TY - JOUR
AU - Barber,, Rebecca
AB - Abstract In 2018, the Independent International Fact-Finding Mission on Myanmar found that there were reasonable grounds to believe the Myanmar military had perpetrated war crimes, crimes against humanity and possibly genocide against the Rohingya people. It recommended that the Security Council refer the situation to the International Criminal Court, but that recommendation is unlikely to be acted upon. This article considers whether, if the Security Council fails to act, the General Assembly may establish an ad hoc international criminal tribunal. It examines first the competency of the General Assembly to consider and make recommendations on matters of international peace and security, as explicitly articulated in the United Nations (UN) Charter and as implied by the purposes and principles of the UN. It then analyses the relevance and applicability of the General Assembly’s Uniting for Peace Resolution. It argues that the General Assembly has previously interpreted its powers to include the establishment of bodies it deems necessary for the maintenance of peace and security, and that in the case of Myanmar there is no reason it could not take the further step of establishing an ad hoc international criminal tribunal — albeit one without coercive powers. 1. Introduction The 2018 report of the Independent International Fact-Finding Mission (IIFFM) on Myanmar revealed the crimes perpetrated by the Myanmar military — the Tatmadaw — against the Rohingya people. It described in particular the so-called ‘clearance operations’ in Rakhine state in late 2017, which killed more than 10,000 people, razed hundreds of villages to the ground and forced over 700,000 people from their homes.1 The IIFFM said there were reasonable grounds to conclude that the Tatmadaw had perpetrated crimes against humanity, war crimes and possibly genocide, and recommended that the Security Council refer the situation to the International Criminal Court (ICC) or establish an ad hoc criminal tribunal.2 Due to the politics of the Security Council, that recommendation is unlikely to be acted upon. The Human Rights Council has established a mechanism to collect and preserve evidence, and the ICC’s Pre-Trial Chamber has ruled that the Court may exercise jurisdiction over the crime of deportation and possibly persecution (based on an element of those crimes taking place in Bangladesh),3 but there is no mechanism by which the alleged perpetrators of other crimes can be held to account. States have a legal obligation to cooperate with each other to facilitate the prosecution of perpetrators of war crimes.4 The establishment of mechanisms for the collection and preservation of evidence, in the absence of any actual route from investigation to prosecution, does not facilitate prosecution. The message being sent to would-be perpetrators of international crimes is that the prospect of being brought before an international criminal court or tribunal, while theoretically possible, need not be a real deterrent. The current state of Security Council paralysis in relation to major humanitarian crises has prompted international lawyers to engage in what has been referred to as a forum-shopping exercise — efforts to exploit the capacities of other institutions to circumvent the Council’s stranglehold on matters of international peace and security. In this context, significant attention has been paid to the General Assembly’s secondary responsibility for international peace and security, and its competence to make recommendations on such matters up to and (arguably) including the use of force.5 But less attention has been paid to the Assembly’s competence in the field of international criminal justice. Michael Ramsden and Tomas Hamilton have examined the role of the Assembly in catalysing action at the ICC (for example by influencing the Council),6 and Ramsden in 2016 investigated the possibility of the Assembly establishing an ad hoc criminal tribunal7 — but in light of the flagrant and ongoing violations of international human rights and humanitarian law in conflicts around the world, the seeming decline in respect for international law and the inability of international institutions to hold perpetrators to account, further examination of these issues is required. This is particularly so in light of the Assembly’s recent establishment of the International Impartial and Independent Mechanism (IIIM) for Syria8 — a development that potentially paves the way for a more prominent role for the Assembly in pursuing accountability for violations of international human rights and humanitarian law. This article reviews the scope of the General Assembly’s powers in matters of international peace and security, and considers in particular whether those powers could be utilized to establish an ad hoc international criminal tribunal to hold to account alleged perpetrators of serious violations of international human rights and humanitarian law in Myanmar. Part 2 provides an overview of the situation in Myanmar and the findings of the IIFFM, and Part 3 considers the competency of the General Assembly to consider and make recommendations on matters of international peace and security. The analysis first explores the Assembly’s powers as explicitly described in the United Nations (UN) Charter, then considers whether there are additional powers that while not explicitly stated can be implied by the terms of the Charter, and then reflects on the relevance and criticality of the Assembly’s Uniting for Peace resolution. Part 4 then examines the competency of the General Assembly to not only make recommendations in relation to international peace and security, but to establish an ad hoc international criminal tribunal to pursue accountability for the crimes against the Rohingya. This article does not purport to canvass all the options available to the General Assembly to promote accountability in Myanmar. Acting on its secondary responsibility for international peace and security, other options available to the Assembly include calling on states to: suspend military cooperation, military exports and/or diplomatic relations with Myanmar; impose sanctions against alleged perpetrators of genocide, war crimes and crimes against humanity; and exercise their own criminal jurisdiction over alleged perpetrators within their territory. The Assembly has taken all of these measures in previous crises,9 and such measures could feasibly assist in pressuring the Government of Myanmar to prosecute perpetrators, accept the jurisdiction of the ICC or otherwise to cooperate with international accountability efforts. But these options are inherently limited. Diplomatic measures such as sanctions and arms embargoes are important influencing tools but cannot in themselves bring perpetrators to justice; and a recommendation that third states exercise their own jurisdiction is only as effective as their capacity to do so. A 2013 study found that just 25 percent of those states surveyed had adopted a provision allowing the exercise of jurisdiction over a non-national suspected of having committed crimes against humanity against non-nationals in another country, and none of them were in Southeast Asia.10 Add to this the commitment by members of the Association of Southeast Asian Nations (ASEAN) to the principle of non-interference in the domestic affairs of other states,11 and it becomes apparent that for crimes such as those seen in Myanmar, there is unlikely to be a satisfactory route to accountability that does not involve an international criminal tribunal. 2. The Crimes against the Rohingya in Myanmar The clearance operations in Rakhine state in 2017 were preceded by years of widespread and systematic human rights violations in Myanmar, linked to state and military policy.12 Myanmar has been a country of concern to the UN for 30 years, with resolutions condemning its human rights situation since 1991.13 The Human Rights Council established the IIFFM in March 2017 to ‘establish the facts and circumstances of the alleged recent human rights violations by military and security forces, and abuses, in Myanmar … with a view to ensuring full accountability for perpetrators and justice for victims’.14 The General Assembly’s Third Committee passed a resolution on Myanmar in October 2017. It called for urgent steps to ensure investigations into human rights violations and abuses, and called upon the Myanmar authorities to hold perpetrators to account.15 It did not say anything about the Security Council, nor about the role of the international community in pursuing accountability if the Government of Myanmar proved unable or unwilling to do so. In September 2018 the Human Rights Council established an independent mechanism to collect, consolidate, preserve and analyse evidence of international crimes and violations of international law committed in Myanmar since 2011, and to prepare files for criminal proceedings.16 It reiterated the importance of accountability for perpetrators, and recalled the ‘authority of the Security Council to refer the situation in Myanmar’ to the ICC.17 It also encouraged the General Assembly to ‘consider taking further action to address the serious human rights violations committed in Myanmar’.18 The IIFFM released its report in September 2018.19 In its investigations, the IIFFM considered allegations of serious human rights violations and abuses in Kachin, Shan and Rakhine states since 2011. Its investigations included a particular focus on the Tatmadaw’s 2017 clearance operations — allegedly a response to attacks by the Arakan Rohingya Salvation Army (ARSA) on a military base and security force outposts. It described the operations in the following terms: Ostensibly to eliminate the ‘terrorist threat’ posed by ARSA, in the days and weeks that followed it encompassed hundreds of villages … [and] targeted and terrorized the entire Rohingya population: the authorities called them ‘clearance operations’. They continued for more than two months [during which] … more than 40 per cent of all villages in northern Rakhine State were partially or totally destroyed … [and] over 725, 000 Rohingya … fled to Bangladesh.20 The IIFFM described soldiers firing indiscriminately into houses and fields, people locked inside their houses and set on fire, villagers shot as they tried to flee, mass rapes, and children thrown into rivers and onto fires. It said that ‘the nature, scale and organization of the operations’ suggested ‘preplanning and design by the Tatmadaw leadership’.21 It described the gross human rights violations and abuses as ‘shocking for their horrifying nature and ubiquity … [and for] the level of denial, normalcy and impunity that is attached to them’, and said that many of them amounted to the gravest crimes under international law.22 The IIFFM acknowledged the existence of national commissions and boards of inquiry, but said that an ‘impartial, independent, effective and thorough human rights investigation’ in Myanmar was ‘not possible’.23 It recommended that the Security Council refer the situation to the ICC or create an ad hoc international criminal tribunal; and that in the meantime, the General Assembly or Human Rights Council establish a mechanism to collect, preserve and analyse evidence and to prepare files for criminal proceedings.24 The Security Council has been briefed several times on Myanmar, including by the Council’s own mission to Myanmar and Bangladesh, the UN