UNSC Veto Power Symposium: Are there Jus Cogens Limits to UN Security Council Vetoes in Atrocity Crime Contexts?

UNSC Veto Power Symposium: Are there Jus Cogens Limits to UN Security Council Vetoes in Atrocity Crime Contexts?

[Charles C. Jalloh is a Professor of Law at Florida International University and Founding Editor, African Journal of  Legal Studies and African Journal of International Criminal Justice. He is a member of the International Law Commission. His latest book is The Legal Legacy of the Special Court for Sierra Leone (Cambridge, 2020).]

It was a pleasure to have been invited to this symposium on Professor Jennifer Trahan’s thoughtful new book, Existing Legal Limits to Security Council Veto Power in the Face of Atrocity Crimes. The book is a welcome addition to the literature because it engages with a fundamental question for the present and future of international criminal justice. The question is whether the United Nations Security Council (UNSC), which was entrusted by States with the primary responsibility for the maintenance of international peace and security under the Charter of the United Nations, is bound by legal limits that might circumscribe the permanent members’ use of the veto in circumstances involving the commission of atrocity crimes.

Professor Trahan’s answer to this important question may not surprise most international lawyers: there are indeed legal limits to the powers of the UNSC.  As the International Criminal Tribunal for the Former Yugoslavia explained in its Tadic Decision (October 1995), the UNSC possesses broad powers especially when acting under Chapter VII of the UN Charter. But, as a constituent organ of an international organization exercising authority conferred by a treaty, it is ultimately not “legibus solutus (unbound by law).” (Para. 28). Indeed, however exceptional its power may be according to Tadic, neither the text nor the spirit of the UN Charter supports a reading placing the UNSC above the law.

Many scholars, such as Derek Bowett writing 13 years before Tadic, have similarly concluded that the UNSC is bound by both constitutional and other limitations on its powers. The UNSC, which functions within an internal eco-system of UN rules as an international organization and an external eco-system of rules derived from general international law, “cannot, in principle, act arbitrarily and unfettered by any restraints.” (D. W. Bowett, The Law of International Institutions 33, 1982). Bowett’s views are generally shared by other prominent scholars, for instance, Erika De Wet and Dapo Akande.

Besides offering a handy redux on the origins, use and proposed alternatives to the veto, as well as the doctrines of humanitarian intervention and the responsibility to protect, Professor Trahan’s key contribution is her useful analysis of the potential illegality of using, or threatening to use, the veto in mass atrocity situations. Central to her claim, argued throughout the book and developed more fully in Chapter 4, is that the decision by any permanent member of the UNSC to veto a widely supported resolution in atrocity crimes situations must be evaluated against the UNSC’s special responsibility for peace and the obligations of its individual permanent members under international law. The author takes Syria and Sudan as her case studies, in Chapter 5 of the book, to argue the claim that the use of the veto or threat of it in those two situations was at least partially responsible for the commission of other human rights violations.

The author makes a three-pronged argument. First, since genocide, war crimes and crimes against humanity are recognized as jus cogens crimes under international law, a permanent members’ use of the veto conferred by the UN Charter will be subject to the higher-level jus cogens norms because the UNSC, as a UN organ, is also bound by international law including international law rules of a peremptory character. Consequently, in her view, the veto should not be used where the effect would be to a) facilitate ongoing jus cogens violations; b) where it would undermine the duty of other UNSC members to cooperate to address serious breaches of jus cogens norms; or c) where the use of the veto would contradict jus cogens rules. (Trahan, 142-3).

Overall, although the distinction between procedural and substantive rules and its implications may open claims in parts of the book to considerable pushback, I can generally agree with Professor Trahan’s main arguments. So, in the rest of this review, I will only offer some preliminary reflections on selectedaspects of the book which I found particularly intriguing.

