THE POWERS OF THE UN GENERAL ASSEMBLY TO PREVENT AND RESPOND TO ATROCITY CRIMES: A GUIDANCE DOCUMENT In collaboration with: A GUIDANCE DOCUMENT This document was written by Rebecca Barber, Research Fellow, Asia Pacific Centre for the Responsibility to Protect, University of Queensland. APRIL 2021 PHOTO COVER PAGE: Jamtoli refugee camp, Bangladesh - October 26, 2017. Credit: Joel Carillet COMMUNICATIONS: Asia Pacific Centre for the Responsibility to Protect School of Political Science and International Studies The University of Queensland St Lucia Brisbane QLD 4072 Australia Email: [email protected] http://www.r2pasiapacific.org/index.html THE POWERS OF THE UN GENERAL ASSEMBLY TO PREVENT AND RESPOND TO ATROCITY CRIMES: A GUIDANCE DOCUMENT i FOREWORD Around the world, atrocity crimes are being committed with devastating effect, and in many cases, seemingly with impunity. The United Nations is currently proving itself unable to either prevent such crimes, or adequately respond to them when they occur. In 1945, the Charter of the United Nations was adopted to ‘save succeeding generations from the scourge of war’, ‘reaffirm faith in fundamental human rights’, and ‘establish conditions under which justice and respect for the obligations arising from … international law can be maintained’. It marked a high point in international cooperation and commitment to protect human rights; as did the affirmation by the UN General Assembly in 2005 that the ‘international community, through the United Nations’, has the ‘responsibility to use appropriate diplomatic, humanitarian and other peaceful means … to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity.’ These laudable statements must continue to serve as the benchmarks against which member states of the UN should hold themselves to account. The UN Security Council, albeit having primary responsibility for maintaining international peace and security, is in many cases unable to effectively prevent atrocity crimes due to irreconcilable divisions amongst its permanent members. Civilians caught up in conflict, and the victims of atrocity crimes everywhere, are paying the price. It is, therefore, timely for UN member states to explore the various ways in which the UN General Assembly can more effectively utilise its own powers to prevent atrocity crimes, and respond to them when they occur. The General Assembly cannot pass legally binding resolutions, nor does it have the power to enforce its recommendations. The General Assembly is, however, the only truly representative organ within the UN system, and is explicitly empowered by the UN Charter to make recommendations relating to human rights, and on matters of international peace ii FOREWORD and security. It also has the distinct advantage of the adoption of a procedural resolution of the being unencumbered by the veto of any single General Assembly, placing the Responsibility member state. to Protect as a standing item on the agenda of the General Assembly, as well as requesting the This Guidance Document on the Legal Options UN Secretary General to report annually on the Available to the UN General Assembly to Prevent prevention of atrocity crimes. If successful, these and Respond to Atrocity Crimes is timely and developments will significantly increase the relevant. It provides a much-needed resource opportunities for all member states to contribute regarding what the General Assembly can do, to better prevention of atrocity crimes, including based on the UN Charter and other sources of through the General Assembly. international law, as well as the Assembly’s own established practice. None of this means giving up on the Security Council. To the contrary, initiatives aimed at Some of the interpretations of the General promoting the complementary engagement of Assembly’s powers described in this Guide are the General Assembly in matters of international controversial. Because the Document is intended peace and security, as well as initiatives aimed at to facilitate an enhanced role for the General providing additional opportunities for all member Assembly in preventing and responding to atrocity States to assess the Security Council’s performance, crimes, it inevitably, by its very nature, promotes can surely serve only to strengthen the integrity an interpretation of the Assembly’s powers that and accountability of the international system as enables it to fulfil such a role. It does also, however, a whole. This, in turn, will benefit not only the clearly acknowledge controversies, and where the populations suffering the effects of atrocity crimes, Document includes interpretations that diverge but the legitimacy of the international security from the traditional consensus regarding the system. Assembly’s