The United States government's decision to "reengage" with the Geneva-based United Nations Human Rights Council is a big step toward the multilateral support for human rights that President Joe Biden promised in his major foreign policy speech. Yet key details remain to be worked out for how the Biden administration will engage with the council. The administration has yet to move on another major multilateral human rights institution — the Hague-based International Criminal Court (ICC).
Former President Donald Trump relinquished the US seat on the Human Rights Council mainly because it repeatedly criticized the Israeli government and because its membership includes certain abusive governments.
His administration imposed sanctions on the ICC prosecutor and a staff member to thwart investigations of US torture, principally in Afghanistan, and Israeli war crimes in Palestine.
With respect to the council, Secretary of State Antony Blinken said that the administration would engage "immediately and vigorously," although for now only as an observer.
Linda Thomas-Greenfield, Biden's nominee as US ambassador to the United Nations, said during her confirmation hearing that the US government "will run" as a candidate to rejoin the Human Rights Council, presumably at the next opportunity, in October.
Thomas-Greenfield's endorsement contained two caveats. She said the administration would seek "fewer resolutions against Israel." She also expressed determination to "push back on UN human rights violators who want to be legitimized" by joining the council.
Regarding criticism of Israeli governmental conduct, the administration will need to show that its aim is to avoid not any but only excessive criticism. The US has long complained that occupied Palestine is the only situation with its own special place on the council's agenda, Item 7.
Biden could show that this concern is one of principle by vowing to vote for resolutions about Israeli policy that arise under the council's other agenda items, such as Item 4 on "human rights situations that require the Council's attention."
If the administration wants fewer resolutions on Israeli policy, it could support a single, consolidated resolution in lieu of the current piecemeal approach.
If the Biden administration takes these principled positions, it is likely to find supporters. But if its aim is seen as shielding Israeli abuses from criticism, it is unlikely to get anywhere.
The Biden administration also rightly notes that the Human Rights Council includes among its 47 members some governments, such as China and Russia, that are highly abusive and have joined the council only to undermine its work and to deflect any criticism.
The problem should not be overstated: Even with its current membership, the council regularly delivers a pro-rights majority to secure investigations and condemnations in such places as Myanmar, Syria, Iran, Belarus, Eritrea, Burundi, Venezuela, Libya and North Korea. Still, ridding the council of its more abusive members is a laudable goal.
The council was created in 2006 in large part to address the problem of abusive members, which plagued its predecessor the UN Commission on Human Rights. The solution was to have competitive elections, so candidates that had failed to "uphold the highest standards in the promotion and protection of human rights" could be rejected.
For several years that approach made progress, with abusive candidates either rejected through a vote (Belarus, Azerbaijan, Sri Lanka, Russia) or withdrawing their candidacy rather than face a humiliating defeat (Syria, Iraq). But the regional groupings from which candidates are selected now often game the system by putting forward "closed slates" — that is, the same number of candidates as openings — effectively precluding a choice. The Western group, which includes the United States, is a prime offender because its governments prefer to avoid the need to campaign.
When there is a competitive slate, abusive states can be rejected, as occurred this past October when Saudi Arabia lost its bid for a council seat, receiving the fewest votes among the five candidates from the Asia-Pacific region for the four available seats for that region. China placed next to last, meaning it might have been denied a seat, too, had just one more candidate run from that regional group.
To address the membership problem, Biden should press all regions, including the Western one, to nominate competitive slates as a matter of principle. It could also provide economic assistance to smaller states with good human rights records to bolster their Geneva staff enough to enable them to offer themselves as candidates.
But the administration should not pursue an open-ended "reform" process the way Trump did without a clear commitment from a majority of states for genuine reform. Otherwise, it would risk undermining the council — which may have been Trump's purpose — by reviving past anti-rights proposals such as requiring a two-thirds rather than simple majority to condemn an abusive government, limiting the independence of council-appointed experts and restricting non-governmental rights groups from participating in council debates.
With respect to the International Criminal Court, the State Department said the administration will "thoroughly review" Trump's sanctions. That's the least it can do, given the outrage of imposing penalties usually reserved for the world's worst human rights violators — asset freezes and entry bans — on court officials who prosecute such crimes.
But State Department spokesperson Ned Price added: "The court's jurisdiction should be reserved for countries that consent to it, or that are referred by the UN Security Council" — the latter being subject to US veto. That is a longstanding US position, but it needs rethinking.
When a government ratifies the ICC treaty, known as the Rome Statute, it gives the court jurisdiction over crimes committed on its territory. The court's jurisdiction is always secondary to national prosecutorial efforts, but it serves as an important backstop — a sort of justice insurance policy — should a country's courts be unwilling or unable to prosecute the most serious rights crimes.
There should be nothing controversial about applying that jurisdiction to non-nationals who commit a crime on a country's territory.
If a US citizen commits a crime in a foreign country and is prosecuted by its courts, no one could legitimately object. Yet the US government complains when in difficult cases that country delegates the same power to the ICC. There is no principled reason for that objection. It is simply a preference for impunity, evidently because the ICC is seen as harder to arm-twist into freeing a US or allied suspect than a national court would be.
Any government can avoid ICC action by prosecuting its own serious offenders. But so far the US government has largely ignored the George W. Bush administration's torture program.
The Israeli government has shown no inclination to prosecute anyone for its policy of building settlements in the occupied West Bank — a violation of Article 49 of the Fourth Geneva Convention, which prohibits transferring any part of the occupier's civilian population to the territory it occupies.
These are perfectly appropriate cases for ICC action. US objections reflect a quest for impunity for US officials and close allies. That is hardly a principle of justice.
To truly embrace key multilateral human rights institutions like the Human Rights Council and the ICC, the Biden administration must not try to exempt itself and its friends from scrutiny. At a time when China and Russia are attacking these institutions, Biden shouldn't embrace them selectively.
Human rights standards are powerful because they apply to all governments — the strong and the weak, friends and foes. Biden knows that. Now he should live by that principle.