Gaza, Genocide, and the UN General Assembly (Part 2)

[Dr Jane Rooney is an associate professor in international law at Durham Law School, UK]

Part 1 considered the legal authority of the Independent International Commission of Inquiry on the Occupied Palestinian Territory, including East Jerusalem, and Israel (COI report) and the extent to which it could be used to legitimise decision-making of the UN General Assembly (UNGA). Part 2 considers whether the UNGA has the legal authority and should recommend UN Member States to issue sanctions against Israel until it fully complies with the ceasefire agreement, and (ii) whether states following those recommendations can do so legally.

Can the UNGA Make Recommendation to Impose Sanctions? 

The COI report recommendations include for all states to ‘employ all means reasonably available to them to prevent the commission of genocide in the Gaza Strip’; and ‘to cease the transfer of arms and other equipment or items, including jet fuel, to the State of Israel or third States where there is reason to suspect their use in military operations that have involved or could involve the commission of genocide’ (p 21-22). 

Barber notes that sanctions have a particular value as a means of punishing or deterring perpetrators of human rights atrocities. They can also deprive individuals, entities, and states of the means to commit human rights atrocities through embargoes on arms and other resources that facilitate the commission of atrocity crimes. Article 41 UN Charter states that ‘(t)he Security Council may decide what measures not involving the use of armed force’ should be imposed to give effect to its decisions, including ‘complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations’. In practice most sanctions are imposed without Council authorisation and instead the UNGA is recognised as the competent organ of the UN that recommends such measures. Security Council resolutions under article 41 are binding whereas UNGA resolutions are non-binding. The UNGA has recommended sanctions/cessation of the sale and supply of arms in relation to, for example, Israeli aggression against Iraq (UNGA Res 36/27 (1981)) and Israel’s occupation of and aggression against the Palestinian territories (UNGA Res 42/209B (1987)). 

In relation to genocide, Article VIII of the Genocide Convention recognises a role for ‘competent organs of the [UN] to take such action under the [UN Charter] as they consider appropriate for the prevention and suppression of acts of genocide’. The reference to ‘organs’ here envisages a role for the UNGA to advance the object and purpose of the Genocide Convention. Others such as Barber, O’Rourke, and Trahan express the very pressing need for the UNGA to take a more proactive role in suppressing genocide when the Security Council is paralysed by the veto. The UNGA has recommended sanctions against various perpetrators of breaches of jus cogens norms, including arms embargos (UNGA Res 500(V) (18 May 1951), UNGA Res 1474 (ES-IV) 20 September 1960), break off diplomatic relations, boycott trade (UNGA Res 2107 (XX) 21 December 1965), and blockades (UNGA Res 36/103, 9 December 1981). 

The UNGA has an important role in both recognising the commission of atrocity crimes and coordinating sanctions in the past. The UNGA needs to take more proactive steps in suppressing genocide by coordinating sanctions as a first step. The UNGA can make recommendations especially when states and IOs have already begun to do so. In the context of atrocity crimes in Gaza, the Norwegian Sovereign Wealth Fund has divested from Israeli companies as a result of the humanitarian crisis, and the European Union has threatened sanctions and tariffs against Israel. Similarly, the UK has considered sanctions against Israel but the current ceasefire deal has stopped the EU and UK from acting. The added value of the Assembly resolution is coordination, solidarity, and an international recognition that the genocide is ongoing. Depending upon how many states vote in favour of the resolution, it could arguably be treated as prescriptive.

Legality of State Action Pursuant to UNGA Recommendation

The literature expresses concern about how to characterise state action pursuant to UNGA resolutions and the legal ramifications of such classification: can a UNGA resolution protect a state if it is accused of breaching other international obligations by acting pursuant to a UNGA resolution calling for an arms embargo or sanctions on trade? ‘Multilateral’ means mandated by the Security Council Resolution (UNSCR) under Chapter VII of the UN Charter. These collective actions are binding and have a peremptory status under international law. This means that a state can point to the UNSCR as a hierarchically superior law to which it is bound when faced with allegations of breaching another norm of international law. Article 103 UN Charter is noted in this regard: ‘In the event of a conflict between the obligations of the Members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail’. However, states cannot breach fundamental human rights in carrying out obligations under UNSCRs.

UNGA resolutions are not binding and do not by themselves provide legal protection for states when faced with allegations of breaching other international law while acting pursuant to the UNGA resolution. Action pursuant to UNGA resolutions can often be characterised as unilateral and therefore fall under the law of countermeasures detailed in the ILC articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA). Tzanakopoulos clarifies that unilateral sanctions are countermeasures and therefore must comply with the rules on countermeasures. There are further limitations on the use of unilateral coercive measures outlined in the UNGA Draft Declaration on Unilateral Coercive Measures and the Rule of Law which seeks to curtail the abuse of unilateral measures, for example, when a state imposes sanctions on a ‘whim’ or in a way that has a disproportionate impact on human rights. 

In the context of genocide, guidance in the Fifth report of the Special Rapporteur on Peremptory norms of general international law (jus cogens) Mr. Dire Tladi (73rd session of the International Law Commission (2022) (2022 ILC Report) suggests that action pursuant to a UNGA resolution on genocide is collective, but that states still must comply with law on countermeasures. Conclusion 19 recognises an obligation on all states to bring to an end ‘serious breaches’ of international law. A ‘serious’ breach of a jus cogens norm is one that involves a ‘gross or systemic failure by the responsible state to fulfil that obligation’. The 2022 ILC Report provides (p. 72):

international law does not prohibit unilateral measures to bring to an end a serious breach of a peremptory norm if they are consistent with international law (consistent with law on countermeasures). But the emphasis is on collective measures. The collective system of the United Nations is the preferred framework for cooperative action. 

