Mark Simonoff
Legal Adviser
United States Mission to the United Nations
New York, New York
May 2, 2023
American Bar Association International Law Section 2023 Annual Conference Panel Discussion: Update on Ukraine: Accountability for Breaches of International Law
AS DELIVERED
Many thanks, and many thanks for the invitation to participate on this panel. In my role as Legal Adviser to the US Mission to the United Nation, I have had the privilege to be part of the US team responding to Russia’s outrageous further invasion of Ukraine. My presentation will lay out some of the responses to Russia’s aggression, specifically at the United Nations in New York.
Beginning in 2021, Russia began massing troops on Ukraine’s border. By January 2022, with clear evidence of massive numbers of Russian troops poised at Ukraine’s border, the United States sounded the alarm bells. We and Ukraine called an emergency meeting of the UN Security Council. Russia tried to block the adoption of the agenda at this meeting. Usually, the agenda is adopted by consensus, just gaveled through at the beginning of the meeting. But Russia objected, so the agenda was put to a procedural vote. Nine votes are required for any procedural decision and the veto does not apply. The agenda was overwhelmingly adopted. This was the first of many battles against Russia.
In the meantime, I worked with US Government colleagues on a draft UN Security Council resolution in the event Russia did launch a full scale invasion. This legally binding resolution would have obligated Russia to immediately and unconditionally withdraw from Ukraine and cease its use of force against Ukraine. This draft resolution was vetted and approved in Washington, and then was negotiated among like minded Council Members, as well as Ukraine.
And then came the evening of February 23: The United States, Ukraine, and Albania called for another emergency Council meeting that night. There were indications that Russia’s full-scale invasion of Ukraine was imminent. The meeting began: Ambassadors from members of the Security Council urged
Russia not to invade, while Russia continued to insist that it had no intention to do so and that the West was fearmongering. During the course of the meeting, people were looking at their smart phones, and they saw Putin’s announcement of a so-called “special military operation” against Ukraine in the middle of the meeting. Russian bombs were dropping on Ukraine. Russian tanks were rolling across Ukraine’s borders. This was a very chilling moment. A permanent Member of the UN Security Council was flagrantly violating the UN Charter by illegally using force to acquire territory of its neighbor. The ambassadors who had not yet spoken shifted from calling on Russia not to invade to calling on Russia to cease its attacks and to withdraw its troops. That night, after the meeting, diplomats from like-minded missions met at the US Mission until 1 a.m. to revise the draft Security Council resolution. The draft was circulated
to Council members the following day. It was put to a vote on Friday. Only one Council Member voted “no,” and that was Russia. So Russia had vetoed the draft resolution. After much negotiation, even China abstained.
Ukraine and the United States turned to consideration of the convening of an Emergency Special Session of the General Assembly. Emergency Special Sessions have their origins in the “Uniting for Peace” resolution, which was a process devised in 1950, during the Korean War, to convene the General Assembly in an Emergency Special Session when the Security Council was blocked from taking action due to a veto. An Emergency Special Session can be convened either through a majority of General Assembly members or through a Security Council resolution. In the 1990s, the 10th Emergency Special Session was convened on the Israel/Palestinian issue, and was reconvened every time the US vetoed a resolution on the Middle East, through a procedural provision which “temporarily suspended” the session and authorized the President of the General Assembly to reconvene it at the request of member states. This was a way to avoid having to go through the process of convening another Emergency Special Session. The US (and Israel) used to question whether this was procedurally kosher.
The day after the Russian veto, the United States drafted a procedural resolution convening an Emergency Special Session of the General Assembly. The Council had not convened an
Emergency Special Session in 40 years. We braced ourselves to see whether Russia would argue that the resolution was substantive and whether they would claim that they could veto it. But they did not try that, and the resolution was adopted.
