Bias at the United Nations Human Rights Council: A Quantitative Approach
The UNHRC, tasked with investigating human rights violations, is often accused of political bias. This article examines the conduct of the Council by comparing the severity of cases it has chosen to examine with the severity of those it has not. The findings confirm the existence of longstanding political bias—particularly against the State of Israel
UNHRC special meeting on Palestine, May 18, 2018 | Photo: UN Geneva/UN Photo/Elma Okic (CC BY-NC-ND 2.0)
Consider an arson investigations unit that investigates only 25% of all fires that occur in its district. What if, on average, for each fire it does investigate, about half of the remaining 75% uninvestigated fires are more severe in magnitude? In other words, in such a district most fires are ignored—but of those that are reviewed, many are relatively minor. Such a unit would be allocating its resources in dramatic disproportion to the severity of the incidents occurring in its district. Could that unit be seen as a reliable authority on the incidence of arson in its district and as a credible vehicle for its investigation? Few would answer affirmatively.
A comparable situation exists in the realm of human rights as relates to the international body tasked with addressing them, the United Nations Human Rights Council (UNHRC). According to the Council, it is responsible for strengthening the “promotion and protection of human rights around the globe and for addressing situations of human rights violations.”[1] In its efforts to discharge this responsibility, the Council passes numerous resolutions every year, as did its pre-2006 precursor, the United Nations Commission on Human Rights. Between the Council and its predecessor, since 1963, 73 investigations have been opened to report on specific instances of potential human rights violations around the world.[2]
While the above goal may be laudable in its own right, it is important to ask whether, or to what extent, the Council functions as a reliable instrument for revealing human rights transgressions. The question of reliability is particularly salient given resource constraints and the need to prioritize. Since there is no way of knowing the extent of human rights abuses in advance of an investigation—if indeed it is being conducted with impartiality and objectivity—the question we can ask is whether the Council focuses on those global incidents with the greatest potential to exhibit such abuses.[3]
The issue is not merely hypothetical. Given the possibility that reports or statements by the Council could be used as means of imposing political and legal costs, under the mantle of “accountability,” systematic bias in the Council’s work can have real world consequences for countries treated unfairly. Needless to say, such bias also has negative consequences for victims of human rights abuses that the Council ignores. Many have criticized the Council’s attitude towards the State of Israel, as expressed, inter alia, by the frequency of its disparaging resolutions and by the Council’s permanent agenda item, which singles out Israel.[4]
However, beyond assessing even-handedness in the formulation of mandates and investigative methodology—important issues in their own right—we may ask whether the Council is choosing the incidents it investigates in an unbiased manner. An advantage of asking this question is that it is relatively amenable to quantitative analysis, unlike the far more complex issues pertaining to determining whether human rights violations have occurred in a given case.[5]
Investing in language testing and development is a critical component of Israel’s public diplomacy effort, and one that has been neglected in its fight for legitimacy
With this in mind, this essay proposes a quantitative measure that attempts to capture the extent of bias in the Council’s choice of cases. To this end, this essay compiles a list of incidents with potential human rights violations and compares their severity (in terms of fatalities) with the attention they receive from the Council in terms of commissioned investigative bodies.[6] Though the question whether human rights were violated is much more complex than counting fatalities, it is reasonable to expect a strong correlation between the overall magnitude of a conflict or an incident and the likelihood of human rights violations.[7] Thus, civilian and overall fatalities data provide useful quantitative proxies, especially since verifiable human rights abuses are unknown a priori.
One would expect that a perfectly unbiased council would concentrate all its attention on the most severe incidents. The greater the disparity between severity and attention, the more biased the Council—whether due to granting too little attention to relatively severe incidents, or to granting relatively minor ones too much. In this sense, the data show consistent and significant bias in the Council’s choice of cases. Both under the Commission until 2006, and under the Council since, the bias measure evaluates to almost 0.5, implying that for any given investigated incident, close to half of the uninvestigated incidents are likely more severe (and vice-versa). When the entire 1963–2017 period is looked at, the bias measure is even more pronounced, evaluating to 0.56.[8]
Another troubling matter concerns the Council’s disregard of the country at issue’s level of judicial independence when deciding which incidents to investigate. The principle of complementarity, under which an international investigation would be appropriate when national legal authorities are unwilling or unable to hold good-faith, independent investigation, is a central consideration to international bodies’ decision-making. Thus, one would expect a country’s level of judicial independence to play a role in determining whether the conflict incidents with which it is involved should be subjected to internationally mandated investigation.[9] In other words, by choosing to investigate one given incident rather than another, the Council is suggesting, inter alia, that the legal authorities of the relevant country cannot be relied on to investigate the chosen incident.
