On Monday, the President of the United Nations General Assembly, Dennis Francis, announced that he will convene an emergency special session of the General Assembly, to consider the situation in Palestine on Thursday, Oct. 26.
The announcement follows the U.N. Security Council’s consideration of the situation in Israel and Gaza last week, and the U.S. veto of a draft Security Council Resolution aimed at securing a “humanitarian pause” in hostilities to allow for the delivery of humanitarian aid for civilians in Gaza. At that time, Gaza remained completely under siege, cut off from food, water, medicines and essential humanitarian supplies. In the last few days, a small number of trucks carrying life-saving humanitarian aid have been permitted to enter Gaza via the Rafah border crossing from Egypt, but U.N. agencies say that it is “far from enough.”
Following two weeks of almost constant bombing, the situation for more than 1.6 million civilians in Gaza is catastrophic. Much of Gaza’s civilian infrastructure has been destroyed, including hospitals, schools, water and sanitation facilities, and around a quarter of all residential housing units. People are surviving on an average of three litres of water per day for drinking, cooking, and hygiene. U.N. agencies say that time is running out before mortality rates “skyrocket due to disease outbreaks and lack of health-care capacity.”
It is not the first time that a Security Council permanent five member has blocked a resolution aimed solely at alleviating humanitarian suffering. Many times since the beginning of the Syrian conflict in 2011, Russia – sometimes joined by China – has vetoed resolutions aimed at allowing humanitarian aid into Syria. These vetos have been vehemently condemned by the United States and other western countries. When Russia vetoed such a resolution last July, U.S. Deputy Representative to the U.N. Richard Mills critiqued Russia for choosing “not to put humanitarian needs first.” He said that Russia had “abused its veto,” and that “now, the international community … must come together and firewall any further politicalization of what is a purely humanitarian issue.”
The same may be said of Gaza, now.
Much has been written about the idea of “abuse of veto” by the Security Council’s five permanent members, and whether there are, in fact, any limitations on the right of veto, in international law (see here, for example). This post leaves such questions aside and considers what role the General Assembly can play when it meets in emergency special session on Thursday.
The Role of the General Assembly in Matters of International Peace and Security
Under the U.N. Charter, the Security Council has primary responsibility to “maintain or restore international peace and security.” The General Assembly, however, pursuant to Article 10 of Charter, has a broad power to “discuss any questions or any matters within the scope” of the Charter, and to make recommendations “on any such questions or matters.” (emphasis added). In 1962, the International Court of Justice (ICJ) considered how Article 10 should be interpreted in relation to matters of international peace and security, in light of the Security Council’s primacy in that regard. The Court said that it was “abundantly clear” that alongside the Security Council, the General Assembly was “also to be concerned with international peace and security.” It said, moreover, that the General Assembly’s powers were “not merely hortatory,” and “not confined to discussion, consideration, the initiation of studies and the making of recommendations.”
What Does it Mean for the General Assembly to Meet in “Emergency Special Session”
The procedure by which the General Assembly may meet in “emergency special session,” following a veto in the Security Council, stems from the General Assembly’s Uniting for Peace (U4P) Resolution of 1950. That Resolution, which the United States devised as a way to circumvent the Soviet Union’s veto in relation to the Korean War, provides that:
If the Security Council, because of a 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, including in the case of a breach of the peace or act of aggression, the use of armed force when necessary.
The Resolution states that, if not in session at the time, the General Assembly “may meet in emergency special session,” which shall be called “if requested by the Security Council on the vote of any seven members, or by a majority of the members of the United Nations.”
It bears noting that even without the U4P Resolution, the General Assembly – according to its procedural rules – is able to meet in special session, at any time, on the request of the Security Council or a majority of Member States. However, the contribution of the U4P Resolution was that it committed the General Assembly to meet and consider a matter of international peace and security, immediately, in the event the Security Council failed to exercise its responsibility. Moreover, the U4P Resolution also nudged the powers of the General Assembly a little further along as compared to their articulation in the U.N. Charter, by explicitly envisioning the possibility of the General Assembly making “recommendations for collective measures.” In 2010, the ICJ in its Kosovo Advisory Opinion accepted this articulation by the General Assembly of its own powers – stating that the U4P Resolution:
provides for the General Assembly to make recommendations for collective measures to restore 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 and the Security Council is unable to act because of lack of unanimity of the permanent members.
Subsequent to the Korean War in 1950, the procedure described in the U4P Resolution (referral of a matter to the General Assembly, with a request for an emergency special session) has been used eleven times, most recently in February 2022 following Russia’s invasion of Ukraine.
The General Assembly’s Tenth Emergency Special Session on the “Question of Palestine”
Francis’ decision to convene an emergency special session of the General Assembly was promoted by a request from Jordan and Mauritania, in their respective capacities as Chair of the Arab Group and Organisation for Islamic Cooperation Group at the U.N. in New York, as well as several other States, for the “resumption” of the General Assembly’s tenth emergency special session.