Secretary-General, the Secretary-General’s Special Envoy and by the chair of the IIFFM, Marzuki Darusman.25 In October 2018, Darusman told the Council that impunity was ‘deeply entrenched in Myanmar’s political and legal system, effectively placing the Tatmadaw above the law’ and that ‘accountability must come from the international community’.26 He urged the Council to refer the situation to the ICC or to another international ad hoc tribunal.27 The Security Council has been unable to agree on any action on Myanmar other than a presidential statement in late 2017 and a press statement in May 2018.28 Both statements were silent regarding international accountability mechanisms. In November 2018 the United Kingdom initiated negotiations on a draft Council resolution that would have required Myanmar to report on progress on investigations of human rights allegations, and warned that the Council could consider further steps if progress was insufficient. China declared that it would veto the resolution, so it was never put to a vote.29 3. The Competency of the General Assembly in Matters of International Peace and Security Article 24 of the UN Charter confers primary responsibility for international peace and security on the Security Council.30 Since the Advisory Opinion of the International Court of Justice (ICJ) in Certain Expenses, it has been well established that this responsibility is ‘not exclusive’, and that the General Assembly has a secondary responsibility in the same domain and the power to consider and make recommendations on matters of international peace and security.31 This section considers the scope of those powers. Part A considers the competency of the General Assembly pursuant to the UN Charter — firstly as articulated in the Charter, and secondly by reference to the implied powers doctrine. Part B then considers the powers of the General Assembly as articulated in Resolution 377A(V) (Uniting for Peace), and addresses the ongoing relevance and applicability of that resolution. A. The Competency of the General Assembly Pursuant to the UN Charter 1. The General Assembly’s Explicit Powers The General Assembly’s powers in relation to international peace and security are described in Articles 10, 11 and 14 of the Charter. Article 10 empowers the Assembly to ‘discuss any questions or any matters within the scope’ of the Charter, and ‘except as provided in Article 12’, to ‘make recommendations … on any such questions or matters’.32 Article 11(2) provides that the Assembly may ‘discuss any questions relating to the maintenance of international peace and security’, and — again except as provided by Article 12 — to ‘make recommendations with regard to any such questions’.33 Article 14 authorizes the Assembly to recommend measures for the peaceful adjustment of any situation which it ‘deems likely to impair the general welfare or friendly relations among nations’.34 The General Assembly’s competence to make recommendations on matters of international peace and security is subject to two explicit exceptions. The first is the latter part of Article 11(2), which provides that while the Assembly may discuss any question relating to the maintenance of international peace and security, any question ‘on which action is necessary shall be referred to the Security Council’.35 The meaning of the term ‘action’ as used here has been much discussed, but it is now fairly well established as meaning binding decisions that member states are obliged to carry out.36 This was affirmed by the ICJ in Certain Expenses. One of the questions for the Court in that case was whether the Assembly is barred by Article 11(2) of the Charter from providing for the financing of measures designed to maintain peace and security. The Court held that it was not so barred, because Article 11(2) had ‘no application where the necessary action is not enforcement action’.37 It follows that the Assembly is also not barred by Article 11(2) from making non-binding recommendations on any other matters relating to international peace and security — indeed, Nigel White takes the view that the Assembly’s power to make non-binding recommendations ‘must … cover the same area as the more concrete recommendatory powers of the Security Council under chapters VI and VII’.38 The second explicit restriction on the General Assembly’s competency in relation to international peace and security is Article 12(1), which provides that: [W]hile the Security Council is exercising in respect of any dispute or situation the functions assigned to it … the General Assembly shall not make any recommendation with regard to that dispute or situation unless the Security Council so requests.39 This provision was initially interpreted to mean that the General Assembly was barred from considering any matter on the agenda of the Security Council. Accordingly, the practice of the Council was to remove an item from its agenda if the Assembly wished to consider it.40 As affirmed by the ICJ in the Wall Advisory Opinion, however, the interpretation of Article 12 has ‘evolved’ over time, and ‘there has been an increasing tendency … for the General Assembly and the Security Council to deal in parallel with the same matter concerning international peace and security’.41 The Court observed in that case that the Security Council tends to ‘focus on the aspects of such matters related to international peace and security’, while the Assembly ‘has taken a broader view, considering also their humanitarian, social and economic aspects’.42 The years following the Wall Advisory Opinion have seen a continuation of the practice by which matters are considered concurrently by the Security Council and the General Assembly — examples include South Africa, Portugal, Southern Rhodesia, the Middle East, Afghanistan, Namibia, the Occupied Palestinian Territories, Kosovo and Syria, among others.43 This practice was referenced in 2016 by General Assembly President Peter Thomson, in response to an argument put forward by Syria, Russia and others that the Assembly’s establishment of the IIIM for Syria breached Article 12 of the UN Charter. Thomson referred to ‘the accepted practice of the General Assembly to consider, in parallel with the Security Council, the same matter concerning the maintenance of international peace and security’ and concluded that the establishment of the IIIM was intra vires.44 Kay Hailbronner and Eckart Klein, in their commentary on Article 12, go so far as to suggest that Article 12(1) permits action by the Assembly ‘so long as it avoids directly contradicting decisions of the Security Council’.45 In sum, Articles 10, 11, 12 and 14 of the Charter provide a positive legal basis for the General Assembly to consider and make recommendations on matters of international peace and security, provided that it does not contradict a position taken by the Security Council and does not breach Article 11(2) by purporting to ‘impose an explicit obligation of compliance’.46 2. The General Assembly’s Implied Powers The above interpretation of the General Assembly’s explicit authority on matters of international peace and security is strengthened by the doctrine of implied powers — that is, the assumption that an organization has the powers that are essential to the performance of its duties.47 The first-listed purpose of the UN in the Charter is to ‘maintain international peace and security’, and to that end, among other things, to ‘take effective collective measures for the prevention and removal of’ threats to the peace, breaches of the peace and acts of aggression.48 While the maintenance of international peace and security is primarily the responsibility of the Security Council, it is also — as noted by Andrew Carswell — a purpose of the UN ‘writ large’, and thus one of the duties of the General Assembly.49 The application of the implied powers doctrine would suggest therefore that the Assembly may be assumed to have the powers necessary for the maintenance of international peace and security. The ICJ has had a number of opportunities to consider the General Assembly’s implied powers. In the 1949 Reparation for Injuries Advisory Opinion, the Court took the view that ‘under international law, the [UN] must be deemed to have those powers which, though not expressly provided in the Charter, are conferred upon it by necessary implication, as being essential to the performance of its duties’.50 Some years later in Effects of Awards, the Court was called upon to consider whether the Assembly could create an administrative tribunal competent to render binding judgements on the UN. The Court said that it could, because the power to establish such a tribunal ‘was essential to ensure the efficient working of the Secretariat’.51 Subsequently in Certain Expenses, the Court considered whether expenses related to peacekeeping operations were ‘expenses of the Organisation’, and thus within the power of the Assembly to authorize them. Again the Court held in the affirmative, noting that ‘when the Organisation takes action which warrants the assertion that it was appropriate for the fulfilment of one of the stated purposes of the UN, the presumption is that such action is not ultra vires the organisation’.52 Finally in the 1996 Nuclear Weapons Advisory Opinion, the ICJ restated its definition of implied powers in Reparation for Injuries and confirmed that ‘it is generally accepted that international organisations can exercise such powers’.53 It should be clear from the earlier discussion regarding the UN Charter that it is not actually necessary to rely on implied powers to find a positive legal basis for the competency of the General Assembly to make recommendations on matters of international peace and security. But the doctrine of implied powers is nevertheless important because it creates a presumption that if a particular course of action on the part of the Assembly is essential for the performance of its duties — one of those being the maintenance of international peace and security — then the Assembly is competent to pursue that course of action. This presumption can assist in clarifying any ambiguities arising from the text of the Charter. 