As the United Nations (U.N.) General Assembly’s 77th annual session kicks off, atrocity crimes are being committed in many parts of the world. The U.N. Security Council, with its unique powers and responsibilities, has found itself unable to effectively respond to these crimes due to the veto of its permanent members – the United States, United Kingdom, France, Russia and China. Meanwhile, proposals for reforming the Security Council veto (e.g., here and here) have run up against the intractable problem that any such reforms would require the consent of the Council’s veto-wielding permanent members.
In the absence of such reforms, the General Assembly has been stepping up. In the past 18 months, the General Assembly has recommended that states impose an arms embargo on Myanmar, committed to holding a debate every time a veto is cast in the Security Council, committed to holding annual debates on the responsibility to protect, and convened an emergency special session – only the 11th such session in its history – to address the war in Ukraine. These steps reflect an awareness of the heavy responsibility that the U.N. Charter places on the General Assembly. The U.N. Charter empowers the General Assembly to make recommendations on any matter within the scope of the Charter, and specifically tasks it with formulating recommendations to assist in the realisation of human rights. The International Court of Justice (ICJ) has moreover affirmed that, alongside the Security Council, the General Assembly should “be concerned with international peace and security.”
As the U.N. General Assembly’s 77th session ramps up, states should consider how they can best leverage the General Assembly’s powers to respond to atrocity crimes, starting with the following:
1. Take a stand against Myanmar’s military junta
Since the attempted coup in February 2021, Myanmar’s junta has engaged in a campaign of violence that the U.N. High Commissioner of Human Rights has said likely amounts to crimes against humanity. But things have not gone to plan for the junta. Myanmar’s National Unity Government (NUG), established by elected parliamentarians in April 2021, has been consolidating its political legitimacy – including by collaborating with other groups to establish the National Unity Consultative Council and launch the Federal Democracy Charter. On the military front, the NUG-aligned people’s defence forces, together with affiliated ethnic resistance organisations, reportedly now control most of Myanmar’s territory. The junta, for its part, is losing ground.
The United Nations’ approach to the question of who speaks for Myanmar has been inconsistent and unprincipled. Myanmar is represented at the General Assembly by the NUG-endorsed Ambassador Kyaw Moe Tun, but only because last year the General Assembly’s Credentials Committee decided to defer its decision on Myanmar’s representation, allowing Kyaw Moe Tun to remain in his seat by default. Conversely, the Human Rights Council and other international organisations have excluded Myanmar from their meetings, and the ICJ has allowed the junta to represent Myanmar. This conveys the impression to the junta that it will not be sanctioned for its crimes, and denies the NUG the support it needs to advance Myanmar along the path to democracy, justice, and human rights.
The General Assembly should use its 77th session to take a stand against the junta. As an immediate priority, it should accept the credentials of the NUG’s delegates nominated to represent Myanmar at the General Assembly. If this is politically impossible and the General Assembly must again defer its decision on Myanmar’s representation, it should at least state that the deferral is “on the understanding that the current representative will remain in place with all the same rights and privileges of other representatives” (see examples here, here and here).
Beyond the credentials process, the General Assembly should pass a resolution describing the NUG as the legitimate government of Myanmar, in line with the practice established following military coups in Haiti in 1991 and Honduras in 2009. That same resolution could also call on states to refrain from conferring legitimacy on the junta, and on other parts of the United Nations and other international organisations to treat the NUG as the government of Myanmar. The General Assembly could moreover reiterate its earlier recommendation that states prevent the flow of arms to Myanmar, and go further and recommend that states impose sanctions on the junta and on individuals credibly suspected of having committed atrocity crimes.
2. Take steps to advance accountability for atrocity crimes in Afghanistan and Xinjiang
Recent U.N. reports on the situations in Afghanistan and Xinjiang have affirmed the scale and gravity of atrocity crimes being committed in those contexts, and the imperative for a robust U.N. response. The report of the U.N. High Commissioner for Human Rights on Xinjiang – released on 31 August, literally minutes before the expiration of her mandate – affirmed that “the extent of arbitrary and discriminatory detention of members of Uyghur and other predominantly Muslin groups, pursuant to law and policy, in context of restrictions and deprivation more generally of fundamental rights enjoyed individually and collectively, may constitute … crimes against humanity.” The report of the Special Rapporteur on human rights in Afghanistan, issued on 9 September, highlighted the “staggering regression in women and girls’ enjoyment of civil, political, economic, social and cultural rights.” It also described a litany of gross human rights violations including enforced disappearances, arbitrary arrests, extrajudicial killing, torture, and attacks on ethnic and religious communities that “appear to be systematic in nature and bear hallmarks of crimes against humanity.”
