The atrocious situation in the Gaza Strip demands action by the international community to end serious and massive violations of human rights and humanitarian law. As reported by impartial observers, the entire population of Gaza is on the brink of starvation and possibly even beyond it. If there were a hierarchy in the atrocities, death by starvation would rank very high (see, for example, NYT, May 13, 2025, In Private, Some Israeli Officers Admit That Gaza Is on the Brink of Starvation; May 21, 2025, Gaza: UN Child Rights Committee condemns mass starvation of children amid aid blockades).
This situation presents tragic dilemmas and ethical and legal imperatives. More specifically, how can the international community protect the civilians in Gaza, placed under the authority of the occupying Power, which, instead of discharging its duties, appears to be turning against the civilian population with increasing ferocity?
Article 41 of the ASR imposes on all states a legal obligation to “cooperate to bring to an end through lawful means any serious breach” of peremptory norms. Without mentioning Article 41 ASR, the ICJ implicitly suggested that the obligations flowing from that provision are part of customary law (see Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, of 9 July 2004, at para 159, reiterated in Legal Consequences Arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, Advisory Opinion, of 19 July 2024, at para 279).
However, even conceding that this is the case, the inherent vagueness of these obligations undermines their efficacy. Article 41 ASR does not set out the contents and the modalities of interstate cooperation, nor does it flesh out the measures to be adopted by states to bring the breach to an end. Furthermore, a decentralised action by states would be deprived of the legitimacy proper to the organs of the international community.
On the other end of the spectrum, the Security Council (SC) is vested with the full panoply of powers and prerogatives under Chapter VII of the UN Charter, including the use of force. It possesses the legitimacy and the means to halt this slaughter. But at this moment, an action decided by the SC to protect the population of Gaza is politically unrealistic.
Therefore, the question arises whether the General Assembly (GA), certainly a qualified representative of the international community, has the legitimacy and powers sufficient to promote an action aimed at bringing to an end a violation of humanitarian law in the context of armed conflicts.
The UN Charter bestows on the GA a broad competence. Article 10(1) confers to the GA the power to:
“discuss any questions or any matters within the scope of the present Charter … and … make recommendations to the Members of the United Nations or to the Security Council or to both on any such questions or matters”.
The same power was conferred to the GA by Article 14 in:
“situation, regardless of origin, which it deems likely to impair the general welfare or friendly relations among nations, including situations resulting from a violation of the provisions of the present Charter setting forth the Purposes and Principles of the United Nations”.
However, this broad competence is curtailed in questions relating to the actions necessary for the maintenance of international peace and security. Article 11(2) indicates that:
“(a)ny such question (relating to the maintenance of international peace and security) on which action is necessary shall be referred to the Security Council by the General Assembly …”.
It is well known that the GA, in the famous resolution A Res 377(V), of 3 November 1950, Uniting for Peace, has set up a mechanism designed to circumvent this limitation. While recognising the primary responsibility of the SC, the resolution indicates that in case of failure to discharge its primary responsibility for the maintenance of international peace and security:
“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, to maintain or restore international peace and security”.
Resolution A 377(V) was promoted by Western states to prevent or defuse the Soviet Union’s veto, and for this purpose, it considered it possible to replace the SC in almost every situation requiring actions to maintain and restore international peace and security.
The first implementation of the resolution A 377(V) occurred on Feb. 1, 1951, when the GA adopted resolution 498 (V), in the context of the Korean War, which, albeit in ambiguous terms, called upon the states to “continue to lend every assistance to the United Nations action in Korea”.
The second and more moderate implementation occurred in resolution A 1000 (ES-I), of 5 November 1956, which established an emergency force to secure and supervise the cessation of hostilities in the ongoing crisis of Suez; in other words, a peacekeeping mission. In its Advisory opinion on Certain Expenses of the United Nations (Article 17, paragraph 2, of the Charter), of 1962, the ICJ took the view that the GA has comparable power to the Security Council within the scope of Article 11(1) of the Charter, with the sole exception of “coercive or enforcement action.” The Court went on to indicate that the SC has exclusive powers under Chapter VII of the Charter, and concluded that accordingly, “the last sentence of Article 11, para. 2, has no application where the necessary action is not an enforcement action”.