3. The Non-binding Nature of General Assembly Resolutions There is one important qualification to be made about the competence of the General Assembly to make recommendations on international peace and security: its recommendations are non-binding. This is clear from the text of the UN Charter: the Assembly may discuss questions relating to the maintenance of international peace; it may consider the general principles of cooperation; and it can make recommendations; but nowhere is there any mention of mandatory, coercive powers. As noted by Ramsden, Articles 25 and 94 of the Charter explicitly provide that members are bound by the decisions of, respectively, the Security Council and the ICJ, but there is ‘no equivalent provision for the Assembly’.54 That the Assembly cannot bind its members in matters of international peace and security is implicit in the statement of the ICJ in Certain Expenses that what is exclusive to the Security Council is its power to ‘impose an explicit obligation of compliance’.55 Most scholars agree, however, that General Assembly resolutions have substantial ‘moral force’.56 B. The Competency of the General Assembly Pursuant to ‘Uniting for Peace’ In 1950, to circumvent the Soviet veto on Security Council action on the Korean War, the General Assembly passed Resolution 377A(V), Uniting for Peace (U4P). The Resolution recognized that failure on the part of the Security Council to exercise its responsibility for international peace and security ‘does not relieve … the United Nations of its responsibility under the Charter to maintain international peace and security’, and resolved that: [I]f the Security Council, because of a lack of unanimity of the permanent members, fails to exercise its primary responsibility for the maintenance of international peace and security in any case where there appears to be a threat to the peace, breach of the peace, or act of aggression, the General 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.57 The Resolution stated that if not in session at the time, the General Assembly ‘may meet in emergency special session’, which shall be called ‘if requested by the Security Council on the vote of any seven members, or by a majority of the members of the United Nations’.58 In essence, Resolution 377A(V) provided a procedural framework by which the Assembly could consider and make recommendations on matters of international peace and security, provided three criteria were met: (i) a lack of unanimity amongst the Security Council’s five permanent members (P5); (ii) a failure by the Council to exercise its responsibility for international peace and security because of that lack of unanimity; and (iii) the existence of a threat to the peace, breach of the peace or act of aggression. The following discussion considers each of these threshold questions. It then considers the relevance and applicability of Resolution 377A(V), in light of the preceding discussion regarding the competence of the General Assembly — inherent in the UN Charter itself — to consider and make recommendations on matters of international peace and security. 1. The Thresholds for ‘Triggering’ Uniting for Peace The first threshold articulated by Resolution 377A(V) is that there must have been a lack of unanimity amongst the Security Council’s permanent members. On the face of it, this is fairly straight forward: if the Council is unable to agree on a resolution due to a difference of opinion amongst the P5, there is lack of unanimity. Different views have been expressed regarding whether the lack of unanimity must be evidenced by the use of the veto. Harry Reicher, for example, argues that ‘for the preconditions in Part A to be fulfilled, the deliberations in the Council must be brought to a vote’;59 while Jean Krasno and Mitushi Das suggest that lack of unanimity amongst the P5 can be established with or without use of the veto.60 In practice this question is not a critical one, because if a member of the Council wants to firmly establish a lack of unanimity and then use that as a basis for subsequent General Assembly action, it is not difficult — and would be prudent — for that member to put the matter to a vote. The more difficult question is the second criteria: the failure by the Security Council to exercise its responsibility for international peace and security. It is generally acknowledged that such failure cannot be construed on the basis of the veto alone — the veto being a legitimate procedure provided for by the UN Charter61 — and that to denote Council failure the veto must have been exercised illegitimately or unreasonably.62 A number of possible and complementary approaches are available to assist in determining whether the veto has been used illegitimately. The first is to rely on the requirement found in Article 24(2) of the Charter that members of the Security Council must ‘act in accordance with the Purposes and Principles of the United Nations’. If a veto prevents the Council from responding to a threat to or breach of the peace, it may be argued that the veto was not in accordance with the purposes and principles of the UN, thus denoting failure. A second approach is to rely on the requirement in Article 2(2) that members of the UN must act in ‘good faith’; and a third is to borrow from the so-called ‘abuse of rights’ doctrine, pursuant to which a decision that is arbitrary, taken for an extraneous purpose or in bad faith is rendered ultra vires.63 The ICJ has affirmed the relevance of this doctrine in international law64 and the UN Charter’s travaux préparatoires note that the P5 should not ‘use their “veto” power willfully to obstruct the operation of the Council’.65 With reference to the abuse of rights doctrine, Carswell suggests that ‘an employment of the veto in a blatantly mala fide manner can be characterized as legally abusive’ — thus constituting the failure of the Security Council.66 Of course all these matters are open to subjective interpretation, and states take different views on whether a course of action is likely to promote peace and security in a particular context. In exercising its right of veto for the twelfth time on Syria, for example, the Russian representative argued that ‘his country was in Syria at the invitation of the Government to combat international terrorism … while the US was covering up for terrorists’.67 In practice in situations where Security Council failure has been cited as a basis for General Assembly action — either by the Council in its referral resolution, or by the Assembly in its ensuing resolution — there has been no comment regarding the legitimacy of the veto(s) in question.68 That said, if guidance is required regarding the legitimacy of a veto (and thus, Council failure), the 2015 ‘Code of conduct regarding Security Council action against genocide, crimes against humanity and war crimes’, which contains a pledge to ‘not vote against a credible draft resolution … on timely and decisive action to end the commission of genocide, crimes against humanity or war crimes, or to prevent such crimes’, provides a possible framework.69 As at January 2019 the Code had 119 signatories including two of the P5.70 Moreover, the pledges it contains are in line with the principle of responsibility to protect, which holds that each state has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity, and that if a state fails in this responsibility, the Security Council will act. The responsibility to protect is not a binding principle of international law but has been endorsed by both the General Assembly and the Security Council.71 The third threshold articulated by Resolution 377A(V) is that there must ‘appear’ to be a threat to the peace, breach of the peace or act of aggression. In some cases the Security Council may already have classified a matter as such. Such a classification by the Council may be apparent from the terms of a previous resolution — as was the case when the General Assembly took action on Syria in 2016, for example72 — or alternatively it may be inferred if the Council acknowledges that it has failed to exercise its responsibility for peace and security and refers a matter to the Assembly.73 It is well established that the Security Council has almost unfettered discretion regarding what constitutes a threat to the peace, breach of the peace or act of aggression;74 thus if the Council so classifies a matter, the substantive definitional threshold indicated by Resolution 377A(V) is thereby satisfied. This threshold poses greater difficulty in the event that the General Assembly, acting on its own initiative, seeks to exercise its secondary responsibility for international peace and security — in the absence of a Security Council resolution on the matter. Such a scenario poses two questions: first, what constitutes a threat to or breach of the peace; and second, does the General Assembly have the power to classify a situation as such? With regards to the first question, the Security Council has classified a wide range of issues as threats to international peace and security. These include: policies of apartheid; weapons of mass destruction; terrorism; refugee flows; humanitarian crises; and violations of international human rights and humanitarian law.75 Moreover, upon establishing the International Criminal Tribunal for Rwanda in 1994, the Council characterized past violations of international human rights and humanitarian law as a threat to international peace and security; and when it established the Special Court for Sierra Leone in 2000 it recognized the role of ‘justice and accountability’ in contributing to the ‘maintenance of peace’.76 As regards the second question, Security Council practice makes it clear that humanitarian crises and situations in which there either are or have been grave violations of human rights or international humanitarian law may be construed as threats to international peace and security. This being so, it should not logically make any difference — at least to the definitional question — whether such situations are defined as such by the Council. Indeed, the whole premise of Resolution 377A(V), that the General Assembly may act where the Security Council fails to exercise its responsibility in any case where there appears to be a threat to the peace, breach of the peace or act of aggression, suggests that the Assembly may itself make that determination — and it is has done so in the past.77 Nonetheless, a determination by the Council that a situation represents a threat to the peace, breach of the peace or act of aggression, while not essential, makes the legal foundation for any action by the General Assembly more robust. This leads to the next question, which is the relevance and applicability of Resolution 377A(V) in light of the powers already conferred upon the Assembly by the UN Charter. 2. The Relevance and Applicability of Uniting for Peace Reliance on Resolution 377 A(V) is not necessary for the General Assembly to consider and make recommendations on matters of international peace and security. Resolution 377 A(V) is declaratory—it does not purport to confer on the General Assembly powers that it does not otherwise have.78 What it does do is articulate the Assembly’s interpretation of its powers and provide a procedural framework for the exercise of those powers. As described by Reicher, ‘the Uniting for Peace resolution was a constitutional landmark … not in the sense of creating new powers, but in the sense of revealing a latent potential in the Charter itself, and setting it on a firm foundation’.79 Similarly, Krasno and Das note that ‘the drafters of the resolution … knew that legitimate authority must be based on a clear set of rules’ and that ‘even if the authority of the Assembly existed in the Charter, Uniting for Peace laid out a set of rules to temporarily move authority out of the Council’.80 Not only did Resolution 377A(V) not bestow new powers on the General Assembly, it in fact defined them more narrowly. As described above, under the UN Charter, the Assembly’s responsibility for international peace and security is limited only by the terms of Articles 11(2) and 12(1).81 The Assembly’s competence to make recommendations on matters of international peace and security is not limited by the Charter to circumstances in which the Security Council has failed due to a lack of unanimity amongst the P5. In essence, what this means is that if the General Assembly wishes to make recommendations on matters of international peace and security, it may choose whether or not to invoke Resolution 377A(V), or language borrowed from that Resolution.82 If it does choose to do so it indicates a belief that the threshold criteria referred to in Resolution 377A(V) have been met, and it pre-emptively rebuts any