Yet the data show that the Council instigates investigations in complete disregard of countries’ level of judicial independence.[10] Given that the Council is comprised of a consistent majority of countries that themselves have relatively low judicial independence, there is something disturbing, at least from a moral perspective, in their implicit ability to weigh in on the matter of other countries' judicial independence. The issue is even more problematic when one considers the low average level of judicial independence among countries that are implicated in conflicts that the Council ignores.
With regard to Israel, the data reveal a striking degree of bias in the Council’s conduct, casting serious doubt on its investigative credibility. Moreover, considering that Israel has one of the most independent judiciaries in the international system (see section below), the Council’s excessive focus on it is particularly alarming. These facts should be given due regard when assessing the merits of the Council’s engagement on matters pertaining to Israel.
A Quantitative Measure of Bias
There are different ways to think of bias. There is the value-neutral statistical sense, the judicial sense pertaining to impartiality in legal deliberations, and the pejorative sense of common usage. The “bias” considered here borrows partly from the first two senses by defining a quantitative measure that can serve as an indication of investigative reliability.
The basic question asked here is: Does the Human Rights Council devote its attention and resources to investigating the most severe instances of potential human rights violations within its purview?[11]
As a proxy for incident severity I look at fatalities data from known international conflicts. Though battle-related fatalities are obviously a much narrower concept than human rights violations, there are grounds for using them as a proxy for potential violations. The definition of “grave breaches” in the Geneva Conventions demonstrates why:
Grave breaches to which the preceding Article relates shall be those involving any of the following acts, if committed against persons or property protected by the Convention: willful killing, torture or inhuman treatment, including biological experiments, willfully causing great suffering or serious injury to body or health, and extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly (Geneva Convention 1, 1949: Article 50).[12]
In a similar vein, the International Covenant on Civil and Political Rights (ICCPR) includes the right to life among the core of human rights that may not be infringed under any circumstances. As these two examples suggest, incidents that result in a significant number of fatalities are a primary context in which most international humanitarian law and human rights law breaches are likely to occur.[13] To determine whether specific fatalities are in fact the result of a violation, incidents must be investigated. But given resource limitations, any investigative body must prioritize and devote its resources to those incidents with the greatest likelihood of unlawful state conduct. Overall fatalities and civilian fatalities data provide a quantitative, systematic metric for gauging this likelihood.
Investing in language testing and development is a critical component of Israel’s public diplomacy effort, and one that has been neglected in its fight for legitimacy
For this essay, I therefore compiled a database of all “incidents” potentially worthy of investigation in the post-1963 era—the year the Commission on Human Rights established its first fact-finding mission. I drew the cases from Leitenberg (2006) and extended the dataset to the 2000–2017 period using the GED (Georeferenced Event Dataset) dataset of the Uppsala Conflict Data Program (UCDP) at Uppsala University (Sundberg and Melander, 2013; Croicu and Sundberg, 2017).[14] The UCDP GED records all incidents “where armed force was used by an organized actor against another organized actor, or against civilians, resulting in at least 1 direct death at a specific location and a specific date” (Croicu and Sundberg, 2017).[15]
Using these data, 179 separate conflict incidents are recorded for the 1963–2017 period. For each incident, I recorded whether a Fact-Finding Mission (FFM), Commission of Inquiry (CoI), or other dedicated investigative body was established, based on the list reported online by the UNHRC.[16] Of the 73 such bodies established since 1963, 61 address incidents recorded in the above list, 11 concern events that do not appear on the list, and another addresses a non-state actor, Boko Haram. I added these 11 events to the above list, with fatalities data drawn from independent sources, for a total dataset of 190 incidents.[17]
The primary indicator of incident severity used here is the overall fatalities figure. However, in order to take civilian fatalities into account, I introduced an additional measure that gives each incident a composite score mapping onto the unit interval [0,1] based on both overall and civilian fatalities:
Where Si is the severity of incident i, Fi and CFi are the respective fatalities and civilian fatalities figures for incident i. Fmax is the largest fatalities entry in the dataset—2,358,000, recorded for the Vietnam War. By this measure, the maximum severity would occur when the highest fatalities figure was entirely comprised of civilian fatalities, with all other incidents scoring relative to that maximum. An incident with 0 fatalities scores 0. Though the civilian fatalities figures are sparser and need to be regarded with caution due to data limitations, they offer an additional dimension that is important to take into account.[18] For example, incidents recorded for Iraq (1999) and Burundi (1974) each have 100,000 total fatalities, with respective civilian fatalities estimates of 100,000 and 80,000. The respective severity scores of these two incidents compute to 0.042 and 0.038, reflecting the added weight given to additional civilian fatalities.