This is an indication that when action is taken to prevent or suppress genocide, the ILC recommends collective measures through the UN. The ILC and ICJ sees the primary body for coordinating these collective measures as the UNGA resolutions. When it aims to address a ‘serious’ breach of a peremptory norm the action taken pursuant to a UNGA resolution is collective. 

The ICJ clarifies that ‘the United Nations, and especially the General Assembly and the Security Council, should consider what further action is required to bring to an end the illegal situation’ (Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory). In the 2022 ILC Report, the vast majority of the examples of UN resolutions used to illustrate this collective duty to cooperate to bring to an end serious breaches of peremptory norms are UNGA resolutions, not UNSCRs. There is a recognition of the foremost role of the General Assembly over the Security Council in coordinating state action to suppress the commission of atrocity crimes. The 2022 ILC Report invokes the Wall Advisory Opinion to say that ‘over and above collective action, there is an obligation on individual states to make efforts to bring situations created by the breach to an end’. The framework for stopping genocide is at its most basic, a collective action, and then states must themselves act individually to bring to an end the serious breach. The report continues that conclusion 19 has particular consequences for:

cooperation with the organs of the UN…the obligation to cooperate imposes a duty on the members of that international organisation to act with a view to the organisation exercising that discretion in a manner to bring to an end the breach of [jus cogens] norm.

The ILC clearly envisages the legal authority of the UNGA in coordinating action. A UNGA resolution recommending arms embargos and sanctions against Israel for the commission of genocide may have significance in the interpretation of the ICJ both in relation to the case before it brought by South Africa and in any disputes arising from the use of sanctions by member states of the UN. The 2022 ILC Report states that jus cogens norms ‘reflect and protect fundamental values of the international community. They are universally applicable and are hierarchically superior to other rules of international law’ (Conclusion 2). A UNGA resolution taking action to suppress genocide would be read in light of the hierarchically superior character of the responsibility on all states to prevent serious breaches of this norm.

It is argued that such action pursuant to a UNGA resolution would be compliant with the law on countermeasures. Countermeasures are circumstances precluding wrongfulness of what would otherwise constitute an internationally wrongful act. ARSIWA sets out the rules that need to be met in order for states to comply with the law on state responsibility when adopting unilateral sanctions. The target state must have perpetrated an internationally wrongful act for which the third state has become responsible (art 51 ARSIWA); the state issuing the unilateral sanction must prove it is injured by that act (art 43 ARSIWA); the state must comply with substantive and procedural requirements for resort to counter measures including proportionality of measures (art 51 ARSIWA); calling upon the target state to cease the violation notifying its intention to take countermeasures and suggesting negotiations (art 55 ARSIWA). 

The first condition is met: the target state is Israel. If we characterise the actions of Israel as genocide it is an internationally wrongful act for which the third party has become responsible. Conclusion 19 of the 2022 ILC Report above indicates the duty owed by all states to take measures to prevent and suppress genocide. Second, the state issuing the sanctions must prove that it is an injured state. Conclusion 17 states that ‘Peremptory norms are obligations owed to the international community as a whole’ (erga omnes). This is reflected, for example, by the fact that the rules on standing at the ICJ are modified when there is a breach of the Genocide Convention. In Gambia v Myanmar it was confirmed that a state does not have to be ‘specially affected’ by the respondent state breach of the international obligation to invoke the responsibility of the latter state and have standing at the ICJ because of the alleged failure to comply with its obligations erga omnes – obligations owed to the whole international community. 

In cases where the obligation is owed to the international community as a whole (art 48 ARSIWA) indirectly injured states may react to the breach including ‘countermeasures in general interest’ (art 54- ARSIWA). The peremptory status of genocide is confirmed by the ICJ (Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro, p. 43). The ICJ notes the ‘universal character of the condemnation of genocide’ as it ‘shocks the conscience of mankind and results in great losses to humanity…’ (Reservations to the Convention on the Prevention and Punishment of the Crime of Genocide, p. 23). Member States of the UN can invoke sanctions as injured states.

The third condition under consideration here is proportionality: ‘Countermeasures must be commensurate with the injury suffered, taking into account the gravity of the internationally wrongful act and the rights in question’. Cumulatively, the measures taken by different states and IOs against a particular state’s conduct must be commensurate with the injury suffered by relevant actors on account of the perpetrator’s actions. Countermeasures cannot affect certain obligations, particularly obligations of a human rights or humanitarian character. It is argued that coordinated sanctions to suppress the genocide is proportionate. Margo Kaplan notes in this regard that ‘prohibiting collective countermeasures would ‘illogically…prohibit all parties owed an obligation from reacting to the most serious and systematic violations of peremptory norms that international law has recognised as being most grave’. In the case of atrocity crimes, including genocide, it is argued that collective sanctions is a proportionate measure.

Conclusion

The UNGA is to be commended for taking the leading role in coordinating member state action since 7^th October 2023. But the UNGA could do more to protect lives on the ground by recognising the continuation of genocide in Palestine and acting accordingly.