In its Introductory Note to the Uniting for Peace resolution, Prof. Tomuschat rightly noted that:
“(a)lthough the General Assembly did not attempt to arrogate to itself powers akin to those rooted in Chapter VII of the Charter, it stands to reason that originally resolution 377 A (V) was hardly reconcilable with the Charter.”
The subsequent practice upheld his conclusion. If resolution 377 A (V) stood the test of time and was able to carve out a role for the GA in the institutional dynamics of the United Nations, it was because of the softening of its previous audacious claim. In other words, the GA retreated from the idea of replacing the exclusive prerogatives of the SC.
A further limit, of a procedural nature, which upholds the exclusive prerogative of the SC, comes from Article 12(1), which prevents the GA from exercising its powers to make recommendations where the SC is exercising its function in the same dispute or situation. As the ICJ noted in the Advisory Opinion of 9 July 2004, Consequences of the Construction of a Wall in the Occupied Palestinian Territory, essentially repeated in the Advisory Opinion 19 July 2024, on Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem:
“there has been an increasing tendency over time for the General Assembly and the Security Council to deal in parallel with the same matter concerning the maintenance of international peace and security … It is often the case that, while the Security Council has tended to focus on the aspects of such matters related to international peace and security, the General Assembly has taken a broader view, considering also their humanitarian, social and economic aspects” (para 27 and para 42, respectively).
The Court concluded that this practice is consistent with Article 12, para 1 of the UN Charter.
In light of these developments, the present role of resolution 377 A (V) should be limited to exercising the power of the AG in parallel matters attributed also to the SC. While diverging in time and reasoning, the three Advisory Opinions mentioned above converge in determining the balance of power between the UN principal organs. In Certain Expenses, the Court set out the boundary between the powers of the GA and those assigned exclusively to the SC. As a result, it declared the power of the GA to recommend non-coercive collective actions in the fields of the maintenance of peace and security. In the Consequences of the Construction of a Wall, the Court indicated that the GA has the power to intervene in the same matters in which the SC operates, but in different capacities, and, specifically, to assume responsibilities in the humanitarian field.
The combination of the findings of the ICJ and the subsequent institutional practice seems to shape a comprehensive and consistent system of the powers and prerogatives of the main political organs of the UN. The GA has generally refrained from encroaching on the SC’s exclusive authority to authorise coercive measures, but it has increasingly asserted its own role by addressing the broader dimensions of situations — even those already under SC consideration, particularly in the humanitarian, legal, and political spheres.
In the crisis of Gaza, the GA operated along two classical directions: it repeatedly demanded a cease-fire in Gaza (see resolution A/ES-10/L.32) and activated the classical humanitarian assistance to civilians (see resolution A/ES-10/L.32). But can the GA take a step forward? Can it adopt actions aimed at implementing humanitarian law in Gaza?
In that system shaped above, the GA should be enabled to recommend collective actions under the command of the UN to bring to an end egregious violation of human rights and humanitarian law with the only objective, in the very terms of resolution 1000 (ES-1), “to secure and supervise” the protection of civilians in Gaza. For this purpose, this mission should be more than a corps of humanitarian operators but less than a peace-enforcement operation. In this matter, guidance can be provided by the Second and Final Report of Secretary-General on the Plan for an Emergency International Force (reproduced in Certain expenses, at p. 171):
“the Force (does not) have military functions exceeding those necessary to secure peaceful conditions on the assumption that the parties to the conflict take all necessary steps for compliance with the recommendations of the General Assembly”.
All in all, there is scope to establish a humanitarian action by the GA as much as it did in the past regarding peacekeeping missions. The aim and the authority to pursue this mission come within the purview of the GA, a custodian of international legality. The obvious objection is that all this seems to be a utopian tale in a situation where grim hatred overrides the sense of humanity.
Indeed, there is a high risk of failure. But the attempt to restore a sense of decorum of the international community and its law in these harsh times is worth the while.