MICHAEL RAMSDEN*
In the days following Russia’s invasion of Ukraine the United Nations (UN) General Assembly convened an Emergency Special Session under its Uniting for Peace mechanism. The initiation of this session was prompted by the exercise of the veto power by Russia, thereby impeding the Security Council from adopting a resolution on the situation. The Security Council took the unusual step (by majority vote) of deciding to call an Emergency Special Session given that Russia’s veto had “prevented it from exercising its primary responsibility for the maintenance of international peace and security.” For the first time since 1997, the General Assembly convened an Emergency Special Session on a new situation, broadcast live around the world, in which state diplomats joined together in large numbers to express their collective disapprobation of Russian aggression. It resulted in the adoption of Resolution ES-11/1 by a large majority (141 for, five against and 35 abstentions). This Article discusses the legal significance of this resolution and revisits the powers available to the General Assembly in supporting the maintenance and restoration of international peace and security. It shows that, moving forward, there are various legal solutions open to the General Assembly, some creative, to mitigate the Security Council’s failures to act on the Ukraine situation.
The nature of the Uniting for Peace mechanism has been extensively analyzed, such that only a brief outline of its key features is necessary here. In response to Security Council deadlock on continued UN military action in Korea, the General Assembly adopted Resolution 377A on 3 November 1950. The resolution stipulates that either the General Assembly or Security Council can initiate an Emergency Special Session where, due to a “lack of unanimity of the permanent members,” the Council “fails to exercise its primary responsibility for the maintenance of international peace and security.” In this case, the Assembly “shall consider the matter immediately with a view to making appropriate recommendations to Members for collective measures, including in the case of a breach of the peace or act of aggression the use of armed force when necessary, to maintain or restore international peace and security.” In the ten prior Emergency Special Sessions, the Assembly took and recommended a variety of measures. It has condemned violations of international law and called for cessation of these breaches. It has recommended the imposition of sanctions against offending states. It has established peacekeeping forces with host state consent. Perhaps most famously associated with the Uniting for Peace mechanism, in 1951 the Assembly called upon states to support continued UN military action in Korea, including to repel Chinese aggression, a feat that it has not repeated since.
The output of the first meeting of the Emergency Special Session on Ukraine, Resolution ES-11/1, did not go as far as some of these prior resolutions, but it did return to a legal characterization that it has long avoided: aggression.† It deplored “in the strongest terms the aggression by the Russian Federation against Ukraine in violation of Article 2 (4) of the [UN] Charter” and condemned Russia’s declaration as to the necessity of this “‘special military operation.’” It demanded Russia to “cease its use of force against Ukraine” as well as to “immediately, completely and unconditionally withdraw all of its military forces from the territory of Ukraine within its internationally recognized borders.” It also condemned “all violations of international humanitarian law and violations and abuses of human rights,” demanding that parties to the conflict “fully comply with their obligations under international humanitarian law to spare the civilian population.” It recalled the obligations under Article 2(2) of the UN Charter, that all member states, “in order to ensure to all of them the rights and benefits of membership, shall fulfil in good faith the obligations assumed by them in accordance with the [UN] Charter.”
Resolution ES-11/1 is unlikely to be the General Assembly’s final word on the Ukraine situation. The Emergency Special Session is now adjourned, but can be resumed in the future upon requests from member states. Although it is impossible to predict how this unfolding crisis is resolved, it is worthwhile considering the legal options open to the Assembly in seeking to secure peace and, in time, justice for the victims of aggression and other international crimes. To what extent is the Assembly able to take action or otherwise recommend measures to the membership that would be legally analogous to that taken by the Security Council?
This question comes back to the debate on the scope of the General Assembly’s powers and the effect of its resolutions. A commonly held view is that the Assembly, being a deliberative body, is lacking in legal authority to impose its will on states; its powers in Articles 10 to 14 are merely recommendatory. Rather, it is the Security Council that is vested with the powers to bind and coerce the membership, including to justify the use of military force and the imposition of economic sanctions. Furthermore, it is clear from past Assembly practice that it is not necessary for them to act in an Emergency Special Session in order to condemn member states or the Security Council in failing to meet its responsibilities under the UN Charter; it has become routine practice in regular sessions to do so.‡ An Emergency Special Session under Uniting for Peace, on this view, is symbolic, in creating the bracing optics of an urgently convened session to address shocking events, but does not give the Assembly any more power than it possesses under the UN Charter. Yet, even if one accepts that Uniting for Peace does not add to the Assembly’s legal powers, this view ignores the important role that the General Assembly’s solemnly worded resolutions in an emergency situation possess in crystallising a series of legal claims by the community of nations that can be used to support future actions. In this context, the use of the Uniting for Peace mechanism is a symptom of the UN’s institutional failure, with the many (i.e. the 193 members of the Assembly) attempting to do through a process of collective legal interpretation what the few have failed to do through Chapter VII decisions (i.e. the 15 members of the Security Council). The Assembly can legally support future actions against Russia in a variety of ways.
