THE UNITING FOR PEACE RESOLUTION (U4P) AND THE RESPONSIBILITY TO PROTECT (R2P)

Following the 1990s genocides in the Balkans and Rwanda, the world resolved "never again". Sovereign states are obliged to protect the welfare of their own people.  However, the international community has a residual responsibility to protect those same people where their government fails to do so, or is itself the perpetrator of atrocity crimes. This should be effected through the UN Security Council. But what if Council action is blocked by the veto? Must the international community stand by and witness atrocities?

In 1999, NATO carried out an air campaign in Kosovo under the heading of humanitarian intervention. The campaign was designed to prevent atrocities that Slobodan Milosevic was about to carry out on separatist ethnic Albanian Kosovars. By most accounts, the campaign accomplished that goal. However, the intervention circumvented the UN in order to avoid pending Russian and Chinese vetoes. It took place without the authorization of the Security Council, without the consent of the sovereign government, and was not a measure of self-defence under the UN Charter. Most expert commentators therefore agree that the campaign violated international law. The UN Organization has struggled with this legacy, and the Security Council suffered a significant loss of legitimacy as the referee for international peace and security. That legitimacy was much needed in subsequent years in contexts ranging from Iraq to Crimea. In potential mass atrocity events such as Kosovo, do UN member states have to decide between saving civilian lives and respecting the UN Charter? The choice is unfair to law-abiding states.

The situation is also directly relevant to the international crime of aggression. Certain states have publicly expressed concern over consenting to the jurisdiction of the International Criminal Court regarding the crime of aggression, since a "humanitarian intervention" without Security Council authorization may well meet the definition of the crime. For governments, it is a vexing prospect. To date, only 39 states have consented to the ICC's jurisdiction over the crime of aggression, which was finally activated in 2018.

There is another possibility. Interpreted in a manner that respects the UN Charter, the General Assembly's Uniting for Peace resolution may provide a lawful alternative to Security Council authorization of collective action aimed at preventing atrocity crimes. Let us imagine Kosovo again. In the face of a certain veto, the Security Council members in favour of the intervention might have referred the matter to the General Assembly via procedural vote. The Assembly could then have recommended collective measures including the use of military force in order to protect the vulnerable civilian population, through a two-thirds majority vote. Through an explicit delegation of authority, those states taking up the recommendation would have acted on behalf of the UN Organization. The crime of aggression would thereby be excluded.

What is the downside to this logic? Of course, those states wishing to intervene militarily to prevent atrocities could not do so unilaterally. They would have to make the case and obtain super-majorities at both the Council and the Assembly. This is the very essence of the rule of law: having to make a compelling case before a tribunal of peers.

In deciding whether a veto has been exercised in bad faith, and whether therefore to refer a matter to the General Assembly, the Security Council may wish to consider the criteria put forward by the International Commission on Intervention and State Sovereignty and adopted at the 2005 UN World Summit:

138. Each individual State has the responsibility to protect its populations from genocide, war crimes, ethnic cleansing and crimes against humanity. This responsibility entails the prevention of such crimes, including their incitement, through appropriate and necessary means. We accept that responsibility and will act in accordance with it. The international community should, as appropriate, encourage and help States to exercise this responsibility and support the United Nations in establishing an early warning capability.

139. The international community, through the United Nations, also has the responsibility to use appropriate diplomatic, humanitarian and other peaceful means, in accordance with Chapters VI and VIII of the Charter, to help protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity. In this context, we are prepared to take collective action, in a timely and decisive manner, through the Security Council, in accordance with the Charter, including Chapter VII, on a case-by-case basis and in cooperation with relevant regional organizations as appropriate, should peaceful means be inadequate and national authorities manifestly fail to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity. We stress the need for the General Assembly to continue consideration of the responsibility to protect populations from genocide, war crimes, ethnic cleansing and crimes against humanity and its implications, bearing in mind the principles of the Charter and international law. We also intend to commit ourselves, as necessary and appropriate, to helping States build capacity to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity and to assisting those which are under stress before crises and conflicts break out.

 

Employing the Uniting for Peace mechanism, the Security Council and the General Assembly can, together, give new life to the Responsibility to Protect.