First, a broad methodological point. To me, it appears more difficult than the author might have assumed to establish a causal connection between the (non)exercise of the veto to the prevention of certain atrocities in a given conflict. Indeed, it seems hard to prove that vetoing a resolution facilitated particular jus cogens violations, given that this is necessarily an assessment of what may occur in the future. The veto may also be explained by other legitimate policy considerations. That some UNSC members might consider a particular course of conduct will likely stop or prevent jus cogens violations does not make it so. The assessment of whether the proposed action in the resolution is wise is for the determination of all the UNSC members. To illustrate, one might cite the ongoing atrocities in Libya. There, we see that even well intentioned UNSC action such as Resolution 1973 (2011) which even authorized the use of force to protect civilians and followed on a unanimous Resolution 1970 (2011) may be insufficient to stem the further commission of atrocity crimes. The resolution is not an end itself, but a means to an end.

The success of such measures will also depend on whether the concerned State complies with the UNSC decision and whether other States with a capacity to influence the situation also exert best efforts to help achieve compliance. Think of the repeated complaints by International Criminal Court (ICC) Prosecutor Fatou Bensouda that Sudan did not comply with the UNSC Chapter VII Resolution 1593 (2005) requesting her office’s investigation and prosecution of atrocity crimes in Darfur. African States, instead of supporting the ICC, adopted a decision not to comply.  In contrast, without the European Union policy of conditionality which helped secure cooperation for the International Criminal Tribunal for the Former Yugoslavia (ICTY), the Chapter VII legal basis of Resolution 827 (1993) creating the ICTY and mandating State cooperation and judicial assistance under Article 29 of its Statute may have had limited impact on accountability or helping stop further atrocities in the Balkans. 

Nonetheless, although there is a valid question whether a permanent member that votes against UNSC adoption of a particular resolution may itself be violating a jus cogens norm, I would agree that casting a veto in circumstances where it can actually be shown that the measure being voted on could reasonably prevent or stop the atrocity crimes is too often reflexively thought to be compatible with international law. It might not be, given that Articles 1 and 24-25 of the UN Charter envisage State delegated powers to be exercised by the UNSC in conformity with the principles and purposes of the organization. Those principles and purposes include the protection of fundamental human rights under Articles 55 and 56 of the UN Charter. Thus, the Article 103 caveat notwithstanding, such measures could be at least be open to strict scrutiny under general international law especially the hierarchically superior peremptory norms as defined in Article 53 of the 1969 Vienna Convention on the Law of Treaties (VCLT).

From this perspective, even though jus cogens norms in the VCLT sense strictly only apply to treaties, Professor Trahan’s call for a more critical consideration of the use of the veto in atrocity crimes contexts seems timely and relevant. All the more so if we consider the many lives lost in tragic conflicts such as Syria, and the relative ineffectiveness of the UNSC in addressing that situation due partly to the veto. Plainly, it would be illogical for international law to, on the one hand, condemn certain conduct such as genocide or war crimes as violative of the most fundamental values of the international community only to, at the same time, give unfettered discretion to the States entrusted with upholding those sacred values to engage in procedural tactics blocking the adoption of robust measures aimed at stopping the commission of such crimes. Indeed, the resort to the veto is often based on political considerations. And the perceived self-interests of the vetoing member rather than the community interests of all States. Yet, instead of prioritizing their parochial national interests, the very point of States delegating such exceptional powers to the UNSC is to enable its members to collectively take decisive measures to secure the peace for all States.

Second, Professor Trahan’s contribution suggests that the status quo may be untenable. Indeed, her book explains the widespread discontent with the current situation among UN members. Perhaps unsurprisingly, States that do not have the veto, including those with rotational seats on the UNSC, have often urged the permanent members to refrain from vetoes in circumstances where grave international crimes are being committed. In addition, the General Assembly, the most representative UN organ, has sought more robust UNSC action when gross human rights violations are taking place. Probably the best example of this is the repeated efforts to secure referral of the Syria Situation to the ICC. Those measures, and other Syria-related resolutions, have been voted down on at least 15 occasions (see for example 22 May 2014 draft resolution), due to vetoes by China and Russia. This in turn led to the General Assembly’s “historic resolution” creating an ad hoc Syria investigative mechanism to document the atrocities and collect evidence which could later be used for criminal prosecutions. The move may have also been partly aimed at shaming the UNSC into action, something that was presumed to have occurred with the authorization to use force in Libya apparently for the sake of protecting civilians.  

