Edward Mortimer, CMG, public domain, UN Photos

Weak UN Human Rights Council can be Improved by Engaging Public in Developing World Democracies argues Campaign Chair

March 16, 2010 Sri Lanka Campaign Comments Off

Speaking at the 2nd Geneva Summit for Human Rights, Tolerance and Democracy, the Chair of the Sri Lanka Campaign, Edward Mortimer, made a strong plea for human rights activists to do more to engage the developing world democracies who currently define how the UN Human Rights Council operates.

Speaking of Sri Lanka he said: “A particularly flagrant example was last year’s special session on Sri Lanka, in which not only did the majority of Council members refuse to condemn the massive and indiscriminate killing of civilians that characterized the last phase of the war against the Tamil Tigers, but many of them even criticized the High Commissioner for a report in which she proposed an independent inquiry into war crimes committed by both sides. One can only ask why, if such an inquiry was justified in the case of Israel’s actions in Gaza a few months earlier – as I believe it was – the same principle was not applied to Sri Lanka.”

Panel on “Towards the 2011 Reform: Can the UN Human Rights Council Be Fixed?”
(Geneva, 9 March 2010)

Remarks by Edward Mortimer
[Senior Vice-President, Salzburg Global Seminar; formerly Chief Speechwriter and Director of Communications to UN Secretary-General Kofi Annan]

Good afternoon,

It’s a great honour for me to be invited to address this conference. I spent most of my journalistic career as an editorial writer and columnist rather than in war zones; and all of my UN career in the relative safety of UN headquarters in New York. All my life, I have been able to say and write what I wanted without being threatened with imprisonment, torture, or assassination. The only censorship I have had to face has been the self-censorship of over-cautious editors and bureaucrats, and I have never had to worry about any worse sanction than losing my job.

So, it’s a humbling experience for me to listen, at meetings like this, to a succession of very brave women and men, who have run terrible risks, and in some cases paid a terrible price, for exercising basic rights that people like me take for granted. It reminds me how privileged I am, and how grateful I should be for it.

So why am I on this platform? I suppose it’s because I was a member of Kofi Annan’s team in 2005, when the idea of a UN Human Rights Council was first put forward in his report, In Larger Freedom, and in 2006, when the General Assembly established the Council, and it held its first meetings. I certainly would not claim to be the creator of the Council, but I was, to use a well-worn phrase, present at its creation. I certainly feel I have some stake in it, and therefore in this discussion.

It is, of course, rather sad that, when the Council has not yet been in existence for four years, we are asking whether it can be “fixed”. The Council was established, after all, precisely because many people, including Kofi Annan, had come to the conclusion that its predecessor, the Commission on Human Rights, could not be fixed, and that something new and better was needed.

It is also rather depressing, for me at least, to read that one of the ways in which some people would like to fix it is by introducing universal membership. This proposal reminds me of the precise circumstances in which, exactly five years ago, the decision to propose the creation of a Human Rights Council was taken.

There were actually very few completely new ideas in Kofi Annan’s “In Larger Freedom report”, which was based mainly on two previous reports produced by independent panels that he had set up – the development part on the report of Jeff Sachs’s Millennium Project, and the peace and security part on the report of the High-Level Panel established in 2003, in the wake of the Iraq war.

That second report included proposals for reforming the UN itself, many of which were very good and were adopted more or less unchanged. But we all agreed that the recommendation on the Commission on Human Rights was about the weakest in the whole report, as the panel were not able to agree on anything better than to suggest universal membership of the Commission.

None of us could see how this proposal would in any way make the Commission more effective. On the contrary, we thought it would aggravate all the Commission’s worst features, making it in effect a replica of the General Assembly which would debate everything in a highly politicized context, either forcing through one-sided resolutions on the basis of bloc voting, or adopting a consensus rule which would ensure that only vacuous and extremely general resolutions would be passed.

We all said, “surely we can do better than this!” I think we were right then, and whatever the problems in the Council now I cannot believe that universal membership would be the right solution to them. That is a counsel of despair, and one might even say that the result would be a “Council of Despair”, because its message to the victims of human rights violations around the world would be “Abandon hope, all ye who enter here.”

I can’t remember now who first came up with the idea of a Human Rights Council. I think it may have been Louise Arbour, the High Commissioner at the time. Certainly, the idea of universal peer review came from her. But I do remember that Mark Malloch Brown – who had recently been brought in as the Secretary-General’s Chef de Cabinet, and was overseeing the process of producing his report – seized on the idea of a Council with great enthusiasm, because it helped us give an elegant thematic structure to the whole report – stressing that development, peace and security, and human rights were the three mutually reinforcing pillars of the whole UN system, none of which could be reliably secured if the other two were neglected; and therefore it made sense that each should have its own Council – the Security Council, ECOSOC, and the Human Rights Council.

