I. INTRODUCTION
The role of the United Nations Security Council (‘UNSC’) in the enforcement of international criminal law has a chequered and controversial record, not least with respect to its power to make a referral to the International Criminal Court (‘ICC’). Double standards permeate UNSC decision-making, with permanent members of the UNSC in particular criticized for impeding ICC scrutiny of its own nationals and those of its client States.Footnote 1 Given mounting criticism from States, it could not be more timely to take a fresh look at the viable alternatives to the present UNSC-dominated structure in upholding the UN's growing mandate to address impunity for mass crimes.Footnote 2 One option is for the UN General Assembly (‘UNGA’) to assume a greater role, in light of resurgent calls for it to break UNSC deadlock via the ‘Uniting for Peace’ mechanism.Footnote 3 Based conceptually in the UNGA's powers to promote human rights and international security, as well as on the pooled universal jurisdiction of its members, it is argued that the UNGA has a latent potential to catalyse action at the ICC.Footnote 4 This article offers the first systematic analysis of actual and potential UNGA influence on the ICC, setting out, in turn: (1) the role of the UN plenary in influencing the exercise of the UNSC's power to refer situations to the ICC; (2) the UNGA's ‘quasi-judicial’ competencies that serve to augment the ICC's jurisdiction; (3) the scope for the UNGA to pressure States to engage with the ICC (be they ICC State-parties or not), along with the legally permissive effect of UNGA ‘voluntary sanctions’ resolutions; and (4) more radically, the constitutional possibility of the UNGA exercising a power to make referrals to the ICC.
This article focuses on the UNGA as one institution which may facilitate States in ‘uniting against impunity’, although there are other candidate institutions whose role in addressing the impunity gap also deserve assessment, such as the ICC Assembly of States Parties (‘ASP’). Indeed, in many respects, the ASP has assumed the same decision-making functions at the ICC that the UNSC and UNGA performed at the ad hoc tribunals.Footnote 5 Yet, a key reason to focus on the UNGA's potential to act as a catalyst for action at the ICC is empirical: there is evidence of a functional turn within the UN plenary which includes a greater willingness to confront UNSC inaction, conduct investigations and pass country-specific resolutions on international crimes.Footnote 6 This is evident from the UNGA's decision in December 2016 to establish the ‘International, Impartial and Independent Mechanism’ to investigate individuals responsible for the ‘most serious crimes under international law’ in Syria since March 2011.Footnote 7 A study that catalogues the emerging trend of UN plenary activism in addressing the impunity gap is therefore valuable in evaluating the future possibilities of UN–ICC engagement. Another reason to focus on the role of the UNGA in relation to action at the ICC is normative: the UNGA constitutes a near universal membership of States, including ICC State-parties and non-parties alike, holding the potential for greater legitimation of collective action in a manner that benefits the Court's exercise of jurisdiction. This article will therefore focus its analysis on the actual and potential impact of the UNGA on action taken at the ICC. However, the article will also locate this discussion in its broader context which is to acknowledge that other institutions may be better placed than the UNGA in certain situations to alleviate the impunity gap.
II. GENERAL ASSEMBLY UNGA MEASURES TO PROMOTE ICC ACTION
The Rome Statute recognizes two aspects of jurisdiction, namely the preconditions dictated by Article 12 and the trigger mechanisms in Article 13. The preconditions require that a crime has been committed on the territory of a relevant State (ICC State-parties or States accepting jurisdiction under Article 12(3)), or by a national of a relevant State. ICC jurisdiction is triggered when the UNSC or a relevant State refers a situation to the Court, or when the Prosecutor acts proprio motu and is authorized by the Pre-Trial Chamber.Footnote 8 As discussed below, there is potential for the UNGA to influence both the preconditions and trigger mechanisms contained in the Rome Statute.
A. Pressuring the Security Council to Make an ICC Referral
The starting point is to establish the extent to which the UNGA has been able to influence decisions of the UNSC to refer situations to the ICC. The UN Charter bestows a power on the UNGA to make recommendation to the UNSC, which has been modified by decades of practice to allow plenary recommendations even where the UNSC is acting on a given situation.Footnote 9 At the very least, therefore, the UNGA possesses the procedural legitimacy within the framework of the UN Charter to exert pressure on the UNSC to refer a given situation to the ICC. Furthermore, the UNGA and UNSC have increasingly formed habits of cooperation and dialogue on human rights and security issues. By way of example, the UNSC routinely cites UNGA resolutions to augment the formation of international norms and to also help justify enforcement action under Chapter VII.Footnote 10 In this respect, the UNSC invoked the principle ‘established’ in the UNGA ‘Friendly Relations’ Resolution 2625 to impose duties on States not to acquiesce in terrorist activity within its territory following the 9/11 terrorist attacks.Footnote 11 Likewise, from what originated as a British proposal in the UNGA to eliminate trade in ‘blood diamonds’, the UNSC ‘welcomed’ the UNGA's resolution to support its Chapter VII decisions in drawing a link between the escalation of conflict and the diamonds trade in Sierra Leone and Liberia.Footnote 12
Similarly, the UNGA has used its powers to make recommendations to the UNSC in a variety of areas. For example, the UNGA recommended that the UNSC uphold procedural fairness in its terrorist sanctions regime and in criticizing the disproportionality of enforcement action.Footnote 13 In rare instances the UNGA has gone further, to condemn UNSC inaction: ‘deploring the failure’ of the UNSC to ease the humanitarian crisis in Syria.Footnote 14 Similarly, the UNGA has proven willing to recommend that the UNSC act in the field of international criminal justice. During a period of debate over whether the UN should establish an ad hoc tribunal for crimes committed in the Balkans, the UNGA urged the UNSC to establish the International Criminal Tribunal for the former Yugoslavia (‘ICTY’), given initial reluctance from some UNSC permanent members.Footnote 15 Recently, the UNGA encouraged the UNSC to consider a referral of the situations in North Korea (‘DPRK’) and Syria to the ICC, in the latter case ‘regretting’ that a draft resolution was not adopted despite ‘broad support from Member States’.Footnote 16 The broader issue this raises is whether UNSC decision-making has been influenced by UNGA recommendations that call for the UNSC to end impunity, specifically in the exercise of its power to refer situations to the ICC.
