On the same date, five years later, Christof Heyns, then United Nations Special Rapporteur on extrajudicial, summary or arbitrary executions, warned countries at the U.N. Human Rights Council about a new threat to humanity: autonomous weapons systems. His presentation and report kickstarted multilateral discussions about how to address the next generation of warfare. Unfortunately, those talks have stalled, and there is a serious risk that rapid technological developments will outpace diplomatic results.

May 30 marks milestones for both these humanitarian disarmament moments: the 15th anniversary of the cluster munitions treaty, and the 10th of Heyns’ call for a moratorium on development and use of autonomous weapons systems, which would select and engage targets based on sensor processing rather than human inputs.

Although political and procedural hurdles have impeded progress on addressing autonomous weapons systems, proponents of a new treaty should look to the success of the Convention on Cluster Munitions, and the negotiations that led to it, for inspiration.

Convention on Cluster Munitions: An Effective Tool

Cluster munitions are large weapons that contain dozens or hundreds of smaller weapons known as submunitions. They kill and injure civilians at the time of attack, especially when used in populated areas, because the submunitions are dispersed widely. In addition, many of the submunitions do not explode on impact as designed – instead, they linger like landmines, endangering civilians for months or years to come.

The Convention on Cluster Munitions absolutely bans the production, transfer, stockpiling, and use of cluster munitions, as well as assistance with any of those activities. It also requires States parties to destroy stockpiles, clear cluster munition remnants, and assist victims.

As of this May, the Convention has 111 States parties and an additional 12 signatories, and it has done much to achieve its goal of ending the suffering and casualties caused by cluster munitions. According to the Cluster Munition Monitor 2022 report, States parties have destroyed 99 percent their stockpiles, removing 1.5 million cluster munitions and 178 million submunitions from countries’ arsenals. While States parties could do more, they have cleared wide swaths of land and provided a range of aid to victims.

States parties have also complied with the prohibition on use, and the stigma generated by the Convention has pressured some States not party to the treaty to cease their use. The United States, for example, has not used the weapon since 2003, except for one isolated attack in Yemen.

No treaty is a panacea. Russia and Ukraine, neither of which is a party, have both used cluster munitions since Russia’s full-scale invasion of Ukraine. Their use has caused hundreds of casualties for Ukrainian civilians. But these attacks have generated international condemnation and NATO States have rejected Ukraine’s request for transfers of cluster munitions.

Autonomous Weapons Systems: Struggle for New Law

Meanwhile, countries have yet to agree to a comparable treaty on autonomous weapons systems even though 91 countries have called for a legally binding instrument. As with cluster munitions, there are concerns that autonomous weapons systems would be indiscriminate, in this case because they would lack the technology and human judgment to distinguish between legitimate military targets and civilians or surrendering or wounded soldiers. Delegating life-and-death determinations to machines also raises a host of other ethical, legal, accountability, and security issues.

Six months after Heyns presented the issue to the Human Rights Council in 2013, the international debate shifted to the Convention on Conventional Weapons (CCW) because most countries wanted to deal with the issue through an international humanitarian law framework rather than an international human rights law body. Discussions in this forum allowed for countries to refine their policy positions, and convergence has emerged around a “two-tier” approach that would include both prohibitions and regulations on autonomous weapons systems.

Proponents use varied terminology, but the version espoused by many countries as well as Human Rights Watch and the Stop Killer Robots campaign calls for prohibiting autonomous weapons that select and engage targets without meaningful human control and adopting regulations to ensure that all other autonomous weapons systems can only operate with meaningful human control. Civil society organizations, along with the International Committee of the Red Cross and some countries, have also called for prohibiting weapons systems that target humans.

According to this view, meaningful human control requires that systems be understandable and predictable and constrained in the temporal and geographic scope of their operation.

Despite this widespread convergence, the CCW operates by consensus, which has prevented countries from agreeing to negotiate a legally binding instrument since a single country can delay and disrupt the process. Some countries, such as the United States, United Kingdom, Australia, South Korea, and others, prefer voluntary measures. Russia has repeatedly obstructed progress even at that level, seeking to weaken the annual mandate of the CCW Group of Governmental Experts that deals with the issue.

At the recent Experts meeting in Geneva in mid-May, States discussed ways to address what they refer to as “lethal autonomous weapons systems” (LAWS). On the last night, diplomats negotiated until past midnight trying to find compromise on a report of their conclusions, but the language became increasingly watered down. While the draft never included a mandate to negotiate a legally binding instrument, even though that is what most countries wanted, it reflected the convergence around a two-tiered approach and support for requiring elements like predictability and understandability in the use of force.

But by early morning, the only consensus States could reach was language like this weak excerpt from final report of the Group of Governmental Experts:

[T]he Group concluded that:

(a) IHL continues to apply fully to the potential development of LAWS;

Weapons systems based on emerging technology in the area of LAWS must not be used if they are incapable of being used in compliance with IHL.

In essence, it means that it is unlawful to use a weapon system that cannot be used lawfully – a true but rather obvious statement that could have been made before the meeting.

Form over Forum: Lessons from the Cluster Munitions Process

The inability to make progress under the CCW process indicates that it is time to seek another forum, and the Convention on Cluster Munitions offers lessons in that regard. In addition to being a successful humanitarian disarmament instrument, it was achieved through a process that serves as a useful model for autonomous weapons systems treaty negotiations.

Multilateral efforts to address the civilian suffering caused by cluster munitions also began in the CCW, and they were similarly stymied by consensus. In that case, countries pursued an independent process outside of the U.N., known as the Oslo Process, following the precedent of the 1997 Mine Ban Treaty negotiations.

The Oslo Process had four key benefits, which address shortcomings of the CCW forum. While there are some subtle differences, these characteristics can also be true of the U.N. General Assembly, as shown by the negotiations of the Treaty on the Prohibition of Nuclear Weapons. The General Assembly is another possible forum for negotiating an autonomous weapons systems treaty.

First, the Oslo Process was open to everyone, but participants had to commit at the beginning to the same goal, in that case to prohibit cluster munitions and adopt certain remedial measures. That step led to more effective and efficient negotiations by ensuring that participating countries agreed on the underlying purpose from the start. Second, countries also agreed early on to a deadline of less than two years, which expedited the process.

Third, negotiating States were not bound by consensus because their rules of procedure allowed for voting. They still sought to achieve unanimity on all matters and, in the Oslo Process, they never needed to resort to a vote, but the option was there, which prevented the threat of a veto leading to the lowest common denominator.

Finally, the Oslo Process was inclusive, involving a range of countries, international organizations, civil society, and survivors. This characteristic contrasts with the emerging CCW trend, exemplified at the last meeting when Russia insisted that observers be removed from informal sessions over the objections of 21 countries that supported their participation and the principle of inclusion.

Ultimately, countries that are serious about addressing the threats posed by autonomous weapons systems should not let the forum for negotiations dictate the form of their response to those threats. They should not remain beholden to the current CCW process, which seems after 10 years to have run its course. Instead, they should hold firm to their commitment to pursue a treaty on autonomous weapons systems and choose a process that will allow them to achieve it.

On this 15th anniversary, proponents of an autonomous weapons systems treaty can look to the Convention on Cluster Munitions for guidance and motivation. It shows that an effective, efficient, and inclusive process can lead to life-saving results.

IMAGE: States parties to the Convention Conventional Weapons gathered at the United Nations in Geneva for talks on autonomous weapons systems from May 15-19, 2023. (Photo via the Stop Killer Robots Campaign)

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The Need for a New Crimes Against Humanity Treaty

The core aim of this process is to draft a treaty that could require States Parties to take on specific obligations to prevent and punish crimes against humanity, duties which are not imposed by existing legal regimes. This includes incorporating a unified definition of crimes against humanity in domestic law and taking steps to prosecute them in national courts. Such crimes include acts of murder, rape, torture, apartheid, deportations, persecution, and other offenses committed as part of a widespread or systematic attack against a civilian population based on a government or organizational policy. Notably, crimes against humanity may be committed at any time, not only in situations of internal or international armed conflict.

While the Rome Statute of the International Criminal Court (ICC) has made great headway in helping to define crimes against humanity, there is a strong rationale for advancing a specific treaty on crimes against humanity: a treaty will help to harmonize existing but inconsistent national laws; fix shortcomings of the Rome Statute by expanding the definitions of existing crimes and adding new ones; enlarge the grounds of persecution; include an obligation of prevention; and strengthen the legal regimes addressing these egregious crimes by establishing an obligation to prosecute or extradite when the alleged offender is present on a State’s territory. It can also stimulate trials at the domestic level.

The Sixth Committee’s Process Should Embrace Efforts to Make At-Risk Groups Visible

The draft treaty raises several concerns. Rather than incorporating existing treaty language wholesale, States should seize the opportunity to create a more progressive legal instrument that reflects developments in both international human rights law and dynamics at the U.N. Security Council. Doing so will build a stronger treaty that embraces the realities and experiences of at-risk groups when atrocities occur.

The Definition of Crimes Against Humanity

Let’s start with the text itself. The ILC draft articles adopt verbatim the language of Article 7 of the Rome Statute into Article 2 of the ILC draft articles, which defines “crimes against humanity.” Article 2 accordingly references, within that definition, “persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural, religious, gender, or other grounds that are universally recognized as impermissible under international law.” While the catch-all phrase “or other grounds” is included, it nonetheless permits non-enumerated groups for whom international law, and its protection remit, has developed since 1998 to remain anonymously lumped together. Without the disaggregation, which is essential to amplify and elevate protection needs of highly at-risk groups, many persons remain invisible. This is particularly true for groups that receive specific protection under international law due to enhanced risk such as women, children, and persons with disabilities.

Much work has been done to amplify and render more visible the victims of serious violations of international humanitarian law and international human rights law in the years since the Rome Statute was adopted. Advancements such as the development of policy papers by the Office of the Prosecutor for the ICC on the topics of Gender Persecution, Children, and Sexual and Gender-Based Crimes demonstrate that international criminal law is not static nor siloed, but instead a responsive and evolving framework that must actively seek to include those groups who are often forgotten. These progressive developments are relevant for the upcoming treaty process and should be borne in mind by the States debating and discussing the provisions of the draft articles.

Since the adoption of the Rome Statute, the U.N. Convention on the Rights of Persons with Disabilities (CRPD) – a core human rights convention approaching universal ratification – was adopted. Of note, it contains an innovative provision (Article 11), which addresses accounting for the protection needs of persons with disabilities in situations of risk, including armed conflicts, humanitarian emergencies, and natural disasters, and incorporates international humanitarian law, international human rights law, and other international legal domains (including international criminal law, international refugee law, and international environmental law) with relevance for protection.

Specific Protection Mandates Adopted by the U.N. Security Council

Other developments within the U.N. system regarding protection are important to note. Action by the U.N. Security Council has substantially elevated specific protection mandates through the adoption of Security Council Resolution 1325 (2000) on women, peace and security,  Security Council Resolution 1612 (2005) on children and armed conflict and, more recently, Security Council Resolution 2475 (2019) on the protection of persons with disabilities. Efforts are being made across the U.N. system to adopt intersectional approaches and to move away from superficial and  primarily symbolic references to protecting an undefined and generalized “vulnerable” groups to a more direct and meaningful inclusion of persons with disabilities in all aspects of U.N. operations.

