US President Joe Biden’s administration has sought to differentiate itself from its predecessor in many arenas, foreign policy included. Yet it has endorsed a self-evident truth acknowledged by former US president Donald Trump’s administration, and indeed that of former US president Barack Obama: something is broken at the UN Human Rights Council. For too long, a body intended to impartially promote human rights has instead granted legitimacy and impunity to some of the world’s greatest abusers. By moving to rejoin the council, the Biden administration must now push for significant reforms that promote accountability for major violators, end the disproportionate targeting of Israel and shore up credibility for a body that has too-often failed the most vulnerable.
The Trump administration decided to withdraw from the UNHRC in 2018, calling it “a hypocritical and self-serving organization that makes a mockery of human rights.” While recognizing its faults, the Biden team is instead seeking a seat at the table “to ensure that this important body lives up to its purpose.”
The council indeed has a laudable founding mission. It was designed to “address situations of violations of human rights, including gross and systematic violations,” and to do so with, inter alia, “impartiality, objectivity and non-selectivity.” Candidates to the UNHRC should have their contribution to “the promotion and protection of human rights” taken into account, while elected members “shall uphold the highest standards in the promotion and protection of human rights.” A member that “commits gross and systematic violations” may be suspended, following a vote.
Sadly, the council’s function has rarely come close to matching aspiration. Indeed, many observers believe it has made a mockery of its founding ethos. The 15 countries elected to the UNHRC this past October include a number that are anything but icons in the protection and advancement of fundamental human rights. Among these are China, which both the Trump and Biden administrations determined has committed genocide against Uighur Muslims in Xinjiang; Russia, which independent UN experts accused of poisoning opposition leader Alexei Navalny and Cuba, run by a government that continues to repress the fundamental freedoms of its own citizens. They joined other serial human rights violators already on the 47-member council, most notably Venezuela, whose inclusion speaks volumes about the delta between the council’s hyperbole and what it really represents.
The council’s secret ballot elections incentivize this obscene status quo, empowering UN General Assembly members to privately vote for candidates without having to publicly justify their support. They feed into an opaque system that has allowed some of the world’s most heinous regimes to sanctimoniously assume an undeserved perch at the UNHRC, from which they work to undermine the Council’s founding mission.
A favored target of this coterie is Israel, the only country with a dedicated, permanent agenda item at the council. This mechanism ensures that Israel’s rights record is examined in a one-sided manner at every council session. But the obsession does not end there. According to the Geneva-based monitoring group UN Watch, Israel has racked up more condemnatory UNHRC resolutions than any other country – a total of 90 to date. For comparison, the mass-murdering Syrian regime, whose brutality sparked a devastating conflict that is estimated to have killed more than 380,000 people since 2011, has faced 35 such resolutions. North Korea was subject to 13, and Iran only 10. Countries like China, Russia, Saudi Arabia, Turkey, Pakistan and Cuba have thus far not attracted a single similar condemnation.
This is not to say that criticism of Israel is per se invalid. But such a dramatic discrepancy can be explained only by a systemic bias against Israel, which undermines the council’s credibility writ large.
In a 1940 address, former Supreme Court justice and US attorney-general Robert Jackson aptly described “the most dangerous power of the prosecutor: that he will pick people that he thinks he should get, rather than pick cases that need to be prosecuted.” There is an analogous danger inherent in the power of the UNHRC to “pick” the states it chooses criticize. It is this power that the Council so flagrantly abuses, and that the Biden administration, in seeking to reengage with the body, must strive to redirect. Like a credible prosecutor, the facts of human rights violations must dictate the Council’s priorities, not the desire to target a specific state. Unless the council alters its distorted prioritizing of effort, its function will continue to be viewed as a manifestation of political expedience. In contrast, a focus on the most egregious violators of human rights will enhance both its legitimacy and efficacy.
A critical first step in this effort must be for the Biden administration to work to eliminate the UNHRC’s secret ballot election system. By casting votes on the record, UN General Assembly members will have to face public accountability for supporting the ascent of notorious human rights abusers to the council. The administration should also push to scrap the council’s special agenda item targeting Israel, which is perhaps the most glaring illustration of its selective – if not vindictive – enforcement. There is no valid reason for Israel to be thus singled out. There is, of course, an invalid reason: the council’s sub rosa motivation to use its authority to constantly undermine the legitimacy of the State of Israel.
Biden’s team, like prior administrations, recognizes that the UNHRC has fallen short of its founding mission. It has chosen engaging over ostracizing as the tactic to positively influence the council. The administration must now leverage this power to ensure the UNHRC undergoes substantial structural reform. Nothing short of this will come close to aligning the aspiration of advancing human rights with reality.
The writer, a retired army lieutenant colonel and former military attorney and intelligence officer, is the Gary A. Kuiper Distinguished Professor of National Security Law and Director of the Center for International Legal Practice and National Security at South Texas College of Law, Houston, and a distinguished Fellow at the Jewish Institute for National Security of America Gemunder Center for Defense & Strategy.