On April 6, 1994, a Hutu militia, joined by the Hutu-dominated Rwandan Armed Forces, began a genocidal campaign that would result in the death of 800,000 Tutsi and “politically moderate Hutu” over the span of one hundred days. Despite the availability of extensive intelligence on the genocide, there was no call for action within the international community. Spearheading the campaign for apathy was the United States, which refused to refer to the situation in Rwanda as “genocide,” fearing that using that word would trigger obligations under the 1948 Convention on the Prevention and Punishment of the Crime of Genocide. Regarding whether the U.S. should intervene, former Senator Bob Dole stated, “I don’t think we have any national interest there . . . The Americans are out, and as far as I am concerned, in Rwanda, that ought to be the end of it.” The massacre in Rwanda, and later in the Balkans, serves as chilling and shameful reminders of the devastating effects of inaction by the international community. In Rwanda, the community of nations watched from afar what “would prove to be the fastest, most efficient killing spree of the twentieth century.”
In 1945, delegates to the United Nations Conference on International Organization in San Francisco debated and ultimately adopted the U.N. Charter, which reflected the close relationship between international security and international human rights. The Charter hardened the international communities commitment to “sav[ing] succeeding generations from the scourge of war” and “reaffirm[ed its] faith in fundamental human rights, the dignity and worth of the human person, [and] in the equal rights of men and women and of nations large and small.” Even in its earliest forms, however, the tension between the desire for universality and the interests of particular groups was apparent.
On June 26, 1945, at the final plenary session in San Francisco, President Harry S. Truman expressed the delegate’s genuine desire to craft an “international bill of rights, applicable to all the nations involved.” (emphasis added). To this end, Article 1 of the Charter lists among the purposes of the U.N. “[t]o achieve international cooperation in . . . promoting and encouraging respect for human rights and for fundamental freedoms.” Article 55 mandates that U.N. Member States promote “universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.” Consistent with this obligation, in Article 56 U.N. Member States pledge “to take joint and separate action in co-operation with the Organization for the achievement of” the purposes stated above.
The U.N. Charter leaves the notion of “human rights” undefined, but soon after it was formed, the U.N. began work on drafting an instrument enumerating basic human rights, whose culmination was the Universal Declaration of Human Rights (UDHR). Echoing the language of the Charter, the UDHR pledges U.N. members to “promot[e] . . . universal respect for and observance of human rights.” In addition, the UDHR recognizes a broad range of civil, political, and economic rights. The UDHR has a powerful moral focus and is a deeply profound document. At its introduction to the U.N. General Assembly, the President of the General Assembly described the UDHR thusly:
It is the first occasion in which the organized community of nations has made a deliberate declaration of human rights and fundamental freedoms, and it has the authority of the body of the United Nations as a whole, and millions of people, men, women, and children all over the world, many miles from Paris and New York, will turn for help, guidance, and inspiration to this document. [citation].
Although the UDHR was viewed by its framers as “a first step in a great evolutionary process” and has been hailed by commentators as a “ringing declaration that all human beings are born free and equal in dignity and rights,” the delegates agreed that it would have no binding authority over States. Some representatives of the Economic and Social Council (ECOSOC), which was charged under the U.N. Charter with the responsibility to promote human rights, initially expressed concern about the lack of enforcement provisions. But some Member states, particularly the U.S., remained adamant that the UDHR did “not purport to be a statement of law or legal obligation.”
Nevertheless, the U.N. Charter and the UDHR were envisaged as immediate precursors to an international bill of rights that would impose binding legal obligations upon States. It was not until the 1970s, however, that the international community, in two foundational covenants (the International Convention on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR)), effectively codified the UDHR as binding positive international law. But without meaningful enforcement mechanisms, the provisions within the ICCPR and ICESCR were rendered toothless, reflecting both the international communities desire to respond to the evils perpetrated by Nazi Germany, and the reluctance of states to acquiesce to legal obligations impinging on state sovereignty.
Initially, the U.N. Commission on Human Rights (UNCHR), established under the ECOSOC, was the principle mechanism concerned with the promotion and protection of human rights. But consistent with the lack of enforcement mechanisms, for the first two decades of its existence, the UNCHR did not have authorization to provide redress for human rights violations. In 1967, the ECOSOC authorized the UNCHR to analyze and conduct studies pertaining to human rights violations, but it provided neither guidelines nor procedures for considering the information it gathered. And because the communications and complaints remained confidential, the UNCHR was prohibited from referring to their substance.
In 1970, the ECOSOC provided the UNCHR with such procedures, instituted thematic guidelines that broadened the human rights issues the Commission could consider, and established mechanisms to address country-specific situations or issues in all parts of the world. The UNCHR, however, faced severe criticism because of its obsession with singling out Israel for condemnation. According to U.N. Watch, between 1946 and 2006, Israel was the target of 30 percent of the Commissions resolutions. In 2005 alone, the Commission adopted four resolutions against Israel and a combined total of four against all other states in the world. Then Secretary-General Kofi Annan lamented the Commissions “declining credibility and professionalism,” and noted that its actions cast “a shadow on the reputation of the United Nations system as a whole.”
In the face of such criticism, the General Assembly replaced the UNCHR with the Human Rights Council (HRC) on March 15, 2006. The HRC is different from the UNCHR in two important ways. First, the HRC was established as a subsidiary organ of the Assembly rather than operating as a subsidiary of the ECOSOC. Second, the HRC is smaller in size to the UNCHR (47 members compared to the UNCHR’s 53 members) and, more importantly, is elected directly by a majority vote of the Assembly. Council members are charged with “uphold[ing] the highest standards in the promotion and protection of human rights,” and to effectuate this responsibility, the Council is required to subject every country to universal periodic review of its human rights obligations.
Former Secretary-General Annan hailed the move from the UNCHR to the HRC as “a historical achievement” and proclaimed that it would bring about “a change in culture [to replace] the culture of confrontation and distrust, which pervaded the Commission in its final years, [by] a culture of cooperation and commitment, inspired by mature leadership.” Like the UNCHR, however, the HRC has had a mixed record. On the one hand, the HRC has called for action in response to some of the most egregious human rights violations (e.g., Darfur) and has barred nations from joining the Council because of poor human rights records (e.g., Belarus in 2005). On the other hand, the Council has continued to single out Israel for censure, and to illustrate its disapproval, the U.S. has repeatedly considered withdrawing its funding.
It is a trivially unnecessary statement that the need to halt crimes against humanity, genocide, and war crimes is widely recognized. As Thomas Buergenthal has noted, “[t]he idea that the protection of human rights knows no international boundaries and that the international community has an obligation to ensure that governments guarantee and protect human rights has gradually captured the imagination of mankind.” Although international human rights law is of relatively recent origin, the movement has developed significantly since the drafting of the U.N. Charter in 1945. The international community, however, is often too sluggish in its response to humanitarian crises, and it is increasingly clear that the international system is subject to a number of significant shortcomings. Without question, this is due to two institutional weaknesses in the human rights regime: (1) the vaunted status of state sovereignty and the principle of non-intervention; and (2) political will which determines, by its presence or absence, the international response to a foreign crisis.
Note: This article is Part One in a series of articles, entitled “Syria and ‘The Mantle of Leadership,'” produced by Of Politics and Men and exploring the international communities responsibility to both promote and protect human rights. A list of all articles in this series can be found in the Archives.