New U.N. High Commissioner For Human Rights Louise Arbour:
The Issues She Should Focus On Now, From Abusive Counter-Terrorism Tactics to Rights Violators Who Are Members of the Rights Commission

By NOAH LEAVITT

Monday, Mar. 08, 2004

The U.N. General Assembly recently selected Canadian Supreme Court Justice Louise Arbour to be the new High Commissioner for Human Rights. Arbour now assumes the most visible human rights office in the world. (She succeeds Sergio Viera de Mello, who was tragically killed in a terrorist attack against the U.N. headquarters in Baghdad last August after less than a year in that position.)

Justice Arbour's background offers promise. Human rights groups including Amnesty International and Human Rights Watch have been quick to praise Justice Arbour, calling her "a skilled jurist and a principled advocate." (Conservative groups such as the Traditional Values Coalition have just as quickly criticized her appointment, focusing on what they say are her permissive views on topics such as homosexuality and a woman's right to choose an abortion.)

Her appointment comes at a time when human rights around the globe are under assault. Moreover, the very U.N. mechanisms that have been developed to monitor and protect human rights are themselves under attack, by rights-abusing nations that have gained positions on important commissions and panels.

Arbour has her work cut out for her. Thus, I offer some recommendations about issues and approaches she needs to consider in her first few critical months. Since today is International Women's Day, it is an especially appropriate moment to consider the challenges that will face a woman who will be playing a singular role in the ongoing evolution of international human rights law and practice.

The Role of the High Commissioner for Human Rights

In 1993, the international community met in Vienna to reaffirm its commitment to upholding the values of dignity, equality and justice. Human rights were agreed to be "universal, indivisible, interdependent and interrelated." It was a time of excitement and soaring possibility for human rights believers.

A few months later, the U.N. General Assembly created the role of the High Commissioner. Reflecting the growing energy of the movement, the office was given a wide-ranging mandate to oversee the world body's complex and multifaceted human rights activities.

Since then, the most visible High Commissioner has been Mary Robinson, who was named to the position after her term as President of Ireland. Robinson greatly expanded the power and influence of the office, and encouraged the adoption of international standards by local human rights groups around the world.

Robinson also presided over the most controversial human rights meeting of our era -the Durban Racism Conference. The conference was seen as a historic success for bringing together so many different grassroots groups to focus attention on racial discrimination. But it was also seen a complete failure, due to the U.S.'s walkout -- sparked by issues relating to reparations for slavery and the situation of Israel and Palestine

Precisely because Robinson was successful in raising the profile of human rights issues, she frequently found herself at odds with powerful countries, including the United States. Indeed, one of her tactics was to publicly embarrass governments that had been found to be abusing human rights.

Terrorism and Counter-Terror Tactics: Raising New Human Rights Issues

Shortly after the September 11 attacks, Robinson left the position. With her went much of the energy that her office had possessed.

Since then, the need for the U.N. to address terrorism as a human rights issue has greatly increased. Of course, terrorism itself leads to human rights abuses at the widest scale.

Meanwhile, many nations have also seen the risk of human rights abuses through some governments' counter-terror responses. Governments have detained suspects without basic due process charges, and even exported them to countries to where they risk torture or possible execution.

Judge Arbour's Background and Experience

Thus, Louise Arbour enters her office at a critical time. What is her background, and will it prepare her for this position?

Prior to being named High Commissioner, Justice Arbour held a seat on the Supreme Court of Canada. Prior to that, her career was marked by a variety of academic and judicial success stories. She investigated conditions in the Canadian Correctional Service as they affected women prisoners. She was a popular professor and associate dean at the prestigious Osgoode Hall Law School, and she then served as a trial judge and then an appellate judge.

Arbour's judicial tenure won praise for its openness and fairness. The Canadian Encyclopedia notes that, "while she has a lengthy judicial track record, her rulings do not form a portrait of a predictable, ideological mind."

Canadians know Arbour as a criminal law specialist, and she has issued a range of opinions -- some of which safeguard rights of accused, and some of which build the powers of the state to investigate and prosecute.

Several of her decisions on controversial social issues have raised eyebrows. One example is a 1995 ruling that ordered a school board in Ontario to educate a disabled child in a normal classroom, rather than in a special class for disabled children, which was the norm at the time.

Arbour as a War Crimes Prosecutor: Arresting Milosevic, and More

In 1996, Arbour was selected as the Prosecutor for the U.N.-supported International Criminal Tribunal for the former Yugoslavia and Rwanda - a singularly visible position in global legal and political circles.

While in that position, she gained renown for executing arrest warrants on war criminals indicted by the body. Most famously, in May 1999, the Tribunal indicted Yugoslav President Slobodan Milosevic for crimes against humanity, including persecution and violation of the laws of war. The charges were based on his actions in Kosovo, including the deportation of 740,000 Kosovar Albanians from Kosovo, and the murder of over 340 identified Kosovo Albanians.

Milosevic was the first sitting head of state in modern times to be indicted by such an international body. (Yet, he is still defending himself in The Hague, as he battles health problems and administrative snafus that have delayed the proceedings for years.)

Arbour publicly acknowledged the role that her indictments might have on the then nascent negotiations for peace in the former Yugoslavia. Famously, she stated, "no credible lasting peace can be built on impunity and injustice."

Despite such language, though, many criticized her work. In a July 1999 letter, prominent international jurists and criminal lawyers berated her for not indicting NATO leaders -- who were said to be using Arbour's evidence of massacres of civilians to justify their bombing campaign in the region.

Many also felt that by appearing publicly with NATO leaders including British Foreign Secretary Robin Cook and U.S. Secretary of State Madeline Albright, Arbour compromised the supposed impartiality of the Tribunal and undermined its effectiveness and credibility. In addition, the Rwanda Tribunal was frequently criticized for its mismanagement and lack of an effective prosecutorial strategy.

