A Brief Comment on Jennifer Trahan’s Post About the P5

We have published a series of fascinating posts in recent days debating whether the permanent members of the Security Council have a legal obligation under the UN Charter not to veto resolutions calling for the investigation or prosecution of atrocity crimes. Jennifer Trahan argued yes; Mohamed Helal responded no; and Trahan replied yes again.

I am not convinced by Trahan’s response to Helal, but he can speak for himself. I simply want to take issue with one of Trahan’s central claims in her new post: namely, that a significant number of states reject the idea that the P5 “can veto absolutely any Security Council resolution, at complete discretion, without any concern whether their actions are consistent with other bodies of international law or the purposes and principles of the UN Charter.” Here is what she says:

The question is whether this is how one should read the UN Charter. And, whereas Dr. Helal attacks my post, as “utopian thinking” there are at least 115 States that have joined the ACT Code of Conduct and 96 States that have joined the French/Mexican initiative, both calling for veto restraint in the face of genocide, crimes against humanity or war crimes, that would likely take issue with his approach. Indeed, two of the permanent members of the Council (France and the United Kingdom) have joined these important initiatives—so even these permanent members do not maintain veto power should be unrestrained in the face of atrocity crimes.

In fact, both the ACT Code of Conduct and the French/Mexican initiative support Helal’s position, not Trahan’s. Trahan’s argument is that, as a matter of law, the P5 cannot veto a Security Council resolution calling for the investigation or prosecution of atrocity crimes. Both of the documents that Trahan cites, however, make clear states believe that, as a matter of policy, the P5 should not veto a Security Council resolution calling for the investigation or prosecution of atrocity crimes. Here is the Explanatory Note to the ACT Code of Conduct (emphasis mine):

UN Member States are increasingly expressing support for the idea that permanent members of the Security Council should voluntarily agree to refrain from using their veto in situations involving mass atrocity crimes. This initiative is actively being pursued by France, which is seeking the support of other permanent members.

And here is the French delegation to the UN explaining the France/Mexico initiative (emphasis mine):

France also promotes the framing of the use of veto by the five Security Council permanent members in case of mass atrocities.

At the United Nations Security Council, decisions are adopted with a majority of 9 votes out of the 15 votes of the Council’s members. Any decision is rejected if one of the five Security Council permanent members (China, France, Russia, The United Kingdom, and the United States of America) uses its veto power.

To avoid the paralysis of the Security Council, the President of the French Republic, François Hollande, proposed in 2013 that the permanent members voluntarily and collectively pledge not to use the veto in case of recognized mass atrocities.

Each document claims only that the P5 should “voluntarily” refrain from vetoing Security Council resolutions calling for the investigation or prosecution of atrocity crimes. Neither suggests that the P5 are under a legal duty to do so. Indeed, calling for voluntary renunciation of the veto would make no sense if the P5 were already legally obligated under the UN Charter not to veto.

In short: states’ support for the ACT Code of Conduct and the France/Mexico initiative provides significant opinio juris in favour of the idea that the P5 have a legal right to veto any Security Council resolution they oppose — even those that call for the investigation or prosecution of atrocity crimes.