This marks a significant shift away from the previous charity and medical approaches to disability, which all but render persons with disabilities invisible. Those models viewed persons with disabilities as objects who deserve pity or consider disability as something to be “cured,” rather than simply part of a person’s identity. Research released just prior to the CRPD’s drafting demonstrates how those approaches were, and in some ways still remain, prevalent within the U.N. human rights system. By contrast, the CRPD’s approach to disability – the social model – focuses on how an individual interacts with an environment that fails to accommodate them. Using the social model, it is a lack of ramps or large print books, not a person’s mobility impairment or low vision, that are disabling. This movement towards fuller recognition of the rights of persons with disabilities necessarily extends to the right to seek justice for violations of their rights, a right that is frequently denied.

Put simply, cutting and pasting Article 7 of the Rome Statue into a new treaty on crimes against humanity does not provide for the full incorporation of international human rights norms that have developed after the Rome Statute’s adoption, including those reflected in the CRPD such as the social model of disability, into the definition of crimes against humanity. To this end, the 4th Report of Professor Sean Murphy, the ILC Special Rapporteur for the ILC drafting process,noted that a group of U.N. special rapporteurs and independent experts urged during the ILC drafting process that persecution should be broadly delineated to include “persecution on grounds of language, social origin, age, disability, health sexual orientation, gender identity, sex characteristics and indigenous, refugee, statelessness or migration status.”

It is imperative that this more inclusive definition be reflected in the text of a treaty on crimes against humanity. And this is particularly important for persons with disabilities given the CRPD’s protection obligations on State Parties. Further,efforts to make visible gender-based crimes and crimes against children, which correspond to actions to account for these crimes by international criminal tribunals, demonstrate that it is possible to account for persons with disabilities in a similar manner.

Adopting a Progressive Human Rights Framework in the Crimes Against Humanity Treaty

The omission of an explicit mention of persons with disabilities and indeed other groups recognized as specifically protected under international law and under U.N. Security Council resolutions overlooks the history of abuse they have faced. For individuals with disabilities this lurid history, includes mass murder, and targeted killing; forced sterilization; involuntary medical and scientific experimentation; use of persons with disabilities as human shields, suicide bombers and booby-traps; institutionalization, sexual violence, human trafficking and forced disappearance; and attacks against buildings dedicated to the education, health care and rehabilitation of persons with disabilities.

In the light of this, disability merits direct reference as part of Article 2(h) regarding persecution,  thereby acknowledging that persons with disabilities and atrocities committed against them must be accounted for by the international criminal law framework. The inclusion of provisions specifically protecting other at-risk groups, whether children or women who fall under specific protection mandates, also must be acknowledged.

We know from prior experience that assuming intersectional interpretations, of norms designed to accord protection to the most at-risk populations, is simply not enough. This is especially true when those underlying marginalized populations are further marginalized by being designated within an “other” category. There is ample room to acknowledge hard-won advances in international law since the adoption of the Rome Statute and to maintain visibility of groups that have, if only relatively recently, been accorded specific protection based on specific and differentiated needs.

Any move that does not advance an inclusive understanding of crimes against humanity – in an attempt to avoid conflict with the Rome Statute and existing international criminal law – will be a disservice to survivors and a major step backwards in the Sixth Committee’s current efforts to ensure more inclusive justice.

IMAGE: The United Nations headquarters stands in Manhattan in New York City. (Photo by Spencer Platt/Getty Images)

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To address the needs of victims of armed conflict, personnel who work for humanitarian organizations and offices often feel the need to meet directly with perpetrators of war crimes. But there are limits on when and under what conditions any face-to-face engagement is sound and proper, especially when it involves meeting an individual who is a fugitive under a warrant for arrest by an international criminal tribunal. Indeed, when it comes specifically to United Nations officials and the prospect of meeting a person subject to a warrant for arrest by the International Criminal Court (ICC), codified guidelines issued by the UN Secretary-General state, “As a general rule, there should be no meetings between United Nations officials and persons who are the subject of warrants of arrest issued by the International Criminal Court.”

That’s what makes all the more remarkable a recent meeting of the UN Secretary-General’s Special Representative for Children and Armed Conflict – Virginia Gamba – with the Russian Federation Commissioner on Children’s Rights – Maria Lvova-Belova – who, along with President Vladimir Putin, is the only known Russian official subject to an arrest warrant by the ICC.

The arrest warrant for Lvova-Belova was issued by a Pre-Trial Chamber of the ICC on March 17, 2023 upon application by the Prosecutor. The warrant alleges that she is responsible for the war crimes of unlawful deportation and transfer of children from Ukraine to the Russian Federation.

On Friday, the UN Secretary-General’s spokesperson would not confirm the meeting taking place – despite repeated questions by journalists during a press conference. On Sunday, however, Gamba acknowledged the meeting in a statement lauding achievements from her trip to Moscow. Lvova-Belova had earlier made her own statement lauding the outcome of her meeting with Gamba.

The Legal and Policy Framework

Over nearly two decades ago, the United Nations entered into a formal agreement of cooperation with the ICC, including its Office of the Prosecutor. The UN General Assembly approved the Relationship Agreement between the United Nations and the International Criminal Court in September 2004 (A/RES/58/318), and the agreement entered into force the following month.

In line with the general obligations of the Relationship Agreement, in 2013 the UN Secretary-General issued guidelines – known as the “essential contacts policy” – that govern any potential meeting with a member of the UN Secretariat and a person subject to a warrant for arrest by the ICC (see “Guidance on contacts with persons who are the subject of arrest warrants or summonses issued by the International Criminal Court“). The Secretary-General transmitted the guidance to the President of the General Assembly and to the President of the Security Council (A/67/828 and S/2013/210). The Guidance states that it applies “to all parts of the Secretariat” and includes the following terms:

(1) “As a general rule, there should be no meetings between United Nations officials and persons who are the subject of warrants of arrest issued by the International Criminal Court.”

(2) “Contacts between United Nations officials and persons who are the subject of warrants of arrest issued by the International Criminal Court should be limited to those which are strictly required for carrying out essential United Nations mandated activities.”

(3) “When contacts are absolutely necessary, an attempt should be made, where possible, to interact with individuals of the same group or party who are not the subject of an International Criminal Court arrest warrant.”

The Guidance also explains that the contacts policy is pursuant to the obligations of the United Nations undertaken as part of the ICC Relationship Agreement. Specifically, the Guidance states: “It can be anticipated that persons who are the subject of arrest warrants issued by the International Criminal Court may deliberately seek to meet with United Nations officials in order to demonstrate their contempt for the Court and try to undermine its authority. … [T]he Relationship Agreement between the United Nations and the International Criminal Court requires the United Nations to refrain from any actions that would frustrate the activities of the Court and its various organs, including the Prosecutor, or undermine the authority of their decisions.”

Finally, the 2016 UN Manual on cooperation with the ICC explains: “A procedure has been established whereby OLA [the UN Office of Legal Affairs] informs the Prosecutor of the Court and the President of the Assembly of States Parties to the Rome Statute in advance of such meetings. The letter informs the Court of the meeting and explains why it is considered necessary.”

Assessment

On Friday, a reporter asked the UN Secretary-General spokesperson generally about “guidance given” to UN officials in terms of meeting with persons subject to an arrest warrant by the ICC. Here is that exchange:

Question: And what is the guidance given, I guess, to UN officials in terms of meeting with people who are wanted by the ICC?

Associate Spokesperson: Any guidance provided by the UN has been properly followed in the case of this visit. Yes. She did that according to all UN rules.

Just Security asked the Office of the Spokesperson for the UN Secretary-General whether the United Nations, including OLA, sent a letter to the ICC Prosecutor and President of the Assembly of States Parties to the Rome Statute in advance of Gamba’s meeting with Lvova-Belova (and if so what the letter stated in explaining the necessity of the meeting). No response was received at the time of publication.

[Update: Following publication, Spokesman for the Secretary-General, Mr. Stéphane Dujarric responded. “All procedures were followed for this visit, outlined in the cooperation agreement between the UN and the ICC,” he said. “She is indeed in Moscow and her activities there are part of the implementation of the mandate regarding children and armed conflict mandate that she is entrusted with, per relevant Security Council and also through the General Assembly,” Mr. Dujarric said.]

On Friday, U.S. Ambassador-at-Large for Global Criminal Justice Beth Van Schaack said, in a tweet, that such a meeting would be “deeply concerning.” Human rights groups including Human Right Watch (see also statements by Amnesty International officials) sharply criticized the meeting, as did international criminal law and humanitarian law scholars (Kim Thuy Seelinger; Mark Kersten; Kevin Jon Heller).

When asked about the reported meeting, Larry D. Johnson, who served as Assistant UN Secretary-General for Legal Affairs, told Just Security, “If the report is true, it’s outrageous as a violation and disregard by the secretariat of the guidelines meant to implement and operationalize a bilateral agreement between the ICC and the UN approved by the governments running both organizations.”

Claus Kress, Professor of International Law and Criminal Law at Cologne University in Germany, told Just Security:

“On the basis of the limited information available, it is not possible to reach a firm conclusion as to whether the UN envoy’s course of action in Moscow was in conformity with the Guidance, but one certainly understands Human Rights Watch’s concern very well: The rather vague and evasive reaction by the U.N. spokesperson does not give one the reassurance that the strict criteria set out in the Guidance for a direct contact under exceptional circumstances had been rigorously considered. In fact, the spokesperson does not even appear to have specifically referred to the Guidance despite its obvious specific relevance in the case at hand.”

Todd Buchwald, who served as U.S. Ambassador and Special Coordinator for Global Criminal Justice, in an email, told Just Security:

“The Secretary General’s ‘no contacts’ guidance prohibits contacts by UN officials with persons subject to ICC arrest warrants unless ‘strictly required for carrying out essential United Nations mandated activities.’ And it goes even further than that, providing that – even when contacts are absolutely essential – an attempt should be made to interact with other persons who are not subject to such arrest warrants. So the standard is high. Were these meetings ‘strictly required’? Were the activities ‘essential’? Was there compliance with the UN’s Best Practices Manual for UN-ICC cooperation, under which the UN’s Office of Legal Affairs would be informed ‘at the earliest possible time’ that the meeting was scheduled to take place and the UN lawyers would inform the ICC Prosecutor in advance of why the meeting was considered necessary. In addressing questions about the meetings on Friday, the Secretary-General’s spokesperson asserted that ‘any guidance provided by the UN has been properly followed,’ but her explanation did not back that up. Indeed, the spokesperson’s statements — that the UN envoy ‘is there in Moscow, really in line with her mandate’ and that she is doing this ‘as per her mandate’ – suggest the absence of any special circumstances that might justify an exception and she gave no indication of any advance coordination. A clear explanation by the Secretary-General would be much appreciated.

