Overcoming the Veto to Save Lives

[Mona Ali Khalil is an internationally recognized public international lawyer with 25 years of UN and other experience dealing with the rule of law and international peace and security efforts including peacekeeping, sanctions, disarmament and counterterrorism.]

In the face of a veto by any permanent member of the UN Security Council blocking enforcement action against the mass atrocities in Palestine, Myanmar, Syria and Yemen and elsewhere, is the international community helpless to help – failing to fulfill its responsibility to protect?

Proponents of the use of force for purposes of humanitarian intervention have argued that in the face of a veto in the UN Security Council (UNSC), they are “permitted under international law, on an exceptional basis, to take measures in order to alleviate overwhelming humanitarian suffering”.

Ad hoc or unilateral force may indeed be morally necessary in the face of continuing systematic and mass scale atrocities (such as those being committed in Syria and elsewhere). Such use of force is not, however, legally permissible unless it is in individual or collective self-defense; authorized by the UNSC or, as is argued herein, recommended by the UN General Assembly under its resolution 377(V)A commonly known as the “Uniting for Peace” resolution.

When a veto is exercised by one or more of the permanent members of the UNSC, the veto prevents the UNSC from fulfilling its primary responsibility to take prompt and effective action to maintain international peace and security in accordance with Article 24(1) of the UN Charter. No State should ever be allowed to prevent the UNSC from discharging its responsibility to act promptly and effectively in accordance with the UN Charter. Conversely, no State should seek to uphold the UN Charter by violating it. It would be far better to refer the matter to UNGA for its action and to bring the community of nations together to unite for peace and to join for justice whenever and wherever mass atrocity crimes are being systematically committed with impunity.

It is not enough to unilaterally assert that the use of force will alleviate humanitarian suffering; it should also be necessary to demonstrate to the satisfaction of the international community, that the use of force will in fact, to a reasonable degree of certainty, actually save lives or otherwise alleviate humanitarian suffering. Referring the matter to the UNGA in accordance with “Uniting for Peace” will allow – as early as 24 hours from any veto in the UNSC — an opportunity to internationalize and thereby legalize the assertion. More importantly, referring the matter to the UNGA under “Uniting for Peace” will also internationalize and legalize the use of force itself.

Using unauthorized force arguably undermines the very customary principles and legal frameworks that proponents of humanitarian intervention are seeking to defend and uphold. If a veto blocks the will of the international community to prevent or deter further mass atrocities against civilians, than an UNGA resolution authorizing the necessary measures, up to and including the use of force, would be a far more “practicable alternative” and an arguably far more legal alternative to the unauthorized use of force.

In its “Uniting for Peace” resolution, the General Assembly “resolve[d] that if the Security Council, because of lack of unanimity of the permanent members, fails to exercise its primary responsibility for the maintenance of international peace and security in any case where there appears to be a threat to the peace, breach of the peace, or act of aggression, 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”. (emphasis added).

While not without controversy, General Assembly resolution 377 (V) has unequivocally provided a firm legal basis for enforcement measures including most controversially the possible use of armed force. In part C of its resolution 377 (V), the General Assembly recommended that each UN Member State “maintain within its national armed forces elements so trained, organized and equipped that they could promptly be made available, in accordance with its constitutional processes for service as a United Nations unit or units, upon recommendation by the Security Council or the General Assembly, without prejudice to the use of such elements in the exercise of the right of individual or collective self-defense recognized in Article 51 of the Charter”. It is clear from the foregoing that resolution 377 (V) anticipates that military elements mentioned above could be mobilized for purposes beyond the inherent right of individual or collective self-defense on the recommendation of the General Assembly. The subsequent practice of the General Assembly also affirms the robustness of its prerogatives in respect for the maintenance of international peace and security under the “Uniting for Peace” resolution.

By way of example, in its first emergency special session after the adoption of resolution 377(V), the General Assembly called upon the United Kingdom and France to immediately withdraw from Egypt in 1956 and established a UN command for an international force to secure and supervise the cessation of hostilities. In its second and sixth emergency special sessions, the General Assembly called upon the USSR to withdraw from Hungary and from Afghanistan respectively. In its third, seventh and ninth emergency special session, the General Assembly called for complete and unconditional withdrawals of Israeli troops from Jordan, Lebanon and the Occupied Palestinian Territory respectively. In its first and fourth emergency special sessions, the General Assembly imposed arms embargoes in respect of the situations in the Middle East and the Congo respectively. In its eighth emergency special session, the General Assembly not only called upon Member States to provide military assistance to the front-line States but also called upon them to provide military assistance to SWAPO “to enable it to intensify its struggle for the liberation of Namibia”.

By according the Security Council only primary as opposed to exclusive responsibility, the drafters of the UN Charter clearly albeit implicitly entrusted a measure of secondary or residual authority to be exercised by the General Assembly. As stated in the preamble to resolution 377(V), the failure of the Security Council to discharge its primary responsibility “does not relieve Member States of their obligations or the United Nations of its responsibility” nor does it “deprive the General Assembly of its rights or relieve it of its responsibilities under the Charter to maintain international peace and security”.

If the Responsibility to Protect is to have any meaning, then the systematic or large-scale commission of acts of genocide, war crimes, ethnic cleansing and/or crimes against humanity must be deemed a “breach of the peace” within the meaning of resolution 377(V) and should, if the General Assembly so decides, provide a legal basis for collective measures, up to and including providing military assistance to State and non-State actors if and when necessary.

If the obligation to respect and to ensure respect for the Geneva Conventions under Common Article 1 is to have any meaning, then UN Member States, as High Contracting Parties to the Geneva Conventions, must not let the veto or threat thereof devolve into the only rule of international law enshrined and respected by the international community.

The use of force should always be a last resort. History shows that the General Assembly has in the past and hopefully will soon once again be capable of imposing other enforcement measures against those responsible for mass atrocities where the Security Council is unable to do so — including by imposing arms embargoes and other sanctions; by establishing UN forces or other monitoring mechanisms and by calling upon Member States to refrain from providing any material or other support to the violating States.

Allowing the veto of one or more permanent members to block the UNSC’s ability to fulfil its promise and responsibility to impose consequences for the ongoing atrocities in Syria and elsewhere not only holds the UNSC hostage but ultimately also holds the entire post-WWII legal architecture hostage. In that event, there is a risk that the veto devolves into the only respected and enforced principle of international law.

The obligation to ensure respect for the sanctity of civilian life – whether from targeted or disproportionate attacks– under customary international law – including to prevent or stop mass atrocity crimes such as genocide, ethnic cleansing, war crimes and crimes against humanity whenever and wherever they are ongoing– should be as important a legal principle and as binding a rule of international law if not more so.