suggestion that the Assembly may be encroaching upon the Security Council’s domain. If it chooses not to invoke Resolution 377A(V) (or U4P language), it suggests that it is acting on the basis of its inherent powers. In practice the General Assembly has in some cases relied upon U4P language to make recommendations on matters of international peace and security, and in some cases it has not. This has been so regardless of whether U4P language and U4P procedure — that is, the convening of an emergency special session — has been used to get the matter before the Assembly. The Assembly has thus far held 10 emergency special sessions, and ahead of all but one of them, the Security Council resolution or member state letter calling for the session either explicitly evoked Resolution 377A(V) or used U4P language (Security Council failure due to lack of unanimity).83 In the first five sessions, the Assembly in its ensuing resolution(s) made no reference to Council failure;84 in the second five, the Assembly grounded its resolution(s) in the failure of the Council due to lack of unanimity.85 In cases where the Assembly has acted on its own initiative on matters of international peace and security (no member state or Security Council referral), it has said nothing about Council failure. Thus for instance, the General Assembly made no reference to Council failure ahead of its resolutions on Israel/Jerusalem in 1967 (calling upon Israel to desist from taking any action to alter the status of Jerusalem), Grenada in 1983 (calling for the removal of foreign troops), Namibia in 1986 (calling upon states to, inter alia, adopt measures to ensure the isolation of South Africa), Panama in 1989 (calling for a withdrawal of US troops), or Syria in 2016 (establishing the IIIM) — among other occasions.86 In many of these cases, the General Assembly made no reference to international peace and security at all. Instead, it has referenced a wide range of concerns including racism, repression and state terror, the obligation of member states not to use force against the territorial integrity or political independence of another state, the need to restore conditions for the full exercise of human rights and fundamental freedoms, and the need for accountability for crimes involving violations of international law.87 The Assembly did not justify its intervention on the basis that there was a threat to international peace and security that the Security Council had failed to address; nor did it stipulate the legal basis upon which its recommendations were made. For a period, U4P served to support two propositions: first, that the General Assembly could consider a matter that was simultaneously on the agenda of the Security Council; and second and more controversially, that in certain circumstances the Assembly could recommend coercive measures. But as Larry Johnson has observed, ‘there is no longer any concern that the Assembly cannot consider any dispute or situation that is also before the Council’, and the Assembly has adopted a range of measures including ‘voluntary sanctions … with and without reference to Uniting for Peace’.88 Reliance on U4P may still be necessary in order to support a proposition that the Assembly may recommend the use of force — that proposition not being so robustly anchored in the UN Charter. But where coercive measures are not being contemplated, then as Johnson suggests, ‘rather than the seemingly constant reference to … Uniting for Peace, what is needed is more thought given to innovative and inventive non-use of force measures which the Assembly could employ in situations where the Council has been blocked by a veto’.89 All of that being said, there is one important function for U4P that should not be overlooked, and that is its use as an influencing tool for the Security Council. In circumstances where a majority of Council members feel that a particular course of action is required and are frustrated by blockages within the Council, a referral of the matter by the Council (via procedural vote of the majority) to the General Assembly explicitly invoking U4P may strengthen the political and legal case for subsequent action by the Assembly. A recent example where such a course could have been pursued, albeit in a different context, concerns the chemical weapons attack allegedly carried out by the Syrian Government in the town of Douma in April 2018.90 In the days following the attack the Security Council considered but failed to pass two draft resolutions, one of which would have established an investigative mechanism to identify those responsible for the attacks.91 The USA, UK and France subsequently launched a retaliatory attack on Syrian chemical weapons facilities. Despite the questionable legality of the retaliatory attacks, most Council members were supportive — evidenced by the fact that a Russian draft resolution condemning the attacks was defeated by eight votes against, and four abstentions.92 As an alternative to unilateral action, the USA, UK and France could feasibly have sought to have the situation referred to the General Assembly. What the Assembly could (or would) have done with such a referral is an open question and has been discussed elsewhere,93 but certainly it would have created an expectation for action of some sort. Indeed, there has not been a referral by the Council to the Assembly, either explicitly or implicitly invoking Resolution 377A(V), that has not resulted in a General Assembly resolution.94 4. General Assembly Action to Pursue Accountability for Crimes against the Rohingya This section considers what the General Assembly may feasibly do to pursue accountability for the perpetrators of crimes against the Rohingya in Myanmar. It first reviews whether there is anything preventing the General Assembly considering and making recommendations on Myanmar — either under the UN Charter or under Resolution 377A(V) — and it then considers whether the Assembly’s powers can be interpreted as encompassing the competency to establish an ad hoc criminal tribunal. A. Threshold Questions for General Assembly action in relation to Myanmar: UN Charter As discussed above, the two restrictions to General Assembly action articulated in the UN Charter are that any question on which action is necessary must be referred to the Security Council (Article 11(2)); and that it may not make any recommendation on a matter in relation to which the Council is currently exercising its functions unless the Council so requests (Article 12(1)). With regards to the first point, as shown above, it has been well established that ‘action’ means coercive action.95 Article 11(2) has not therefore prevented the General Assembly from recommending a range of non-coercive measures such as arms embargoes or voluntary sanctions (see Congo, South Africa, Portugal and Southern Rhodesia),96 and it should not in itself prevent the establishment of an international criminal tribunal. As for Article 12(1) of the UN Charter, the Security Council is seized of the situation in Myanmar and has been since 2006.97 As discussed above, it is well established that Article 12(1) does not prevent the General Assembly dealing with a matter of international peace and security while that matter is also on the agenda of the Council98 — a proposition recently affirmed by General Assembly President Thomson in his finding that the Assembly’s establishment of the IIIM for Syria was not ultra vires.99 It follows that the Assembly should not be barred by Article 12(1) from considering and making recommendations on Myanmar — and indeed it has already done so.100 B. Threshold for General Assembly Action Pursuant to Uniting for Peace While it is not necessary for the General Assembly to invoke Resolution 377 A(V) to act on Myanmar, it may choose to do so. As such it is worth considering whether the threshold criteria articulated in Resolution 377 A(V) (lack of unanimity amongst the P5, Security Council failure as a result of that lack of unanimity and the existence of a threat to peace and security) are satisfied. On the first question, lack of unanimity amongst the P5 is apparent from the statements made in Security Council debates. In the October 2018 debate the UK and France both called for Council action on accountability — the United Kingdom explicitly urging that the Council consider referring the situation to the ICC or an ad hoc criminal tribunal.101 China on the other hand described the IIFM’s recommendations as an ‘affront to [Myanmar’s] sovereignty’ and said that the international community should focus on encouraging Myanmar to hold perpetrators to account, while Russia described the IIFFM as ‘harmful and counter-productive’ and said that the role of the international community is to provide assistance to Myanmar and Bangladesh.102 Nevertheless, in the interests of definitively establishing lack of unanimity amongst the P5 and to put future General Assembly action on the firmest possible footing — bearing in mind the view of some commentators that use of the veto is necessary to establish lack of unanimity103 — it would be prudent for Council members supportive of action on Myanmar to put ICC referral to a vote. There is also, on the face of it, little question that as a result of lack of unanimity the Security Council has failed to exercise its responsibility to maintain international peace and security. Despite having been briefed on the situation in Myanmar, the Council has been unable to agree on any action other than a presidential statement and a press release,104 and it has failed to act on the recommendation of the IIFFM that it refer the situation to the ICC or establish an ad hoc tribunal. Several of the statements made by states during the October 2018 debate reflect a view that further inaction would constitute Council failure. The UK said that ensuring accountability was ‘a responsibility that the Security Council owes … to people everywhere around the world’; the Netherlands said ‘it is time that the Council shoulder its responsibility’; France said ‘the Security Council cannot turn a blind eye to [the facts] unless it relinquishes its own responsibilities’; Kuwait said that ‘cases such as those in Myanmar cannot be ignored by the Security Council’; and Sweden said ‘the Council must now take meaningful action on accountability’.105 All of that being said, it bears recalling that — as discussed above — much of the commentary on what constitutes failure has focused on whether a veto can be said to have been used illegitimately. There is good authority to support a proposition that if the right of veto has been exercised unreasonably, in bad faith or not in accordance with the purposes and principles of the UN, then the veto is illegitimate — thus denoting Council failure.106 In circumstances where no Council action has been proposed and put to a vote, and as such nothing has been vetoed, it may be more difficult to sustain an argument that the Council has failed. Finally, there is little doubt that the situation in Myanmar and the crimes against the Rohingya constitute a threat to international peace and security. In October 2018, nine Security Council members wrote to the Council President requesting a briefing from the chair of the IIFFM so that they could better understand the implications of the situation for ‘international peace and security’.107 In the debate that followed, Darusman described the situation as ‘precisely the kind of threat to peace and security that the [UN] … was created to address’,108 and three Council members also explicitly described the situation as a threat to international peace and security.109 This is consistent with the Council’s previous recognition, discussed above, that impunity for violations of international human rights and humanitarian law may constitute a threat to international peace and security.110 In sum, there is nothing preventing the General Assembly from recommending collective, non-coercive action on Myanmar, either by invoking Resolution 377A(V) or by acting pursuant to its inherent powers, although it would be on a more solid legal footing following a veto in the Security Council. The following section considers the more difficult question of whether the Assembly’s competency could be interpreted to encompass not only recommending collective, non-coercive measures, but establishing an ad hoc criminal tribunal. C. Can the General Assembly Establish an ad hoc Criminal Tribunal? 