Jeffrey L. Bleich, Special Counsel to President Barack Obama in the White House, moderated a discussion on human rights in the new administration with four panelists, as part of the 2009 ABA Section of International Law Spring Meeting, held 14-18 April 2009 in Washington, D.C. The panelists provided reflections and recommendations with respect to the Durban Review Conference, the Human Rights Council, the UN High Commissioner for Human Rights, the International Criminal Court, the Alien Tort Claims Act, China, Sudan, Cuba, and actions for the Obama administration to take within the next 30 days.
Left to right: Will Davis, Santiago Canton, Amb. Karen Stewart, Chip Pitts, Jeffrey L. Bleich
- Jeffrey L. Bleich, Special Counsel to President Barack Obama in the White House (Moderator)
- Santiago Canton, Executive Secretary of the Inter-American Commission on Human Rights of the Organization of American States (OAS), Washington, D.C.
- William Davis, Director of the United Nations Information Center in Washington, D.C.
- Chip Pitts, Amnesty International (USA), Houston, Texas
- Ambassador Karen Stewart, Bureau of Democracy, Human Rights and Labor, U. S. Department of State, Washington, D.C.
- Isabella D. Bunn, Oxford University Regents Park College, Wiltshire, United Kingdom
- Penny Wakefield, Arlington, Virginia
• 2009 UN Durban Review Conference (RevCon)
Update: The United States announced its nonparticipation in Durban II on 18 April 2009, two days before the start of the RevCon in Geneva. At least six other countries will join the boycott due to concerns that the conference will serve as a platform to condemn Israel and to prohibit criticism of Islam.
Bleich asked panelists what steps the United States could take with respect to human rights. The panelists identified the Durban Review Conference and its impact.
Commentary and Analysis
As background, the Durban Review Conference (Durban II) to be held in Geneva, Switzerland, 20-24 April 2009, will evaluate the progress made since the 2001 World Conference against Racism, Racial Discrimination, Xenophobia and Related Intolerance (WCAR) in Durban, South Africa. The 2001 World Conference controversially adopted the Durban Declaration and Programme of Action (DDPA). The United States and Israel left the 2001 World Conference early, citing a disproportionate focus on Israel as perpetuating racism and intolerance and the conference’s implicit platform of advancing antisemitism.
After Durban I in 2001, then-U.S. Secretary of State Colin Powell said, “I know that you do not combat racism by conferences that produce declarations containing hateful language, some of which is a throwback to the days of ‘Zionism equals racism,’ or support the idea that we have made too much of the Holocaust, or suggest that apartheid exists in Israel, or that single out only one country in the world — Israel — for censure and abuse.”
Davis said the Draft Outcome Document prepared by the Preparatory Committee constitutes an improvement. He noted the removal of “egregious” language and provisions but argued that the document still “hasn’t ripened to the point of support” by the United States. U.S. involvement and engagement, he said, would be preferable to non-involvement. Pitts argued that the United States should go to Durban and commented that the prior withdrawal arose from a misunderstanding of what was happening “on the ground” at the conference. Pitts also stated that, if Obama, as the first black president, chose not to attend, he would be missing a “prime opportunity.” Pitts recommended that Obama should attend in person to send a strong message. Amb. Stewart asserted that, whether the United States attends Durban or not, the United States should provide high-level remarks on what we would have liked the conference to be about, and what the world should be doing on racism. Durban would also be a good platform for the United States to identify what we have done and to define what we would like to do domestically and internationally on human rights as part of the Human Rights Council.
• UN Human Rights Council
Bleich asked panelists to comment on the U.S. bid to join the Human Rights Council and the possible structural reform of the Council, particularly with respect to its size and composition. He asked for the panelists’ opinions on whether state-by-state, structural, and/or institutional reforms would be politically viable at the UN.
Davis said that the international players are “ecstatic,” with the exception of New Zealand because it had to withdraw its candidacy to enable the United States to get a seat. The absence of the United States fosters an imbalance of power, with the European Union as one of the dominant political forces. He also pointed out that the current allocation of 28% African countries and 28% Asian and Middle Eastern countries creates an automatic simple majority (i.e. 26 out of 47 seats). Reflecting one of the common criticisms of the current composition of the Council, he asked rhetorically whether countries under sanction by the UN Security Council should be eligible for membership. Amb. Stewart remarked that United States needs to reach out with “renewed and expanded” diplomacy to get other countries to vote for their individual interests and not vote as a bloc. Davis agreed with her about the voting blocs. She also recommended “renewed high-level” diplomatic outreach beyond the ambassadors in Geneva making the policy.