Beyond the implications under the ‘no contacts’ guidance, the UN envoy may well have turned herself into a witness in the ICC proceedings against Russian Commissioner Maria Lvova-Belova. What did the Commissioner say in these meetings? How did she defend the policy she is carrying out? There are any number of representations that the Commissioner may have made in the course of these meetings that would be relevant to the Prosecutor’s case or even to the Commissioner’s defense. Under the 2004 Relationship Agreement concluded with the ICC, the UN has committed itself to cooperating with the Court and the Prosecutor, including providing the Court ‘with such information or documents as the Court may request.’ The situation clamors for a straightforward affirmation that the UN remains committed to providing such cooperation.”

In April 2023, when Russia held the presidency of the UN Security Council, Lvova-Belova addressed the Council remotely by video. Junior diplomats represented the Council’s other fourteen members during the informal meeting held in a conference room, and when Lvova-Belova began her remarks, the representatives of Albania, Malta, the United Kingdom, and the United States walked out.

In an “extremely rare” move, the U.K. and U.S. missions blocked the meeting from being broadcast on the U.N.’s website.

“If she wants to give an account of her actions, she can do so in The Hague,” a U.K. spokesperson said at the time.

Photo image: Russian President Vladimir Putin meets with Commissioner for Children’s Rights Maria Lvova-Belova at the Kremlin in Moscow on March 9, 2022. (Photo by Mikhail Klimentyev / SPUTNIK / AFP)

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IMAGES (left to right): Natural disaster and its consequences (via Getty Images); In this picture taken on September 28, 2022, an internally displaced flood-affected family sits outside their tent at a makeshift tent camp in Jamshoro district of Sindh province (Photo by Rizwan Tabassum/AFP via Getty Images; Trees smolder and burn during the Dixie fire near Greenville, California on August 3, 2021. – Numerous fires are raging through the state’s northern forests, as climate change makes wildfire season longer, hotter and more devastating. (Photo by JOSH EDELSON/AFP via Getty Images)

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The fires scorched more than 13,000 acres of the Indio-Maíz Biosphere Reserve, a tropical preserve in the southeast and home to several Indigenous communities and endangered wildlife. Ortega and Vice President Rosario Murillo, his wife, responded with total negligence to the point of refusing foreign aid offered by Costa Rica. Small groups of university students took to the streets in protest. To change the conversation, Ortega decreed new reforms to pension plans that would have significantly cut retirees’ pensions. That only stoked the flames of anger. The mobilizations and calls for change got larger. Within days, hundreds of thousands of students, pensioners, farmers, feminists, and businesspeople were marching in the streets of the capital city, flying blue and white national flags, and demanding a more democratic future.

But in the five years since, political, economic, and social conditions have only gotten worse. Nicaragua has become a true dictatorship with no discernible vision beyond keeping the Ortegas and their cronies in power. The United States is one of the only actors positioned to support Nicaragua’s path back to democracy, but to be successful, it must be far more strategic and stay the course over the long term.

So how did things go so wrong in Nicaragua?

In the late 1970s, a left-wing revolutionary guerrilla group emerged in Nicaragua – the Sandinistas – and successfully overthrew the 40-year Somoza family dynastic dictatorship. The Sandinista movement ushered in a new social policy in education, healthcare and land reform intended to benefit the broader Nicaraguan populace. Among the leading luminaries was a charismatic young leader named Daniel Ortega, who would become president in 1985 (he lost his re-election bid in 1990).

The Sandinista revolution was short-lived. Those unhappy with the Sandinista reforms created a rebel movement, the Contras, made up of Somoza sympathizers and reactive counterrevolutionaries. With Ronald Regan’s election in 1980, Nicaragua quickly became a Cold War proxy battleground between Washington, Russia, and Cuba as they vied for influence and power. The Reagan administration prioritized funding the Contras (albeit illegally – the Iran Contra Affair) in a bloody civil war against the Sandinista government that took the lives of an estimated 50,000 Nicaraguans.

Fast forward through a few center-right governments in the 1990s and the natural disasters, political corruption, and repressive monetary policy that marked the early 2000s, and we find a people disillusioned once more. And so, when Ortega, the former revolutionary turned president, runs for office again in 2006, he wins.

This time, however, the socially minded young leader had morphed into something unrecognizable. From 2007 to 2018, Ortega and Murillo used corruption, cronyism, populism, and propaganda to create an authoritarian government without institutional counterweights. They implemented a social policy of partisan patronage and cronyism that utterly failed to reduce the nation’s profound social and economic inequities. And Ortega has been doubling down on repression and violence to keep his tenuous grip on power.

Crimes Against Humanity, a Sham Election, and a Mass Exodus

The regime responded to the peaceful protests in April 2018 with a lethal campaign that left 355 people dead, thousands injured, and hundreds kidnapped and imprisoned without due process. The Group of Human Rights Experts on Nicaragua, established by the United Nations, recently concluded that since those uprisings, the Nicaraguan government has committed and continues to commit crimes against humanity with total impunity.

On top of the ongoing violence against his own people, Ortega has taken no chances with any form of dissent or opposition to his rule at the electoral level either. Ahead of the 2021 presidential elections, Ortega and Murillo imprisoned 40 political opponents, including seven presidential candidates. Political prisoners were tortured, starved, and completely cut off from the outside world. The election itself was a sham and in no way free and fair, but nonetheless placed Ortega back in power for another five years.

The political landscape has deteriorated to the point that Ortega’s governance has destabilized the country and the region. Hundreds of activists, human rights defenders, and journalists have fled into exile in neighboring countries to escape the surveillance and repression of the government. More than 10 percent of Nicaragua’s population of 6 million have also fled the country, many making their way on a perilous journey to the U.S. southern border in search of a safer life (in the first six months of 2022, the number of Nicaraguans taken into custody by U.S. Customs and Border Protection rose 158 percent compared with the same period in 2021).

Whether for good or ill, the United States has long maintained an outsized influence and role in Nicaragua, and the U.S. government under both presidents Donald Trump and Joe Biden recognized the need to act against its descent into authoritarianism. Both administrations, to their credit, have taken significant actions against Ortega, albeit for wildly different political reasons. Trump issued sanctions against top political figures, including Murillo, issued Executive Order 13851 in November 2018 declaring Nicaragua a national emergency threat to the United States, and ensured that the United States played a key leadership role in the Organization of American States Working Group on Nicaragua, which was tasked with finding a peaceful and sustainable solution to the ongoing crisis. In December of the same year, Congress passed the Nicaraguan Human Rights and Anticorruption (NICA) Act, imposing restrictions and sanctions on institutions and individuals responsible for the Nicaraguan government’s violence and infringement of the civil rights of protestors.

When Biden took office, his administration continued to take a hard line on Ortega’s actions, issuing more sanctions, and amending the Trump executive order to sanction various sectors of the economy and impose visa restrictions on more than 500 Nicaraguan individuals and their family members connected to the regime. Congress also passed the RENACER Act in November 2021, which holds Ortega’s government accountable for electoral fraud and ongoing human rights violations. What’s more, other countries and blocs – including the United Kingdom, Canada, and the European Union – have followed the U.S. lead on actions against the Ortega government.

These have been important steps to try to keep Ortega’s government accountable, and analysts say that U.S. policy actions have shown some signs of impact, albeit limited due to lack of consistency and proportionality to behaviors of the regime. For example, sanctions appear to have been a contributing factor when in March, the regime released 222 political prisoners and placed them on a plane to the United States. (In a cruel twist, Ortega stripped them of their citizenship mid-flight; though free, they lost their nationality, property, and access to bank accounts in Nicaragua.) Another 66 people remain unjustly imprisoned.

Potential Diplomatic Tools and Long-Term Strategies

On the whole, however, U.S. policy towards Nicaragua under the last several administrations has been largely ad hoc, appears to lack a clear roadmap towards the end goal of a restoration of democracy and regional security, and fails to consistently coordinate with other countries. As Biden seeks to pursue democracy and the fight against authoritarianism as a key tenet of his foreign policy, the United States must use diplomatic tools and employ long-term strategies to arrest Nicaragua’s descent into autocracy.

One potential roadmap that could offer a path to democracy and security is through U.S. leadership in organizing an internationally coordinated and consistent squeeze on Ortega’s pillars of economic, financial, and diplomatic lifelines. This type of international pressure could help to dry up the support systems that both keep the Ortega regime afloat and undergird its ability to perpetrate violence and repression against the Nicaraguan people. Such an approach would include efforts designed to drain off access to international funding, entice defections and generate the real threat of individual criminal responsibility for the crimes committed to date.

Such a path would require the U.S. government to create – and act on — a policy that is commensurate with its designation of Nicaragua as a threat to national security, particularly as the regime strengthens its ties to China and Russia. This means working to develop a coordinated policy towards Nicaragua with other governments in the region and beyond (including allies such as the European Union, the United Kingdom and Canada). Such a policy should include five key elements:

1. The United States should appoint a special envoy tasked with developing a comprehensive strategy to support the restoration of democracy and security over the medium- to long term. The envoy should also coordinate among U.S. government bodies, international allies, and Nicaraguan civil society to find a democratic solution to the crisis. Designating a special envoy will send a clear signal that Nicaragua is a priority for the Biden administration.

2. Any comprehensive strategy also needs to include a more strategic, coordinated, and consistent use of targeted individual sanctions and sector-specific sanctions of businesses tied to the Ortega government. Though Presidents Trump and Biden have already issued high-level sanctions, the U.S. government needs a larger strategic plan on how to more effectively achieve the aims of the NICA ACT, which requires the Executive Branch to “impose restrictions and sanctions on institutions and individuals responsible for the Nicaraguan government’s violence and infringement on civil rights.” This should include the Nicaraguan Armed Forces and the multitude of businesses that the army owns in the country. Sanctions could impact not just the army’s leadership but also rank-and-file members. If, for instance, they impacted the army’s pension funds, that could in turn lead to defections and the weakening of Ortega’s grip on power.

And in terms of sectoral sanctions, Biden’s amendment of Trump’s executive order specifically targets the gold sector, noting that the Ortega-Murillo regime has used it to fund its authoritarian and destabilizing activities. This amended executive order also gives the U.S. Treasury Department the authority to target other sectors of the Nicaraguan economy. Investigative reporting has mapped out how the regime created a network of businesses and figureheads for personal enrichment and money laundering (energy, media outlets, and real estate are clear standouts), and it details how these businesses benefit from such arrangements (such as receiving state-funded contracts). Targeting these businesses and additional economic sectors would effectively hamper the interests that keep the Ortega-Murillo family and their cronies afloat.

3. The Biden administration must strategically utilize all the economic tools at its disposal. The United States should reassess its free-trade agreements with Nicaragua (such as CAFTA-DR), rethink its role in international financial institutions that provide loans to Nicaragua, and reconsider its contributions to regional banks, such as the Central American Bank for Economic Integration. Also, a range of possible policy actions are well within the administration’s power and authority , including forcing Nicaragua to comply with human rights and labor rights guarantees as a condition of any U.S. funding or trade.