1. A Legal Basis for a Criminal Tribunal established by the General Assembly There are two possible legal bases for a competency on the part of the General Assembly to establish an ad hoc criminal tribunal: Article 22 of the UN Charter; and the Assembly’s broad subsidiary responsibility for international peace and security, described above. Article 22 empowers the General Assembly to ‘establish such subsidiary organs as it deems necessary for the performance of its functions’.111 The obvious limitation of this provision is its reference to the Assembly’s ‘functions’, which on a strict reading of the Charter, are primarily deliberative (discussing and making recommendations). Article 22 was considered by the ICJ in its 1954 Advisory Opinion in Effect of Awards, in which the question for the Court was whether the Assembly could establish an administrative tribunal (the UN Administrative Tribunal, UNAT) to hear and decide staff grievances. The Court found that UNAT was ‘essential to ensure the efficient working of the Secretariat’, and that the Assembly’s capacity to establish UNAT arose ‘by necessary intendment out of the Charter’.112 The Court acknowledged that the Assembly was not endowed by the Charter with judicial functions, but said that in establishing the tribunal the Assembly was not delegating its functions but exercising its power to regulate staff relations.113 The Court’s reliance on Article 22 as the legal basis for UNAT is somewhat ambiguous (as noted by Joanna Gomula, the Court ‘relied heavily on the concept of necessity, and resorted to the doctrine of implied powers’114); but in a subsequent advisory opinion the Court confirmed more explicitly that ‘the sole restriction placed by [Article 22] on the General Assembly’s power to establish subsidiary organs is that they should be “necessary for the performance of its functions”’,115 and that to restrictively interpret the Assembly’s powers to establish subsidiary organs ‘would run contrary to the clear intention of the Charter’.116 The reasoning of the ICJ in Effect of Awards was relied upon by the International Criminal Tribunal for the former Yugoslavia (ICTY) in Tadić, in considering the competency of the Security Council to establish the ICTY despite the absence of explicit authority in the Charter for it to do so. The Court said that: The establishment of the International Tribunal by the Security Council does not signify … that the Security Council has delegated to it some of its own functions or the exercise of its own powers. Nor does it mean, in reverse, that the Security Council was usurping for itself part of a judicial function which does not belong to it … The Security Council has resorted to the establishment of a judicial organ in the form of an international criminal tribunal as an instrument for the exercise of its own principal function of maintenance of peace and security.117 By way of analogy, the Court said that ‘the General Assembly did not need to have military and police functions and powers in order to be able to establish the United Nations Emergency Force in the Middle East … Nor did [it] have to be a judicial organ possessed of judicial functions and powers in order to be able to establish UNAT.’118 In other words, the fact that the Assembly is not itself a judicial body does not prevent it from establishing a judicial organ as an instrument for the exercise of its powers. This brings us back to the General Assembly’s inherent powers in relation to international peace and security, and in particular, the question whether in such matters these powers enable it to do more than merely make recommendations. Two principles of law can be relied upon to suggest that they do. The first is the implied powers doctrine. As shown above, the first-listed purpose of the UN writ large is the maintenance of international peace and security, and the implied powers doctrine suggests that if a particular course of action by the Assembly is essential for that purpose, there is a presumption that it is intra vires.119 The second is the well-established principle that treaties — in this case the UN Charter — should be read in light of subsequent practice.120 There is a robust body of practice of the Assembly doing more than just making recommendations on matters of international peace and security. The Assembly has established a peacekeeping force (Middle East),121 requested the Secretary General to dispatch a special assistance mission (Afghanistan),122 facilitated and approved the establishment of a hybrid criminal tribunal (Cambodia),123 established various fact-finding missions and commissions of inquiry (the Balkans, Congo, South Vietnam, Mozambique, Cambodia, Afghanistan)124 and most recently, established an investigatory mechanism to facilitate prosecution (Syria).125 Clearly the Assembly has not interpreted its powers to be merely recommendatory; rather, it has interpreted them to include the establishment of a wide range of bodies deemed necessary for the maintenance of peace and security, particularly when that function is not being performed by the Security Council. There is no reason that the General Assembly could not push the bar one step further and establish an ad hoc criminal tribunal. 2. The Non-Binding Nature of a Tribunal established by the General Assembly Since the General Assembly does not have power to bind its members,126 such a tribunal would not have mandatory powers. Thus, the Assembly may create an ad hoc tribunal and encourage states to cooperate, as it did with the IIIM in Syria, but it cannot compel cooperation. It could not, therefore, compel either Myanmar or other states to relinquish the alleged perpetrators for prosecution. But this limitation is not as significant as it may seem, for two reasons. First, states are required by customary international law to at least cooperate in the prosecution of war crimes; and they are arguably also required to extradite, prosecute or surrender to an international tribunal alleged perpetrators of war crimes, genocide and crimes against humanity.127 A number of General Assembly resolutions refer to the obligation to extradite or prosecute alleged perpetrators of war crimes and crimes against humanity as a generally recognized principle of law,128 and the ICC Statute affirms that prosecution of the most serious international crimes must be ensured through, inter alia, enhanced international cooperation.129 Jean-Marie Henckaerts and Louise Doswald-Beck in their 2005 study on customary international law concluded that ‘there appears to be … general acceptance of the principle that States must make every effort to cooperate with each other, to the extent possible, in order to facilitate the investigation and trial of suspected war criminals’; and that while this does not include an ‘absolute obligation’ to extradite, there is an ‘an expectation that states should make efforts in good faith to do so, to the extent possible’.130 Others have taken the view that there is sufficient state practice and opinio juris to support a customary international law-based obligation to extradite, prosecute or refer to an international tribunal alleged perpetrators of genocide, war crimes and crimes against humanity.131 Between 2004 and 2014 the International Law Commission (ILC) undertook a study on the obligation to extradite or prosecute. In its final report it declined to make a final determination regarding the customary international law status of the obligation; however it did recall that its 1996 Draft Code of Crimes against Peace and Security of Mankind included ‘an obligation to extradite or prosecute for, inter alia, genocide, crimes against humanity and war crimes’, and that while at the time the Draft Code was adopted it ‘represented progressive development of international law, … there may [since] have been further developments in international law that reflect state practice and opinio juris in this respect’.132 In 2017 the ILC adopted the Draft Articles on Crimes against Humanity. Article 10 provides that a state that finds itself with jurisdiction over an alleged offender ‘shall submit the case to its competent authorities for the purpose of prosecution, unless it extradites or surrenders the person to another state or competent international tribunal’.133 In its commentary to the Draft Articles, the ILC notes that: The first sentence of draft article 10 recognises that the state’s obligation can be satisfied by extraditing or surrendering the alleged offender not just to a state, but also to an international criminal tribunal that is competent to prosecute the offender. … While the term ‘extradition’ is often associated with the sending of a person to a state and the term ‘surrender’ is typically used for the sending of a person to a competent international tribunal, draft article 10 is written so as not to limit the use of the terms in that way.134 While the Draft Articles (and Article 10 in particular) are not in themselves an authoritative statement of customary international law, they are a significant addition to the opinio juris in support of an obligation to prosecute, extradite or surrender to alleged offenders of crimes against humanity. The Draft Articles were considered by the 72nd session of the Sixth Committee of the General Assembly in 2018. The report of that session does not note any concerns regarding draft Article 10, and observes that ‘several delegates expressed support’ for the article.135 The obligation to extradite or prosecute alleged perpetrators of international crimes also exists in treaty law, albeit with significant gaps.136 States parties to the Genocide Convention undertake to ‘prevent and to punish’ genocide; and while there is no explicit obligation to extradite, prosecute or refer to an international tribunal, the Convention can arguably be understood as requiring states who obtain custody of persons accused of genocide to extradite the alleged offenders.137 The Convention against Torture more explicitly obliges states who find themselves in custody of an alleged perpetrator of torture to either extradite that individual or submit them to competent authorities for prosecution.138 In sum, if alleged perpetrators of genocide, war crimes or crimes against humanity against the Rohingya in Myanmar travel abroad there is a good argument that the state in whose territory they find themselves will be obliged under customary international law to prosecute or extradite that individual or surrender them to an international