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Remarks at Townhall on Human Rights Day

MR. CROWLEY: Good afternoon. Thank you. Good afternoon. Welcome to the Department of State. My name is P.J. Crowley. I’m the Assistant Secretary of State for Public Affairs, or as Stephen Colbert described me last night, an unnamed government functionary. (Laughter.)

I have several purposes here. One is to welcome you all, which I’ve done. The other is to introduce my two very good friends and colleagues, Assistant Secretary Mike Posner, who has an even more challenging job than I do as the State Department spokesman and — as our Assistant Secretary for Democracy, Human Rights, and Labor, and Harold Koh, our distinguished legal advisor and my lawyer. (Laughter.)

Now, Mike Posner has some experience with Stephen Colbert as well. He made an appearance earlier this year, did us all proud here at the State Department. But we were trying to prep him a little bit before getting started, and we said, “So, suppose Colbert asks you a question like what got you interested in human rights?” And Michael paused and said, “I’m a Chicago Cubs fan.” (Laughter.)

Now, Harold and I are both Red Sox fans. I’m not sure whether we have anybody here from New England and Red Sox Nation, but we’re doing okay. There have been a couple of key acquisitions here. So – but we can sympathize. I mean, everybody in the world is a Cubs fan, and we can sympathize with that.

But again, we welcome you here. And this is – we welcome you on a particular day, December 10th, which commemorates Human Rights Day and the UN adoption of the Universal Declaration of Human Rights. But this is something that our diplomats do every single day. And I would pause here and say you don’t need to have a release of a treasure trove of secret documents to hopefully understand that this is the subject of conversations day in and day out by our diplomats all around the world as we – both as we both promote human rights and as we try to meet the challenge every single day of practicing what we preach.

We, the United States, do not by any stretch say – suggest that we are perfect. We are – we have challenging – challenges within our practice of human rights in this country. Now, has anybody here heard of something called the Universal Periodic Review? Anybody here from Arizona? Well, we did, through Michael and Harold and others we did present something called the Universal Periodic Review to the Human Rights Council in Geneva last month, which was our best assessment of the human rights challenge in this country.

Why did we do it, even though some conservatives in the country said, “Why are you doing this?” Well, again, our practice here at the State Department and within the U.S. Government is to lead by example. And we do recognize that even though we have shortcomings, by the same token, we do respect human rights in this country. In fact, we do see ourselves as a model for others to emulate, and in fact we recognize that many people look to us to lead the way in terms of the promotion and practice of human rights, promoting freedom of association, the freedom to participate in an open political process, the freedom of the press.

I deal with the press every day, and whether you like the press or not — many Americans respect the press but don’t necessarily like what they print. On some days I agree with them. But by the same token, our press are here every day. They challenge the government every day. They hold us to account, and by holding us to account they make us more effective. We do recognize that in other parts of the world journalists are intimidated, they are jailed, and in some cases, tragically, they are killed. So we have built institutions of civil society here in the United States over more than 240 years, and we do see ourselves as an indispensible country in promoting human rights around the world.

We don’t – and we hold ourselves up to that standard. We respect anyone who wants to point a finger at us, and there is this debate going on in the world today about this thing called WikiLeaks, and we welcome that debate. I think that is what distinguishes us from other countries, a country like China, for example, where it is trying to stifle debate, even on a day where we recognize Liu Xiaobo as the latest recipient of the Nobel Peace Prize. And we respect and salute his courage in demonstrating for a different kind of political system in China.

But with that, we welcome you here. It’s an important subject. I’m going to introduce Mike Posner, who will say a few remarks, and then Harold Koh, and then we will start a question and answer period. I think the Secretary of State’s going to come down for a quick hello to you, and then we’ll continue the Q&A after the Secretary’s remarks. But with that, happy to introduce and bring to the podium Assistant Secretary Michael Posner. (Applause.)

ASSISTANT SECRETARY POSNER: Thank you. Thanks so much, P.J. It’s, first of all, a great pleasure to have you here on Human Rights Day. And we view this, more than anything, as an opportunity to have an open discussion and hear your questions.

Just by way of introduction, to follow on what P.J. said, today we celebrate the Universal Declaration of Human Rights, now 62 years old, which for the first time provided the world a universal set of standards that apply to everyone, regardless of their nationality, their race, their religion. Everybody, by virtue of their humanity, is entitled to core rights. That document, a single set of standards that we apply to everyone, including ourselves — and as P.J. said, and as Secretary Clinton has said, our aim is lead by example. That document very much the product of Eleanor Roosevelt’s leadership in the UN Human Rights Commission, and 62 years later we are still trying to honor her legacy by continuing our engagement on human rights.

The President has talked about principled engagement. We’re engaged in the world on a range of issues, political, business issues, strategic, but human rights is at the center. In every place we operate, human rights issues are raised, and that’s my job, and it’s the job of many people in this Department and in this government. And then finally, we believe very strongly that things in the world change not because you force them outside but because within a society agents of changes — whether they’re women’s groups or the press or an independent judiciary — human rights groups have the ability to create a democratic environment where change is possible.

So the Secretary in Krakow, Poland in July gave a speech which we regard as a kind of watershed for this Administration and this government, where she focused on the role of the nongovernmental sector, civil society, in promoting human rights and spelled out some of the challenges that human rights and other activist groups face in their own societies. That commitment to civil society extends to you. Part of the reason for our having you here and having events like this throughout the year, is our belief that if we’re going to have a democratic country, a truly democratic country, we need to do what we can to engage our own people, our own country.

So we’re delighted you’re here. With those opening comments, Harold and I are really eager to hear your thoughts and questions, and the floor is open. Please.

MODERATOR: And if you would identify yourself that would be great.

QUESTION: Hello. My name is Dr. Janet Paker (ph). I am here from Lawrence, Kansas. I’m the executive director of Medical Whistleblower in Lawrence, Kansas, and we did submit a report to the Universal Periodic Review. I wanted to ask you in regards to the Whistleblower Protection Act, currently now in legislative session with the Senate, already has passed the House, and is being debated, I think right now, on the floor of the Senate. It’s S-372.

We are, as a nation, required by the Declaration of – for Human Rights Defenders, the mandate for human rights defenders, to protect those who are obligated to report violations of human rights under treaties that we have signed and ratified, such as CAT, the Convention against Torture. And our federal whistleblowers, those in federal service, many of whom have classified clearances, some of whom are working in the federal prison system, some of whom are working in the BA (ph), some of whom are working in military positions, some who are working in the intelligence community, are especially concerned that they do not have adequate protections right now with the Merit Systems Protection Board and also protections under the Office of Inspector General. And I was wondering if you will be looking at that legislation to make sure that it is in compliance with the Declaration for Human Rights Defenders, mandate 53/144. Thank you.

ASSISTANT SECRETARY POSNER: I’m going to turn to my lawyer for this one.

MR. KOH: You have a right to remain silent. (Laughter.) Well, let me say I won’t comment on the specific bill. That’s not something that we do in this forum. We will do it with regard to hearings and other things that are presented on the bill. On the basic notion, do governments have – I mean, do individuals have a right to call their governments to account, it’s a core principle of how the U.S. system has operated, notably absent in other countries.