Both reports warrant a response from the General Assembly. At the very least, the reports should be circulated to member states and given due consideration. The General Assembly should also consider passing a resolution recommending that states impose sanctions targeting the entities and individuals responsible for atrocity crimes in both regions. It should moreover consider establishing an independent, impartial body to monitor and publicly report on the crimes and to collect, preserve and analyse evidence to lay the foundations for accountability.
Accountability mechanisms can be established by the Human Rights Council, such as those previously established for Myanmar or Yemen (now expired), or by the General Assembly, such as the mechanism established for Syria. What matters is not which body establishes such a mechanism but that one is established. Doing so would put perpetrators on notice that they will be held to account.
3. Bolster the case for cross-border humanitarian aid in Syria to continue through the winter
In 2014, the Security Council passed a resolution authorising the United Nations and its partners to provide humanitarian aid in parts of Syria that lie outside the government’s control, utilising designated border crossing points. Since 2014, that authorisation has been progressively whittled away due to Russian opposition. Now, only one authorised border crossing – Bab al-Hawa – remains. Eighty percent of food aid in northwest Syria is channelled through that single border crossing.
The Security Council’s authorisation of the Bab al-Hawa crossing expires in January 2023, and will likely not be renewed. The discontinuation of the aid through Bab al-Hawa would leave 2.4 million Syrians without assistance, and hospitals and health centres without essential supplies, in the middle of winter.
International law does not state that Security Council authorization is required for humanitarian aid to be provided without host state consent. To the contrary, the ICJ has said that “the provision of strictly humanitarian aid to persons…in another country…cannot be regarded as unlawful intervention.” Even if the provision of such aid were to be regarded as an unlawful intervention, it would be legally justifiable on the grounds of necessity. International law recognises that necessity may preclude the wrongfulness of conduct, where that conduct is the “only way for a state or international organisation to safeguard an essential interest against a grave and imminent peril.”
The onus for dealing with the expiry of the Security Council cross-border mandate falls primarily on the U.N. Office of Legal Affairs – to provide a legal opinion to the United Nations regarding the legality of humanitarian aid in Syria without Security Council authorisation. But the General Assembly can play a role. Specifically, the General Assembly could pass a resolution: affirming the interest of the international community in protecting the rights of the Syrian population; recognising that that interest faces grave and imminent peril; and recognising that the only way for humanitarian organisations to safeguard that interest is by providing humanitarian aid from across international borders. In other words, qualifying the situation as one of necessity. Moreover, the General Assembly could recall the ICJ’s statement that the provision of strictly humanitarian aid is not illegal. Finally, it could call on U.N. organizations and their partners to provide humanitarian aid via the most efficient routes, and on states to support them to do so.
4. Pass a stronger resolution on Ukraine
The recommendations made by the General Assembly in relation to Ukraine thus far are not commensurate with the scale and gravity of the crimes being committed.
On Feb. 27, two days after Russia’s invasion of Ukraine, the Security Council convened an emergency special session of the General Assembly, pursuant to a procedure established by the General Assembly’s 1950 Uniting for Peace Resolution. In that resolution, the General Assembly agreed that:
“if the Security Council 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.”
On March 2 the General Assembly did meet and consider the matter of Ukraine, but it did not recommend collective measures nor the use of force. The General Assembly demanded that Russia cease its use of force and withdraw its forces from Ukraine, and “urge[d]” the efforts of states and international organisations to support the de-escalation of the situation. The General Assembly has subsequently passed two other resolutions on Ukraine – one on the humanitarian consequences and one suspending Russia from the Human Rights Council.
Overall, however, the response to Ukraine has fallen short. The General Assembly should use its 77th session to recommend to states that they impose sanctions on Russian state entities and individuals, and call on states to provide military assistance to Ukraine. Of course some states are already doing these things, but more is required, and a General Assembly resolution could prompt States that have not yet responded to the atrocities in Ukraine, to follow suit.
The General Assembly’s 77th session comes at a critical juncture. The situation in Ukraine has shone a spotlight on the limitations of the Security Council, and also highlighted how robustly some states can respond when they feel their security is at stake. This year’s meeting presents an opportunity to leverage that momentum, utilising the United Nations not just to punish aggression but also to punish and prevent the commission of mass atrocities.