Professor Trahan’s book goes even further. It shows that State discontent with UNSC paralysis in the face of atrocity crimes has, over the past two decades, led to several creative initiatives. Those generally urge the permanent members to expressly commit to not use the veto when atrocity crimes are being committed or are at serious risk of being committed. These grassroots approaches to reigning in the veto, in the face of apparent P-5 resistance to any UNSC reform, include the responsibility not to veto, the S-5 initiative, the French/Mexican initiative, the Accountability, Coherence and Transparency (ACT) code of conduct, the Elders Proposal and even the US proposal for restraint of the veto under the Obama Administration. These important initiatives enjoy different degrees of support among States. The most popular is the ACT code of conduct endorsed by 122 States as of June 2020. Significantly, two States signing the pledge are permanent members (i.e. France and the U.K.). This suggests that, even among the P-5, there is principled acceptance of, at least, a moral obligation to take decisive action to prevent or end the commission of atrocity crimes. The two European powers have thus pledged not to veto a credible Chapter VII resolution aimed at those objectives. This is commendable.

That said, at this stage, such self-restraints offer only a partial solution. This is because, so far, only two of the five permanent members have joined. More troubling perhaps is that, by their nature as exercises in voluntarism, they seem not to be based on hard law. Meaning the policy could change at any time. This makes the focus of Professor Trahan’s book on whether existing international law might offer legal constraints particularly worthy of the inquiry. In this context, given the thrust of her main legal argument on jus cogens as superior legal norms that may serve to constrain the veto, I would fully concur with her that genocide, war crimes and crimes against humanity are all jus cogens crimes. What is uncertain, given the state of present international law, are all the legal consequences that flow from such a conclusion. More clarity can be found when each crime is assessed, with genocide seemingly providing the strongest basis for the arguments followed by war crimes and crimes against humanity.

As to genocide, there is a clear obligation for Contracting Parties both to prevent and to punish the crime under the 1948 Genocide Convention. The general obligation of prevention in Article 1, which entails several other duties, was expressly confirmed by the International Court of Justice (ICJ) in the Bosnia-Genocide Judgment (2007). (Paras. 428-433). These are both negative and positive obligations. Negative in the sense that the States agree not to commit such acts through their own organs or persons or groups within their control. Nor can they aid or assist another State in the commission of the crime of genocide. Positive in the sense that States must not only employ all the means at their disposal to prevent persons from committing the crimes, but they also carry the independent obligation to do all reasonably in their power to prevent the commission of such acts. This, of course, is an obligation of conduct, not of result. It would include the adoption of legislative and other measures based on their capacity to influence the events and their legal positioning vis-à-vis the situation concerned.

Still, it is hard to see how, in at least certain atrocity situations and despite Article 103 of the UN Charter a member wielding the veto against a Chapter VII resolution that, for example, imposes sanctions prohibiting all UN Members from supplying weapons to a brutal regime that is known to use those weapons to commit genocidal acts against a protected group would be compatible with such positive duties. Admittedly, the present argument implicitly questions and perhaps even rejects the ICJ’s highly formalistic distinction between procedural and substantive rules in Germany v. Italy (2007). (Para. 93). The application of which would arguably treat vetoes, in atrocity contexts, as purely procedural under the UN Charter and jus cogens as substantive rules. Since the two regulate different matters, and the existence and applicability of the former are not affected by the latter, no conflicts between the norms would arise such as to cast doubt on the validity of a veto by a permanent member. Even, counter intuitively, in the context of jus cogens crimes.

