Issue Brief

Protecting Civilians & Human Security Program

Atrocities Prevention Study Group Project

Whither Atrocity Prevention at the UN? Look Beyond R2P and the Security Council

U.N. bodies outside the Security Council have continued to make substantive — if overlooked — contributions to atrocity prevention objectives

By Federica D’Alessandra • Gwendolyn Whidden

Protection of Civilians

November 6, 2023

Almost twenty years after the adoption of the Responsibility to Protect (R2P) norm, skepticism about R2P has taken many forms, in light of both discrepancies in how R2P has been operationalized and broader perceptions around its legitimacy and politicization. However, if we look beyond both Security Council inaction and controversy around R2P, we see that other U.N. bodies have continued to make substantive — if overlooked — contributions to atrocity prevention objectives, irrespective of whether they ascribe or directly link their work to R2P or the atrocity prevention agenda. Strengthening and cohering atrocity prevention tools, capacities, and strategies across the U.N. both within and beyond these bodies might at least preserve — if not expand — an otherwise shrinking space for human rights and human protection agendas.

Executive Summary

What is the state of affairs of atrocity prevention at the United Nations (UN), and what can be done to operationalize the agenda moving forward? Almost twenty years after the adoption of the Responsibility to Protect (R2P) norm, skepticism about R2P has taken many forms, in light of both discrepancies in how R2P has been operationalized — including where interventions have taken place, and criticism of its “coercive dimension”¹ — and broader perceptions around its legitimacy and politicization. Indeed, as others have pointed out, most actors today — whether states or civil society groups — forgo R2P language to even describe situations of mass atrocity, suggesting they are either less convinced of the norm’s validity, or at least the ability of invoking R2P to mobilize a collective response.² In addition, for at least the past decade, the U.N. Security Council has been in a virtually permanent state of paralysis when faced with mass atrocity scenarios,³ such that observers now speak of a norm in “decline,” when not of its “death” altogether.⁴

If correct in many respects, we believe this view obscures a more complex and nuanced reality: that beyond R2P’s own normative trajectory and the well-documented failures of the Security Council, the broader atrocity prevention agenda is nonetheless firmly grounded in international law and has continued to be operationalized across the U.N. system, even when not framed in such terms. This paper therefore aims to critically probe the predominant assumption that the U.N. no longer plays a meaningful role in global atrocity prevention and response efforts, particularly with the alleged “decline” of the R2P norm over the past decade. Our key argument is that if we look beyond both Security Council inaction and controversy around R2P, we see that other U.N. bodies have continued to make substantive — if overlooked — contributions to atrocity prevention objectives, irrespective of whether they ascribe or directly link their work to R2P or the atrocity prevention agenda.

Because a mapping exercise of the entire U.N. system is beyond the scope of this paper, we limit our analysis to key U.N. bodies involved in “targeted” measures in response to country-specific atrocity situations, given that efforts to prevent atrocities “upstream” overlap with numerous separate if not related U.N. agendas, including conflict prevention and peacebuilding. We focus our case studies specifically on justice and accountability efforts at the U.N. General Assembly (UNGA), the U.N. Human Rights Council (HRC), and the International Court of Justice (ICJ), which we believe have made the most direct and innovative contributions to operationalizing atrocity prevention over the past decade, and thus best empirically demonstrate our argument.

Our analysis surveys a variety of current efforts. First, at the UNGA, we look at (i) its practice of making “legally relevant” (or what some call “quasi-judicial”⁵) determinations with respect to atrocity situations, as well as how these are increasingly being leveraged to support justice and accountability efforts; (ii) its historic establishment of a “pre-prosecutorial”⁶ body tasked with investigating international crimes committed in the Syrian civil war and supporting third-party legal proceedings;⁷ and (iii) its ongoing consideration, following work by the International Law Commission, of a draft convention on crimes against humanity.⁸ Second, with respect to the HRC, we focus on its “accountability turn”, meaning its active role since 2011 in mandating investigations of alleged mass atrocities in a variety of country situations,⁹ including by establishing an investigative body for the situation in Myanmar similar to that created by the UNGA for Syria.¹⁰ Finally, turning to the ICJ, we consider the numerous state proceedings dealing with situations of atrocity crimes now before its judges, as well as their potential consequences.

Based on our empirical analysis, we contend that these three bodies might be considered “alternative” sites through which U.N. member States have continued to operationalize some of the core objectives of the atrocity prevention agenda over the past decade, and thus helped sustain and advance the UN’s broader protection role. Crucially, we argue, these developments have occurred despite contestation around the R2P norm itself, and precisely in response to gridlock, failures, and limitations afflicting other U.N. organs with which atrocity prevention efforts are more traditionally associated, including and specifically the Security Council. This, we further contend, is evidence of continued efforts among U.N. member States to advance atrocity prevention institutions and commitments, and of a collective will to adapt human protection and prevention agendas to a new geopolitical reality — even in the face of significant political and institutional challenges, and despite ongoing norm contestation.

Of course, this analysis raises the question of how effective accountability mechanisms are in practice. In this regard, we dispute neither the significant challenges they face to operating effectively nor their limited ability to provide immediate protection to populations at risk. We propose, instead, that in the face of significant pushback on human rights issues at the U.N., solidifying the UN’s atrocity prevention infrastructure by strengthening the institutionalization of its underlying laws and principles both (i) makes it more difficult for detractors, particularly those abusing their veto power to paralyze the UNSC, to continue to unilaterally block international action, and (ii) is a key strategy — if not currently the only one — to counterbalance the systemic challenge such states pose to the human rights system overall. In line with this view, we advance a set of policy recommendations to strengthen and cohere atrocity prevention tools, capacities, and strategies across the U.N. both within and beyond the bodies we survey, precisely to at least preserve — if not expand — an otherwise shrinking space for human rights and human protection agendas.

Introduction

If the breakdown of Security Council diplomacy over meaningful response to the Syrian civil war is often cited as the first sign of the decline of the atrocity prevention agenda at the U.N., the Council’s inaction over Russia’s full-scale invasion of Ukraine — and the horrific atrocities perpetrated in its wake — has returned the UN’s crisis of legitimacy over its ability to prevent and respond to mass atrocities to the forefront of international affairs. Despite mounting evidence of Russia’s war crimes during one of the most blatant instances of state aggression in the history of the U.N., the Council has failed once again to adopt any measures in response. It is well known, however, that Security Council gridlock has been ongoing since well before the war in Ukraine. Over the past ten years, even limited cooperation on responding to mass atrocities among the Council’s five permanent members (P5) has almost entirely collapsed, as evidenced by the persistent use of the veto or its threat — particularly by China and Russia¹¹ — to block action in response to horrific human rights abuses committed in Syria, Myanmar, Xinjiang, and North Korea, just to name a few.¹² Given its protractedness and high degree of visibility, this state of affairs in the Council has created a general — and not unreasonable — perception that the role of the U.N. in global atrocity prevention and response has declined (if not become nearly irrelevant), and that efforts to advance the atrocity prevention agenda operationally have all but been abandoned.

The “Death” of the Responsibility to Protect?

Critics often attribute the increased use of the veto in the Security Council over the past decade almost exclusively to block action in situations of mass atrocity to the “death” or “decline” of the Responsibility to Protect (R2P) norm, particularly with respect to its third pillar.¹³ They highlight the norm’s “loss of legitimacy” after the controversial 2011 NATO military intervention in Libya authorized by UNSC Resolution 1973,¹⁴ such that today Council members — as do most actors — refrain from framing atrocity situations in terms of R2P, and almost never reach a consensus on how to collectively respond.¹⁵ In addition to controversy over Resolution 1973, others point to a persistent lack of political will among U.N. member States to fully implement R2P.¹⁶ Given that these controversies and failures are widely (and, we argue, incorrectly) taken to indicate an erosion of the normative foundations underpinning R2P — i.e., that the risk or commission of mass atrocities activates an international responsibility to respond to them — it is perhaps unsurprising that the U.N. is assumed by many to no longer be a key player meaningfully involved in global atrocity prevention and response efforts.

To be sure, norm contestation around R2P since 2011 has been acute,¹⁷ and many scholars, policymakers, and practitioners remain skeptical or critical of the norm on a variety of grounds. Some continue to express reservations about the political and legal complexities of implementing its third pillar in particular — i.e., taking action through the Security Council in the face of a state’s failure to protect its own population from atrocity crimes, especially although not exclusively where this requires coercive measures — while others, particularly in the Global South, criticize bias and double-standards in the norm’s application and/or are suspicious of its use as a “smokescreen” for Western interventionism.¹⁸ In short, precisely as a result of its vague content and contested status, depending on where the critic is situated and the function they do or do not want the norm to serve, R2P has done either “too little” or “too much”:¹⁹ by failing to mobilize interventions when necessary; by failing to provide equal protection to all populations at risk around the world; by allowing states to use humanitarian intervention as a pretext to interfere in other states’ domestic affairs; or by leading to diplomatic fallout when states do take action in line with the norm’s prescriptions.²⁰

The Geopolitical Dimension and Challenge of “Great Power Perpetrators”

Such contestation around R2P has undoubtedly contributed to the breakdown of Security Council diplomacy over responding to mass atrocities, but it is not the sole culprit. As argued elsewhere,²¹ it is crucial to recognize that the broader context in which this crisis of diplomacy has occurred matters equally if not more. In other words, Security Council gridlock in mass atrocity situations over the past decade cannot simply be ascribed to norm contestation and R2P’s “death” or “decline.” The roots of this crisis are both broader and deeper, and can be traced, in the first place, to a shifting geopolitical environment and the great power dynamics it is producing. Whereas the adoption of R2P was enabled by a unique geopolitical environment defined by unprecedented multilateral cooperation and liberal international politics — made possible by the end of the Cold War and the “unipolar moment” of the U.S. — the past two decades have seen a shift toward a multipolar world order and increased great power rivalry.²² This, in turn, has led to the rise of the “great power perpetrator”: a P5 directly involved in the commission of mass atrocities — think China in Xinjiang, and Russia in Ukraine — while abusing its institutional privilege to block international action through the veto, and systematically contesting key laws and norms that underpin both protection agendas such as atrocity prevention, and the multilateral system itself.²³

Indeed, as one of us wrote elsewhere, we believe the rise of the “great power perpetrator” is one of the — if not the — biggest contemporary and systemic challenges to the state and progress of atrocity prevention, for at least three reasons. First, by simultaneously leveraging multiple dimensions of “great power” — including institutional power by virtue of its P5 membership; productive power by virtue of its prominence and role in norm life cycles; and systemic power, by virtue of its ability to leverage political, economic, and military dependencies to align the positions of other states with its interests — it poses a “system-level” challenge to the U.N. in its unmatched ability to grind multilateral action to a halt. Second, in doing so, the great power perpetrator turns on its head the very foundation upon which R2P was built — that is, the promise of P5 guardianship, rather than abuse, of the international peace and security architecture. Finally, the rise of the great power perpetrator challenges the theoretical assumptions upon which the atrocity prevention field was itself conceived — i.e., that atrocities are committed by weak and failed states or non-states armed groups, rather than great powers with unmatched capabilities, influence, and resources. Precisely on these latter grounds, we believe that the increased role of great powers in the direct commission of atrocities may call for a review of the tools currently available to policymakers in the atrocity prevention toolkit, for they were conceived to respond to atrocities committed by actors pulling on radically different levers of power than those available to the great power perpetrators now committing the abuse.²⁴

In short, it is this shifting geopolitical environment and a broader pattern of great power abuse of the norms and architecture of the multilateral system — not simply norm contestation around R2P — that has led to the protracted breakdown of P5 diplomacy over mass atrocities we are witnessing today.²⁵ Situating Security Council gridlock within this broader geopolitical context rather than attributing it solely to R2P’s controversies, we submit, is vital to both accurately assess the state of affairs of atrocity prevention at the U.N. today, and to determine how to best advance the agenda moving forward. For it both challenges the predominant assumption that Security Council gridlock over mass atrocities reflects an erosion of the underlying normative support among U.N. member States on the need to prevent and respond to atrocity crimes, and suggests that a narrow focus on Security Council reform as the “solution” is misguided.