Its finding in Resolution ES-11/1 that Russia has committed aggression in Ukraine provides the first such internationally authoritative determination that this conduct occurred. Prior Assembly findings of this nature in other situations have been used to augment legal action taken by other bodies, including the International Criminal Court’s (ICC) exercise of jurisdiction and the ordering of provisional measures in the International Court of Justice (ICJ). Most relevantly, Resolution 68/262 (2014), which declared Russia’s annexation of Crimea to be of “no validity” was used by the ICC Prosecutor to support the opening of an investigation, on the basis that Crimea was Ukrainian territory. Indeed, in the recently initiated case, Ukraine v Russia, the ICJ drew upon Resolution ES-11/1 to support the ordering of provisional measures to protect the rights of Ukraine from being subject to the use of force by Russia based upon false allegations of genocide under the Genocide Convention.
The General Assembly can also take into account the Russian aggression as a factor in those internal operational matters in which it is empowered to make decisions. Its finding in Resolution ES-11/1 that the “rights and benefits” of membership entail good faith obligations provide a hook for future claims that the Russian government has not acted in accordance with the expectations incumbent on a UN member state. One route is via Article 5 of the UN Charter, which provides that “a member of the United Nations against which preventive or enforcement action has been taken by the Security Council may be suspended from the exercise of the rights and privileges of membership by the General Assembly upon the recommendation of the Security Council.” The obvious impediment here is that Russia would not support its own suspension from the UN when voting on the matter in the Security Council. However, this does not preclude the membership from forming a view as to whether a representative possesses the credentials to represent a state in the Assembly. Normally this is a formality in approving the governmental representatives of a state, but there is precedent for the General Assembly to factor in a regime’s fidelity to the UN Charter in assessing whether to accept or reject credentials. The credentials of the South African apartheid regime were thus rejected by the Assembly due to its “flagrant violation” of the UN Charter. Whether isolating Russia in this way is politically wise is another matter. Yet, it is open to member states to object to the Russian representative based on the South Africa precedent, thereby triggering a consideration of its credentials by the UN Credentials Committee.
Another way in which the General Assembly’s legal determinations might assist in the Ukraine situation is in supporting the legal justification for the imposition of sanctions against Russia. Sanctions raise complex questions of legality, particularly when taken unilaterally outside an international institutional framework. Within the text of the UN Charter, the power to sanction is textually the reserve of the Security Council, which, pursuant to Article 41, are able to take measures to restore or maintain international peace and security. Still, there is a body of Assembly practice in calling upon members to impose sanctions against offending states, including the breaking of diplomatic relations; closure of sea and air ports; trade boycotts; severance of cultural relations; targeted sanctions against individual perpetrators; and arms embargoes. The difference in the Ukraine situation is that states have been quick to impose sanctions without the need for encouragement or endorsement from the Assembly. Still, there is a role, moving forward, for the Assembly to evaluate the legality of sanctions against Russia by, for example, certifying that the conditions for the valid invocation of the law of countermeasures have been met. These conditions, according to Article 49 of the International Law Commission’s Draft Articles on State Responsibility, include proportionality, proper purpose (aimed at inducing Russia’s compliance), and temporal limitation to the period of the breach. While an Assembly resolution would not automatically release states from its various treaty obligations to Russia, the involvement of the Assembly in certifying that these conditions have been met can serve to alleviate concerns regarding abuse that might arise in a single state, or a small group of states, determining the legality of sanctions unilaterally. Furthermore, closer coordination of sanctions through the Assembly would give effect to the international obligation on states to cooperate through international institutions (such as the UN) to bring to an end breaches of peremptory norms (such as the prohibition on aggression).
