On the Legality of the Russian Vetoes in the UN Security Council and the Harsh Reality of International Law: A Rejoinder to Professor Jennifer Trahan

[Dr. Mohamed Helal is an Assistant Professor of Law at the Moritz College of Law & Affiliated Faculty at the Mershon Center for International Security Studies, The Ohio State University.]

On April 10, 2018, Russia vetoed a UN Security Council resolution drafted by the United States that would have created a mechanism to investigate the use of chemical weapons against civilians in Syria. This Russian veto was neither unexpected nor unprecedented. This was Russia’s twelfth veto to protect its Syrian allies against UN intervention since the outbreak of the Syrian civil war over seven years ago. In 2017 alone Russia exercised its veto five times to prevent the adoption of resolutions on the conflict in Syria (on one occasion, China joined Russia in vetoing a proposed resolution). The only other veto used in 2017 was cast by the US when it prevented the adoption of a draft resolution that challenged America’s recognition of Jerusalem as the capital of Israel.

In a thoughtful piece recently posted on Opinio Juris, Professor Jennifer Trahan argued that the Russian veto was “illegal” and “illegitimate.” She also suggested that the repeated use of the veto by Russia could make it “complicit in facilitating the commission of atrocity crimes.” In this post, I will be focusing on the former claim regarding the legality of the Russian vetoes. Before proceeding, however, I should note that I seriously doubt that a vote or veto on the Security Council could constitute complicity in the commission of an atrocity crime as the concept is understood in the law of state responsibility or in international criminal law. (See generally: Miles Jackson, Complicity in International Law)

Turning now to the question of the legality of Russia’s vetoes, let me put it succinctly: Russia’s veto on April 10, and its previous eleven vetoes on draft resolutions relating to Syria, were lawful. In fact, each of the 203 vetoes (for the full list: see here) cast by the five Permanent Members of the UN Security Council since the veto was first exercised by the Soviet Union on February 16, 1946, were lawful.

To explain my position I’m going to identify and engage with the arguments that Professor Trahan put forth to support her claim that the Russian veto was unlawful:

First: Professor Trahan writes: “When the veto was drafted into the UN Charter, it was to guarantee unanimity of action by the permanent members as to the use of force.”

That is not exactly true. The purpose of the veto was not to “guarantee unanimity of action by the permanent members.” Rather, the veto was intended as a guarantee to the Permanent Members that the United Nations, acting through the Security Council, would not threaten their security or vital interests.

The experience of the League of Nations and its failure to prevent World War II were probably the single most influential factors in shaping the thinking of the founders of the UN as they designed the structure of the new organization and determined its functions, powers, and prerogatives. The creators of the UN assumed that the principal reason for the demise of the League of Nations was the fact that the Great Powers of that era either never joined the League, as in the case of the US, or were expelled from it, as in the case of the Soviet Union. Therefore, it was agreed early on among the UN’s founders, namely: Franklin Roosevelt, Joseph Stalin, and Winston Churchill, that the success of the future international organization that was to be called the United Nations (which was the name of the military alliance led by the US, the USSR, and Britain that defeated the Axis in World War II) hinged on ensuring that the most powerful states in the international system joined and remained part of the UN. The price to be paid to ensure that these powerful states consented to joining the UN and staying within its ranks was to provide assurances to these countries that the UN would never threaten their national security or their vital interests.

The assurances that were agreed and written into the UN Charter were the permanent membership of those states on the Security Council and their right to veto any resolution that they considered detrimental to their interests. These assurances, especially the veto, were non-negotiable prerequisites for the future Permanent Members, especially the US and the USSR, to join the UN. Indeed, at the San Francisco conference during which the UN Charter was negotiated, Tom Connally, a US Senator from Texas who was a member of the US delegation, told the delegates opposed to the veto in characteristically Texan bluntness that if they “killed the veto” they would also “kill the Charter.”

In addition to seeking to avoid the fate of the League of Nations, the structure and powers of the Security Council and the veto that was granted to its Permanent Members reflect a particular vision that was held by the creators of the UN regarding the nature of the international system and the prerequisites of maintaining world order. Having endured two world wars in their lifetimes, the UN’s founders assumed that the primary threat to international peace and security was conflict between the Great Powers. Other conflicts or crises may cause serious tensions and even lead to armed confrontations. Nonetheless, given their military prowess and their global political influence, it was assumed that preventing Great Power war should be the principal objective of the UN. Accordingly, the Security Council was designed as a forum to facilitate regular communications and consultations between the Great Powers. This, it was hoped, would contribute to maintaining the peaceful coexistence of those states.