I think if I could just say a word to follow what Mike said, it’s important to realize two things: how radical the notion of international human rights is, that simply by virtue of being born as a human being you acquire certain rights that you cannot sell, that cannot be taken from you, that you don’t have to own property or have a certain amount of money or be a certain skin color or a certain gender to possess. You have those rights simply by virtue of being born as a human being. And that’s a notion that the Universal Declaration recognized 62 years ago.

Now, there are some people in this country and elsewhere who find that concept threatening, to which I would say we hold these truths to be self-evident that all persons are created equal and endowed by their Creator with certain inalienable rights, among them life, liberty, and the pursuit of happiness, that that concept is the very concept on which this nation was founded, that this is a nation that is based on human rights, and that therefore has a critical role to play in advancing the cause of international human rights.

Finally, Eleanor Roosevelt did a remarkable thing in her time. And those of you who haven’t looked at her speeches on the world wide web, we’d encourage you to do that. One of the most touching things is that every night during the negotiations of the Universal Declaration of Human Rights she would say a prayer, which was reported in a book about her by Mary Ann Glendon, who is a professor at Harvard Law School. It says, “Show me a vision of a world made new.” That’s the title of the book, A World Made New.

The notion was that after World War II, having experienced unspeakable violence and genocide, we needed to have a different vision to animate us going forward in the 20th century. And what she was saying was the concept of recognizing and protecting fundamental human rights for all persons is what the war was about; it was what we were fighting for, and that it’s so important that we have that concept and that the advance of human rights is a measure of whether civilization is advancing or standing still. So I think that on this day, why do we celebrate it, because of an extraordinary idea, radical idea, that was recognized because it is so fundamental to who we are as a nation and because it’s a measure of the advance of civilization both in this country and elsewhere in the world.

QUESTION: Good afternoon. My name is Josh Ruebner. I’m the national advocacy director of the U.S. Campaign to End the Israeli Occupation, and I want to thank you for hosting this event this afternoon.

I’m just a little bit confused about the universality of human rights, given that the Obama Administration has now on two occasions – the Goldstone Report and Israel’s attack on the flotilla — worked to prevent the international community from holding Israel accountable for its human rights violations.

So I have two fairly simple questions. Number one, does the State Department believe that there really truly is one human rights standard for all countries to abide by, or is Israel held to a lower standard of account? And number two: Are Palestinians, in the State Department’s vision, considered equal human beings with equal human rights to Israelis? And if so, when is the State Department going to end our diplomatic and military support for Israel’s human rights abuses of Palestinians?

ASSISTANT SECRETARY POSNER: Harold and I were there in Geneva when the Goldstone Report was first taken up last September. Since then, I’ve been back to Israel twice, most recently last month, to follow up on our work in this area. So let me offer a couple of observations about what you say.

Yes, there is a single universal standard that applies to every country, including our own. We apply it to the Israelis, and we also view – in an answer to your second question – Palestinians as being human beings under the Universal Declaration and entitled to those rights.

We said three things in Geneva and have continued to say them about the Goldstone Report. One is that the report had a number of flaws, which we’ve identified and which, by the way, we’ve discussed directly with Justice Goldstone, who I know and respect. But the report was a document that had a number of flaws. We could discuss that.

Secondly, we’ve said that the UN forum in which that report was taken up, the Human Rights Council, devotes disproportionate attention to Israel and Palestine. It doesn’t mean that the issues aren’t legitimate. It means that, for example, next March the Council will have not one but six different resolutions on that subject. Lots of other things get no attention. Again, it doesn’t say there isn’t a serious issue. It does say that the institution needs to be reformed.

But the third we said, and we continue to say, is that the report included a number of serious allegations, and we called on the parties, including the Israelis, to take those reports seriously and to establish credible accountability mechanisms. We said that a year ago in September, and those have been my marching orders since then. We are discussing with the Israeli Government, including the IDF, the follow-up measures that we believe they ought to be taking, some of which they’ve taken and some not. We regard it as a serious issue.

And frankly, there’s a broader issue, which I’m increasingly focused on, which is the way in which the international community and governments and international institutions deal with the very real phenomenon in the 21st century of what are called asymmetrical urban wars. We face that. I faced it in Iraq and Afghanistan. Many other countries are fighting a new kind of war. And I think one of the things we’re urging the Israelis, we’re trying to do ourselves, is to take a fresh look at what are the maximum civilian protections, what are the maximum ways that humanitarian law can be enforced in these urban settings.

This is not an easy subject, but I can assure you that more than few minutes have gone into trying to address that. I’m committed to continuing to do it, and I have the support of this Department and this government to do it.

QUESTION: Thank you.

QUESTION: Hi. Good afternoon. I’m Tommy Grandon (ph). I’m in Consular Affairs now, but you’re quite right. It’s been a long haul. I was a staff assistant back in 1968 for President Johnson’s commission on the celebration of the anniversary of the human rights treaties, and I just would like to historically pay tribute to not only Alice Holsted (ph), who was a co-chair with Avril Hariman (ph), but also our executive director James Green (ph), his assistant Steve Shot (ph). And you can’t talk about human rights or women’s rights without mentioning in the same breath Gladys Tulet (ph). Human rights is hard, and you said today is 62 years. I was there on its 20th anniversary, and we’re still chugging along. Please keep it up. Thank you.


QUESTION: I’m Mark Hangman (ph). I’m with U.S. Fund for UNICEF. Thank you for having us here today, and I just want to recognize how amazing it is to have people with your credentials in and commitment to human rights working in this Administration. Unfortunately, the United States has not ratified the most widely recognized human rights treaty in the world, the Convention on the Rights of the Child, and I’m just wondering what the prospects are of the Obama Administration getting that treaty package together and shipping it to the Senate so the Senate can take it up in the not too distant future. Thank you.

ASSISTANT SECRETARY POSNER: I’m going back to my lawyer.

MR. KOH: Well, I think it’s an important point. We very much want to ratify the Convention on the Rights of the Child. We have ratified two protocols connected to it, which was an important step. I think that one of the things that we have to explain to those who are not in our political system is that to ratify a treaty takes not just the support of the executive branch and the support of civil society but the support of 67 senators, which is a super majority, which means that a relatively small number of senators can prevent a treaty from being ratified.

That does not prevent us from trying to move into full compliance with the treaty before we get to the point when the actual ratification occurs. And so I think as we said at the Universal Periodic Review, the difficulty of our political mechanism often leads to the opposite pattern in our country from some other countries. Some other countries ratify first then comply either later or never. Our country tends to try to move into compliance, and then when we have achieved that, at that point it becomes possible to get the political support to get the ratification.

That’s not a reason why we will not push for those ratifications. We do not believe the objections to the Convention that have been made by others are well founded. We think the Convention is something that should, indeed, be ratified by the United States.

ASSISTANT SECRETARY POSNER: I would just say just one other point on that. Senator Durbin’s Human Rights subcommittee in the Senate Judiciary Committee held a hearing, I guess, last week or the week before on CEDAW, the Convention on the Elimination of Discrimination against Women. Melanne Verveer, who is the Ambassador for Women’s Issues here, testified on that. Secretary Clinton has made it very clear we’re going to continue to push on that.

And there’s also the relatively new Convention on the Rights of Disabled People, and we are moving forward also to try to tee that up in a place. So these are priorities for us. As Harold said, the political reality makes it challenging, but it’s not stopping us from doing what we can to be – and get those things in place so when the moment is right we’re going to able to really push forward.

