Emerging Voices: Illegal Vetoes in the Security Council–How Russia and China Breached Their Duty Under Jus Cogens to Prevent War Crimes in Syria
[John Heieck is a Lecturer of and PhD candidate in Public International Law at the University of Kent, Brussels School of International Studies]
When Russia and China vetoed two Security Council resolutions demanding all sides to the Syrian conflict to cease all forms of violence and human rights violations, many scholars and statesmen were not surprised. After all, Russia and China had extensive political, military and economic ties with the Assad government. For those in the realpolitik camp, Russia and China’s vetoes simply reinforced their view that power was king in international relations, and that the Security Council was, and would continue to be, dysfunctional in light of this reality. However, scant attention was paid to the legal consequences of Russia and China’s vetoes; that by vetoing the aforementioned resolutions, Russia and China breached their duty to prevent war crimes under jus cogens and incurred international responsibility as a result. In this post, I will endeavor to explain why.
The supremacy of peremptory norms vis-à-vis the exercise of P5 vetoes
The hierarchy of sources in international law is well known. Formal sources – treaties, custom and general principles – are, by definition, superior to material sources – judicial decisions and scholarly writings. However, formal sources are also, by definition, inferior to jus cogens, which are embodied in peremptory norms. Article 53 of the VCLT defines peremptory norms as norms ‘from which no derogation is permitted’. Peremptory norms therefore have dispositive legal effects: no state may breach, violate or act contrary to peremptory norms without incurring international responsibility. This standard applies to not only treaties but also the exercise of treaty rights (Nieto-Navia, p. 19), including the P5’s exercise of their Charter right to veto SC resolutions. As a result, every P5 veto must be measured against the relevant peremptory norms. If a P5 veto violates a peremptory norm, it is illegal under jus cogens.
The peremptory status of the duty to prevent war crimes
Given their dispositive legal effects, how are peremptory norms determined? Article 53 provides a two-factor test: first, whether the international community of states as a whole has accepted and recognized the existence of the norm in question; and second, whether the norm in question is non-derogable in character and thus peremptory in status. To satisfy the first factor, unanimous consent within the international community is not required; according to Alexander Orakhelashvili, acceptance and recognition by ‘a very large majority’ of states is sufficient (Orakhelashvili, 2007, p. 182). This manifestation may be found in general multilateral treaties, such as the Genocide and Geneva Conventions, and customary international law, as reflected in the Rome Statute. To satisfy the second factor, the norm must be absolute, unconditional and, according to Orakhelashvili, ‘non-bilateralizable’ in character (Orakhelashvili, 2006, p. 59). The norm must also exemplify the raison d’être of jus cogens; that is, to protect the overriding interests and fundamental values of the international community of states, which are distinct from the interests of individual states. These interests include preserving international public order and preventing the commission of international crimes (Nieto-Navia, pp. 13-16).
Both these factors are satisfied when applied to the duty to prevent war crimes. First, 194 states have accepted and recognized, without reservation (Focarelli, p. 128), Common Article 1 to the Geneva Conventions. Moreover, not a single state has contested the ICRC’s interpretation of Common Article 1 (Focarelli, p. 128), which gives imperative, legal force to the duty to prevent war crimes. Second, the duty to prevent war crimes is absolute, unconditional and non-bilateralizable in character, because no two states, or a collection of states, may enter into reciprocal agreements that allow them to circumvent this duty. In addition, this duty exemplifies the raison d’être of jus cogens because it protects the overriding interests of the international community to prevent the large-scale slaughter of and indiscriminate attacks against civilians and civilian populated areas during armed conflicts. Because both factors under Article 53 are satisfied, the duty to prevent war crimes is a peremptory norm of international law. Therefore, a P5 veto of a SC resolution aimed at preventing war crimes is illegal under jus cogens.