Logically that implied that the Human Rights Council, like the other two, should be a “principal organ” of the UN, rather than a subsidiary organ of the General Assembly. But we knew that that would require an amendment of the Charter, with the whole process of a two-thirds majority in the GA and ratification by two thirds of the member states, including the five permanent members of the Security Council; and that therefore the member states might shy away from it, or they might agree on it but the amendment would never come into force. Which is why in the end we suggested that to start with it should be a subsidiary organ, but that in due course the member states might consider elevating it to the status of a principal organ. And I think that is why, or at least it’s one of the reasons why, the GA ended up writing the idea of a five-year review into the resolution that established the Council.

I see, however, that at the recent meeting of the “Reflection Group on the Strengthening of the Human Rights Council”, in Paris, the general view that emerged was that at this stage it is more important to consolidate the Council’s work in its present format; that a Charter amendment would still be very difficult to achieve – and debate about it might well poison the atmosphere of negotiations among member states; and that any effort to change the status of the Council should come only after “a better performance and clearer results” have been achieved. I can only agree with that conclusion, on all counts.

The question we have to ask ourselves is why the performance has not been better, and the results clearer, up to now.

I believe the Council has in fact been an improvement on the Commission in several respects; and it is certainly not true, as a former ambassador of Israel was quoted as saying at the time of the Goldstone report, that Kofi Annan regards its creation as the greatest mistake of his Secretary-Generalship. Mr. Annan has told me that he never said that and has authorised me to deny it publicly.

Also, I’m not sure it’s true that we imagined a “de-politicized” body. I don’t think we were that naïve. Human rights is, and always will be, a highly political issue, and governments are bound to take their general political interests into account when they approach it. What I would argue is that the reverse should also be true: that governments should always take human rights into account when formulating their general policies. And indeed, that is the real purpose of having an intergovernmental organ dealing with human rights at the heart of the UN system. So, let’s not blame the Council for being “political”. Let’s concentrate on the political content of its deliberations and decisions.

What we did hope was that, in the words of the General Assembly resolution establishing it, the Council would be “guided by the principles of universality, impartiality, objectivity and non-selectivity”. And I fear it would be hard to argue that it has fully lived up to that in the first four years of its activity. Too many of its decisions have been flagrantly selective, and too many votes have been guided, not by impartial concern for the victims of human rights violations wherever they can be objectively established to have happened, but by solidarity with other governments subjected to criticism – solidarity, that is, not with the oppressed but with the oppressors.

A particularly flagrant example was last year’s special session on Sri Lanka, in which not only did the majority of Council members refuse to condemn the massive and indiscriminate killing of civilians that characterized the last phase of the war against the Tamil Tigers, but many of them even criticized the High Commissioner for a report in which she proposed an independent inquiry into war crimes committed by both sides. One can only ask why, if such an inquiry was justified in the case of Israel’s actions in Gaza a few months earlier – as I believe it was – the same principle was not applied to Sri Lanka.

I am not convinced that the answer lies in the structure or even the composition of the Council. It’s true that Kofi Annan originally suggested a smaller body, and one whose members would be elected by a two-thirds majority of the General Assembly, rather than a simple majority as was eventually decided. But whatever its size, the Council needs to be broadly representative of UN members. Otherwise, there is no point in it.

The fact is that some of the most egregious violators have failed to win election in a secret ballot. No government’s human rights record is perfect – that is why we need the universal periodic review. But I think by most criteria one could describe the majority of Council members as democracies. And they can sometimes be shamed by strong leadership into behaving better. That happened at the end of 2006 when Kofi Annan publicly warned them not to ignore the tragedy of Darfur, and it happened last spring when Justice Goldstone and President Uhomoibhi between them were able to change the terms of reference of the inquiry into violations in Gaza.

The problem, as I see it, is that countries’ behaviour in the Council, and in the UN generally, often fails to reflect the democratic values that they uphold in domestic affairs. This is because, in the absence of strong public debate at home about the merits of the issues considered at the UN, governments and their representatives are more sensitive to pressure from each other than to pressure from public opinion. Thus, too often, human rights issues are framed as a contest between North and South, in which “southern” governments can present themselves as being on the side of the oppressed, even when in practice they are themselves the main oppressors. And once the contest is framed like that, the North cannot win – (a) because it is numerically in the minority and (b) because, of course, “northern” governments themselves are far from having a consistent record on human rights, let alone a blameless one.

So, the task of all of us who care about human rights is to frame the debate differently, and above all to take the case to public opinion within the many democracies of the developing world. The governments of, for example, India, South Africa, or practically any Latin American country, should be held to account by their own people if they condone gross human rights violations in other developing countries, because the people should know that the impartial and universal defence of human rights is their own best safeguard against ever suffering similar abuses themselves.

When we see positive change in governments’ behaviour at the UN, it generally reflects change within the societies that they represent. And therefore, I believe that the struggle for improvement in the Human Rights Council is one that needs to be pursued not only through conventional intergovernmental diplomacy but also through political work at the level of civil society. It is through what people like us in this room say and do, not only at meetings in Geneva, but through constant and consistent advocacy within our own societies and in our interaction with each other’s societies. We must take the debate to the people.