Pitts first identified multiple shortcomings of the Obama administration on human rights. He argued that the current position on detention remains essentially the same as under the prior Bush administration. He asserted that Obama has “gotta get the house in order.” He also criticized the state secret privilege, saying Obama has taken a stronger position (i.e. worse) on keeping information secret than under the prior administration. Obama also campaigned against warrantless surveillance but has remained silent on ending the practice. Obama, he asserts, has continued the practices of racial profiling and rendition. If we continue such practices, he contends, the United States will lack accountability and credibility on the Human Rights Council. He concluded that Obama needs to “walk the talk.” He then addressed the question at hand, observing that the Human Rights Council recognizes economic, political, and social rights. Yet, the United States applies a double-standard, saying that these rights “are rights” but “are not rights, just aspirations.” He reflected on the consequences from such an approach, arguing that expanding inequality in economic opportunities has decreased the middle class. These social shifts, as driven by economic forces, are not good for markets or for democracy. He argued that it breeds terrorism. He tied economic disparities to sustainable globalization, the avian flu, labor rights in treaties, corporate social rights, and voluntary initiatives on national and global security. He concluded that Obama must communicate to the rest of the world that the United States is taking these rights seriously.
Bleich asked Amb. Stewart to respond to Pitts’ remarks. She focused on the issue of terror suspect detention, asserting that the world is “giving [the United States] some time to work it out.” An adequate answer, she said, would require broader agency participation on the panel. She observed that any solution would need to protect national security and also meet the United States’ international obligations.
• UN High Commissioner for Human Rights (OHCHR)
Davis identified the UN Office of the High Commissioner of Human Rights (OHCHR) as one of three structural entities, along with the Durban Review Conference and the UN Human Rights Council, where the United States could influence shape human rights globally. Davis asserted that the United States can have “extraordinary influence” in shaping human rights through the OHCHR. Canton observed that the Human Rights Council is not the only UN body on human rights. He pointed out that the OHCHR and the system of rapporteurs are pragmatic approaches that should remain independent. Amb. Stewart agreed with Canton on the independence and necessity of rapporteurs, but she argued that many of their mandates need improvement.
Commentary and Analysis
Amb. Stewart did not specify how the rapporteurs’ mandates are insufficient or how they could be improved. Because there was only one question during Q&A, there was no opportunity to ask for further clarification.
Bleich noted the recent changes on Cuba to allow for increased travel and telecommunications. Yet, he observed, Cuba is notably absent from the Organization of American States (OAS). What should we be doing? Canton responded first. He stated simply that the embargo has not worked in 50 years. The reason, he said, seems to stem from U.S. politics rather than international relations. He concluded that the embargo should be lifted and that human rights violations in Cuba should be address by a multilateral effort, not unilateral action by the United States. Amb. Stewart stated that Cuba needs to take additional steps before the embargo is fully lifted. She asserted that more open communications will help democracy and the Cuban people.
Canton then challenged Amb. Stewart to explain the purpose of the embargo. Amb. Stewart remained silent and provided no response. After an extended pause, Bleich offered a summary of the two positions: 1) lift the embargo completely and allow for open trade, or 2) allow for open communications but use the remaining elements as a political lever to allow for incremental changes in Cuba. He then asked, “Is there a third option?” Davis observed that the embargo has helped Cuba “pack a punch above its weight.” Essentially, the U.S. approach has tended to strengthen Cuba’s political influence and power.
• Human Rights in China and Sudan
Bleich moved to the next topic of human rights in China and the Sudan “as more simple topics,” prompting much laughter. The panelists notably leaned away from their microphones in an unstated effort to avoid being the first to answer. Canton took the lead by leaning forward, yielding an almost imperceptible look of relief on the other panelists’ faces. He, however, delivered the surprise one-liner comic relief, “Not my region,” to additional laughter and grins. With the panelists seemingly reluctant to comment, Bleich narrowed the question. He observed that there are human rights abuses in Tibet and “genocidal activities” by China corporations or corporations under control, in whole or in part, by the Chinese government. He asked, “How do we maintain a relationship with China on national security while being strong on human rights?
Pitts started by observing that China and Sudan are unique and different situations. He pointed to the statements by the Obama administration that the United States will not let human rights stand in the way of solutions to climate change. Pitts argued that climate change is human rights: disease, access to food, etc. lead to conflict and war.
Bleich pushed back on Pitts’ argument asking whether we should be concerned that human rights is being defined so broadly. Do we lose the definition? Bleich used the recent stimulus appropriations as an example where everything qualifies. “If we start defining human rights as determining economic policy, national security, etc., does human rights lose its force by losing the public and the international community” in what the goals should be and what we can/should accomplish.