In fact, there have been several initiatives over the past decade to restrain the use of the veto in mass atrocity situations, including the French Mexican initiative for the P5 to voluntarily suspend veto use and the Code of Conduct initiative, which calls upon all Security Council members to not vote against any credible draft resolution intended to prevent or halt atrocity crimes, as well as the more recent Veto Initiative adopted by the U.N. General Assembly calling for a meeting to force the veto-yielding P5 to publicly justify and defend its exercise of such power.²⁶ As others have noted, however, given that these initiatives call for voluntary restraint, and that it is unlikely that China and Russia (or, where relevant, the United States — the only other P5 to have exercised its veto power in the last decade) will join them, they do not provide a long-term solution to the problem of veto use, beyond perhaps increasing the political cost P5 pay for abusing the veto.²⁷ Structural reform of the Security Council, including reforms of its composition and voting rules, appears to be an even more distant prospect today, precisely because it requires exceptionally broad agreement among U.N. member States, and/or the (nearly impossible to achieve) unanimous consensus of the P5.²⁸

If the Security Council were the only U.N. body relevant to operationalizing the atrocity prevention agenda, the role of the U.N. in atrocity prevention and response might indeed be considered irrelevant as long as this geopolitical context of great power rivalry persists. We believe, however, the reality is more complex and nuanced: while this state of gridlock in the Council is deplorable, the geopolitical dynamics underlying it are unlikely to change soon, and prospects for structural Security Council reform remain distant, we submit that the atrocity prevention agenda has and can continue to be advanced at the U.N. in alternative ways. This is precisely because the validity of the laws, norms, principles, and human protection objectives that underpin R2P — regardless of the norm’s doctrinal formulation — remain legitimate, such that concerned states are attempting to carve out alternative avenues for action in accordance with their human rights obligations and other international law commitments.²⁹

More Than Meets the Eye? A Shift in Perspective

More specifically, a parallel countertrend at the U.N. appears to be emerging, which is partly (although not exclusively) rooted in Security Council paralysis: other U.N. bodies are increasingly and more forcefully acting on their residual Charter-based responsibilities with respect to preventing and responding to atrocity crimes, precisely to create alternatives to an untenable status quo.³⁰ For example, we have witnessed numerous resolutions adopted by the U.N. General Assembly (UNGA) condemning abuses in Myanmar, Palestine, and Ukraine, among many other country situations — some clearly intended to make findings with respect to certain international law questions.³¹ We have also seen the UNGA and the U.N. Human Rights Council (HRC) take unprecedented steps to uphold and support accountability for some of these abuses — including of a criminal nature — through appointing international investigations with “judicially-adjacent” accountability mandates to probe allegations of atrocity crimes.³² These investigative bodies now play a crucial role in gathering and preserving evidence of perpetrators’ culpability to support judicial proceedings, which in turn has led to calls for the permanent institutionalization of this model.³³ Other important developments concern the UNGA’s ongoing consideration of a draft convention on crimes against humanity,³⁴ and a growth — or “cascade” ³⁵ — of international judicial proceedings dealing with atrocity crimes, some of which now fill the docket of the International Court of Justice (ICJ).³⁶

These novel justice and accountability mechanisms, discussed in further detail below, are rarely — if ever — thought of as atrocity prevention efforts or as part of the UN’s broader protection role. This is perhaps because none of these bodies ascribe action they take with respect to atrocity situations to R2P, or frame their work as a deliberate effort to advance the atrocity prevention agenda. Yet, each of these developments is a practical example of how different U.N. entities contribute to advancing atrocity prevention institutions and commitments today, and of how atrocity prevention has continued to take shape and evolve at the U.N. — despite Security Council gridlock, and if under different banners. In fact, it is likely that these accountability mechanisms are rarely conceived of as “atrocity prevention” precisely because the UN’s role in protecting populations is more traditionally associated with Security Council intervention. However, robust atrocity prevention requires not only swift response to situations of risk, but a variety of capacities and strategies at multiple stages, including upstream prevention and the pursuit of post-hoc justice and accountability.³⁷ Thus, too narrow a focus on R2P and Security Council interventions as indicative of the status of atrocity prevention is misguided, for it obscures the emergence of other tools, capacities, and strategies across the U.N. system.

In sum, if it is true that Security Council gridlock has hindered the UN’s role in preventing and responding to mass atrocities as it is more traditionally conceived — i.e., timely and decisive intervention by the Council — it appears that many other parts of the U.N. are now significantly contributing to atrocity prevention objectives, and might be considered “hidden” or “alternative” sites of efforts at the U.N. to operationalize the atrocity prevention agenda. Only by assessing these broader trends — whether or not they are couched in R2P language — can we fully appreciate how atrocity prevention at the U.N. has continued to evolve and advance. Such an assessment, in turn, can both guide efforts to strengthen and cohere the various atrocity prevention tools and strategies that have emerged across the U.N. system, and serve as a “roadmap” of alternative actions states can consider taking in response to country-specific atrocity situations where Security Council action is foreclosed. On this premise, this paper aims to overview some of these under-the-radar developments at the U.N., both to appraise the state of affairs of atrocity prevention today, and to shed light on how interested states can advance the agenda moving forward, irrespective of R2P’s own normative trajectory, and the dynamics of the Security Council.

Case Selection

There are potentially numerous “hidden” or “alternative” sites of atrocity prevention at the U.N., particularly with respect to “upstream” or “systemic” prevention.³⁸ This is because efforts to prevent atrocities upstream, which involves mitigating and strengthening societal resilience to risk factors for atrocity crimes, often overlap with well-established conflict prevention, peacekeeping, and peacebuilding measures within the U.N. system, including democratization, good governance, economic development, and human rights promotion, just to name a few.³⁹ The further away from the actual commission of atrocities U.N. action takes place, the more measures to prevent atrocity crimes align with conflict prevention and peacebuilding measures more broadly.⁴⁰ For this reason, the possible contributions different U.N. entities might be making to atrocity prevention objectives, whether deliberately or incidentally, are myriad — be it the Security Council, the General Assembly, the Joint Office on Genocide Prevention and the Responsibility to Protect, the Human Rights Council, the International Court of Justice, through Special Representatives of the Secretary-General, as well as the Department of Political and Peacebuilding Affairs, the Department of Peace Operations, the Office for the Coordination of Humanitarian Affairs, or one of the many U.N. specialized agencies, including the U.N. High Commissioner for Refugees (UNHCR), the U.N. Development Programme (UNDP), and the U.N. Educational, Scientific and Cultural Organization (UNESCO).

Nevertheless, given both the limited scope and focus of this paper, we limit our analysis to three bodies involved in “direct” or “targeted” response efforts over the last decade, and specifically measures designed to alter the incentives or circumstances of actors committing or seeking to commit atrocities in a particular context.⁴¹ In other words, we limit our analysis to “reactive” tools and strategies aimed at influencing the conduct of perpetrators themselves (including deterring action through the threat of punishment) rather than addressing the “root causes” of mass atrocities or changing the material circumstances of at-risk-populations, so as to minimize overlap with prevention and protection measures encompassed by separate if related U.N. agendas.⁴² We specifically restrict our case study analysis to justice and accountability efforts at the General Assembly, the Human Rights Council, and the International Court of Justice, which we believe — among all measures taken by U.N. bodies — have made the most direct and innovative contributions to advancing atrocity prevention institutions and norms over the past decade, and are thus most representative of the trends we seek to demonstrate.

Empirical Analysis: Three “Alternative” Atrocity Prevention Sites at the U.N.

The General Assembly

Of all the “hidden” or “alternative” sites of atrocity prevention efforts at the U.N., the General Assembly was one of the first to begin asserting a more forceful role in responding to mass atrocity situations. Over the past decade, the UNGA has been among the most active U.N. bodies to take action in response to mass atrocities where the Security Council has been unwilling or unable to do so itself. Within this context, we submit that the UNGA’s contributions to atrocity prevention objectives have been most visible with respect to three key developments, each of which has helped sustain and advance the UN’s role in protection — albeit, by nature, in a somewhat limited manner.

Making Determinations on “Legally Relevant” Matters

The first is the UNGA practice of passing resolutions making fact-based determinations relevant to the formulation of (or findings concerning) specific legal matters — what some refer to as “quasi-judicial” determinations.⁴³ While the UNGA, as a political body, does not have judicial powers per se, it does have competence under the U.N. Charter to pass resolutions making determinative findings on certain legally relevant questions,⁴⁴ which at times have been interpreted as an expression of the legal views (i.e., opinio juris) of states on a given question or situation.⁴⁵ Notably, the UNGA has acted upon this competency frequently over the past decade, making a variety of determinations concerning, inter alia: an entity’s entitlement to or the presence of the legal conditions for establishing “statehood” under international law; the lawfulness in the change of “status” of a given territory based on the validity of referenda or territorial annexations; and the legality of state conduct, including findings on international law violations committed by states.

In 2012, for example, the UNGA overwhelmingly passed a resolution recognizing Palestine as a “non-member observer-State,” rather than simply an “observer.”⁴⁶ In 2014, the UNGA also overwhelmingly adopted a resolution in response to Russia’s annexation of Crimea, determining that the Crimean status referendum had been invalid and finding that the “situation within the territory of Crimea and Sevastopol factually amounts to an ongoing state of occupation.”⁴⁷ Moreover, in 2018 and 2019 respectively, the UNGA expressed concern at the findings of the U.N. fact-finding mission in Myanmar that there was “sufficient information to warrant investigation and prosecution so that a competent court may determine liability for genocide,”⁴⁸ and expressed “deep distress” that unarmed individuals in the Rakhine state were being subjected to “violations of human rights and international humanitarian law by the military and security and armed forces.”⁴⁹ Finally, since Russia’s full-scale invasion of Ukraine in 2022, the UNGA has passed multiple resolutions condemning Russia’s aggression against Ukraine and determining that Russia’s conduct amounts to international aggression;⁵⁰ suspending Russia from the U.N. Human Rights Council for its international aggression;⁵¹ and determining that Ukraine as the state victim of aggression is entitled to exercise its right to self-defense and to war reparations,⁵² as well as justice for all war victims.⁵³

Such determinations are not merely symbolic. To the contrary, the UNGA’s determinative competence has played an important role in responding to atrocity crimes in the above-mentioned situations, including by contributing to justice and accountability processes. In fact, while the UNGA practice of making “legally relevant” determinations is long-standing, international justice actors have increasingly relied on these determinations since 2011 to directly support various international justice efforts. For example, the determinations noted above helped the International Criminal Court (ICC) establish jurisdiction over the situations in both Palestine and Crimea. In 2015, the ICC Prosecutor relied on UNGA Resolution 67/19 granting Palestine “non-member observer state” status as “determinative of Palestine’s ability to accede to the [Rome Statute],”⁵⁴ which, in turn, allowed the court to exercise jurisdiction over “crimes committed in the Occupied Palestinian Territories.”⁵⁵ Similarly, in 2017, the ICC Prosecutor relied on UNGA resolutions declaring Russia’s alleged annexation of Crimea invalid to assert that Crimea was in a state of occupation, which then provided “the legal framework for the Office’s ongoing analysis of information concerning crimes alleged to have occurred” there.⁵⁶ Given that the ICC, as a criminal court, is unequipped to resolve general questions of international law such as the right to statehood or territorial sovereignty,⁵⁷ UNGA determinations on these questions have played an important role in certain cases in grounding the court’s own determinations on its jurisdictional reach.

