https://doi.org/10.21697/2023.12.2.02
This article explores the roles of the UN Security Council and UN General Assembly related to the 24 February 2022 invasion by Russian forces of the territory of Ukraine. It considers the Security Council’s paralysis, and suggests states make more use of the UN Charter language that requires obligatory abstention in voting of a “party to a dispute” under Chapter VI; the article also considers legality issues related to a permanent member’s veto use that aids its own jus cogens violation. As to both topics, the article suggests the General Assembly could weigh in by issuing a substantive resolution or requesting an Advisory Opinion from the International Court of Justice. The General Assembly, or the Council acting under Chapter VI, could also establish a Special Tribunal on the Crime of Aggression for the situation of Ukraine.
Pobierz pliki
Zasady cytowania
Cited by / Share
Bibliografia
70th General Assembly of the United Nations, Political Statement on the Suspension of the Veto in Case of Mass Atrocities, Presented by France and Mexico, open to signature to the members of the United Nations.
Google Scholar
A/RES/60/251 (3 April 2006).
Google Scholar
Activation of the Jurisdiction of the Court Over the Crime of Aggression, ICC-
Google Scholar
ASP/16/Res.5 (14 December 2017).
Google Scholar
Agreement between the United Nations and the Government of Sierra Leone on the Establishment of a Special Court for Sierra Leone, Residual Special Ct. Sierra Leone (16 January 2002).
Google Scholar
Andrassy, Juraj, “Uniting for Peace,” American Journal of International Law 50, no. 3 (1956): 563–582.
Google Scholar
ASP, Resolution RC/Res.6* (11 June 2010).
Google Scholar
“Blog Series: The Case for Creating and International Tribunal to Prosecute the Crime of Aggression Against Ukraine,” Just Security.
Google Scholar
Blum, Yehuda Z., Eroding the United Nations Charter. Boston: Dordrecht, 1993.
Google Scholar
Carswell, Andrew J., “Unblocking the UN Security Council: The Uniting for Peace Resolution,” Journal of Con$ict & Security Law 18, no. 3 (2013): 453–480.
Google Scholar
Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosn. & Herz. v. Serb. and Montenegro), Judgment, 2007 I.C.J. Rep. 43 (26 February).
Google Scholar
Certain Expenses of the United Nations, Advisory Opinion, 1962 I.C.J. Rep. 151 (20 July).
Google Scholar
Charter of the International Military Tribunal, Annex to the Agreement for
Google Scholar
the Prosecution and Punishment of the Major War Criminals of the European
Google Scholar
Axis (London Agreement), 8 August 1945.
Google Scholar
Charter of the United Nations, 892 UNTS 119 (1945).
Google Scholar
Conditions of Admission of a State to Membership in the United Nations (Article 4 of the Charter), Advisory Opinion, 1948 I.C.J. Rep. 57 (28 May).
Google Scholar
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984, 1465 UNTS 85.
Google Scholar
Convention on the Prevention and Punishment of the Crime of Genocide, 9
Google Scholar
December 1948, 78 UNTS 277.
Google Scholar
Corell, Hans, “A Special Tribunal for Ukraine on the Crime of Aggression –
Google Scholar
The Role of the U.N. General Assembly,” Just Security (14 February 2023). The Role of the UN Security Council & General Assembly.
Google Scholar
Da Rocha Ferreira, André, Cristieli Carvalho, Fernanda Graeff Machry, and Pedro Barreto Vianna Rigon, “Formation and Evidence of Customary International Law,” UFRGS Model UN Journal 1 (2013): 182–201.
Google Scholar
Dag Hammerskjöld Library, “Are UN Resolutions Binding?”
Google Scholar
G.A. Res. 71/248 (11 January 2017).
Google Scholar
G.A. Res. 76/262 (26 April 2022).
Google Scholar
G.A. Res. 351(IV)[A] (1949).
Google Scholar
G.A. Res. 377 A (3 November 1950).
Google Scholar
G.A. Res. ES-11/1 (2 March 2022).
Google Scholar
G.A. Res. ES-11/L.2 (21 March 2022).
Google Scholar
G.A. Res. ES-11/3 (8 April 2022).
Google Scholar
G.A. Res. ES-11/4 (13 October 2022).