That was, and remains, the logic underlying the veto and the architecture of the Security Council. That is why, as I’ve argued in a recent essay, it is a mistake to call the Security Council a collective security body. If anything, the Security Council was, and remains, a Great Power Concert akin to the Concert of Europe. It is a directorate composed of Great Powers that was intended to provide an institutional mechanism for those states to jointly oversee the operation of the international system.

Second: Professor Trahan suggests that the Russian veto represents an abuse of power. She writes: “It is time to recognize that the veto power is being abused in a way never anticipated when the Charter was drafted.” She also claims that the veto “had absolutely nothing to do with blocking investigations and/or prosecution of atrocity crimes.”

Again, I respectfully disagree. Russia, and the other Permanent Members, have exercised the veto exactly as anticipated when the UN Charter was negotiated. This is patently apparent from a careful perusal of the Charter’s travaux préparatoires. Unsurprisingly, the veto was the most controversial aspect of the UN Charter when it was being negotiated in San Francisco. Many delegations expressed misgivings about extending such a prerogative to the Permanent Members and worried about the potential for its abuse. Therefore, led by Australia’s Foreign Minister Herbert Evatt, the future UN Member States submitted a questionnaire to the future Permanent Members to invite them to clarify the limitations on the veto and the situations in which it would and would not be exercised.

In response, the future Permanent Members submitted a joint statement that revealed that the veto was designed to be a virtually limitless power to prevent the Security Council from taking any action that a Permanent Member considered threatening to its vital interests. The only notable restrictions on the veto were: (1) a Permanent Member may not prevent another UN Member State from bringing a matter to the Security Council’s attention, and (2) a Permanent Member that is a party to a dispute that is being considered by the Security Council is required to abstain from the vote on resolutions adopted under Chapter VI of the UN Charter. The rationale for these minimal limitations on the veto is encapsulated in what is probably the most important paragraph of the joint statement the future Permanent Members prepared in response to the questionnaire submitted by the other negotiating parties at the San Francisco conference. They said:

decisions and actions by the Security Council may well have major political consequences and may even initiate a chain of events which might, in the end, require the Council under its responsibilities to invoke measures of enforcement . . . This chain of events begins when the Council decides to make an investigation, or determines that the time has come to call upon states to settle their differences, or makes recommendations to the parties. It is to such decisions and actions that unanimity of the permanent members [i.e. the veto] applies

In other words, even non-forcible measures such as calling on belligerents to agree to a cease fire or condemning the use of force by a state, or even the simplest diplomatic censure, or, as in the case of Syria, calling for an investigation of allegations of mass crimes were all considered measures that could be vetoed by a Permanent Member. The theory was that, while individually those measures may seem minimally invasive or politically benign, they could “initiate a chain of events” that might ultimately threaten the security or interests of the Permanent Members.

The delegates in San Francisco immediately realized the implications of the veto. As one delegate stated: the veto made it “impossible for the Security Council to determine the existence of a threat to the peace or act of aggression by one of the Permanent Members.” Moreover, because the Great Powers could define the scope and nature of their vital interests as they pleased, it was recognized that they could freely extend their immunity from Security Council action to their allies. Indeed, the tragic irony of history is that while the UN Charter was being negotiated in 1945, Syria provided a preview of how the future Security Council would operate. Seeking to reestablish itself as a colonial power after its liberation from Nazi occupation, France was executing a brutal intervention in Syria to quell an uprising that was demanding independence from France. This intervention included aerial bombardment of Syrian cities, including Damascus, and which caused mass civilian casualties. Referring to this French aggression, the Egyptian delegate warned that “France would have been able to exercise her right of veto, had the Security Council been in existence and had France occupied a permanent seat. France could have prevented the application of any enforcement measures to stop this action.” In short, the impact of the veto and the way in which it would operate were clearly recognized and fully anticipated even before the text of the UN Charter was finalized and adopted.

Applied to the Syrian context and viewed from Moscow’s perspective, it is not politically unreasonable for Russia to expect that an investigation that could potentially attribute a chemical attack to the Syrian regime might lead to calls to create mechanisms to hold the leaders of the Syrian regime accountable for mass atrocities. These are developments that could result in a “chain of events” that could ultimately undermine Russian strategic interests in Syria and the region.

This, of course, is a tragic and inhumane outcome. I agree with Professor Trahan that it is “cold comfort to the victims.” But the harsh reality is that, viewed from an historical perspective, the Security Council’s inaction on Syria is utterly unremarkable. The Security Council is behaving according to the terms of the deal that was made in 1945. Pursuant to this deal, the Great Powers agreed to join the UN in return for an assurance that their vital interests would be protected. The price, of course, is that since the creation of the UN millions of human beings have been victimized, murderous dictators and warmongers, such as Bashar Al-Assad, have escaped accountability, and numerous countries and entire societies have suffered egregious violations of international law in places such as Hungary (1956), Egypt (1956), Czechoslovakia (1968), Afghanistan (1978-1989), Iran (1980-1988), Iraq (2003), Palestine (since 1948), etc.