QUESTION: Good afternoon. My name Sumej Sudani (ph) and I’m a student at Georgetown University. And my question is, recognizing the fact that we are in a war in terror and the fact that America is perceived, if not believed to be allied with nations that do not promote human rights, I wanted to ask if there are moments – or if the United States should put its national security interest before human rights, and if so when?

ASSISTANT SECRETARY POSNER: When I said earlier that the policy of this Administration, articulated by the President and the Secretary of State, is that of principled engagement, it precisely is aimed at addressing that question.

I was with the Secretary last week in Central Asia, in Uzbekistan and Kazakhstan and Kyrgyzstan. Those are all countries where we have important security interests at stake relating to the war in Afghanistan, but there are also human rights issues. And those issues were raised. We’ll continue to raise them.

I think the challenge for this or any administration is to be clear that we have a range of issues with all sorts of governments, and we’ve got to be able to be multifunctional. We’ve got to be able to say, yes, we have security interests, but that’s not going to prevent us from raising the human rights concerns. And we did, and we did it very forcefully.

MR. CROWLEY: Just to add to that, this should – this is never an either-or situation. We have a range of interests with countries. We don’t have one approach to a country and – we look at what can be the most effective means of helping to transform the practice inside other countries. Well, how do we best influence them?

In a case of North Korea, a country with which we have profound human rights concerns, we do not have diplomatic relations with that country and we try to work those both in our public statements and in the dialogue we have with other countries, such as China, which has a relationship with North Korea.

In other countries, we may well have and do have well-founded human rights concerns, but we’ve made a judgment that we can best effect change in those countries from working with that country. You look at an Indonesia, for example, where we have a growing relationship, and through our cooperation and engagement we have, in fact, been able to help transform how Indonesia looks at and holds to account those within government who may be a suspect of human rights abuses.

At times we have pulled back from cooperation and made it clear that our future relationship, our future engagement, our future support, will depend on change and that we hold that country to account.

And through this involvement and having people on the ground helping to demonstrate to them this is how you have a military that relates to broader society; this is how you can create a civil society that can hold government to account but not necessarily be a threat to government. And we believe that we have had influence in various countries around the world.

Michael is going to Vietnam, which is a country where we have transformed our relationship, and while we have come a long way over 35 years, human rights is fundamental aspect of our dialogue expressly because we still have concerns about how the government – the actions the government takes with respect to its own population.

MR. KOH: And since I’m the lawyer on the panel, I hope you don’t mind if I try to narrow the terminology. You said we’re in a war on terror. We would say we’re in an armed conflict with al-Qaida, the Taliban, and associated forces, which Congress approved in a statute that it passed in September 2001.

The President made clear a year ago today that – in his Nobel Prize lecture, that he does not like to be fighting an armed conflict, but that’s not a choice that he made. It was a choice that was presented to him, and that he’s deeply committed to fighting that armed conflict consistent with our values, because he believes that fighting that conflict consistent with our values makes us both safer and stronger. And among other things, he rejected the use of torture as a tool in that armed conflict and committed himself to pursuing that armed conflict consistent with the rule of domestic and international law.


QUESTION: Hello. My name’s Victoria (ph), and I’m a law student at Northeastern University School of Law, and I’m currently here in Washington as a legal fellow with the National Law Center for Homelessness and Poverty. And my question is with respect to the conversation in Geneva about the reduction of homelessness and poverty.

And as usual, we reaffirmed our commitment to that – to reducing shelter and food and security. However, we seem to continue to conceptualize that problem as one that is best solved through aspirational policy goals. However, that doesn’t generally seem to be having the effect of precluding states from passing laws that criminalize various activities that are performed by homeless people, life sustaining activities such as sleeping or collecting cans for money for food. Isn’t it time that we maybe re-conceptualize our understanding of food, and shelter, security as human rights as opposed to simply aspiring to solve the problems through various encouraging policies, if you understand what I mean?

MR. KOH: Well, I think – I certainly believe that we have human rights to freedom from want. That’s what Franklin Roosevelt said in 1941. I think that was incorporated in the Universal Declaration, the first part of which had to do with civil and political rights, and the second part which had to economic, social, and cultural rights. The U.S. Supreme Court addressed the question in 1972 under our domestic law and did not find a constitutional right to be free from poverty, and that has led to a different trend in our domestic constitutional law.

But there are some countries in the world, and ours is one of them, in which polices and pursuing particular policies can then lead to legal change. for example, the Americans with Disabilities Act that has actually led to the International Convention on the Rights of Persons with Disabilities – I think the Secretary is here, so I think it probably might be a bad idea for me to keep talking. (Applause)

MR. POSNER: Earlier today we presented the Eleanor Roosevelt Human Rights Award to three, four great Americans, and we were delighted that Secretary Clinton led that ceremony. When introducing her, I said that very much as we’ve been talking today about the American — U.S. role, leadership role, in creating the Universal Declaration of Human Rights and Eleanor Roosevelt’s role, we feel very proud to be led here at the State Department by someone who very much follows in Eleanor Roosevelt’s leadership tradition, a woman who needs no introduction, Secretary of State Hillary Clinton.


Harold Koh, Esther Brimmer, Michael Posner, Eileen Donahoe: Press Conference by the U.S. Delegation to the UPR (Transcript)

A/S Brimmer: Thank you, and thank you for joining us this afternoon.

We have just completed a serious interactive discussion with delegations from around the world on the human rights in the United States. We have just witnessed a useful demonstration of freedom of speech. The overall tone was respectful, with many delegations noting our country’s many contributions to the promotion of human rights and values worldwide. There were critical comments and sharp questions as well, but we took opportunities all morning to explain our system, our laws and our policies, and to reflect on ongoing challenges. We have a lot to be proud of, not least President Obama’s commitment to strengthen and deepen human rights protections and expand the role of the American people and civil society in that effort.

We hope our pride, our effort, and our candor will come across today as part of a constructive session, and we hope this adds to the international debate on these issues.

Indeed, the Universal Periodic Review is just that. It is universal. The Human Rights Council provides the venue but every country, every member state of the United Nations has or will participate in this process.

We also note the importance of engaging with civil society. In a sense, here in Geneva we are expanding the space for that conversation with civil society. And indeed, we’ll continue that conversation this afternoon with a Town Hall session.

Again, we were honored to participate and to present the Universal Periodic Review for the United States of America. We welcome your questions.

Press: Good afternoon. Almost all countries with whom you have friendly relations and your allies have asked you to abolish the death penalty or at least to come up with a moratorium. What is your response to it? How realistic is it that the U.S. might impose a moratorium on the death penalty in the foreseeable future? Thank you.

Mr. Koh: I think what you heard was a policy difference, not a difference about what the law requires. The International Covenant on Civil and Political Rights very explicitly says that the death penalty can be administered in accordance with exacting procedures. Now it turns out there is a group of nations that have moved to a different policy, particularly in Europe, but that has not changed the international standard.

Many in America, and myself included, are opposed to the death penalty as a personal matter and we have urged in our advocacy roles that the death penalty be limited in a number of respects. And in the United States, the Supreme Court has struck down the death penalty against persons with intellectual disabilities, against children, it’s limited the means for carrying out executions, it’s demanded higher procedures. But I think what you’re talking about at the moment is a cultural difference of policy opinion that is continuing after some period of time.