4. The U.S. government should capitalize on its role in multilateral political spaces, such as the United Nations and the Organization of American States (OAS), to address past and ongoing human rights violations and international crimes. The United States must explore all options within multilateral bodies to provide redress for human rights violations and should work with other countries to initiate national-level investigations and potential prosecutions in a third country under the auspices of universal jurisdiction for international crimes , given domestic prosecutions in Nicaragua seem impossible under the Ortega government.

5. Together with regional and international allies, the United States needs to develop a collective and sustainable plan to meaningfully support Nicaraguans fleeing the Ortega regime, including the 222 former political prisoners. Such a plan should include expedited asylum and services – and the United States should lead by example. The Biden administration should certainly be applauded for its role in helping to secure the release of the 222. However, by granting this group entry to the United States via humanitarian parole, they have no access to state and federal benefits. With their citizenship having been stripped, many also had their properties, bank accounts, and pensions in Nicaragua taken away and have no real income to support their basic needs. Most are still waiting for work permits, and without Medicaid they are forced to pay out of pocket to meet the physical- and mental-health challenges they now suffer after 20 months of torture in prison.

Taken together, these actions will send a powerful message that Nicaragua has become a pariah that is undermining international security. Such measures will limit opportunities for the Ortega regime to use international funding to prop up the state machinery that is oppressing the Nicaraguan people, and provide initial avenues for accountability for government crimes.  And finally, these recommendations will provide much-needed support for those fleeing authoritarianism in search of a safer life while creating the conditions for their eventual return.

IMAGE: Antigovernment protesters hold a Nicaraguan flag over their heads against the sky and yell slogans in front of a riot police line during the 71st International Celebration of Human Rights in Managua on December 10, 2019.  (Photo by INTI OCON/AFP via Getty Images)

The post Nicaragua’s Human Rights Crisis, Fueling Migrant Flows, Demands More Strategic US Action appeared first on Just Security.

Speaking yesterday in The Hague, Ukrainian President Volodymyr Zelenskyy called for accountability for the crime of aggression. After calling for a minute of silence “in memory of all those whose lives were taken by Russia, by its terror,” he proclaimed, “Only one Russian crime led to all of these crimes. This is a crime of aggression. The start of evil, the primary crime. There should be responsibility for this crime! And it can only be enforced by the Tribunal.” That same day, Zelenskyy declared that Ukraine opposes “hybrid” formats for such a court: “We will work without any hybrid formats, we will work on a specific tribunal to ensure accountability for their crimes, murders, and torture. We understand who gave the orders. These people must not be untouchable. This is very important for us, this is one of the fundamental issues.”

As previous entries in this series have explained at some length, there is currently no international court with jurisdiction to try the crime of aggression in Ukraine. While there is widespread support for closing this accountability gap, there is significant disagreement as to how to do that. Zelenskyy’s announcement yesterday places him at odds with the Biden administration, which has endorsed a court “rooted in Ukraine’s judicial system, but that also includes international elements”—precisely the kind of “hybrid” court Zelenskyy has now outright rejected.  Among other shortcomings, such a hybrid approach would not be able to indict Putin as long as he remains in office.  That makes the approach a non-starter for Ukrainians.

Zelenskyy instead supports creating a court pursuant to a United Nations General Assembly resolution requesting the Secretary-General negotiate an agreement with the government of Ukraine to create a Special Tribunal, an approach that also has supporters in the U.S. Congress. But some have asked whether that approach is possible—can an international tribunal to try the crime of aggression be established by the U.N. without the involvement of the Security Council? As this article will explain, there is ample reason to conclude that it can.

The U.N. Charter

Let’s begin with the U.N. Charter. Both the General Assembly and the Security Council are responsible for the core mission of the Charter – that is, in the maintenance of international peace and security. The Charter makes clear that, under Chapter VII of the Charter, the Security Council has exclusive authority to authorize military interventions. It also has exclusive authority, under Article 48, to authorize enforcement measures and to compel members of the U.N. to take actions that it determines are required for the maintenance of international peace and security. But this leaves a significant role for the General Assembly.

Article 1 of the Charter sets out the purposes of the U.N., including, first:

To maintain international peace and security, and to that end: to take effective collective measures for the prevention and removal of threats to the peace, and for the suppression of acts of aggression or other breaches of the peace, and to bring about by peaceful means, and in conformity with the principles of justice and international law, adjustment or settlement of international disputes or situations which might lead to a breach of the peace.

Article 2(2), moreover, establishes an obligation for all Member States, as one of the principles of the U.N., to “fulfill in good faith the obligations assumed by them in accordance with the present Charter.”

The purpose of maintaining international peace and security appears throughout the Charter and influences the interpretation of other articles. For example, Article 2 stipulates principles by which the Organization and member states must abide in pursuit of the purpose of the U.N., most notably including the prohibition on the threat of or use of force. Many of the powers available to the General Assembly and the Security Council are premised on the organs’ duty to prevent or respond to breaches or threats to international peace and security. It follows from the terms of the Charter and the customary law of treaties that member states must refrain from acts that frustrate the Charter’s raison d’etre, namely, the maintenance of international peace and security.

The crime of aggression, “the supreme international crime,” is in the postwar era defined in reference to the U.N. Charter. Article 2(4) provides, “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the Purposes of the United Nations.” Hence there is little question that the creation of a special tribunal to try the crime of aggression – to hold those responsible for the violation of this foundational principle of the Charter – is critical to upholding one of the core purposes of the U.N., as well as the “object and purpose” of the Charter, as understood under the Vienna Convention on the Law of Treaties.

Article 10 empowers the General Assembly to “discuss any matters within the scope of the present Charter or relating to the powers and functions of any organs provided for in the present charter” and to “make recommendations” to either the General Assembly or the Security Council on such matters. This article grants the General Assembly the authority to consider what measures may be taken to counter a threat to international peace and security, particularly in instances where the Security Council fails to act. Indeed, Article 10 was widely considered the primary basis in the creation of the Uniting for Peace Resolution, which provides that “if the Security Council, because of lack of unanimity of the permanent members, fails to exercise its primary responsibility for the maintenance of international peace and security in any case where there appears to be a threat to the peace, breach of the peace, or act of aggression, the General Assembly shall consider the matter immediately with a view to making appropriate recommendations to Members for collective measures.” Article 10 was also invoked in the recent Liechtenstein veto reform initiative, which provides that any time a permanent member of the Security Council vetoes a resolution, that resolution will be automatically referred to the General Assembly within 10 working days so that the Assembly can hold a debate on the situation.

Article 11 empowers the General Assembly to consider, discuss, and make recommendations with regard to both general principles of cooperation in the maintenance of international peace and security, or any questions relating to the maintenance of international peace and security before it. Subsection (2) provides that “[a]ny such question on which action is necessary” must be referred to the Security Council. The International Court of Justice (ICJ) in the Certain Expenses case interpreted this provision to mean only that General Assembly may not undertake coercive or enforcement actions. It is widely agreed, for example, that the General Assembly is within its power to call upon members to impose sanctions as a collective measure against offending states. Indeed, in the Certain Expenses case, the ICJ also upheld the competence of the General Assembly under this article to establish a voluntary peacekeeping force, though it was careful to note that only the Security Council may “order coercive action.”

Article 24 indicates that Member States “confer on the Security Council primary responsibility for the maintenance of international peace and security, and agree that in carrying out its duties under this responsibility the Security Council acts on their behalf.” In using the word “primary,” Article 24 of the U.N. Charter implicitly acknowledges that the General Assembly is a residual insurer of the object and purpose of the Charter. That interpretation was confirmed by the ICJ in the Certain Expenses case, in which the Court held that the Security Council maintains primary—but not exclusive—responsibility over peace and security, particularly in light of its Chapter VII powers, because “[t]he Charter makes it abundantly clear … that the General Assembly is also to be concerned with international peace and security.” The ICJ reaffirmed the Security Council’s primary, but not exclusive, responsibility for the maintenance of international peace and security in its Wall Advisory Opinion.

Last, while the General Assembly resolution would “request” the Secretary-General negotiate an agreement with the government of Ukraine to create a Special Tribunal for the Crime of Aggression, such requests are understood to create an obligation on the Secretary-General to act. Under Article 98 of the U.N. Charter, the Secretary-General “shall perform such other functions as are entrusted to him” by the General Assembly.

Historical Practice

Turning next to historical practice: While there is no perfect analog, there is substantial practice that suggests that a Special Tribunal to try the Crime of Aggression can be created through an agreement between the U.N. and Ukraine, pursuant to a resolution of the General Assembly. Here we discuss several examples of prior General Assembly action that offer insight into the organ’s authority as it has been exercised to date. It is important to note at the outset that such a tribunal would not be able to order coercive measures on any non-consenting state – for example, it could not compel them to carry out arrests of those it indicts. It could, however, accept the voluntary assistance of member states in carrying out its mission.

United Nations Administrative Tribunal & Internal Justice System (1949)

The United Nations Administrative Tribunal (UNAT) was established by the General Assembly through passage of a Resolution in 1949. The tribunal was an independent organ that could hear and judge internal administrative matters, such as employment contract disputes. Though the Tribunal no longer operates, its successor does: In a series of resolutions beginning in 2007, the General Assembly replaced the Tribunal with a two-tier International Justice System. That system “provides an internal system of justice for all UN system staff” and has the power to resolve disputes both formally and informally.

In a 1954 Advisory Opinion, Effect of Awards of Compensation Made by the United Nations Administrative Tribunal, the ICJ considered the legality of the Tribunal, which it described as “an independent and truly judicial body pronouncing judgments without appeal within the limited field of its functions.” As it observed, “[t]he legal power of the General Assembly to establish a tribunal competent to render judgements binding on the United Nations has been challenged. Accordingly, it is necessary to consider whether the General Assembly has been given this power by the Charter.”

The Court began by observing that there was “no express provision for the establishment of judicial bodies or organs and no indication to the contrary.” But that silence was not the end of the story. The Court noted that it had earlier determined that, “[u]nder international law, the Organization must be deemed to have those powers which, though not expressly provided in the Charter, are conferred upon it by necessary implication as being essential to the performance of its duties.” The Court went on to note that, among other things, the Secretary-General is “the chief administrative officer of the Organization.” It was “inevitable,” the Court noted, “that there would be disputes between the Organization and staff members as to their rights and duties.” And while the Charter does not authorize any of the U.N. organs to adjudicate these disputes, it would “hardly be consistent with the expressed aim of the Charter to promote freedom and justice for individuals and with the constant preoccupation of the United Nations Organization to promote this aim that it should afford no judicial or arbitral remedy to its own staff for the settlement of any disputes which may arise between it and them.” It thus concluded that the power to establish a tribunal that could resolve such disputes “arises by necessary intendment out of the Charter.”