1. Sharpening the language of UNGA ‘impunity’ resolutions through commission fact-finding
In this regard, an important development in UN practice in the past decade has been the creation of ad hoc commissions of inquiry to conduct country-specific investigations into alleged abuses of international human rights law and international humanitarian law.Footnote 17 Using commissions within the UN as a preliminary step to identifying whether a case should be investigated at the ICC brings distinct advantages, at least politically. The oft-cited criticism of UNSC political bias may be partially alleviated were it to rely on the work of credible, competent and independent fact-finders to support referral decisions.Footnote 18 Indeed, it has been noted that the evidence presented in the UNSC's Darfur inquiry had a ‘strong impact’ on the decision to refer the situation to the ICC.Footnote 19 In this respect, UNSC-established commissions such as that established for the Darfur situation are likely to be the most authoritative given their support from the permanent members; but this also explains why their creation within the UNSC are a rarity. Aside from Darfur, the UNSC has only established commissions on two occasions, unrelated to its ICC referral power (Rwanda and Yugoslavia), supporting the necessity for other UN organs to perform an investigatory function instead.Footnote 20
Given the absence of UNSC established-commissions, the UN plenary has assumed ever increasing responsibility for establishing country-specific mechanisms to investigate international crimes and to promulgate their findings. An early example of UN plenary activism in advancing international investigations was the creation by the UNGA in 1997 of the Group of Experts for Cambodia, leading to the establishment of a hybrid tribunal.Footnote 21 Yet it was the UNGA's creation of the Human Rights Council (‘HRC’) in 2006, with its mandate to address ‘violations of human rights, including gross and systematic violations’, which led to a sustained plenary focus on the investigation of international crimes.Footnote 22 The result was that over the next decade HRC sponsored commissions would investigate violations in Palestine (2006), Lebanon (2006), Darfur (2006), Libya (2011), Côte d'Ivoire (2011), Syria (2012), Eritrea (2014) and DPRK (2014).Footnote 23 The effect of establishing these commissions was that the HRC were able to form a judgment on the likelihood of crimes being committed in a given State and to make recommendations accordingly. It followed that the release of commission findings coincided with a strengthening of language in HRC country-specific resolutions. Prior to 2011, with the notable exception of Darfur, the HRC avoided pronouncements on the occurrence of ‘crimes’, instead using the language of human rights violations.Footnote 24 The Libyan uprising, which coincided with greater American engagement with the UN, led the HRC to condemn human rights violations, ‘some of which may also amount to crimes’.Footnote 25 Since then, the HRC has relied on fact-finding missions to note possible ‘crimes’ in the Occupied Palestinian Territories, Syria, DPRK, Myanmar, Eritrea and South Sudan.Footnote 26
Of particular importance to the analysis here, UNGA resolutions on country-specific situations have been influenced by the findings of HRC sponsored commissions of inquiry.Footnote 27 The UNGA endorsed the methodology of HRC commissions and used their findings to condemn possible crimes in Syria and the DPRK.Footnote 28 Notably, the language of UNGA resolutions on DPRK strengthened following the release of the commission report, from denouncing ‘grave violations’ of human rights to ‘crimes against humanity’.Footnote 29 The UNGA, drawing on the HRC Special Rapporteur, also noted ‘violations of international humanitarian law’ in Myanmar.Footnote 30 The strengthening of language in UNGA resolutions is also apparent with the release of commission reports on the armed conflict in Gaza, which both plenaries endorsed by majority vote, although the UNGA stopped short of characterizing the violations as ‘crimes’ in the same way as the HRC.Footnote 31 Beyond the text of UNGA resolutions, the recent adoption of Resolution 71/248 to establish the ‘International, Impartial and Independent Mechanism’ itself is premised on augmenting the functions of the HRC-established commission so as to secure future criminal prosecution of individuals responsible for serious crimes.Footnote 32 Taken collectively, these facts evince the close cooperation and coordination between the UNGA and HRC in investigating and identifying the occurrence of international crimes.
2. Evaluating UN plenary influence on UNSC referrals
The crucial issue is whether there is a causal relationship between this UNGA/HRC practice and UNSC referral decisions. It is too early to say given the limited referral practice so far. Even so, identifying influences on the UNSC will not always be easy to establish, particularly as the UNSC will often be slow to attribute its decision or a change in its position to anything other than its members’ considered judgment. That said, the UNSC has recognized the investigatory value of commission findings to support its decisions. Thus the UNSC in Resolution 1970 (2011) acknowledged the deliberations of the HRC when referring the Libya situation to the ICC.Footnote 33 Aside from the question of whether, ultimately, a UNSC referral occurs, plenary deliberations are influencing the agenda and outcomes in the UNSC in other ways. The UNSC has ‘mirrored’ the language of HRC resolutions and commission reports, in characterizing international crimes.Footnote 34 Further, although Yemen's human rights situation was on the UNSC's agenda, it did not address the need for an investigation for alleged serious crimes until the HRC had called for this.Footnote 35 The growing importance of HRC commissions for the UNSC is further evidenced by the UNSC's provision of operational support, for instance, when renewing the mandate of the UN Operation in Côte d'Ivoire. The UNSC instructed this mission to act in ‘close coordination’ with the HRC's Independent Experts.Footnote 36 The UNSC has also underpinned HRC commissions with Chapter VII authority, calling upon all sides to cooperate with investigations in Côte d'Ivoire and the Central African Republic (‘CAR’).Footnote 37 It also endorsed the credibility of HRC commissions’ investigatory standards as a model for adoption by the Yemeni authorities in investigating crimes within its jurisdiction.Footnote 38
Still, the extent of UNGA/HRC influence is inevitably limited in the ‘hard case’ where the interest of a UNSC permanent member is implicated. Thus, China and Russia vetoed the referral of Syria to the ICC despite multiple UNGA/HRC resolutions (carrying considerable State support) and commission findings that at least supported the opening of an investigation at the ICC.Footnote 39 In this respect, the best that can be hoped of UNGA/HRC impunity resolutions is that they build momentum towards the eventual consideration of the issue by the UNSC. For instance, UNGA Resolution 69/189 drew on commission findings that called for the UNSC to refer the DPRK situation to the ICC. Although no resolution was drafted or vote taken, the UNGA’s calls to address DPRK impunity prompted the UNSC to meet in closed session; a necessary first step in broadening UNSC consideration of DPRK issues, from disarmament to human rights.Footnote 40
3. Delimiting General Assembly/Human Rights Council UN plenary influence on the Security Council
That said, it is necessary to acknowledge at this juncture that the UNGA's ability to influence the UNSC exists in the broader context of international pressures exerted by a variety of agents. The UNSC will accord due weight to the views of States and organizations within the region in which the situation has arisen, particularly where there are regional sensitivities, to assuage non-intervention concerns of Russia and China. In the Libya situation, the HRC commission added evidentiary justification and legitimacy to the referral, yet it was Arab League support that was, if not decisive, then a weightier factor.Footnote 41 Further, the UNGA's influence may be undermined in instances where plenary dissent or abstentions produces a mere technical majority, leading like-minded States to act collectively outside of the UNGA to preserve a ‘united front’. This may have been evident when 57 States petitioned the UNSC to refer Syria to the ICC.Footnote 42 UNGA political biases may also affect the extent to which it is able to address the impunity gap and also influence the UNSC, as will be developed in Part IV of this article.