Press: Good afternoon. In the review, some of the U.S. civil society groups were highly critical of the track record of the United States on the right to health in the U.S. Especially with ethnic minorities, life expectancy they stressed of African Americans of about 15 percent less than Whites. And the gender issue, reproductive health, higher disease rates for minorities in Alaska, Indian Americans. How are you confronting these challenges? And how are you going about to reduce the discrimination and the under-insurance of the poorest in the U.S.? Thank you.

A/S Brimmer: First off I will note that the health care of Americans is one of the highest priorities of this administration, and indeed, that the President led the effort to advance and spread the coverage of health care in the United States. It’s one of the hallmarks of his work to date.

Press: I’m sorry, I didn’t get an answer to my other question. How are you going about to reduce these discriminatory trends in health throughout the United States? What is being done constructively to reduce these problems?

A/S Brimmer: Indeed, as I would say further, indeed improving the access for a wide number of groups is an important part of health care, and indeed addressing, as we did this morning, precisely the disparities of health care for minorities, for women and so forth, is actually a very important aspect of our domestic policy and hence part of our work as an administration. That will be a continued effort both for our national authorities, the Department of Health and Human Services, and others, as we try to eliminate the disparities which we actually highlighted this morning. It’s one of the areas where we will need to do continuing work.

Press: This administration’s engagement of the Council is quite a turn-about from the way that the previous administration dealt with it. How do you sell this change in policy vis-à-vis the Council back home and explain to Americans why it’s important that you appear here and take all this criticism, particularly from countries like Iran and Cuba?

And you spoke about civil society groups and wanting to engage them as well. There’s one that’s going to be speaking around the same time as your session, this WikiLeaks group. Are you going to be speaking to them here?

A/S Posner: Let me answer the broader question first.

President Obama has said, and Secretary Clinton, that we are going to engage in the world, principled engagement. This is an example. This is what principled engagement looks like. We’re here to present our record as every government is doing. We’re presenting it with pride in what we’ve been able to accomplish, but also with openness in responding to and discussing areas where we still have progress to be made. We are also committed, as Secretary Clinton has said over and over again, to a universal set of standards that apply to every country, including ourselves. We are, she said, and we are trying to lead by example. So there are critics in the United States who didn’t want us to join the Human Rights Council. There is still a lot of work to be done in our judgment to make the Council stronger. But I think it benefits by our participation and by our leadership.

So we’re proud to be here. We think this is a positive experience, and we will go back and tell our people in our country that we’ve come here and presented America’s dynamic and strong record on human rights in a way that we can hold our heads up high.

On the WikiLeaks, as Esther said, it’s open to the public. We will have a discussion with whoever shows up.

Mr. Koh: I think it’s worth adding that we’d be here at the Universal Periodic Review whether we were members of the Human Rights Council or not. Every UN member comes before the Council. It’s very much in everyone’s interest for the U.S. to take that very seriously and to set a very high standard for the state under review because then others will have to do the same.

Ambassador Donahoe: I’m just going to add that I think there is evidence already that just by virtue of being here and engaging with others we’ve had some positive effect on the dynamics in the Council, and I think we will be evaluated back home by our results. I think each session we’re going to be working away at putting our priorities on the table and working cross-regionally with other countries. We’ve found that our priorities tend to be the priorities of others in many cases. There’s a lot to be accomplished with partners from around the world.

A/S Brimmer: I’ll just add that human rights are one of the main pillars of the United Nations system and we think that part of making the entire UN system effective is to try to make the human rights body particularly effective as well. And as my colleague, Harold Koh, has noted, all members of the UN system participate in the Universal Periodic Review, which in a sense is one of the most useful tools we have in the human rights tool kit to talk about the human rights of every country that’s a member of the United Nations.

Press: Does the American Constitution protect WikiLeaks in terms of freedom of opinion and expression from the Pentagon, the CIA and the FBI assaults on it? Or it does not? Thank you.

Mr. Koh: Some of the material, in fact a large portion of the material is classified information and I think virtually every country in the world has laws against the release of classified information without authorization. But I think the more important point is that the claim that’s being made from the documents is that there were detainee abuses that have not been investigated or punished. And as I said today, that assertion is simply false. There have been hundreds of cases that have been investigated and hundreds which have been punished, and well over a hundred have led to court martials that led to federal convictions or federal imprisonment.

Press: I have a question for clarification. Does the death penalty against people mentally disabled and against minors still exist in the U.S. or not? Or is it abolished? Thank you.

Mr. Koh: The Supreme Court struck down the death penalty against juveniles in a case called Roper v. Simmons a number of years ago and it struck down the death penalty against persons with intellectual disabilities in a case called Atkins v. Virginia in 2003.

Press: I just want to ask if you are going to accept Mexico’s recommendations in issues such as forbid the racial profiling, to forbid and punish the use of lethal force in migration control, and if the government will accept the recommendation on the Avena case.

Mr. Koh: I actually spoke to those issues in my remarks this morning. The United States policy is opposed to racial profiling in our law enforcement investigative activities. We’re obviously opposed to the use of illegal force. And with regard to the Avena judgment, two successive administrations have made intensive efforts to enforce that judgment. The Bush administration tried to do it by executive action which was declared ineffective by the United States Supreme Court; and there is now pending federal legislation that would solve the problem for those foreign nationals who are subject to the Avena judgment.

Press: I have a question about a report in the Washington Post yesterday which said that former President George W. Bush in his memoirs acknowledged that he had accepted explicitly the practice of waterboarding. He had approved it. I was wondering how you would explain to countries abroad that the President of the United States, a country which you rightly expose as a country with a fine tradition on human rights, the Bill of Rights, and progress over the 20th Century, how a President of the United States could approve such a practice which some regard as torture?

Mr. Koh: As an academic I was highly critical of that policy, and as we announced, President Obama changed that policy on the second day of his administration. Waterboarding is forbidden. It’s not one of the permitted tactics under the Army Field Manual. And this President of the United States said that torture and cruel and inhuman or degrading treatment will not be used going forward with regard to interrogation practices. So there has been a clear turning of the page.

A/S Posner: If I can just add, I came into government about 14 months ago and I came from a human rights organization, Human Rights First, which devoted a lot of attention to these issues. We recruited 50 retired military officers — admirals and generals — who were equally concerned about practices of coercive interrogations. The reason I’m in this administration, a key reason, is because of President Obama’s clear commitment from literally day two in office when he brought some of those retired military leaders into the White House and announced the three Executive Orders.

There is a clear policy going forward. There will be no torture, no cruel treatment. We’re not mincing words. We’re not winking and nodding. There is a clear policy that there is to be no mistreatment of detainees.

Press: A very brief follow-up. Does that mean that the United States would consider, are you still considering the possibility of legal investigations and federal prosecution of those who might have ordered such a practice in the past?

Mr. Koh: As I think is well known, the Attorney General has referred this very issue to a Special Prosecutor, John Durham of Connecticut. Those investigations are ongoing. The question is not whether they would consider it, those discusions are going on right now.

Press: Two questions, if I may. First, do you think you have been fairly treated by the Human Rights Council? Or do you continue to feel that you’re discriminated against by people who just have it in for the United States?

Secondly, in your report you say that the administration remains committed to closure of the Guantanamo detention facility. Is it possible to put any timeframe to that? Thank you.

A/S Brimmer: Let me take the first question, and Harold you should take the second.

