Co-authored by C. Danae Paterson and Elise Meyer
Today, the UN High Commissioner for Human Rights, Prince Zeid Ra’ad al Hussein, called out the Syrian Regime and its Russian and Iranian allies for their assault on Aleppo. He described the atrocities committed there as “war crimes.” And added, “if knowingly committed as part of a widespread or systematic attack directed against civilians, they constitute crimes against humanity.”
Yesterday, United Nations Secretary-General Ban Ki-moon called on the General Assembly to hold an emergency special session regarding Syria. This call to action comes after the United Nations Security Council – in the face of five Russian vetoes – has failed to take meaningful action to protect the people of Syria from atrocity crimes. Should an emergency session take place, the question for the General Assembly will be what action should it recommend and authorize.
The Syrian Opposition as well as the international community have been making concerted efforts to secure an International Criminal Court referral. Both the UK and France have called for a referral to the Criminal Court for the Syrian Regime and Russia’s recent actions in Aleppo. Secretary of State John Kerry commented that the situation in Aleppo “beg[s] for an appropriate investigation of war crimes.”
This is not the first time a referral to the Criminal Court has been suggested for the situation in Syria. As far back as January 2013, Switzerland presented a letter to the Security Council on behalf of 58 countries, calling for the Council to refer the situation in Syria to the Criminal Court. In March 2013, 64 countries supported a cross-regional statement calling for a Criminal Court referral during a UN Human Rights Council dialogue with the UN Commission of Inquiry on Syria. On multiple occasions, the UN High Commissioner for Human Rights has recommended a Security Council referral of the Syria situation to the Criminal Court. In fact, the Security Council itself even considered a resolution that would have constituted a Criminal Court referral in May 2014. However, the resolution was vetoed by China and Russia.
Until now, a Criminal Court referral has not been possible. Neither Syria nor Russia is currently a party to the Rome Statute, which means the Court has no voluntary jurisdiction. While a Chapter VII UN Security Council referral of the situation could provide jurisdiction to the Criminal Court – as was the case with the Darfur crisis in 2005 and the Libyan conflict in 2011 – it would almost certainly be vetoed by Russia. Although a post-Assad Syria could ratify the Rome Statute and certify for retroactive jurisdiction, it is unclear when, if ever, that would occur.
It may be possible for the General Assembly, through a Uniting for Peace Resolution, to either refer Syria to the Criminal Court or to authorize the creation of an ad-hoc tribunal.
A Uniting for Peace Resolution is a mechanism that the UN General Assembly granted itself in 1950. The Uniting for Peace Resolution may be utilized when the Security Council, because of lack of unanimity of the permanent members, fails to exercise its primary responsibility for the maintenance of international peace and security. Through a Uniting for Peace Resolution, the General Assembly may recommend such action as appropriate to restore peace and security, including, it appears, even the use of force.
A Uniting for Peace Resolution is not without its challenges. First, a two-thirds majority of the General Assembly is required to pass such a resolution. This threshold is difficult to reach. Second, these resolutions present recommendations and authorizations, not mandates. The General Assembly does not have any coercive powers to enforce its recommendation.
There is ample precedent for using Uniting for Peace Resolutions in conflict situations. In 1956, a Uniting for Peace Resolution established a peacekeeping operation in response to the Suez Crisis. The peacekeepers were tasked with overseeing the withdrawal of French, British, and Israeli forces and served as a buffer between Israeli and Egyptian forces. In 1960, a Uniting for Peace Resolution created another peacekeeping force to ensure the withdrawal of Belgian forces from the Congo and to assist the Government in maintaining law and order. Subsequently, with the consent of the government, the purpose of the peacekeeping force was amended to include maintaining territorial and political integrity of the Congo, preventing civil war, and securing the removal of all non-UN foreign military personnel. Uniting for Peace Resolutions have also addressed the conflicts in Afghanistan, Lebanon, and Israel/Palestinian.
In Syria, a Uniting for Peace Resolution could usefully create a mechanism to hold the Syrian Regime accountable for atrocity crimes. One such way is to accomplish what the Security Council failed to do in May of 2014 and refer the case of Syria to the International Criminal Court. While it is legally uncertain that a Uniting for Peace Resolution could effectively refer the case of Syria to the Criminal Court, this untested strategy creates the possibility, although not the probability, that the Court would accept. If nothing else, the resolution would send a strong and symbolic message, further isolating Russia on the diplomatic stage and creating pressure for the creation of an ad-hoc accountability mechanism.
Alternatively, a Uniting for Peace Resolution could be used to authorize the creation of an ad-hoc tribunal to identify and prosecute those most responsible for the atrocities occurring in Syria – similar to the tribunals in Cambodia, Bosnia, Sierra Leone, and Rwanda. The General Assembly’s ability to authorize the creation of specialized tribunals stems from Article 22 of the UN Charter, which enables the General Assembly to create any organ it deems necessary to perform its functions. This power was explicitly recognized by the International Court of Justice in Effects of Awards of Compensation Made By the United Nations Administrative Tribunal. One such function, as stated by the International Court of Justice in Certain Expenses, is to maintain peace and stability along with the Security Council. A key aspect of this function is to ensure accountability for atrocity crimes.
The United Nations has a duty to maintain international peace and security and to bring about peaceful settlement of international disputes. The Security Council has failed to uphold this duty in Syria. It is now up to the General Assembly to fulfill its responsibility to the international community and to the people of Syria. One avenue to fulfilling this responsibility is through a Uniting for Peace Resolution referring the case of Syria to the Criminal Court or authorizing the creation of an ad-hoc tribunal to hold those committing atrocity crimes responsible.
The Uniting for Peace Resolution was designed for instances where the Security Council is truly in deadlock: an extreme measure for extreme circumstances. We are in exactly such extreme circumstances at this very moment. While such a measure easily constitutes a “hail Mary,” it should not be summarily disregarded. At the very least, a resolution would build international pressure on the Syrian Regime, Russia, and Iran to stop committing atrocity crimes against the Syrian people. And if successful, it would be a dramatic step forward for holding those responsible for such atrocities accountable.
Dr. Paul Williams holds the Rebecca I. Grazier Professorship in Law and International Relations at American University and is the co-founder of the Public International Law & Policy Group (PILPG). He is a leading world expert in peace negotiations, post-conflict constitution drafting, and war crimes prosecution. In the course of his career he has assisted in over two dozen peace negotiations and post conflict constitutions.
Danae Paterson is a graduate of Harvard Law School, and holds an MSc in Comparative Politics and Nationalism from the London School of Economics. As a public international lawyer, she specializes in peace negotiations, international humanitarian law, and human rights. She is currently a Law Fellow on PILPG’s Syria Negotiations Support team and works to advise the Syrian opposition and civil society in the peace process.
Elise Meyer is a Law Fellow with the Public International Law & Policy Group where she focuses on transitional justice, national security, and terrorism issues in East Africa. She is a graduate of the University of Chicago Law School.