Commissions have been established outside the UN, for example, by non-governmental organizations (‘NGOs’) and regional organizations such as the European Union (‘EU’) and African Union (‘AU’).Footnote 43 Although NGOs perform an important investigatory role and have assisted the ICC Prosecutor in initiating investigations, commissions established by States provide a better representation of the shifting modus operandi of States towards ending impunity and thus hold greater persuasive power.Footnote 44 Nonetheless, non-UN commissions can have persuasive effects on the UNSC, particularly in offering regional legitimacy, as in the UNSC's recent ‘welcoming’ of AU commission findings on South Sudan.Footnote 45 Non-UN commissions often compliment HRC investigations or act as surrogates where the principal UN organs fail to investigate, as in the International Labour Organisation (‘ILO’) commission established to investigate forced labour in Myanmar, an initiative not taken by the UN plenary, but subsequently endorsed by it.Footnote 46 Although they play differing roles, the growth of commissions both in the UN and elsewhere can collectively buttress and legitimize UNGA recommendations for UNSC action.
There are of course specific advantages to establishing commissions through the UN's plenary organ. The UNGA (and HRC) possesses broad constitutional authority under the UN Charter, with the ‘promotion of human rights’ extending to enforcement of breaches, including international crimes.Footnote 47 Other international organs, such as the ILO, do not enjoy such broad competencies, as the narrow ambit of the Myanmar inquiry focusing on forced labour shows.Footnote 48 The untapped potential of the International Humanitarian Fact-Finding Commission makes it another candidate organ for fostering ICC action,Footnote 49 but its mandate is limited to international humanitarian law and, crucially, it requires the consent of all parties to an armed conflict, unlike UN commissions.Footnote 50 UN commissions have also played a central role beyond the referral of situations to the ICC, in providing evidence for the Prosecutor's subsequent investigations.Footnote 51 Thus, in initiating a proprio motu investigation on the Côte d'Ivoire situation, much of the fact-finding relied on derived from a HRC commission report.Footnote 52 In short, the UNGA and HRC are able to embolden inquiries via their broad constitutional powers; in turn, commission findings embolden plenary recommendations on the necessity for ICC action.
B. Facilitating the ICC's Jurisdiction through Norm-Forming and ‘Quasi-Judicial’ Resolutions
The UNGA may facilitate the ICC's jurisdiction in a more indirect way by contributing to the resolution of legal issues which in turn may increase the likelihood of the ICC's exercise of jurisdiction. While UNGA resolutions do not possess legislative effect, they provide evidence on a state of affairs in international law, bolstered by the UNGA s broad plenary status. Indeed, the UNGA's central role in norm formation and crystallization has been recognized by the ICJ in multiple decisions.Footnote 53 UNGA resolutions are amongst the instruments most cited by international decision-makers,Footnote 54 and the UNGA has performed a critical role in developing international criminal law over the past 70 years.Footnote 55 The UNGA, through resolutions crafted in peremptory language and with broad plenary support, has a degree of legitimacy in developing ICC law, by providing authoritative pronouncements on custom, defining terms in applicable treaties, or resolving issues that intersect with the ICC's jurisdiction and general international law.
There are many examples of the UNGA acting to develop both international criminal law and the norms contained within the Rome Statute. In the first place, the UNGA has acknowledged the ‘usefulness’ of it discussing the ‘status of instruments of international humanitarian law relevant to the protection of victims in armed conflict’.Footnote 56 In a similar vein, ICC crimes that draw on custom, such as Article 7(1)(k) on the crime against humanity of ‘other inhumane acts’ can be influenced by State voting in the UNGA. One example is the putative crime of ‘forced marriage’ as ‘other inhumane acts’, a proposition which has divided jurisprudence in the ad hoc tribunals but of which the UNGA has, in the past five years, taken steps towards securing norm consensus.Footnote 57 The UNGA may also take steps to define an international crime which is then used by State-parties to amend the Rome Statute, as evidenced by the ASP's incorporation of the UNGA's definition of aggression in Article 8bis.Footnote 58 Similarly, UNGA resolutions may assist the development of the Court's procedural and cooperation norms. The ICC judiciary has cited UNGA resolutions on a myriad of legal points, such as victims’ right to remedies and States’ duties to act in good faith in cooperation matters.Footnote 59 More ambitiously, the UNGA might encourage State cooperation with the ICC by pronouncing on the scope of legal duties under the Rome Statute or other conventions, such as the Genocide Convention.Footnote 60 The UNGA may perform a useful role where customary ambiguity or controversy exists as to the scope of cooperation duties, as with the law of immunities.Footnote 61
Aside from norm-development, the UNGA has a potential role to play in resolving international disputes material to the ICC's exercise of jurisdiction in a given situation, through the pronouncement of ‘quasi-judicial’ resolutions.Footnote 62 This type of resolution is, indeed, recognized in the Rome Statute, albeit in relation to the UNSC, where Article 15bis makes a prosecution of aggression contingent on an UNSC determination. Although the UNSC is the only UN political organ with broad powers to bind the UN membership, the ICJ has recognized the UNGA's quasi-judicial competencies to ensure that international breaches do not go without remedy.Footnote 63 In this respect, the UNGA has pronounced on the scope and applicability of treaties, noting recently that the Geneva Conventions are applicable to the Occupied Palestinian Territories.Footnote 64 The UNGA has also addressed UN Charter violations (pertaining to systematic acts of racism and aggression) and the mandate of colonial territories.Footnote 65 It has also noted State failure to comply with UNSC resolutions.Footnote 66 It is apparent also that UNGA quasi-judicial resolutions have influenced decision-making in other legal regimes; after World War II the four powers administering African colonies agreed to submit any disagreement to the UNGA for determination, the UNGA subsequently pronouncing on the timing for Libyan, Somali and Eritrean Statehood.Footnote 67 UNGA determinations have also been used to find State responsibility for human rights violations, even where the resolution was divisive. Thus in Chiragov v Armenia, the European Court of Human Rights used UNGA Resolution 62/243 (2008) to establish that the population expelled from their homes in Azerbaijan during the Nagorno-Karabakh conflict had a right to return, thereby supporting the finding of an interference with the right to peaceful enjoyment of possessions.Footnote 68
This analysis reveals the UNGA's quasi-judicial potential, which may assist the ICC in resolving jurisdictional questions where these implicate general international law. Such questions may arise, for example, in the interpretation of the phrases ‘State’ and ‘territory’ within the meaning of Article 12 of the Rome Statute.Footnote 69 It is also easy to envisage a problem, during or in the aftermath of a civil war, in identifying which entity is competent to represent a State in accepting the court's jurisdiction and exercising a referral power. Could, for instance, an ICC-friendly ‘government-in-exile’ make a referral to the ICC despite lacking effective control? While the ICC is competent to decide jurisdictional questions, its function as a criminal court does not sit easily with it resolving such questions of international law or State responsibility.Footnote 70 Indeed, this controversy-avoidance tendency was implicit in the Prosecutor's initial decision not to investigate the Israel/Palestine situation because Palestinian Statehood was uncertain.Footnote 71 It is here where the UNGA can resolve international disputes at the ICC via quasi-judicial resolutions.
