Orde Kittrie on “How to Include Far More Lawfare Ammunition in Next UN General Assembly Resolution on Russian Invasion”

Today’s post is by Professor Orde Kittrie, and he makes a very interesting addition to our essays related to the war in the Ukraine by examining the UN General Assembly (UNGA) resolutions addressing the conflict.  These resolutionsare considered to be recommendations and are not legally binding on the Member States,” but are still influential.

Professor Kittrie unpacks the two UNGA resolutions about the war, identifies some deficiencies, and advocates a third resolution to correct them.  What makes his discussion especially interesting is that he puts them in the context of lawfare–a topic of particular interest to me, and one that several Lawfire® writers have examined recently, including with respect to Ukraine (see e.g., here).

Orde’s observations on lawfare merit special consideration because he is the author of Lawfare: Law as a Weapon of War and is clearly one of the world’s top experts.  I found his in-depth dive into the UNGA resolutions to be fascinating and enlightening (especially regarding the scope of the sanctions “gaps’”)..  I urge you to take a look!

How to Include Far More Lawfare Ammunition in Next UN General Assembly Resolution on Russian Invasion

by Orde Kittrie

On March 24, the UN General Assembly (UNGA) adopted its second resolution addressing Russia’s invasion of Ukraine.   Both this and the first resolution, adopted on March 2, symbolically demonstrated wide opposition to the invasion.  However, a comparison with UNGA resolutions about other conflicts reveals these Russia-Ukraine resolutions could have done far more to encourage and assist UN members to impose economic sanctions and other lawfare-type accountability on Moscow.

The gaps in the two UNGA resolutions addressing the Russian invasion are particularly surprising because Ukraine and its allies have in general worked exceptionally systematically and creatively to harness international laws and organizations to their cause.  Many of these efforts are reflected in an official Ukrainian government website detailing the country’s lawfare strategy against Russia.

The West should quickly spearhead another UNGA resolution, drawing on the repertoire of member state action recommendations contained in past resolutions against other targets.  Such a resolution could significantly increase the cost to Russia of its invasion.

UNGA Resolution Can Create Action Hooks

While UNGA resolutions are not legally binding on UN member states, such resolutions can “call” for, “urge,” or otherwise recommend that all member states impose sanctions or other legal measures against the target.

Such recommendations are important because some UN member states find it difficult or impossible legally, or from a domestic political perspective, to promulgate sanctions or other legal measures against a foreign government or entity unless the UN has called upon member states to do so.  A legally binding requirement in a UN Security Council resolution can of course obligate a member state to impose specified sanctions.

However, in many member states, a non-binding provision in a Security Council or General Assembly resolution that recommends a particular measure can be a pivotal hook for action if the government chooses to use it.  For example, the non-binding “calls-upon” provisions in Security Council resolutions provided hooks for many UN member states to impose their own legally binding restrictions on transactions with Iran.

In addition, a sanctions recommendation in a UN resolution provides countries choosing to impose sanctions with an important rhetorical tool to shame or otherwise pressure sanctions laggard countries (and companies based in them).

UNGA Sanctions Recommendation Precedents

There is clear precedent for the General Assembly recommending that member states impose sanctions.  For example, in response to the Korean War, General Assembly resolution 500 recommended that “every State . .  . [a]pply an embargo on the shipment to areas under the control of the . . . People’s Republic of China and of the North Korean authorities of arms, ammunition . . . petroleum, transportation materials of strategic value, and items useful in the production of arms, ammunition and implements of war.”

In 1965, General Assembly resolution 2107, supporting independence movements in several Portuguese colonies, went even further. It urged UN member states to: a) “break off diplomatic and consular relations” with Portugal; b) “close their ports to all vessels flying the Portuguese flag or in the service of Portugal”; c) “refuse landing and transit facilities to all aircraft belonging to or in the service of the Government of Portugal and to companies registered under the law of Portugal”; d) “To boycott all trade with Portugal”.

In contrast, neither UNGA resolution addressing the Russian invasion of Ukraine includes any sanctions recommendations whatsoever.

Many Major Economies Still Lack Russia Sanctions

One tangible reflection of the Russia-Ukraine resolutions’ failure to request member state sanctions is that of the 193 UN member states, only about 40 (including the 27 EU members) have thus far imposed sanctions in response to the invasion.  While the 40 sanctions-imposing countries represent over half of the global economy, the size and sophistication of many of the 153 non-sanctioning economies makes it relatively easy for Russia to undercut the sanctions which have been imposed.

Of the world’s twenty largest economies, the following reportedly have no such sanctions on Russia: China (the second largest), India (the sixth largest), Brazil (the 12th largest), Mexico (the 15th largest), Indonesia (the 16th largest), Turkey (the 19th largest), and Saudi Arabia (the 20th largest).

Sanctions Laggards Pose Evasion Risk

Several of those are amongst Russia’s principal trading partners (including China which was Russia’s top pre-war trading partner and Turkey which was fifth).   Both China and Turkey have developed considerable sanctions evasion expertise over years of participation in Iranian efforts to evade Western sanctions.

Some of the 153 countries refraining from Russia sanctions could provide their own replacements for imports previously obtained by Russia from the 40 boycotting nations, and all of them pose a risk of serving as locations through which Western goods could be illicitly diverted to Russia.  A resolution recommending sanctions would have facilitated pressuring those countries (and their companies) to refrain from doing so.

