It was pointed out in Chapter 1 that the General Assembly has since the adoption of the Uniting for Peace Resolution of 1950, in theory if not always in practice, an increasingly important role to play in matters of peace and security. Indeed, it was argued in Chapter 1 that the General Assembly’s role in peace and security matters could help to bring about a more democratic or representative collective security regime, especially in light of growing demands for Security Council reform, which is perhaps still a long way off.
192 Leslie Green The Contemporary law of armed conflict 2nd (2000) Manchester University Press, Manchester, 9
– 10. With reference to the SC’s powers under Ch VII UN Charter to maintain peace and security, the author stated: ‘[As] with the Covenant and all other agreements seeking to control aggression, there is no suggestion that any individual responsible for resorting to aggression shall be subject to criminal proceedings. However, in view of the atrocities committed during the conflicts consequent upon the break-up of the former Yugoslavia and during the civil war in Rwanda, the Security Council decided that action was necessary under Chapter VII and authorised the despatch of military forces as well as the establishment of ad hoc war crimes tribunals.’ Thus, a combination of military and legal responses to threats to international peace and security.
It is tempting to think of the General Assembly as a ‘world parliament’ or the natural place to search for the voice or voices representing ‘the international community’. However, the structure of the UN Charter and the powerful political role that the big powers, especially the permanent members of the Security Council (United States, the United Kingdom, Russia, China and France) play, limit the impact and role of the General Assembly in the peace and security context, and also with regards to use of force matters. Siegfried Magiera commented that the [General Assembly] is a conference of states, not a world parliament of independent representatives of the peoples.’194 But whether one regards the General Assembly as the (perhaps idealistic) ‘Parliament of Man’, or as an ineffective political talk shop,195 this UN body has a role to play in questions
surrounding the use of force by states. Christine Gray points out that since the end of the Cold War, the debates and resolutions of the General Assembly are often the results of consensus, rather than confrontation. During the Cold War it was much more common for blocs of states to object to the General Assembly adopting resolutions on perceived acts of ‘aggression’. The argument was that only the Security Council could make determinations of aggression under its Chapter VII
194 Siegfried Magiera ‘Chapter IV. The General Assembly’ in Simma (supra) Vol I 247-256.
195 Paul Kennedy, in his book The Parliament of Man: The Past, Present, and Future of the United Nations
(2006), Random House, New York, argues that despite all the criticism against the UN, including the notorious ineffectiveness of General Assembly measures, the world needs the UN, and organs like the General Assembly needs more power, not less. Rosemary Righter, who reviewed Kennedy’s book in the London Times, was very critical about Kennedy’s assumptions and his idealistic view of the UN dominated international system. She wrote: ‘The General Assembly’s obsession with process, rather than results, is reflected in the inconsequentiality of most of its decisions. UN files are filled with mould-pocked resolutions which never stood a chance of being implemented, reports and requests for further reports. Few of these documents are read by delegates, let alone by their governments. In New York alone, a recent inventory – the first attempted since 1956 – identified no fewer than 9,000 “active mandates” which the secretariat is supposed to be implementing. A body that cannot even organize its own agenda is unlikely to contribute to the better ordering of the world. There and elsewhere in the UN, the grinding of the mill has come to matter more than the quality of the flour produced.’ See review by Rosemary Righter ‘What use the UN?’ Timesonline, http://tls.timesonline.co.uk (5 Dec 2006).
powers.196 Even so, Gray further points out that resolutions of the General
Assembly ‘tend not to use the language in the Charter in Articles 2(4) [use of force] and 51 [self-defence], nor to refer to them expressly’197. Gray makes the argument (albeit tentatively) that condemnation of a particular use of force by an organ such as the General Assembly (or, for that matter, the Security Council) ‘is conclusive or at least persuasive as to illegality.’198 The author uses the curious argument that
the closer the political ties between the states involved (for example condemnation by the United Kingdom of the use of force by the United States), the stronger the evidence of illegality. Must one deduce from this argument that other resolutions on the use of force might be so clouded by partisan political or other considerations that findings on the illegality of the use of force in such cases need to be treated with scepticism? This is not a simple matter. Gray points to the following:
‘It is … common for the Security Council and the General Assembly’s initial response to a conflict to be to avoid any finding of responsibility and simply to call for an end to all [armed] intervention.’199
And further:
‘Express findings of aggression (or of aggressive acts) are extremely unusual. It has been only states which were in some sense seen as outlaws which have been condemned for aggression by both the Security Council and the General Assembly; Portugal when it refused to relinquish its colonial possessions, Southern Rhodesia after its unilateral declaration of independence, Israel after its occupation of the
196 Gray (supra) 13. 197 Gray (supra) 14. 198 Gray (supra) 15. 199 Gray (supra) 16.
West Bank, Gaza and other territory, South Africa during apartheid and its occupation of Namibia, and Indonesia after its invasion of East Timor.’200
The reluctance of the General Assembly (and also the Security Council) to name specific states and to apportion blame and responsibility for the illegal use of armed force can perhaps be explained with reference to a number of factors, including the powers given to these organs under the UN Charter, and also political factors.201 The General Assembly’s reluctance to apportion blame to parties to a conflict, or where a state has used armed force, should not necessarily be seen as a particular weakness of the General Assembly. The scope of the General Assembly’s powers and duties was intended by the drafters of the UN Charter to create a real discussion forum for the world. This feature certainly has its own potential advantages from a peace and security perspective. In brief, the General Assembly’s duties and powers should be seen as complementary to that of the Security Council and International Court of Justice. With reference to Article 10 of the UN Charter, Hailbronner and Klein summarised the role of the General Assembly as follows:
‘Art. 10 vests the [General Assembly] with a general power of discussion and recommendation regarding any questions which come within the scope of the Charter (the ‘comprehensive jurisdiction’ of the [General Assembly]). The [General Assembly] represents the most prominent forum for the discussion of world politics and is therefore also described as the ‘town meeting of the world’ and the ‘open conscience of humanity’. Taking into account the wide-ranging goals and principles which are stipulated in the UN Charter, there are hardly any political questions of international importance not covered by the [General Assembly’s] power of discussion contained in Art. 10. On the other hand, the breadth and vagueness of the formulation of the scope of its responsibility mirrors the lack of power to make
200 Gray (supra) 17.
binding decisions. So long as the [General Assembly] may only make
recommendations that are usually of a non-binding nature … there is no real need in practice to lay down and define more precisely its area of responsibility.’202
This last mentioned aspect of the General Assembly seems to be both a strength and a weakness, depending on one’s perspective. If the General Assembly condemns the use of force in a particular instance, but the condemnation is not followed with action; such condemnation would amount to acquiescence.203 Christine Gray rightly depicts this line of argument as rather extreme, for a number of reasons, but not the least because this argument does not take into account the reaction of states (other than formal, binding resolutions) to the use of force.204 And reaction to the use of force in the General Assembly is always relevant, if not formally, at least as evidence of how the international community view a particular instance of the use of force.
2.5 A brief overview of the content of the prohibition of the use of force, and