Pitts replied that the problem is the silo approach to economic and national security issues, which fosters giving human rights a lesser priority. He stated, “We’re missing issues in State Department reports” because they are “described solely in terms of social, cultural [...]” aspects. He used the example of food. The tendency by the analysts at the State Department is to treat deliberate interference with food supplies as a social issue. This approach overlooks the use of food as a weapon. See my blog on deliberate famine under international law.
Pitts then concluded that the United States needs to understand the causes of terrorism. Al-Qaeda, he said, will continue to fight back based on grievances of social injustices. Bleich asked Pitts, “What if we’re wrong and attacked as a result?” Pitts replied that no one is asking the United States to lower its guard. Human rights, he said, is currently neglected in the current administration’s political discourse and needs to be incorporated in order for the United States to be the leader in human rights.
• International Criminal Court (ICC)
The longest pause of the session came in response to Bleich’s question on the ICC. Bleich asked for specifics on how to achieve a relationship with the ICC without reinforcing the view that United States cedes its sovereignty. He reinforced the question with the imagery of one global government with black helicopters.
Canton broke the suspense with a simple assertion that the United States should ratify the Rome Statute and become a party of the ICC. Amb. Stewart asked rhetorical questions rather than answer directly. Among the questions, she asked, “Do we feel like we would be putting our armed services at risk of kangaroo indictment in international court?” She also asked a question about whether we felt our justice system could not adequately handle any violations within our domestic system. Her last question raised the issue of dual jeopardy, domestically and in international courts. Pitts asserted that the Rome Statute’s provision on complementarity insulates the United States from unwanted intrusions by the Court. Pitts stated that the U.S. courts-martial are “effective.” He said the same about the Department of Justice. When possible prosecutions by an international court came up related to the NATO bombings in Kosovo, he said, that Court (the ICTY) did not pursue prosecutions of U.S. individuals, impliedly suggesting how similar future allegations of crimes by U.S. military members likely would be dismissed by the ICC Prosecutor. Pitts concluded, “We do take care of war crime [criminals].”
With limited time remaining, Bleich moved quickly to the next question.
Commentary and Analysis
updated 30 April 2009: Implied from Amb. Stewarts’ statements are the political and legal vulnerabilities arising from complementarity. Pitts’ statements reflect the viewpoint that actual prosecutions of U.S. service members and citizens by the ICC are reasonably remote possibilities because the ICC can only prosecute when a state is “unwilling or unable genuinely to carry out the investigation or prosecution,” pursuant to complementarity under Article 17 of the Rome Statute. Likely due to time constraints, Pitts did not give the details about the ICTY’s recommendation that “no investigation be commenced” in relation to the NATO bombing campaign. Read the full-text: Final Report to the Prosecutor by the Committee Established to Review the NATO Bombing Campaign Against the Federal Republic of Yugoslavia.
One of the big hurdles for the United States to become a state party to the ICC through treaty ratification of the Rome Statute is the issue of complementarity. The trouble under complementarity as provided by the Rome Statute, however, is that the United States would not be the decision-maker on whether its domestic system provided adequate prosecution and justice. Rather, the International Criminal Court makes that decision. When ICC Prosecutor Moreno-Campo spoke last spring in Washington, D.C., he was unable to answer a question from a professor of international criminal law about complementarity with respect to U.S. involvement in Iraq and Afghanistan. When pressed on whether he would consider the domestic U.S. system to be adequate in its prosecutions for crimes committed in Iraq, the ICC Prosecutor raised his eyebrows in such a way that the room fell silent and then into laughter. The overall message was clear, if the United States would become a state party, the ICC could determine whether the U.S. judicial system is adequate with respect to prosecuting its elected leaders, government officials, uniformed service members, civilian contractors with private military and security companies, and other civilians.
Opponents of the United States becoming a state party argue that this power of the ICC threatens U.S. state sovereignty and national security. Moreover, opponents are concerned with constitutional issues and due process safeguards. Brett Shaefer at the Heritage Foundation wrote on 13 February 2007: “While the ICC embodies an admirable desire to hold criminals accountable for their crimes, the court is flawed notionally and operationally. The more ICC advocates seek to use the court to press political agendas and supersede the prerogatives of government in foreign policy, the more they undermine the credibility of the court and threaten its future as a useful tool for justice.” He advises that the United States should continue to oppose being legally bound by the Rome Statute, should seek significant changes in the treaty, and should proceed with great caution with respect to actions that would support cases before the ICC.
Under the Obama administration, the United States is likely to be more favorable to the ICC. Yet, given the uncertainties of the Court’s future and the political obstacles domestically, I would expect that the United States will not take action on ratifying the Rome Statute before the RevCon. I agree with Judge Wald that the United States needs to seize upon this opportunity to observe and to participate in the RevCon.
