Dr. Mohamed Helal’s Defense of Russia’s Syria Vetoes & Power Politics – A Rejoinder to His Criticism of My Post

[Jennifer Trahan is an Associate Clinical Professor at the NYU Center for Global Affairs.]

In his Opinio Juris post on May 4, Dr. Mohamed Helal provides a defense of Russia’s veto use related to the situation in Syria, one that he defends as in line with the negotiations of the UN Charter and a vision of veto power of the permanent members of the Security Council as a virtual carte blanche.

There is some merit to his argument; indeed, it appears to correspond with how at least certain permanent members do indeed read the UN Charter – that they 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.

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. (I am hoping the United States will join the UK and France, and also take this important step.)

Dr. Helal misstates my arguments or overstates his case in significant respects.

First, he claims that, in relationship to the situation in Syria, the Permanent Members “have exercised the veto exactly as anticipated when the UN Charter was negotiated.” In fact, current practice is far removed from the substance of the 1945 negotiations.

Examining each of Russia’s 12 vetoes (sometimes joined by China) related to Syria, we see vetoes of resolutions to:

(1) condemn continued widespread and gross violations of human rights and fundamental freedoms (draft resolution S/2011/612);

(2) condemn bombing and shelling of population centers and condemn the detention of thousands in government-run facilities (draft resolution S/2012/538);

(3) refer the Syrian situation to the International Criminal Court (draft resolution S/2014/348);

(4) express outrage at the alarming number of civilian casualties, including those caused by indiscriminate aerial bombings in Aleppo (draft resolution S/2016/846);

(5) decide on a 7-day ceasefire in Aleppo and demand that humanitarian assistance be allowed in (draft resolution S/2016/1026);

(6) condemn the use of toxic chemicals as weapons and demanded compliance with the Organisation for the Prohibition of Chemical Weapons (OPCW) (draft resolution S/2017/172);

(7) decide to renew the mandate of the Joint Investigative Mechanism (JIM) conducting chemical weapons inspections (draft resolution S/2017/172); and

(8) condemn “any use of any toxic chemical, including chlorine, as a weapon in the Syrian Arab Republic and express . . . outrage that civilians continue to be killed and injured by chemical weapons and toxic chemicals as weapons in the Syrian Arab Republic” (draft resolution S/2018/321).

There was nothing in the travaux préparatoires of the San Francisco Conference about using the veto in this way. The veto power has morphed into contexts that were simply never discussed in 1945.

Second, his extensive reliance on travaux from 1945, raises the question why we should be limited to a 1945 reading of the Charter and international law. That would be an impoverished understanding of international law, given the extremely significant developments that have occurred since then. In 1945, the Genocide Convention was not yet codified; in 1945, there was no convention on crimes against humanity (and there still isn’t today, although it is in progress); in 1945, there were only early war crimes, not the ones recognized today. There is a strong argument that we should not be looking to international law only from 1945 when we read consider how to read the UN Charter.

Third, when he defends Russia’s Syria vetoes as proper because they are seen as in Russia’s “vital interests” that may be how Russia sees this, but it is simultaneously repugnant. It should never be in the “vital interests” of any country to block chemical weapons inspections, to block humanitarian assistance, to block ceasefires, to block condemnation of bombing and shelling of population centers, to block condemnation of the detention of thousands, or to block referrals for prosecution.

Fourth, he admits that his reading of the Charter (defending unlimited veto power) comes at a cost of all the victims of “murderous dictators and warmongers.” Then isn’t their a problem of his reading of the Charter when it is so far out of line with the dictates of humanity? If this is the conclusion reached—that it is fine to block chemical weapons inspections which then facilitate the Assad regime’s use of these universally condemned indiscriminate weapons—then international law is failing both us, and, more importantly, the victims.

Fifth, he misstates my argument by suggesting I argue that jus cogens imposes an obligation to act or prevent jus cogens violations. While I reserve making that argument, what I wrote was that jus cogens is relevant to considering how to construe the veto power—that we should not read the veto power “in a way that is at odds with other bodies of international law.” My argument is that the UN Charter should not be read in a way that is inconsistent with jus cogens; none of the organs of the UN should be able to act in a way that ignores the constraints of jus cogens.

Sixth, I also argue that the veto power also needs to be read in a way that is consistent with the UN Charter’s purposes and principles. This is required by UN Charter article 24.2, which states: “[i]n discharging [its] duties the Security Council shall act in accordance with the Purposes and Principles of the United Nations.” How is it consistent with the Charter’s purposes and principles to use the veto in the way Russia (and sometimes China) have been doing related to Syria? The Security Council cannot be above the Charter—it was created by the Charter, and its powers are enumerated therein. One of the limitations on Security Council power is that its power must be exercised in a way that is consistent with the UN’s purposes and principles, otherwise, its exercise of power would be ultra vires.

Ultimately, I do not disagree that one can read the UN Charter the way that Dr. Mohamed Helal does; indeed, that is perhaps how far too many have been reading the Charter for far too long, uncritically accepting unlimited, unrestrained, veto use, that serves strategic alliances, and is unfettered by the constraints of international law and principles of humanity. This is just not an argument I want to make, or to accept. I do not believe my arguments are de lege ferenda, but that international law is sufficiently advanced that the Charter should be construed in a way that is consistent with jus cogens and the Charter’s own purposes and principles.