That is why I believe that in dealing with the Syrian civil war, the Security Council operated exactly as it was intended to function. It prioritized the strategic interests of a Great Power – Russia – over the human costs of war. This is because the Security Council is not a global law enforcer. It is not an international 911 dispatcher. Nor is it a collective security mechanism that guarantees its members protection against aggression. The Security Council cannot, as Professor Trahan suggests, “reign in its own permanent members.” If anything, the Council is beholden to the wills and whims of its Permanent Members. This is because the Council is a Great Power Concert designed to facilitate Great Power relations and preserve Great Power peace. That is the Faustian pact at the heart of the UN Charter; a pact that has not been revised since 1945. (For more on this, see my Article titled: Am I My Brother’s Keeper? The Reality, Tragedy, and Future of Collective Security)

Third: Professor Trahan argues that the Russian veto is “at odds with other bodies of international law (such as the highest level jus cogens norms).”

Regretfully, I disagree. The prohibitions on genocide, war crimes, and crimes against humanity have undoubtedly attainted the status of jus cogens rules. These rules, however, are peremptory substantive prohibitions. That means that all states are under a jus cogens obligation not to commit genocide, war crimes, or crimes against humanity, whether on their own territory or on the territory of another state. Moreover, pursuant to this obligation, all states are required to ensure that those crimes are not committed either by non-state actors on their own territory or by non-state actors acting under their direction and control on the territory of another state.

However, there are no procedural jus cogens rules relating to the enforcement of these substantive prohibitions. In other words, while all states are under an obligation not to commit those crimes, either directly through their own agents or indirectly through non-state actors, states are not under a jus cogens obligation to prevent the perpetration of these atrocities when committed by another state on its own territory or on the territory of a third state.

This distinction between substantive and procedural obligations was at the core of the reasoning of the International Court of Justice in the Arrest Warrant Case and in the Case Concerning the Jurisdictional Immunities of the State. While both these cases related to the question of immunities, the logic underlying the distinction between substantive and procedural rules can be extended and applied to this discussion of the legality of the Russian veto. The fact that the prohibitions on atrocity crimes, such as war crimes and crimes against humanity, have attained the status of jus cogens, has not led to the development of a corollary jus cogens obligation to prevent the perpetration of those crimes when committed elsewhere. Therefore, while Russia, the other Permanent Members of the Security Council, and indeed the entire UN membership, are bound by the substantive jus cogens prohibitions on crimes such as genocide, war crimes, and crimes against humanity, these states are not under a jus cogens obligation to actively prevent the perpetration of those crimes. Moreover, it would stretch the instruments of treaty interpretation to read anything in the UN Charter as generating any such an obligation, especially given the track record of the Security Council and the practice of its Permanent Members.

As a normative matter or as de lege ferenda, one definitely hopes that international law would develop a jus cogens rule requiring states to prevent the perpetration of mass atrocities. However, such a rule definitely does not exist as lex lata. It is important to note, however, that a Russian veto in the Security Council does not affect the existing treaty-based grounds for asserting jurisdiction to prosecute or extradite alleged perpetrators of international crimes, in Syria or elsewhere. Regardless of whether the Security Council chooses to investigate the atrocities committed by the state and non-state belligerents in Syria, states parties to treaties such as the Convention Against Torture have an obligation to prosecute or extradite perpetrators of the crimes prohibited pursuant to those treaties.

Conclusion:

Let me make one thing clear. The Syrian civil war and the human suffering it has wrought is a blight on the conscience of humanity. It is a tragic and heartbreaking situation. An impartial investigation into the crimes committed by all belligerents, both local and foreign, must be undertaken. The role of foreign states in funding and fueling the conflict in Syria also deserves to be fully examined, documented, and revealed. Moreover, the crimes committed by the Assad dynasty over decades of dictatorial rule must be investigated. Nothing short of a comprehensive commission of inquiry followed by the appropriate accountability measures will suffice to begin the process of post-conflict justice and reconciliation and to achieve a sustainable peace in Syria.

Furthermore, my objective is not to defend Russia or to engage in an apology for power politics. Rather, my purpose is to clarify that criticism directed at institutions such as the Security Council or practices such as the veto are misplaced and reflect a misunderstanding of the nature of that institution. The causes of humanity and the vindication of human rights will gain little by ignoring or misunderstanding the realities of power. In fact, any realistic solution to the Syrian crisis and any chance for holding those responsible for the atrocities committed in that conflict will depend on taking the strategic interests of all Great Powers and regional players into consideration. Any other approach risks becoming a futile exercise of utopian thinking that is unmoored from the harsh political reality in which international law operates.