The Legal Responsibility Not to Veto a Ceasefire in Gaza

[Rana Moustafa Essawy is an Assistant Professor of Public International Law at Alexandria University (Egypt).]

On the 26th of February, Israel submitted its report, as ordered by the International Court of Justice (ICJ), to demonstrate what measures it has adopted to comply with the Court’s order for provisional measures in the South Africa v. Israel case. To recap, the Court ordered the following measures: 

1. Israel shall take all measures within its power to prevent the commission of all acts of Genocide within the scope of Article II of the Genocide Convention.
2. Israel shall ensure with immediate effect that its military does not commit any acts of Genocide within the scope of Article II of the Genocide Convention.
3. Israel shall take all measures within its power to prevent and punish the direct and public incitement to commit genocide in relation to members of the Palestinian group in the Gaza Strip.
4. Israel shall take immediate and effective measures to enable the provision of urgently needed basic services and humanitarian assistance to address the adverse conditions of life faced by Palestinians in the Gaza Strip.
5. Israel shall take effective measures to prevent the destruction and ensure the preservation of evidence related to allegations of acts. 

Although the report’s content remains unknown at the time of writing, what has occurred since the ICJ’s 26 January order points to Israel’s non-compliance with any of the aforementioned measures. To mention a few: dehumanizing rhetoric and inciting genocidal statements continue unpunished, February registered a 50% reduction of humanitarian aid entering Gaza compared to January, starvation is widespread and the civilian death toll continues to rise.

Despite clear evidence that Israel has not abided by the ICJ’s binding order, several international law experts have opined that there is nothing much that can be done to enforce this order, as Article 94 of the UN Charter hinges the enforcement of the Court’s decisions on a resolution from the Security Council – a resolution that will certainly be vetoed by the United States (US). Indeed, this is the expected scenario. The White House National Security Council spokesman John Kirby stated that the Biden administration finds South Africa’s allegations of genocide ‘meritless’ and ‘completely without any basis in fact whatsoever’. This position remains unchanged.

However, I argue in this post that if the US decides to veto a resolution that demands a ceasefire in Gaza to enforce the ICJ’s order, this would add to its series of failures to comply with its duty to prevent genocide under Article 2 of the Genocide Convention. For this purpose, I first provide a brief overview of the notion of ‘Responsibility Not to Veto’(RN2V). The second section then addresses how the duty to prevent genocide constitutes one of the legal sources for the RN2V. In the third section, I demonstrate how the ICJ’s 26th January order is the missing piece of the puzzle for the RN2V and how that translates to the Gaza context. 

The Responsibility Not to Veto

The responsibility not to veto (RN2V) refers to the duty of the five permanent members of the Security Council (the P5) not to use their right to veto in cases of mass atrocities. This notion appeared in the 2001 International Commission on Intervention and State Sovereignty (ICISS) report, ‘The Responsibility to Protect’, in which it was proposed that:

the Permanent Five members of the Security Council should agree not to apply their veto power, in matters where their vital state interests are not involved, to obstruct the passage of resolutions authorizing military intervention for human protection purposes for which there is otherwise majority support

p.XIII

Although many states have expressed support for the RN2V, the US was primarily responsible for the deletion of any reference to the RN2V from the 2005 General Assembly World Summit Outcome, where the notion of the responsibility to protect was endorsed. Notwithstanding, several attempts have been made afterwards to introduce restraints on the use of the right to veto in cases of mass atrocities, with varying degrees of support from the US (see the US reaction to the latest reform proposed by Liechtenstein). 

Despite the importance of these attempts for ‘paving the way for a meaningful procedural reform’ in the Security Council, they remain non-binding. Thus, several jurists have recently started examining whether legally binding limits exist on the use of the right to veto in cases of mass atrocities. They focus on several obligations as sources for those limits (see here, here and here). In this post, I focus on the specific duty to prevent genocide, which authoritatively comes into play by the ICJ’s 26th January order (a point I will come back later in this post). 

The Duty to Prevent Genocide and the RN2V 

The duty to prevent genocide was defined by the ICJ in the Bosnia v. Serbia case as the obligation of states ‘to employ all means reasonably available to them, so as to prevent genocide so far as possible (para.430).’ This obligation varies from one state to another according – as highlighted by the Court – to the state’s ‘capacity to influence effectively the action of persons likely to commit, or already committing, genocide (para.430).’

