedented recommendation that Libya be suspended from membership, a step the General Assembly quickly adopted by consensus just this Tuesday. In addition, the Council has taken up special scrutiny of urgent situations in Cote d’Ivoire, Guinea and Kyrgyzstan with strong U.S. endorsement. The United States also led efforts to ensure that Sudan stay on the Council’s agenda, despite Khartoum’s intense efforts to block scrutiny, and pushed hard for and won renewed mandates to monitor ongoing problems in North Korea, Burma, and Cambodia.

This work continues. As we speak, U.S. diplomats are working hard to get the Council to adopt a resolution establishing a Special Rapporteur to investigate human rights violations in Iran, as well as a Commission of Inquiry for abuses committed by the military regime in Burma. In pursuing these initiatives, the United States is reaching out beyond its traditional allies in Europe to other regional players like Zambia, Ghana, Argentina and Chile to build the cross-regional coalition needed to get the Council to act. When the votes are not there, the United States has adopted other creative techniques, like the joint statement by 55 countries criticizing the deplorable human rights abuses in Iran on the anniversary of the stolen 2009 election, or the special dialogue after the summer 2010 mass rape in the Democratic Republic of the Congo to discuss ways to prevent future sexual violence. These results were made possible because the United States has a seat at the table and uses it effectively.

It is worth noting that the Council’s work to monitor the behavior of member states occurs not just in special sessions and condemnatory resolutions but through other mechanisms on the Council’s agenda during the year. The Special Procedures, a collection of independent experts charged by the Council to monitor and report on a variety of human rights issues, carry out country visits that allow in-depth scrutiny of specific problem areas including torture, extrajudicial executions and violence against women. The Universal Periodic Review, a new mechanism created with the establishment of the Council, allows a systematic review of every single UN member state, something that was impossible under the old Commission.

Special Procedures

A critical yet underappreciated tool of the Human Rights Council are the independent experts, collectively known as the Special Procedures, who are appointed to investigate human rights issues and make recommendations for correcting problems. Based on an 18-month study of how these mechanisms work, I was able to demonstrate the factors that result in their direct and tangible impact at the national level. The influence of these experts derives from a combination of their independence as unpaid specialists serving in their personal capacity and their mandate from a high UN body, granting them special access to the highest levels of government and a unique vehicle for victims to be heard. Their country visits help human rights defenders mobilize advocacy, give voice to victims, call attention to problems and remedies, and influence state behavior. If we care about what the frontline activists on the ground say they need from the UN, then we should care about preserving these experts’ independence and providing the resources they need to do their work.

The main hurdle the Council’s experts face as they go about the hard work of spotlighting human rights problems is the lack of state cooperation in allowing country visits and responding to appeals to address specific cases. They also face increasing pressure from certain member states to constrain and intimidate them. As a member of the Council, the United States has played a key role in successfully pushing back against these attempts. As a proven resource and catalyst for advancing human rights, the Special Procedures deserve greater resources than they currently receive -- approximately $280,000 per mandate or only seven percent of total OHCHR spending.

My report on the Special Procedures, entitled Catalysts for Rights: The Unique Contribution of the UN’s Independent Experts, contains much more detail on the unique contribution this mechanism makes to protecting human rights around the world and includes recommendations for strengthening them further. I request that it be entered in the official record of this hearing.

Universal Periodic Review

A new feature of the Council is the Universal Periodic Review (UPR), which by the end of 2011 will have examined the human rights record of every member of the United Nations, including states like China, Cuba, and Iran, which had managed to evade scrutiny for years. While some of the reviews have no doubt been marred by a lack of real criticism by some member states, the United States has actively contributed with constructive and pointed criticism of states under review. Another positive feature of UPR is that it gives citizens an unprecedented opportunity to press their governments for change in an international forum that is now webcast around the world. Civil society groups provide frank and public input to the process, creating an unprecedented open record for debate. As one leading human rights defender from Nigeria told me, the UPR process has opened the doors to direct dialogue with the government on human rights issues for the first time ever. Activists from Colombia acknowledge that the UPR process has elevated human rights on the government’s agenda, an observation I heard in Indonesia and Morocco as well. The United States has led by example by using its UPR to reach out to civil and human rights groups around the country.