Google Scholar
G.A. Res. ES-11/5 (14 November 2022).
Google Scholar
G.A. Re.s ES-11/6 (2 March 2023).
Google Scholar
G.A. Res. 70/621–S/2015/978, Annex I to the letter dated 14 December 2015 from the Permanent Representative of Liechtenstein to the United Nations addressed to the Secretary-General, Code of Conduct Regarding Security Council Action Against Genocide, Crimes Against Humanity or War Crimes (14 December 2015).
Google Scholar
General Assembly Decision 68/403, in A/68/49 (Vol. II).
Google Scholar
Geneva Convention I for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 12 August 1949, 75 UNTS 31.
Google Scholar
Geneva Convention II for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, 12 August 1949, 75 UNTS 85.
Google Scholar
Geneva Convention IV Relative to the Protection of Civilian Persons in Time
Google Scholar
of War, 12 August 1949, 75 UNTS 287.
Google Scholar
Geneva Convention III Relative to the Treatment of Prisoners of War, 12 August 1949, 75 UNTS 135.
Google Scholar
Global Centre for the Responsibility to Protect, “List of Signatories to the ACT Code of Conduct.”
Google Scholar
Green, James A., “Questioning the Peremptory Status of the Prohibition of the Use of Force,” Michigan Journal of International Law 32, no. 2 (2011): 215–257.
Google Scholar
Green, James, Christian Henderson, and Tom Ruys, “Russia’s Attack on Ukraine and the Jus ad Bellum,” Journal on the Use of Force and International Law 9, no. 4 (2022): 4–30.
Google Scholar
Hathaway, Oona A., Maggie Mills, and Heather Zimmerman, “The Legal Authority to Create a Special Tribunal to Try the Crime of Aggression Upon the Request of the UN General Assembly,” Just Security (5 May 2023).
Google Scholar
Heieck, John, A Duty to Prevent Genocide: Due Diligence Obligations Among the P5. Cheltenham, UK: Edward Elgar Publishing, 2018.
Google Scholar
Hossain, Kamrul, “The Concept of Jus Cogens and the Obligation Under the UN Charter,” Santa Clara Journal of International Law 3, no. 1 (2005): 72–98.
Google Scholar
International Commission on Intervention and State Sovereignty, “The Responsibility to Protect,” International Development Research Centre
Google Scholar
(Ottawa 2001).
Google Scholar
International Committee for the Red Cross (ICRC), Grave Breaches Speci(ed in the 1949 Geneva Conventions and in Additional Protocol I of 1977.
Google Scholar
International Criminal Court, “Assembly of States Parties to the Rome Statute.”
Google Scholar
International Criminal Court, Situation in Ukraine, ICC-01/22.
Google Scholar
International Law Commission, Dra- Articles on the Responsibility of States for Internationally Wrongful Acts, with Commentaries (adopted), UN Doc. A/56/10 (12 December 2001).
Google Scholar
International Law Commission, Report of the International Law Commission: Seventy-first Session (29 April–7 June, 8 July–9 August 2019), Chapter V Peremptory Norms of General International Law (Jus Cogens), Dra- Conclusion 23 and Annex (adopted), UN Doc. A/74/10.
Google Scholar
International Military Tribunal for the Far East, Special Proclamation by the Supreme Commander tor the Allied Powers at Tokyo, 19 January 1946.
Google Scholar
Johnston, Katie A. “Identifying The Jus Cogens Norm in the Jus Ad Bellum,”
Google Scholar
International & Comparative Law Quarterly 70, no. 1 (2021): 29–57.
Google Scholar
Jurisdictional Immunities of the State (Ger. v. It.: Greece Intervening), Judgment, 2012 I.C.J. Rep 9 (3 February).
Google Scholar
Kelsen, Hans Law of the United Nations: A Critical Analysis of Its Fundamental Problems: With Supplement. New York: Frederick A. Praeger, 1950. Reprint: Union, NJ, Lawbook Exchange.
Google Scholar
Koh, Harold Hongju, and Todd F. Buchwald, “The Crime of Aggression: The United States Perspective,” The American Journal of International Law 109, no. 2 (2015): 257–295.
Google Scholar
Kolb, R. “Does Article 103 of the Charter of the United Nations Apply Only
Google Scholar
to Decisions or Also to Authorizations Adopted by the Security Council?”