In addition to helping establish ICC jurisdiction, UNGA determinations have also directly supported accountability efforts at the ICJ.⁵⁸ Notably, the ICJ may only exercise jurisdiction over disputes among states that have consented to the court’s jurisdiction over the disputed matter. Jurisdiction may be established because both states mutually agree to submit a specific dispute to the court (by special agreement on an ad hoc basis or based on a prior treaty obligation to refer disputes to the ICJ),⁵⁹ or because both states have made optional declarations accepting the court’s jurisdiction with respect to any other state that accepts the same obligation.⁶⁰ Increasingly over the past decade, UNGA determinations have helped establish ICJ jurisdiction by strengthening the evidence base that applicant states can leverage to file a contentious case. In the case of Myanmar, for example, the Gambia’s ability to file its genocide case depended on the extent to which the situation could be framed as genocide.⁶¹ To this end, the adoption of Resolution 73/264 mentioned above significantly bolstered the Gambia’s genocide case, which it filed later that year. Notably, the Gambia mentioned in its filing both the findings submitted to the UNGA by the relevant U.N. Fact-Finding Mission, and the statement of the Vice-President of the Gambia in the 74th Session of the General Assembly.⁶² More broadly, UNGA debates and determinations on the issue have been part of the evidence upon which the ICJ itself could baseits conclusions, and in ordering provisional measures against Myanmar the court explicitly referenced Resolution 73/264.⁶³

Importantly, this raises the question of whether these various justice and accountability efforts have actually influenced state behavior, which we address further below. Our key point, for now, is to note that the UNGA has increasingly supported international justice and accountability processes over the past decade through making fact-based, “legally relevant” or “quasi-judicial” determinations with respect to various atrocity situations, representing a somewhat novel role for the U.N. in responding to mass atrocity scenarios.

New Models for Accountability: Creating a Pre-Prosecutorial Entity

A second key UNGA initiative in response to the commission of atrocity crimes has been the historic establishment of the International, Impartial and Independent Mechanism to Assist in the Investigation and Prosecution of Persons Responsible for the Most Serious Crimes under International Law Committed in the Syrian Arab Republic since March 2011 (IIIM). In 2016, the UNGA adopted Resolution A/71/248 establishing the IIIM to address mounting evidence of grave human rights and international humanitarian law violations committed since the start of the Syrian civil war.⁶⁴ Since the prior establishment of a commission of inquiry (CoI) for Syria in 2011 by the Human Rights Council, the CoI had published numerous reports documenting gross violations of human rights and international humanitarian law in Syria and alleging that war crimes and crimes against humanity had likely been committed,⁶⁵ and based on their gravity and scale, repeatedly urged the Security Council to refer the situation in Syria to the ICC.⁶⁶Gridlock in the Council, however, precluded the possibility of an ICC referral or the establishment of an ad hoc or hybrid tribunal to prosecute the ongoing crimes.⁶⁷ In 2017, Russia also vetoed the renewal of the Joint Investigative Mechanism of the U.N. and the Organization for the Prohibition of Chemical Weapons (OPCW-UN JIM), which had been established in 2015 following the emergence of evidence of the use of chemical weapons in the Syria civil war.⁶⁸ The veto followed the JIM’s attribution of responsibility for the use of chemical weapons in the April 2017 Khan Shaykhun attack to the Assad regime, and further inhibited U.N. member States from pursuing accountability for such egregious international law violations.⁶⁹

Shortly thereafter, however, and with Russia’s veto of the OPCW-UN JIM’s renewal appearing to be the tipping point, the UNGA creatively leveraged its competencies to establish the IIIM as a new model for accountability in Syria: an investigation intended not to prosecute cases, but to prepare case-files for criminal proceedings whenever they might occur in accordance with fair trial standards, and to preserve evidence of perpetrators’ culpability until such trials can take place.⁷⁰ To this end, the UNGA mandated the IIIM to collect, consolidate, and preserve “evidence of violations of international humanitarian law and human rights violations and abuses,” analyze this evidence and “prepare files in order to facilitate and expedite fair and independent criminal proceedings,” and share the evidence and analysis with competent national, regional, and international courts.⁷¹

To be sure, establishing a U.N. body to investigate allegations of mass atrocity crimes was not a novel measure itself. The IIIM, however, was qualitatively different than any earlier investigation in that it was established without the consent of the Syrian government — a “historic first”⁷² for the UNGA — and was explicitly tasked with carrying out “perpetrator-focused” investigations according to criminal justice — rather than human rights law — standards. Moreover, in establishing the IIIM, UNGA deliberately filled a void left by Security Council inaction through creating a path toward future criminal accountability, which has since inspired a new generation of investigative mechanisms emanating from other parts of the U.N. system, including the U.N. Investigative Team to Promote Accountability for Crimes Committed by Da’esh/ISL (UNITAD) established by the Security Council (which, notably, could be established only by coalescing around a counter-terrorism framing of the situation in Iraq),⁷³ the Independent Investigative Mechanism for Myanmar (IIMM) established by the HRC the following year,⁷⁴ and many other HRC-mandated “hybrid” investigations since.⁷⁵ This has since led to calls for the establishment of permanent investigative capacity at the U.N.,⁷⁶ which is currently under consideration by member States. For these reasons, the IIIM might be considered one of the most significant contributions of the UNGA to atrocity prevention objectives over the past decade, as well as advancing the international justice field more broadly.⁷⁷

A Draft Convention on Crimes Against Humanity

In addition to making determinations on legally relevant questions and pioneering a new generation of investigative mandates, we submit that another key contribution of the UNGA to atrocity prevention is its current consideration of a draft convention on crimes against humanity.⁷⁸ While the international community has adopted specific conventions to prevent and punish genocide and war crimes, crimes against humanity have not been codified in a dedicated international treaty. This is widely considered to be a significant gap in international law, and has hampered efforts to prevent and punish these horrific crimes.⁷⁹

To address this gap, the U.N. International Law Commission began drafting articles for a universal convention on crimes against humanity in 2014, which it completed and provisionally adopted in 2019.⁸⁰ Crucially, these Draft Articles provided the basis for negotiations in the UNGA for an eventual treaty.⁸¹ While consideration of the articles in the UNGA Sixth Committee was stalled for three years principally due to opposition from China and Russia, procedural maneuvering by a coalition of smaller states in November 2022 allowed the Sixth Committee to adopt a resolution finally moving toward consideration of a draft treaty.⁸² Of course, some argue there are areas in which the Draft Articles could be improved, or its focus shifted.⁸³ Nonetheless, there is no doubt that such a treaty is poised to serve as a powerful tool against impunity for crimes against humanity, and that the diligent work of the ILC and the Sixth Committee to finalize and adopt the Draft Articles indicates an enduring commitment within the U.N. to advancing the international community’s ability to prevent and respond to such crimes. Notably, the Draft Articles contain “twin provisions” to those enshrined in the U.N. Genocide Convention specifically addressing states’ preventive duties. If adopted, they would establish firm standards crystallizing their duties to prevent (and not just investigate and punish) crimes against humanity, making a crucially important contribution to solidifying the legal framework that underpins political commitments pursuant to R2P.⁸⁴

The Human Rights Council

The General Assembly has not been alone in acting as an “alternative” site for atrocity prevention and response efforts at the U.N. over the past decade. The second U.N. entity that we submit has made the most direct contributions to atrocity prevention objectives through targeted response efforts is the Human Rights Council (itself a subsidiary body of the UNGA), specifically through its active role in mandating investigations of alleged mass atrocities in what was elsewhere defined as an “accountability turn.”⁸⁵ As previous research by our Institute has shown, U.N. investigations mandated by the HRC have pivoted over the past decade from their traditional human rights functions toward making more direct contributions to judicial accountability efforts, including those focusing on perpetrators’ criminal responsibility for such acts.⁸⁶ These investigations have consistently been tasked not only with monitoring and reporting on human rights, which has long been their traditional focus, but also performing functions in support of accountability for mass atrocities. This accountability turn has been most apparent in the increased inclusion of international justice and accountability-related language in their establishing mandates, requiring them to make determinations on whether violations they document “may amount to crimes under international law [emphasis added]” to “identify perpetrators” as well as evidence of their culpability, and to more broadly support judicial accountability processes.⁸⁷ This, in turn, has required U.N. investigations to expand the scope of their work to include international criminallaw standards, methods, and considerations. These include focusing on alleged perpetrators and looking for information around “linkage” (i.e., linking a suspect to a specific crime), evidencing intent wherever possible, and making methodologically sound determinations about both “crime base” patterns and contextual elements of alleged crimes that could have direct bearing on judicial and especially criminal proceedings.⁸⁸

Importantly, the accountability turn in U.N. investigations has been further entrenched since 2016 by the establishment of multiple independent investigative mandates, as mentioned in the previous section, with criminal case-building responsibilities for Syria, by the UNGA; for Da’esh/ISIL, by the UNSC; and for Myanmar, by the HRC itself. Moreover, the criminal case-building mandates of all three investigations have been supported by far greater capacity than previous HRC-mandated investigations — both in terms of budget and infrastructure, greater investment in information governance capacity, greater investment in digital technology, and a more deliberate effort to recruit staff with international criminal law expertise to help conduct investigations according to criminal justice standards.⁸⁹ The success of these mandates has galvanized calls to permanently reform the U.N. investigative capacity to more sustainably support judicial processes and institutions (including of a criminal nature), a crucial step, in our view, toward “anchoring accountability for mass atrocities.”⁹⁰ Irrespective of future developments on the issue, it seems clear that this accountability turn in investigations has helped preserve the U.N.’s ability to respond to atrocity situations despite the possibility of Security Council referrals to the ICC being precluded. This, we submit, reflects enduring efforts within the U.N. to advance atrocity prevention institutions and commitments, even in the face of significant political and institutional challenges, when not overt resistance by P5 members.

It should be acknowledged, similarly to criticism of the Draft Articles, that the “criminalization” of U.N. investigations has not been uniformly supported. Concerns include the risk that an excessive focus on establishing investigative mandates as a response to atrocity situations might disincentivize or replace more forceful types of U.N. action, as well as privilege judicial responses to mass atrocities over holistic approaches to transitional justice — both to the detriment of deterring perpetrators and supporting affected communities.⁹¹ Equally, both the performance of such mandates and the judicial response to their findings have been met with mixed reviews.⁹² Yet, given that pathways to justice today remain limited in scope and are often precluded in the short term, U.N. investigations are meeting a crucial need to collect and preserve evidence that can be used in future justice processes, thus helping to sustain the international justice project and enforce the global rule of law where the Security Council is unwilling or unable to do so.⁹³ Indeed, by preserving the possibility of redress for the most egregious violations of international law, the very establishment of these mechanisms has helped solidify the institutional infrastructure of atrocity prevention and its underlying legal principles.⁹⁴

Importantly, this analysis — as well as that in the previous section on the UNGA’s contributions to justice and accountability efforts — raise the question of how effective these investigative mechanisms are in practice, in terms of both implementing their accountability mandates and deterring atrocity crimes through the threat of punishment. In this regard, we do not dispute the myriad challenges U.N. investigations face to operating effectively, including those in the establishment, start-up phase, and deployment of their operations related to collecting information and evidence to the appropriate international law standards, as well as analyzing and preserving such information to ensure it can be leveraged by justice authorities in a variety of judicial procedures — all of which previous work by our Institute has amply documented.⁹⁵ Equally, we acknowledge there is limited evidence to suggest that establishing a U.N. investigation can either directly compel actors committing mass atrocities to alter their conduct, or act as a deterrent to actors committing or planning to commit atrocity crimes.⁹⁶ Above all, it should be emphasized that U.N. investigations and other accountability mechanisms are, by nature, limited in their ability to provide immediate protection to populations at risk, which is typically the key priority for policymakers seeking to respond to mass atrocities.

Nonetheless, we submit that in the face of significant pushback — if not outright “war”⁹⁷ — on human rights issues at the U.N., as well as the increasing prioritization of “hard” geostrategic and security interests over ethical or normative concerns in great power diplomacy,⁹⁸ solidifying the U.N.’s atrocity prevention infrastructure by strengthening the institutionalization of its underlying laws, norms, and principles makes it more difficult for detractors — particularly among the P5 — to leverage their institutional privilege to unilaterally block action in mass atrocity scenarios, and gradually chip away at human rights norms and accountability mechanisms. As discussed further in our recommendations section, we believe that strengthening the institutional infrastructure of atrocity prevention is a key strategy — and perhaps currently one of the only — that states can use to counterbalance the systemic challenge that great power perpetrators pose to the international human rights system. In our view, the accountability turn in HRC-mandated investigations has thus played a vital role in both operationalizing atrocity prevention at the U.N. and helping to at least safeguard, if not expand, progress in justice and accountability achieved over the past two decades.

