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US Foreign Policy and the Invasion in Ukraine from a Human Rights Perspective: An Interview with Keith Harper

Ambassador Keith M. Harper was US Ambassador and Permanent Representative to the UN Human Rights Council from 2014 to 2017 based in Geneva, Switzerland. He is now a partner at the law firm Jenner & Block, serving as the Chair of the Native American Practice as well as Co-Chair of the Human Rights & Global Strategy Practice. Former President Barack Obama appointed him to serve on the President’s Commission on White House Fellowships in 2010, which he served on until 2014. He also served as a chair for Native American policy in Obama’s 2008 presidential campaign and then as a member of the Obama-Biden Presidential Transition Team in the Energy and Environment Cluster. 

For the lion’s share of his legal career, Ambassador Harper has represented Indian Tribes and individual Indians. He represented the plaintiff class of 500,000 individual Indians and served as class counsel in the landmark Indian trust funds lawsuit, Cobell v. Salazar. Ultimately, the case settled for $3.4 billion in 2009, which at the time represented the largest settlement of a lawsuit against the United States in history. Ambassador Harper graduated from University of California, Berkeley with a B.A. in Sociology and Psychology and from New York University School of Law with a J.D. After NYU, he clerked for the Honorable Lawrence W. Pierce on the US Court of Appeals for the Second Circuit.

Anushka Srivastava: How did you balance your personal politics with your duties as a US ambassador? 

Keith Harper: I was fortunate enough to serve a president in an administration where our values matched. Barack Obama’s vision of America is not dissimilar to my sense of what this country is and what’s in the national interests of the United States. He’s certainly someone who very much saw the vagaries and the problematic nature of things like torture, for example, whereas some other politicians did not. He saw the limits of the use of military power to solve international crises. I shared with him the idea that the United States should be advancing human rights. His administration made that a cornerstone of its foreign policy, which I thought was the right thing. 

If there were differences between others in the administration and myself, they were fairly mild. Even when you’re playing a senior role in government, you recognize that there are going to be some calls that just aren’t your calls. You may get to have a say in the conversation, and you certainly hope for that. I was normally able to get a voice in the dialogue on things that were within the scope of my duties, but at the end of the day, some of those calls were made by others. Sometimes they’re made by a group of voices across agencies, so I did not find it particularly challenging to balance. 

I will say that for those who serve as career officers in the United States Foreign Service, they may encounter an administration or a president that is less consistent with their political views, but they accept that bargain when they decide to go into the field. Ultimately, you always have the choice. It’s a hard choice, but if the delta is too great between what you believe is right and what the administration believes is right, you can resign your position, and some people have done that. And I admire those who have. 

For instance, in the early parts of the Trump administration, there was a departure of a number of very senior Foreign Service officers that had served presidents of both parties. Under the Trump administration, many saw what they believed to be a departure from American values and a departure from the right thing to do. Staying despite that was a bridge too far, so many left after serving for two, three decades.

AS: Who filled the vacuum that was created as a result of many Foreign Service officers departing during the Trump administration?  

KH: No one in most cases. That’s one of the reasons the State Department was essentially hollowed out and ineffective at diplomacy. So many talented people left. Peter Mulrean, who served as a deputy ambassador in Geneva and then became ambassador in Haiti, departed a month after the administration took office because he could not live with the values expressed by the administration. Well, when you lose a talent like that, it’s hard to replace. Linda Thomas-Greenfield, who is now the US Ambassador to the United Nations, departed after many decades even though she was and is considered one of the most outstanding diplomats in the State Department. Her departure was a huge loss. So many felt the need to depart. That is unusual. That’s a sign of an unhealthy administration in my judgment. But if I were in their shoes, I’m sure I would’ve departed as well. 

AS: Has there been a resurgence of people coming back into the Foreign Service under the Biden administration?  

KH: Oh yes. There’s Sheba Crocker, Linda Thomas-Greenfield, and several other talented ambassadors in Geneva. There are numerous people that have now decided to take their talents and come back to the State Department. It’s been gratifying to see that these experienced, effective diplomats are willing to come back in. A lot of those folks have fortunately come back in at a time when we need their talents as the world gets increasingly challenging. 

