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

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.”