We had a good session today. It was largely constructive, respectful in tone, substantive. There are certainly some countries there who didn’t fit all those attributes, but I would say overwhelmingly the mood in the room was very affirmative and constructive and professional. So we feel we got a fair hearing and I think we’re pleased that we were able to bring a strong delegation here, representing ten or eleven federal agencies. This is part of an ongoing process to engage with the Council and with the UN.

Mr. Koh: As the President made clear in his speech at the National Archives last May, closing Guantanamo is a process. There are three groups of people on Guantanamo. There are those who have been designated for prosecution. As I said this morning, prosecutions are happening both in civilian courts and military commissions.

There is a second group of people who are scheduled for transfer, and those transfers are being negotiated case by case with various countries. And many countries in Europe have taken them. But there is a group of individuals, 57 in all, from Yemen, who pose a particularly difficult problem. Only last week packages from Yemen were part of a well-known plan which happily was thwarted.

Then there is a third group of persons who are in a situation of what is known as Law of War Detention. What I think the President made clear was that he would proceed with that process of bringing the numbers down by pursuing each of these three exit strategies, but he cannot finish it alone. He needs the help of our allies, he needs the help of Congress, and Congress has actually passed legislation that points in the other direction. And a lot of these cases are being litigated at the courts.

So the process continues, and it’s a challenging one.

A/S Posner: If I can just add on that. A few months ago I came to Brussels with Dan Fried who is a senior U.S. diplomat whose job it is to figure out how to close Guantanamo. We met with the European Commission and EU Ministers and so forth. Our objective was to try to get a number of the first category Harold talked about, people who were ready to transfer. They can’t go home. We went to a number of EU countries and said help us out. Some have helped, but there are a number still to be resettled, so we continue our efforts to try to encourage particularly our European allies to help us in that process.

Press: I think the question would be for Harold Koh. You gave a rather robust defense in some of your remarks today about the CIA program of drone strikes on perceived enemies. Could you tell us exactly where the U.S. is carrying these drone strikes out in addition to Afghanistan and Pakistan and I believe Yemen? Since you are saying this is compliant with international law and you’re confident of that, can you tell us where exactly, in what countries in addition to the ones I named these are being carried out?

Mr. Koh: Obviously I’m not going to talk about operations, but our legal position stands on its own, which is that the United States is in an armed conflict with al-Qaida and its associated forces, and that there are high leaders in that conflict who are engaged in activities against which the United States can respond both under the laws of war and in self defense. It has long been lawful to target individuals who are belligerent leaders. It has been lawful to use modern technologies to do so, and indeed these are done in a rigorous way to minimize casualties. This does not constitute extrajudicial killing and it does not constitute political assassination.

Press: I just wanted to come back to the drone attacks. Yesterday the former U.S. Attorney General Ramsey Clark said that these ”push button assassinations” are a complete violation of human rights. President Barack Obama is now going to New Delhi. In India itself there is these counterterrorism operations which are ongoing.

By your answer just now, you are suggesting that countries like India can use this kind of strategy to target its enemies wherever they are.

Mr. Koh: I’m sorry. Who made the statement about –

Press: Mr. Ramsey Clark.

Mr. Koh: I don’t know if that’s a political statement or –

Press: This was — [off mike] — where he came down heavily on these ongoing drone attacks and how they are breaching human rights jurisprudence and that these amount to “push button assassinations.” He called it “push button assassinations” which should not be continued in the normal course.

Mr. Koh: I think it’s a label and not a legal tool. I’ve been a Professor of International Law for 30 years. My legal opinion, which I have stated, is that if a nation is engaged in an armed conflict with a non-state actor and leaders on the opposing side, and if those leaders are launching armed attacks against a country, the country is entitled to respond both in the course of the armed conflict and in self defense. And that an attack which targets such an individual in the course of the conflict is lawful.

For example, the Japanese military officer responsible for Pearl Harbor was in fact targeted in the course of that armed conflict, and that the strike on him was widely accepted as a lawful killing.

So I think the term that was used by the former Attorney General may be a label, but I don’t think it’s legal analysis.

Press: I have a technical question. I was wondering, what is the follow-up to today’s process? There were a lot of criticisms, lots of recommendations — some too fast for the translator. You probably have some issues that you think are most important with which to deal with. So what happens when you go home after the atmospherics wear off and you have to report back here and show that in fact you’ve been obedient and done good work?

A/S Posner: There are a couple of phases here. I guess over the weekend and on Monday there’s a three-government delegation which will do an interim report which will be presented on Tuesday morning. We’ll have an opportunity to talk with them I think on Monday to kind of have our input on that.

Then we go back and there’s a second phase which is between now and March. We’ll receive their recommendations and interim suggestions. We’ll come back and report back on how we’re doing.

A couple of things have to be said about this. One, it’s a healthy process. It’s very much in keeping with what we do anyway as a government. There’s a lot of self analysis and effort to continue to strive to be a more perfect union. We are constantly pushing ourselves to do better. We’re proud of what we’ve accomplished, we’re proud of our record, but we can always improve.

This is a tool for helping us do that. It’s not the only tool. We’re not going to do things because some other government tells us we’re going to do them. We’re going to do them because they’re the right thing to do.

Yesterday we had a meeting of the 10 or 11 U.S. departments and bureaus that are part of our delegation here, and one of the things I said to them is that we ought to be thinking between now and March about what are the things that we can and should be doing, things that we’ve learned, either by our own discussions among ourselves, by our discussions with our NGOs, civil society, and what we hear from governments.

So we view this as part of an ongoing process. We’ll be back again in March and we’ll be back again in four years for the second round of this exercise.

Press: I have a question about the ratification of international conventions about human rights. You gave us your methodology before the Human Rights Council this morning saying that you have a totally different methodology. Saying that you have to comply first with, you have to do some compliance work domestically and then maybe ratify international conventions. I don’t quite understand this. Human Rights Watch was saying that actually you’ve shown no signs of moving towards more compliance domestically. Thank you.

Mr.Posner: I guess I’d say two things about that. One is different countries have different approaches to these treaties. Our approach is and has always been that we will endeavor first to get ourselves into compliance. I don’t agree with the characterization that we’re not taking steps to be in compliance. We’re doing that all the time.

The second thing for us is that we have a tripartite government. And the President and Secretary Clinton have expressed strong support for ratification of CEDAW and the Convention on Disabilities, rights of disabled people. We have to go to the Congress. The Senate has to provide its assent to ratification. It’s in the Constitution. It requires 67 votes. We will endeavor to get those 67 votes but we can’t do it all by ourselves.

Press: One question. There is one NGO saying that Cuba successfully stuck the speaker’s list with some regimes and some very vehement critics against the United States. Do you agree with that?

If it is yes, do you think that America has nothing to say about all this? Yes, everything is fine in America.

Ambassador Donahoe: If your question was about the speaker’s list here for our process, yes.

There has been an informal practice in many cases of countries’ UPRs where various countries will start an informal list before the actual sign-up. That did happen in our case. It happened unusually early. It happened that the list was exceedingly long. However, on the actual day of the sign-up the process went forward, countries lined up, and the list that Cuba started in fact was not accepted as the starting place for the line. So we feel like we were treated fairly.

And I have to say, there is broad consensus to change the informal practice very soon as part of our 2011 review process, and perhaps even sooner, because there’s a lot of frustration brewing with these various informal practices and we intend to change them.