AS: As ambassador under President Barack Obama, how did you balance advancing human rights with other US foreign policy goals? When were they complementary to each other and when were they in tension? When they were at odds, what usually prevailed?  

KH: It’s a balance. I’ll give you a specific instance where our advancement of human rights took precedence in a very clear way. The United States and China have a very complicated, nuanced, challenging relationship, both economically and politically. Many global problems are not addressable unless China and the United States are working—or at least not in direct contravention—with one another. The United States has no desire to unnecessarily poke China in the eye, but I read for the first time on the floor of the Human Rights Council, a joint statement of 12 countries condemning China’s human rights record. 

At the time, China was going from attacking human rights activists and their lawyers to kidnapping people from Hong Kong, and we just thought that we had to draw a line in the sand. If we were serious about the human rights system, we had to make clear that this kind of a breach would not go unanswered. So we pushed back, and China took notice, and we think that that had a demonstrable effect on their attitudes and conduct. That’s an instance where despite our complicated relationship with China, we were nevertheless steadfast in pursuing human rights. 

It’s naive to think that we promote and advance human rights without any other consideration of national interests. That’s not the way the world works, so it must be a balance. One in which human rights is on the table, and we pursue it where we can, even when it’s difficult. But sometimes it must be balanced with other considerations, be they economic, political, military, or something else

A good case in point is security cooperation, especially regarding terrorism. Some of the most unsavory states are ones we need to cooperate with because they and the United States both have an interest in fighting terrorism, although they may have poor human rights records. There are times when we will be critical of these countries, yet the next day we work with them on terrorism. And if we think that the cooperation on the terrorism side will be dramatically hurt by how we proceed on pursuing and advancing human rights, then that would be considered. And it must be considered. So, I think that the difference in an administration like the Obama administration is that you advance human rights to the fullest extent possible, and you make it a priority. You can’t make it a definitive bright line, but you make it a priority in your interaction with other countries. 

AS: How do you balance pushing for the prioritization of human rights in US foreign policy and maintaining credibility?

KH: As a proponent of US engagement in advancing human rights to the fullest extent possible, I, and others like me, must remain credible within the decision-making system. You have to understand what the system can handle as far as that balance is concerned. For instance, if you insist on criticizing the human rights of country X to the fullest extent, even if that jeopardizes that relationship and means we don’t have cooperation on terrorism, then you lose credibility in the system. So, you have to understand where things lie, and you have to listen to other people. You get to make your case, and that gets balanced by people like the Secretary of State or the National Security Advisor. But at the end of the day, a number of those decisions will be made by the most senior officials. 

AS: Based on your experience as the former US ambassador to the UN Human Rights Council, how is the war in Ukraine being treated from a standpoint of human rights norms that have been carefully constructed and reinforced in the international community over the years? Why is this invasion being treated differently than previous invasions that one could argue were of a similar nature?  

KH: I see Ukraine as an inflection point in what we call the international rules-based order, which is a set of rules about how states have to act with one another and vis-a-vis individuals. Human rights concerns that latter piece. And yes, there was an invasion of Georgia and yes, there was an invasion of Crimea, and yes, there have been other invasions by various states in various places. I think one of the differences here is that it is quite obvious that Russia’s intent is to conquer Ukraine, and it would like to force it into a client state. That undermines certain really basic principles of international law since the UN was formed. 

Firstly, it breaches the territorial integrity of Ukraine because Russia is essentially trying to annex it. The second principle being violated is self-determination. Ukrainians have clearly decided that they would like to tilt towards the West and have relations with the West to a greater degree. Well, that’s what we call self-determination, and all peoples have the right to self-determination, including the Ukrainian people. I think this is different because we’ve had this international rules-based order that, although it has been breached from time to time, has never really been breached to this degree. Here you have one country invading a country and attempting to either annex it or force it to become part of its orbit over many, many years. I think for smaller countries, they like the rule against breaching the territorial integrity of another state, because it protects them from being invaded at will by more powerful states. 