The International Court of Justice

Perhaps surprisingly, the final U.N. entity that has arguably made direct contributions to advancing the atrocity prevention agenda over the past decade through its involvement in targeted response efforts is the International Court of Justice (ICJ), the principal judicial organ of the U.N. While the International Criminal Court (ICC) was established (independently of the U.N.) specifically to investigate, prosecute, and try individuals accused of core international crimes, the ICJ was established to settle international legal disputes submitted by states (on any legal issue, not specifically matters of atrocity crimes), with the power to adjudicate on their responsibility for committing what international law considers to be wrongful acts.⁹⁹ However, because only states are eligible to appear before the court, and because it is not a criminal court, the ICJ has neither jurisdiction to try individuals, nor “proprio motu” powers to initiate proceedings against states on its own initiative.¹⁰⁰ Instead, as mentioned above, the ICJ’s jurisdiction is restricted to cases where both states have consented to it.¹⁰¹ This does not have to be in relation to a specific situation, and a clause in a bilateral or multilateral treaty providing the court jurisdiction over disputes concerning the “interpretation or application” of the treaty can be sufficient to establish consent.¹⁰² Yet, because such a clause cannot establish jurisdiction over disputes falling outside the scope of the given treaty, the court’s ability to rule on cases dealing with mass atrocity crimes is highly limited to violations of specific core human rights treaties — such as the U.N. Genocide Convention,¹⁰³ the U.N. Convention against Torture,¹⁰⁴ and various U.N. Conventions on the elimination of various forms of discrimination¹⁰⁵ — addressing potential genocide, crimes against humanity, and some (but not all) war crimes (including torture, for example) that might be covered under other treaties, given that none of the Geneva Conventions or Additional Protocols confer automatic jurisdiction to the ICJ.¹⁰⁶ Despite the fact that pathways to accountability through the ICJ are narrow and few, we argue nonetheless that the growth of atrocity-related cases in its docket evidences commitment by states to upholding key international legal norms concerned with human protection, and to delivering some measure of accountability for states — alongside individuals, before other courts — when these are breached.

In 2019, for example, the Gambia brought a historic case to the ICJ against Myanmar for violating the Genocide Convention in relation to its treatment of the Rohingya population, alleging that the Myanmar military and security forces perpetrated genocide by systematically destroying Rohingya villages in the Rakhine province.¹⁰⁷ While states had twice before filed cases before the ICJ under the convention, the Gambia’s case was the first time a state invoked the ICJ’s jurisdiction over the actions of another state, or brought a case against a state on a different continent.¹⁰⁸ Myanmar predictably objected to the case, but the court ruled in 2022 that it has jurisdiction under the convention to hear the case, building perhaps the only current path toward accountability for crimes against the Rohingyas.¹⁰⁹

Moreover, in January 2020, the ICJ issued extraordinary “provisional measures” in the case — temporary orders by the court that require a party either to do or refrain from doing a specific act, and can arguably be seen as “protection measures” — ordering Myanmar to halt all conduct that might be in violation of the genocide convention, to report back regularly to the ICJ on such measures, and to preserve all evidence relating to the Gambia’s allegations.¹¹⁰ Significantly — and notwithstanding ongoing debate about whether the power of post-adjudicative enforcement¹¹¹ is exercisable by the ICJ or exclusively reserved for the Security Council¹¹² — the ICJ took the further step of revising its Internal Judicial Practice to empower itself to monitor the implementation of provisional measures through ad hoc committees that periodically report to the court.¹¹³ While it is unclear whether the procedure can be applied to “existing provisional measures”¹¹⁴ such as those indicated in the Gambia v. Myanmar case, the move is a significant step toward empowering the court to respond more forcefully to mass atrocity crimes.

In 2022, Ukraine also filed an application under the Genocide Convention at the ICJ to initiate proceedings against the Russian Federation. In its application, Ukraine requested the court to address Russia’s claims that genocide had occurred in the Luhansk and Donetsk regions of Ukraine, establish that it had no legal basis to take military action in Ukraine on the basis of those false claims, and once again indicate provisional measures.¹¹⁵ In a remarkable move, the court again issued provisional measures with a near-unanimous consensus directing Russia to “immediately suspend the military operations it commenced on 24 February 2022 in the territory of Ukraine,” aimed precisely at preventing further loss of life from taking place.¹¹⁶ It is important to note that the court’s unqualified indication of provisional measures for the suspension of Russia’s military operations full-stop (rather [than] for the suspension of operations on the basis of preventing genocide) is unprecedented, and goes far beyond what Ukraine had requested. Although, clearly, the Russian Federation has not complied with the measures, ignoring the ICJ decision only adds to its culpability under international law and will, eventually, weigh on reparations Russia might be forced to make.

The Genocide Convention is not the only treaty states have leveraged to pursue accountability for atrocity situations before the ICJ. Already in 2017 and 2019, Ukraine had initiated ICJ proceedings against Russia for violations of the International Convention on the Elimination of All Forms of Racial Discrimination (CERD) during the annexation of Crimea, and subsequently its occupation of other parts of eastern Ukraine.¹¹⁷ Under the CERD, Ukraine alleged that Russia had carried out a policy of cultural eradication of ethnic Ukrainians and Crimean Tatars in Crimea — including banning education in the Ukrainian and Crimean Tatars languages and the main representative body of the Crimean Tatar — and requested the indication of provisional measures. Significantly, the court granted Ukraine some of these measures the following year, obliging Russia to ensure the provision of education in the Ukrainian language,¹¹⁸ and not maintain or impose limitations on the operation of Crimean Tatar institutions including the Mejlis.¹¹⁹ In 2019, the ICJ rejected Russia’s preliminary objections, finding that Ukraine’s claims under the CERD (and under a second treaty Ukraine invoked, the International Convention for the Suppression of the Financing of Terrorism) were within the ICJ’s jurisdiction and admissible.¹²⁰

Notably, the example set by Ukraine was followed in 2021 by Armenia, which initiated proceedings against Azerbaijan also for alleged violations of the CERD,¹²¹ and equally requesting the court to issue provisional measures to protect ethnic or national Armenians in the contested Nagorno-Karabakh region.¹²² The move led to Azerbaijan counter-suing Armenia under the same instrument within a matter of days.¹²³ Nonetheless, in December of the same year, the court issued provisional measures ordering Azerbaijan take all necessary measures to prevent the incitement and promotion of racial hatred and discrimination; protect all persons captured in the Nagorno-Karabakh armed conflict from violence and bodily harm; and prevent and punish acts of vandalism against Armenian cultural heritage.¹²⁴ In February 2023, the court doubled down by additionally ordering Azerbaijan to stop its blockade of the Lachin corridor, trapping 120,000 ethnic Armenians living in the Nagorno-Karabakh region.¹²⁵ (Azerbaijan, however, has failed to date to comply with the measures.)

Finally, in June 2023, Canada and the Netherlands also initiated proceedings against Syria at the ICJ for violations of the U.N. Convention Against Torture. In their application,¹²⁶ Canada and the Netherlands claimed that Syria has committed myriad violations of international law, beginning at least since the onset of 2011, and requested the urgent indication of provisional measures, including ordering the Syrian government to release prisoners who have been arbitrarily detained and allow access to detention centers by independent monitors.¹²⁷ If the ICJ ultimately finds it has jurisdiction in Syria, it will be the first international court to be able to make a legal finding on the alleged use of torture by the Syrian government.¹²⁸ Given that there has been only a single conviction for the use of torture by a Syrian state official to date (as the result of a landmark trial in Germany in 2022),¹²⁹ bringing the case before the ICJ is an important step toward some further measure of accountability, and at least preserves the possibility that individuals responsible for egregious international crimes, including acts of torture, might also be brought to account in the future.¹³⁰

A (Final) Word on Effectiveness

Of course, this analysis again raises the question of what effect these accountability efforts actually have on the conduct of perpetrators themselves, including whether states have complied or will comply with any provisional measures ordered by the ICJ in the above-mentioned proceedings. The answer, in short, is that even in the best-case scenario — that is, when the court has ordered provisional measures in response to an atrocity situation, with which states are legally bound to comply — non-compliance is a likely scenario, given such orders cannot easily be enforced by the international community. Despite the indication of provisional measures against Myanmar, for example, human rights groups continue to document grave abuses against the Rohingyas.¹³¹ As mentioned above, Russia and Azerbaijan have also failed to comply with both sets of provisional measures ordered by the court, and even if the ICJ were to ultimately indicate provisional measures against, its government is equally unlikely to comply. (This seems particularly likely, given the Syrian government’s track record over the last ten-plus years). Notably, under Article 41(2) of the ICJ’s statute, provisional measures indicated by the court are automatically sent to the Security Council,¹³² meaning that the Council could take further action to ensure compliance with the indicated measures. This option, however, remains foreclosed, precisely because the Council is gridlocked over mass atrocity situations (particularly those in Syria, Myanmar, and Ukraine).

If states are unlikely to comply with provisional measures indicated by the ICJ, and their non-compliance will simply trigger a referral to a gridlocked Security Council, what, then, is the point of such proceedings?¹³³ And if we do not know what impact U.N.-mandated investigations actually have on perpetrators, or even how valuable they are in practice to judicial proceedings, why should states commit political and financial resources to supporting such accountability mechanisms? These questions are legitimate, but reflect a somewhat superficial understanding of how international law and accountability mechanisms are designed, what space for maneuvering is actually afforded to them, and what limits states very deliberately impose on their authority, powers, and legal privileges. In other words, these mechanisms can only be as strong as states — the makers of international law and institutions — want them to be. And it is not uncommon for states — even those supportive of human rights and accountability issues — to try to influence outcomes and dilute the strength and impact of relevant bodies and proceedings that target them or their closest allies.¹³⁴

However, and notwithstanding the challenges and limitations justice and accountability bodies often face, their impact is not inexistent: in fact, data show that in the vast majority of cases, states do comply with measures ordered by international courts and tribunals.¹³⁵ For example, the Myanmar government itself submitted two implementation reports to the ICJ before the February 2021 coup, and as of 2022, public reports indicated that the government continued to engage with the court on the reporting requirement imposed by the provisional measures.¹³⁶ At the very least, this suggests that the court’s judgments do carry political and legal weight. Above all, however, we submit that the significance of ICJ proceedings — as well as any proceeding supported by findings by HRC-appointed probes or other U.N. investigations — lies not only in the discrete outcome of the case, but in the process itself.¹³⁷

An official, authoritative finding against a state by an internationally mandated body — be it a judicial or quasi-judicial finding by the ICJ, one of the HRC-appointed inquiries, or the UNGA itself — is hard to rebuke, for it confirms on the global stage the government’s (until then alleged) illegal conduct. This is an immensely powerful tool to diminish perpetrators’ ability to credibly deny their actions, muddy the waters surrounding allegations, and in doing so, both question and weaponize the empirical truth around an atrocity situation. Such conduct is often and very clearly on display by great power perpetrators, who attempt to control narratives and deflect their culpability in an atrocity situation by abusing the platforms and privileges afforded to them within the multilateral system to impede international scrutiny of their conduct, where not to block action altogether.¹³⁸ Authoritative findings by impartial, independent bodies establish a record — both historical and legal — of the violations and abuses they inflicted upon victims, thus confirming not only the unlawfulness of their conduct, but also the victimhood status of those who have suffered the harm they inflicted.¹³⁹ And even when such findings only concern state (rather than individual) responsibility, and where they are removed from actual judicial proceedings (as it is often the case with UNGA determinations or HRC-mandated investigations), they carry the significant potential both of (someday) paving the way for prosecutions against individuals and of implementing reparation schemes for victims.¹⁴⁰ All of this also helps sustain public advocacy efforts and international attention, and provides the basis for concerned states to impose further political and diplomatic consequences — even if a finding, judgment, or provisional measures order cannot be immediately enforced through more coercive measures. We thus argue that although international accountability mechanisms may not often have a quantifiable, discrete, or direct effect on perpetrators’ conduct, they are a vital component of a robust system of global atrocity prevention and response efforts — particularly one in which great powers are more and more often themselves the culprits — and contribute to core atrocity prevention objectives beyond providing immediate relief to populations in situations of risk.