Special Court for Sierra Leone (2000)

The Special Court for Sierra Leone (SCSL) was created by Secretary-General based on a request by Security Council acting under Chapter VI, not Chapter VII. In Resolution 1315, the Security Council requested that the Secretary-General negotiate with the Government of Sierra Leone to establish an independent special court. Because the Security Council did not act under Chapter VII (and because the Court was created by agreement between the U.N. and Sierra Leone, and not other states), the SCSL was unable to require non-consenting states to execute its arrest warrants. Nonetheless, the tribunal was properly characterized as an “international” court and thus empowered to set aside personal immunities. Indeed, the SCSL Appeals Chamber specifically found that a sitting head of state of a foreign state that was not party to the agreement between Sierra Leone and the U.N. – Liberian President Charles Taylor – was subject to prosecution in the court for crimes committed in Sierra Leone and could not rely on personal immunities to avoid indictment. In making this finding, the Appeals Chamber emphasized that when the U.N. Security Council called for the establishment of the court, it was acting on behalf of all U.N. Members and, thus, the agreement giving rise to the court was “an agreement between all members of the UN and Sierra Leone”—making it “truly international.”

This precedent offers at least two important lessons: First, Chapter VII authority is not essential to creation of an international criminal tribunal, as the Security Council acted under Chapter VI in creating the SCSL (and thus was not exercising coercive authority). Second, a tribunal created through an agreement negotiated by the Secretary-General on behalf of the United Nations and a member state can constitute an “international tribunal” for purposes of personal immunities with regard to the head of state of a non-consenting state. In the case of the SCSL, that negotiation took place pursuant to a request in a resolution of the Security Council acting under Chapter VI; a resolution of the General Assembly would arguably have at least as strong a claim to represent the membership of the U.N.

Extraordinary Chambers in the Courts of Cambodia (2003)

The General Assembly gave rise to the Extraordinary Chambers in the Courts of Cambodia (ECCC). Cambodia approached the United Nations, requesting “assistance of the United Nations and the international community in bringing to justice those persons responsible for the genocide and crimes against humanity during the rule of the Khmer Rouge.” General Assembly Resolution 52/135 then requested that the Secretary-General establish a Group of Experts for Cambodia, which recommended that “the United Nations should establish an ad hoc international tribunal to try Khmer Rouge officials for crimes against humanity and genocide . . . that the Security Council establish this tribunal under Chapter VI or VII of the Charter of the United Nations, or, should it not do so, that the General Assembly establish it.” Cambodia instead decided on an alternative approach—the creation of a tribunal within the Cambodian legal system. In Assembly Resolution 57/228, the General Assembly requested the Secretary-General negotiate with Cambodia an agreement creating the Extraordinary Chambers and regulating the cooperation between the U.N. and Cambodia. While the ECCC is located within the Cambodian court system, it provides clear evidence that the General Assembly can contribute to the establishment of a treaty-based tribunal.

International, Impartial and Independent Mechanism (Syria) (2017)

In 2016, the Assembly responded to a Security Council deadlock (caused by Russia’s veto) in the face of evidence of Syrian atrocities through the adoption of Resolution 71/248, establishing the International, Impartial and Independent Mechanism to Assist in the Investigation and Prosecution of Those Responsible for the most Serious Crimes under International Law Committed in the Syrian Arab Republic since March 2011 (the “IIIM”).

During debate and in a note-verbale, dated Feb. 8, 2017, Russia complained that “the General Assembly acted ultra vires—going beyond its powers as specified in . . . the Charter of the United Nations.” It claimed that the mechanism vested powers that were prosecutorial in nature and that “prosecutions, criminal investigations and support of criminal investigations are not among the functions of the General Assembly. It cannot create an organ that has more powers than the Assembly itself.” General Assembly debate and voting records show that UN members were not persuaded by this argument. Supporting members reaffirmed that the purpose of the mechanism (which was, unlike the ECCC and SCSL, created over the territorial state’s objection), was not to prosecute, but to “facilitate and expedite criminal proceedings, without prejudice to where and when such proceedings will take place.” Underpinning discussions about the mechanism was Member States’ explicit sense of urgency for the General Assembly to take action in response to the gridlock in the Security Council, which was blocking the Council from fulfilling its mandate to maintain international peace and security. The creation of the IIIM was viewed as a key step to preserve evidence and signal Members’ non-tolerance of impunity, which may account for the speed with which the Resolution advanced through the drafting and consultation process and went into operation.

The Jurisdiction of a Special Tribunal for the Crime of Aggression

The Charter, together with the historical examples, demonstrate that General Assembly has the authority to request that the Secretary-General enter an agreement with Ukraine to establish a Special Tribunal for the Crime of Aggression. But there is a further question as to the source of the court’s jurisdiction, given the General Assembly’s lack of enforcement powers.

The new Special Tribunal could be conferred international criminal jurisdiction over the crime of aggression in two ways. First, as with the courts formed for Sierra Leone and Cambodia (and unlike the IIIM), where the territorial state consents through entering into an international agreement with the United Nations, it vests the tribunal with a jurisdictional title. Second, because the crime of aggression is rooted in customary international law and the prohibition of aggression is a jus cogens norm, there is a strong case that there is an existing international jurisdiction that need only be activated. This international criminal jurisdiction—“rooted in the international community as a whole”—can be activated when an international tribunal acquires it through a specific instrument, like a negotiated agreement between the U.N. and a member State. Under either approach cases, the U.N. General Assembly would not vest the special tribunal with jurisdiction, “it would,” as an earlier Just security article explained, “only help activat[e] the proper international exercise of an already existing jurisdiction.”

Both the SCSL and the ECCC took the first approach: the consent of the territorial state formed the basis for the court’s jurisdiction. The Security Council acting under Chapter VI and the General Assembly, respectively, acted to activate the exercise of existing jurisdiction. The same approach could be utilized by the Special Tribunal. Ukraine is, after all, one of the territorial States of the crime as the victim of Russia’s aggression and possesses a jurisdiction title that it can confer to an international tribunal for the purpose of adjudication.

The capacity of such a Tribunal is not limited to the capacity of the consenting state, here Ukraine, to try the crime in its own domestic courts. An international Tribunal created by a negotiated agreement between the Secretary-General and a consenting state to try a crime under international law creates a court with an international character. That, in turn, allows the court to set aside personal immunities that would restrict prosecutions in foreign domestic courts, including the courts of the consenting state. This was true of the SCSL, which could indict a sitting foreign head of state even though Sierra Leone’s own domestic courts would have been barred from acting by personal immunity. This same principle animates the ICC. The ICC is not limited by personal immunities and thus exercises greater authority than is possessed by the individual states whose consent is the basis for the court’s jurisdiction. In a recent Just Security article, Leila Sadat defends what she terms this “collective conferral” authority. It is precisely this authority that allows the ICC to indict Putin – the head of state of a non-state party who would otherwise be immune from prosecution.

Conclusion

Viewing the law and history together paint a clear picture: First, the Charter’s central purpose is the maintenance of international peace and security, and, where the Security Council is unable to act, the General Assembly possesses subsidiary powers to uphold this core purpose. Second, the General Assembly is capable of passing a Resolution that leads to the creation of a body with a decidedly judicial character. Third, the U.N. General Assembly has the authority to request the Secretary-General act to establish a Special Tribunal that would allow the exercise of an existing jurisdiction—and the Secretary General would be obligated to take steps to carry out that request. That court, in turn, would have an international character and thus would not be required to observe personal immunities for an international crime even though the consenting state’s own courts would be.

In sum, it is clear that General Assembly is empowered to request that the Secretary-General conclude a treaty with Ukraine to establish a Special Tribunal to try the crime of aggression committed in and against Ukraine.

IMAGE: United Nations Secretary General Antonio Guterres speaks during the 77th session of the United Nations General Assembly (UNGA) at the U.N. headquarters on September 20, 2022 in New York City. Photo by Anna Moneymaker/Getty Images)

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1. Given Russia’s aggression against Ukraine is such a clear and egregious violation of Article 2(4) of the UN Charter, legal scholars have explained since the outset of the full-scale invasion in February 2022 that states who support Russia’s actions in Ukraine could themselves face legal consequences. Nevertheless, in the months since then, a number of states have provided assistance to Russia. As a general matter, when is it unlawful under international law to support a party to an armed conflict? 

As your question implies, the UN Charter is of paramount importance when evaluating the lawfulness of supporting a party to an armed conflict. Article 2(4) of the Charter prohibits the “use of force against the territorial integrity or political independence of any state.” There are very few exceptions to this rule: individual or collective self-defense under Article 51 of the Charter; authorization by the UN Security Council acting under Chapter VII; and potentially also state “consent” to the use of force on its territory.

Looking at Russia’s war in Ukraine, it is well-established that Ukraine may lawfully call on other states to aid in its collective self-defense against Russia under Article 51. Russia, on the other hand, is not entitled to invite other states to use force to assist it as it has no valid claim to self-defense against Ukraine. Accordingly, any state that uses force in support of Russia would violate Article 2(4) of the Charter, given that no other exception applies.

More debated is whether the supply of weapons to a party to an armed conflict itself amounts to a use of force under Article 2(4), where otherwise not justified under Article 51. While the International Court of Justice (“ICJ”) has so far held only that the provision of weapons amounts to a violation of the customary international law prohibition on the use of force in the context of non-international armed conflicts, commentators have suggested that the same rule may apply to the supply of weapons in international conflicts, such as Russia’s war in Ukraine.

Liability for supporting a party to an armed conflict may be incurred in three main circumstances.

First, under the law of state responsibility, States may be responsible where they “aid or assist” another state that commits violations of international law, including violations of Article 2(4), as well as breaches of international humanitarian law (“IHL”) and human rights law. Article 16 of the International Law Commission’s (“ILC”) Articles on State Responsibility, which the ICJ recognized as customary international law, sets out a standard for what is effectively state “complicity” in international law. Under this rule, states are responsible where they “aid or assist” another state with “knowledge of the circumstances of” the other state’s violation of international law. Article 41(2) of the Articles reinforces this provision in the context of violations of peremptory norms of international law by providing that States shall neither “recognize as lawful a situation created by [such] a serious breach” nor “render aid or assistance in maintaining that situation.” The ICJ has previously applied these duties of non-recognition and non-assistance in relation to illegal occupations in both the Consequences for States of the Continued Presence of South Africa in Namibia Advisory Opinion and in the Construction of a Wall Advisory Opinion. In the Namibia opinion, the ICJ held that states were under an obligation “to recognize the illegality and invalidity of South Africa’s continued presence in Namibia … [and] to refrain from lending any support or any form of assistance to South Africa with reference to its occupation of Namibia,” and in the Wall opinion, the ICJ found that states were under an obligation not to render aid and assistance in maintaining the illegal situation resulting from Israel’s construction of a wall in the occupied Palestinian territory.

Second, under IHL, Common Article 1 to the 1949 Geneva Conventions provides that parties have a “duty to ensure respect” for the Conventions. According to the 2020 Commentary to Geneva Convention III, this includes both a “negative” obligation—i.e., an obligation not to “aid or assist in violations of the Conventions by Parties to a conflict”—as well as a “positive” obligation—i.e., an obligation to “do everything reasonabl[e] … to prevent and bring such violations to an end.” The ICJ recognized the “negative” limb of Common Article 1 in its Nicaragua judgment, where it held that states are under an obligation “not to encourage” violations of the Geneva Conventions. In the context of lending assistance, Common Article 1 therefore means that states may not provide support to parties to an armed conflict engaged in known or foreseeable IHL violations. The Arms Trade Treaty effectively mirrors this obligation by prohibiting states from supplying weapons to other parties knowing that they will be used in the commission of serious IHL violations and other offenses.