In the meantime, the resolution that had been vetoed was converted into a General Assembly resolution. The resolution deplored the Russian invasion. It demanded that Russia immediately cease its use of force against Ukraine. And the resolution demanded the immediate, complete, and unconditional withdrawal of Russian forces from Ukraine. Because, unlike the Security Council, the General Assembly only has recommendatory authority, none of these provisions could be legally binding. We also made sure to end with that operative paragraph temporarily suspending the Emergency Special Session and authorizing the President of the General
Assembly to resume it at members states’ request. We figured, given that it had been used by the Palestinians, and it was now an established precedent, we might as well use it now for Ukraine. On March 2 of last year, the resolution was overwhelmingly adopted. 141 UN Member States voted in favor of it. No matter how much Russia tries to paint this as a “Russia versus the West” geopolitical conflict, countries around the world sent a clear message of condemnation of Russian aggression. Only five member states vote “no,” Russia, Belarus, the DPRK, Syria and Eritrea. The resolution showed that the overwhelming majority of UN Member States would not tolerate Russia’s violating a core principle of the UN Charter – the prohibition of the use of force. The illegal invasion of a neighbor for the purposes of territorial acquisition.
Since that March day, there have been five resumptions of the 11th Emergency Special Session. These resumed Emergency Special Sessions have proved to be one tool among several that have been used to address Russia’s flagrant violations of the UN Charter.
- Later in March, the General Assembly adopted a resolution focusing on the humanitarian consequences of Russia’s invasion, including condemnations of Russia’s violations of international humanitarian law and its violations and abuses of human rights.
- After Russia’s horrific actions in Bucha were revealed, in April of last year the General Assembly adopted a resolution suspending Russia’s rights of membership in the Human Rights Council. (During the General Assembly meeting, Russia took the floor and announced its resignation from the Human Rights Council – a vivid illustration of the old adage: “You can’t fire me, I quit!”)
- After Russia purported to annex Ukrainian territory in the eastern and southern parts of Ukraine after conducting sham referenda, in October, the General Assembly overwhelmingly adopted a resolution declaring Russia’s actions unlawful and calling on all States, international organizations and UN specialized agencies not to recognize any alteration of the status of these Ukrainian regions.
- In November of last year, the General Assembly adopted a resolution in the furtherance of remedy and reparation for aggres recognized the need for the establishment, in cooperation with Ukraine, of an international mechanism for reparation for damage, loss or injury arising from the internationally wrongful acts of Russia. The resolution also recommended the creation of a registry of damages. Markiyan Kliuchkovskyi will focus on these efforts in his presentation.
- The most recent General Assembly resolution adopted during the 11th Emergency Special Session was on the solemn first anniversary of Russia’s full-scale invasion, in February of this year, focusing on the principles of the UN Charter underlying a comprehensive, just and lasting peace in Ukraine.
The US, Ukraine and its partners have taken other actions to respond to Russia’s flagrant violations of the UN Charter. For example, Russia had been elected to the UN’s Economic and Social Council since the establishment of the UN. Last year, mighty North Macedonia decided to challenge Russia for its seat on ECOSOC. To be elected, a Member State needs 2/3 of the UN Members in the General Assembly present and voting. So if every Member State votes, Russia would need 129 to be elected. It’s a secret ballot election. Russia’s vote results have hovered in the nineties and low hundreds and North Macedonia has hovered in the eighties. The General Assembly’s Rules of Procedure provides that the voting keeps going until there is a winner. There have been 22 rounds of balloting, and Russia has failed to secure the required majority.
So we have effectively prevented Russia from serving on ECOSOC, one of the principal organs of the United Nations.
We and our partners have also prevented Russia from being elected to several subsidiary bodies of ECOSOC. These include: the Commission on the Status of Women, the UN Development Program and other program’s executive boards, the Commission on Crime Prevention and Criminal Justice, the UNICEF Board, the NGO Committee, and the UN Women Board. All of these results amount to increasing isolation of Russia and a collective castigation for Russia’s abhorrent actions.
The response to Russia’s outrageous actions continues in New York.
Collectively, as stated in the most recent General Assembly resolution adopted on the anniversary of Russia’s 2022
invasion, we are all working to reach, as soon as possible, a comprehensive, just and lasting peace in Ukraine in line with the principles of the Charter of the United Nations.
Thank you.
