(Editor’s note: This article is adapted from a 2023 policy paper written by the author and Federica D’Alessandra for the Stimson Center. It is the sixth installment in a symposium on “The Future of Atrocity Prevention,” organized in collaboration with the Programme on International Peace and Security at the Oxford Institute for Ethics, Law and Armed Conflict. An introduction to the symposium and links to all installments can be found here.
In 2005, the United Nations General Assembly unanimously adopted the Responsibility to Protect norm, a political commitment to end forms of violence that shock the conscience of humanity. All 193 U.N. member States accepted their responsibility to protect their own people from genocide, war crimes, crimes against humanity, and ethnic cleansing – collectively referred to as “atrocity crimes” – and to assist other States in doing so. They also expressed their readiness to take action through the U.N. Security Council when States “manifestly fail” to protect their populations and peaceful means are inadequate to prevent or halt such acts of violence.
Almost twenty years on, global commitment to this norm appears to be wavering, if not already extinguished. Many States remain skeptical or critical of R2P on numerous grounds, in light of both the norm’s implementation and broader perceptions of its politicization. Some are wary of the political and legal complexities of implementing R2P’s third pillar – that is, taking “collective action” through the Security Council – especially when such interventions involve military force. Others, particularly in the Global South, criticize double standards in international activism (for example, the West’s fulsome response to atrocities in Ukraine, but relative silence when addressing violence in Sudan, Yemen, or the Democratic Republic of the Congo). Still others suspect R2P is a ploy to justify Western interventionism (Libya is an infamous case). In short, R2P has either done too much or too little, and few leaders or States now seem eager to champion it.
On top of controversies surrounding R2P, the Security Council has become paralyzed over responding to mass atrocities for at least the past decade. Since 2011, China, Russia, and the United States have repeatedly used the veto or its threat to block action in response to atrocity crimes committed in Syria, Myanmar, North Korea, Ukraine, and Gaza, among others. This Security Council gridlock – combined with the perceived decline of the R2P norm – has created a general perception that the U.N. plays no meaningful role in atrocity prevention today, and that efforts to implement the agenda have been all but abandoned.
This view is undoubtedly correct in many respects. At the same time, it overlooks a more nuanced and hopeful reality, as Federica D’Alessandra and I have argued elsewhere: aside from R2P’s status and the failures of the Security Council, the broader atrocity prevention agenda is firmly grounded in international law and has continued to be implemented across the U.N. system. In fact, U.N. bodies outside the Security Council – particularly the General Assembly, the Human Rights Council (HRC), and the International Court of Justice (ICJ) – have directly contributed to atrocity prevention objectives through the pursuit of justice and accountability, even if they rarely link their work to R2P directly or situate it within the atrocity prevention agenda.
Going forward, States must invest in such “alternative” sites for atrocity prevention at the U.N. precisely because “primary” institutions such as the Security Council are gridlocked and ineffective. This includes engaging with the General Assembly, the HRC, and the ICJ to obtain judicial or fact-based determinations with respect to the commission of atrocity crimes. In particular, States, advocates, and policymakers can encourage the HRC to establish international inquiries into allegations of mass atrocities, support judicial proceedings at the ICJ on atrocity-related matters, and push for the adoption of a crimes against humanity treaty at the General Assembly. By strengthening the legal and institutional infrastructure of atrocity prevention across the U.N. system, States can both safeguard the R2P agenda from increasing pushback and further its implementation.
U.N. Bodies Are Playing an Overlooked Role in Atrocity Response
The failures of the U.N. Security Council in responding to mass atrocities are well documented. As the U.N. body with which atrocity prevention efforts are traditionally associated, it is understandable that the Security Council – and whether and how frequently it intervenes in atrocity situations – is often seen as indicative of the agenda’s status at the U.N.
But too narrow a focus on Security Council action is misguided, for atrocity prevention entails far more than coercive intervention. Robust atrocity prevention efforts require not only swift intervention in situations of atrocity risk, but also the use of a variety of tools and strategies at multiple stages of a crisis, both before and after atrocities occur. This includes structural prevention measures such as strengthening the rule of law or reducing socioeconomic inequality, which aim to mitigate and build societal resilience to risk factors for atrocity crimes, as well as other types of direct response measures, specifically the pursuit of justice and accountability.
Remarkably, and contrary to the common perception that the role of the U.N. atrocity prevention is almost irrelevant, U.N. bodies are increasingly spearheading justice and accountability efforts in direct response to atrocity situations, often precisely due to Security Council gridlock and limited avenues available to States for coercive intervention.