criminal tribunal. At the very least, there will be a strong expectation that they will do so. The second factor limiting the significance of the fact that a tribunal established by the General Assembly could not compel cooperation is that in the realpolitik of international relations, states tend to do what they want anyway. Thus even though Security Council resolutions are legally binding, in a practical sense there is little even the Council can do to compel cooperation. This has been borne out by the experience of the ICC in seeking to secure the arrest of former Sudanese President Al Bashir — who travelled relatively freely around the world for years after being indicted for war crimes, genocide and crimes against humanity.139 In light of the above discussion about the persuasive value of General Assembly resolutions, it is possible that the moral authority of the Assembly may equal — in a practical sense — the mandatory powers of the increasingly discredited Security Council. As Reicher argues: [H]istory has shown that when the great (and sometimes not so great) powers believe that their vital interests (real or imagined) are involved, nothing carries any sort of force, moral or otherwise. On the other hand, if states do view Assembly recommendations seriously and take steps to implement them, there is no reason why they cannot be fully effective.140 5. Conclusion This article has sought to describe the full scope of the General Assembly’s powers in relation to international peace and security. It has argued that the Assembly has broad power to make recommendations on matters of international peace and security, even if those matters are simultaneously on the agenda of the Security Council; and that in doing so it may choose to invoke Resolution 377A(V) or U4P language — perhaps to make a political statement about the failure of the Council or to buttress the legal basis for action — or alternatively it may rely on its inherent powers described in the Charter. It has argued moreover that the Assembly’s powers in relation to international peace and security are not merely discursive, and that the Assembly has a long history of not just making recommendations on such matters but establishing a range of bodies it deems necessary for the maintenance of international peace and security. The establishment by the Assembly of an ad hoc criminal tribunal would build upon this practice. In focusing on the General Assembly this article does not intend to discount the role of other actors in pursuing accountability for the crimes against the Rohingya. ASEAN in particular has a potentially transformative role to play, though its traditional adherence to the principles of absolute sovereignty, non-interference and consensus-based decision-making141 may inhibit it from taking a stronger stance in seeking to have the alleged perpetrators of war crimes, genocide and crimes against humanity in Myanmar held to account. For ASEAN to assume such a role would be a break from tradition, but potentially more palatable to the Government of Myanmar than an international alternative, and it would send a powerful message to would-be perpetrators of atrocities in the region. The critical point is that at least one institution must step up, so as to avoid what the UN Special Rapporteur on the situation of human rights in Myanmar recently referred to as the ‘purgatory of international action’.142 The General Assembly’s secondary responsibility for international peace and security requires that if relevant national, regional or international actors are failing to take the necessary steps to maintain international peace and security — which includes holding perpetrators of atrocity crimes to account so as to deter the commission of such crimes in the future — then the Assembly must do so. The alternative scenario is that persistent international inaction in the face of mass atrocities will embolden future perpetrators, undermining prospects for peace in the long term. Footnotes 1 Report of the Independent International Fact-Finding Mission on Myanmar, UN Doc. A/HRC/39/64, 12 September 2018 (hereinafter ‘Summary Report of the IIFFM’), at 8–9. 2 Ibid., at 16–17, 19. 3 Decision on the ‘Prosecution’s Request for a Ruling on Jurisdiction under Article 19(3) of the Statute’, (ICC-RoC46(3)-01/18-37), Pre-Trial Chamber, 6 September 2018. 4 J.M. Henckaerts and L. Doswald-Beck, Customary International Humanitarian Law, Vol 1: Rules (Cambridge University Press, 2005), at 618. Rule 161 provides that: ‘States must make every effort to cooperate, to the extent possible, with each other in order to facilitate the investigation of war crimes and the prosecution of the suspects.’ 5 See e.g. R. Barber, ‘Uniting for Peace not Aggression: Responding to Chemical Weapons in Syria without Breaking the Law’, 24 Journal of Conflict and Security Law (2019) 71; A. Carswell, ‘Unblocking the UN Security Council: The Uniting for Peace Resolution’, 18 Journal of Conflict and Security Law (2013) 453; Y. Nahlawi, ‘Overcoming Russian and Chinese Vetoes on Syria through Uniting for Peace’, 24 Journal of Conflict and Security Law (2019) 111. 6 M. Ramsden and T. Hamilton, ‘Uniting against Impunity: The UN General Assembly as a Catalyst for Action at the ICC’, 66 International and Comparative Law Quarterly (2017) 893. 7 M. Ramsden, ‘Uniting for Peace in the Age of International Justice’, 42 Yale Journal of International Law (2016) 1. 8 The International, Independent and Impartial Mechanism to Assist in the Investigation and Prosecution of those Responsible for the Most Serious Crimes under International Law Committed in the Syrian Arab Republic since March 2011 was established by the General Assembly in 2016, following failure by the Security Council to pursue accountability for violations of international human rights and humanitarian law. See GA Res. A/71/L.48, 19 December 2016. 9 See e.g. GA Res. 39(1), 12 December 1946, calling on states to recall their ambassadors from Madrid; GA Res 500(V), 18 May 1951, calling on states to apply an arms embargo on China; GA Res. 1474 (ES-IV), 20 September 1960, calling on states not to supply arms to Congo; GA Res. 1761 (XVII), 6 November 1962, calling on states to break off diplomatic relations with South Africa and boycott South African goods; GA Res. 2107 (XX) on the Portuguese Territories, 21 December 1965, calling on states to break off diplomatic relations, boycott Portuguese goods and prevent the supply arms and military equipment; GA Res. A/ES-82, 15 September 1981, calling on states to cease ‘all dealings with South Africa in order totally to isolate it politically, economically, militarily and culturally’; GA Res. 46(202) on Rwanda, 23 December 1994, calling on states to take steps to ensure that ‘alleged perpetrators of serious breaches of international humanitarian law, crimes against humanity and genocide do not escape justice’. 10 A.J. Carrillo and A.K. Nelson, ‘Comparative Study and Analysis of National Legislation Relating to Crimes Against Humanity and Extraterritorial Jurisdiction Special Report’, 46 George Washington International Law Review (2014) 481. 11 ASEAN Charter. 12 Summary Report of the IIFFM, at 5. 13 Ibid. 14 UNHRC Res. 34/22, 24 March 2017. 15 Situation of Human Rights in Myanmar, UN Doc. A/C.3/72/L.47, 31 October 2017. 16 UNHRC Res. 39/2, 27 September 2018, at 5. 17 Ibid., at 2. 18 Ibid., at 6. 19 Report of the Detailed Findings of the Independent International Fact-Finding Mission on Myanmar, UN Doc. A/HRC/39/CRP.2, 17 September 2018 (hereinafter ‘Detailed Report of the IIFFM’). 20 Ibid., at 178. 21 Summary Report of the IIFFM, at 8. 22 Detailed Report of the IIFFM, at 419. 23 Summary Report of the IIFFM, at 18. 24 Detailed Report of the IIFFM, at 426. 25 UN Secretary-General Press Release, ‘Secretary-General’s Remarks at Open Debate of the Security Council [as delivered]’, 28 September 2017; Security Council Press Release, ‘In Briefing on Mission to Bangladesh, Myanmar, Members Describe Mass Rapes, Displacement of Rohingya’, UN Doc. S/13337, 14 May 2018; Security Council Press Release, ‘Myanmar’s Refugee Problem among World’s Worst Humanitarian, Human Rights Crises, Secretary-General Says in Briefing to Council’, UN Doc. SC/13469, 28 August 2018; Security Council Verbatim Record, UN Doc. S/PV.8381, 24 October 2018; Security Council Press Release, ‘Crisis in Rakhine State, Violence Could Derail Gains in Myanmar’s Peace Process, Special Envoy Warns Security Council, Calling for Unimpeded Humanitarian Access’, UN Doc. S/13727, 28 February 2019. 26 Security Council Verbatim Record, UN Doc. S/PV.8381, 24 October 2018, at 5. 27 Ibid., at 6. 28 Security Council Presidential Statement, UN Doc. S/PRST/2017/22, 6 November 2017; Security Council Press Release, ‘Security Council Press Statement on Security Council Visit to Bangladesh, Myanmar’, UN Doc. SC/13331, 9 May 2018. 29 Security Council Report, February 2019 Monthly Forecast: Myanmar, January 2019, available online at https://www.securitycouncilreport.org/monthly-forecast/2019-02/myanmar-2.php (visited 10 March 2019). 30 Art. 24(1) UN Charter. 31 Certain Expenses of the United Nations, Advisory Opinion of 20 July 1962, ICJ Reports (1962) 151 (hereinafter ‘Certain Expenses’), at 163. See also H. Reicher, ‘The Uniting for Peace Resolution on the Thirtieth Anniversary of its Passage’, 10 Columbia Journal of Transnational Law (1981) 1, at 27; H. Kelsen, ‘Recent Trends in the Law of the United Nations’, 18 Social Research (1951) 135, at 174–175; N.D. White, ‘The Relationship between the UN Security Council and the General Assembly in Matters of International Peace and Security’, in M. Weller (ed.), The Oxford Handbook of the Use of Force in International Law (Oxford University Press, 2018) 293, at 294; Ramsden, supra note 7, at 8. 32 Art. 10 UN Charter. 33 Art. 11(2) UN Charter. 34 Art. 14 UN Charter. 35 Art. 11(2) UN Charter. 36 J. Andrassy, ‘Uniting for Peace’, 50 American Journal of International Law (1956) 563, at 567; Kelsen, supra note 31, at 204–205; Carswell, supra note 5, at 462; K. Hailbronner and E. Klein, ‘Article 11’, in B. Simma (ed.), The Charter of the United Nations: A Commentary, Vol. 1 (2nd edn., Oxford University Press, 2002) 276, at 283. 37 Certain Expenses, at 164–165. 38 White, supra note 31, at 302, 305. See also Andrassy, supra note 36, at 567–568; K. Hailbronner and E. Klein ‘Article 10’, in Simma (ed.), supra note 36, 257, at 265; Hailbronner and Klein, supra note 36, at 283. 39 Art. 21(1) UN Charter. 40 L.D. Johnson, ‘“Uniting for Peace”: Does it Still Serve any Useful Purpose?’ 108 American Journal of International Law Unbound (2014) 106, at 109; Hailbronner and Klein, supra note 36, at 290. 41 Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion of 9 July 2004, ICJ Reports (2004) 136 (hereafter ‘Wall case’), at 149. 42 Ibid., at 150. 43 On South Africa, GA Res. 1761 (XVII), 6 November 1962, on the Portuguese Territories; GA Res. 2107 (XX), 21 December 1965, on Southern Rhodesia; GA Res. 2138 (XXI), 22 October 1966, on the Middle East; GA Res. 2253 (ES-V), 4 July 1967 and GA Res. 2254 (ES-V), 14 July 1967, on Afghanistan; GA Res. ES-6/2, 14 January 1980, on Namibia; GA Res. 41/35, 10 November 1986, on the Occupied Palestinian Territories; GA Res. ES-10/5, 17 March 1998, on Kosovo; GA Res. 53/164, 9 December 1998 and 54/183, 17 December 1999, on Syria; GA Res. 71/248, 21 December 2016. See also discussion in K. Hailbronner and E. Klein, ‘Article 12’, in Simma (ed.), supra note 36, 287, at 290; C. Wenaweser and J. Cockayne, ‘Justice for Syria?’ 