Three examples show this. The first is the UNGA's pronouncements on Palestinian Statehood. Accountability for crimes in Israel and Palestine is certainly a divisive issue: the US would veto any referral resolution proposed in the UNSC. Yet, if Palestine was a ‘State’ that would obviate the need for a referral from the UNSC, Palestine then being able to accept the jurisdiction of the ICC of its own accord. The UNGA adopted Resolution 67/19 recognizing Palestine's ‘right’ to Statehood, according it non-member observer ‘State’ status in the UN.Footnote 72 Remarkably, the Prosecutor treated Resolution 67/19 as ‘… determinative of Palestine's ability to accede to the [ICC] Statute’.Footnote 73 The second example shows the impact of UNGA resolutions on judicial decision-making on questions of ‘territory’. The Prosecutor undertook a preliminary examination into alleged crimes committed in South Ossetia, the issue being whether this territory was part of Georgia, a State-party. In authorizing an investigation, the PCT I drew upon multiple UNGA resolutions affirming this fact.Footnote 74 Finally, the UNGA has also pronounced on the validity of acts by putative State organs, which can serve to guide future decisions of the ICC. In the Crimea, secessionists entered an annexation agreement with Russia. The Ukrainian government lodged an Article 12(3) declaration, thus requiring the ICC to resolve the territorial and governmental issues in the Crimea as a precondition to jurisdiction.Footnote 75 In this respect, pending preliminary investigation, the ICC will be assisted by UNGA Resolution 68/262 (2014) which declared the Crimea annexation by Russia to be of ‘no validity’.Footnote 76
The ICC's plenary organ, the ASP, could also perform a quasi-judicial role to resolve questions of general international law, given that it comprises a large number of States and has a broad plenary power to make recommendations. The quasi-judicial potential of the ASP was recognized by the Prosecutor when inviting the ASP to form a view on whether Palestine had yet attained Statehood, but it did not pronounce on this issue.Footnote 77 It may be that the State-parties do not ultimately perceive this to be the role of the ASP, it better to focus on operational questions and defining the ambit of future crimes. Indeed, many ASP resolutions address operational or technical questions of the ICC as an international organization.Footnote 78 These limitations therefore support the UNGA continuing to play a quasi-judicial function in the area of international justice. In this respect, the UNGA is in a better position than the ASP to pronounce on issues in international law because of its broader membership, which also include ICC non-parties, thereby providing a firmer democratic basis for determinations that impact such States.
C. General Assembly Recommendations for State Engagement with the ICC
UNGA resolutions, aside from influencing UNSC and ICC decision-making at the institutional level, may also have extrinsic effects in securing cooperation of States in arresting fugitives and imposing sanctions. It is necessary to first delimit the UNGA's potential role from the existing mechanisms in Article 87(7) of the Rome Statute, which assigns competence on the ASP and UNSC to address instances where States fail to cooperate with the ICC.
1. Effectiveness of ICC mechanisms for securing compliance
Under Article 112 of the Rome Statute, the ASP shall consider ‘any question relating to non-cooperation’, with any response being ‘non-judicial’ and aimed at ‘deploying political and diplomatic efforts to promote cooperation and to respond to non-cooperation’.Footnote 79 Specific action includes the ASP President's ‘good offices’ engaging with the non-compliant State, holding public meetings to allow open dialogue and making ‘concrete’ recommendations.Footnote 80 The ASP potentially offers a more direct route than the UNGA for censuring non-cooperation, although the record of them doing so has been mixed so far. While the ASP President and Bureau have called on specific States to cooperate and recommended ASP action, there have been no country-specific recommendations noting failures to cooperate.Footnote 81 That said, some States while engaged in dialogue with the ASP Bureau have acknowledged their obligations and gave assurances that their breaches of the Rome Statute cooperation regime will not be repeated. Of particular note here, following dialogue with the ASP Bureau, Malawi refused to host the Sudanese President at an AU summit.Footnote 82 In general, however, the ASP has not been able to force cooperation in ‘hard cases’. The Kenya government's refusal to deliver evidence to the ICC, bringing the Kenyatta trial to a halt, met with little ASP pressure.Footnote 83 It has thus been argued that the ASP has been something of a soft touch on non-cooperation, showing a lack of institutional commitment towards monitoring and addressing violations, evidenced by the lack of a permanent subsidiary body under Article 112.Footnote 84
The UNSC, by contrast, may impose cooperation duties and sanction recalcitrant States. It has, of late, taken steps to enforce cooperation with ICC investigations in the Democratic Republic of Congo (‘DRC’), CAR and Mali, in authorizing UN peacekeeping operations to cooperate in arrests.Footnote 85 However, UNSC referral decisions so far have yet to place obligations on ICC non-parties to cooperate with the Court.Footnote 86 Despite the ICC referring multiple instances of non-cooperation to the UNSC, no subsequent enforcement action has been taken against the recalcitrant States. With Libya, the UNSC's ‘ending impunity’ rhetoric vanished once the new transitional government took office.Footnote 87 Similarly, over a decade after the Darfur referral, despite ICC orders being openly flouted and the investigation being suspended, the UNSC took no action; this reflects the reality that China in particular would veto any resolution forcing Sudanese cooperation.Footnote 88 In terms of the type of enforcement action, it is within the power of the UNSC to impose sanctions against recalcitrant States or against fugitives the subject of investigation at the ICC.Footnote 89 UN members have called on the UNSC to impose targeted sanctions on suspects ‘as a matter of course’.Footnote 90 However, the UNSC has failed to adopt a consistent approach to targeted sanctions, nor have they imposed sanctions on States that have failed to cooperate with the ICC.Footnote 91 Experience from the former Yugoslavia indicates that the UNSC only took trade sanctions seriously when pursuing ‘peace’; once some modicum of peace was obtained, securing post-conflict ‘justice’ was a dispensable consideration in suspending the sanctions regime.Footnote 92
2. Diplomatic effect of General Assembly recommendations
The UNGA can direct recommendations to States to support the ICC's work, calling on non-members to ratify the Rome Statute and for current members to cooperate.Footnote 93 Thus, in the context of the Palestinian situation the HRC called upon the ‘parties concerned to cooperate fully with the preliminary examination of the International Criminal Court and with any subsequent investigation that may be opened’.Footnote 94 The opening of a preliminary examination by the ICC Prosecutor into the situation in Burundi also led the HRC to recall Burundi's ‘obligations to fight impunity for crimes falling within the jurisdiction of the Court’.Footnote 95 Plenary recommendations might also call on ICC State-parties to make a referral and also encourage UN members unwilling to ratify the ICC Statute to accept the court's jurisdiction on an ad hoc basis by way of a declaration under Article 12(3).Footnote 96 More generally, the UNGA and HRC have also invited States to meet their obligations under a number of relevant conventions and also to take such steps to ‘combat impunity’ within their territory.Footnote 97 Notably, the UNGA called on Russia to address the impunity for crimes that have arisen from its occupation of the Crimea.Footnote 98 A final example to show how the UN plenary organs can exert pressure on States to respect the Rome Statute is the HRC's Universal Periodic Review (‘UPR’). Over the past decade States have used this mechanism to make in excess of 500 recommendations to individual States pertaining to international justice, including to ratify the Rome Statute, align national legislation and cooperate with the ICC.Footnote 99