Indeed, we submit that the most significant impact of “alternative” avenues for justice and accountability at the U.N. is their contribution to reaffirming the centrality of international law in atrocity situations precisely when states are egregiously flouting it, and to achieving some of international law’s core objectives: public identification of wrongdoing, condemnation of wrongful acts, and (at least potentially) deterrence of future crimes. To the extent that these functions have traditionally been carried out by the Security Council, paralysis in the Council is a serious cause for concern, and addressing it should remain a top priority. At the same time, given that the geopolitical dynamics underlying Security Council gridlock are unlikely to change soon and that prospects for Security Council reform are limited, elevating the role of “alternative” sites in authoritatively identifying wrongdoing by states and implementing measures (even when these are non-coercive) against those states will be key to enforcing the global rule of law without the Council. And although the effects of such efforts should not be overstated, it is significant that all of the sites identified (including and perhaps most importantly the ICJ) have signaled a readiness to adapt their working methods to accommodate advocacy and litigation in the public interest, including for atrocity-related matters.¹⁴¹

In sum, the ICJ has emerged somewhat unexpectedly over the past decade as alternative sites for atrocity prevention and response efforts at the U.N., contributing to the evolution and progressive interpretation of the Genocide Convention and other key human rights treaties, as well as carving out alternative avenues for justice and accountability. While its contributions to atrocity prevention efforts have not been systematic per se, given that the court can only hear cases put before it, the growing number of cases on its docket specifically to deal with atrocity crimes situations signals both confidence among a majority of states in their legitimacy, and a continued commitment to advancing atrocity prevention operationally — despite significant political and institutional challenges, and in the face of ongoing norm contestation.

Conclusion and Recommendations

In light of the empirical analysis above, we advance the following conclusions as emerging from our paper:

The state of affairs of atrocity prevention at the United Nations is not what it is often assumed to be. Although the “decline” of the R2P norm and much decried Security Council paralysis in mass atrocity scenarios are serious causes for concern and addressing them should remain a priority for concerned states, we see both trends as reflective of a new geostrategic environment in which human protection-centered agendas such as atrocity prevention — and the norms and institutions underpinning them — are not only hotly contested, but being purposely rendered ineffective by a new category of perpetrators of atrocity crimes we call the great power perpetrator.
With their unmatched and nearly unchallengeable capacity to commit mass atrocities, as well as their ability to influence (where not control) traditional atrocity response mechanisms at the U.N. (particularly the U.N. Security Council, as the U.N. entity with primary responsibility for international peace and security matters), great power perpetrators now pose a “system-level” challenge to atrocity prevention norms and objectives.
While this state of affairs is deplorable, its disruption of the functioning of more traditional atrocity prevention and response mechanisms at the U.N. has generated concerted efforts by other U.N. entities and member States to leverage their residual responsibilities under the U.N. Charter and carve out alternative avenues to achieve to atrocity prevention objectives, irrespective of whether they explicitly link their actions to R2P or the atrocity prevention agenda.
More specifically, our analysis has surfaced the overlooked contributions to justice and accountability efforts by the UNGA, the HRC, and the ICJ. Collectively, these three bodies have leveraged (often in innovative ways) existing procedural mechanisms available to them, and adjusted their working methods to accommodate public interest advocacy, strategic litigation, and institutional reform to help bridge gaps in international action in response to some of the world’s worst atrocity situations. In doing so, they have directly contributed to operationalizing atrocity prevention objectives, and indirectly contributed to strengthening the global rule of law and the U.N.’s overall human protection mandate.
Our current understanding of the material impact and effectiveness of such alternative forms of action remains limited, and warrants further scrutiny. Nonetheless, examining such countertrends — rather than more narrowly on R2P’s crisis of legitimacy or Security Council paralysis, as it is conventionally the case — is crucial for two reasons. First, it reveals that the state of atrocity prevention at the U.N. is more active than what it is often assumed to be. Secondly, such alternatives sites are, currently, all the international community has available to attempt to overcome or circumvent blockages by the veto-yielding P5.
Given that the geopolitical context underlying these circumstances is unlikely to change soon, continuing to identify apt alternatives to respond to mass atrocity crimes — while strengthening and reaffirming states’ international law obligations that ground the atrocity prevention agenda — is vital both to preserve space for and achieve progress on atrocity prevention efforts, within and beyond the U.N.

On the basis of these conclusions, we propose the following actionable recommendations for concerned states interested in advancing their atrocity prevention commitments:

A review of existing tools in the atrocity prevention toolkit is necessary to identify alternative tools and strategies that are better equipped to directly and effectively target the specific levers of power available to great power perpetrators.
Along the same lines,we recommend that future studies carry out an expanded and more systematic mapping of alternatives sites of R2P implementation at the U.N., or of other loci for action available to U.N. member States to continue to further atrocity prevention objectives and circumvent blockages occurring in more traditional response mechanisms.
States should both continue and expand their support for the various initiatives aimed at restraining the use or threat of veto at the Security Council in mass atrocity situations, as well as continue to increase the cost (politically if not economically) for veto-yielding P5 when they abuse their veto prerogative to block international scrutiny and action of their own conduct of that of allies.
At the same time, U.N. member States should continue to creatively leverage procedural (and other available) mechanisms under the U.N. Charter, as appropriate, to sustain attention and debate around mass atrocity issues, as well as create alternative fora for considering, debating, and responding to atrocity situations.

More precisely yet, states should sustain engagement with the UNGA, the HRC, and the ICJ — as well as other available mechanisms and international law entities with the power to debate and adjudicate on relevant factual and legal matters — in order to obtain as many quasi-judicial or judicial determinations as possible relevant to a mass atrocity situation, thus enabling international and local actors to attribute responsibility for the gravest international law violations, and open as many pathways for judicial accountability to someday take place.
Similarly, states should proactively and routinely encourage members of the HRC to establish international inquiries into allegations of atrocity crimes in country-specific situations, as well as continue debates on how best to shore up the U.N.’s overall capacity to support justice and accountability mandates through the establishment of a permanent investigation support entity. We therefore recommend that states help advance these initiatives by convening high-level discussions among likeminded states, speaking out publicly in support of establishing a permanent investigative entity, and committing to provide financial, technical, and operational support to such an entity once created.
More generally, we recommend that states continue to invest in the international justice and accountability landscape by sustaining support for core institutions such as the ICC (and other international criminal courts and tribunals as relevant), as well as strengthen their own domestic capacity to exercise jurisdiction and, as relevant, administer justice for mass atrocity crimes — even those committed in third-party states — in accordance with both international law and their own domestic legislative frameworks.
In addition, states should consider legal options to join — and otherwise support — ongoing proceedings relating to mass atrocity situations, including those currently pending before the ICJ.
Finally, states should continue to support the progressive development and codification of the international laws and principles that anchor atrocity prevention and related human protection agendas, most concretely by supporting the adoption of the Draft Articles on the Prevention and Punishment of Crimes Against Humanity and similar initiatives that might arise in the future.
Importantly, and perhaps most crucially, in continuing to confront the actions of “great power perpetrators” — alongside those of any perpetrator of atrocity crimes — states shouldtake active steps to “hold” space for civil society actors — especially the most vulnerable among affected communities — to ensure they can continue to meaningfully participate and contribute to debates and deliberations on measures aimed to address the mass violence that affects them.

About the Authors

Federica D’Alessandra is the Deputy Director of the University of Oxford’s Institute for Ethics, Law, and Armed Conflict (ELAC), and the Founding Director of the Oxford Programme on International Peace and Security at the Blavatnik School of Government, where she focuses on international law, foreign policy, and global governance issues, and teaches courses covering the same subjects. She often advises governments and international organisations on her areas of expertise both at the strategic and operational level, having for example served on a number of expert panels, most recently on the harmonisation of atrocity prevention mechanisms, UN institutional reform, and the cross-sectorial standardisation of best practices to bring terrorists and the perpetrators of atrocity crimes to justice. In addition, D’Alessandra also often advises on international treaty negotiations and amendments, having supported various rounds of amendments to the Rome Statute of the International Criminal Court on the crime of aggression and the war crime of starvation, among others.

Gwendolyn Whidden is a PhD candidate in International Relations at the University of Oxford, where she previously received an MPhil in International Relations. Her doctoral research examines decision-making in the United Nations Security Council in response to mass atrocities. In addition to her PhD work, Gwendolyn is a Research and Policy Officer at the Oxford Institute for Ethics, Law and Armed Conflict (ELAC), where she conducts research on international security and human rights, and a Staff Editor at Just Security, where she organizes thematic symposiums on atrocity prevention policy.

Acknowledgements

The authors are grateful to Taha Almasri for his research and editorial assistance.