Google Scholar
Zeitschrift für ausländisches öffentliches Recht und Völkerrecht 64 (2004): 21–35.
Google Scholar
Krasno, Jean, and Mitushi Das, “The Uniting for Peace Resolution and Other Ways of Circumventing the Authority of the Security Council.” In The UN Security Council and the Politics of International Authority, edited by Bruce Cronin and Ian Hurd. Milton Park, UK: Taylor & Francis, 200.
Google Scholar
Kress, Claus. “Time for Decision: Some Thoughts on the Immediate Future
Google Scholar
of the Crime of Aggression: A Reply to Andreas Paulus.” European Journal
Google Scholar
of International Law 20, no. 4 (2009): 1129–1146.
Google Scholar
Law on the Establishment of the Extraordinary Chambers, with inclusion
Google Scholar
of amendments as promulgated on 27 October 2004, NS/RKM/1004/006.
Google Scholar
Law Society of Scotland, “Iraq: A Basis in Law?”
Google Scholar
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, 2004 I.C.J. Rep. 136 (9 July).
Google Scholar
Legal Consequences of the Separation of the Chagos Archipelago from Mauritius in 1965, Advisory Opinion, 2019 I.C.J. Rep. 95 (25 February).
Google Scholar
Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. Rep. 226 (8 July).
Google Scholar
Letter Dated 12 August 2022 from the Representatives of Latvia, Liechtenstein and Ukraine to the United Nations Addressed to the Secretary-General, at Annex: Yale Club Roundtable: A Special Tribunal for the Crime of Aggression Recommended by the UN General Assembly?, UN Doc. A/ES-11/7-S/2022/616 (17 August 2022).
Google Scholar
Linderfalk, Ulf. “The Source of Jus Cogens Obligations – How Legal Positivism Copes with Peremptory International Law,” Nordic Journal of International Law 82 (2013): 369–389.
Google Scholar
Mahmud, Salahuddin, and Sha(qur Rahman, “The Concept and Status of Jus Cogens: An Overview,” International Journal of Law 3, no. 6 (2017): 111–114.
Google Scholar
Mayr, Teresa F., and Jelka Mayr-Singer, “Keep the Wheels Spinning: The Contributions of Advisory Opinions of the International Court of Justice to the Development of International Law,” Heidelberg Journal of International Law 76 (2016): 425–449.
Google Scholar
Milano, Enrico, “Russia’s Veto in the Security Council: Whither the Duty to Abstain under Art. 27(3) of the UN Charter?,” Max Planck Institute (2015).
Google Scholar
Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), Judgment, 1986 I.C.J. Rep. 14 (27 June).
Google Scholar
“News and Views from Ukraine,” Euromaidan Press.
Google Scholar
Orakhelashvili, Alexander, Peremptory Norms in International Law. Oxford, UK: Oxford University Press, 2006.
Google Scholar
Peters, Anne “The Security Council’s Responsibility to Protect,” International Organizations Law Review 8, no. 1 (2011): 15.
Google Scholar
Prosecutor v. Dusko Tadi¬, Decision on the Defense Motion for Interlocutory
Google Scholar
Appeal on Jurisdiction, Case No. IT-94-1-AR72 (2 October 1995).
Google Scholar
Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Adoption of an Additional Distinctive Emblem (8 December 2005).
Google Scholar
Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Con4icts (8 June 1977).
Google Scholar
Reicher, Harry. “The Uniting for Peace Resolution on The Thirtieth Anniversary of Its Passage,” Columbia Journal of Transnational Law, 20 (1981): 1–34.
Google Scholar
Reisinger Coracini, Astrid, “Is Amending the Rome Statute the Panacea Against Perceived Selectivity and Impunity for the Crime of Aggression Committed Against Ukraine?,” Just Security (21 March 2023).
Google Scholar
Reisinger Coracini, Astrid, and Jennifer Trahan, “The Case for Creating a Special Tribunal to Prosecute the Crime of Aggression Committed Against Ukraine (Part VI): On the Non-applicability of Personal Immunities,” Just Security (8 November 2022).
Google Scholar
Remarks of Ambassador Linda Thomas-Green(eld on the Future of the United Nations, 8 September 2022.