Aside from the power to suspend a State's plenary membership, exercised by the UNGA recently with Libya, UNGA exhortations in this area reflect the usual ways that international organizations attempt to influence State action; resolutions encouraging State compliance with ICC law have also been passed by the Organisation of American States, AU, EU and Council of Europe.Footnote 100 In many respects these entities exert greater influence than the UNGA, particularly those with geopolitical proximity to the relevant State and where compliance can be encouraged with economic incentives, as with Serbia's accession to the EU following their cooperation with the ICTY.Footnote 101 Where the UNSC fails to act, though, UNGA recommendations to recalcitrant States allows the UN to take an official position on a situation, promoting State engagement and accountability within the organization. This could, for instance, lead parties to a conflict to investigate allegations of war crimes and explain their failure to do so, as arose with Israel and Palestine upon the recommendation of the HRC 2009 Gaza report.Footnote 102 The UNGA has also pressured States into institutional engagement, apparent from UNGA Resolution 69/188 which noted the possible occurrence of crimes against humanity in the DPRK, prompting the regime to engage with the UN human rights rapporteur and participate in the UPR.Footnote 103
3. Authorizing effect of General Assembly resolutions
An interesting question is whether a UNGA resolution may provide a legal basis for the imposition of sanctions in response to State failure to cooperate with the ICC. This is not a mere hypothetical question. UNGA practice recommending ‘voluntary sanctions’ during the Cold War prompted scholarly reflection on whether such recommendations are able to preclude what might otherwise be internationally wrongful conduct on the part of sanctioning States.Footnote 104 The utility of sanctions remains the subject of much debate, including the effectiveness of UNGA supported sanctions in addressing human rights violations.Footnote 105 It is beyond the scope of this article to revisit this debate. Rather it proceeds on the assumption that sanctions can serve a valuable function, a view that is supported in multiple UNGA resolutions. In particular, the UNGA has already identified the utility of sanctions in supporting ICC action, recommending the UNSC to authorize ‘effective targeted sanctions’ against perpetrators of international crimes.Footnote 106 In the event that the UNSC fails to act, could the UNGA initiate a sanctions regime, and if so, what would be its legal effect?
Some delimitation between different forms of State action and collective measures is first necessary. Many acts that States take against a recalcitrant State will simply amount to retorsions and thus not give rise to State responsibility. But it is certainly apparent that many acts relating to the enforcement of ICC law would constitute an interference in the internal affairs of another State, including asset freezes, travel bans and suspension of diplomatic relations.Footnote 107 Aside from possible treaty contraventions, it is arguable that these measures are unlawful without the relevant State's consent, a position supported by UNGA resolutions.Footnote 108 Chapter VII provides the obvious basis to preclude such otherwise wrongful conduct, but given the assumption here of UNSC inaction, it is necessary to look at other collective sanctioning regimes. These may arise, for instance, under regional arrangements, as with the AU, which may impose sanctions against one of its members in response to ‘war crimes, genocide, and crimes against humanity’.Footnote 109 Moreover, the ICC could develop its legal powers to order certain targeted sanctions against indictees that State-parties would then be obliged to follow.Footnote 110 Certainly, the UNGA could endorse these measures and thus add weight to their legitimacy. But problems arise in imposing sanctions against a State that has not consented to the sanctioning regime or where these mechanisms have not been activated; it is here where the UNGA may perform a distinct function in precluding otherwise wrongful conduct in line with the Articles on the Responsibility of States for Internationally Wrongful Acts (‘ARSIWA’).
The first possibility is to treat the implementation of UNGA-recommended sanctions as UN action and thus outside the rules of State responsibility, as Talmon noted.Footnote 111 The ARSIWA are ‘without prejudice to the Charter of the United Nations’.Footnote 112 However, the commentary to the ARSIWA only references Article 103 of the Charter, which gives primacy to the obligations of member-States ‘under the present Charter’ over those of any ‘other international agreement’ to which such States are party. The difficulty here is that UNGA resolutions are generally not regarded to be a source of obligation given that they are recommendatory in character.Footnote 113 But the commentary also noted a distinction between individual measures and reactions within the framework of international organizations.Footnote 114 Indeed, it is firmly established that UNSC-‘authorized’ enforcement action, including sanctions, precludes the wrongfulness of such coercive acts.Footnote 115 The UNSC sanctions regime is predicated on a determination that it is necessary to restore or maintain international peace and security under Article 39 of the UN Charter. Whether UNGA resolutions can also have ‘authorizing’ effects, especially in light of practice under the Uniting for Peace mechanism, remains an open question.Footnote 116 Notably, Judge Lauterpacht opined that UNGA recommendations may ‘on proper occasions’ provide a ‘legal authorisation’ for members to act, but offered no further insight.Footnote 117 Indeed, scholarship on Uniting for Peace is divided. A ‘weak’ reading of Uniting for Peace mechanism is that plenary recommendations are merely declaratory of States’ pre-existing rights of action under international law, these States acting on the basis of their own responsibilities. A ‘strong’ construction of Uniting for Peace, on the other hand, imputes to the UNGA the power to authorize (non-mandatory) UN enforcement action to uphold international peace and security.Footnote 118
Still, the better view is that the Uniting for Peace mechanism embraces both weak and strong powers, as UN practice shows. UNGA recommendations on ‘voluntary sanctions’ against abusive regimes in South Africa, Southern Rhodesia and the Portuguese Territories support the existence of weak powers.Footnote 119 In these instances, the UNGA invited the UNSC to apply necessary enforcement measures, which suggests it did not intend to assume analogous powers; but nor did it have to, given the UNSC's parallel action in these situations.Footnote 120 On the other hand, a strong interpretation provides the most natural explanation for the UN mandate in Korea (1950) after UNSC deadlock, both in reflecting views of the major powers at the time and in light of the specific military conduct that went beyond States’ right to self-defence.Footnote 121 This action included the imposition of an arms embargo against China, which was regarded as collective ‘action’.Footnote 122 This strong reading is also apparent from reports of the Collective Measures Committee, established to implement Uniting for Peace. The UNGA overwhelmingly affirmed this committee's work on the possible ‘application of a selective embargo’ instituted by the UNGA.Footnote 123 A final material point to the definition of UN powers, as the ICJ confirmed, is that the question of which principal organ exercises valid Charter powers is an internal issue which does not affect the external legality of UN enforcement action.Footnote 124 The UNGA is able to act on behalf of the entire organization and its exercise of powers enjoy a strong, possibly irrefutable, presumption of validity, at least insofar as the ICJ is concerned.Footnote 125 This analysis, then, shows the UNGA's latent potential to authorize targeted or trade sanctions in the context of supporting ICC functions, where such sanctions regime is related to the UN collective security function of restoring or maintaining international peace and security.