Notes

1
Alex Bellamy, “Sovereignty Redefined: The Promise and Practice of R2P,” in The Responsibility to Protect Twenty Years On: Rhetoric and Implementation, ed. Pinar Gözen Ercan (Cham, Switzerland: Palgrave Macmillan, 2022), 56.
2
Jennifer Welsh, “Norm Robustness and the Responsibility to Protect,” Journal of Global Security Studies 4, no. 1 (2019): 53-72, https://doi.org/10.1093/jogss/ogy045.
3
Federica D’Alessandra, “Conceptualizing Great Power Perpetrators” (under review, Journal on Genocide Studies, on file with author).
4
Thomas G. Weiss and Giovanna Kuele, “Whither R2P?,” E-International Relations, August 31, 2011, accessed August 4, 2023, https://www.e-ir.info/2011/08/31/whither-r2p/; “The Death of R2P,” Denver Journal of International Law & Policy, October 24, 2011, accessed August 4, 2023, http://djilp.org/the-death-of-r2p/.
5
Rebecca Barber, “The Powers of the U.N. General Assembly to Prevent and Respond to Atrocity Crimes: A Guidance Document,” Asia-Pacific Centre for the Responsibility to Protect, (2021) 32-33, https://r2pasiapacific.org/files/7091/2021_UNGA_GuidanceDocument4.pdf.
6
Federica D’Alessandra, “UN Accountability Mandates in International Justice,” Journal of International Criminal Justice, October 23, 2023, accessed October 25, 2023, https://academic.oup.com/jicj/advance-article/doi/10.1093/jicj/mqad038/7328884.
7
International, Impartial and Independent Mechanism to Assist in the Investigation and Prosecution of Persons Responsible for the Most Serious Crimes under International Law Committed in the Syrian Arab Republic since March 2011 (IIIM), “Mandate,” accessed August 4, 2023, https://iiim.un.org/who-we-are/mandate/.
8
Leila N. Sadat, “Towards a New Treaty on Crimes Against Humanity,” Just Security, September 13, 2021, accessed August 4, 2023, https://www.justsecurity.org/78063/towards-a-new-treaty-on-crimes-against-humanity-next-steps/.
9
Federica D’Alessandra, “The Accountability Turn in Third Wave Human Rights Fact-Finding,” Utrecht Journal of International and European Law 33, no. 84 (2017): 59-76.
10
Human Rights Council Resolution 39/2, Situation of Human Rights of Rohingya Muslims and Other Minorities in Myanmar, A/HRC/RES/30/2 (October 3, 2018), https://documents-dds-ny.un.org/doc/UNDOC/GEN/G15/233/42/PDF/G1523342.pdf.
11
For an overview of vetoes cast, see United Nations Dag Hammarskjöld Library, “UN Security Council Meetings & Outcomes Tables,” accessed April 3, 2023, https://research.un.org/en/docs/sc/quick. Since 2011, except for five U.S. vetoes (four of which concerning the situation in Israel/Palestine), all vetoes have been cast by Russia alone, and 12 times with China.
12
This is when matters relating to atrocity situations could even make it on the Security Council agenda. The focus of this paper is “alternative sites” beyond the UNSC; however, the increased misuse of the veto has had significant consequences even within the UNSC itself, one of the most visible of which has been a more forceful use of procedural motions to call for country-specific meetings to put atrocity-related matters on the agenda of the Council. This was famously done in 2014, for example, following the U.N. Commission of Inquiry on the Democratic People’s Republic of Korea’s reporting that crimes against humanity were likely being committed, with implications for international peace and security (see: Letter dated 5 December 2014 from the representatives of Australia, Chile, France, Jordan, Lithuania, Luxembourg, the Republic of Korea, Rwanda, the United Kingdom of Great Britain and Northern Ireland and the United States of America to the United Nations addressed to the President of the Security Council, S/2014/872, https://documents-dds-ny.un.org/doc/UNDOC/GEN/N14/674/09/PDF/N1467409.pdf?OpenElement). Under the UNSC working methods rules, procedural motions are available for non-substantive matters and require only nine UNSC members to vote in favor for an issue to be considered, unlike decisions on substantive issues that, in order to be made, require nine votes in favor and the absence of any veto. See United Nations Security Council Voting System, available from https://www.un.org/securitycouncil/content/voting-system.
13
The Responsibility to Protect is an international norm that seeks to motivate, enable, and guide action by the international community to prevent and respond to the four mass atrocity crimes: genocide, war crimes, crimes against humanity, and ethnic cleansing. It is considered to rest upon three “pillars,” which place different expectations for conduct on different actors: the responsibility of every state to protect their own populations from the four atrocity crimes (Pillar I), the responsibility of every state in the international community to assist other states in protecting their populations (Pillar II), and the responsibility of the international community to protect when a state is manifestly failing to protect its own populations (Pillar III). Of the three pillars, Pillar III is associated with the cross-border use of force, and thus widely considered to be the most controversial.
14
Security Council Resolution 1973, S/RES/1973 (March 17, 2011), available from https://documents-dds-ny.un.org/doc/UNDOC/GEN/N11/268/39/PDF/N1126839.pdf.
15
Weiss and Kuele, “Whither R2P?”; “The Death of R2P.”
16
Bellamy, “Sovereignty Redefined,” 56.
17
Welsh, “Norm Robustness and the Responsibility to Protect,” 54-55.
18
For an overview of criticisms of R2P, see Noele Crossley, “Is R2P Still Controversial? Continuity and Change in the Debate on ‘Humanitarian Intervention’,” Cambridge Review of International Affairs (2019): 415-436, https://doi.org/10.1080/09557571.2018.1516196. In 2011, this particular ground for criticism led Brazil to introduce its Responsibility While Protecting initiative, a proposed addendum to ensure clearer criteria and greater accountability of U.N.-authorized military interventions. For more details, see: Oliver Stuenkel, “Responsibility While Protecting,” in The Oxford Handbook of the Responsibility to Protect, eds. Alex J. Bellamy and Tim Dunne (Oxford Handbooks, 2016; online edn., Oxford Academic, August 3, 2016), https://doi.org/10.1093/oxfordhb/9780198753841.013.33, accessed August 14, 2023.
19
Crossley, “Is R2P Still Controversial?,” 416.
20
Dominic Tierney, “The Legacy of Obama’s ‘Worst Mistake’,” The Atlantic, April 15, 2016, accessed August 4, 2023 https://www.theatlantic.com/international/archive/2016/04/obamas-worst-mistake-libya/478461/; Alan Kuperman, “Obama’s Libya Debacle,” Foreign Affairs, February 18, 2019, accessed August 4, 2023, https://www.foreignaffairs.com/articles/libya/2019-02-18/obamas-libya-debacle.
21
D’Alessandra, “Conceptualizing Great Power Perpetrators.”
22
Barry Buzan, “China in International
Society: Is ‘Peaceful Rise’ Possible?,” Chinese Journal of International Politics 3, no. 1 (2010): 14, https://doi.org/10.1093/cjip/pop014; Randall L. Schweller and Xiaoyu Pu, “After Unipolarity: China’s Visions of International Order in an Era of U.S. Decline,” International Security 36, no. 1 (2011), 41-72; Eldbridge A. Colby and A. Wess Mitchell, “The Age of Great Power Competition,” Foreign Affairs, December 10, 2019, accessed August 4, 2023, https://www.foreignaffairs.com/united-states/age-great-power-competition; Emma Ashford, “The Persistence of Great-Power Politics,” Foreign Affairs, February 20, 2023, accessed August 4, 2023, https://www.foreignaffairs.com/ukraine/persistence-great-power-politics.
23
See, for example: Tanner Larkin, “How China Is Rewriting the Norms of Human Rights,” Lawfare (blog), May 9, 2022, accessed August 4, 2023, https://www.lawfareblog.com/how-china-rewriting-norms-human-rights; Michael Schuman, “China Wants to Rule the World by Controlling the Rules,” The Atlantic, December 9, 2021, accessed August 4, 2023, https://www.theatlantic.com/international/archive/2021/12/china-wants-rule-world-controlling-rules/620890/; Daniel W. McLaughlin, “Rewriting the Rules: Analyzing the People’s Republic of China’s Efforts to Establish New International Norms,” Journal of Indo-Pacific Affairs – Air University (2021), accessed August 4, 2023, https://www.airuniversity.af.edu/JIPA/Display/Article/2528526/rewriting-the-rules-analyzing-the-peoples-republic-of-chinas-efforts-to-establi/; Janka Oertel, “Games Changer: How China Is Rewriting Global Rules and Russia Is Playing Along,” European Council on Foreign Relations, February 23, 2022, accessed August 4, 2023, https://ecfr.eu/article/games-changer-how-china-is-rewriting-global-rules-and-russia-is-playing-along/. For the implications of such efforts on the overall multilateral system, see: D’Alessandra, “Conceptualizing Great Power Perpetrators.”
24
D’Alessandra, “Conceptualizing Great Power Perpetrators.”
25
This has led to initiatives such as those described in note 11 above, or other initiatives by UNSC members, including France as a P5, to regulate the use of the veto in the event of mass atrocities. See France in the United States, “The Veto and the Security Council” (video), released March 30, 2023, available at: https://media.franceintheus.org/12026/.
26
See U.N. General Assembly Resolution A/77/L.52 (April 26, 2022); United Nations Office on Genocide and the Responsibility to Protect, “Security Council,” accessed August 4, 2023, https://www.un.org/en/genocideprevention/security-council.shtml. For a broader discussion, see Jennifer Trahan, “Initiatives to Voluntarily Restrain Veto Use in the Face of Mass Atrocity Crimes,” in Existing Legal Limits to Security Council Veto Power in the Face of Mass Atrocity Crimes (Cambridge: Cambridge University Press, 2020), 102-141.
27
Trahan, “Initiatives to Voluntarily Restrain Veto Use.”
28
See Charter of the United Nations (adopted June 26, 1945, entered into force October, 24 1945) 1 UNTS XVI (“the Charter”), Article 108 (amendment procedure); UNGA Resolutions 1991(XVIII) A and B (17 December 1963) U.N. Doc A/RES/1991(XVIII) (amended Article 23 on UNSC composition and Article 27 on voting, entered into force 31 August 1965 in accordance with Article 108 U.N. Charter for all U.N. members states). For informal amendments of Security Council procedural rules, see Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970) (Advisory Opinion) [1971] ICJ Rep 53, para. 22 (The ICJ held that subsequent practice of the Security Council, particularly its “presidential rulings” and the positions of its permanent members, consistently and uniformly interpreted the “affirmative vote” requirement in U.N. Charter Article 27(3) as including abstentions. It found that this procedure “has been generally accepted by Members of the United Nations and evidences a general practice of that Organization.”)
29
For an overview and discussion of what preventive duties exist in international law for war crimes, crimes against humanity, and genocide, see Federica D’Alessandra and Shannon Raj Singh, “Operationalizing Obligations to Prevent Mass Atrocities: Proposing Atrocity Impact Assessments as Due Diligence Best Practice,” Journal of International Criminal Justice 14, no. 3 (2022): 769-793, https://doi.org/10.1093/jhuman/huac041.
30
D’Alessandra and Raj Singh, “Operationalizing Obligations to Prevent Mass Atrocities.”
31
See General Assembly Resolution ES-11/3, Suspension of the Rights of Membership of the Russian Federation in the U.N. Human Rights Council, A/RES/ES-11/3 (April 6, 2022), available from https://documents-dds-ny.un.org/doc/UNDOC/GEN/N22/312/47/PDF/N2231247.pdf; General Assembly Resolution ES-11/4, Territorial Integrity of Ukraine: Defending the Principles of the Charter of the United Nations, A/RES/ES-11/4 (October 12, 2022), available from https://documents-dds-ny.un.org/doc/UNDOC/GEN/N22/630/66/PDF/N2263066.pdf; and General Assembly Resolution ES-11/L.6, Furtherance of Remedy and Reparation for Aggression against Ukraine, A/ES-11/L.6 (November 7, 2022), available from https://documents-dds-ny.un.org/doc/UNDOC/LTD/N22/679/12/PDF/N2267912.pdf.
32
D’Alessandra, “UN Accountability Mandates in International Justice.” Also see: Federica D’Alessandra and Kirsty Sutherland, “The Promises and Challenges of New Actors and New Technologies in International Justice,” Journal of International Criminal Justice 19, no. 1 (2021): 9-34, https://doi.org/10.1093/jicj/mqab034.
33
Federica D’Alessandra, Stephen Rapp, Kirsty Sutherland, and Sareta Ashraph, “Anchoring Accountability for Mass Atrocities: The Permanent Support Needed to Fulfil U.N. Investigative Mandates,” Oxford Institute for Ethics, Law and Armed Conflict (2022), https://www.elac.ox.ac.uk/wp-content/uploads/2022/10/Oxford-ELAC-Anchoring-Accountability-for-Mass-Atrocities.pdf.
34
United Nations General Assembly, “Sixth Committee (Legal) – 76th Session,” accessed August 4, 2023, https://www.un.org/en/ga/sixth/76/cah.shtml.
35
D’Alessandra, “UN Accountability Mandates in International Justice.”