The reason that the request was for a “resumption” of the General Assembly’s tenth emergency special session, and not the convening of a new session, is that the General Assembly is already in an emergency special session on the “question of Palestine,” and has been since 1997. That emergency special session – the tenth emergency special session – has been periodically resumed, following various escalations of the Palestinian crisis, most recently in 2018, and has never been concluded. This week’s meeting will be its 39th plenary meeting. It is an urgent and critical opportunity for the General Assembly to consider what steps it can practically take to ensure the protection of civilians and the unimpeded delivery of humanitarian aid.
What can the General Assembly do?
It is worth recalling what the General Assembly has done thus far in its 10th emergency special session – across 38 meetings – because those actions illustrate the types of interventions States may consider now, in relation to this current and devastating escalation.
The General Assembly has, among other things:
- Called for “urgent steps to ensure an immediate, durable and fully-respected ceasefire;”
- Requested the Secretary-General to develop proposals “on ways and means for ensuring the safety of Palestinian civilians, including an international protection mechanism,” and to report to the General Assembly on such proposals;
- Demanded the “immediate cessation of military incursions and all acts of violence, terror, provocation, incitement and destruction in both Israel and the occupied Palestinian territories;”
- Demanded that Israeli forces refrain from using excessive, disproportionate and indiscriminate force;
- Established a register of damage arising from Israel’s construction of a wall in the occupied Palestinian territory;
- Requested an advisory opinion from the ICJ on the legality of the construction of the wall;
- Called for “the unimpeded provision of humanitarian assistance;” and
- Requested the Secretary-General to dispatch a U.N. fact-finding mission to investigate artillery shelling and civilian casualties.
The draft Security Council resolution vetoed by the United States last week would have called for a humanitarian pause to allow the provision of humanitarian aid into Gaza. A General Assembly resolution could still do just that. Indeed, often when a resolution aimed at alleviating humanitarian suffering is vetoed in the Security Council, there is no reason – in international law at least – that the General Assembly cannot pass a resolution with identical terms.
General Assembly resolutions do not create legal obligations for Member States. However, such resolutions carry political and moral weight, and non-compliance can carry a political cost.
Another critical role that the General Assembly can play is to reiterate the international community’s unequivocal commitment to international legal rules, and deplore their violation. This has the effect of reinforcing, and strengthening, those rules.
A General Assembly resolution on the humanitarian crisis in Gaza could, for example, call for strict adherence to the rules of international humanitarian law by all parties to the conflict. It could, in particular:
- Reaffirm that attacks on civilians and civilian objects are violations of international humanitarian law, and condemn such attacks in the strongest possible terms;
- Reaffirm that international humanitarian law requires that in the conduct of military operations, care must be taken to spare the civilian population, civilians and civilian objects, and that all feasible precautions must be taken to avoid incidental loss of civilian life, injury to civilians and damage to civilian objects;
- Reaffirm that international humanitarian law prohibits the taking of hostages;
- Reaffirm that international humanitarian law prohibits collective punishment;
- Reaffirm that international humanitarian law prohibits the forcible displacement of civilians, unless demanded by the security of those civilians or military necessity; and
- Reaffirm that international humanitarian law requires parties to a conflict to allow and facilitate rapid and unimpeded passage of humanitarian relief for civilians in need, which is impartial in character and conducted without any adverse distinctions, subject to their right of control.
Such pronouncements by the General Assembly would not have any direct legal effect. But such pronouncements are particularly important in situations where the most steadfast rules of international law are being flouted with impunity. This is a trend which can, if left unchecked, contribute to the gradual erosion of these fundamental legal rules.
Finally, the General Assembly could:
- Call on the U.N. Secretary-General to exercise his good offices in an effort to ensure compliance by all parties with the rules of international humanitarian law;
- Urge Member States to scale-up funding for life-saving humanitarian assistance;
- Urge support for the International Commission of Inquiry on the Occupied Palestinian Territory, including East Jerusalem and Israel;
- Feasibly establish an international protective presence in the Gaza strip.
Last year, the General Assembly passed a resolution which reiterated its commitment – initially expressed in the U4P Resolution in 1950 – to meet every time a veto was cast in the Security Council. Expressing their support for that resolution, several Member States expressed the hope that the General Assembly would play a more active role in maintaining the peace, in the event of the Security Council paralysis over a veto. New Zealand, for example, expressed hope that the General Assembly would “take advantage of the opportunity to exercise its collective political responsibility under the Charter to address matters of international peace and security.” Qatar expressed hope that the resolution would strengthen the U.N. system “in cases where it cannot stand idly by and should respond effectively.” Several other States expressed similar aspirations.
With thousands of Israeli and Palestinian civilians killed in just over a fortnight, millions more living in terror, an unspeakably dire humanitarian situation in Gaza that will only worsen, and the Security Council unlikely to respond, the upcoming resumption of the General Assembly’s tenth emergency special session could scarcely be a more important time for the fulfillment of these aspirations.