Further to Alex Whiting’s post on Russian objections to the U.N. General Assembly’s formation of the International, Impartial and Independent 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 (IIIM), it is worth noting that the General Assembly has played a role in prior accountability efforts since its inception after World War II.
One of its first activities in this regard came with Resolution 3 (Feb. 13, 1946), which calls on states to cooperate in the capture and extradition of those war criminals who were still at large and were “evad[ing] justice in the territories of certain States.” In particular, the Assembly recommended that both U.N. member and non-member states:
take all the necessary measures to cause the arrest of those war criminals who have been responsible for or have taken a consenting part in the above crimes, and to cause them to be sent back to the countries in which their abominable deeds were done, in order that they may be judged and punished according to the laws of those countries…
Later that same year, it affirmed the principles of international law recognized by the Charter of the Nuremberg Tribunal and its Judgment in Resolution 95 (Dec. 11, 1946) and directed the codification of those principles “as a matter of primary importance” as part of a broader effort to codify all offenses against the peace and security of mankind or in an International Criminal Code. In its next resolution on the same day, the Assembly affirmed that genocide was a punishable crime under international law and requested the Economic and Social Council to draft the treaty that eventually became the Convention on the Prevention and Punishment of the Crime of Genocide.
The General Assembly remained concerned about the capture and punishment of individuals accused of committing international crimes (see, e.g., Resolutions 2583, 2712, 2840). In 1973, Resolution 3074, entitled Principles of Int’l Co-Operation in the Detection, Arrest, Extradition & Punishment of Persons Guilty of War Crimes & Crimes Against Humanity, called again for international cooperation in the detection, arrest, extradition, and punishment of persons accused of war crimes and crimes against humanity. The principles pronounced include the following:
- War crimes and crimes against humanity, wherever they are committed, shall be subject to investigation and the persons against whom there is evidence that they have committed such crimes shall be subject to tracing, arrest, trial and, if found guilty, to punishment.
- States shall cooperate with each other on a bilateral and multilateral basis with a view to halting and preventing war crimes and crimes against humanity, and shall take the domestic and international measures necessary for that purpose.
- States shall co-operate with each other in the collection of information and evidence which would help to bring to trial persons against whom there is evidence that they have committed international crimes.
- States shall not take any legislative or other measures which may be prejudicial to the international obligations they have assumed in regard to the detection, arrest, extradition and punishment of persons guilty of war crimes and crimes against humanity.
In 2005, the Assembly announced a set of Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (Resolution 60/147). The Resolution reiterates obligations to investigate and prosecute violations; codify international crimes domestically including through the application of universal jurisdiction, and provide victims with remedies, including equal and effective access to justice.
The General Assembly has also focused on the problem of impunity in particular states. In 1997, for example, the General Assembly with the Secretary General created a Group of Experts to examine the commission of international crimes in Cambodia and make recommendations for accountability options. See Resolution 52/135. In particular, the Group of Experts was to:
evaluate the existing evidence and propose further measures, as a means of bringing about national reconciliation, strengthening democracy and addressing the issue of individual accountability.
Later, the General Assembly acted as the mandating body for the formation of the Extraordinary Chambers in the Courts of Cambodia for the Prosecution of Crimes Committed During the Period of Democratic Kampuchea (“ECCC”). The General Assembly charged Secretary General Kofi Annan with negotiating an agreement between the Royal Government of Cambodia and the United Nations. Cambodian intransigence on certain points led to the withdrawal of the Secretary General Annan from the process. After the General Assembly urged Annan to resume talks, the parties eventually concluded the 2003 Agreement Between the United Nations and the Royal Government of Cambodia Concerning the Prosecution Under Cambodian Law of Crimes Committed During the Period of Democratic Kampuchea, Cambodia-UN. The General Assembly approved the draft Agreement by way of Resolution 57/228(B).
Since the tribunal’s inception, the United Nations has provided technical assistance and staff through the United Nations Assistance to the Khmer Rouge Trial (“UNAKRT”). In response to instances of funding insecurity, the Fifth (Budget) Committee of the General Assembly has granted commitment authority for a subvention grant from the United Nations’ assessed budget to stabilize the ECCC’s funding and, in turn, enable the execution of employment contracts and other long-term planning. (See Resolution 69/274 of April 24, 2015). Similar subvention grants had been authorized earlier for the Special Court for Sierra Leone to bridge voluntary contribution shortfalls.
Likewise, the General Assembly was involved with the establishment of the International Commission Against Impunity in Guatemala (CICIG). The U.N. Department of Political Affairs originally proposed a hybrid commission that would enjoy both investigative and prosecutorial powers. The Guatemalan Constitutional Court in a 2004 consultative opinion raised concerns that such a delegation of prosecutorial authority might be unconstitutional. Accordingly, the final 2006 bilateral agreement between Guatemala and the United Nations established special investigative cells of embedded international experts who provide technical assistance to local actors and undertake direct investigations. Although dependent on Guatemalan officials to pursue charges, CICIG is entitled to present potential criminal charges to the Public Prosecutor (Ministério Público) and join proceedings as a private prosecutor (querellante adhesivo). It can also seek sanctions against Guatemalan officials who hinder ongoing investigations or prosecutions. Beyond this agreement, the U.N. General Assembly also endorsed CICIG in Resolution 63/19 (Dec. 16, 2008) and called upon states to support CICIG through voluntary contributions, financial and in kind.
This is all to say that there is nothing unusual or exceptional in the General Assembly creating an investigative body for Syria with an eye towards future accountability efforts.
Image: UN Photo/Amanda Voisard