To record “bias” in the Council, I suggest a measure that looks at the distribution of commissioned bodies across the list of incidents. For each investigated incident, I recorded the number of uninvestigated incidents with higher severity factors, both in terms of overall fatalities and in terms of the composite severity measure proposed above. Such incidents are subject to negative ‘deviations’ of the Council (that is, they gain the Council’s attention while more severe cases do not). For each uninvestigated incident, I similarly recorded the number of investigated incidents with lower severity indicators. Such incidents are subject to positive deviations of the Council (that is, they are overlooked by the Council while less severe cases gain its attention). Computing the averages of the above figures provides a general indication of the Council’s negative and positive deviation in the recorded period:
Where d- and d+ are the respective average negative and positive deviations of the Council, di- is the number of uninvestigated incidents with higher severity than incident i, n is the total number of investigated incidents, dj+ is the number of investigated incidents with lower severity than incident j, and m is the total number of uninvestigated incidents. Given these averages, I define the Council’s bias, B as:
The above equivalence is due to the fact that the number of negative and positive deviations is the same, since each such deviation ‘comes at the expense’ of a converse counterpart.
Note that B maps onto the unit interval [0,1], with the extremities representing cases of complete absence of bias (B=0) and maximum bias (B=1) respectively. Total absence of bias reflects a situation in which the Council’s attention is reserved solely for the most severe incidents. Maximum bias reflects a situation in which all the Council’s attention is concentrated on the least severe incidents. The greater the disparity between the Council’s attention and the severity of the incidents, the closer B is to 1.[19]
Findings
Capacity – One observation we can make is that the Council’s capacity, in terms of the proportion of incidents it investigates, has gone up dramatically over time. While the number of incidents has also increased, reflecting an increase in the number of states, the number of commissioned investigations has gone up more.[20]
Table 1: UNHRC Commissioned Bodies and System Size over Time
Sources: Leitenberg, 2006; UCDP GED dataset Global Version 18.1 (2017); UNHRC International COIs and FFMs Chronological List
Bias – For the entire post-1963 period, 142 of 190 incidents were not investigated. For the 48 incidents that were investigated, the average number of more severe incidents (i.e., incidents with more fatalities) that were left uninvestigated, per investigated incident (representing the Council’s and Commission’s negative bias) is 80.3 (78.6 when calculated for incident severity).[21] For the 142 uninvestigated incidents, the average number of less severe incidents that were investigated, per uninvestigated incident (representing positive bias) is 26.7 (26.1 when calculated for incident severity).
The total bias in this period evaluates to 0.56. Thus since 1963, on average, almost 60% of the uninvestigated incidents were more severe than incidents that were investigated by the Council and Commission (and vice-versa). In other words, the Council and its predecessor focused highly disproportionately on relatively minor cases.
