Subcommittee on Africa, Global Human Rights and International Operations Prepared Statement of Rep. Christopher H. Smith, Chairman The UN Human Rights Council: Reform or Regression? September 6, 2006
I am pleased to convene this hearing of the Subcommittee on Africa, Global Human Rights and International Operations. Today we will be examining issues related to the new United Nations Human Rights Council, which held its first session from the 19th to the 30th of June, this year, and two special sessions in July and August, respectively. On April 19, 2005, this subcommittee held a hearing on the Council's predecessor, the UN Commission on Human Rights. In my statement at that hearing, I noted that the Commission had come under increasing criticism from numerous quarters. A UN High-Level Panel concluded in December 2004 that the Commission's capacity to fulfill its mandate had been undermined by eroding credibility and professionalism. The Panel pointed out that States with a poor human rights record cannot set the standard for human rights. UN Secretary General Kofi Annan later agreed with this assessment, and he told the Commission that "unless we re-make our human rights machinery, we may be unable to renew public confidence in the United Nations itself." On March 15, 2006, the UN General Assembly adopted a resolution that replaces the discredited Commission with the Human Rights Council. The General Assembly gave the Council the mandate to promote "universal respect for the protection of all human rights and fundamental freedoms for all, without distinction of any kind and in a fair and equal manner," and to "address situations of violations of human rights, including gross and systematic violations." The United States was one of four countries to vote against the resolution. The U.S.'s opposition was based, among other things, on the absence of a stronger mechanism to maintain a credible membership, and thus the lack of assurance that the Council would be an improvement over its predecessor. In my public statement issued immediately after the resolution's adoption, I expressed my deep disappointment and dismay that the General Assembly had settled for a weak and deeply flawed replacement for the Commission. The flaws I noted included the membership concerns expressed by the United States, as well as the lack of protection for Israel from unfair and biased special sessions. I said then and I repeat today - victims of human rights abuse deserve better. Another potentially serious flaw that I have noted is the Council's mandate to promote follow-up to the goals and commitments related to the promotion and protection of human rights emanating from United Nations conferences and summits. My concern

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is based in large part on the serious distinction that exists between human rights treaties and consensus documents resulting from UN conferences. Treaties are negotiated by UN member states, and they may or may not be subsequently ratified through the established approval process of each country. Those states that do ratify a treaty thereby agree to be bound by its provisions under international law. UN conference documents, on the other hand, are the result of policy debates and are agreed to by consensus, plus reservations tacked on by individual states, at the end of the conference. These consensus documents are not negotiated as legally-binding instruments and are not subject to a ratification process. They do not have, and should not have, the same legal authority as treaties. For this reason, the UN General Assembly was extremely misguided when it assigned the Human Rights Council the task of promoting these conference commitments. By doing so, it threatens to diminish the moral and legal persuasiveness of internationally-recognized human rights by equating them with mere policy directives. Even more troubling, the resolution calls for the promotion of human rights "emanating" from the UN conferences. The very word "emanating" implies that a characteristic or action need not be clearly defined in a conference document in order for the Council to undertake its promotion. This, together with the fact that these conference documents are consensus documents, raises the specter that any number of characteristics or actions may slide their way into the international human rights framework without the ratified agreement of countries who would then be pressured to abide by their provisions. Such a gaping loophole in the international legal process is antithetical to the democratic ideals of our own country and to the principles on which the United Nations is based. This potential for the gross abuse of the United Nations human rights mechanisms is already being realized with respect to the issue of abortion. For several years now, the Committee on the Elimination of Discrimination Against Women, the Human Rights Committee and the Committee on Economic, Social and Cultural Rights have been pressuring governments to legalize abortion even though no UN human rights treaty addresses the issue. These and other treaty bodies pursue this ideological agenda while ignoring the fact that abortion exploits women and is an act of violence against children. Just two weeks ago, the Committee on the Elimination of Discrimination against Women published "concerns" about the illegality of abortion in Chile, Mauritius and the Philippines. In October 2005, the Human Rights Committee decided in a case from Peru presented to it under the ICCPR Optional Protocol that denying access to an abortion violates women's human rights. It made no reference to the unborn child's right to life. Even the Committee against Torture, which is responsible for monitoring compliance with the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, is joining this assault on the unborn. In February of this year, pursuant to its review of Peru's compliance with the Convention, the Committee concluded that Peru's "omission" in failing to provide abortion constitutes "cruel and inhuman acts." The Committee has no basis in the Convention for challenging a state party's refusal to provide an abortion. However, if one were to concede that the Committee is warranted in examining the issue of abortion under Article 16, then the Committee should have no choice but to conclude that the chemical poisoning and