15 Journal of International Criminal Justice (2017) 211, at 222–223. 44 Wenaweser and Cockayne, ibid., at 220. For the arguments put forward by Russia and others see: General Assembly Official Records, UN Doc. A/71/PV.66, 21 December 2016, at 21–22, 26; Note Verbale dated 8 February 2017 from the Permanent Mission of the Russian Federation to the United Nations addressed to the Secretary-General, UN Doc. A/71/793, 14 February 2017. 45 Hailbronner and Klein, supra note 43, at 293. 46 Certain Expenses, at 163. 47 For a discussion of the origins and scope of the implied powers doctrine see A. Gadkowski, ‘The Doctrine of Implied Powers of International Organizations in the Case Law of International Tribunals’, 6 Adam Mickiewicza University Law Review (2016) 45. 48 Art. 1 UN Charter. 49 Carswell, supra note 5, at 464. See also discussion in Barber, supra note 5, at 34. 50 Reparation for Injuries Suffered in the Service of the United Nations, Advisory Opinion of 11 April 1949, ICJ Reports (1949) 174 (hereinafter ‘Reparations’), at 182. 51 Effect of Awards of Compensation made by the UN Administrative Tribunal, Advisory Opinion of 13 July 1954, ICJ Reports (1954) 47 (hereinafter ‘Effect of Awards’), at 57. 52 Certain Expenses, at 168. 53 Legality of the Use by a State of Nuclear Weapons in Armed Conflict, Advisory Opinion of 8 July 1996, ICJ Reports (1966) 66 (hereinafter ‘Nuclear Weapons’), at 79. It should be noted that the ICJ’s interpretation of implied powers in Nuclear Weapons was more restrictive than that in Reparations, Effects of Awards and Certain Expenses. In this case, the ICJ held that international organizations are governed by the principle of speciality. However, in Nuclear Weapons the ICJ considered the implied powers of specialized agencies of the UN, rather than organs of the UN. As noted by White, supra note 31, at 295: ‘[W]hile a narrow approach to powers may be applicable to specialized agencies such as the [World Health Organization], it has not been applied to the UN itself. Thus, a contrast can be made between those liberal interpretations of the UN’s powers in matters of peace and security found in … the Reparations and Expenses cases with the narrow view of the powers of the specialized agencies found in’ Nuclear Weapons. 54 Ramsden, supra note 7, at 20. Art. 25 UN Charter provides that ‘the Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter’. Art. 94 UN Charter provides that ‘each Member of the United Nations undertakes to comply with the decision of the International Court of Justice in any case to which it is a party’. On the non-binding nature of General Assembly resolutions see also S. Talmon, ‘The Legalizing and Legitimizing Function of UN General Assembly Resolutions’, 108 American Journal of International Law Unbound (2014) 123, at 126; Ramsden and Hamilton, supra note 6, at 910; Report of the International Law Commission, Fifty-third Session, UN Doc. A/56/10 (2001), 10 August 2001, at 365; Andrassy, supra note 36, at 571; J. Dugard, ‘The Legal Effect of United Nations Resolutions on Apartheid’, 83 South African Law Journal (1966) 44, at 46–48. 55 Certain Expenses, at 163. 56 See e.g. F.B. Sloan, ‘The Binding Force of a Recommendation of the General Assembly of the United Nations’, 25 British Yearbook of International Law (1948) 1, at 16; J. Krasno and M. Das, ‘The Uniting for Peace Resolution and Other Ways of Circumventing the Authority of the Security Council’, in B. Cronin and I. Hurd (eds), The UN Security Council and the Politics of International Authority (Routledge, 2008), at 191; Dugard, supra note 54, at 46–48; Andrassy, supra note 36, at 571. 57 GA Res. 377A(V), 3 November 1950. 58 Ibid. 59 Reicher, supra note 31, at 16; see also Carswell, supra note 5, at 469. 60 Krasno and Das, supra note 56, at 188, 190. 61 Art. 27 UN Charter provides that decisions of the Security Council on all matters other than procedural matters ‘shall be made by an affirmative vote of nine members including the concurring votes of the permanent members’. See discussion in R. Higgins, Problems and Process: International Law and How We Use It (Clarendon Press, 1994), at 262; Carswell, supra note 5, at 469; Johnson, supra note 40, at 107. 62 Higgins, supra note 61, at 262. 63 See M. Byers, ‘Abuse of Rights: An Old Principle, A New Age’, 47 McGill Law Journal (2002) 389; M. Ramsden, ‘“Uniting for Peace” and Humanitarian Intervention: The Authorising Function of the UN General Assembly’, 25 Washington International Law Journal (2016) 267, at 300; B. Fassbender, UN Security Council Reform and the Right of Veto: A Constitutional Perspective (Kluwer Law International, 1998), at 175; Carswell, supra note 5, at 470. 64 Anglo-Norwegian Fisheries (United Kingdom v. Norway), Judgment of 18 January 1951, ICJ Reports (1951) 117, at 142; Separate Opinion of Justice Lauterpacht, Voting Procedure on Questions Relating to Reports and Petitions Concerning the Territory of South-West Africa, Advisory Opinion of 7 June 1955, ICJ Reports (1955) 67, at 120; Separate Opinions of Vice-President Weeramantry and Justice Parra-Aranguren, Case Concerning the Gabcikovo-Nagymaros Project, Judgment of 25 September 1997, ICJ Reports (1997) 7, at 92, referring to the abuse of right doctrine as a ‘well-established area of international law’, and ibid., at 231: ‘Slovakia shall not compensate Hungary … unless a manifest abuse of rights is present’; Dissenting Opinion of Justice Alvarez, Competence of the General Assembly for the Admission of a State to the United Nations, Advisory Opinion of 3 March 1950, ICJ Reports (1950) 5, at 15–20. 65 Statement by the Delegations of the Four Sponsoring Governments on the Voting Procedure in the Security Council, 7 June 1945, reproduced in B. Simma and S. Brunner, ‘Article 27’, in Simma (ed.), supra note 36, X, at 521–523. 66 Carswell, supra note 5, at 471. 67 UN Press Release, ‘Following Three Draft Texts on Chemical Weapons in Syria, Security Council Fails to Agree upon Independent Investigative Mechanism’, UN Doc. SC/13288, 10 April 2018. See also discussion in Johnson, supra note 40, at 107. 68 See, e.g. SC Res. 119, 31 October 1956; SC Res. 120, 4 November 1956; SC Res. 129, 7 August 1958; SC Res. 157, 17 September 1960; SC Res. 303, 6 December 1971; SC Res. 462, 9 January 1980; GA Res. ES-6/2, 14 January 1980; GA Res. ES-7/2, 29 July 1980; GA Res. ES-8/2, 14 September 1981; SC Res. 500, 28 January 1982; GA Res. ES-9/1, 5 February 1982; GA Res. ES-7/9, 24 September 1982; GA Res. ES-10/2, 25 April 1997. 69 Code of Conduct regarding Security Council Action against Genocide, Crimes against Humanity or War Crimes, Annex I to the letter dated 14 December 2015 from the Permanent Representative of Liechtenstein to the United Nations addressed to the Secretary-General, UN Doc. A/70-621-S/2015/978, 14 December 2015. 70 Global Centre for the Responsibility to Protect, ‘List of Signatories to the ACT Code of Conduct’, 22 March 2019, available online at http://www.globalr2p.org/resources/893 (visited 3 May 2019). 71 GA Res. 60/1, 16 September 2005; SC Res. 1674, 28 April 2006. 72 GA Res. 71/248, 19 December 2016; SC Res. 2258, 22 December 2015. Under Res. 2258, the Security Council determined that the humanitarian situation in Syria constituted a threat to peace and security in the region. 73 See, e.g. SC Res. 119, 31 October 1956, on the Suez; SC Res. 120, 4 November 1956, on Hungary; SC Res. 129, 7 August 1958, on Lebanon; SC Res. 157, 17 September 1960, on Congo; SC Res. 303, 6 December 1971, on India and Pakistan; SC Res. 462, 9 January 1980, on Afghanistan; SC Res. 500, 28 January 1982, on the Occupied Arab Territories. 74 White, supra note 31, at 297; H. Kelsen, Law of the United Nations (Stevens, 1951), at 727; G. Evans, The Responsibility to Protect: Ending Mass Atrocity Crimes Once and For All (Brookings Institution Press, 2009), at 134. 75 SC Res. 134, 1 April 1960, and SC Res. 181, 7 August 1963, on apartheid in South Africa; SC Res. 217, 20 November 1965, on apartheid in Southern Rhodesia; SC Res. 687, 3 April 1991, on weapons of mass destruction and terrorism in Iraq; SC Res. 688, 5 April 1991, on refugee flows from Iraq; SC Res. 841, 16 June 1993, on the humanitarian crisis in Haiti; SC Res. 912, 21 April 1994, on the humanitarian crisis in Rwanda; SC Res. 1556, 20 July 2004, on the humanitarian crisis and human rights violations in Darfur; SC Res. 808, 22 February 1993 and SC Res. 827, 25 May 1993, on violations of international humanitarian law in the former Yugoslavia; SC Res. 955, 8 November 1994, on genocide and other violations of international humanitarian law in Rwanda; SC Res. 1593, 31 March 2005, on violations of international humanitarian law and human rights law in Darfur; SC Res. 2258, 22 December 2015, on Syria, determining that the ‘deteriorating humanitarian situation’ constitutes a threat to peace and security; SC Res. 1986, 19 April 2000, and successive annual Security Council resolutions on the protection of civilians in armed conflict, noting that ‘violations of international humanitarian and human rights law in situations of armed conflict may constitute a threat to international peace and security’. See also discussion in H. Yamashita, ‘Reading “Threats to International Peace and Security” 1946–2005’, 18 Diplomacy & Statecraft (2007) 551, at 552. 76 SC Res. 955, 8 November 1994, on Rwanda; SC Res. 1315, 14 August 2000, on Sierra Leone. On the issue of unresolved human rights violations as a threat to the peace see also M. Kirby, ‘UN Commission of Inquiry on Human Rights Violations in the Democratic Republic of North Korea: Ten Lessons’, 15 Melbourne Journal of International Law (2014) 290. 77 GA Res. ES-7/2, 29 July 1980, on Palestine; GA Res. ES-8/2, 14 September 1981, on Namibia; GA Res. ES-10/2, 5 May 1997, on the Occupied Palestinian Territories. For discussion see Andrassy, supra note 36, at 578; Ramsden, supra note 7, at 17. 78 Krasno and Das, supra note 56, at 182, 191; Johnson, supra note 40, at 106; White, supra note 31, at 311; Reicher, supra note 31, at 48; Carswell, supra note 5, at 476. 79 Reicher, supra note 31, at 48. 80 Krasno and Das, supra note 56, at 191. See also Carswell, supra note 5, at 476; Barber, supra note 5; Nahlawi, supra note 5; White, supra note 31, at 311. 81 Art. 11(2) and Art. 12(1) UN Charter. 82 See discussion in Reicher, supra note 31, at 40, suggesting that ‘the Assembly may, if it chooses, sidestep the Uniting for Peace resolution and “reach” back to the Charter itself for the source of its power’. 83 SC Res. 119, 31 October 1956; SC Res. 120, 4 November 1956; SC Res. 129, 7 August 1958; SC Res. 157, 17 September 1960; SC Res. 462, 9 January 1980; Letter dated 1 July 1970 from the Permanent Representative of Senegal to the United Nations addressed to the Secretary General, UN Doc. A/ES-7/1 (Annex), 21 July 1980; Letter dated 20 April 1982 from the Permanent Representative of the Kuwait to the United Nations addressed to the Secretary-General, UN Doc. A/37/205-S/14990, 21 April 1982; Letter dated 12 August 1981 from the Permanent Representative of Zimbabwe to the United Nations addressed to the Secretary General, UN Doc. A/ES-8/1 (Annex), 2 September 1981; SC Res. 500, 28 January 1982; Letter dated 31 March 1997 from the Permanent Representative of Qatar to the United Nations addressed to the Secretary-General, UN Doc. A/ES-10/1 (Annex), 22 April 1997. 