36
See the ICJ cases of The Gambia v. Myanmar and Ukraine v. the Russian Federation (both alleging violations of the U.N. Genocide Convention), as well as a separate Ukraine v. the Russian Federation case concerning alleged violations of the U.N. Convention on the Elimination of Racial Discriminations in Russian-occupied eastern Ukraine, and the Canada and the Netherlands v. Syrian Arab Republic case alleging violations of the U.N. Convention Against Torture.
37
Beth Van Schaack, “Atrocities Prevention & Response: A Good Governance Blueprint,” American Bar Association (2021), https://www.americanbar.org/content/dam/aba/administrative/human_rights/atrocity-crimes-initiative/van-schaack-atrocities-prevention-blueprint-white-paper-2021.pdf.
38
Ruben Reike, Serena K. Sharma, and Jennifer Welsh, “Conceptualizing the Responsibility to Protect,” in The Responsibility to Prevent: Overcoming the Challenges of Atrocity Prevention, ed. Serena K. Sharma and Jennifer Welsh (Oxford: Oxford University Press, 2015), 20-37.
39
Reike et al., “Conceptualizing the Responsibility to Protect.” Peacekeeping, in particular, can also contribute to “targeted response” measures, including the physical protection of civilians from violence through coercive means that might include the use of force. However, such mandates can only be mandated by the UNSC, which is why we have excluded them from our analysis. We do recommend, however, that a subsequent study look more closely at how UNSC working methods, agenda make-up, voting records, and broader initiatives have evolved over the last decade, precisely as an attempt to counter veto paralysis.
40
Federica D’Alessandra and Shannon Raj Singh (with Ambassador Stephen Rapp), “Atrocity Prevention in a Transatlantic Setting,” Oxford Institute for Ethics, Law and Armed Conflict (2020), https://www.elac.ox.ac.uk/wp-content/uploads/2023/04/ELAC-Policy-Paper_Atrocity-Prevention-in-A-Transtlantic-Setting.pdf.
41
Reike et al., “Conceptualizing the Responsibility to Protect,” 27-29.
42
A different and equally important set of targeted response efforts concerns strategies and action intended to change and/or improve the circumstances of populations at risk. Expanding our analysis along these lines would require the inclusion of several other important U.N. entities, including the Office for the Coordination of Humanitarian Affairs, the U.N. Refugee Agency, and the Department of Peace Operations. Given the limited scope of this paper, we decided against including treatment of such response efforts. The importance of such efforts, however, certainly demands further scrutiny.
43
Barber, “The Powers of the U.N. General Assembly to Prevent and Respond to Atrocity Crimes,” 32-33.
44
Oscar Schachter, “The Quasi-Judicial Role of the Security Council and the General Assembly,” American Journal of International Law 58, no. 4 (1964): 960-961; Nigel White, Law of International Organisations (Manchester: Manchester University Press, 2016), 178.
45
Barber, “The Powers of the U.N. General Assembly to Prevent and Respond to Atrocity Crimes,” 32-33; Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. USA) [1984] ICJ Rep 392, para. 195 (The ICJ held that the descriptions of armed attack in UNGA Resolution 3314 (XXIX) “may be taken to reflect customary international law”), para. 101 (The ICJ held that “the adoption by States of [UNGA Resolution 2625 (XXV)] affords an indication of their opinio juris as to customary international law on the question”); cf. Legality of the Use or Threat of Nuclear Weapons [1996] ICJ, paras. 254-255: “General Assembly resolutions […] can, in certain circumstances, provide evidence important for establishing the existence of a rule or the emergence of an opinio juris.”
46
U.N. General Assembly Resolution 67/19, Status of Palestine in the United States, A/RES/67/19 (December 4, 2012), available from https://documents-dds-ny.un.org/doc/UNDOC/GEN/N12/479/74/PDF/N1247974.pdf.
47
U.N. General Assembly Resolution 68/262, Territorial Integrity of Ukraine, A/RES/68/262 (April 1, 2014), available from https://documents-dds-ny.un.org/doc/UNDOC/GEN/N13/455/17/PDF/N1345517.pdf.
48
U.N. General Assembly Resolution 73/264, Situation of Human Rights in Myanmar, A/RES/73/264 (January 22, 2019), available from https://documents-dds-ny.un.org/doc/UNDOC/GEN/N18/464/82/PDF/N1846482.pdf.
49
U.N. General Assembly Resolution 73/264.
50
U.N. General Assembly Resolution ES‑11/1, Aggression Against Ukraine, A/RES/ES-11/1 (March 18, 2022), available form https://documents-dds-ny.un.org/doc/UNDOC/GEN/N22/293/36/PDF/N2229336.pdf.
51
U.N. General Assembly Resolution ES‑11/1.
52
U.N. General Assembly Resolution ES-11/L.6.
53
U.N. General Assembly Resolution ES-11/L.7, Principles of the Charter of the United Nations Underlying a Comprehensive, Just, and Lasting Peace in Ukraine, A/RES-11/L.7 (February 16, 2023), available from https://documents-dds-ny.un.org/doc/UNDOC/LTD/N23/048/58/PDF/N2304858.pdf.
54
International Criminal Court, “The Prosecutor of the International Criminal Court, Fatou Bensouda, Opens a Preliminary Examination of the Situation in Palestine,” Press Release, January 16, 2015, available from https://www.icc-cpi.int/news/prosecutor-international-criminal-court-fatou-bensouda-opens-preliminary-examination-situation.
55
International Criminal Court, “The Prosecutor of the International Criminal Court.”
56
International Criminal Court, “Report on Preliminary Examination Activities (2017)” (2017), 20, https://www.icc-cpi.int/sites/default/files/itemsDocuments/2017-PE-rep/2017-otp-rep-PE_ENG.pdf.
57
Rome Statute of the International Criminal Court (adopted July, 17 1998, entered into force July 1, 2002) UNTS 2187 (“the Rome Statute”), Article 5 (limits the jurisdiction of the court to the four atrocities); Decision on the “Prosecution request pursuant to article 19(3) for a ruling on the Court’s territorial jurisdiction in Palestine,” Pre-Trial Chamber I (5 February 2021) ICC-01/18, at para. 108: “[t]he Court is not constitutionally competent to determine matters of statehood that would bind the international community” (citing Professor Malcolm Shaw’s observations to the Pre-Trial Chamber); Malcolm Shaw, “Submission of Observations to the Pre-Trial Chamber Pursuant to Rule 103 in the ‘Situation in the State of Palestine’ ” (16 March 2020) ICC-01/18, para. 8 (The ICC “cannot bind the international community on such matters. Its focus is upon the determination of the guilt or innocence of individuals charged with particular offences as defined in its Statute.”). See: Barber, “Powers of the U.N. General Assembly,” 34.
58
Barber, “Powers of the U.N. General Assembly,” 33.
59
Statute of the International Court of Justice, Article 36(1).
60
Statute of the International Court of Justice, Article 36(2).
61
Barber, “Powers of the U.N. General Assembly,” 34.
62
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar), para. 20 and 21 respectively.
63
Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar) (Request for the Indication of Provisional Measures: Order) General List No. 178 [2020] ICJ, 22, 54.
64
IIIM, “Mandate” (see note 7).
65
See U.N. Human Rights Council, “Independent International Commission of Inquiry on the Syrian Arab Republic,” accessed August 3, 2023, https://www.ohchr.org/en/hr-bodies/hrc/iici-syria/documentation; U.N. Human Rights Council, “Report of the Independent International Commission of Inquiry on the Syrian Arab Republic” (August, 17 2022) U.N. Doc A/HRC/51/54, para. 53, 75, 84 (war crimes), para. 26 (crimes against humanity); U.N. Human Rights Council, “23rd Report of the Commission of Inquiry of the Syrian Arab Republic — A Decade of Arbitrary Detention and Imprisonment” (March 11, 2021) U.N. Doc A/HRC/46/55, paras. 83, 90-96 (war crimes), paras. 87-89 (crimes against humanity).
66
U.N. Human Rights Council, “Report of the Independent International Commission of Inquiry on the Syrian Arab Republic” (February 5, 2015) U.N. Doc A/HRC/28/69, paras. 96, 139, and 146(b).
67
U.N. Human Rights Council, “Report of the Independent International Commission of Inquiry,” paras. 132 and 139.
68
U.N. Security Council Resolution 2235 (August 7, 2015), available from https://documents-dds-ny.un.org/doc/UNDOC/GEN/N15/248/88/PDF/N1524888.pdf?OpenElement.
69
U.N. Press, “Security Council Fails to Renew Mandate of Joint Investigative Mechanism on Chemical Weapons Use in Syria, as Permanent Member Casts Veto,” October 24, 2017, accessed August 4, 2023, https://press.un.org/en/2017/sc13040.doc.htm.
70
IIIM, “Mandate.”
71
IIIM, “Mandate.”
72
Anni Pues, “The U.N. General Assembly as a Security Actor: Appraising the Investigative,” Max Planck Yearbook of United Nations Law Online 25, no. 1 (2022): 553-582.
73
U.N. Security Council Resolution 2379 (September 21, 2017), available from https://documents-dds-ny.un.org/doc/UNDOC/GEN/N17/296/25/PDF/N1729625.pdf?OpenElement.
74
U.N. Human Rights Council Resolution 39/2 (October 3, 2018), available from https://documents-dds-ny.un.org/doc/UNDOC/GEN/G18/293/69/PDF/G1829369.pdf?OpenElement.
75
D’Alessandra, “UN Accountability Mandates in International Justice.”
76
D’Alessandra et al., “Anchoring Accountability for Mass Atrocities.”
77
D’Alessandra, “UN Accountability Mandates in International Justice.”
78
U.N. General Assembly Resolution 76/114, Crimes Against Humanity” (December 17, 2021), A/RES/76/114, para. 3; U.N. General Assembly, “Workshop on a Convention on the Prevention and Punishment of Crimes against Humanity” (April 19, 2023), U.N. Doc A/C.6/77/INF/3.
79
D’Alessandra and Raj Singh, “Operationalizing Obligations to Prevent Mass Atrocities.”
80
International Law Commission, “Draft Articles on Prevention and Punishment of Crimes Against Humanity” (adopted May 22, 2019), U.N. Doc A/74/10.
81
Human Rights Watch, “Q&A: Towards a Crimes Against Humanity Treaty,” October 6, 2022, accessed August 4, 2023, https://www.hrw.org/news/2022/10/06/qa-towards-crimes-against-humanity-treaty.
82
Human Rights Watch, “UN Decision to Advance Crimes Against Humanity Treaty,” November 28, 2022, accessed August 4, 2023, available at https://www.hrw.org/news/2022/11/18/un-decision-advance-crimes-against-humanity-treaty.
83
Just to name a few: Human Rights Watch, “Human Rights Watch Recommendations on the International Law Commission’s Draft Articles on Prevention and Punishment of Crimes Against Humanity,” April 11, 2023, accessed August 4, 2023, https://www.hrw.org/news/2023/04/11/human-rights-watch-recommendations-international-law-commissions-draft-articles; Amnesty International, “General Recommendations to States for a Convention on Prevention and Punishment of Crimes against Humanity: U.N. GA Sixth Committee First Resumed Session on the Draft Articles on Prevention and Punishment of Crimes against Humanity,” March 3, 2023, accessed August 4, 2023, https://www.amnesty.org/en/documents/ior40/6497/2023/en/; Hugo Relva, “The Draft Convention on Crimes Against Humanity Should Enshrine the Highest Standards of International Law,” Just Security, October 4, 2021, accessed August 4, 2023, https://www.justsecurity.org/78430/the-draft-convention-on-crimes-against-humanity-should-enshrine-the-highest-standards-of-international-law/.
84
D’Alessandra and Raj Singh, “Operationalizing Obligations to Prevent Mass Atrocities.”
85
D’Alessandra, “The Accountability Turn.”
86
D’Alessandra et al., “Anchoring Accountability for Mass Atrocities,” 14.
87
Ibid.
88
D’Alessandra, “UN Accountability Mandates in International Justice.”
89
Gradual changes in the approach of and investment towards such mandates over time are detailed in the Oxford “Anchoring Accountability” report (D’Alessandra et al., see note 30 above) in Sections II, III, and IV. More simply, the immense discrepancy in resourcing and in the potential reach of their respective capabilities can also be gleaned by looking at the size of budgets — with each of the three investigative mechanisms operating with budgets between 15 and 25 million dollars per year, while HRC-mandated investigations having to do with yearly budgets between 1-5 million dollars. See, for example, UNGA Res. 77/262, 41; UNGA Res. 76/245, 43; UNGA Res. 75/252, 49; UNGA Res. 74/262, 46; UNGA Res. 73/352/Add.6, 26. More generally, see: D’Alessandra, “UN Accountability Mandates in International Justice.”
90
D’Alessandra et al., “Anchoring Accountability for Mass Atrocities,” 20.
91
Ibid.
92
Ibid.
93
Ibid.
94
D’Alessandra, “Conceptualizing Great Power Perpetrators.”
95
D’Alessandra et al., “Anchoring Accountability for Mass Atrocities.”
96
A research review on the effectiveness of fact-finding as an atrocity prevention tool is currently under review, but it has not yet been completed by the Simon-Skojdt Center for the Prevention of Genocide. See: United States Holocaust Memorial Museum, “Tools for Atrocity Prevention,” accessed August 4, 2023, https://preventiontools.ushmm.org/fact-finding.