Finally, states (and any involved individuals) may also incur international criminal liability for supporting another party to an armed conflict where they “aid or abet” certain crimes, including war crimes and crimes against humanity, as detailed in the statutes of various international criminal tribunals.

2. Let’s take a closer look at the actions by a handful of states in Russia’s war in Ukraine. First, Belarus has reportedly provided support to Russia in the form of hosting Russian troops, weapons, and other equipment; providing tanks; mobilizing drivers and mechanics to repair Russian military equipment; permitting the use of its territory for Russian supply lines; providing medical care to Russian troops; and enabling Russia to use Belarusian territory as a launching ground for its missiles and armed forces. In January, the two countries engaged in joint military drills, although the Belarusian Defense Ministry claimed the “joint military grouping” and drills were “solely in the interests of strengthening the protection and defense” of Belarus. Does this support make Belarus a co-belligerent of Russia’s in the conflict and, in turn, an aggressor in the eyes of international law?

Before diving into this question, it is worth noting that Belarus may well be liable in relation to these actions under the various sources of international law I’ve just mentioned. “Co-belligerency,” by contrast, is a concept specific to IHL which is not directly connected to the issue of illegality, but which instead refers to joint participation in hostilities. Because co-belligerents are, factually speaking, “parties” to the conflict, IHL applies to them. This application of IHL in turn renders the co-belligerent’s military forces and objects susceptible to targeting.

The issue of when exactly a state providing support to a party to an armed conflict becomes a co-belligerent remains heavily contested. On the one hand, active participation in hostilities clearly amounts to co-belligerency, as might be involved in enforcing a no-fly zone. More complicated is determining whether less direct forms of support also result in co-belligerency. Reasoning from the “overall control” standard for determining when an indirect intervention results in an international armed conflict, as well as the IHL standard for direct participation in hostilities by civilians, commentators have attempted to draw some lines. While participating in decision-making about attacks, supplying information sufficient to enable attacks, and allowing the use of military or air bases to enable attacks may all potentially amount to co-belligerency, financing, equipping, or training parties to an armed conflict are alone generally considered insufficient.

To the extent that in addition to hosting thousands of Russian troops, Belarus takes steps to execute a joint attack across Ukraine’s northern border, as certain sources have warned, or to make good on its threat to send forces to fight alongside Russia, Belarus would be hard-pressed in those circumstances to argue that it was not a co-belligerent of Russia.

The question of aggression is considerably more straightforward. The Definition of Aggression, adopted by the UN General Assembly, includes “the action of a State in allowing its territory … to be used by … [an]other State for perpetrating an act of aggression against a third State.” Accordingly, if Belarus’s conduct can be characterized as enabling Russian attacks on Ukraine via its territory, such conduct likely would fall within the definition of aggression.

3. Next, let’s look at another example farther from Ukraine’s borders: Iran has had an increasing role in supplying Russia with drones and reportedly providing personnel to assist in their operation on the ground. Iran is also reported to be entering into a new agreement to manufacture additional drones in Russia. Does Iran’s assistance to Russia violate international law? What are the potential repercussions if so? We assume the answers to this question can also elucidate the general legal framework that would apply to other state’s conduct, including China’s.

First, as noted at the outset, Iran’s supply of weapons to Russia may constitute a violation of Article 2(4), given Russia’s lack of a justification for the use of force.

Second, Iran’s transfer of drones likely also runs afoul of Common Article 1, which prohibits states from transferring weapons with “recklessness” to parties likely to commit violations of IHL. That is so particularly given the well-documented and frequent pattern of Russia’s indiscriminate attacks on civilians and civilian infrastructure in Ukraine.

Third, Iran’s actions may also render it liable under Article 16 of the ILC’s Articles especially as they amount to a significant or material contribution to Russia in its commission of internationally wrongful acts. While commentators have debated whether the required mental element under Article 16 is “knowledge” or “intent,” in these circumstances, it would be difficult to  claim unawareness of Russia’s illegal war and related violations, meaning that Iran can be presumed to intend the foreseeable consequences of its assistance—namely, assisting Russia’s commission of these acts. The commentary to the ILC’s Article 41(2) further supports this view as it notes in the context of peremptory breaches of international law, it is “hardly conceivable” that a state lending support would not have notice of those breaches.

As for potential consequences, Iran and other states that have rendered illegal support to Russia may face countermeasures, which could be taken by Ukraine, the injured state, or potentially by third states. Such third-party countermeasures could be justified under a theory of enforcing erga omnes obligations, or the notion of collective self-defense of Ukraine. In addition, ILC Article 41(1) potentially imposes a positive duty on third states to “cooperate to bring an end to” serious breaches of international law, though the relevant Commentary recognizes that such a duty may still be developing under customary international law.

Individuals engaging in illegal assistance may also risk international criminal liability for “aiding and abetting” various crimes, as noted previously. Such individuals may also face sanctions, and in fact the United States has already applied sanctions to dozens of Belarussian individuals and entities believed to have facilitated Russia’s invasion, as well as several firms and individuals involved in the production and transfer of Iranian drones to Russia.

4. What does international law have to say about providing assistance to a victim of aggression? Is there any legal reason why assistance to Ukraine has been circumscribed? For example, there are reports that the United States has limited the range on Himars rocket launchers it has provided to Ukraine, presumably to ensure Ukraine can’t use U.S. weaponry to strike Russian territory. Do you think this move is primarily about policy concerns over escalation risks in the war? Or are there legal risks that need to be weighed as well? And is the distinction between “offensive” and “defensive” weapons meaningful as a legal matter when a country is engaging in military operations to regain its own occupied territory?

These decisions are likely informed by both policy and legal concerns, given Russia’s dangerous threats concerning nuclear weapons, as well as Russia’s rhetoric appealing to legal concepts, and the desire to give wide berth in the event of any disagreement.

In relation to the supply of weapons to Ukraine, one key legal issue which I haven’t yet mentioned is neutrality. In the wake of Russia’s invasion of Ukraine, commentators have disagreed about whether the law of neutrality is at all relevant to the provision of support to Ukraine. Briefly stated, while some have maintained that the law of neutrality does not apply following the outlawing of war and the adoption of the UN Charter, others have suggested that the provision of support to Ukraine does breach neutrality, but that Russia would at most only be permitted to take countermeasures in response, not resort to the use of force. For its part, the U.S. government has adhered to a “qualified neutrality” position, which allows for assistance to states that are victims of aggression.

As a practical matter, it is difficult to discern the difference in the context of active hostilities between “defensive” and “offensive” weapons.  Nevertheless, one potential reason for limiting the provision of weapons to those which might be considered “defensive” may be to make abundantly clear that U.S. provision of weapons to Ukraine is solely for purposes of defending Ukraine from Russia’s aggression, thus squarely falling within the confines of “qualified neutrality” and the previously mentioned justification of Ukraine’s right of collective self-defense under Article 51. As one commentary has pointed out, ILC Article 21 furthermore precludes certain acts from being considered violations of international law if performed in the exercise of self-defense under the UN Charter.  

The author wishes to thank Beatrice Walton for her assistance and comments on this article.

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Delegates who spoke in support of Resolution 76/262 said they hoped it would accomplish two goals.

First, the Resolution’s supporters hoped the initiative would make the Security Council more accountable to the General Assembly. Liechtenstein’s representative, introducing the Resolution, said that “all Member States have … agreed that the Council acts on their behalf,” and that “therefore, membership, as a whole, should be given a voice when the Council is unable to act.”

Second, it was hoped the initiative would prompt the General Assembly itself to engage more robustly in matters of international peace and security when the Security Council failed. Qatar’s representative, for example, described the Resolution as “promot[ing] the Assembly’s role in accordance with its mandate, which gives it powers and authority in matters related to the maintenance of peace and security,” and hoped the Resolution would strengthen the U.N. system “in cases where it cannot stand idly by and should respond effectively.”

This article reflects on the success of the veto initiative, in its first year, measured against the second – and more substantive – of these objectives. It finds that the initiative has prompted more robust and meaningful General Assembly engagement in one of the three occasions in which it has thus far been used.

Has the Veto Initiative Strengthened the General Assembly’s Engagement in Matters of International Peace and Security?

The veto initiative has thus far prompted the General Assembly to convene special sessions in relation to three vetoed resolutions: one on the Democratic Republic of North Korea, vetoed by Russia and China; and one on each of Syria and Ukraine, both vetoed by Russia. The vetoed Resolution on North Korea would have tightened Security Council sanctions; the Resolution on Syria would have extended the provision of cross-border humanitarian aid from Turkey to Syria until January 2022, with an automatic extension until mid-2023; and the Resolution on Ukraine would have condemned the “so-called referenda” that preceded Russia’s proclaimed annexation of parts of Ukraine.

The Security Council’s Veto of Resolutions on North Korea and Syria

In the special sessions following the vetoed Resolutions on North Korea and Syria, States used the opportunity to call on Russia and China to reconsider their use of the veto, and to lament the use of the veto in general, and to emphasize the responsibilities of the Security Council. The representative of Fiji, for example, speaking on behalf of the Pacific Islands Forum, described the right of veto as “outdated and obstructionist”; Ireland’s representative called for the Security Council to “hear and heed” the voices of the General Assembly’s delegates; and Denmark’s representative called for broader commitment to the French/Mexico veto initiative (according to which States voluntarily commit not to exercise their right of veto to block action on mass atrocities). In neither of these sessions, however, did a State propose anything that the General Assembly should actually do. Neither the North Korea nor Syria special sessions resulted in a General Assembly resolution.

In both these situations, there were things the General Assembly could have done. In relation to North Korea, it could – among other things – have passed a resolution recommending to States that they unilaterally strengthen sanctions on Pyongyang. The General Assembly has recommended to States that they impose sanctions in other contexts in the past, for example in relation to Israel in the 1980s, South Africa (1960s-1980s) and – going back further – Southern Rhodesia and the Portuguese Territories in the 1960s-1970s. Regarding Syria, the General Assembly could have passed a Resolution affirming the principle recognized by the International Court of Justice in its Nicaragua Advisory Opinion (para. 242), that exclusively humanitarian assistance is not an unlawful intervention in a State’s internal affairs. The General Assembly is empowered by the U.N. Charter to contribute to the progressive development and codification of international law, and it has previously passed resolutions affirming principles of international law – see, for example, early Resolutions on the crime of genocide and on the Nuremberg principles. The General Assembly could have also reaffirmed (in terms similar to its Resolution of December 2021) that humanitarian needs in northern Syria could not be met from within Syria, and emphasized the imperative for humanitarian assistance to be provided through all available access routes. It could have further bolstered the legal case for States and U.N. agencies to provide cross-border humanitarian assistance without Security Council authorization, by describing the situation as one of “necessity” – recognized in international law as a circumstance “precluding the wrongfulness” of the breach of an international legal obligation (see discussion here).

