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“Repair America’s Human Rights Reputation”—An op-ed by Dean Harold Hongju Koh

The following op-ed appeared in the Summer 2007 issue of the Yale Law Report as part of a collection of op-eds written by faculty members detailing their thoughts about the direction the next presidential administration could take. To read the full collection of op-eds, visit Yale Law Report [Online].

“Repair America’s Human Rights Reputation”
Harold Hongju Koh, Dean and Gerard C. and Bernice Latrobe Smith Professor of International Law at Yale Law School, served as Assistant Secretary of State for Democracy, Human Rights and Labor from 1998-2001.

The Pew Global Attitudes Project recently found, after interviewing 110,000 people in 50 countries, that the United States’ image has plummeted abroad since September 11, due in good part to a decline in America’s perceived commitment to human rights and the rule of law. Six years of defining our human rights policy almost entirely through the lens of the War on Terror have diminished our human rights reputation, given cover to abuses committed by our allies in that “war,” blunted our ability to criticize and deter gross violators elsewhere, and lowered America’s standing as the world’s human rights leader. To repair America’s damaged human rights reputation, the next Administration should take immediate steps to put America’s own human rights house in order, to renew its support of multilateral human rights efforts, to end the ongoing genocide in Darfur, and to restore its own reputation for truthtelling about human rights.

Putting the U.S. human rights house in order would entail not just closing Guantanamo as soon as possible, but also: revising the flawed 2006 Military Commissions Act to ensure availability of the writ of habeas corpus to alleged terrorist detainees; unambiguously banning the use of torture and cruel treatment by U.S. personnel and contractors anywhere in the world—with an enumerated list of forbidden practices (such as waterboarding) that can be monitored by admission of the International Committee of the Red Cross into U.S.-operated or controlled detention facilities; and ending the practice of “extraordinary rendition.”

Concrete steps to restore our human rights multilateralism would include: sending a Special Envoy to the new U.N. Human Rights Council; shifting formally to a policy of constructive engagement with the International Criminal Court; reinitiating a human rights diplomatic process with regard to Iraq following the recommendations of the Iraq Study Group Report; joining new multilateral human rights treaties, such as Convention on Protection of All Persons from Enforced Disappearance and the Convention on the Rights of Persons with Disabilities (both of which the United States recently backed away from); supporting the Community of Democracies and using that ad hoc multilateral body to support democratic transitions in particular countries, such as Cuba; and promoting “Private-Public” partnerships between governments and multinational corporations to ensure the growth of internet freedom and human rights in China (especially as the 2008 Olympics approach) as well as greater access to essential medicines and the end of “blood resources” (especially oil and diamonds) in Africa.

A third necessary and belated step would be to take firm and immediate action to end the genocide in Darfur. While proposals for intervention vary, indispensable to all are “the 4 Ps”: first, initiating a Peace Process; second, calling for immediate deployment of Peacekeepers into Darfur—with a deadline for Khartoum’s acceptance of such a force, to help achieve an enforceable ceasefire that could lead to a sustainable political settlement; third, Protecting People, both the mass of trans-border refugees and the internally displaced; and fourth, Punishing Perpetrators, by promoting four kinds of accountability: (1) new targeted sanctions (such as travel bans and assets freezes) upon individuals named in the U.N. Commission of Inquiry Report on Darfur and upon Sudanese companies owned by ruling party officials doing business abroad; (2) sanctions targeted at revenue flows from the “blood oil” sector; (3) capital market sanctions imposed upon foreign firms who deal with Khartoum; and (4) mechanisms for sharing information with the International Criminal Court to accelerate indictments against responsible Khartoum officials.

Fourth and finally, the State Department’s Annual Country Reports on Human Rights Practices have increasingly begun to shade or underreport the truth about human rights violations by our allies, especially those such as Egypt and Pakistan, who support us in the War on Terror. Nor has the State Department done enough to ensure that these Country Reports are made widely available in the very countries whose human rights conduct is being described.

This may seem like a long “To Do List” for the next Administration. But America’s human rights reputation defines who we are as a nation and a people. What the last six years have taught is that restoring that human rights reputation is simply too important a task to be left to politicians. Restoring our human rights reputation should be a core challenge for all thinking lawyers, educators, and law students, who are the ultimate guardians of the rule of law.