America’s withdrawal from human rights

Michael Goldhaber, IBA US Correspondent

As it withdrew from the United Nations Human Rights Council on 19 June, America insisted this was not ‘a retreat from human rights’. It’s just that America’s steadfast commitment to universal values, United States Ambassador Nikki Haley told the UN, ‘does not allow us to remain a part of a hypocritical and self-serving organisation that makes a mockery of human rights’. Any sincerity in Ambassador Haley’s statement was undermined by the timing.

The withdrawal came one day after the UN High Commissioner for Human Rights, Zeid Ra’ad al-Hussein, told the Human Rights Council that family separation at the US-Mexico border is an ‘unconscionable’ abuse of children. Two days prior, on Father’s Day, global outcry over the separations had reached fever pitch. To pursue ‘the best interests of the child’, as required by the International Convention on Civil and Political Rights, is one of many US-born global standards that the country now dishonours.

Two days after the US withdrew from the Council, the UN Rapporteur on extreme poverty and human rights, Philip Alston, told the Council that the US disdains the right to a decent life by letting 5.3 million Americans live in ‘Third World conditions of absolute poverty’. Touring pockets of deprivation across the US, Alston met people who were homeless and toothless, while raw sewage flowed in the streets. Of course the US is a wealthy nation, as shown by its $1.5tn tax cut, Alston said, yet that cut is so regressive that America bids ‘to become the most unequal society in the world’. Among the 37 nations in the Organisation for Economic Co-operation and Development, Alston reported, the US already ranks last in youth poverty, infant mortality and incarceration rate, second-to-last in access to water and sanitation, and third-to-last in poverty. Even though the US last year affirmed its invitation to the rapporteur, Ambassador Haley retorted that it’s ‘patently ridiculous for the UN to examine poverty in America’.

On the fifth day following the US’ withdrawal, President Trump, having finally abandoned his family separation policy, called for illegal border crossers to be deported ‘immediately, with no Judges or Court cases’. It was perhaps the President’s most straightforward expression of his disdain for the rule of law. Over time, High Commissioner Zeid has rebuked President Trump for other attacks on judges, not to mention his frequent attacks on journalists, his failure to denounce white nationalist racism, his support for extrajudicial killings in the Philippines, his discriminatory comments about women and Mexicans, and his travel ban targeting Muslim nations.

On the sixth day, the US Supreme Court largely reversed a lower court finding that a Texas gerrymander was unconstitutionally motivated by racial bias. This followed a pair of earlier June rulings, out of Ohio and Wisconsin, rubber-stamping a voter roll purge that penalised African-Americans, and ducking on the Court’s best opportunity to limit partisan gerrymanders. They fit a pattern – noted by Alston in his report – of the US diluting democracy through both partisan and racial redistricting, and racial voter suppression.

Finally, exactly one week after the US withdrew from the Human Rights Council, the Supreme Court upheld President Trump’s latest travel ban. Dissolving the lower courts’ injunctions, the Chief Justice declined to take at face value the President’s anti-Muslim statements of intent. Perhaps most consequentially, the Court set a very low standard for establishing that immigration policy complies with the constitution. It’s an area where the President likes to test the law’s limits.

Though President Trump backed down on family separation, he has yet to reunite the majority of 2,300 detained children with their parents, and maintains a policy of ‘zero tolerance’ for asylum seekers who illegally cross the border between points of entry.

One Latin American diplomat, who requested anonymity, says family separation has obscured the due process problems with zero tolerance. Border crossers coerced into guilty pleas will face prison time and lose custody if they return after deportation in an effort to pay their smugglers or reunite with family.

Ilya Somin of George Mason University argues that family separation has obscured two other morally abhorrent asylum policies. Earlier in June the Attorney General overrode the Board of Immigration Appeals’ (BIA) recognition of gender violence as grounds for asylum; and the BIA absurdly reasoned that people pressed into slavery by terrorists don’t deserve asylum because they have ‘aided’ terrorists. To top it all off, the US declined to join the UN Global Compact for Migration, which was signed this July.

In exiting the Human Rights Council, Secretary of State Mike Pompeo cited as the President’s chief complaint that egregious actors like Cuba and Venezuela can be members, thanks to a regional voting system that resists reform. Stephen Pomper, Senior Director for Multilateral Affairs and Human Rights during the Obama administration, fully agrees with this critique. But, by actively participating in the Council, Pomper argues, the Obama team was able to help produce reports of great value on abuses in Iran, Myanmar, North Korea, Syria and elsewhere. Stepping back at the UN, he argues, only enables ‘China’s push to grab the reins of the multilateral system’ – and to remove human rights from the agenda. China has recently succeeded in dismantling the Secretary-General’s human rights unit, and in defunding human rights posts in UN peacekeeping missions.

President Obama’s last representative on the Human Rights Council makes the same point. ‘The United States has surrendered multilateralism to autocratic hostile powers,’ says Ambassador Keith Harper. ‘Those who will be empowered by our retreat are China and Russia and Cuba.’

Secretary Pompeo’s denunciation of autocrats on 19 June rang hollow, coming a week after President Trump showered North Korea’s Kim Jong-un with praise at a summit replete with a commemorative White House coin honouring the ‘Supreme Leader’. Ambassador Haley’s attacks on Iran and Syria – neither of which have ever been members of the Human Rights Council – rang hollow given the accolades President Trump has bestowed on the autocrats in China, Egypt, the Philippines, Saudi Arabia and the United Arab Emirates – all of which are members of the Council. Secretary of State Rex Tillerson shockingly proclaimed a separation of American values from foreign policy, and his successor has not signalled a change in course.

Ambassador Harper concludes that the critique of the Human Rights Council emerging from the Trump administration can only be viewed as ‘a fig leaf for an administration that clearly does not value the promotion of human rights’.

As Harper notes, ‘We have a President who has in various ways complimented Putin; Duterte, who is using extrajudicial killings as a means of policing; Erdogan; Orbán; the Saudis, who are just now letting women drive; Xi, who he has said is a great leader; and finally Kim. Can it really be taken seriously that an administration headed by an individual so hostile to human rights, an advocate of torture, is leaving the Human Rights Council because there are autocrats on it? It doesn’t pass the straight face test.’

Diplomacy on behalf of the undiplomatic is a challenging task to be sure. But if Ambassador Haley, or any other US official, truly can’t bear to ‘remain a part of a hypocritical and self-serving organisation that makes a mockery of human rights’, we can surely expect their resignations from the Trump administration sooner rather than later.

Michael Goldhaber is the IBA’s US Correspondent. He can be contacted at michael.goldhaber@int-bar.org