Countries in Europe were going back and forth on wars and taking each other’s territory for hundreds of years. As a result, they have understood that’s just not a formula for stability and prosperity. The United States cares because we have fundamentally taken the position that when we can enforce this set of international rules to the fullest degree, we help set the foundation for a more secure world. That security is what undergirds greater prosperity and development. 

I think that’s why you’re seeing in the General Assembly a vote of 140 to five. I mean Cuba, Venezuela, and Algeria did not vote with the Russians. That’s extraordinary. The only people that voted for Russia were Russia, Belarus, Syria, Eritrea, and North Korea. These are all incredibly rights-abusing states. In the Human Rights Council, the vote was 30 to two. Russia and Eritrea were the only no votes on the Commission of Inquiry. 

I think that the world sees this as different because it is such an extraordinary breach of fundamental rules that protects everybody’s interests internationally. 

AS: Germany recently launched an investigation against Vladimir Putin for war crimes in Ukraine. How effective do you think it would be to prosecute Putin for committing war crimes through the International Criminal Court (ICC)? More broadly, should there be international accountability for Putin?

KH: I hope there is. There are a lot of obstacles to that, especially when it involves a sitting head of state. And we’ve seen that in many instances. Famously, with respect to Kenya and its elite. Now, we see how it’d be difficult to have President Rajapaksa of Sri Lanka brought to the ICC. When you have an autocrat who’s in total control as Putin seems to be, until he’s overthrown, it’s hard to see how he’d end up at the ICC. But maybe it happens down the line, and would it be good? It would absolutely be good, because those individuals who commit gross and systematic violations of human rights—crimes against humanity in this situation—should be brought to justice. I am just skeptical of the path to get there. 

AS: Would you say that enforcement is a big struggle for international law?

KH: Yes, because we don’t have that many tools for enforcement—embarrassing a country by naming and shaming, several forms of sanctions, and varied uses of force. Basically, what you have at your disposal have various iterations and nuances to each. Conversely in domestic law, you tend to have very clear ways to enforce compliance. We always say coerce compliance with law. It’s going to be a perennial challenge for human rights, but this kind of action regarding Ukraine makes it more likely that we will be successful in being able to enforce those rules in future cases, because the bad guys who are thinking about taking action like this will be a little bit more reluctant to do so. The West, its allies, and many world actors see the importance of defending these rules in international affairs. Altogether, it enhances the system significantly. 

AS: How effective was the UN Human Rights Council resolution condemning Russia? What other tools can powerful countries wield through international institutions like the Human Rights Council to wean off Russia?  

KH: It’s incredibly powerful to have a vote like that in concert with other things. For one, it’s a clear indication between the two votes—the one at the UN General Assembly and the one at the Human Rights Council—that Russia is the bad guy and a wrongdoer, and that helps to politically isolate Russia. Giving Russia a scarlet letter, in some senses, is important in international affairs, because that undermines the credibility of their future actions. On the other hand, it also legitimizes and emboldens the United States and EU to sanction Russia, because there’s not a lot of people defending them. Those sanctions become a sword that is seen as justified. 

These are political weapons, and they are helpful in the global debate about what should happen with Russia’s dangerous and incredibly inhumane, indiscriminate violence against the Ukrainian people. Relatedly, there have been other actors who have threatened this or threatened that. China has flirted with the idea of military force against Taiwan. Well, now the West and most of the world has demonstrated that it will not stand by and let those kinds of things happen. At one level, you’ve got the impact it has on the Russian Federation in the Ukraine situation. But then you have broader, more systemic implications that should affect the calculus of other states when they’re thinking about things of this nature. 

AS: How will Russia’s recent actions set the tone for the foreign policy of the United States and other countries moving forward?  

KH: After the Trump years, there was a questioning of whether the West was in retreat. And I think that this demonstrates that we’re not in retreat. Not only that, but we are also prepared to stand steadfast for our values. I think that is a really important signal for the world, but it’s also an important signal internally to the United States. It demonstrates what we can still do. What has occurred by the uniting of western democracies, and really the world in many instances, has been gratifying in reaffirming that we can still have unification around an international rules-based order.

*This interview has been edited for length and clarity.