97
Julian Borger, “China and Russia Accused of ‘Waging War on Human Rights’ at UN,” The Guardian, May 27, 2018, accessed August 4, 2023, https://www.theguardian.com/world/2018/mar/27/china-and-russia-accused-of-waging-war-on-human-rights-at-un.
98
D’Alessandra, “Conceptualizing Great Power Perpetrators.”
99
Statute of the International Court of Justice, Article 38(1).
100
Statute of the International Court of Justice, Article 38(1).
101
Art. 36 and 37 ICJ Statute.
102
Christopher Greenwood, “The International Court of Justice and the Development of International Law,” International Review of the Red Cross (2022): 920-921, accessed August 4, 2023, https://international-review.icrc.org/articles/the-international-court-of-justice-and-the-development-of-ihl-920.
103
Convention on the Prevention and Punishment of the Crime of Genocide (adopted December 9, 1948, entered into force January, 12 1951) 78 UNTS 277, Article IX.
104
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (adopted December 10, 1984, entered into force June, 26 1987) 1465 UNTS 85, Article 30(1).
105
International Convention on the Elimination of All Forms of Racial Discrimination (adopted March 7, 1966, entered into force January 4, 1969) 660 UNTS 195, Article 22; Convention on the Elimination of All Forms of Discrimination against Women (adopted December, 18 1979, entered into force September 8, 1981) 1249 UNTS 13, Article 29(1).
106
Article 90 of the 1977 Additional Protocol I to the 1949 Geneva Conventions instead provides parties to an armed conflict with an independent and confidential mechanism to inquire into “any facts alleged to be a grave breach […] or other serious violation of the Conventions or of this Protocol” called the International Humanitarian Fact-Finding Commission. However, this treaty body has rarely if ever been operationalized. See International Committee of the Red Cross, “The International Humanitarian Fact-Finding Commission,” Advisory Service in International Humanitarian Law, April 2001, accessed August 4, 2023, available at https://www.icrc.org/en/doc/assets/files/other/fact_finding_commission.pdf.
107
See International Court of Justice, “Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar),” accessed August 4, 2023, https://www.icj-cij.org/case/178.
108
International Bar Association, “The Gambia Brings Historic Genocide Case against Myanmar,” accessed August 4, 2023, https://www.ibanet.org/article/02A82017-63C8-4C20-A9EB-BC9DBFCF26BC; Md. Rizwanul Islam, “The Gambia v. Myanmar: An Analysis of the ICJ’s Decision on Jurisdiction under the Genocide Convention,” American Society of International Law, ASIL Insights 20, no. 9 (September 21, 2022), accessed August 4, 2023, https://www.asil.org/insights/volume/26/issue/9; Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar) (Preliminary Objections: Judgement) ICJ General List No. 178 (July 22, 2022), para. 112: “any State party to the Genocide Convention may invoke the responsibility of another State party, including through the institution of proceedings before the court, with a view to determining the alleged failure to comply with its obligations erga omnes partes under the Convention and to bringing that failure to an end.”
109
Toby Sterling and Poppy Mcpherson, “World Court Says It Has Jurisdiction, Myanmar Genocide Case to Proceed,” Reuters, July 22, 2022, accessed August 3, 2023, https://www.reuters.com/world/asia-pacific/world-court-rule-whether-myanmar-genocide-case-can-proceed-2022-07-22/.
110
International Court of Justice, “Application of the Convention on the Prevention and Punishment of the Crime of Genocide (The Gambia v. Myanmar) — Provisional Measures,” accessed August 4, 2023, https://www.icj-cij.org/case/178/provisional-measures.
111
U.N. Charter, Article 94(2).
112
Alleged Violations of Sovereign Rights and Maritime Spaces in the Caribbean Sea (Nicaragua v. Colombia) (Preliminary Objections: Judgement) ICJ General List No. 155 (March 17, 2016). Despite Colombia’s preliminary objection on the matter, the ICJ refrained from ruling on whether it possesses post-adjudicative enforcement jurisdiction.
113
The wording of the resolution enables the ICJ “to elect three judges to form an ad hoc committee” where it “indicates provisional measures.” See: Resolution Concerning the Internal Judicial Practice of the Court (Rules of Court, Article 19), December 21, 2020, Art. 11.
114
Paola Patarroyo, “Monitoring Provisional Measures at the International Court of Justice: The Recent Amendment to the Internal Judicial Practice,” EJIL:Talk! (January 22, 2021).
115
Allegations of Genocide under the Convention on the Prevention and Punishment of the Crime of Genocide (Ukraine v. Russian Federation: 32 States intervening) (Provisional Measures: Order) ICJ General List No. 182 (March 16, 2022), para. 2.
116
Ibid., para. 86; U.N. News, “International Court Orders Russia to ‘Immediately Suspend’ Military Operations in Ukraine,” March 16, 2022, accessed August 4, 2023, https://news.un.org/en/story/2022/03/1114052.
117
Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v. Russian Federation) (Provisional Measures: Order) ICJ General List 166 (April 19, 2017).
118
Ibid., para. 106(b).
119
Ibid., para. 106(a); Kateryna Busol, “Can Ukraine’s Appeal to the International Criminal Court Work?,” Chatham House, April 3, 2020, accessed August 4, 2023, https://www.chathamhouse.org/2020/04/can-ukraines-appeal-international-courts-work.
120
Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v. Russian Federation) (Preliminary Objections: Judgement) ICJ General List 166 (November 8, 2019), para. 134.
121
Application of the International Convention for the Suppression of the Financing of Terrorism and of the International Convention on the Elimination of All Forms of Racial Discrimination (Ukraine v. Russian Federation) (Armenia, Application Instituting Proceedings), available from https://www.icj-cij.org/sites/default/files/case-related/180/180-20210916-APP-01-00-EN.pdf.
122
Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Armenia v. Azerbaijan) (Modification of Provisional Measures: Order) ICJ General List No. 180 (6 July 2023), para. 2.
123
Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Azerbaijan v. Armenia) (Azerbaijan, Application Instituting Proceedings) ICJ General List No. 181 (23 September 2021).
124
Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Armenia v. Azerbaijan) (Provisional Measures: Order) ICJ General List 180 (7 December 2021).
125
Application of the International Convention on the Elimination of All Forms of Racial Discrimination (Armenia v. Azerbaijan) (Provisional Measures: Order) ICJ General List 180 (22 February 2023).
126
Armenia instituted proceedings and requested provisional measures on September 16, 2021. Since then, it has requested the modification of the initially requested provisional measures as well as filing two further fresh requests for provisional measures (with accompanying requests for modification. See: Application of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Canada and the Netherlands v. Syrian Arab Republic) (Canada and the Netherlands, Joint Application Instituting Proceedings), available from https://www.icj-cij.org/sites/default/files/case-related/188/188-20230608-APP-01-00-EN.pdf.
127
Application of the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Canada and the Netherlands v. Syrian Arab Republic) (Canada and the Netherlands, Joint Request for the Indication of Provisional Measures) paras. 33(a)(i) and (ii), available from https://www.icj-cij.org/sites/default/files/case-related/188/188-20230608-REQ-01-00-EN.pdf.
128
David Gritten, “Netherlands and Canada Ask World Court to Rule on Syria Torture Claims,” BBC, June 12, 2023, accessed August 4, 2023, https://www.bbc.co.uk/news/world-middle-east-65882063.
129
Oberlandesgericht Koblenz, “Life imprisonment due to crimes committed against humanity and murder – sentencing of a suspected member of the Syrian secret service,” January 17, 2022, accessed August 4, 2023, https://olgko.justiz.rlp.de/presse-aktuelles/detail/life-imprisonment-due-to-crimes-committed-against-humanity-and-murder-sentencing-of-a-suspected-member-of-the-syrian-secret-service. Also see: Federica D’Alessandra, “Pursuing Accountability for the Crime of Aggression Against Ukraine,” Revue Europeene du Droit 5 (2023), accessed August 4, 2023, https://geopolitique.eu/en/articles/pursuing-accountability-for-the-crime-of-aggression-against-ukraine/.
130
Stephanie van der Berg, “Netherlands, Canada Take Syria to World Court Over Torture Claims,” Reuters, June 12, 2023, accessed August 3, 2023, https://www.reuters.com/world/netherlands-canada-take-syria-world-court-over-torture-claims-2023-06-12/; Government of the Netherlands, “The Netherlands and Canada Bring Case Against Syria Before International Court of Justice,” June 12, 2023, accessed August 4, 2023, https://www.government.nl/latest/news/2023/06/12/the-netherlands-and-canada-to-bring-case-against-syria-before-international-court-of-justice.
131
Human Rights Watch, “Developments in the Gambia’s Case Against Myanmar at the International Court of Justice,” February 14, 2022, accessed August 4, 2023, https://www.hrw.org/news/2022/02/14/developments-gambias-case-against-myanmar-international-court-justice#whataretheprov.
132
Statute of the International Court of Justice, Article 41(1).
133
Syria Justice and Accountability Centre, “Q&A: Syria Brought the International Court of Justice,” July 20, 2023, accessed August 4, 2023, https://syriaaccountability.org/syria-brought-to-the-international-court-of-justice/.
134
Eric Posner and Miguel Figueiredo, “Is the International Court of Justice Biased?,” Journal of Legal Studies 34, no. 2 (2005): 599; U.N. Press, “States Not Adhering to International Obligations Undermine Rule of Law, Sixth Committee Delegates Say, as Debate on Principle Concludes” (October 14, 2019) GA/L/3597, https://press.un.org/en/2019/gal3597.doc.htm; United States, “Observations of the United States of America On the Human Rights Committee’s Draft General Comment No. 36 On Article 6 — Right to Life” (October 6, 2017), detailing U.S. objections to the Human Rights Committee’s interpretation of the ICCPR and its mandate; see Rosa Freedman and Jacob Mchangama, “Expanding or Diluting Human Rights?: The Proliferation of United Nations Special Procedures Mandates,” Human Rights Quarterly 38, no. 1 (2016): 164, 189.
135
Chiara Giorgetti, “What Happens after a Judgment Is Given? Judgment Compliance and the Performance of International Courts and Tribunals,” in The Performance of International Courts and Tribunals, ed. Theresa Squatrito et al. (Cambridge: Cambridge University Press, 2018), 329, 332; Speech by H. E. Judge Rosalyn Higgins, President of the International Court of Justice at the United Nations Security Council’s Thematic Debate on Strengthening International Law, June 22, 2006; Antonio Augusto Cançado Trindade, “The Evolution of Provisional Measures of Protection Under the Case-Law of the Inter-American Court of Human Rights (1987-2002),” Human Rights Law Journal 24, no. 5-8 (2003): 162, 165.
136
Human Rights Watch, “Developments in the Gambia’s Case Against Myanmar.”
137
Ibid.
138
D’Alessandra, “Conceptualizing Great Power Perpetrators.”
139
U.S. Holocaust Memorial Museum, Pursuing Justice for Mass Atrocities: A Handbook for Victim Groups, March 2021, available at https://www.ushmm.org/genocide-prevention/reports-and-resources/pursuing-justice-for-mass-atrocities.
140
This is a controversial take among international justice observers, who also recognize that judicial processes — or any internationally mandated accountability and redress mechanisms — will, inevitably, carry within them certain representation biases that are the by-product of the (often more privileged) perspectives of those playing a role in activating or pursuing them. Indeed, the need to bring international accountability mechanisms in better alignment with the needs and perspectives of the most vulnerable among those affected remains a topic of hot debate among scholars and practitioners within the accountability landscape. See, for example: Payam Akhavan, Sareta Ashraph, Barzan Barzani, and David Matyas, “What Justice for the Yazidi Genocide?: Voices from Below,” Human Rights Quarterly 42 (2020): 1-47.
141
Michael Ramsden, “Strategic Litigation before the International Court of Justice: Evaluating Impact in the Campaign for Rohingya Rights,” European Journal of International Law 33, no. 2 (May 2022): 441-472.

Recent & Related

Commentary

One Year Ago, War Broke Out in Sudan. What Can Be Done to Prioritize Protection of Civilians?

Julie Gregory

Project Note

Looking Back at APSG Throughout 2023

Ryan Fletcher

Research

A Grim Anniversary: Marking Two Years of the Russo-Ukraine War