Why The U.N. General Assembly Has Authority To Speak on the War on Iraq In the Event of Security Council Stalemate

By MARJORIE COHN

Thursday, Mar. 27, 2003

As was widely reported, the current war on Iraq followed on the heels of contentious deliberations among the members of the U.N. Security Council. The U.S. - along with the U.K. and Spain - tried to convince the Security Council to pass a resolution that would have authorized the use of armed force. But when France threatened to veto any such resolution, and their ability to get a majority seemed dicey at best, the U.S. and U.K. decided to start the war even without Security Council approval.

Nevertheless, the Security Council has not acted further, since the war began. That's not surprising: The U.S. and U.K. would doubtless veto any resolution denouncing the war, or stipulating that the U.N. or its designee would be the entity to control post-war Iraq. (Interestingly, the deadlock goes both ways: France has said it will veto any proposed resolution that would give the United States and Britain--not the U.N. - the right to govern postwar Iraq.)

Does that mean the U.N.'s hands are tied - due to the U.S.'s and U.K.'s veto powers? Perhaps surprisingly, the answer is no.

The United Nations Charter confers on the Security Council primary responsibility to keep the peace. Yet when the Security Council is unable to act, there is a procedure for the General Assembly to fulfill this role in its stead. It is contained in the "Uniting for Peace Resolution," Resolution 377.

The Uniting for Peace Resolution

Under the Uniting for Peace Resolution, within 24 hours of a stalemate in the Security Council, the General Assembly can meet to consider the matter. Either seven members of the Security Council or a majority of the members of the General Assembly can invoke the Uniting for Peace Resolution.

Once the Resolution is invoked, the General Assembly can recommend collective measures to "maintain or restore international peace and security." Thus, even in the face of insoluble disagreement in the Security Council, the General Assembly could act to urge the U.S. and its allies to stop the war - or, for example, to mandate that after the war, the U.N. should be the one to keep the peace and determine what the new Iraq should look like.

The Origins and History of the Uniting for Peace Resolution

It was, ironically, the United States itself that spearheaded the passage of the Uniting for Peace resolution, in 1950. Even more ironically, the resolution's passage was prompted by the same situation that prompted the war on Iraq: Security Council deadlock due to the exercise or threatened exercise of veto power.

After North Korea invaded South Korea, the United States was unable to obtain Security Council approval for a U.S.-led military operation to invade North Korea, because of the Soviet veto. Thus, Secretary of State Dean Acheson secured the passage of the Uniting for Peace resolution.

Then, that same year, the U.S. used the Uniting for Peace Resolution to pressure the Soviet Union to halt its invasion of Hungary, after the Soviet Union had vetoed an anti-intervention resolution in the Security Council.

Now, countries opposed to the war in Iraq could likewise use the Uniting for Peace Resolution to de-legitimize the use of armed force, and call on Bush to halt it immediately. Many nations have requested the Security Council hold an emergency meeting to urge the U.S. and its allies to stop the war. Failing that, they are advocating the General Assembly convene and take action.

Though they are certain to lose in the Security Council, due to the threat of U.S. and U.K. vetoes, nations in favor of peace may well prevail in garnering a majority in the General Assembly.

The U.S.'s Attempt to Preempt The Use of the Uniting for Peace Resolution

Meanwhile, fearful of a resolution condemning its war in Iraq, the Bush administration has mounted a preemptive campaign to prevent the General Assembly from convening. The campaign is somewhat hypocritical, as the U.S. itself has recognized, in the past, that the Uniting for Peace Resolution is a useful outlet when veto powers deadlock in the Security Council - which is just what happened here.

Nevertheless, General Assembly President Jan Kavan has commented, "The United States is putting pressure on many countries to resist [a General Assembly meeting on the issue]." Indeed, the U.S. government has sent communications to several nations, stating, "Given the current highly charged atmosphere, the United States would regard a General Assembly session on Iraq as unhelpful and as directed against the United States."

The U.S.'s campaign is unlikely to succeed in the end. Just as many Security Council members refused to put their imprimatur on a resolution that would have authorized the war before it began, myriad countries will likely defy the United States and call for a cessation of the war.

The Need to Stay With the United Nations Process, Even Now

The General Assembly, the democratic body of the U.N., deserves the opportunity to speak the truth: This is an illegal war. The General Assembly also deserves the opportunity to do what it can at this point - ensure that the U.N. administers a peaceful postwar Iraq in the interests of its citizens.


Marjorie Cohn, a Professor of Law at Thomas Jefferson School of Law in San Diego, is a criminal defense attorney, executive vice president of the National Lawyers Guild, co-chair of the Guild's international committee, and editor of Guild Practitioner. Professor Cohn co-authored Cameras in the Courtroom: Television and the Pursuit of Justice, and she publishes frequent articles and does media commentary about U.S. foreign policy, human rights, and criminal justice.

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