The U.S. and its allies have, and should use, far-reaching jurisdictional tools to impose penalties on countries and companies which engage in transactions with Russia which skirt U.S. and allied unilateral sanctions.  But in light of widespread international antipathy towards U.S. deployment of what many countries consider to be “extraterritorial” jurisdiction, U.S. pressure would almost certainly be more effective if it were multilaterally grounded in a UN resolution.

Some UN member states which supported (or abstained from) the two Russia-Ukraine resolutions might have shifted their votes in Russia’s direction if the resolutions had recommended economic sanctions.  That could have mitigated against including such a recommendation in the symbolically imperative first resolution.

But the relatively duplicative second resolution provided far less added value.  China and India anyway abstained from both the second resolution (which received 140 votes in favor, five against, and 38 abstentions) and the first resolution (which received a similar 141 votes in favor, five against, and 35 abstentions).

Non-Recognition of Russian Occupation

The two Russia-Ukraine resolutions are also missing several other non-binding hooks which have strengthened UNGA resolutions addressing other conflicts.  For example, neither resolution calls on member states to refrain from recognizing or assisting in the Russian occupation of Donbas, Luhansk, or any other part of Ukraine.

Drawing on the General Assembly’s own resolutions regarding the Russian occupation of Crimea, and prior resolutions regarding other disputed territories, such a provision could read something like:  “Calls upon all States, consistent with their obligations under international law, not to recognize, and not to render aid or assistance in maintaining, the occupation by Russia of any part of Ukraine.”

Such a provision could be accompanied by a General Assembly determination such as the following, drawn from prior resolutions regarding other disputed territories:  “Determines that all legislative and administrative measures and actions taken or to be taken by Russia, the occupying Power, that purport to alter the character and legal status of any part of Ukraine are null and void, constitute a flagrant violation of international law and of the Geneva Convention relative to the Protection of Civilian Persons in Time of War, of 12 August 1949, and have no legal effect, and calls upon Russia to rescind such measures and actions.”

The UNGA’s resolutions on other conflicts have sometimes been opposed by the West.  This includes especially those on the Israeli-Palestinian dispute, about which the UNGA and other UN bodies have issued an egregious number and variety of unfair, unhelpful, and inaccurate resolutions.  However, even resolutions which are wrong from a policy perspective can provide a useful menu of the types of provisions which the UN believes the General Assembly has the legal authority to promulgate.

Accountability for War Crimes

Another type of non-binding hook missing from the Ukraine-invasion response resolutions is a call for accountability for Russian war crimes and crimes against humanity.   Such a provision could emphasize to Putin and his henchmen, to the UN system, and to the International Criminal Court (ICC) that accountability for Russia’s violations is a global priority.  While 39 ICC states parties have already formally urged the ICC prosecutor to investigate the Russian invasion, one line in a UNGA resolution could add scores of additional countries to the call for accountability.

A UNGA call for accountability could also prove useful to the national courts of countries including Germany whose laws enable them to prosecute certain heinous crimes no matter where they are committed, under the principle of universal jurisdiction.  For example, in January a German court sentenced a Syrian former intelligence officer to life in prison for crimes against humanity committed in the Middle Eastern country’s civil war.  In 2015, again in Germany, two Rwandan men accused of leading a rebel group in the eastern Democratic Republic of the Congo were jailed for war crimes.

Reaffirming Opposition to Crimea Invasion

Yet another surprising absence from the two resolutions is any reference to the Russian occupation of Crimea which began in 2014.  A provision condemning that occupation and demanding its end would have made clear that Russia’s illegal occupation of Crimea is not somehow rendered less of a priority by the new invasion.  The failure to reference it comes across as an unearned concession to Russian aggression.

Such a provision would importantly contribute to mitigating the damage done by the UNGA’s embarrassing December 16, 2021 vote on a resolution — condemning the occupation of Crimea and Russian abuses there — which passed by a vote of only 65 in favor to 25 against, with 85 abstentions.  That failure, by a majority of the UN member states, to condemn the flagrantly illegal Russian occupation of Crimea may have helped encourage Putin’s decision, just three months later, to attempt to seize more Ukrainian territory.

Concluding Thoughts

While the March 2 and March 24 Russia-Ukraine resolutions have sent an important symbolic message of opposition to this year’s Russian invasion, precedent shows that the General Assembly could be doing much more to help mobilize member states, and especially their economies and legal systems, in the fight against Russian aggression.  The U.S. and its allies should take the lead in advocating for a third, more robust resolution.

About the author

Orde F. Kittrie is a law professor at Arizona State University and a senior fellow at the Foundation for Defense of Democracies.  He previously served for over a decade at the U.S. State Department, including as Special Assistant to the Under Secretary for Economic and Business Affairs and as lead attorney for strategic trade controls.  FDD is a Washington, DC-based nonpartisan research institute focused on national security and foreign policy. Follow him on Twitter @OrdeFK

The views expressed by guest authors do not necessarily reflect the views of the Center on Law, Ethics and National Security, or Duke University.

Remember what we like to say on Lawfire®: gather the facts, examine the law, evaluate the arguments – and then decide for yourself!


You may also like...