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.

• Author: Stahn, Carsten

ABSTRACT

Since the 1990s, the UN Security Council has been at the center of the institutionalization of international criminal justice in the UN system. This article discusses the lesser well-known role and creative possibilities of the UN General Assembly. It shows that 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. With the creation of the International, Impartial and Independent Mechanism for Syria, the General Assembly has established a quasi-prosecutorial body in a case, where the accountability was blocked due to the veto power of the Security Council. 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. ES11/1). This contribution discusses two important elements of the GA's ability to use its authority under "Uniting for Peace" to unite for justice, namely its power to create a criminal tribunal and its authority to make a referral to the International Criminal Court. 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 General Assembly 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 General Assembly 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

TABLE OF CONTENTS ABSTRACT KEYWORDS TABLE OF CONTENTS I. INTRODUCTION II. THE ASSEMBLY AND THE CREATION OF INTERNATIONAL CRIMINAL TRIBUNALS: FOUNDATIONS AND PROSPECTS A. The Case for Legal Authority B. Three Models 1. The 'Treaty Plus' Model--ECCC Model 2. GA-Created Tribunal with State Consent. 3. GA Created Tribunal without State Consent Resolution as Quasi-treaty of Delegation C. Effectiveness 1. The Problem of Personal Immunity 2. Cooperation D. Political feasibility III. GENERAL ASSEMBLY REFERRALS TO THE ICC A. Legality B. Political Feasibility IV. CONCLUSIONS I. INTRODUCTION

The Ukraine war has brought renewed attention to the complex power relations between the UN General Assembly (GA) and the Security Council. This issue has been debated since the creation of the UN. Many previous contributions have focused on the role of the General Assembly in relation to peace and security and the impact of the 1950 Uniting for Peace Resolution (Res. 377). (1) In this context, it is often sidelined that the General Assembly has a long-standing record in relation to accountability. (2) The Security Council has become closely associated with international criminal justice with the creation of the ICTY and the ICTR in the 1990s. (3) However, the Assembly can, in fact, look back to a much longer track record in the field. (4)

On 11 December 1946, the Assembly affirmed the famous "principles of international law recognized by the Charter of the Niirnberg Tribunal." (5) This affirmation triggered a process, which gradually turned them from mere principles "into general principles of customary law." (6) In 1950, the Assembly approved the Convention on the Prevention and Punishment of the Crime of Genocide and proposed it for signature and ratification or accession by states in General Assembly resolution 260 A (III). (7) Later, it qualified apartheid as a crime against humanity (8) and adopted the text of the international Convention on the Suppression and Punishment of the Crime of Apartheid. (9) In 1974, it adopted a definition on aggression, which defined a war of aggression as "crime against international peace". (10) This definition became an important cornerstone of the modern practice of defining the crime of aggression through its use in Kampala in 2010. (11)

Over time, the role of the Assembly has shifted from a contribution to norm development on crimes to institutional mechanisms. In 1997, the Assembly created the Group of Experts (12) which led to the creation of the Extraordinary Chambers in the Courts of Cambodia. (13) In 2006, it established the Human Rights Council by resolution 60/251 (14) and the General Assembly became the formal authority behind the creation of numerous accountability-related commissions of inquiry or investigative missions created by the Council. (15) At that time, the Assembly was already involved with the creation of international criminal courts and tribunals, such as the Extraordinary Chambers in the Courts of Cambodia (ECCC). (16) The Assembly's role was further exemplified in 2016, when it established a quasi-prosecutorial body, the International, Impartial and Independent Mechanism for Syria. (17) The Assembly further established its precedent for creating corresponding investigative commissions when the Human Rights Council created an investigative commission for Myanmar. (18) With these precedents, the Assembly seems to have transformed halfway into a judicial body. (19) Observing this progression, some authorities have asked whether the Assembly could go a step further and turn these quasi-prosecutorial bodies into tribunals. (20) Such a move would not be precluded by the legendary 1995 Interlocutory Appeal on Tadic, which affirmed the legality of the establishment of the ICTY by the Security Council. In this case, the Defense challenged the establishment of the tribunal by the Council inter alia on legitimacy grounds, namely the fact that the General Assembly "was not involved in its creation," although its "participation would at least have guaranteed full representation of the international community." (21) In its decision, the ICTY Appeals Chamber confirmed not only the power of the Security Council to create a tribunal, but also noted that the General Assembly does not "have to be a judicial organ possessed of judicial functions and powers in order to be able to establish" a tribunal under the Effects of Awards jurisprudence. (22)

The debate has gained a new spin with the discussion relating to a special tribunal for Ukraine. (23) One of the options is its creation through an international agreement between the UN and Ukraine, based on a recommendation of the Assembly. (24) Factors, such as the expansion of the powers of the Security Council in the 1990s, the establishment of the ICC or increased reliance on hybrid or domestic courts have served as disincentives to go step further and to give the GA a role in the creation of criminal tribunals. The geopolitical winds, however, are changing. Historical developments show a constant expansion of the role of the Assembly in the field of accountability. In cases where the Security fails to act and the ICC lacks jurisdiction, there is an institutional vacuum on the international level. The exercise of universal jurisdiction by states may not suffice to close the gap. This poses the question to what extent there is further room to move from Uniting for Peace to "Uniting for Justice" under the umbrella of the Assembly.

The preamble of Uniting for Peace expresses an important principle, namely that the "failure of the Security Council to discharge its responsibilities on behalf of all the Member States" does not "relieve Member States of their obligations or the United Nations of its responsibility under the Charter to maintain international peace and security", nor "deprive the General Assembly of its rights or relieve it of its responsibilities under the Charter in regard to the maintenance of international peace and security." (25) This contribution investigates to what extent the Assembly developed from an organ with residual responsibilities in the field of peace maintenance to an agent of accountability. (26) It shows that the constraints on General Assembly action under Article 2(7) or Article 12(1) of the UN Charter (27) have been reduced over time. For instance, in the Wall opinion, the ICJ has recognized "an increasing tendency over time for the General Assembly and the Security Council to deal in parallel with the same matter concerning the maintenance of international peace and security", which turned into "accepted practice" in the UN system. (28)

This article argues that the Assembly would be legally empowered to play an even more active role in the institutionalization of international criminal justice. It examines two dimensions: the power of the Assembly to create an international criminal tribunal and to make a referral to the ICC under the "Uniting for Peace" powers. It demonstrates both the prospects and the drawbacks of a new "Uniting for Justice" approach. It distinguishes three layers of debate: legality, impact and legitimacy. It shows that the impediments and constraints do not lie within the UN system, but rather in external factors, and that they are often more political than legal. (29) It cautions at the same time...