Google Scholar
Reports of the Independent Commission of Inquiry on the Syrian Arab Republic.
Google Scholar
Rome Statute of the International Criminal Court, July 17, 1998, 2187 UNTS 90 (as amended).
Google Scholar
S/2022/155 (25 February 2022).
Google Scholar
S/2022/720 (30 September 2022).
Google Scholar
S.C. Res. 84 (7 July 1950).
Google Scholar
S.C. Res. 678 (29 November 1990).
Google Scholar
S.C. Res. 687 (3 April 1991).
Google Scholar
S.C. Res. 827 (25 May 1993).
Google Scholar
S.C. Res. 955 (8 November 1994).
Google Scholar
S.C. Res. 1315 (14 August 2000).
Google Scholar
S.C. Res. 1757 (30 May 2007).
Google Scholar
S.C. Res. 2202 (17 February 2015).
Google Scholar
S.C. Res. 2623 (27 February 2022).
Google Scholar
Security Council Report, “Article 27(3) and Parties to a Dispute: An Abridged
Google Scholar
History.”
Google Scholar
Sloan, F. Blaine, “The Binding Force of a ‘Recommendation’ of the General
Google Scholar
Assembly of the United Nations,” British Book of International Law 25 (1948): 1–33
Google Scholar
“Statement on Russia’s Invasion of Ukraine: A Crime of Aggression. The Need to Amend the Crime of Aggression’s Jurisdictional Regime,” Global Institute for the Prevention of Aggression (24 March 2022).
Google Scholar
Talmon, Stefan, “Jus Cogens a-er Germany v Italy: Substantive and Procedural Rules Distinguished,” Leiden Journal of International Law 25, no. 4 (2012): 979–1002.
Google Scholar
Tavernier, P. La Charte des Nations Unies, Commentaire article par article sous la direction de Jean-Pierre Cot et Alain Pellet. 2nd ed. Paris: Economica, 1999.
Google Scholar
Trahan, Jennifer, “De(ning the ‘Grey Area’ Where Humanitarian Intervention May Not Be Fully Legal, But Is Not the Crime of Aggression,” Journal on the Use
Google Scholar
of Force and International Law 2 (2015): 42–80.
Google Scholar
Trahan, Jennifer, Existing Legal Limits to Security Council Veto Power in the Face of Atrocity Crimes. Cambridge, UK: Cambridge University Press, 2020.
Google Scholar
Trahan, Jennifer. “From Kampala to New York—The Final Negotiations to Activate the Jurisdiction of the International Criminal Court Over the Crime of Aggression,” International Criminal Law Review 18 (2018): 197.
Google Scholar
Trahan, Jennifer, “Legal Issues Surrounding Veto Use and Aggression,” Case
Google Scholar
Western Reserve Journal of International Law 55, no. 1 (2023): 93–146.
Google Scholar
Trahan, Jennifer “Negotiating the Amendment on the Crime of Aggression: Proceedings at the Kampala Review Conference on the International Criminal
Google Scholar
Court,” International Criminal Law Review 11 (2011): 49.
Google Scholar
Trahan, Jennifer “Vetoes and the UN Charter: The Obligation to Act in Accordance with the ‘Purposes and Principles’ of the United Nations,” Journal on the Use of Force and International Law 9, no. 2 (2022): 243–277.
Google Scholar
Trahan, Jennifer, “Why a ‘Hybrid’ Ukrainian Tribunal on the Crime of Aggression Is Not the Answer,” Just Security (6 February 2023).
Google Scholar
UK House of Commons Library, Brie(ng Paper, Chilcot Inquiry, No. CBP 6215, 1 July 2016.
Google Scholar
“UN to Debate Security Council Permanent Member Veto Power,” Al Jazeera (19 April 2022).
Google Scholar
United Nations, General Assembly of the United Nations, “Emergency Special Sessions.”
Google Scholar
United Nations, Rules of Procedure of the General Assembly, A/520/Rev.17.
Google Scholar
Wouters, Jan and Tom Ruys, “Security Council Reform: A New Veto for a New Century?” (Royal Institute for Int’l Relations, Egmont Paper 9 August 2005).
Google Scholar
Vienna Convention on the Law of Treaties, 23 May 1969, 1155 UNTS 331, 8 ILM 679.
Google Scholar
Język Polski
English