Why I Am Skeptical of a General Assembly Resolution Endorsing an STCoA

Why I Am Skeptical of a General Assembly Resolution Endorsing an STCoA

Ambassador Rein Tammsaar, Estonia’s Permanent Representative to the United Nations, has a new post at Just Security arguing in favour of a Special Tribunal for the Crime of Aggression. He says many things I agree with, others that I don’t. In this post, I want to address what the Ambassador says about the prospect of the General Assembly endorsing a Special Tribunal:

Some claim that States should not move forward because it will be difficult to gather enough votes at the General Assembly. But this is mere speculation without a meaningful attempt to prove the contrary. Meanwhile, the required vote count is a two-thirds majority of the member States present and voting (which means that at a practical level, only “yes” and “no” votes actually matter). In private conversations and during our briefings for the wider U.N. membership, there has been no straightforward rejection of the idea of an international Tribunal. To the contrary, when it comes to accountability to preserve the current legal order with the U.N. and Charter at its core, countries have been rather united and supportive.

I appreciate the Ambassador’s optimism, but I don’t share it. It is true that a resolution has not been introduced and rejected,  but it is hardly “mere speculation” to be skeptical of General Assembly support. On the contrary, my skepticism is based on five interrelated considerations.

First, there are the voting patterns in the General Assembly on Russia-related resolutions. As I have noted before, although large number of states have been willing to vote for resolutions that merely condemn Russia’s aggression against Ukraine, far fewer have been willing to vote for resolutions that impose actual consequences on Russia. Thus Res. ES-11/1 was adopted 141-5-35, while Res. ES-11/3, removing Russia from the Human Rights Council, was adopted 93-24-58 and Res. ES-11/5, calling for an international reparations mechanism, was adopted 94-17-73. Neither resolution, therefore, was endorsed by even a bare majority of the UN’s membership. Moreover, the geographic distribution of votes on Res. ES-11/3, which was essentially replicated for ES-11/5, indicates much greater support in the West than in the Global South: 63% of the states in the Middle East, 61% of the states in Africa, and 40% of the states in Latin America and the Caribbean either voted against Res. ES-11/3 or abstained on it. By contrast, 100% of the states in the Western Europe and Others group voted in favour of the resolution.

The consequences contemplated by Resolutions ES-11/3 and ES-11/5 pale in severity in comparison to the consequences contemplated by an STCoA resolution: individual criminal responsibility, even for officials entitled to personal immunity. So it is difficult to see an STCoA resolution getting anywhere near the number of votes that Res. 11/3 or Res. 11/5 received — to say nothing of Res. ES-11/1. After all, the African Union, which represents 55 states, is deeply committed to personal immunity, insisting that not even the ICC has the power to prosecute a sitting head of state.

Second, there is the lack of geographic diversity in the two main groups that have been specifically discussing the creation of an aggression tribunal. One, the Friends of Accountability, which has not taken a position in the international vs. internationalized debate, has 48 members. Of those 48, four are from the Global South — Ecuador, Colombia, Guatemala, and the Marshall Islands — and none are from Africa, Asia, or the Middle East. The other, the Core Group for Accountability, which seems to be leaning towards an STCoA, has 37 members. Of those 37, three are from the Global South — most likely (membership is not public) the same states that are part of the Friends of Accountability. There are 77 states in the Global South, according to the United Nations’ Finance Center for South-South Cooperation. So 4% of Southern states are part of the Core Group and 5% are part of the Friends of Accountability.

Third, not all Western states support an STCoA. As readers no doubt know, the G7 has formally endorsed an internationalized tribunal over an international one. The G7 includes the US, the UK, France, Germany, Italy, Japan, and Canada. (The communique was also issued on behalf of the High Representative of the European Union, though I’m not sure what that means. The European Parliament has endorsed an STCoA.)

Fourth, there is the fate of the draft General Assembly resolution circulated toward the end of 2022. According to a long and detailed 20 December 2022 PassBlue article by Dawn Clancy, “[f]or months, Sergiy Kyslytsya, Ukraine’s ambassador to the United Nations, alongside Christian Wenaweser, Liechtenstein’s envoy, have been leading an effort at the UN to produce a draft resolution to support the notion of establishing an international tribunal.” An early version of the draft resolution explicitly called upon the UN Secretary-General, António Guterres, to “negotiate an agreement with the Government of Ukraine to create an independent international tribunal with jurisdiction over crimes of aggression committed against Ukraine.” That version obviously failed to attract sufficient state support, because the STCoA language was later replaced by much weaker language calling on Member States “to consider appropriate actions to pursue comprehensive accountability” for crimes “committed against Ukraine” that “must not go unpunished.”

Fifth, and finally, there is the dearth of statements in support of an STCoA in the lead-up to the General Assembly adopting Res. ES-11/6  — “Principles of the Charter of the United Nations underlying a comprehensive, just and lasting peace in Ukraine” — on 23 Feb. 2023. The resolution contains waffle language similar to the draft resolution, merely emphasizing “the need to ensure accountability for the most serious crimes under international law committed on the territory of Ukraine through appropriate, fair and independent investigations and prosecutions at the national or international level.” More importantly, though, very few states defended an STCoA during three Emergency Special Session meetings (see here and here) that preceded the resolution’s adoption. Indeed, I count only eight: Ukraine, Guatemala, Estonia, Liechtenstein, Luxembourg, Czech Republic, and Latvia. To be sure, I have not examined every General Assembly meeting during which a Special Tribunal might have been mentioned, and there are obviously far more than eight states in favour of an STCoA. But the lack of discussion of an STCoA during General Assembly meetings held nearly a year after Russia’s invasion is still notable.

It is entirely possible, of course, that support for an STCoA will grow over time. When it comes to diplomacy, very little is set in stone. But these five considerations augur ill for an STCoA — particularly the dearth of interest in the Global South and the collective opposition of the G7, powerful states with vast diplomatic resources and influence. Moreover, it’s not as if STCoA supporters haven’t been trying. As Clancy’s article indicates, efforts to build support for an STCoA have been going on behind the scenes for at least nine months — and probably longer. And yet, despite those efforts, the most the Ambassador can say is that “there has been no straightforward rejection of the idea of an international Tribunal.” That summary of the state of play should concern STCoA supporters most of all.

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Courts & Tribunals, Featured, International Criminal Law, International Human Rights Law, International Humanitarian Law, Organizations, Public International Law, Use of Force
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