In the post-2006 period, when the Commission was replaced by the Council, 18 of 37 incidents were not investigated (48.6%). For the 19 incidents that were investigated, the average number of more severe incidents that were left uninvestigated, per investigated incident (representing the Council’s negative bias) is 8.4 (7.8 when calculated for incident severity). For the 18 uninvestigated incidents, the average number of less severe incidents that were investigated, per uninvestigated incident (representing the Council’s positive bias) is 8.8 (8.2 when calculated for incident severity).
Investing in language testing and development is a critical component of Israel’s public diplomacy effort, and one that has been neglected in its fight for legitimacy
The bias of the Council in the latter period evaluates to 0.46 (0.43 when calculated for incident severity). This is very close to the bias in the pre-2006 period, which evaluates to 0.48—indicating that on average, and consistently over time, close to half of the uninvestigated incidents were more severe than incidents that were investigated (and vice versa). Moreover, it reflects the fact that the reform and subsequent shift from the Commission to the Council in 2006 has not significantly altered the degree of overall bias in the choice of cases investigated.
A noteworthy difference between the pre- and post-2006 periods relates to a decline in the Council’s positive bias. That is, there are more investigations of large-scale incidents. By contrast, the Council’s negative bias (excessive focus on minor incidents) has actually grown substantially in the latter period. We can get a sense of the change by looking at the most and least severe incidents in the list of cases—for example, incidents with 100,000 fatalities or more, and incidents with 500 fatalities or less.[22]
In the 1963–2005 period, 35 of 124 uninvestigated cases (28.2%) had 100,000 or more fatalities. In the same period, 4 of 29 investigated cases (13.7%) had 500 or less fatalities. In comparison, in the post-2006 period, none of the 18 uninvestigated cases had over 100,000 fatalities; in general, the only incident that exceeds this figure is the Syrian Civil War (2011–) which “earned” 11 investigations. On the other hand, 6 of 19 investigated cases (31.6%) had 500 or less fatalities.
To summarize, since 1963, the Council and its predecessor, the Commission, have displayed substantial positive and negative bias, failing to subject many severe conflicts to scrutiny and excessively focusing attention on relatively minor cases. Both before and after 2006, roughly half of the incidents that ‘should’ have been prioritized were not, and about half of those that ‘should not’ have been prioritized were. Significantly, the Council’s positive bias has declined dramatically in the latter period, primarily due to the fact that large-scale conflicts such as Syria’s are no longer ignored.[23]
By contrast, the Council’s negative bias in terms of its excessive focus on minor conflicts has increased by roughly 129% since 2006 (13.8% to 31.6%). Much of this negative bias centers on Israel.
Table 2: Positive and Negative Bias in the UNHRC [24, 25]
Sources: Leitenberg, 2006; UCDP GED dataset Global Version 18.1 (2017); UNHRC International COIs and FFMs Chronological List
UNHRC bias against Israel
Violent demonstrations in the vicinity of the Israel-Gaza border, June 2018 | Photo: Israel Defense Forces (CC BY-NC 2.0)
Of the countries that receive disproportionate attention from the Council, Israel stands out. The quantitative data give a sense of the magnitude of this negative bias. In this regard, it is illuminating to look at the top ten instances of negative bias.
Between 1963 and 2005, two of the top ten cases concerned Israel. Since 2006, Israel accounts for 5 of the 10 top instances and occupies the top 3 spots.
Table 3: Top Ten Instances of Negative Bias in the UNHRC
Sources: Leitenberg, 2006; UCDP GED dataset Global Version 18.1 (2017); UNHRC International COIs and FFMs Chronological List
Thus, irrespective of the Council’s substantial overall bias, the inordinately disproportionate attention directed toward Israel casts serious doubt on its ability to serve as a reliable and impartial mechanism for assessing human rights matters pertaining to Israel.
This conclusion is compounded by the issue of complementarity. Israel’s level of judicial independence is considerably higher than that prevalent among Council members, and also higher than the average level amongst those countries whose incidents the Council has chosen to ignore. These facts further undermine the Council’s credibility, as demonstrated in the following section.