Press: My question is to Mr. Koh. I was wondering, sir, in your elaboration on the legitimacy of using drones to take out, to use the DoD terminology, “enemies of the United States,” is that legal under international law if you don’t have the permission of the country where that person or the enemy of the U.S. is a resident or at the place?

And I have a follow-up. With reference to what you said earlier about the no torture of any prisoners, does that guarantee apply to any prisoners that might have been transferred to friendly countries where there have been documentations of torture in the presence of medical practitioners? Thank you.

Mr. Koh: Taking the second part first, we do not transfer people to places where it’s more likely than not that they will be tortured, so yes, the guarantee does apply.

With regard to the first, you asked me two different things. You asked me about my defense, and then you talked about a situation where there was no consent. I never mentioned such a situation and I know of no such situation.

Press: Well there is the case where the Pakistani government in the first week of the Obama administration strongly protested to Dick Holbrooke not to go ahead with the drone attacks and the administration went ahead.

Mr. Koh: You’re talking about a situation whose facts I don’t know about. I’d be interested to learn more.

Press: I’d like to go back to the issue of waterboarding. You spoke of President Obama’s policy against waterboarding. By using the word policy, does this mean that torture is in the realm of political choice as opposed to human rights? And does this mean that future administrations should they so want to once again allow waterboarding?

Mr. Koh: I think the Obama administration defines waterboarding as torture as a matter of law under the Convention against Torture. It’s part of our legal obligation. So no, it’s not a policy choice.

A/S Brimmer: We used the phrase this morning in my opening statement that there are no law-free zones. What we mean by that is that the prohibition against torture and cruel treatment applies to every U.S. official, every agency, everywhere in the world. There is an absolute prohibition as a matter of law and policy.

Press: [Inaudible]?

Mr. Koh: As you well know, the definition of torture that permitted certain activities was drawn from a 2002 opinion of the Office of Legal Counsel at the Justice Department that has now been withdrawn. That was the interpretation that was relied on. That has been withdrawn and also declared to be legally incorrect.

So I’m not saying there’s not a future administration that might try to come forward and reassert this legally incorrect view in the face of this history, but I think it would be very very difficult to do so, and I would certainly be among those challenging it at that time.


Geneva Press Briefing by Harold Hongju Koh and Michael Posner

Harold Hongju Koh: Let me say on behalf of President Obama and Secretary Clinton how delighted we are to be here. With the Obama administration’s renewed focus on the cooperative efforts of the world and rejoining those efforts, Geneva has again emerged as an extremely important place for the United States government. The Assistant Secretary for International Organizations, Esther Brimmer was here at the beginning of this session. As the Legal Adviser I’m here now with Assistant Secretary for Democracy, Human Rights and Labor Michael Posner which in some way presents the three faces of the Human Rights Council for the United States: an international organization with which we are committed to engage; a set of international legal standards that we’re committed to observe and to seek observance from others; and a set of human rights standards which were laid down through a process that began in the late 1940s, in which the United States was deeply involved.

Coming shortly, later this week, will be Assistant Secretary Eric Schwartz, the Assistant Secretary for Population, Refugees and Migration. Like me, was also a former human rights official in the Clinton administration. Michael Parmley modestly does not mention that he was the Principal Deputy Assistant Secretary and also Acting Assistant Secretary for the Bureau of Democracy, Human Rights and Labor in both the Clinton and the George W. Bush administration.

We also have with us Professor Sarah Cleveland who is the Counselor of International Law of the Office of the Legal Adviser. She is the Louis Henkin Professor of Human Rights Law at Columbia University and co-author of a leading case book on international human rights. It’s because of our deep commitment on these issues that we’ve decided that three human rights experts within the U.S. government should be here today.

I would simply quote the words of President Obama both in Cairo and at the UN General Assembly meeting: America is committed to live its values, to be a citizen of the world, to share in our common human rights future, and to participate actively in UN organizations, to reengage in the UN. We have paid our bills, we have joined the Human Rights Council, we have subscribed to the Millennium Development Goals. As you saw last week the President himself not only gave his first speech at the UN General Assembly, but he also chaired the second session on nuclear nonproliferation.

This is a forward-looking attitude. It is a long term approach. It’s one that values diplomacy and multilateral engagement. It doesn’t assume that there will be universal agreement, but it does assume there will be universal respect for the rights of individuals and for nation states to engage with each other in these fora.

It is this goal of reengaging with the human rights system and particularly the UN Human Rights Council which is the overriding message of our return to Geneva today. There are particular resolutions which we will address in turn as they come up in the course of the session. Assistant Secretary Posner will be here all week. I will be here for a few days and then going on. We’ll be doing bilateral meetings. We’ll be also meeting with other representatives of international organizations here in Geneva.

With that, let me turn it over to Assistant Secretary Posner.

Assistant Secretary Posner: Thanks, Harold.

I want to echo just a couple of things that Harold Koh has said.

I was confirmed only last Wednesday and I’ve made it my first priority to come here to Geneva to represent that the spirit of Cairo lives in Geneva; that we are in fact committed as a government to principled engagement with the UN and the Human Rights Council. I think our efforts with the government of Egypt to promote a resolution at the Council on freedom of expression is emblematic of a new kind of an approach, new kind of alliances, a new level of engagement and participation. We’re in it for the long haul. We’re committed to advancing a strong human rights agenda, working with multiple partners from all regions of the world.

The second thing that’s going to guide our participation here is a commitment to a universal application of human rights standards. To everyone, including ourselves. We are committed in our own dealings with the Council to engaging in the next year, for example, in presenting a set of reports, both under the Universal Periodic Review, and to the Human Rights Committee under the International Covenant on Civil and Political Rights, both of which are due next fall, looking at the United States. We’ll engage our government, we’ll engage civil society. Our intention is to be able to lead by example.

A third and final point is that we come here with a commitment to fidelity to the truth, to being direct in what we say, both in acknowledging and supporting things that have happened at the Council and are happening that we support and approve of, but also being candid and direct in raising concerns about things that need to be addressed.

So it’s very much in that spirit that we’re here, and we’re really glad to be back.

Question: I have two short questions. The first is to Mr. Koh. Human Rights Watch urged today the United States to support the Goldstone Report which will be submitted tomorrow. Have you taken a decision so far?

My second question is to Mr. Posner. As I see from the short bio that you were a human rights defender, and among the people you defended were human rights defenders in Egypt, have you ever defended the former presidential candidate who was in prison?

Thank you.

Mr. Koh: On the first, let me say that that particular report is coming up tomorrow. We’ll be making a statement at that time, and would prefer to wait for that statement to be made to set forth our position.

I will say about Michael Posner, he is perhaps the leading human rights advocate in the world. He founded Human Rights First, previously the Lawyers Committee for Human Rights, in 1976 when he was only 12 years old. [Laughter]. In that capacity he has earned a universal reputation for defending the cause of human rights without regard to politics, religion, race or ethnicity. It is for that reason that he is the obvious choice to have this position.

He won’t say these things about himself because his own qualities include great youth and great modesty, but I thought I would say them before he speaks.

Assistant Secretary Posner: I would just add that the same could be said for Harold.