A further issue is whether UN members that are not party to the Rome Statute would also owe a duty to cooperate with the ICC. In this respect, it is possible to construct a limited duty to cooperate with the ICC from the UN Charter, although there is no general cooperation duty, according to the principle that a treaty does not create obligations for non-parties.Footnote 126 Furthermore, the UNGA has only called for member-States to cooperate with the court; it has only employed stronger language when noting State failures to cooperate with UN investigations or where recommendations have been made to States that they undertake a domestic investigation into international crimes.Footnote 127 Nonetheless, a State's failure to cooperate with the ICC would contravene the UN Charter where cooperation is required pursuant to a decision of the UNSC taken in exercise of its Chapter VII powers. If the UNSC obliges States to cooperate with the ICC, then any subsequent failure to do so could be declared by the UNGA to be justifying of countermeasures. In this spirit, several States during an UNSC debate on institutional failings in the Darfur situation noted that Sudan had violated its duties to cooperate with the ICC under UNSC Resolution 1593.Footnote 128 The role of the UNGA to act upon violations of UNSC resolutions will thus most obviously arise where the UNSC is deadlocked on further action to enforce its resolutions and in this respect would be a recommendation within the spirit of Uniting for Peace: indeed, the UNGA's voluntary sanctions recommendations against South Africa drew upon this State's ‘failure’ to observe repeated UNSC ‘requests and demands’.Footnote 129 The notion that UNSC resolutions are open to interpretation by other bodies, while contentious in application, occurs regularly in numerous regimes including in the implementation of sanctions.Footnote 130 The UNGA, as the UN's plenary organ, is particularly well placed to pronounce on the meaning of obligations flowing from UN resolutions. The obvious limitation of this approach, though, is that the scope of countermeasures is necessarily tied to how the UNSC formulated the duty to cooperate, which may perpetuate accountability gaps, as with the Sudan and Libya referrals, which did not impose cooperation duties on ICC non-parties.
Finally, subject to overcoming a number of conceptual uncertainties arising from the limited purpose of countermeasures to induce State compliance with international obligations, the UNGA may also recommend targeted sanctions, such as freezing an ICC suspect's assets.Footnote 131 Here, the most obvious legal basis would be erga omnes obligations; the commission of ‘international crimes’, as the first draft of the ARISWA indicated, would certainly constitute such breaches.Footnote 132 The perceived risks of abuse attendant with unilateral assessments of erga omnes breaches adds weight behind the UNGA performing such a coordinating function given its plenary status, as indeed the ILC Special Rapporteur originally envisaged, although other international or regional entities may also do this.Footnote 133
III. THE LEGAL EFFECT OF GENERAL ASSEMBLY REFERRAL TO THE ICC
A more radical solution to resolve UNSC deadlock is to confer a referral power on the UN plenary, as suggested by the UN High Commissioner for Human Rights.Footnote 134 The Rome Statute only lists the UNSC as the competent UN organ to make a referral, necessarily excluding other UN organs.Footnote 135 The following section explores possible reform proposals, alongside analysis on the legal significance of a UNGA referral both within the UN and ICC.
A. Legal Basis for General Assembly Referral Powers
The UNGA's legal powers under two treaty regimes are at issue; the UN Charter and the Rome Statute. The UN Charter does not provide a positive basis for the UNGA to assume a referral power, but it does not preclude it, and leaves a certain degree of textual latitude for the UNGA to direct its recommendations at a range of actors, including the ICC.Footnote 136 Still, for a UNGA resolution to be an effective trigger of ICC jurisdiction, it must have legal relevance within the ICC order. It might be argued that the Rome Statute should be interpreted in light of ‘subsequent practice’ under Article 31(2)(b) of the VCLT. A UNGA ‘referral’ might constitute subsequent practice ‘in the application of’ the Rome Statute, on the basis that those ICC State-parties that voted for the UNGA resolution would be asserting a legal claim as to the permissibility of such referral. However, unlike the UN Charter, a living instrument, the Rome Statute structurally limits interpretive creativity. Although the ICC judiciary are entitled to take into account subsequent practice of State-parties, the guiding principles of legality and strict construction necessarily constrain expansive interpretations of the Court's jurisdiction.Footnote 137
A formal amendment to the Rome Statute by the ASP is therefore required. A radical approach would be to confer on the UNGA a referral power that is independent of the UNSC's power. This would break from Uniting for Peace, which predicates UNGA action on UNSC ‘failure’.Footnote 138 However, given that the UNGA now routinely pronounces on issues where the UNSC is seized of the matter and it has manifestly not ‘failed’, this amendment may not be as radical as it first appears. It also depends what the desired legal effect of the referral is within the UN order; if it is underpinned with coercive powers, in being able to impose outcomes on States against their will, then the constitutional question as to which organ ought to have priority in making a referral decision is more pertinent. But if the assumption is that Uniting for Peace only reflects ‘weak’ UNGA powers, as discussed above, then the distillation of an independent referral power is not, in UN constitutional terms, of particular controversy. Indeed, a referral from the UN's plenary organ would reflect a broader set of interests in ending impunity than those of the UNSC membership, serving a valuable role in ensuring appropriate investigatory emphasis is given to situations that have been ignored or overlooked, or where the Prosecutor is reluctant to act proprio motu due to political sensitivities. A UNGA referral would thus provide political legitimacy for investigations and prosecutions that are not underpinned by Chapter VII powers.
If, though, a UNGA referral lacks the backing of UN collective security powers it may be questioned whether there are other more suitable bodies to trigger the court's jurisdiction. The ASP is one obvious contender, but its proximity to the court poses a concern: it cannot appoint judges and prosecutors then specify which situations ought to be investigated, not without creating appearances that the legal processes lack institutional independence from the political forces underpinning a referral.Footnote 139 An alternative is a reputable international fact-finder, such as the International Commission of the Red Cross. This would notionally achieve independence from the politics associated with UNSC referrals, but it also ignores the reality that politics is an unavoidable feature in international case selection. The issue, rather, is about improving the quality of politics that underpins UN-based referral decisions, to secure broader international legitimacy and support, as addressed in Part IV below.Footnote 140
B. Pooling Sovereignty for Universal Jurisdiction
There is an important issue as to whether a UNGA referral would confer jurisdiction on the Court over conduct taking place in an ICC non-party State. In this respect, it is apparent that the UNSC's coercive powers are what underpin Chapter VII referrals to the ICC. This is recognized in commentary to the draft Rome Statute, with the UNSC's constitutional powers ultimately supporting it having a referral power over the UNGA.Footnote 141 An important function of an UNSC referral, then, is to dispense with the requirement that a non-party State must consent to the jurisdiction of the Court. Assuming, though, that the UNGA does not possess analogous coercive powers to dispense with State consent, a UNGA referral to the ICC of a situation within a non-party State would have to be justified on a different legal basis to a UNSC referral.