The Security Council’s Veto of a Resolution on Ukraine

The General Assembly’s special session following the vetoed Resolution on Ukraine was of a wholly different character than those following the vetoed Resolutions on North Korea and Syria. This time, the debate focused squarely on the General Assembly itself. The representative of Malta, for example, emphasized the General Assembly’s “duty to react to violations of international law,” and Latvia’s representative spoke similarly of the General Assembly’s “responsibility to uphold the principles of the United Nations Charter.” On Oct. 12 2022, the General Assembly passed a Resolution declaring the so-called referenda in parts of Ukraine to be invalid, and calling on States not to recognize any alteration of the status of those regions. The following month – still in the same session – the General Assembly passed another Resolution, this time asserting that Russia should make reparation for injury caused by its “internationally wrongful acts,” recognizing the need for an “international mechanism for reparation” and recommending that States create an “international register of damage.”

To summarize: a review of the General Assembly’s special sessions – and resulting action – following the Security Council veto on Ukraine, as compared to those on North Korea and Syria, reveals that these sessions have been used in very different ways. The sessions on North Korea and Syria were used to critique the veto in general, and the veto-wielding States in particular. The session on Ukraine, conversely, was used to pass robust resolutions, affirming important principles of international law and making concrete recommendations to States. In other words, if the General Assembly’s veto initiative is assessed against whether it has prompted more robust General Assembly engagement in matters of international peace and security when the Security Council has failed, the finding – admittedly based on a limited sample of just three occasions on which the new arrangement has been used thus far – would seem to be that it has succeeded on one occasion out of three.

What Makes the General Assembly’s Response to North Korea and Syria Different from its Approach to Ukraine?

There is a critical factor underpinning the difference between the General Assembly’s response to the vetoes on North Korea and Syria, and that of Ukraine. In February 2022, six months prior to the vetoed Resolution on Ukraine, the Security Council passed a procedural Resolution (not subject to the veto), stating that the “lack of unanimity of its permanent members  … [had] prevented it from exercising its primary responsibility for the maintenance of international peace and security,” and calling for an emergency special session of the General Assembly.  In using this language (“lack of unanimity, and failure to exercise responsibility for international peace and security”) the Council was implicitly invoking the General Assembly’s 1950 Uniting for Peace (U4P) Resolution. That Resolution established that if the Security Council were unable to exercise its responsibility for international peace and security due to lack of unanimity among its permanent members – the United States, United Kingdom, France, China, and Russia – then the Council could call for an emergency special session of the General Assembly, and the General Assembly would then consider the matter and make recommendations (see here for a list of the situations in relation to which the U4P Resolution has been invoked previously).

Following the Security Council’s procedural Resolution, the General Assembly convened an emergency special session on Feb. 28, 2022. That session was still ongoing (albeit adjourned) when Russia vetoed the draft Resolution on Ukraine in the Council several months later, on Sept. 30. The General Assembly then “resumed” its emergency special session the following month, on Oct. 10. The Assembly described the session as “mandated” after the Council failed to adopt a resolution on Russia’s so-called referenda in Ukraine – in other words, mandated by the requirement in Resolution 76/262 that the General Assembly convene in special session within 10 days of a veto in the Council – however, it also noted that the session was “part of [the General Assembly’s] ongoing emergency special session on Ukraine.” Thus, while re-opened pursuant to Resolution 76/262, the session took place in the broader context of a referral from the Council pursuant to the U4P procedure.

The reason this is important is that it suggests that thus far (admittedly, drawing from only three post-veto special sessions), the veto initiative special sessions and the U4P procedure special session have been used in very different ways. The former have been used to critique the veto, while the latter has been seemingly underpinned by an understanding that the Security Council has temporarily passed its responsibility to the General Assembly, and that the task for the  General Assembly is to consider what it can usefully do.

The distinction between the character of the special sessions convened pursuant to the veto initiative, and that of the special session convened within the broader context of the U4P procedure, is somewhat surprising given that most legal scholars now accept that the U4P Resolution is not legally required for the General Assembly to act on matters of international peace and security (see here, p.15). What this suggests is that despite this appreciation of the General Assembly’s competence to act with or without a Security Council referral, the U4P process still serves a political purpose.

There is, thus, something of a disconnect. States have accepted that the General Assembly is competent to act on matters of international peace and security irrespective of any referral from the Security Council, and that it sometimes must do so, and have developed a procedure – the veto initiative – to help ensure it does. But seemingly States have not yet caught up to the idea that the veto initiative special sessions can and should be used in just the same way as the General Assembly’s emergency special sessions, despite not having been called for by the Security Council.

The Veto Threat

In assessing the effectiveness of the veto initiative in prompting more robust responses by the General Assembly to Security Council failure, one further point bears noting, and that is what happens when a veto is threatened – or just assumed – but not cast.

Earlier this month, more than 100 civilians were killed in airstrikes by Myanmar’s military junta. The U.K. circulated a draft Security Council press statement condemning the attack and calling for accountability. Security Council statements are not “decisions” of the Council, and – unlike resolutions – are not legally binding on States, however they still require the agreement of all Security Council members. Presumably the U.K. would have liked to see a Security Council resolution condemning the attack, but opted for a statement instead, knowing that a resolution would never pass – and then in the end even a statement proved too much. Had the U.K. circulated a draft resolution, forcing vetos by Russia and China, the General Assembly would have been required – pursuant to Resolution 76/262 – to meet and debate the situation. Without a resolution being put to a vote, there can be no veto, and thus the veto initiative can provide no assistance. Thus, States who are interested in prompting the General Assembly to more robustly engage in situations in relation to which the Security Council is blocked must play their part by putting resolutions forward to vote, even knowing they will fail. And then when a veto is cast and the General Assembly convenes in special session, States should ensure those sessions are used to consider what the General Assembly can most usefully do, not just to lament the existence of the veto.

IMAGE: Vanuatu’s Prime Minister Ishmael Kalsakau speaks prior to a vote on a resolution aimed at fighting global warming, at the General Assembly hall of the United Nations Headquarters in New York on Mar. 29, 2023. (Photo by Ed Jones / AFP via Getty Images)

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The Ocean-Climate-Biodiversity Nexus and Why It Matters

Over the past few decades, ocean advocates have worked to formally recognize the interconnectivity between the ocean, climate, and biodiversity challenges, and to develop law and policy mechanisms to address the crisis. 

Whereas the international climate negotiations now include an Ocean and Climate Change Dialogue and opportunity to fold ocean-based measures into Nationally Determined Contributions, the international ocean negotiations go even further in aiming to improve the regime under UNCLOS to better address the conservation and sustainable use of marine biodiversity in areas beyond national jurisdiction (ABNJ), which comprises the portion of the global ocean—the high seas (water column) and the Area (seabed, ocean floor, and subsoil)—that extends beyond any one state’s jurisdiction.

An Emerging Global Blue Economy

After nearly a decade of negotiations, delegates from across the globe have reached an agreement on this new legally binding instrument. The four elements of the international treaty establish the foundation for collective action in tackling the ocean’s most pressing threats: 1) area-based management tools (ABMTs) such as marine protected areas (MPAs); 2) environmental impact assessments; 3) capacity building and technology transfer; and 4) fair and equitable sharing of benefits (both monetary and non-monetary) derived from activities with respect to marine genetic resources and digital sequence information. Together, these steps can help stem biodiversity loss and the degradation of ecosystems, build resilience to the adverse effects of climate change, protect ocean carbon cycling services, and improve the ability of all nations to advance more integrated, ecosystem-based and precautionary approaches to management while more equitably benefiting from natural resources.

MPAs and other ABMTs are tools that can be used to promote “place-based” conservation, that is, conservation programs developed by communities for the benefit of those communities. In designing these area-based tools, socio-ecological knowledge can inform the determination and designation of areas of particular interest for protection. This knowledge contributes to identifying conservation threats across space and time, while proactively adopting protective measures to guard against future threats. Increasingly, MPA design applies a dynamic approach to account for the evolving nature of place-based management, where climate is driving changes in species distribution and biogeographic regions.

The BBNJ Agreement addresses these challenges by setting forth requirements to ensure that processes for consultation and assessment of ABMT proposals are inclusive, transparent and open to all relevant stakeholders, including the scientific community, Indigenous Peoples and local communities. It distinguishes MPAs from other types of ABMTs by defining MPAs to focus on long term biodiversity conservation objectives, with sustainable use allowed only where consistent with those objectives. Criteria for any type of ABMT specifically includes climate-related criteria such as vulnerability to climate change and ocean acidification, cumulative impacts, and important ecological processes occurring therein. Alongside the establishment of a comprehensive system of ABMTs including ecologically representative and well-connected networks of MPA networks, the treaty also recognizes the need to enhance the health, productivity, and resilience of individual sites to environmental stressors, including those related to climate change, ocean acidification, and marine pollution. 

To ensure action, the Conference of Parties (COP), or the decision-making body responsible for reviewing the implementation of the U.N. Framework Convention on Climate Change, is empowered to vote on establishment of ABMTs and related measures, to make recommendations to other international bodies such as regional fisheries management organizations, where measures are within their competence, and to adopt compatible measures. When all efforts to reach consensus have been exhausted, voting flexibility is crucial to avoid a small minority of States Parties blocking conservation action as has happened in the Southern Ocean under the Commission for the Conservation of Antarctic Marine Living Resources. The interests of other international bodies and instruments are protected through      requirements that the COP “shall respect the competencies of and not undermine such bodies or instruments.” At the same time, the treaty requires States Parties to promote the objectives of the treaty in these other bodies, enables the COP to arrange for regular consultations to enhance cooperation and coordination, and invites other bodies and instruments to report on measures adopted to meet the objectives of the ABMTs established by the COP.

Environmental assessment has long been used by national governance systems to account for the environmental impacts associated with potential harmful activities, so that their effects on wildlife and habitat can be avoided, mitigated, or minimized. Environmental assessments provide situational awareness and a check on unfettered development and resource exploitation. Approaches to conducting environmental assessment have evolved to encompass consideration of the environmental stressors associated with human impacts, and how those stressors interact with one another, often synergistically. It is not enough to list the anticipated impacts associated with a potential activity. Rather, states and parties must explore how those impacts will interact with one another, and how that interaction will, in turn, impact the health of the ocean ecosystem. 

The new treaty establishes a nationally driven Environmental Impact Assessment (EIA) process that will nevertheless be subject to broad consultation and review by the international community, and an obligation to ensure that approved activities can be conducted in a manner consistent with the prevention of significant adverse impacts, taking into account cumulative effects including climate change-related impacts. The treaty also advances a new tool for those seeking to integrate biodiversity and climate change into management of activities in ABNJ. The treaty enables strategic environmental assessments (SEAs) both by States Parties for new plans or programmes, and by the COP for an area or region to collate and synthesize available information, assess current and potential impacts, and identify data gaps and research priorities. Such information can support conservation planning as well as more sustainable management.