I have worked most of my professional life in the non-governmental sector. A key aspect of what we’ve done in my previous job, Human Rights First, was to look for ways to amplify the voices of local human rights defenders in Egypt and in countries around the world. I believe very strongly that when we talk about universal application of human rights standards, part of what that envisions is a healthy, robust civil society where freedom of expression, freedom of association, the right to participate are really essential to making it work.

Question: My question regards Honduras. Brazil has just put a resolution in the Human Rights Council about the situation there. I’d like to know how do you assess the situation on human rights being so close to Honduras.

Then the United States also said that it could help to protect the Brazilian [Enmucadera], so I’d like to know how that could happen, what kind of protection we are talking about.

Finally there has been some disagreement about the right forum to introduce this subject between Brazil and the United States. Ms. Rice said the Security Council wouldn’t be the more adequate forum for that. So I’d like to know which one would be.

Mr. Koh: As you know, the crisis in Honduras has been going on now for more than three months. I know this because it happened the day after I came into office, so I kept very close track.

Today may be actually the most delicate moment of all because of the location of the various parties, et cetera.

First on the issue of the Brazilian Embassy, as the international lawyer for the U.S. government, obviously the respect for the inviolability of diplomatic premises is something that the United States is deeply committed to. With regard to the Honduras situation itself, this is something in which we have supported the process being convened and conducted by the former President of Costa Rica, Oscar Arias Sanchez, the Nobel Peace Prize Winner. Our hope is that a solution can be brought about in that setting which can be respectful of the right of democratic governance as well as the human rights of all Hondurans.

Question: In the resolution on freedom of expression that was tabled on Friday, there were four references to the Human Rights Council Resolution in which the Special Rapporteur on Freedom of Expression was instructed to investigate violations of freedom of expression. Many NGOs have been expressing alarm that the U.S. would have supported, implicitly by tabling this resolution with Egypt, have supported that original instruction to the Special Rapporteur. Do you have any comment on that?

Mr. Koh: As I understand it there’s still a back and forth yet about the wording of that resolution.

It is true that the resolution grew out of the spirit of Cairo to which Assistant Secretary Posner referred. Again, the thought driving it was that it should be possible to put the notion of a clash of civilizations behind us. It was never true. There can be a commitment to universal human rights. And that one way to illustrate that is by focusing on a core value, the value of the freedom of expression, which is why there’s been close dialogue between the United States government and the government of Egypt on these issues.

I think the freedom of expression is a keystone right. It enables political expression. It enables democratic participation. For that reason we believe that having a resolution that receives broad consensus support within the Council is something very much to be desired.

As always, these matters are being discussed, particular wording issues are being addressed, particular mechanisms are being debated. But until the final version of the resolution is agreed upon we won’t have a sense of whether that outcome will have been successfully achieved.

But I do want to specify something very deep and profound. We have a President of the United States who is an African-American when many people believed that was something we would not see in our lifetimes. I say with some degree of pride that he has Asians in his family. He is actually from an Asian-American family. He lived in his early childhood in a Muslim country, Indonesia. This is a person whose rise to leadership in the United States government has been the product of extraordinary opportunity and extraordinary access to human rights.

We have a Secretary of State who spoke on the issue of women’s rights as human rights more than 15 years ago at Beijing; whose commitment on issues of human security is comparable to that of Eleanor Roosevelt whose picture is behind us.

So the commitment on these issues runs throughout the U.S. government and also in the selection of individuals to serve in high political positions.

So the overriding themes are the ones that we want to stress. Any particular resolution and the wording of any particular resolution is I think a secondary matter to this broad renewed commitment, which on the one hand may seem like a new attitude, but in fact is the re-creation of an attitude that the U.S. government has traditionally held toward the UN human rights system going back to 1948.

Question: I have a question about your new attitude you were talking about at the Human Rights Council or within the UN system, and you just mentioned the example of the resolution on freedom of expression. You’re working with the Egyptian government. Does it mean that you want to change totally the dynamic of the Human Rights Council? Not only relying, for example, on the Western allies such as the European Union or things like that, but working with everybody?

Mr. Koh: I think you may be asking a question of tactics when we’re actually responding at the level of principle. What you heard from Assistant Secretary Posner is that we are committed to engagement and dialogue; we’re committed to universal standards; and we’re committed to telling the whole truth. And we think this is a forum, the Human Rights Council, where those three principles — engagement, universality and the whole truth — can be explored in conjunction with other committed members of the Council.

So we have not been a member of the Council until now. It’s an experiment. And we had significant experience with the old Human Rights Commission. I met some of you when I would come for those meetings. But I think our goal is to pursue those principles.

Now it may well be that on any particular resolution this means we are working closely with any number of different countries, which is to say that this cooperative spirit is one which is designed to create new relationships, not to focus in on old stereotypes.

Assistant Secretary Posner: I would just add to that, that if you go back to what Harold Koh said a moment ago about the freedom of expression resolution, it represents our belief that the values of free expression and the values that support freedom of religion and freedom of faith are not inconsistent. They can be merged. They’re reinforcing of one another. There is a view on our part, here working with the Egyptians, that those are values and attitudes that can transcend regional or geographic differences.

That to me is, again, an example of our looking for new alliances, new ways of working. It doesn’t mean ignoring old allies or the countries we’ve worked with more closely in the past. It’s broadening the debate and trying to find ways to bridge differences and to create better outcomes.

Question I would like to come back to Honduras and what is going on. It seems that in fact the government has rejected, the de facto government has rejected the OAE mission. The two people were not allowed to come back to the country. They don’t want this mission to go on. So you say that in fact for Honduras we have to go on with this setting, but this setting doesn’t seem to fit. So what are the, I don’t know, the propositions of the United States regarding this particular issue?

The second thing, we have had different human rights reports on the human rights violations there, so what will be your position in this Human Rights Council regarding Honduras and the resolution proposed by Brazil?

Mr. Koh: Again, we would prefer to state our position on particular resolutions as they come up. In some cases, depending on what version comes up of Resolution A or B, we would have a different view. So I think it would be premature for us to comment on that point.

What I have said earlier is that the Honduras crisis has been a subject of shifting events from day to day. So what you may have reported is the latest situation, but it may not be the final situation. So what we are continuing to do is to support the restoration of democratic governance and the protection of human rights for all Hondurans, and we believe the process which is best able to accomplish that is the process which is being supervised by former President Arias.

Question: You said you don’t want to preempt what you’re going to be saying tomorrow in the Human Rights Council about the Goldstone Report, but the State Department has already made some comments about what it thinks of the report, so I’d like to ask you about those, if I may.

The comments included one that the report was unfair to Israel. Also criticized the mandate under which the report was commissioned. Is that still the position that you hold on this report?

A second question would be sort of a broader step, looking at your relationship with the Human Rights Council. Will there be any political considerations going into how you deal with this report? Or will you be dealing with it solely on a sort of legalistic basis as you seem to be implying in your opening statement? If you have political considerations going into it, that might undermine what you were saying about wanting to look at it from a purely legal point of view.

Mr. Koh: As Assistant Secretary for Human Rights, and now I’m the Legal Adviser, I don’t actually think that the term “legal” means “bad.” I actually think that legal standards often capture the spirit of human rights commitments.

I think, again, our full statement will be made tomorrow by Assistant Secretary Posner. I don’t want to preempt those. I think Mr. Goldstone himself expressed his own concerns about the mandate when he was given the mandate. He’s been quite open about it and made adjustments in the mandate before proceeding. He calls it the Independent Commission precisely because he was concerned about the way in which the mandate had originally been drawn.