Some argue that the United States should not be subject to review by states that systematically violate their own citizens’ human rights. This logic is a disservice to our proud tradition of seeking an ever more perfect union, one which is open to criticism by others and with a long record of steady improvements in respect for rights. We should be proud of that record and continue to lead the world by example.

Promoting and Defending Human Rights Norms

The Human Rights Council is an important forum for promoting international norms for human rights, a tradition begun under the previous Commission through the negotiation of a series of international treaties that define standards and create mechanisms to enforce them. By the same token, without effective engagement by the United States and other rights-respecting countries, it can be used by rights abusers to weaken human rights norms in theory and practice.

In this regard, there has been growing alarm around the world about attempts by some states to stifle the rise of independent civil society and erode international standards. In response, the United States led the charge in September 2010 to win approval for a new UN monitor for freedom of association and assembly. Effective U.S. diplomacy obtained the mandate with broad, cross-regional support and despite objections from countries such as Cuba and China.

Effective U.S. diplomacy has also helped to blunt efforts to challenge freedom of expression by creating a global anti-blasphemy law under the rubric of “defamation of religions.” Before we joined the Council, these efforts were picking up steam; now it is uncertain that the sponsors can secure the votes to pass a defamation resolution in the Council. A committee set up to consider the creation of new blasphemy norms has been indefinitely postponed due to opposition led by Washington. In addition, the United States championed the establishment of a new working group of independent experts to prevent discrimination against women.

Focus on Israel

The Human Rights Council has a structural bias against Israel by having an open-ended item on its agenda on Israel’s occupation of Palestine, and many of its resolutions have unfairly criticized its actions without demanding similar scrutiny of violations by other actors like Hamas in Gaza. The United States works hard to defend Israel against such bias, often standing alone with its ally in UN debates in Geneva and New York, a prospect that would be more difficult if it were to withdraw from the body.

It is not logical, however, to jump from that bias to the conclusion that the United States should disengage from either the Council in particular or the UN in general. Indeed, Israel itself has not jumped to that conclusion. Rather, Israel is actively engaged throughout the UN system and that engagement has increased in recent years. Just last week, Israel was a co-sponsor of the resolution that the Human Rights Council adopted on Libya, and it has co-sponsored a number of other resolutions on both country-specific and thematic issues. It routinely participates in debates and dialogues on a range of issues at the Council and recently, with U.S. support, joined JUSCANZ, a consultative group of like-minded states. Israel also is active on a whole array of other issues from peacekeeping to development, serving on numerous UN bodies and committees including the Commission on the Status of Women (CSW), the Commission on Sustainable Development (CSD), and the United Nations Environment Programme (UNEP), to name just a few. Just recently, Israel decided to accede to UN Women, the new UN entity on gender equality and empowerment of women, and pledged close to a million dollars in dues.

Conclusion

As we know from the long history of our leadership at the United Nations, our hands-on engagement in all facets of the institution serves our interests, creates jobs at home, multiplies our leverage and spreads the cost of international peace and security to more countries. As we also know from more recent experience, the style of our leadership matters as much as the substance. When we throw up our hands and walk away in frustration, or expect exceptional treatment like withholding dues until reforms are instituted, we gain no friends, lose leverage with our allies, set bad precedents that could be used against us, and cede the floor to our adversaries. Instead, we should use our considerable influence as the world’s leading power, our strong voice and vote, as well as our veto in the Security Council, to prod other states to take action for reform or block bad decisions. We gain much more by using our leadership to cajole and persuade than by bullying and walking away.

In the short five years since the Council was created, we have seen two styles of U.S. leadership at play. One approach involved sitting on our hands and giving up, leaving human rights victims to fend for themselves and watching hard fought gains slip away. The other approach is to carry out a full court press to turn the tide against autocracy and toward freedom. We will not always win, and progress will be slow. To honor those Americans who have sacrificed for freedom, we must stay in the fight and continue to demand respect for the universal values we call our own.