In 2006, the United Nations Human Rights Commission, an inter-governmental human rights body under the General Assembly, was replaced with the Human Rights Council (UNHRC). The predecessor Commission had struggled with legitimacy in light of its member states’ alleged human rights violations and a U.S. boycott under the Bush administration. The UNHRC was created in hopes that it would overcome the failings of its predecessor, but it too has been the subject of substantial criticism. Accusations include that the Council fails to swiftly respond to human rights crises and that its own member states such as China, Cuba, and Saudi Arabia have actively committed human rights abuses. In 2008, Secretary-General Ban Ki-Moon challenged the Council to insist on accountability and to respond to crises as they unfold. Recent developments in Libya have finally brought the type of response the Secretary-General was looking for, possibly indicating a new commitment to addressing tougher issues.
On February 25, 2011, the UNHRC held a special session to address the growing human rights crisis in its member state, Libya. At the session, the UNHRC passed Resolution S-15/L.1 by consensus, calling on Libya to respect human rights and taking the unprecedented step of establishing a commission of inquiry to investigate allegations of human rights abuses. On March 1, 2011, the General Assembly took further action by suspending Libya’s membership in the UNHRC. The UNHRC’s unprecedented establishment of a commission of inquiry expands on previous country-specific procedures, which have involved appointing experts to nations of concern, such as Burundi and Somalia, to monitor ongoing human rights abuses. These experts visit the country and periodically report findings to the Council. The UNHRC’s Libya commission is designed to investigate with an eye toward future accountability, rather than merely monitoring.
According to Sihasak Phuangketkeow, president of the UNHRC, the commission of inquiry will “investigate all alleged violations of human rights, [to] establish the facts surrounding those alleged violations and, also, if possible, [to] identify those who are responsible and consider accountability measures.” Unfortunately, despite its broad investigatory goals, the commission, like previous country-specific procedures, is dependent on authorities in Libya for access and cooperation. Although a special session was called on February 25, 2011 to address the urgency of the Libya conflict, the commission will not report its findings to the UNHRC until June 2011, during the Council’s next scheduled meeting. Further, the UNHRC has previously struggled with states that do not implement its recommendations and it is not clear Libya will respond to the commission of inquiry and its findings. Despite the shortcomings of the commission of inquiry, NGOs and editorials have lauded the commission’s aims of assessing responsibility and laying the groundwork for future action as a welcome change from the less effective mechanisms of the past.
The commission on Libya is just a first step and the Council now has an opportunity to implement other positive changes. Libya’s membership in the UNHRC, although now suspended, reveals a flaw in the Council’s membership process. UNHRC membership is currently open to all member states. Admission is based on regional allocation, and although states are mandated to “take into account the contribution of candidates [for the] promotion and protection of human rights” prior to voting, there is no safeguard to prevent the election of grave human rights violators.
To continue improving its function and legitimacy as a protector of human rights, the UNHRC could mandate that the periodic reviews of prospective members be taken into account during the election process. It could further disqualify those states with extremely poor human rights records. An improved vetting process for UNHRC membership could reward a state’s outstanding contribution to human rights, rather than relying only on international support. More stringent admissions could, however, lead to unintended consequences. States might be less willing to cooperate with the UNHRC’s periodic reviews, or be unwilling to admit to human rights violations if faced with disqualification from the Council. Furthermore, standards that are too strict could unintentionally limit membership to developed countries with the wealth to implement and effectively protect human rights. Reformation of the membership process would be difficult, but not impossible, and would require the UNHRC to show awareness of the concerns held by prospective member states.