The General Assembly
Take the General Assembly, which has been among the most active U.N. bodies to respond to atrocity crimes where the Security Council is unwilling or unable to act. Over the past decade, the General Assembly has directly contributed to atrocity prevention objectives in numerous and innovative ways, particularly by supporting judicial proceedings at the International Criminal Court (ICC) and the ICJ and promoting the progressive development and codification of international law.
First, the General Assembly has passed multiple resolutions making fact-based determinations relevant to specific questions of international law, or what some refer to as “quasi-judicial” determinations. While the General Assembly does not have judicial powers per se, it does have competence under the U.N. Charter to pass resolutions making determinations on certain legally relevant questions – including the recognition of statehood, the validity of referendums or territorial annexations, and the legality of State conduct – which some scholars have interpreted as an expression of States’ legal views (or opinio juris) on a given situation.
In 2012, for example, the General Assembly overwhelmingly passed a resolution recognizing Palestine as a “non-member observer State,” rather than simply an “observer.” In 2014, the General Assembly also overwhelmingly adopted a resolution in response to Russia’s annexation of Crimea, determining that the Crimean status referendum was invalid and that Russia’s presence in Crimea factually amounted to a state of illegal occupation. In response to ongoing persecution of the Rohingya in Myanmar, the General Assembly expressed grave concern in 2019 at the finding of the international fact-finding mission on Myanmar (IIFFM) that there was sufficient information to warrant investigation and prosecution for genocide. And after Russia’s full-scale invasion of Ukraine in 2022, the General Assembly passed a resolution – followed by two others – determining that Russia’s conduct amounts to aggression.
These determinations are not just symbolic. In fact, they have increasingly facilitated the international community’s ability to respond to mass atrocities, including by supporting justice and accountability efforts. For example, the General Assembly’s determinations have helped the ICC establish jurisdiction over the situations in Palestine and Crimea. Given that the ICC cannot resolve general questions of international law on statehood and territorial sovereignty, the determinations helped the court to ground its analysis of its jurisdictional reach.
General Assembly findings have also helped establish the ICJ’s jurisdiction over atrocity-related matters. In the case of Myanmar, for instance, Gambia’s ability to unilaterally file a genocide case against the Burmese government turned on whether the conduct at issue potentially constituted acts of genocide. To this end, the General Assembly’s resolution reiterating the findings of the IIFFM significantly bolstered the Gambia’s case, which the ICJ accepted the same year.
Beyond supporting judicial proceedings at the ICC and the ICJ, a second General Assembly initiative in response to mass atrocities aimed precisely to circumvent the Security Council has been the historic establishment of an international investigative mechanism in Syria, known as the IIIM. Despite mounting evidence after the onset of the Syrian civil war in 2011 that war crimes and crimes against humanity had likely been committed, the Security Council failed to refer to the situation to the ICC in 2014 due to opposition from China and Russia. In response to Security Council inaction, the General Assembly creatively leveraged its competencies in 2016 to establish the IIIM as a new model for accountability: an investigation intended not to prosecute current cases, but to prepare case files for future criminal proceedings and preserve evidence of atrocity crimes until such trials can occur.
While establishing an international investigation in response to mass atrocity allegations was not a new measure itself, the IIIM was different than any earlier U.N. investigation in that it was established without the Syrian government’s consent, a historic first for the General Assembly, and was explicitly mandated to carry out investigations according to criminal law rather than human rights law standards. Criminal law rules are more stringent and differ with respect to information collection, authentication, and preservation. Moreover, the IIIM was the first U.N. investigation established to create a path toward future criminal accountability, which has since inspired a new generation of investigative mechanisms established by other entities across the U.N. system, including for Iraq, Myanmar, and many others.
Finally, a third contribution of the General Assembly to advancing atrocity prevention over the past decade is its consideration of a draft convention on crimes against humanity. While the international community has adopted specific conventions to prevent and punish genocide and war crimes, crimes against humanity have not been codified in a dedicated international treaty. This is widely considered a major gap in the legal architecture of atrocity prevention that has impeded efforts to prevent such crimes and hold perpetrators accountable.
For instance, no existing legal regime imposes specific duties on States to prevent or punish crimes against humanity, as is the case for genocide and war crimes. While the Rome Statute of the ICC helped to advance the definition of crimes against humanity, many definitions of crimes now require clarification and expansion, such as the definition of sexual violence, and certain protection provisions are missing from the treaty altogether, including a distinct provision to address slave trade, gender apartheid, or persecution on the grounds of disability. Aside from the ICC, States also cannot pursue accountability for crimes against humanity before the ICJ, as no treaty exists that contains a compromissory clause providing the court jurisdiction.