The scope and breach of the duty to prevent war crimes
Although the duty to prevent war crimes has arisen to the level of jus cogens, what is the scope of this duty? The ICJ’s holding in the Genocide Case (paras. 428-438) and the ICRC’s commentaries to Common Article 1 provide the following guidance. The scope of the duty to prevent war crimes is determined by a three-prong ‘due diligence’ standard that incorporates the principle of ‘common but differentiated responsibilities’ (Milanovic, pp. 685-687). First, the duty to prevent war crimes is one of conduct, not result. While a state need not succeed in preventing war crimes, it must do everything within its power that might contribute to their prevention. Second, the scope of the duty to prevent war crimes is not territorially limited (Milanovic, p. 685); meaning, a state does not have to exercise jurisdiction over the territory in which war crimes are likely to occur. Instead, the scope of this duty depends on the capacity of the state to effectively influence the relevant criminal actors. This capacity, in turn, depends on a number of factors, including the relative power of the state, as well as the political, military and economic ties between the state and actors. Third, the duty to prevent, and corresponding duty to act, is triggered the moment the state becomes aware, or should have become aware, of the existence of a serious risk that war crimes will be committed. From this moment forward, the state has a positive duty to do everything within its power to prevent war crimes from occurring.
Finally, according to Article 14(3) of the Articles on State Responsibility (ARSIWA), a state breaches its duty to prevent war crimes if war crimes actually occur. In addition, if war crimes continue to occur, and if the state continues to refrain from acting in a manner contrary to the due diligence standard, the state’s breach continues until the state positively discharges its duty to prevent war crimes.
How Russia and China breached their duty under jus cogens to prevent war crimes in Syria
In applying the law to the facts of Syria, Russia and China had a positive duty to prevent war crimes because all three prongs of the due diligence standard were satisfied. First, as two of the most powerful states in the world, Russia and China had a duty to do everything within their considerable power that might have contributed to the prevention of war crimes. Second, Russia and China had the capacity to effectively influence the government forces due to their extensive political, military and economic ties with the Assad family. And while they lacked the same ties with the opposition forces, Russia and China nevertheless had the capacity to effectively influence even these forces due to their position as permanent members on the SC. As members of the P5, Russia and China had the ability, and arguably the obligation (Milanovic, p. 686; ARSIWA, art. 41(1)), to cooperate with the other SC members to impose mandatory demands and binding decisions on the opposition – and government – forces through SC resolutions. As a result, Russia and China had the capacity to effectively influence all parties to the conflict. Third, Russia and China were aware, or should have been aware, of the existence of a serious risk that war crimes would occur in Syria due to numerous reports from the HRC’s commission of inquiry (located here, here, here, here, here and here). Therefore, as early as 23 November 2011, Russia and China had a positive duty to prevent war crimes in Syria.
In addition, according to subsequent reports from the commission of inquiry (located here and here), government and opposition forces have committed widespread, systematic and serious war crimes in Syria since the ICRC declared the conflict a ‘non-international armed conflict’ on 15 July 2012. In light of this fact, Russia and China breached their duty to prevent war crimes in Syria when they vetoed the draft resolutions of 4 February and 19 July 2012, which sought to impose mandatory demands and binding decisions on all belligerent parties to stop committing war crimes. Moreover, Russia and China neither ceased nor mitigated their breaches when they passed SC Resolutions 2042 and 2043 in April 2012, because neither resolution imposed any demands or decisions on either party. Instead, the ‘commitments’ described in 2042 and 2043 were subject entirely to Syria’s consent. Such an abdication on the part of Russia and China of their duty to prevent war crimes was grossly insufficient under the requirements of the due diligence standard, which required Russia and China to do everything within their power to prevent war crimes in Syria. Because they manifestly failed to do so, Russia and China breached their duty to prevent war crimes under jus cogens and incurred international responsibility as a result.
While Russia and China may fail to perceive their conduct as violating jus cogens, they should nevertheless be concerned about the consequences of their intransigence. The Syrian civil war continues to threaten the lives of innocent civilians and the stability of the international order. By abusing their SC veto powers, Russia and China are partially responsible.