Also, if the ICC is truly dedicated to transparency, the state parties should make the financial information of the court more readily available. For example, the Assembly of State Parties (ASP) should authorize the Court to publish on its website any voluntary contributions received from states, corporations, or individuals. Such contributions are permissible under Article 116 of the Rome Statute, yet no information about such contributions is currently available on the ICC website. Notably, the ASP has adopted resolutions clarifying the flow of financial information between the Internal Auditor, the Committee on Budget and Finance, and the Assembly. The ASP has not provided for procedures to make financial information available externally beyond the cursory high-level budget allocation and scaled fee structure for state parties. This current lack of financial transparency undermines the assertions of the Court’s independence and impartiality.
• Alien Tort Claims Act
Bleich raised the issue of the Alien Torts Claim Act of 1789 (ACTA), 28 U.S.C. §1350, also known as the Alien Tort Statute (ATS). The ACTA grants non-US citizens the right to file claims in U.S. courts for international human rights violations and receive a civil remedy. Bleich reflected on the difficulties of defining the scope and application of the ATCA, particularly with respect to aiding and abetting and non-state actors. He asked, “Did the prior administration strike the right balance?” His question, like many others, was met with an extended silence from the panelists.
Amb. Stewart replied that she did not represent the Legal Advisers office, but from what she know, yes, the prior administration struck the correct balance.
Pitts very briefly described the ATCA. He mentioned, but did not discuss the details of, the letters drafted by former State Department Legal Adviser William H. Taft related to the cases involving energy giants: Exxon, Shell, and Unocal Burma. He later clarified to me that his reference to the letters was to illustrate that the Bush administration’s approach to the ATCA cases was not balanced. He also mentioned during the talk, and later clarified to me, that in-house counsel (which he used to be) prefers legal instruments, like the ATCA, to enhance accountability and to provide deterrence of misconduct. He then observed that other countries and multinational companies are committing to the Universal Declaration of Human Rights, i.e. no forced labor. He asserted that this voluntary adoption of the UDHR fosters accountability. He said he was encouraged by the number of companies committed to human rights. He concluded by highlighting Global Compact, a UN policy initiative for businesses that are committed to universal norms in the areas of anti-corruption, the environment, human rights, and labor rights.
Sensitive to the time, Bleich proceeded quickly to his last question.
Commentary and Analysis
Given the limited time and the scope of the question, the speakers did not address whether the ATCA needs reform.
Obama’s nominee for Legal Adviser at the State Department, Harold Koh, has been criticized for his revival of the ATCA in the 1990s and his continued support of its expanded use during the Bush administration. Specifically, Eric Posner and Ed Whelan argue that the type of litigation under the ATCA probably violates international law. Whelan asserts that Koh advocates its use under international law “selectively as an ideological weapon.”
updated 30 April 2009
Mark Hamblett recently wrote an article in the New York Law Journal on two cases that test the reach of the Alien Tort Claims Act, particularly with respect to aiding and abetting liability: (1) Khulumani v. Barclay National Bank Ltd., 05-2141-cv and (2) Ntsebeza v. Daimler Chrysler Corp., 05-2326-cv. Read the full-text of the article: Mark Hamblett, Judge Narrows Claims in Apartheid Torts Case Against Multinational Corporations, New York Law Journal, Apr. 9, 2009.
• What Should Obama Do Within the Next 30 Days?
The “lightning round” required panelists to provide a quick response on tangible actions by the Obama administration to make real the promises of human rights under international law. Bleich observed that the State Department does not have a Legal Adviser, yet there are “fires raging” and the U.S. still needs “to hire firefighters.” “What should Obama do this month?”
Pitts advised that the United States, if not Obama himself, should attend the Durban Review Conference.
Stewart stated that whether or not the United States participates in the Durban Review Conference, Obama should deliver a high-level presentation on what the world could and should be doing on racism. Also, the United States should communicate what we would like to do domestically and internationally to promote human rights, such as what we would like to do on the Human Rights Council.
Canton called for ratification of the American Convention on Human Rights. He offered to draft the memo or letter for Obama, humorously reassuring the other panelists and attendees that he had the time to do that right away. He also called for ratification of the Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women. He also referred to a convention against discrimination and on indigenous rights. I am not sure if he was referring to the American Declaration on the Rights of Indigenous Peoples, the Convention Concerning Indigenous and Tribal Peoples, or another treaty.
Davis also advised Obama to engage in Durban.
Bleich concluded with a caution about civil rights during troubled times, quoting Benjamin Franklin: “Those who would sacrifice liberty for security deserve neither.”
2009 ABA Section of International Law Spring Meeting
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2009 ABA Section of International Law Spring Meeting Resources