UNHRC Membership and Judicial Independence
The Human Rights Council is a political body, with no mechanisms for disqualifying members on the basis of bias or incompetence, such as exist for judicial bodies like juries.[26] If the Council had no ambitions of advancing accountability, this might be less of a problem. Given that such intentions are widely entertained, the issue of Council composition is important.[27]
A key factor in this regard is judicial independence, since complementarity is an important principle in addressing suspected human rights violations. In general, international institutions have competency and legitimacy to exercise jurisdiction when the legal authorities in the country where the incident at issue occurred are either unable or unwilling to address issues of human rights independently and effectively.[28]
Scholars have developed a plethora of quantitative indices of judicial independence over the years.[29] Linzer and Staton’s (2015) composite index is helpful for its reliance on eight separate indices, giving expression to different aspects of the latent concept. The index ranges between 0 (complete lack of independence) to 1 (maximal independence).
Using the latter index, a striking picture emerges. It demonstrates how problematic it is for the Council to establish inquiries, which convey that a country’s judicial infrastructure is incapable of addressing potential violations, for a country like Israel. Between 2006 and 2012 (the last year of available data), the average judicial independence score on the Council ranged between 0.51 and 0.54. The number of Council members with judicial independence at this level or lower never fell below 27 and went as high as 30, with no less than 12 scoring 0.3 or less in any given year.[30] With a majority threshold of 24, the Council had a constant, solid majority of countries with low judicial independence.[31]
Investing in language testing and development is a critical component of Israel’s public diplomacy effort, and one that has been neglected in its fight for legitimacy
For a sense of comparison, the average judicial independence score of OECD countries in the relevant years is 0.87. Israel’s is well above the OECD average, ranging between 0.94 and 0.96, indicating that its judiciary is consistently among the most independent in the world.
Equally striking is the very low level of judicial independence among those countries involved in conflict incidents that were not investigated by the Council. The average judicial independence score for these countries in the 2006–2012 period ranges from 0.34 to 0.39.[32] As shown in Table 3, most of these incidents were more severe than those in which Israel was involved. And yet, these relatively severe incidents, involving countries with very low judicial independence and thus very limited means of investigating potential human rights violations on their own, were overlooked by the Council.
These figures call into question the propriety of the Council’s decisions regarding forming investigative bodies both in general and especially with regards to countries like Israel, which have highly independent judiciaries.
Table 4: Judicial Independence and the UNHRC
Sources: Linzer and Staton, 2015; LJI estimates dataset
Conclusion
The UN Human Rights Council was established to advance the vital goal of “promoting and protecting human rights around the globe.” To many in the international community, the Council (and its precursor) enjoys an aura of professional prestige. As a consequence, its resolutions and the findings reported by its various commissioned bodies tend to be credited with a semblance of weight, due to a perception—and self-affirmed ambition—of objectivity and impartiality.
However, if this semblance of credibility is contrary to the record of how the Council allocates its attention and resources, it may be doing more harm than good because it excessively criticizes some countries while absolving others that may merit genuine censure. The data presented above leave little doubt that this is the case.
It behooves any agency purporting to serve as an authoritative body to display evenhandedness in investigating grave matters, whether they be arson, human rights abuses, or other transgressions. Consistent, systematic, and large-scale bias such an agency’s investigative conduct discredits its professional standing and impairs the validity of its reports.
The investigative conduct of the UN Human Rights Council must undergo a major transformation and display an enduring shift away from systematic bias before its reports can be lent credibility or weight. This is true in general, and especially so when it comes to Israel.
Uri Resnick is an Israeli diplomat, currently serving in Israel’s Ministry of Defense and as a foreign policy advisor to Israel's Minister of Defense. He teaches game theory and foreign policy planning at the Hebrew University in Jerusalem and the Interdisciplinary Center (IDC) Herzliya.
(Photo courtesy of the author)
Disclaimer: The analysis and opinions presented here solely reflect the personal views of the author and in no way represent official or binding positions of the Israeli Government. Any errors that may appear here are solely the responsibility of the author.
Acknowledgements: I owe a debt of thanks to Shmuel Zamir for his help in thinking about how to approach the issue of Council bias quantitatively. My thanks also to a number of colleagues and the journal editors for their very useful comments on prior drafts.