powers, this is explicitly recognised. The Guidance Document describes what could be done, not what should be done. It provides political Ivan Šimonović decision-makers and diplomats with a menu of Permanent Representative of Croatia to the United available legal options, leaving to them the task of Nations engaging in a cost-benefit analysis regarding which options might feasibly be used in any particular Former Special Advisor to the UN Secretary-General case, when the international community is faced on the Responsibility to Protect with the threat or actual occurrence of atrocity crimes. This forward is written in Ambassador Šimonović’s I sincerely hope this Guidance document will personal capacity and should not be construed inspire member states to give renewed attention as necessarily representing the position of the to the powers of the General Assembly to prevent Government of Croatia. and respond to atrocity crimes. It should, moreover, significantly assist legal advisors in Ministries of Foreign Affairs and Permanent Missions to the UN in New York to advise decision-makers on available options. Right now, the Group of Friends of the Responsibility to Protect in New York is advocating iii ACKNOWLEDGEMENTS The development of this guidance document has benefited from the input of a group of expert advisors, who reviewed and provided feedback on drafts, participated in an online consultation in November 2020, and engaged bilaterally with the author throughout the drafting process. They are listed below. The author, and APCR2P, would like to express their gratitude to these advisors for so generously sharing their time, wisdom and expertise. They played an indispensable role in the elaboration of the various points of law and practice covered by this guidance document. It should be noted that while every effort has been made to reflect the diversity of views expressed through the consultations, the positions expressed do not necessarily represent the unanimous views of the experts consulted. The author/APCR2P would like to thank the Human Rights Research and Education Centre at the University of Ottawa, in particular Professor John Packer (Neuberger-Jesin Professor of International Conflict Resolution in the Faculty of Law), for expertly supporting and hosting the expert consultation, as well as Blake Van Santen (Canadian Federal Court of Appeal) and Sahara Douglas (University of Ottawa) for support with note-taking. Blake Van Santen also provided excellent research assistance. The author is particularly grateful to Andrew Carswell, director of the International Rule of Law Initiative, whose founding of the International Rule of Law Initiative in early 2020 provided the impetus and framework for the development of the guidance document. Professor Michael Ramsden at the Chinese University of Hong Kong was also engaged in the initial planning for this project and provided valuable input throughout. Thanks are also due to the Universal Rights Group in Geneva, and in particular Marc Limon, for supporting with outreach on the subject of the powers of the UNGA. Finally, the author is grateful to Professor Alex Bellamy, director of the APCR2P Centre, as well as APCR2P Centre Manager Arna Chancellor, for their ongoing guidance and support. iv GROUP OF EXPERT ADVISORS CONSULTED The experts listed below contributed to the guidance document in their individual capacities. Affiliations are provided for identification purposes only. Nothing in the document necessarily represents the views of any state or organization with which they are or have been affiliated. Niels Blokker, Professor of International Devika Hovell, Associate Professor of Institutional Law (Schermers Chair), Leiden International Law, London School of Economics. University. Jan Klabbers, Professor of Law, University of Patrick Butchard, Lecturer in Law and Helsinki. Coordinator, International Justice and Human Graham Melling, Senior Lecturer in Law, Rights Unit, Edge Hill University. Northumbria University. Andrew Carswell, Director, International Rule of Michael Ramsden, Associate Professor, Faculty of Law Initiative and Fellow, Human Rights Research Law, The Chinese University of Hong Kong. and Education Centre, University of Ottawa. Allan Rock, President Emeritus and Professor of Alison Duxbury, Professor and Deputy Dean, Law, University of Ottawa and former Canadian Melbourne Law School, University of Melbourne Ambassador to the UN. and Chair of the International Advisory Commission of the Commonwealth Human Rights Beth Van Schaack, Leah Kaplan Visiting Professor Initiative. of Human Rights, Stanford University and former Deputy to the Ambassador-at-Large for War Joanna Harrington, Professor and Eldon Foote Crimes Issues, Office