84 See GA Res. 997 (ES-I), 2 November 1956 through to GA Res. 1003 (ES-I), 10 November 1956; GA Res. 1004 (ES-II), 4 November 1956 through to GA Res. 1008 (ES-II), 10 November 1956; GA Res. 1237 (ES-III)-IV, 21 August 1958 through to GA Res. 1238 (ES-III), 21 August 1958; GA Res. 1474 (ES-IV), 20 September 1960; GA Res. 2252 (ES-V), 4 July 1967 through to GA Res. 2257 (ES-V), 18 September 1967. 85 GA Res. ES-6/2, 14 January 1980; GA Res. ES-7/2, 29 July 1980; GA Res. ES-7/9, 24 September 1982; GA Res. ES-8/2, 14 September 1981; GA Res. ES-9/1, 5 February 1982; GA Res. ES-10/2, 25 April 1997. 86 GA Res. 2253 (ES-V), 4 July 1967, on Israel/Jerusalem; GA Res. 38/7, 2 November 1983, on Grenada; GA Res. 41/35, 10 November 1985, on Namibia; GA Res. 44/240, 29 December 1989, on Panama; GA Res. 71/L.48, 19 December 2016, on Syria. 87 See GA Res. 44/240, 29 December 1989; GA Res. 41/35, 10 November 1985; GA Res. 38/7, 2 November 1983; GA Res. 71/L.48, 19 December 2016. 88 Johnson, supra note 40, at 115. 89 Ibid. 90 For details of the attack see Technical Secretariat of the Optional Protocol for the Prohibition of Chemical Weapons, Report of the Fact-Finding Mission Regarding the Incident of Alleged Use of Toxic Substances as a Weapon in Douma, Syrian Arab Republic, on 7 April 2018, UN Doc. S/1731/2019, 1 March 2019. 91 ‘Security Council fails to Adopt Three Resolutions on Chemical Weapons Use in Syria’, UN News, 10 April 2018. 92 Security Council Press Release, ‘Following Air Strikes Against Suspected Chemical Weapons Sites in Syria, Security Council Rejects Proposal to Condemn Aggression’, UN Doc. SC/13296, 14 April 2018. For a complete list of states reactions to the strikes see A.G. Dunkelberg et al., ‘Mapping States’ Reactions to the Syria Strikes of April 2018 — A Comprehensive Guide’, Just Security, 7 May 2018, available online at https://www.justsecurity.org/55835/mapping-states-reactions-syria-strikes-april-2018-a-comprehensive-guide/4 (visited 15 July 2018). 93 See discussion in Barber, supra note 5. 94 For a list of Emergency Special Sessions and corresponding General Assembly resolutions see Dag Hammarskjold Library, ‘Resolutions Adopted by the General Assembly — Emergency Special Sessions’, available online at https://research.un.org/en/docs/ga/quick/emergency (visited 3 May 2019). 95 See Certain Expenses, at 164–165; and references at supra note 36. 96 See GA Res. 1474 (ES-IV), 20 September 1960, on Congo (calling upon states to refrain from providing ‘arms and other materials of war and military personnel and other assistance for military purposes in the Congo’); GA Res. 1761 (XVII), 6 November 1962, on South Africa (requesting states to take a range of measures including breaking off diplomatic relations with South Africa, closing their ports to South African vessels and boycotting South African goods); GA Res. 2107 (XX), 21 December 1965, on the Territories under Portuguese administration (requesting states to break off diplomatic and consular relations with the Government of Portugal, close their ports to Portuguese vessels and boycott trade with Portugal, among other things); GA Res. 2151 (XXI), 17 November 1966, on Southern Rhodesia (calling upon the United Kingdom to prevent supplies from reaching Southern Rhodesia). 97 Security Council, Summary Statement by the Secretary-General of Matters of Which the Security Council is Seized and of the State Reached in their Consideration, UN Doc. S/2019/10, 2 January 2019. 98 Wall case, at 149. 99 Official Records of General Assembly Seventy-first Session 66th Plenary Meeting, UN Doc. A/71/PV.66, 21 December 2016; See discussion in Wenaweser and Cockayne, supra note 43, at 221. 100 General Assembly Third Committee, Situation of Human Rights in Myanmar, UN Doc. A/C.3/72/L.47, 31 October 2017. 101 Security Council Verbatim Record, UN Doc. S/PV.8381, 24 October 2018, at 7. 102 Security Council Verbatim Record, UN Doc. S/PV.8381, 24 October 2018, at 2–3, 22. 103 See references at supra note 59. 104 Security Council Presidential Statement, UN Doc. S/PRST/2017/22, 6 November 2017; Security Council Press Release, ‘Security Council Press Statement on Security Council Visit to Bangladesh, Myanmar’, UN Doc. SC/13321, 9 May 2018. 105 Security Council Verbatim Record, UN Doc. S/PV.8381, 24 October 2018. 106 See references at supra note 63–66. 107 Letter dated 16 October 2018 from the representatives of Cote d’Ivoire, France, Kuwait, the Netherlands, Peru, Poland, Sweden, the United Kingdom of Great Britain and Northern Ireland and the United States of America to the United Nations addressed to the President of the Security Council, UN Doc. S/2018/926, 16 October 2018. 108 Security Council Verbatim Record, UN Doc. S/PV.8381, 24 October 2018, at 6. 109 See comments in ibid., at 3, 9, 13, made by the representatives of the United Kingdom (the situation ‘clearly endangers international peace and security’), the United States (‘the forcible movement of more than 700,000 people across borders is undeniably a matter of international peace and security’) and Kuwait (‘when the number of displaced persons reaches 700,000, this proves that there is a real crisis impacting international peace and security’). 110 SC Res. 955, 8 November 1994, on Rwanda; SC Res. 1315, 14 August 2000, on Sierra Leone. 111 Art. 22 UN Charter. 112 Effect of Awards, at 57. 113 Ibid. 114 J. Gomula, ‘The International Court of Justice and Administrative Tribunals of International Organisations’, 13 Michigan Journal of International Law (1991) 83, at 92 (citations omitted). 115 Application for Review of Judgment No. 158 of the United Nations Administrative Tribunal, Advisory Opinion of 12 July 1973, ICJ Reports (1973) 166, at 172. 116 Ibid. 117 Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Tadić (IT-94-1), Appeals Chamber, 2 October 1995, § 38. 118 Ibid. 119 See references at supra notes 50–53. 120 Art. 31(1)(b) Vienna Convention on the Law of Treaties; Reparations, at 182. 121 GA Res. 998 (ES-I), 4 November 1956, establishing the UN Command for an Emergency International Force to ‘secure and supervise the cessation of hostilities’ in the Suez Canal region. 122 GA Res. 48/202, 21 December 1993. 123 GA Res. 57/228 B, 13 May 2003. 124 GA Res. 109 (II), 21 October 1947, establishing the Special Committee on the Balkans; GA Res. 1601 (XV), 19 April 1961, establishing a Commission of Investigation on Congo; General Assembly Meeting Record, UN Doc. A/PV.1239, 11 October 1963, §§ 170–174, announcing the establishment of a fact-finding mission to South Viet-Nam; GA Res. 3114 (XXVIII), 12 December 1973, establishing the Commission of Inquiry on Mozambique; GA Res. 52/135, 27 February 1998, mandating the establishment by the Secretary General of the Group of Experts on Cambodia; GA Res. 54/185, 17 December 1999, inviting the UN High Commissioner for Human Rights to conduct an investigation into alleged violations of human rights and humanitarian law in Afghanistan. 125 GA Res. 71/L.48, 19 December 2016. 126 See references at supra note 54. 127 Henckaerts and Doswald-Beck, supra note 4, at 618; R. van Steenberghe, ‘The Obligation to Extradite or Prosecute: Clarifying its Nature’, 9 Journal of International Criminal Justice (2011) 1089, at 1115, arguing that ‘it would be difficult to deny ascribing a customary status to the obligation to extradite or prosecute’ with regards to genocide, crimes against humanity or war crimes. 128 See GA Res. 2840 (XXVI), 18 December 1971, affirming that a ‘refusal by states to cooperate in the arrest, extradition, trial and punishment of persons guilty of war crimes and crimes against humanity is contrary to … generally recognized norms of international law’; GA Res. 2712 (XXV), 15 December 1970, calling upon states to ‘take measures, in accordance with recognized principles of international law’ to arrest and extradite war criminals and persons who have committed crimes against humanity. 129 Preamble, ICCSt. 130 Henckaerts and Doswald-Beck, supra note 4, at 619. 131 van Steenberghe, supra note 127, at 1116; M.C. Bassiouni and E. Wise, Aut Dedere Aut Judicare: The Duty to Extradite or Prosecute in International Law (Martinus Nijhoff Publishers, 1995), at 24; C.M. Bassiouni, International Extradition: United States Law and Practice (4th edn., Oceana Publications, 2002), at 7–8; C. Enach-Brown and A. Fried, ‘Universal Crime, Jurisdiction and Duty: The Obligation of Aut Dedere Aut Judicare in International Law’, 43 McGill Law Journal (1998) 613, at 633; L.A. Steven, ‘Genocide and the Duty to Extradite or Prosecute: Why the United States is in Breach of its International Obligation’, 39 Virginia Journal of International Law (1999) 425, at 442; W.A. Schabas, ‘Justice, Democracy, and Impunity in Post-genocide Rwanda: Searching for Solutions to Impossible Problems’, 7 Criminal Law Forum (1996) 523, at 555. 132 Report of the International Law Commission on its Sixty-Ninth Session (1 May – 2 June and 3 July – 4 August 2017), UN Doc. A/72/10, at 161. 133 Ibid., at 14. 134 Ibid., at 86. 135 Report of the International Law Commission on its Sixty-Ninth Session, UN Doc. A/CN.4/713, 26 February 2018, at 21. 136 These gaps were acknowledged by the International Law Commission in its Final Report on the Obligation to Extradite or Prosecute. The Commission observed that ‘there are important gaps in the present conventional regime governing the obligation to extradite or prosecute which may need to be closed. Notably, there is [sic] a lack of international conventions with this obligation in relation to most crimes against humanity, war crimes other than grave breaches, and war-crimes in non-international armed conflict’. See Report of the International Law Commission on its 66th Session (5 May-6 June and 7 July-8 August 2014), UN Doc. A/69/10, at 147. 137 Steven, supra note 131, at 461; GA Res. 50/2000, 22 December 1995, recalling the ‘obligation of all states to punish all persons who commit or authorize genocide … to exert every effort … to bring those responsible to justice in accordance with international due principles of due process, and to honour their obligations under international law in this regard, particularly under the Convention on the Prevention and Punishment of the Crime of Genocide’. 138 Art 7(1) Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. 139 See T. White, ‘States Failing to Seize Sudan’s Dictator Despite Genocide Charge’, The Guardian, 21 October 2018. 140 Reicher, supra note 31, at 29. 141 See Charter of the Association of Southeast Asian Nations; Treaty of Amity and Cooperation in Southeast Asia. 142 Press Release, ‘UN Rights Expert Calls for End to “Purgatory” of “International Inaction” Facing Myamar’s Remaining Rohingya’, 11 March 2019, available online at https://news.un.org/en/story/2019/03/1034461 (visited 15 March 2019). © The Author(s) (2019). Published by Oxford University Press. All rights reserved. For permissions, please email: journals.permissions@oup.com This article is published and distributed under the terms of the Oxford University Press, Standard Journals Publication Model (https://academic.oup.com/journals/pages/open_access/funder_policies/chorus/standard_publication_model)
TI - Accountability for Crimes against the RohingyaPossibilities for the General Assembly where the Security Council Fails
JF - Journal of International Criminal Justice
DO - 10.1093/jicj/mqz031
DA - 2019-07-01
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SP - 557
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