References
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Benzing, Markus. “The Complementarity Regime of the International Criminal Court: International Criminal Justice between State Sovereignty and the Fight against Impunity.” Max Planck Yearbook of United Nations Law 7 (2003): 591–632.
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Cotler, Irwin, 2013. “Israel and the United Nations.” The Jerusalem Post.
Croicu, Mihai and Ralph Sundberg, 2017, “UCDP GED Codebook version 18.1”, Department of Peace and Conflict Research, Uppsala University.
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International Committee of the Red Cross. “How ‘grave breaches’ are defined in the Geneva Conventions and Additional Protocols”. https://www.icrc.org/eng/resources/documents/faq/5zmgf9.htm.
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Johnson, Jesse C., Mark Souva, and Dale L. Smith. 2013. “Market-Protecting Institutions and the World Trade Organization’s Ability to Promote Trade.” International Studies Quarterly 57(2): 410–17.
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Kleffner, Jann K. Complementarity in the Rome Statute and National Criminal Jurisdictions. Oxford: Oxford University Press, 2008.
Leitenberg, Milton, 2006. “Deaths in Wars and Conflicts in the 20th Century.” Cornell University Peace Studies Program, Occasional Paper #29, 3rd Edition.
Linzer, Drew A. and Jeffrey K. Staton, 2015. “A Global Measure of Judicial Independence, 1948-2012.” Journal of Law and Courts, Fall 2015, pages 223-256.
Marshall, Monty, and Keith Jaggers. 2010. “Polity IV Project: Political Regime Characteristics and Transitions, 1800–2004.” Codebook. http://www.nsd.uib.no/macrodataguide/set.html?id=32&sub=1.
Melzer, Nils. 2006. “Chapter 3, “The Conduct of Hostilities” in International Humanitarian Law: A Comprehensive Introduction. Geneva: International Committee of the Red Cross.
Navoth, Michal, 2014. “Israel’s Relationship with the UN Human Rights Council: Is There Hope for Change?” Jerusalem Center for Public Affairs. http://jcpa.org/article/israels-relationship-un-human-rights-council/
Piccone, Ted, 2017. U.N. Human Rights Commissions of Inquiry: The Quest for Accountability. Brookings Institution.
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Stigen, Jo. The Relationship between the International Criminal Court and National Jurisdictions: The Principle of Complementarity. Leiden, The Netherlands: Martinus Nijhoff, 2008.
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Footnotes:
[2] Some of the investigative bodies have been commissioned by other UN agencies, including the Security Council, General Assembly, Secretary General, and High Commissioner on Human Rights. They are, however, all listed by the UNHRC in a consolidated list. The Human Rights Council replaced the Commission on Human Rights in 2006 primarily in order to address broad criticism of the Commission’s record and composition. See, for example, “The Shame of the United Nations”, New York Times, February 26, 2006.
[3] Impartiality and objectivity are among the 11 principles specified by the UN as guiding human rights fact-finding missions and commissions of inquiry. See, “Commissions of Inquiry and Fact-Finding Missions on International Human Rights and Humanitarian Law: Guidance and Practice.” Office of the High Commissioner of Human Rights, New York and Geneva, 2015: 33-34.
[4] See, for example: Navoth, 2014; Cotler, 2013; Bayevsky, 2011.
[5] Principles such as distinction and proportionality, which are central to establishing whether human rights violations have occurred, entail a much more complex range of considerations, including ascertaining intention, establishing military objectives and constraints, and a broad range of ultimately subjective factors.
For example, fatalities ratios don’t bear directly upon the matter of proportionality—the latter concept involves many additional considerations and cannot be simply aggregated, because individual military actions might each be deemed proportionate while nevertheless producing an imbalanced fatalities ratio in the aggregate. Moreover, as noted by the former President of the International Court of Justice, Rosalyn Higgins, proportionality must be gauged “in relation to the overall legitimate objective of ending the aggression” (Higgins, 1994). See also: “Responding to Hezbollah attacks from Lebanon: Issues of proportionality” (Israel Ministry of Foreign Affairs, 2006).