For its part, the International Law Commission (ILC) has affirmed the jus cogens status of genocide and “the basic principles of international humanitarian law” (IHL), these being in the words of the ICJ Nuclear Weapons Advisory Opinion (1996) “intransgressible” customary law principles applicable in armed conflict. (Para. 79). Concerning war crimes, there is a question of scope and whether these are limited only to the “grave breaches” of the 1949 Geneva Conventions. Professor Trahan wisely took a cautious approach. She accepted only “grave breaches” which amount to war crimes under the Geneva Conventions and the violations contained in Common Article 3. These enjoy universal support and are widely thought to form part of customary law. I agree. Indeed, it is unlikely that all basic IHL principles also constitute jus cogens. The Nuclear Weapons Advisory Opinion expressly left the issue open when it spoke of “a great many” of the rules of IHL being of a fundamental character.

Regarding crimes against humanity, which like the other two crimes is a crime under the Rome Statute and also customary international law (though there is no single accepted rationale for the crime), there is as yet no standalone global treaty on the subject. However, while only briefly mentioned by Professor Trahan (at p. 82-3), it might have been interesting to test the implications of the ILC’s draft articles on prevention and punishment of crimes against humanity. The draft articles were adopted on first reading in August 2017 and finalized and submitted to the General Assembly in August 2019 with the recommendation that States negotiate a convention on the basis of the draft articles. Although that recommendation remains under consideration, as Professor Leila Sadat and I recently explained in a special issue on the ILC draft articles by the African Journal of International Criminal Justice, two ILC draft articles in the crimes against humanity study support Professor Trahan’s arguments on the jus cogens nature of crimes against humanity.

First, the fourth preambular paragraph of the ILC’s 2019 draft articles confirm an earlier ILC conclusion that crimes against humanity are “clearly accepted and recognized” as jus cogens crimes under international law. The commentary to the preamble explains that this conclusion reflects many decisions of regional human rights courts, international criminal courts and tribunals, national courts, and the academic literature. Only a relatively small number of States questioned this conclusion in the Sixth Committee. Given the balance of the authorities, and the general acceptance that crimes against humanity are among the most serious crimes of concern to the international community as a whole, there can be little doubt that crimes against humanity, together with genocide and war crimes, also bear a jus cogens character.

Second, and significantly for our purposes, the ILC also concluded that there is a multipronged duty to prevent and punish crimes against humanity analogous to the duties in the Genocide Convention – as explained in the ICJ’s 2007 Bosnia Genocide Judgment. Here, it is unclear whether the positive duty to take measures to prevent crimes against humanity is a codification of customary international law or progressive development of the law of crimes against humanity. There may be aspects of crimes against humanity, such as the underlying  crime of torture, for which this conclusion would seem more warranted and others for which the claim may be more doubtful. Still, as with genocide, States with a capacity to influence the course of events will be required to take legislative, administrative and other measures to prevent crimes against humanity in conformity with international law, and of course, to themselves also refrain from conduct that could give rise to their further commission.

In the end, although the ILC did not need address the legal consequences of the peremptory status of crimes against humanity in the context of its crimes against humanity draft articles (as Belgium invited it to do), it did so – at least to an extent – in the more specific jus cogens topic. Here too, the ILC draft conclusions, as adopted on first reading in 2019, appear to generally support Professor Trahan’s arguments. In fact, not only does the ILC conclusions treat the prohibition of genocide, war crimes and crimes against humanity and aggression as part of the illustrative list of jus cogens norms, Draft Conclusion 16 specifically addressed the legal consequences for resolutions by international organizations. It essentially provides that a resolution, decision, or act of an international organization, which would otherwise have binding effect, does not create such obligations under international law if and to the extent that it conflicts with a jus cogens norm. This includes a UNSC resolution, taken under Chapter VII, as well as other binding decisions of regional bodies such as the African or European Unions. This follows naturally from the hierarchical superiority of jus cogens.