To fill these legal gaps, the U.N. International Law Commission – an expert body established to help develop and codify international law – began drafting articles for a universal convention on crimes against humanity in 2014, which it completed and provisionally adopted in 2019. These Draft Articles provided the basis for negotiations in the General Assembly for an eventual treaty, which after a three-year delay is now being considered through the General Assembly’s legal arm, the Sixth Committee. If adopted, the treaty would establish clear standards around State duties to prevent, investigate, and punish crimes against humanity, a crucial step toward solidifying the legal framework underpinning States’ political commitments pursuant to R2P.
The Human Rights Council
The General Assembly has not been the only “alternative” site for atrocity prevention efforts at the U.N. over the past decade. The Human Rights Council – itself a subsidiary body of the General Assembly – has also increasingly made direct contributions to atrocity prevention objectives through its active role in mandating investigations of alleged mass atrocities.
Over the past decade, U.N. investigations mandated by the HRC have pivoted from their traditional human rights functions toward making more direct contributions to judicial accountability efforts, including those aimed to establish criminal liability. These investigations have been tasked not only with monitoring and reporting on human rights, which has traditionally been their focus, but also with performing functions that support judicial accountability for mass atrocities.
This “accountability turn” is particularly evident in the increased use of language related to international justice and accountability in the mandates of such investigations. For example, U.N. investigations have been tasked to determine whether human rights violations they document may amount to international crimes, to identify perpetrators and collect evidence of their individual culpability, and to broadly support judicial accountability processes. This has required ivestigations to expand the scope of their work to include international criminallaw standards, methods, and considerations such as collecting linkage evidence, establishing intent, and making determinations about contextual elements of alleged crimes.
While this trend can be observed across at least 15 hybrid investigations, it has become particularly entrenched since 2016 with the successive establishment of the three independent investigative mechanisms for Syria, Iraq, and Myanmar. Not only have these investigations received criminal case-building mandates, but all three have been supported by far greater resources and capacity than previous HRC-mandated investigations – both in terms of higher budgets, more robust infrastructure, greater investment in digital technology and information governance capacity, and deliberate efforts to recruit staff with international criminal law expertise. All of this has allowed the mechanisms to more successfully fulfil their accountability mandates and increased the potential that information they collect can support judicial proceedings.
The “accountability turn” in international investigations has thus helped to preserve the U.N.’s ability to investigate and potentially prosecute atrocity crimes, despite the dim possibility of ICC referrals from the Security Council.
The International Court of Justice
Pathways to accountability for atrocity crimes through the ICJ are narrow and few, given that the court’s ability to rule on cases dealing with mass atrocities is limited to violations of specific human rights treaties – including the U.N. Genocide Convention, the U.N. Convention Against Torture (CAT), and the U.N. Convention on the Elimination of Racial Discrimination (CERD) – which address some but not all atrocity crimes. Both despite and because of this, it is significant that atrocity-related cases have increasingly filled the court’s docket in recent years.
For example, as mentioned above, Gambia brought a historic case to the ICJ against Myanmar in 2018 for violating the Genocide Convention with respect to its treatment of the Rohingya. While States had twice before filed cases before the ICJ under the convention, the Gambia’s case was the first time a State invoked the ICJ’s jurisdiction over the actions of another State that did not directly affect it or brought a case against a State on a different continent. Crucially, the ICJ took the extraordinary step in 2020 of issuing provisional measures – or temporary orders by the court that require a party either to do or refrain from doing a specific act – ordering Myanmar to halt all conduct that might be in violation of the convention and to report back regularly to the ICJ on its compliance.
In 2022, Ukraine followed in Gambia’s footsteps, filing an application at the ICJ under the Genocide Convention to initiate proceedings against Russia and directly requesting the indication of provisional measures. In a remarkable move, the Court issued unqualified provisional measures with a near-unanimous consensus directing Russia to suspend its military operations in Ukraine full stop, not just on the basis of preventing genocide – an unprecedented move clearly aimed to prevent further loss of life.