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dismemberment of the fragile, sensitive body of an unborn child is itself a "cruel and inhuman act." In many of their decisions, these treaty bodies do not refer to the text of the treaty they are supposed to be monitoring, but to documents adopted at UN conferences. They do so out of necessity, since the countries they are pressuring have never agreed to legalize or provide for the destruction of the life of the unborn in the instruments that they have ratified. Based on this entrenched and growing manipulation of the UN human rights mechanisms to promote abortion, there is reason to believe that the Human Rights Council will also be co-opted into promoting ideological agendas at variance with the established human rights norms of the international community. The skepticism generally about the ability of the Human Rights Council to promote human rights and address human rights violations, and to do so in a fair and equal manner, has increased with the election of its members and subsequent activity. Although the General Assembly resolution states that its members must take into account the contribution of candidates to the promotion and protection of human rights, such notorious human rights abusers as China, Cuba and Saudi Arabia were elected to the Council. In its first session, the Council issued only one country-specific resolution. It targeted Israel, and called for the issue of Israel and the Occupied Territories to be incorporated into subsequent sessions. Immediately following the conclusion of the session, the Council called for an emergency special session the following week, focusing solely on Israel. And last month, a second special session was held, again focusing solely on Israel. Since it began its work less than three months ago, the Human Rights Council has issued three country-specific resolutions, all of them targeting just one country. Such egregious and long-time human rights abusers as China, Cuba, Burma, Iran, North Korea, Zimbabwe and Belarus have not even been mentioned on the agenda. The Council is ignoring the genocide in Darfur, where human rights violations over the past three years are reported to have resulted in 3.5 million people suffering from hunger, 2.5 million people displaced by the violence, and 400,000 people dead. Not only has the Council expended all its efforts on Israel, but it has also failed to do so in a "fair and equal manner." The Council has made no reference to the roles of Hamas, Hezbollah, Syria and Iran in the creation of the situations concerned or to the harm inflicted by parties other than Israel. Thus, the early evidence indicates that the Council has already been co-opted by an extremely biased and narrow agenda. This development is of extreme concern, both for the international human rights community and for those of us convinced of the need for reform at the United Nations. The Human Rights Council, and through it the United Nations as a whole, have a vital role to play in the promotion and protection of human rights. It is critical that the United States and other human rights defenders do everything, and as quickly as possible, to reverse the direction in which the Council is heading.

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I therefore have convened this hearing to examine what needs to be done to prevent the Council from repeating or further regressing from the failures of the Commission on Human Rights, as well as to support any signs of improvement over its predecessor. The Subcommittee is interested in exploring how the Council is being assisted by the United States and others to fulfill its mandate, the areas in which further assistance and reform is required, and the standards that the Human Rights Council will need to meet in order to qualify as a credible international human rights body. In his address in April 2005 to the Commission on Human Rights, the UN Secretary-General argued for a new, reformed human rights council on the basis that it would "allow for a more comprehensive and objective approach. And ultimately it would produce more effective assistance and protections, and that is the yardstick by which we should be measured." It is not too soon to start measuring the Council by this yardstick, and we look forward to hearing the testimony of our distinguished witnesses that will provide us with the means for such an evaluation.

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