One justification is to challenge the theory that a non-party must consent to the ICC exercising jurisdiction over conduct within its territory on the basis of the principle of universal jurisdiction. Given the assumption that the UNGA is unable to make a decision that binds the UN member State on whose territory the conduct in question occurred, the principle of universal jurisdiction would provide a sound legal underpinning for UNGA resolutions that call for the prosecution of alleged international crimes. This is because the principle of universal jurisdiction is not premised on establishing consent of the relevant territorial State.Footnote 142 Manifestly, States can delegate their criminal jurisdiction and are entitled to do collectively what they may do individually.Footnote 143 Individually, States possess universal jurisdiction over the majority of crimes in the Rome Statute.Footnote 144 Therefore, State-parties could amend the Rome Statute to recognize a UNGA referral as a source of jurisdiction over non-parties and base this on the principle of universal jurisdiction.Footnote 145 A UNGA resolution would thus have legal significance in ICC law in certifying collective State authority for the ICC to exercise universal jurisdiction on their behalf.
Still, there are legal and political complications with the ICC exercising universal jurisdiction. Not least, it proved controversial in Rome. Many parties supported the use of universal jurisdiction in the Rome Statute, but compromise was reached on the current text of Article 12 in order to maximize ratifications.Footnote 146 Therefore, in the future, any such amendment proposal in the ASP would have to revisit this debate, which raised two major legal impediments. First, that universal jurisdiction is non-delegable to international organizations. Second, that the so-called Monetary Gold principle precludes an international tribunal from pronouncing on the interests of a State without their consent (ie non-party States).Footnote 147 Akande persuasively rebutted these arguments, outlining the numerous instances in which international tribunals have exercised jurisdiction over conduct within a State that did not consent, including the ICTY.Footnote 148 There is also no principled basis to single out the exercise of universal jurisdiction as a power that States cannot delegate to international organizations. In fact, the contrary is true; the rationale for universal jurisdiction is to ensure redress for conduct detrimental to all States, with any State exercising jurisdiction doing so on behalf of all others.Footnote 149 The vesting of universal jurisdiction in the ICC, consequent upon a referral from the ostensibly most representative international body, the UNGA, would thus ensure a coherent application of the principle having regard to its underlying rationale. Furthermore, using the Monetary Gold principle to limit the application of the universal jurisdiction principle within the ICC misfires: the principle would only apply where a necessary prerequisite to making a judicial finding is to pronounce on the rights and responsibilities of an absent State.Footnote 150 Although a possible implication of a finding of individual criminal responsibility is that this may in certain instances lead to suggestions that the relevant State bears responsibility for the criminal conduct of its officials, this is not a prerequisite to the ICC's ultimate findings.Footnote 151
C. Binding Effect of UNGA Resolutions
Grounding a UNGA referral in the principle of universal jurisdiction would only contribute so much to effective ICC action; State cooperation is still necessary. This is legally unproblematic insofar as State-parties are concerned.Footnote 152 However, mandatory cooperation of non-parties has to be founded on some other legal basis, principally a binding UN decision. That the UNGA cannot bind members outside internal organizational matters has been challenged by some scholars, referring to equivocation in the drafting history as to the scope of UNGA powers.Footnote 153 Furthermore, UN practice demonstrates that the concept of a ‘recommendation’ is not static, but evolving; it has been used by the UNSC to ‘authorize’ enforcement action.Footnote 154 On this basis, there is some support for UNGA resolutions assuming binding effect where this reflects the will of the UN membership to confer on the body authoritative competencies, as with the UNGA's regulation of trustee and mandated territories.Footnote 155 Even so, an amendment to the UN Charter to recognize the binding effect of a UNGA resolution making a referral to the ICC is improbable given the need for the unanimity of UNSC permanent members on any proposal challenging its exclusive referral power.Footnote 156 An alternative is to accept that the UNGA possesses binding powers by implication or from broad interpretive agreement of UN members. Although the drafting history did not vest authoritative interpretation of the UN Charter in the UNGA, the UN's decentralized structure necessarily grounds the permissible limits of institutional powers in the membership. This is reinforced by the absence of hierarchically superior judicial review and the general approach of the ICJ to give a teleological reading of the principal organs’ powers, the exercise of which are presumed valid.Footnote 157
However, the scope to fashion for the UNGA an implied binding power is extremely unlikely. The crystallization of new institutional powers invariably derives from long-standing practice, and thus, persistent recitation of resolutions to evince members’ irrevocable intent.Footnote 158 It is possible for institutional powers to crystallize more rapidly during transformative times, Sloan noting that the UNGA could evince this intent through the use of peremptory and mandatory language.Footnote 159 The use of Uniting for Peace to redraw ICC referral powers may constitute one such transformative moment, as the original resolution in 1950 arguably did as an urgent response to UNSC deadlock over the possibility for continued action in Korea. The problem though, as a customary institutional power, it is subject to the shifting tides of State interest and thus is vulnerable especially in the context of imposing duties on States that may mobilize to reject the UNGA's putative power, as indeed happened to an extent with the UNSC's analogous power.Footnote 160 In short, while a UNGA referral may vest jurisdiction in the ICC over conduct taking place in the territory of non-parties, it is unlikely to generate corresponding cooperation duties due to norm indeterminacy. This need not undermine the utility of a UNGA referral, though, in legitimizing the use of universal jurisdiction and in bolstering the persuasive effect of UNGA recommendations for State cooperation with the ICC.
IV. THE LEGITIMACY OF UNGA ACTION
The notion that the UNGA should perform a greater role in securing justice at the ICC, particularly where it involves the exercise of ‘strong’ powers under Uniting for Peace, is contentious.
The first objection is that the powers of the UNSC under the Rome Statute reflect the desirability of close management of international situations by the major powers, and with this, selectivity in invoking UN collective security. The consequence of widening enforcement is that the ICC might take jurisdiction over situations that are politically controversial, as with the Court's opening of an investigation in Ukraine and also following Palestine's accession to the Rome Statute, prompted by the UNGA. While there is no denying the challenges faced by the Court in investigating certain situations that affect ‘permanent five’ interests, or require a delicate evaluation of peace and justice paradigms, plurality of State enforcement is built into the Rome Statute. The ‘great power’ monopoly in enforcing international criminal law was the dominant narrative from Nuremberg until the UN's ad hoc tribunals, but a proposal to carry this role through to the ICC was significantly weakened.Footnote 161 Instead, for the first time, a large number of States (124 to date), be they large or small, could act independently to trigger the jurisdiction of an international criminal tribunal.