In light of that, it is generally accepted that the P5 have a heightened responsibility to prevent genocide owing – inter alia – to their veto privilege through which they control the Security Council’s capability to prevent genocides and respond promptly to ongoing ones. Nevertheless, international law scholars are divided upon whether this heightened responsibility to prevent genocide imposes on the P5 a legal obligation not to veto any resolution aiming to prevent genocide. 

Opponents of a legal duty not to veto resolutions aiming to prevent genocide have argued that it is very difficult to establish a causal connection between the non-exercise of veto and the prevention of genocide. Nevertheless, establishing this connection is not requisite because – as emphasised by Roger S. Clark: 

the obligation to prevent genocide is one of conduct not of result “in the sense that a State cannot be under an obligation to succeed, whatever the circumstances, in preventing the commission of genocide; the obligation of States parties is rather to employ all means reasonably available to them, so as to prevent genocide as far as possible.”  A Security Council resolution is not guaranteed to do the trick, but that does not mean that supporting an initiative can be avoided.

quoting the ICJ in Bosnia v. Serbia Case, para. 430

Against the existence of a legal duty not to veto resolutions aiming to prevent genocide, international scholars have referred to the ICJ’s procedural-substantive distinction made in the Germany v. Italy Jurisdictional Immunities case (para. 93). They argue that the procedural character of the right to veto, in contrast to the substantive character of the prohibition of genocide, signifies that the two rules ‘address separate matters’; thus, there is no conflict between them (see here and here). While this can arguably be held true for the relation between the prohibition of genocide and the right to veto, this distinction does not hold any relevance for the relation between the duty to prevent genocide and the right to veto because the duty to prevent genocide is procedural in the sense that it imposes on states the duty to employ all measures available to them so as to prevent genocide. In other words, this duty is about the ‘process’ to prevent genocide. Therefore, a conflict between this duty and the exercise of the right to veto is very probable. 

Not only is the duty to prevent genocide a procedural obligation, but it is also a jus cogens procedural obligation (cf. Helal’s opinion). John Heieck has elaborated on the jus cogens nature of the duty to prevent genocide. He has demonstrated the customary nature of this duty and its ‘non-bilateralizability’. Some may argue that he does not provide sufficient evidence of the opinio juris cogentis element for the existence of a jus cogens norm (i.e. acceptance and recognition by the international community that the norm is one from which no derogation is permitted). In that respect, I intend to substantiate his argument by referring to the theory of ‘consequential jus cogens’, according to which the effects and consequences of jus cogens norms are themselves peremptory. 

Given the word limit of this post, I refer the readers to my article on revisiting the responsibility not to veto under the theory of ‘consequential jus cogens’. I only refer here to a summary of my arguments. In my article, I demonstrated in the first place that the theory of ‘consequential jus cogens’ is an application of the maxim accessorium sequitur principale (an accessory follows the nature of its principal), which is a general principle of international law. This maxim, when applied in the field of jus cogens, plays an

interpretative role in the process of the determination of the opinio juris cogentis of states regarding a specific norm. Therefore, States’ acceptance and recognition of a specific norm as an accessory norm to peremptory norms shall be interpreted, in accordance with the Maxim, to encompass their acceptance and recognition that this accessory norm acquires the same normative value, unless proven otherwise.

Applying this to the duty to prevent genocide and given its accepted accessorial relationship to the peremptory prohibition of genocide, this duty consequently acquires a jus cogens nature that the exercise of the right to veto cannot violate. 

The question here is: When can the exercise of the right to veto violate the duty to prevent genocide?

John Heieck argues that the P5 are obliged not only to cooperate in negotiating and drafting Security Council decisions under Chapter 7 that aim to prevent the commission of genocide, but are also obliged to impose binding decisions for that purpose; therefore, states have the duty not to use their veto right to block any resolution for that purpose (pp. 64–66, 153). Andreas Zimmermann, on his part, argues that the duty to prevent genocide ‘entails an obligation for permanent members […] only to veto a resolution aimed at preventing genocide […] if they believe that any such resolution is not able to pursue that goal, but not for any other political reasons given that they would thereby violate their obligation to prevent genocide and war crimes’. 

