UN Resolutions as 'Hard-Law' in Armed Conflict

The sources of international law, as codified in Article 38 of the Statute of the International Court of Justice (ICJ) – international conventions; international custom; the general principles of law; and judicial decisions and the teachings of the most highly qualified publicists of the various nations – are treated as the same sources of international humanitarian law (IHL). A few texts have, however, introduced other sources, such as “soft law” instruments and domestic legislation. Of all these sources, treaties, particularly, the Four Geneva Conventions of 1949 and their Additional Protocols of 1977, have received the most attention. Next is customary international law, which has also been considered extensively by eminent scholars. The role of UN resolutions as a source of international law has received little attention: some reject it as a source, and only a few have treated them as a source. Nevertheless, within the IHL regime, UN resolutions – the Security Council (UNSC) and the General Assembly’s (UNGA) – have played varying roles to deserve treatment as “hard laws”: It was the UNSC resolutions that introduced special tribunals – in the former Yugoslavia (1993) and in Rwanda (1994) – and instrumental in establishing the tribunals in Sierra Leone (2000); and in Lebanon (2006) – all of which have been impactful and contributed to accountability under the IHL regime. There are other documented roles these resolutions have played under IHL which this paper discusses. As proof that these resolutions play important roles in IHL, there is currently a call to introduce a special court with jurisdiction to try IHL violations arising from the 2022 Russo-Ukraine war. Yet, there are challenges and questions on the bindingness of UN resolutions – especially the UNGA resolutions – under international law. The aim of this paper is to examine the role UN resolutions play under IHL. In addition, it argues that: (1) in IHL, some UN resolutions qualify as “hard-law” (2) the recent gaps in IHL may be filled by these resolutions; and (3) the resolutions may shape the development of customary humanitarian law in contemporary times. While there is considerable consideration of the status of UN resolutions generally by reputable international law scholars, this paper aims to conceptualize the literature within IHL discourse.