That the Rome Statute did not grant the UNSC exclusivity in triggering jurisdiction addressed one problem, but created another; there was now no authoritative political entity able to define and prioritize situations for international criminalization. Instead, issues of great political contestation and complexity were to be offloaded to the ICC Prosecutor and Judges to determine. It might be said that the ICC is able to resolve these issues according to neutral legal criteria and thus act independently of the political forces that lead to situations being referred to the Court. The reality, however, is that policy choices inevitably factor into whether an ICC investigation eventually materializes, even where it is said that the opening of the investigation is based solely on considerations of ‘gravity’.Footnote 162 In replacing what was once a clear political determination for a legal one, in a sense there is now less transparency in situation selection than when this fell to the UNSC, this organ at least operating somewhat openly and being accountable to national political constituencies.Footnote 163 This is not to defend continued UNSC involvement at the ICC, but rather to highlight the need for political coordination and guidance outside of the ICC to facilitate effective prosecutorial and judicial decision-making. Within a system that emphasizes and depends on plurality of State enforcement, the UNGA as a political body thus has potential to harness State support and translate this into ICC action that has various legitimizing and legalizing effects.
However, an obvious criticism is that an enhanced plenary role may produce effects that are counterproductive: States may ‘unite for impunity’. Critics point to the historical political biases in the UNGA, it being soft on human rights in the global south, how the non-binding character of resolutions enables autocratic regimes to push false rhetoric at little political cost and its disproportionate emphasis on Israel as a decoy for abusive States.Footnote 164 The very characteristic supporting the UNGA's legitimacy, its near universal membership, is thus used to undermine it. This is evidenced by South Africa's attempt in the ASP to amend the Rome Statute to vest the power to suspend an investigation in the UNGA, ironically, supported by Uniting for Peace.Footnote 165 Although gaining no traction, this illustrates structural weaknesses in pluralizing State involvement within a plenary made up of uncertain and potentially unsympathetic coalitions.
This poses challenges, but is overstated and must be assessed in light of the realistic alternatives. It is true that UNGA action on ending impunity has been selective so far and there have been noticeable omissions from the plenary agenda of country situations that do warrant criminal investigation. Still, the ICC enjoys broad support based on UNGA debates and votes, which is not limited to Western democracies: in fact, UN plenary voting records of ICC State-parties on matters relating to the Court have been remarkably cohesive.Footnote 166 This voting pattern is not a random occurrence but often reflects a common position reached by ICC State-parties prior to voting.Footnote 167 The AU's hardening position on the ICC might dampen optimism for greater plenary involvement in addressing impunity, but this position should also not be overstated, especially as this opposition arises partly due to the perceived illegitimacy of the UNSC in exercising referral powers. As Jordaan argues, African States have broadly supported country-specific resolutions in the HRC, even where pertaining to events on its continent, in Côte d'Ivoire, Libya and Eritrea.Footnote 168 Furthermore, in recent (2014–2016) UN plenary resolutions on impunity, there is no ‘one African voice’ resisting calls for ICC action, insofar as resolutions that went to a vote are concerned. Significant UNGA recommendations that the UNSC refer Syria and the DPRK to the ICC received support of up to half of the 54 African States.Footnote 169 The imperative to end impunity therefore cuts across regional and political lines.
Related to this, the substantive legitimacy of enhanced UNGA involvement will depend on whether it is able to address criticisms of the UNSC referral mechanism, particularly, in terms of selective enforcement according to the interests of UNSC permanent members. In this respect, the UNGA has not been free from criticism; it too has perpetuated ‘friend-enemy’ distinctions in country situations, seen from its singling out pro-Gaddafi forces for prosecution in its resolutions, despite credible evidence produced by the HRC commission to show that crimes were committed by all sides of the conflict.Footnote 170 By contrast, both the UNGA and HRC called on Israeli and Palestinian armed groups alike to conduct investigations into alleged crimes arising from 2008–2009 Gaza conflict.Footnote 171 The difference in approaches here are primarily justified by political considerations, with the UN plenary keen to support the new regime in Libya and thus avoid any destabilizing influences, which would include allegations that its leaders failed to prevent or suppress war crimes. Such political calculations are inherent in ‘victor's justice’; whether such form of justice is legitimated where the ‘victors’ make up a voting majority in the UNGA is another matter. But the perception of even-handedness in investigations is central to the procedural legitimacy of the ICC. The potential for the UNGA to justifiably complement the Court's judicial functions will turn on its ability to obviate or minimize such biases.
Another criticism directed at the UNSC is its failure to refer situations to the ICC in circumstances that justified it, thereby exacerbating the democratic deficit inherent in the current referral system.Footnote 172 Linked to this, a key AU criticism against the UNSC referral in Darfur was that it confirmed an ‘African bias’; why have Asian States, like Myanmar, not received the same level of scrutiny inside the UNSC and the ICC?Footnote 173 The universal composition of the UNGA and absence of a veto for any State should in the long term ensure a broader investigatory reach into international crimes so as to alleviate the accountability blind-spots created by UNSC politics. This supposition has some basis in practice, as noted above, the recent DPKK, Israel and Syria inquiries asserting the need for perpetrators in these States to be held to account, recommendations that were made despite the shielding from scrutiny of these situations by different UNSC permanent members. Similarly, inroads into addressing crimes in Myanmar have occurred in the UNGA, unlike the UNSC.Footnote 174 Admittedly, it is still necessary for there to be political momentum for the initiation of an inquiry and there will remain double standards in country selection. This is inevitable in a political body, but the functional turn in the UNGA and HRC towards the creation of commissions of inquiry will at least prompt greater reflection on assuring consistency in approach, with the possibility of developing a set of norms to trigger investigations by the UN plenary bodies.Footnote 175
V. CONCLUSIONS
The UNGA (and its subsidiary, the HRC) provides an important forum for enhanced State participation in international justice, in the context of increasing dissatisfaction with the exercise of UNSC powers in relation to the ICC. The UNGA could engage more actively with the ICC through a range of means: from simply exerting greater pressure to secure a UNSC referral through to the fundamental legal reform of the UNSC's referral powers in the Rome Statute. This article has revealed movement towards using the UNGA and HRC to build State consensus on the necessity for action at the ICC. However, there is a need to be circumspect about the future direction of UN plenary action to avoid the criticisms directed at the UNSC pertaining to political bias and selective justice. Equally, there is also a need to see the UNGA's role in the context of other international action, including by the ASP. In some instances, such as non-cooperation, the ASP would be the appropriate organ to act, although this role is not yet fully realized. In other instances, the UNGA has the potential to assume an important role concomitant with its status as the global plenary organ; a role that presents a resurgent UNGA with many opportunities to act as a catalyst for action at the ICC and to unite against impunity.