[6] The Council conducts much activity in addition to establishing such bodies. However, focusing on these bodies captures the cases deemed by the Council as constituting “serious violations of international humanitarian law and international human rights law” (Commissions of Inquiry, op. cit., page 2).
[7] Clearly, the correlation is not perfect and there are many additional influences, such as the norms of the involved parties. However, the Council, tasked with overseeing the entire international system, should be apportioning its attention in relation to the likelihood of violations. Thus, if on a global scale a certain average proportion of fatalities involves violations, it is clear that the larger the number of fatalities in a given conflict, the higher the likelihood of violations in that conflict. The situation is akin to the incidence of disease in populations. Different populations suffer different disease rates due to a range of specific factors (hygienic norms, infrastructures, physiology, etc.). Nevertheless, we can compute the average global disease rate. Then, even if there is variance between populations due to specific factors, we can still expect to see a correlation between the size of a population and the number of sick people in it.
[8] The bias score for the entire 1963–2017 period is substantially higher than in either of its sub-periods, because the average fatality level in the latter period is much lower. Thus, many incidents that were ‘properly’ addressed by the Council in the post-2006 period (relatively severe incidents that were investigated) score as negative deviations with respect to much more severe incidents that weren’t investigated in the pre-2006 period.
[9] ‘Complementarity’ refers to the fact that national judicial mechanisms take precedence over international mechanisms in regard to accountability in matters of human rights. See, for example: Almqvist, 2008.
[10] As a political body, the Council is formally not bound by the principle of complementarity. The scope of its authority is limited to the establishment of facts, rather than legal responsibility. Nevertheless, the ‘quest for accountability’ championed by some indicates that the issue cannot be ignored (Piccone, 2017).
[11] Given that the extent of potential violations is not definitively known in advance of an investigation—that, after all, is one of the core purposes of the Council—when considering how cases are chosen for investigation, we have no choice other than to speak of potential violations.
[12] The language is reiterated verbatim in the Second Geneva Convention (Article 51), and partly in the Third and Fourth Conventions. See the International Committee of the Red Cross article: “How ‘grave breaches’ are defined in the Geneva Conventions and Additional Protocols.” https://www.icrc.org/eng/resources/documents/faq/5zmgf9.htm. Much has been written on the primacy of the right to life amongst human rights, including in the Council’s own reports. For example: “The right to life, enshrined in article 6 of the International Covenant on Civil and Political Rights, article 6 of the Convention on the Rights of Children […] is the most fundamental of all human rights from which no derogation is permitted even in times of a public emergency.” (Report of the UNHRC Detailed findings of the Commission of Inquiry on Human Rights in Eritrea A/HRC/29/CRP.1, page 311) (emphasis added).
[13] This is not to say that the actual commission of violations can be directly inferred from overall fatalities. The occurrence of battle-related fatalities—civilian or otherwise—is not, as such, a violation of human rights (Melzer, 2016). As noted, determining whether human rights violations occurred is an entirely different question, subject to a complex array of considerations, many of them qualitative. A reliable investigative mechanism would be designed precisely in order to address such considerations. The question asked here is: What can the choice of cases for investigation tell us about the decision-maker’s reliability—even before we get into the other, far more complex issues.
[14] For each event, UCDP’s GED dataset includes figures for both civilian and overall fatalities. Together, the Leitenberg and UCDP data appear to offer the most comprehensive and reliable extant listing of conflict fatalities in the 1963–2017 period. Apparent errors in some of the data entries, for Israel and other cases, were corrected based on additional sources. Where possible, such corrections were based on computing average fatalities figures from several sources. Nevertheless, additional errors might still exist in the data and the findings reported here are obviously subject to revision if such errors emerge. A comprehensive list of the corrections introduced into the data, and their sources, is available with the dataset from the author upon request.
[15] Each such incident includes all fatalities in a given conflict between two identified sides.
[16] The list is available at: “International Commissions of Inquiry, Fact-finding Missions: Chronological list”: http://libraryresources.unog.ch/factfinding/chronolist.
[17] These too appear in the dataset file, available on request.
