Does the U.N. General Assembly have the authority to establish an International Criminal Tribunal for Syria?
By all accounts, the U.N. Security Council session this morning will not result in a referral of the situation in Syria to the International Criminal Court (ICC). Because Syria is not a party to the ICC—and it has not accepted the jurisdiction of the Court on an ad hoc basis—a formal referral of the situation by the 15-member Council is necessary for the Court to exercise jurisdiction over crimes committed in the country’s civil war. A resolution drafted by France to refer the matter to the Court has garnered overwhelming support, but the Council’s demanding voting rules, it seems, will bar any affirmative action on the matter.
For the resolution to pass, a supermajority of member states would have to vote in favor of the measure (at least 9 of the 15 members) and none of the five permanent members of the Council (U.S., U.K., France, China, and Russia) could oppose it. It appears that nearly all members of the Council support the referral. Russia, though, has vowed to “veto” it.
This development leaves the global effort to establish accountability for the well-documented atrocities committed in Syria at an important crossroads. If the ICC is not an option—and neither is any other alternative requiring the cooperation of Syria—then what’s next?
One course of action suggested by many is for the U.N. General Assembly (GA) to establish an international criminal tribunal for Syria. This proposal echoes recent calls for the GA to establish a special tribunal for crimes committed in Gaza and North Korea. The appeal of the idea is straightforward: The GA is more broadly representative of the international community than the Council and no single country could block the establishment of a tribunal (although a two-thirds majority is required for “important questions” including matters concerning the maintenance of international peace and security (UN Charter, Article 18)). It’s far from clear, of course, whether the GA would vote to establish a special criminal tribunal for Syria. The more fundamental question, though, is whether there is a legal basis for this alternative. In my view, the legal basis for a GA criminal tribunal is, at a minimum, highly questionable.
Does the GA have the power under the U.N. Charter to establish a criminal tribunal? Proponents of a GA tribunal typically do not articulate a legal basis for their proposals. When they do, they rely heavily on Article 22 of the Charter. Article 22 reads:
“The General Assembly may establish such subsidiary organs as it deems necessary for the performance of its functions.”
Reliance on this provision is perfectly understandable. The other powers explicitly accorded the GA in the Charter are not, in the main, terribly promising. Under Articles 10 and 11, the GA is given the authority to “discuss” any matters within the scope of the Charter and to “make recommendations” to Member states. Under Article 13, the GA is given the authority to “initiate studies” with a view toward making recommendations on various matters. Article 22, though, seems on its face to contemplate the creation of specialized U.N. bodies by the GA when the GA determines that such bodies are necessary to promote the objectives of the Charter.
Surely, though, such a broad reading of Article 22 is suspect in view of the limited powers otherwise accorded the GA in the Charter. Although the precise limits of GA authority under Article 22 are unclear, the prevailing view is that the provision does not accord the GA a general power to establish a judicial body with the capacity to enter binding legal judgments. Indeed, the more common reading of Article 22 is that it accords the GA the authority to establish only subsidiary organs enjoying the same powers as the GA itself (for good sources, see Simma, et al., The Charter of the United Nations: A Commentary 427-28 (2nd ed. 2002); Goodrich, et al., Charter of the United Nations 191 (3rd ed. 1969)). In other words, the GA cannot via a subsidiary organ wield any powers it does not otherwise enjoy under the Charter. Article 22, on this view, is not an end run around the enumerated powers of the GA.
An early advisory opinion of the International Court of Justice confirms this view. In assessing the legality of the GA-established United Nations Administrative Tribunal (UNAT)—a tribunal for resolving disputes between U.N. staff and the United Nations—the ICJ found that Article 22 alone does not empower the GA to establish a judicial body because the GA enjoys no judicial authority under the Charter. The ICJ concluded that the GA possessed the implied power to regulate the relations between the United Nations and its staff and to resolve disputes that might arise pursuant to those regulations. As a result of this implied authority, the GA could choose to exercise this power via a subsidiary tribunal. The upshot is that Article 22 provides the GA with the authority only to exercise its otherwise-established authority through the organizational means of its choosing. Commentators have noted that these limits on Article 22 make clear that the GA does not have the power to establish a special tribunal—particularly not an “International Court of Criminal Justice” (Simma, et al., supra, at 427; Goodrich, et al, supra, at 191).
The same line of analysis applies to the Security Council’s now-recognized authority to establish criminal tribunals. Although the Council also enjoys the authority to establish subsidiary bodies in Article 29 of the Chapter, the Council’s authority to establish the ICTY and ICTR emanated from its power to order non-forcible coercive measures under Article 41. It was Article 41, in other words, and not Article 29 that provided the Council with the legal basis to establish the tribunal. The GA has no analogue to Article 41. And, of course, the practice of the GA and its subsidiary organs is consistent with this conclusion. Other than the judicial process governing internal matters, neither the GA nor its subsidiary organs have ever established a judicial body.
None of this is meant to suggest that there are no viable alternatives for pursuing prosecution—in domestic or international courts. If U.N. options are off the table, though, proponents of accountability will need to be creative. Check back at Just Security for a follow-up post discussing possible alternatives.