Australia was not the only country to waltz onto the UN Human Rights Council last week with only cursory scrutiny of its human rights record.
In fact, most of the Council’s current and incoming members have failed in some way to live up to the 'highest standards in the promotion and protection of human rights' expected of them by the UN General Assembly resolution that established the body.
At any given time almost one quarter of the UN’s 193 member states are sitting on the 47-member Human Rights Council in Geneva. Inevitably this means countries with patchy human rights records are included. Some Council members have rightly attracted more criticism than others. They include Saudi Arabia, the Philippines, Burundi and incoming member the Democratic Republic of Congo. However, the idea that some countries deserve to be on the Council more than others is problematic.
If the UN Human Rights Council were to exclude members based on their human rights records, it would likely have many empty seats to fill. Instead, the Council, like much of the UN, operates on more pragmatic terms, asking member states to make vague and often unfulfilled commitments to do better. Indeed, the Council perhaps works, in its own less-than-perfect way, in part because it does include all UN member states.
The General Assembly does have the power to exclude Council members for 'gross and systemic violations' by a two-thirds vote. This is potentially relevant to current member Burundi, which was recently referred to the International Criminal Court for investigation into possible crimes against humanity by a Human Rights Council Commission of Inquiry. Burundi is one of only three countries subject to ongoing Commissions of Inquiry, alongside Myanmar and Syria. However Burundi pre-empted the possibility of an ICC referral by withdrawing from the Rome Statute in October 2016. Unlike the HRC, which still engages the vast majority of member states, only 124 countries remain members of the ICC.
While the Council’s inclusive approach may in part reflect its softly-softly focus on allowing states to make their own voluntary commitments to improve, it doesn’t mean the Council entirely lacks bite.
Like much of the UN, the Human Rights Council is often greater than the sum of its parts. This is particularly true of its Special Rapporteurs. Some of the UN’s most damning human rights reports come from these rapporteurs, who often speak with considerably more freedom than UN member states or representatives of the UN secretariat. This was the case with the UN special rapporteur on torture, who has reported that Australia’s offshore detention policies 'violated the rights of migrants and asylum seekers (including children) to be free from torture or cruel, inhuman or degrading treatment.'
Delivering a lecture on Australia’s involvement in the Council last week, Professor Hillary Charlesworth reflected that member states tend to take the peer-review process of the Council more seriously than expert reviews, which are often easily dismissed. Australia’s refugee and immigration policies received considerable criticism from our peers at the last such review in 2015. Even China undergoes the universal periodic review process, although it did ban the webcast.
However, the lack of competition at this year’s elections may have seen one of the Council’s functions fall down. The Global Centre for the Responsibility to Protect said that the 'clean slate elections' in four of the five regional groups 'threaten(ed) to undermine the credibility and effectiveness of the (Council).' For example, the Democratic Republic of Congo was elected alongside Australia despite recent discoveries of 80 mass graves in the West African country. Russia is one of the few countries to have been voted off the Human Rights Council in recent years. However three other permanent members of the Security Council (and major arms exporters), the UK, US and China, are current Human Rights Council members.
In some ways the Council is like a pre-school in that its checks and balances are more about effort and commitment to improve than about actual performance. In other words, members shouldn’t be excluded for past performance. But where the Council has failed in this mission is not in allowing member states with problematic records to sit on the Council, but in allowing them to go backwards. Saudi Arabia has begun its indiscriminate attacks on civilians in Yemen while sitting on the Council. Human rights have also been deteriorating swiftly in the Philippines, Egypt and Venezuela, all current members.
Suggesting that some countries deserve to be on the Council more than others may also indirectly support an exceptionalist approach to human rights. Charlesworth says Australia’s exceptionalist approach means we see human rights as being for other countries, not Australia.
It also implies that there is a model member, which many in Australian civil society would argue does not apply here. Spain, also newly elected to the Council, may have been considered one such model member. Indeed, as Charlesworth pointed out, France withdrew its candidacy for the Council perhaps anticipating a loss to Spain and Australia in the Western European and others Group. Yet in the short interim, Spain’s violent response to Catalonians attempting to vote became an international human rights embarrassment.