However, I agree with Jenifer Trahan in her contention that it is ‘a case-by-case assessment’. A duty to prevent genocide does not impose definitive voting behaviour on the P5 in all situations. Having said that, readers can argue that this opinion contradicts the main argument of this post that another US veto against a resolution demanding ceasefire in Gaza would be a violation of the jus cogens obligation to prevent genocide. This leads to the next section, where I demonstrate that this is incorrect. 

The ICJ’s order as the Missing Piece of the Puzzle for the RN2V in the Gaza context

Enforcement of the RN2V as an ensuing legal obligation from the duty to prevent genocide faces the problematic fact – as emphasized by John Heieck– that the P5 either hesitate to characterize a situation as genocide ‘for fear they would have to do something about it’ or deny it outright to protect their allies. A natural consequence of this would be that the P5 would veto any resolution claiming otherwise. 

However, this problem does not arise in the Gaza situation. The ICJ has ruled positively on the plausibility of South Africa’s genocide case and decided that there is “a real and imminent risk that irreparable prejudice” will be caused to the rights of Palestinians to be free from genocidal acts (para.74). Indeed, this is not a definitive decision on the commission of genocide in Gaza; nevertheless, the ICJ’s 26th January order is rightly read, as detailed elsewhere, as a declaration of the ‘existence of a serious risk that genocide will be committed’ (see here and here). This in turn triggers the P5’s duty to prevent genocide which arises – as the ICJ highlighted – ‘at the instant that the State learns of, or should normally have learned of, the existence of a serious risk that genocide will be committed. Therefore, a veto that challenges the characterization of the situation in Gaza as involving a serious risk that genocide will be committed would indeed be a violation of the jus cogens obligation to prevent genocide. 

While some readers may agree with the aforementioned, they might still disagree with the main argument that a further US veto against a ceasefire in Gaza would constitute a violation of the duty to prevent genocide. They might view my argument as contradicting the fact, as noted by the ICJ in the Chagos Advisory Opinion (para.180) and highlighted by Judge Dire Tladi (in his capacity as a professor), that there is often “a continuum of options” for ensuring compliance with jus cogens norms. Thus, arguing that the US should not veto a ceasefire in Gaza suggests that “once a State is confronted with a resolution, it has no choice but to accede to the policy choices made by the drafters of the resolutions …”. I would have arguably agreed with that opinion on another occasion, but not in relation to the situation in Gaza. 

A ceasefire in Gaza is not the policy choice of a group of particular states. A ceasefire in Gaza is the measure that has been urged – just to mention a few – by humanitarians working on the ground (e.g. here), human rights experts, the WHO Director-General, the UN High Commissioner of Human Rights (see the statement of the Inter-Agency Standing Committee), the UN Secretary General  and many more. Furthermore, an immediate ceasefire has proved to be the only measure to avert –as the ICJ’s order  lays it down– ‘a real and imminent risk that irreparable prejudice’ will be caused to the rights of the Palestinians to be free from genocidal acts. 

According to the foregoing, if the US exercised its veto against a resolution seeking to impose a ceasefire in Gaza, that would amount to a violation of the peremptory obligation to prevent genocide. 

Conclusion

To clear all doubts about the main argument made in this post, the ICJ is urged to activate Article 11 of its Internal Judicial Practice that provides for the creation of an ad hoc committee, with three judges, to assist the monitoring of the implementation of its provisional measures. This ad hoc committee shall examine the report presented by Israel on the 26^th of February and comments by South Africa, then make its recommendations to the Court upon which it decides on subsequent actions. A finding by the ICJ that Israel has not complied with is provisional measures substantiates the argument that an immediate ceasefire is the only measure to respond to the serious risk that genocide will be committed against the Palestinians. Consequently, it substantiates the argument that an exercise of the right to veto against demands of ceasefire amounts to a violation of the peremptory obligation to prevent genocide. 

At any rate, by the time of writing this post, the US permanent representative to the UN announced that the US has circulated another Security Council resolution that “calls for a temporary ceasefire” that “would allow hostages to return home to their families” and “bring a halt to the widespread suffering of so many Palestinian children, women, and men who are caught in this crossfire of Hamas’ making. And it would help get aid into the hands of Palestinian civilians who desperately need it.” Nonetheless, this post seeks to emphasize that any resolution should not be about merely allowing more aid to the Palestinians in Gaza. It should not be about trying to minimize incidental civilian harm. It should be about responding to the serious risk of genocide against Palestinians in compliance to the peremptory norm of the duty to prevent genocide.