The Treaty’s Role in Centering the Newly Positioned Global Blue Economy on Equity

The negotiations had identified that most countries are disadvantaged because they lacked the capacity and technology to engage in activities in ABNJ as they attempted to grapple with managing areas within their own national jurisdictions. For example, the gap between developed and developing countries is evident, and developing countries have identified a need for training, access to relevant technologies and data, and research vessels. Further, a new treaty would place legal obligations on countries, raising the question of whether countries could effectively participate in the treaty’s implementation. Such capacity constraints cut across other elements of the package, including when undertaking or reviewing environmental impact assessments, the establishing or reviewing ABMTs, including MPAs, and exploration and exploitation of marine genetic resources. The new agreement builds on Part XIV of UNCLOS in which States have a duty to cooperate to support capacity-building and technology transfer. The BBNJ Agreement provides for a capacity-building committee mandated to review these efforts and make recommendations to the COP. Though equity concerns cut across all elements of the treaty (e.g., parachute science in establishing MPAs), the treaty’s provisions on the exploitation of marine genetic resources, processes to be used for capacity building, and transfer of marine technology addresses equity concerns raised throughout the agreement and embedded in international legal principles reflected in UNCLOS.

Areas beyond national jurisdiction have long been touted as holders of the next groundbreaking medical discovery, but currently lack a regime to govern issues of discovery, collection and utilization of marine genetic resources found in them because the discoveries have extended beyond any one nation’s sovereign control. The final text addresses the concerns that there would be no way of tracing resources, including their origin and subsequent utilization; currently developed countries account for most patents with a gene of marine origin. The most significant gain is the “BBNJ standardized batch identifier.” Parties will be required to tag material collected and report important information to the BBNJ clearinghouse to track both monetary and non-monetary benefits. The subject of benefit-sharing remained pertinent throughout the negotiations, as a group of countries argued that they were disadvantaged compared to countries and industries with the technology and capacity to explore and exploit marine genetics resources. The agreement establishes a committee to advise the COP on issues of benefit-sharing. Finally, the agreement also creates a Special Fund to support numerous efforts, including capacity-building.

What’s Next

Empowered with the text, the next step is signature, ratification and early implementation. It will be a global community effort, with each nation deciding whether and how to adopt the treaty into domestic law.

Beyond the mechanics of ratification, the international community representing scientific knowledge and ocean conservation will watch to see how interim arrangements for the COP can advance, while continuing to crosswalk between treaty regimes. Equipped with the new treaty, negotiators with an ocean focus can now return to the climate intersessionals this summer with the ocean-climate-biodiversity nexus in mind as they prepare for the second session of the annual Ocean and Climate Change Dialogue.

Meanwhile, the need for inclusive participation and early implementation continues. Of note, the very same tools set forth in the new high seas treaty are being used in exclusive economic zones, but not always effectively, impelling stepped up efforts throughout our interconnected ocean. The new treaty’s capacity-building elements can play a vital role in enabling all states to safeguard ocean health and more equitably participate in the enjoyment of its resources. Given the urgency of addressing the climate and biodiversity crises, and the ocean’s role in solving for those crises, it is essential that the multilateralism that drove this new agreement be leveraged to galvanize action in international and sovereign waters toward a blue economy of the future—an economy that centers justice and environmental security and actively manages for marine protection and avoidance of environmental impacts. These steps are essential if we are to meet clean energy and food security needs, as well as conserve marine life and habitats on a climate-challenged planet.

IMAGE: Humpback whales swim off the coast of Australia (via Getty Images)

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The United Nations (U.N.) International Independent Expert Mechanism to Advance Racial Justice and Equality in the Context of Law Enforcement visits the United States today from 24 April – 5 May 2023. One of the Expert Mechanism’s objectives during this visit is to “offer recommendations to support the Government’s efforts in combating structural and institutional racism, the excessive use of force, and other human rights violations by law enforcement and the criminal justice system against Africans and people of African descent.”

In the United States, people of African descent and other people of color are subjected to police brutality that terrorizes ordinary civilians and, if incarcerated, are more likely to experience prison conditions that may amount to torture. In line with its commitments under international law, the Biden administration must prioritize addressing this urgent human rights crisis.

The Militarization of the Police

In the United States, people of color are disproportionately harmed, killed, and threatened by militarized police violence – a form of violence that greatly expanded after the 9/11 terrorist attacks. Even when engaged in peaceful protest, Black people and their allies are often confronted by police and federal forces wearing militarized riot gear and riding in armored vehicles, wielding tear gas, rubber bullets, and stun grenades. This police militarization reinforces the longstanding association of blackness with criminality in the United States. This association manifests across all levels of interactions between Black Americans and law enforcement and the criminal justice system: Black Americans are disproportionately subjected to “stop and frisk” policies; and they are arrested, convicted, sentenced (and sentenced to harsher punishments), and incarcerated at higher rates than White people who commit similar crimes. And police killings of unarmed Black Americans exacerbated and enabled by police militarization, are so high that, according to one study, “[f]or young men of color, police use of force is among the leading causes of death.”

Police militarization involves the perpetual infliction of or threat of violence against civilians in everyday life, which meets the threshold for many definitions of terrorism. Military-grade technologies cause serious and lasting physical injuries and trauma to victims. One Black man who participated in a peaceful protest in Minneapolis in the summer of 2020 suffered a “fractured nose, a fractured forehead, many tiny breaks around his left eye socket and cheek bone, [and] a ruptured eyeball” from a stun grenade thrown by police. This violence, alongside institutionalized racial injustice, places all people of color at risk of potential arbitrary police brutality and discriminatory criminal justice practices. Militarized police violence communicates to people of color the message that they are not safe, even when engaging in legally protected peaceful protest. This creates the “intrusion of fear into everyday life” that scholar Michael Walzer argued was one of the central moral wrongs of terrorism.

Terrorism is also defined as motivated by the pursuit of a political or ideological agenda, and the increasing militarization of policing in black and brown communities is often ideological. Regardless of the motives of individual law enforcement officers, the violent impact and arbitrary use of police militarization on people of color stems from (and reinforces) the criminalization of blackness that has its roots in the white supremacist ideologies of slavery and Jim Crow.

Recognizing that police militarization is a form of terrorism is crucial to recognizing the severity and scale of human rights violations suffered by people of color in America.

The Biden administration must take steps to acknowledge and address police violence as a form of terrorism. Recent legislation that would increase transparency about police purchases of military equipment is a promising first step, although past efforts, such as a bipartisan police reform bill in 2021 that would have curbed police militarization, failed due to lack of support from Republican senators.

But the vulnerability of people of color to human rights violations at the hands of law enforcement is only part of the picture: Because Black Americans are incarcerated at disproportionately higher rates than White Americans due to entrenched forms of institutional and structural racism in the criminal justice system, they are disproportionately vulnerable to torture in American prisons and jails.

Prison Torture

In Texas, prisoners are engaged in a hunger strike protesting solitary confinement. A jail in Mississippi is the subject of numerous allegations of the sexual and physical assault of inmates. Last year, inmates in Alabama went on strike, a prisoner died in solitary confinement in Louisiana, three officers at Rikers in New York attacked an inmate, and a report found that male prison officials assaulted women inmates in at least two-thirds of U.S. prisons.

These are not cases of “bad apples,” or a few poorly run prisons. Instead, these cases are indicative of the widespread systematic torture of inmates in U.S. prisons through the use of solitary confinement, the toleration of sexual assault, and the combined impact of mass incarceration and the deprivation of basic human needs including food, warmth, and human contact. These intentional practices and policies inflict severe physical and psychological pain and suffering on inmates that may meet the definition of torture.

Solitary Confinement

Nearly 50,000 people are held in prolonged solitary confinement in U.S. prisons. In some cities, the majority of people in solitary confinement are people of color. Human rights organizations agree that solitary confinement is torture, and there are decades of evidence of its devastating effects on victims. Yet, despite numerous legal challenges, solitary confinement continues to be used in U.S. prisons and jails. The persistent refusal of U.S. courts and political leaders to acknowledge solitary confinement as a form torture represents an intentional choice to inflict torture on U.S. inmates, the majority of whom are people of color.

But even inmates not placed in solitary confinement do not escape torture in U.S. prisons. The intentional toleration of sexual assault, and the combination of mass incarceration and degrading and dehumanizing prison conditions combine to inflict severe physical and psychological pain and suffering.

Sexual Assault

Sexual assault (perpetrated by other inmates and by guards) is so common in U.S. prisons that it is the subject of jokes and threats by police officers and is referenced in popular culture. It is taken for granted that inmates might be raped and abused. And, as with solitary confinement, prison sexual assault is rarely described as torture, even though sexual violence is a recognized form of torture. Instead, victims of prison sexual assault are often disbelieved and mocked.

But the sexual assault of inmates is not inevitable. It doesn’t “just happen.” The prison conditions that make inmates vulnerable to sexual assault are the result of intentional choices. Funding for prisons, the design of prison bathrooms, the placement of cameras, staffing levels, access to medical treatment, and reporting mechanisms all affect inmates’ vulnerability to sexual assault. Sexual abuse is therefore common in American prisons and jails because it is allowed to occur. The toleration of sexual assault reinforces the belief that sexual assault just happens, and further entrenches degrading attitudes toward victims of prison sexual assault.

Mass Incarceration and Prison Conditions

The deplorable conditions in many American prisons are well documented: inmates routinely experience overcrowding and are denied access to adequate medical care, food, warmth, air-conditioning, and contact with friends and family. Even prior to the rise of mass incarceration, prison conditions such as these were the subject of protests during the 1960s and 1970s. Yet, despite decades of activism, little has changed. Taken individually, the conditions described above don’t seem like forms of torture. But the combined impact of these conditions is a form of torture. The combination of poor medical care, a lack of heating and air conditioning, overcrowding, exposure to violence and sexual assault, and restrictions on communication with friends and family causes suffering and isolates inmates. As with the toleration of sexual assault, these prison conditions are the result of strategic choices and reveal the political and social indifference to the ongoing torture of prison inmates.

People of color are disproportionally represented in U.S. jails and so, while all inmates are vulnerable to torture, Black Americans are disproportionately vulnerable to torture because of the multiple ways in which institutional and structural racism permeates every aspect of the criminal justice system. This is a human rights crisis and a gross violation of America’s commitment to the prevention of torture.

***

Understanding the scale and severity of human rights violations in America requires recognizing how all levels of the criminal justice system – from police stops to sentencing and incarceration – are structured by entrenched institutional racism that inflicts a form of terrorism and torture on Black Americans and people of color. Identifying the human rights violations resulting from this institutional racism as terrorism and torture is a necessary first step toward the Expert Mechanism’s goal in providing recommendations for the Biden administration to begin to address the problem. Failing to acknowledge the scale and severity of these human rights violations would demonstrate a serious moral disregard for the ongoing suffering of people of color and African descent. Promoting American values abroad requires first upholding them at home.

IMAGE: Reverend Al Sharpton speaks during a news conference at Mason Temple: Church of God in Christ World Headquarters in Memphis, Tennessee, on January 31, 2023 in response to the killing of Tyre Nichols by five Memphis Police Department officers. (Photo by SETH HERALD/AFP via Getty Images) 

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