Most recently, South Africa initiated proceedings at the ICJ against Israel for alleged violations of the Genocide Convention in Gaza and urgently advocated for the Court to issue provisional measures, including calling on Israel to immediately halt all military attacks that constitute or lead to potential violations of the convention. Notably, South Africa highlighted in its submission that the Security Council resolution adopted on Dec. 22, 2023 fails to adequately address the situation on the ground, including by failing to call for a ceasefire. The initiation of proceedings and request for protection measures are thus at least partly a response to the Security Council’s failure to adopt the measure most needed to protect civilians in Gaza – a permanent ceasefire, or at the very least, a humanitarian pause.
Besides the Genocide Convention, States have leveraged various other treaties to pursue accountability for atrocity crimes at the ICJ. In 2017 and 2019, Ukraine initiated ICJ proceedings against Russia for violations of the CERD, first during the annexation of Crimea and subsequently during Russia’s occupation of other parts of eastern Ukraine. Significantly, the court granted Ukraine some of its requested provisional measures, obliging Russia to ensure the provision of education in Ukrainian and the free operation of the Crimean Tatar community’s representative institutions.
Ukraine’s example was followed in 2021 by Armenia, which initiated proceedings against Azerbaijan for alleged violations of the CERD and equally requested the indication of provisional measures to protect Armenians in the Nagorno-Karabakh region. That year, the court issued provisional measures ordering Azerbaijan to prevent the incitement of racial hatred and violence against Armenians, to protect captured persons from violence, and to prevent and punish acts of vandalism against Armenian cultural heritage. In February 2023, the court further ordered Azerbaijan to end its blockade of the Lachin corridor endangering the lives of 120,000 Armenians living in Nagorno-Karabakh.
Finally, this June 2023, Canada and the Netherlands initiated landmark proceedings at the ICJ against Syria for violations of the U.N. Torture Convention. The application also requested the indication of provisional measures for protection purposes, including releasing arbitrarily detained prisoners and granting international monitors access to detention centers.
If the ICJ finds it has jurisdiction in Syria, it will be the first international court to be able to make a legal finding on the alleged use of torture by the Syrian government, and only the second time the court hears a case under the CAT. Given that there has been only one conviction for the use of torture by a Syrian State official to date, bringing the case before the ICJ is an important step toward some further measure of accountability for atrocity crimes in Syria, and at least preserves the possibility that individuals responsible might be held accountable in the future.
Evaluating Effectiveness
Of course, this analysis raises the question of effectiveness, and whether provisional measures issued by the ICJ – or any other justice and accountability efforts – have actually influenced perpetrators’ conduct. The reality is that non-compliance is a likely outcome in most cases, given that the court’s orders cannot easily be enforced. For example, Myanmar, Russia, and Azerbaijan all failed to comply with almost all provisional measures indicated by the court.
Notably, under Article 41(2) of the ICJ’s statute, provisional measures indicated by the court are automatically sent to the Security Council, meaning it could take further action to ensure State compliance. This option, however, is unlikely for the foreseeable future, precisely because the Security Council is gridlocked over atrocity situations (particularly those in Syria, Myanmar, and Ukraine).
If States are unlikely to comply with provisional measures ordered by the ICJ, and their non-compliance will simply trigger a referral to a gridlocked Security Council, what is the point of such judicial proceedings? And if we do not know what impact U.N.-mandated investigations have on perpetrators’ conduct or how valuable they actually are to ongoing or future judicial proceedings, why should States commit political and financial resources to supporting them?
Notwithstanding the challenges and limitations international justice and accountability bodies face, it is notable that they can at times impact state conduct. In fact, States do often comply with measures ordered by international courts and tribunals, including in relation to atrocity matters. For example, the Burmese government submitted two implementation reports to the ICJ before the February 2021 coup when the military junta seized power, and as of 2022, public reports indicated that the government continued to engage with the court on the reporting requirement imposed by the provisional measures. At the very least, this suggests the court’s orders do carry political and legal weight.
Yet, the most significant impact of ICJ proceedings lies not in their discrete effect on perpetrators’ conduct, but rather in the process of the proceedings itself. An official finding against a State by an international, impartial, and independent body – be it a judicial or fact-based finding by the ICJ, an HRC-mandated investigation, or the General Assembly – is hard to credibly rebuke, and confirms on the global stage the illegality of a State’s conduct, which is almost always initially contested by the State itself. This is a powerful tool to limit a perpetrator’s ability to credibly deny allegations of misconduct or to “muddy the waters” and reframe a narrative surrounding allegations, and in doing so, undermine the empirical truth of an atrocity situation to shield itself from scrutiny and action – as China, Russia, and Israel have been known to do.