In 1999, Arbour's term ended and she was named to Canada's highest court. Shortly thereafter, the Tribunal concluded that there was no reason to investigate NATO for criminal activity during its 78 day bombing campaign in Kosovo, which killed nearly 500 civilians.

A portrait of Arbour thus emerges. It shows her to be a skillful negotiator who seems familiar with the power of these U.N. positions. But it also shows her to be potentially beholden to the western powers that control much of the funding for the organization.

What Are the Issues Facing Arbour In Her Role as High Commissioner?

Arbour assumes her position at a critical moment for human rights around the world, and within the U.N. system itself.

The U.N. Commission on Human Rights, the highest international body that focuses on human rights, has been experiencing a growing crisis: More and more of its members are among the world's human rights villains.

Indeed, a recent Reuters story said that the 53-member Commission is turning into an "abuser solidarity group," with more and more countries with dubious human rights records gaining membership, and then voting as a bloc against singling out individual nations for human rights abuses. The Commission contains "questionable" members, such as Russia and Indonesia. Even more problematic, Libya, Syria, China, Cuba and Vietnam all are -- or have recently been -- members.

This rogues gallery has essentially hijacked the Commission and rendered this once proud body impotent and, even worse, counterproductive. Two years ago, the U.N. body even ejected the U.S. for a year and replaced it with Sudan, a state that tacitly approves child slavery.

In addition, the "war against terror" strains -- and may effectively end up limiting -- the mandate of the Commission on Human Rights, unless the new Commissioner asserts herself to prevent that. Around the globe, nations are curtailing rights -- as they say they must in order to fight the terrorist threat. And even within the U.N. itself, there is a resistance to incorporating human rights protections into bodies that are addressing terrorism. In particular, the Security Council's Counter-Terrorism Committee, which was established after the September 11 attacks, has resisted including human rights protections in its work plan.

Six Recommendations For High Commissioner Arbour

Given this complex situation, and the many challenges before the U.N. and the world community, and given Commissioner Arbour's background and many strengths, here are six recommendations for her to consider, as she begins her new job:

1. Speak forcefully. Many countries currently behave as if their practices (domestic and international) go unnoticed and are without ramifications. Arbour should quickly draw attention to nations that are abusing their power and should bring attention to places like China and Russia and the United States, which have shown highly troublesome human rights violations in the past few years.

Although this approach will generate controversy, Arbour seems to have the ability to cope with these politics. Her "publicly embarrass rights violators" tactic will serve her well now.

2. Get the Commission in line. Arbour will have to quickly reduce the influence and power of the human rights abusing nations who are members of the Commission. One way would be to devise stricter membership criteria for members of this body.

For instance, Arbour could require member countries to demonstrate compliance with certain human rights treaties, and create a genuinely impartial body to judge whether particular countries have, indeed, complied.

3. Go Down Under. In particular, Arbour will need to develop friendly working relations with Australia, which is chairing the Commission this year. Australia, which until recently had been generally receptive to human rights norms, has begun to withdraw from internationally-agreed upon standards.

In particular, Australia has adopted tough measures against asylum-seekers and refugees, and resisted a new treaty to establish an international prison inspection program to prevent torture in prisons. These measures put Australia in the ranks of China, Iran and Cuba as prominent rights violators. Arbour must convince Australia, as chair of the Commission, to set a higher bar for human rights.

4. Don't let the War on Terrorism turn into a War on Rights. Arbour should appoint a Special Rapporteur to investigate how states are carrying our their counter-terrorism efforts and assess whether there are any resulting human rights concerns. (In the United States, for instance, some groups have brought complaints about the arbitrary detention of Muslim-Americans and Arabs to the United Nations.)

Moreover, the High Commissioner should ensure that the Counter-Terrorism body has a regular and permanent connection with her office. Otherwise, as noted above, this body may simply act as though human rights consideration are either low on, or missing from, its agenda.

5. Remember the Tribunals. Arbour must draw on her experience in regions of the worlds where there have been massive human rights abuses to prevent future disasters. Rather than dealing with such events after they occur, through tribunals, we should now try to use the lessons of the tribunals to prevent such tragedies from occurring.

For example, she should support the new proposal to develop a senior level position to monitor possible developments of genocide, as a form of early warning process. Rwanda provides one example of genocide that early intervention -- of modest forces, at a modest cost -- could almost surely have averted. In addition, she will have to closely monitor the United States' role in the upcoming prosecution of Saddam Hussein.

6. Help Local Groups. Arbour must pay special attention to local efforts at using international human rights. Encouraged by High Commissioner Robinson, there is now a growing worldwide movement to use human rights norms to change local inequalities.

These efforts are being spearheaded by organizations that until recently have been thought of as civil rights groups and not necessarily human rights groups. (In the United States, for example, public housing residents in Chicago who have been displaced by the demolition of their units are now discussing their situation as a human rights crisis.)

Arbour should recognize that this type of effort is a growing source of energy among those struggling to improve their living conditions and achieve greater political and social equality.

There is no question that Arbour has taken on immense challenges. Her background suggests she is equipped to meet them. Let us hope, for the world's sake, that she does -- and that, like Mary Robinson before her, she makes her office a powerful entity to be reckoned with.


Noah Leavitt, an attorney and author, is the Advocacy Director of the Jewish Council on Urban Affairs. He has worked with various components of the United Nations, including the International Law Commission, the International Court of Justice, the High Commissioner for Refugees, the High Commissioner for Human Rights, and he was a delegate to the Durban Racism Conference. Leavitt can be contacted at nsleavitt@hotmail.com.

FindLaw Career Center

    Select a Job Title


      Post a Job  |  Careers Home

    View More