[18] Both the Leitenberg and UCDP datasets contain many missing values, particularly with respect to civilian fatalities. I approached this by setting civilian fatalities to 0 for such cases, resulting in a systematic underestimation of such fatalities throughout the data and in some entries which are manifestly incorrect, such as Iraq’s conflicts with its Kurdish population, Myanmar’s numerous ethnic conflicts and others. Since the incidents involving Israel do include average estimates of civilian fatalities, based mostly on figures reported by several independent sources, whatever bias is found with regard to Israel is most likely an underestimation.
[19] The measure, thus defined, is insensitive to gradations in the amount of attention afforded to an incident by the Council. Some incidents, like the Syrian Civil War (2011–), the strife in Côte D’Ivoire (2011), the Israel-Gaza War (2009) and the Israel-Lebanon War (2006), are under the scrutiny of multiple investigative bodies.
[20] Interestingly, as has been widely reported in other studies, the frequency of international conflict is actually remarkably constant when controlling for the number of states.
[21] Again, severity accounts for both overall and civilian fatalities. As the data show, there is little effective difference between the two in in terms of the pattern of bias in the Council.
[22] A similar conclusion is reached if we choose different thresholds, such as 50, 100, or 1000 on the low end or 25,000, 50,000, or 500,000 on the high end. Thus, even if we consider the far lower average fatalities level in the post-2006 era, we still see an excessive emphasis on smaller-scale incidents.
[23] In the pre-2006 era, large-scale conflicts that received no attention include wars with over a million fatalities in Iran, Afghanistan, Angola, Ethiopia, Cambodia, and Nigeria, and several civil wars in Africa, Asia, Latin America, and the Middle East, each with hundreds of thousands of fatalities.
[24] This chart includes only incidents that commenced in 2006 or later.
[25] The composite measure Si takes into account both civilian and overall fatalities.
[26] Jury selection typically involves some manner of ‘voir dire’, or reciprocal disqualification process, whereby attorneys on either side of a case can remove prospective jurors due to their potential biases (Cleary and Tarantino, 2007).
[27] The Council affirms that it seeks to “promote accountability for such violations and counter impunity.” (https://www.ohchr.org/EN/HRBodies/HRC/Pages/COIs.aspx) See also: Piccone, 2017.
[28] The wide range of interpretations as to what “complementarity” means and implies (Stigen, 2008; Stahn and Ziedy, 2011; Kleffner, 2008; Benzing, 2003) is beside the point in this regard. However one chooses to define the concept, the question here concerns whether Council members should be assessing, even if only implicitly, whether a country reaches a given “complementarity” threshold. The index used here provides a means of inter-country comparison, but in principle, other indices or metrics could be similarly used.
[29] See: Ríos-Figueroa and Staton, 2014; Feld and Voigt, 2003; Howard and Carey, 2004; Gwartney and Lawson, 2007; Cingranelli and Richards, 2010; Marshall and Jaggers, 2010; Keith, 2012; Johnson, Souva, and Smith, 2013. Distinctions are typically drawn between “de facto independence” (independent adjudicating in practice) and “de jure independence” (institutional mechanisms designed to ensure judges’ independence), as well as between judges’ autonomy (the extent to which judicial decisions are driven by sincere legal considerations) and power (the extent to which judicial decisions are honored by others, especially the executive branch). See Linzer and Staton (2015) for a discussion and relevant bibliography. See also Rios-Figueroa and Staton (2015: 112) for a detailed description and analysis of 13 separate indices, which draw on such factors as expert surveys, constitutional documents, State Department Country Reports and economic data.
[30] Countries with such scores are invariably autocracies. Representative examples including Mali, Bangladesh, Cuba, Djibouti, Mauritania, and others.
[31] Though the Council is a political rather than professional body, when its members vote to establish a commission of inquiry, they do so on behalf of their country. If only from a moral and political perspective, having countries with low judicial independence pass implicit judgement on the judiciaries of countries with much higher judicial independence is problematic, to say the least.
[32] The relevant countries are: India, Lebanon, Chad, Turkey, Myanmar, Mali, Sudan, Georgia, Cameroon, Philippines, Egypt, Russia, Ukraine, Nigeria, and Pakistan.