By establishing a historical and legal record of violations and abuses, the findings of such bodies not only confirm the illegality of perpetrators’ conduct. They also confer victim status to those who have been harmed, which carries, among other rights, the right to remedy and reparation. Thus, even when ICJ findings concern only State rather than individual culpability (and cannot support international criminal proceedings), or when the findings do not directly contribute to ongoing judicial proceedings (which is often the case with General Assembly determinations or the findings of HRC-mandated investigations), they can potentially pave the way for reparation schemes for victims, as has been the case for Palestine and Ukraine.
All of this helps sustain international attention on specific atrocity situations, supports public advocacy efforts, and provides a basis for States to impose diplomatic consequences on perpetrators for their abuses. To take one example, the G7 Leaders’ statement on Ukraine announcing the imposition of further sanctions on Russia in May 2023 explicitly cited one of the General Assembly resolutions characterizing Russia’s conduct as international aggression.
Justice and accountability processes, then, may not often have a direct impact on either perpetrators or victims, but they are a vital component of a global system of atrocity prevention and response efforts and contribute to core atrocity prevention objectives besides providing immediate protection to groups at risk. Above all, such processes help reaffirm the applicability of international law to atrocity situations at exactly the moment when States are flouting it, and in doing so, advance international law’s normative development while achieving some of its core goals: publicly identifying wrongful conduct, condemning such conduct and delegitimizing the perpetrators, and at least potentially deterring future crimes.
States Must Invest in “Alternative” Sites for Atrocity Prevention
The state of atrocity prevention at the U.N. is more robust than it is often assumed. While the decline of the R2P norm and Security Council paralysis are serious causes for concern, a countertrend appears to be emerging that gives cause for optimism. More specifically, the disruption of traditional atrocity prevention mechanisms at the U.N. has generated concerted efforts by other bodies and member States to carve out “alternative” avenues to respond to atrocity situations, especially to circumvent Security Council gridlock.
In particular, the General Assembly, the HRC, and the ICJ have increasingly leveraged procedural mechanisms available to them to help prevent and respond to atrocity crimes, often in innovative ways. In doing so, these bodies have directly contributed to core atrocity prevention objectives, and might thus be considered “alternative” fora through which U.N. member States have continued to advance the atrocity prevention agenda.
Because Security Council paralysis is likely here to stay, elevating the role of other U.N. bodies in atrocity prevention and response efforts – and especially in authoritatively identifying wrongful conduct by States and implementing measures against them, even where these are non-coercive – will be key to sustaining progress on the agenda without the Security Council.
U.N. member States should thus continue to creatively leverage existing procedural mechanisms under the U.N. Charter to sustain attention and debate on atrocity situations and how the international community can and should respond to them. This includes engaging with the General Assembly, the HRC, and the ICJ – as well as other international entities with the power to debate and adjudicate on relevant factual and legal matters, such as ad hoc or hybrid tribunals – to obtain as many judicial or fact-based determinations relevant to an atrocity situation as possible. Doing so will enable international and local actors to attribute responsibility for atrocity crimes, recognize victims, and maximize the number of pathways to judicial accountability.
States should also proactively encourage members of the HRC to establish international inquiries into allegations of mass atrocities. Equally, they should sustain debates on how to strengthen the U.N.’s support for human rights investigations through establishing a permanent investigation support entity, which could act as a “service bureau” for other accountability mechanisms to standardize their operations and maximize the quality and efficiency of their work, or serve as a standalone investigation when triggered by a competent U.N. body. Among other steps, States should convene high-level discussions on establishing such an entity in multilateral settings, speak out publicly in support of its establishment, and commit to provide it with financial, technological, and operational support once created.
Finally, States should invest in international justice and accountability efforts by considering legal options to join or support ongoing judicial proceedings on atrocity-related matters, including those pending at the ICJ. They should also continue to support the development and codification of the body of international law that underpins R2P and the atrocity prevention agenda, particularly by supporting the adoption of the Draft Articles on the Prevention and Punishment of Crimes Against Humanity.
U.N. accountability mechanisms will invariably face challenges to operating effectively and remain limited in their ability to directly impact perpetrators or at-risk populations. Nonetheless, until structural reform of the Security Council is achieved or the geopolitical dynamics underlying the current gridlock shift, solidifying the infrastructure of atrocity prevention by strengthening the institutionalization of its underlying laws and principles is a key strategy – if not currently the only one available – to preserve and expand progress on the agenda, both within and beyond the U.N.