The General Assembly can also empower judicial or quasi-judicial bodies to address the legal implications arising from Russia’s aggression and its conduct in Ukraine. Resolution 377A noted it to be one of the Assembly’s responsibilities under the Uniting for Peace mechanism to “ascertain the facts and expose aggressors.” The Assembly can advance this purpose most obviously by creating a commission of inquiry with a mandate to collect and evaluate evidence to ascertain violations of international law. The recent precedent set in the Syria situation takes the Assembly’s powers a step further to allow commissions to prepare individual case files of persons suspected of committing international crimes, thereby facilitating future investigations and prosecutions at a domestic or international level. In 2016, Russia sought to resist this innovation as ultra vires but failed. A quasi-prosecutorial mechanism of this nature in turn enhances the Assembly’s ability to meet its responsibility under the Uniting for Peace mechanism to “expose aggressors” in the Ukraine situation. In this respect, it is noteworthy that the Assembly’s subsidiary organ, the Human Rights Council, has established a commission of inquiry to investigate a broad range of violations arising from the Russian aggression. This will, in turn, serve to not only ensure that an international investigation is conducted into these violations, but also provide the Assembly with information to underpin its future findings and legal characterizations on the Ukraine situation.
Furthermore, the General Assembly, acting under Article 96 of the UN Charter, could request an advisory opinion from the ICJ. Ukraine has already initiated proceedings against Russia which, given the latter’s limited acceptance of the ICJ’s jurisdiction, is confined to arguments concerning the application of the Genocide Convention. This provides a hook for the judicial consideration of the reasons purporting to support the invasion, but the Assembly might also confer jurisdiction on the ICJ on a broader basis through a request for an advisory opinion. The ICJ has the power to consider “any legal question” which has been construed broadly to include the conduct of individual states. As the Emergency Special Session on Israel shows, the Assembly has used the Uniting for Peace mechanism to request an advisory opinion on the legal consequences of Israel’s construction of the wall in the Occupied Palestinian Territory. Similarly, the Assembly could ask the ICJ to address the legal consequences arising from Russian conduct on a broader basis, both in February 2022 as well as in relation to earlier incursions into Ukrainian territory, such as its 2014 annexation of Crimea.
Finally, a more radical suggestion is for the General Assembly to create an ad hoc criminal tribunal to try suspects accused of international crimes, including aggression, in relation to the Ukraine situation. A group of leading figures have called for a Special Tribunal for Aggression to be established to prosecute Russia’s aggressive acts. While it has been the Security Council who has established ad hoc tribunals in the past, their failure to act on the Ukraine situation would arguably support the creation of an analogous tribunal by the Assembly under the Uniting for Peace mechanism. This view has gained some traction in UN practice, with the commission of inquiry report on North Korea noting the possibility for states to pool their combined sovereign powers over criminal jurisdiction to empower an Assembly created ad hoc tribunal. Although the Prosecutor of the ICC has initiated an investigation into the Ukraine situation, there are limitations to this Court’s jurisdictional reach, particularly over the crime of aggression. As Russia is not an ICC state party, and the Security Council is unable to make a referral of the situation due to Russia’s veto, the crime of aggression cannot be prosecuted at the ICC in this situation. The establishment by the Assembly of an ad hoc tribunal over the crime of aggression represents one legal option to redress this impunity gap.
The overview of legal options open to the General Assembly says nothing about the sizeable challenges in operationalizing these various options, especially in trying the incumbent Russian leadership for the crime of aggression. Nor has it sought to predict the geopolitical winds of change that might make these options more or less viable as a matter of international politics. However, as states and other actors coordinate their activities and strategize in forging creative solutions to overcome misuses of the Security Council veto, it is the General Assembly, now as in 1950, that can step into the breach. Resolution ES-11/1 has made a start.
† Michael Ramsden, International Justice in the United Nations General Assembly 133–36 (2021).
‡ Id. at 114–45.
* Michael Ramsden is an associate professor at the Faculty of Law, The Chinese University of Hong Kong and a barrister door tenant at 25 Bedford Row, London. Michael also previously worked in the Appeals’ Division of the International Criminal Court and at United Nations Assistance to the Khmer Rouge Trials. He has published extensively in the areas of international criminal law, international human rights law and international institutional law, including a monograph, International Justice in the United Nations General Assembly, published by Edward Elgar Publishing in 2021.