True, the initial textual proposal of ILC Special Rapporteur Dire Tladi in his Third Report expressly mentioned the UNSC, but due to some opposition from a vocal minority of ILC members (mostly from P-5 States), it was removed. To be clear, the concern did not appear to be with the underlying legal proposition; rather, it was more about the sensitivity in the current climate of expressly mentioning the UNSC and potential chilling effects on its actions. The commentary to Draft Conclusion 16 ultimately reflects the compromise to delete express mention in the body text while at the same time making “it clear that the reference to binding decisions in the draft conclusion includes that of the Security Council.” (See Statement of the ILC Drafting Chair for the 71st session Claudio Grossman).

Going even further, Draft Conclusion 19 of the jus cogens conclusions drew on the ILC State Responsibility Articles also discussed in the book under review to specify that “no State shall recognize as lawful a situation created by a serious breach of a jus cogens norm, nor can it render aid or assistance in maintaining that situation”, a conclusion that finds support in several ICJ opinions. Indeed, customary international law imposes duties on States to cooperate with each other to bring to an end through lawful means any serious breach of a jus cogens norm, per Articles 40 and 41 of the 2001 ILC Articles on the Responsibility of States for Internationally Wrongful Acts. The ICJ has clarified duties in this regard for principal organs, especially the UNSC and the General Assembly, although the Court has left those organs a measure of discretion concerning the specific actions that may be required to ensure compliance with international law in both the Israeli Wall (para. 160) and Chagos (paras. 179-182) Advisory Opinions. Notably, individual member states, as well as the organs of an international organization, may still have a separate duty to act to bring to an end a serious breach of jus cogens.

Professor Trahan’s arguments, though only briefly touching on the ILC’s jus cogens study, generally appear to align with the ILC’s thinking on the subject. Although a direct norm conflict might be infrequent because conventional rules of treaty interpretation may help to avoid direct conflicts, and keeping in mind the ICJ’s procedure versus substance distinction, it will be interesting to see how the conclusions are received by States other than the P-5. The latter have, perhaps unsurprisingly, already commented critically on some of the conclusions. The concern appeared to be that the ILC draft conclusion might open the door for States to not comply with binding UNSC resolutions based on some ambiguous jus cogens justification. The ILC was alive to similar concerns. Indeed, it even borrowed from Article 64 of the VCLT to innovate procedural notification requirements and dispute settlement in Draft Conclusion 21 for States purporting to not comply with obligations on jus cogens grounds. Be that as it may, the UNSC and jus cogens proved sensitive in the ILC in 2019 – as this writer surprisingly discovered (see here, here, here and here). Thus, Draft Conclusion 16 can be expected to attract some criticism when the COVID-19 extension of the ILC comment period for that topic expires on 30 June 2021.  

Overall, as Professor Trahan’s important book demonstrates, there remains some fundamental  concerns among States and legal scholars about the consistency of the use of the veto in atrocity contexts with the jus cogens nature of such crimes. Much remains unclear, which is probably why the author also favored a General Assembly request for an advisory opinion to the ICJ on this largely ignored legal problem. Indeed, in a world with a permanent ICC with jurisdiction to investigate and prosecute atrocity crimes, the inconsistent practice of the UNSC and its members which are entrusted with power to refer any of the 193 UN member states to the ICC under Article 13(b) where Rome Statute crimes appears to have been committed as well as to defer them under Article 16, merits more global discussion (see here and here). That discussion could enrich the debate about the legal limits that could discourage the use of the veto in atrocity crimes situations. Her useful analysis of existing legal limits, including under the UN Charter and general international law especially jus cogens, might hopefully already encourage UNSC members such as France which has not used its veto for over 25 years to push even more for veto restraint by other permanent members. Hopefully, this will not weaken the strong and legitimate call by African and other States for UNSC reform. Equally hopefully, it might even motivate the remaining members to recognize that they enjoy what France calls a privilege and thus step up to their solemn responsibilities to abstain from vetoing credible atrocity crimes resolutions. The book’s contribution will likely continue to be a point of reference in that much needed international legal debate for many years to come. The victims of atrocity crimes certainly deserve no less.

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