Uniting for MH17

Abstract

Russia’s veto in the Security Council of a proposed ad hoc tribunal for the Malaysia Airlines Flight MH17 disaster prompts consideration of alternative mechanisms to bring the offenders to justice. It is arguable that the General Assembly, drawing upon the text of the UN Charter and the Uniting for Peace mechanism, possesses the constitutional powers to establish the tribunal. The unique features of the General Assembly, comprising the international community, also mean that it is able to act in a way that would facilitate the functioning of an ad hoc tribunal, even in the absence of mandatory powers. Although many practical obstacles lie ahead, an ad hoc tribunal established by a broad coalition in the General Assembly may offer the best hope in securing accountability for the MH17 disaster.

The Expulsion of a Permanent Member of the UNSC from the UN

“…As the ICJ has concluded: 'in connection with the suspension of rights and privileges of membership and expulsion from membership under Articles 5 and 6, it is the UNSC which has only the power to recommend and it is the General Assembly which decides and whose decision determines status; but there is a close collaboration between the two organs.' 20 In 1950 the General Assembly decided that Trygve Lie, Secretary-General at the time, 'shall be continued in office for a period of three years.' 21 This deciosion was made despite the fact that the Secrurity Council was blocked 22 and the fact that, according to Article 97 of the Charter Secretary-General can be appointed by the General Assembly upon the recommendation of the UNSC.…”

“…cit., note 18. 20 Certain expenses case https://www.icj-cij.org/public/files/case-related/49/049-19620720-ADV-01-00-EN.pdf, 16, accessed 3 November 2022. 21 Continuation in office of the Secretary-General of the United Nations https://www.…”

A New Life for Uniting for Peace?

“…Back to the invasion of Ukraine, its activation in the conflict has not been without criticism: although six different resolutions have been adopted during the 11 th emergency special session, none of them contain concrete measures in the field of collective security to confront aggression or in the coordination of unilateral sanctions against Russia (Arcari, 2022: 10-11, 17-18). Scholars have proposed the Assembly could act as a forum to certify if such unilateral sanctions are valid under international law in order to prevent illegal measures and contribute to the obligation of states to cooperate to end violations of international law (Barber, 2022;Ramsden, 2022). However, this has not occurred to date.…”

Victims’ Right to Justice, Immunities and New Avenues for International Criminal Justice

“…However, as long as the SC is not at that very moment actively dealing with the situation over which an eventual ad hoc international criminal court would exercise its jurisdiction, the GA would not be prevented from exercising its power to make recommendations endorsing said body.123 The inability of the SC, due to a lack of unanimity among its permanent members, to adequately respond to situations where international peace and security is threatened, has been increasingly interpreted, since the Uniting for Peace Resolution,124 as opening the door for the GA to act.125 While a renewed emphasis on the GA's secondary responsibility for peace and security is taking place, the ICJ in the Certain Expenses case, issued in the midst of the Cold War, had already confirmed this liberal interpretation of the GA's power in matters of peace and security.126 Some authors have called for the GA's creation of ad hoc tribunals under the Uniting for Peace doctrine in situations where the SC fails to assume its responsibility to protect. 127 The purpose of the GA recommendation as here explored, is not to create a subsidiary body with judicial powers. Rather, the recommendation would simply promote a treaty-based court, which it deems sufficiently impartial, independent and fair, as an organ acting at the behest of the international community.…”