From ‘Uniting for Peace’ to ‘Uniting for Justice?’: Reflections on the Power of the UN General Assembly to Create Criminal Tribunals or Make Referrals to the ICC

Abstract

Traditionally, the UN Security Council has been at the forefront of discussion in relation to the institutionalization of international criminal justice in the UN system. This article offers a perspective on the much less frequently discussed role and creative possibilities of the UN General Assembly. They have gained critical importance in the context of Syria and Ukraine, where the power relations between the Council and the Assembly have come under critical scrutiny. Historically, the Assembly has played a crucial role in shaping key normative foundations of the field, by affirming the Nuremberg Principles in 1946, approving the 1950 Genocide Convention, adopting the definition of the aggression under Resolution 3314 (1974) or shaping the creation of the Extraordinary Chambers in the Courts of Cambodia (ECCC). Its involvement in relation to accountability has expanded in past decades. With the creation of the International, Impartial and Independent Mechanism (IIIM) for Syria, the GA has established a quasi-prosecutorial body in a case, where the path for accountability was blocked due to the veto power of the Security Council. Multiple commissions of inquiry have called on the Assembly to establish a criminal tribunal in cases, where the ICC lacks jurisdiction (North Korea, Myanmar). In March 2022, the Assembly invoked its powers under the ‘Uniting for Peace’ resolution in 1950 to support its resolution on aggression against Ukraine (Res. ES-11/1). It has been supported by a calls for a General Assembly approved criminal tribunal by the Parliamentary Assembly of the Council of Europe (Res. 24360 and academic experts. This contribution discusses two important institutional aspects of the powers of the Assembly, namely its power to create a criminal tribunal and its authority to make a referral to the International Criminal Court (ICC). It examines different layers of debate: issues of legality, including the relevance of Uniting for Peace as institutional precedent, questions of effectiveness, as well as consideration of political feasibility. It argues that there is space to make greater creative use of the powers of the Assembly in relation to accountability. It identifies three models, in which the GA may become involved in the creation of a criminal tribunal (treaty approval, establishment of a criminal tribunal with consent of the territorial state, and creation of a tribunal without such consent). It claims that the GA may use its powers under UN law to make a referral to the ICC, but shows that such an option requires amendment of the ICC Statute and may cause problems in relation to jurisdiction over non state parties and, in particular, criminal jurisdiction over the crime of aggression. It cautions at the same time against romanticizing the role of the Assembly in relation to accountability. It shows that Uniting for Peace may also promote adverse effects, namely ‘Uniting for Impunity’.

Keywords: UN General Assembly, Uniting for Peace, Investigative Mechanisms, Criminal Tribunal, International Criminal Court, ICC referral, Crime of aggression, Special Tribunal Ukraine, Cooperation, Immunity, Uniting for Impunity

JEL Classification: K33, K42