So I think for us to make that point is not to make a point that Judge Goldstone didn’t himself make.

Question: If I can just follow up on what Frank asked. Can you explain at least why you think it’s unfair to Israel? On the content of the report itself, why does the State Department believe that it’s an unfair report?

Secondly, on the issue of Iran, will there be any legal pushes for all the countries in the Middle East to sign onto the NPT? Or will there still be exceptions made?

Mr. Koh: I think on the first question I’ve answered it, which is that the full position of the U.S. government with regard to the Goldstone Report will be presented tomorrow, so there’s not much point in my rehashing a word or two in prior press statements.

On the nuclear nonproliferation matter, the resolution that the President brought to the Security Council and that was adopted makes very clear the U.S. commitment on nuclear nonproliferation which was combined with the extraordinary revelation about the second plant in Iran. So I do believe that the United States considers that to be an extraordinarily important commitment.

If you listen to the President’s speech at the UN, his number one issue was a world free of nuclear weapons. Both the NPT and the Resolution play a critical role as a matter of law and as a matter of policy in bringing that outcome about.

Question: Freelance Writer, Newspapers in Europe, North America and Asia.

I have a question. In the mid ‘90s, in 1994, President Clinton delinked trade and human rights in the case of China. President Obama as a candidate linked trade and human rights vis-à-vis Colombia. I was wondering what’s the situation now that he’s in the White House? As a candidate he said that he would not ratify an FTA as long as trade union activists were being assassinated in Colombia. What’s the state of play on that issue right now? Thanks.

Mr. Koh: This isn’t really a question of human rights policy. I don’t think there’s a “one size fits all” approach.

What you’re talking about in the context of China in 1994, obviously raises entirely separate and different questions from those which may arise with regard to a different country at a different point in time. So the President’s policy on these issues I think is pretty clear. He promotes human rights, through engagement. He promotes human rights through diplomacy. He promotes human rights through efforts to find common ground. And he’s prepared to do this in both bilateral and multilateral settings.

Often an engagement strategy will involve many different tools being employed at the same time with regard to a single country. And I think that’s true of each country with which we have a diplomatic relationship. The two countries you mentioned are among them.

Question: Sorry I didn’t get an answer. What’s the state of play right now? Because as a candidate he made it very clear he would not support FTA ratification unless the assassinations were decreased dramatically. What’s the state of play right now on that issue?

Question: The former administration was quite skeptical about the creation of the Human Rights Council. We could see that here in Geneva that, well, the engagement wasn’t very clear. And actually when we had to vote on the final package they were rather against that.

Do you consider the creation of the Human Rights Council as a positive move towards a reinforcement of the human rights system?

Mr. Koh: I think the decision for the United States to engage and to become a party to the Human Rights Council represents our hope that we can work with the Council to help ensure that it is a positive component of a UN system that promotes human rights. We’re new to the scene. We’ve expressed concerns already, and there was a considerable debate in the United States about the early track record of the Council. But we’re here very much in the spirit of working constructively to make it a strong and principled body that actually helps real people.

Question: You said that membership in the Human Rights Council was an experiment for you. Could you outline the parameters of this experiment? What you’re hoping to achieve and how it might fail?

Assistant Secretary Posner: I think Harold used the word experiment. I would say we are here to engage, we’re here in the long term, we’re here to make a positive contribution. That does not mean that we’re satisfied with everything the Council has done or is doing. So when Harold says it’s an experiment, we are here on the theory that we’re going to be an active player and we’re going to push for the Council to be as strong a body as it can be. We may not succeed, but we’re here for the long term in a serious way to engage.

Mr. Koh: Frank, life is an experiment. Mine has gone on for more than 50 years and I hope I continue experimenting.

I don’t think you should take that as a statement that it’s temporary, but I do think it’s a statement that it’s new. Therefore the United States is experiencing membership in the Council for the first time. It has many different dimensions, as you’ve heard from Assistant Secretary Posner. Some of those we will not actually experience until we ourselves are engaged in them, and our own universal periodic review comes up, for example.

So the full contours and meaning of membership in the Council will be revealed over time and how the Council develops as an institution and what constructive role we can play in that development remains to be seen. That’s why we’re here.

You have two choices with institutions. You can stay away or you can engage and try to help them serve the purposes for which they were created. I think that’s been the approach of this administration. It’s not just our approach of the Human Rights Council. It’s our approach to the UN system writ large. It’s not a statement that any institution is perfect, but these are institutions that exist, they are critically important, and that they deserve the commitment of the United States to focus in on these sets of issues we’ve described — engagement, universality, and truth telling.

Question: [Inaudible]?

Mr. Koh: We have principles and we have hopes, and that’s how we’re pursuing this. That’s how I pursue this press conference. [Laughter].

Moderator: I will take one more question.

Question: It was in fact regarding Guantanamo, but it’s regarding the situation of prisoners that President Obama said there might be some prisoners who cannot be released, who cannot be in fact judged. So regarding this unlimited detention, this might be really contrary to human rights issues. I wonder how you think you could deal with this definition regarding unlimited detention.

Mr. Koh: I think it’s best to put it in the overall context. The President in his inaugural address, and he repeated again at the UN General Assembly, made three strong statements. First, that America will live its values, they will make us safer, and they will be true to the principles to which we’re committed.

Secondly, that the United States will not participate in or condone the inhumane or cruel treatment of prisoners.

Third, that Guantanamo must be brought to a close.

The President has not wavered from any of those three principles. What he has in fact done is implement those through various steps. Three Executive Orders were issued on January 22nd; a review of conditions on Guantanamo was simultaneously ordered; there’s been a review of detainee files which is ongoing; there’s been a report on interrogation and transfer. The U.S. Defense Department has issued a statement saying that any interrogation techniques that will be used must satisfy the Army Field Manual. New procedures for review have been announced in Bagram. The Detention Policy Task Force has announced that it will give its final review in a few months. And the work continues.

It’s an effort that’s engaging many many parts of the U.S. government at the moment.

This is a full scale review of a policy that came to be over the course of the last eight years, and we are only nine months in to this administration.

Today is Monday. On Saturday the government of Switzerland convened at the ministerial level at the UN General Assembly a session in honor of the 60th Anniversary of the Geneva Conventions. The United States was represented at that session by myself as the Legal Adviser at the State Department, but also Jeh Johnson, the General Counsel of the Defense Department, and also Vice Admiral James Houck, who is the Judge Advocate General of the Navy. We stated again, the clear commitment of the United States on the 60th Anniversary of the Geneva Conventions to the core principles of those conventions and enumerated many of the same steps that I’ve just described.

So our effort to respect the Geneva Conventions is, again, continuing. The press stories often report on one event or another, but the totality of the picture I think is important to take a look at also.

Question: Does that mean that it’s possible that people will be held indefinitely without trial, or without having undergone complete and proper legal procedures? That’s not clear from what you just said, sir.

Mr. Koh: I think the President conveyed the possibilities that are being examined in his May 21st speech at the National Archives. That’s the guide on which we’re proceeding. Nobody has been firmly and finally placed in any of the categories and the process of review is continuing.

With regard to that category, again, I think the President made clear that that’s a difficult category. He doesn’t know whether it will exist or not until he detainee review is finally completed.

Voice: Thank you all for coming. I appreciate it.


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