30 Nov UNSC Veto Power Symposium: New Perspective for Tackling a Core Challenge to the UN System on the 75th Anniversary of the United Nations
[Jennifer Trahan is Clinical Professor and Director of the Concentration in International Law and Human Rights at the NYU Center for Global Affairs and author of Existing Legal Limits to Security Council Veto Power in the Face of Atrocity Crimes (CUP 2020), winner of the “2020 ABILA Book of the Year Award” by the American Branch of the International Law Association.]
It is no secret that the UN’s highest body, the UN Security Council, is sometimes completely paralyzed by one or more vetoes cast by a permanent member. Frustration at such paralysis is perhaps at its apex when there are ongoing atrocity crimes occurring (genocide, crimes against humanity, and/or war crimes), and other members of the Council have a proposed resolution to address the crimes, supported by at least nine affirmative votes (enough that it would otherwise pass, absent the veto). Often it is enough for one or more Security Council permanent member to threaten to use the veto, and resolutions that have the support of a majority of Council members are not even attempted. Thus, the Security Council ends up doing nothing, while the world watches helplessly as the atrocities unfold.
Alternatives to the Security Council do not always exist. In most situations, the General Assembly cannot simply take up the measures blocked within the Security Council because certain powers contained in the UN Charter are exclusively the province of the Security Council. On the 75th anniversary of the UN Charter, this book suggests that a solution for this dysfunction may actually exist.
The Book’s Central Thesis
The central thesis of the book is that casting a veto while genocide, crimes against humanity, and/or war crimes are occurring, or there is serious risk of these crimes occurring, is at odds with various aspects of the system of international law. For too long, it has simply been assumed that a veto may be cast even when atrocities are being committed, and even when the measures contained in the resolution being voted on could help to prevent or stop these atrocities. The book suggests that the international community needs to take a fresh look at the relationship between the veto power (contained in Article 27(3) of the UN Charter) and other obligations of international law.
Background & The Problem
The book begins by situating the problem, providing background on the negotiations of the UN Charter related to the veto; the problem of vetoes being cast and veto threats being made in the face of genocide, crimes against humanity, and/or war crimes; as well as proposals to reform the Security Council (Chapter 1). In terms of such vetoes and veto threats, situations discussed include South Africa (during Apartheid), Rwanda, Darfur, Israel, Sri Lanka, Syria, and Myanmar. The chapter concludes that because the Charter is “veto proof”—that is, UN Charter amendments require the agreement of all permeant members (as well as two-thirds of UN Member States)—a formal change to the veto power in the UN Charter is unlikely.
R2P and “Humanitarian Intervention”
Chapter 2 argues that there are various “hard law” legal obligations underlying the “responsibility to protect” (“R2P”), which can be an important component in maintaining international “peace and security,” and thus rests squarely within the Security Council’s mandate. Because of these hard law legal obligations, R2P should be taken much more seriously than it is at present. The chapter also examines the extent to which the doctrine of “humanitarian intervention” continues to exist subsequent to the development of R2P (e.g., the UK position). This chapter ultimately concludes that R2P is all too often blocked by the veto (as in the case of Syria). If states are uncomfortable with the doctrine of “humanitarian intervention” (and there are many), the chapter suggests that there would be less temptation for other states to try to use it if “collective security” were not repeatedly blocked by Security Council paralysis caused by vetoes in the face of atrocity crimes.
The Approach Thus Far: Voluntary Veto Restraint
Chapter 3 details the approach taken for the last twenty years to address vetoes being cast in the face of atrocity crimes: “voluntary veto restraint.” While formulations differ, the basic concept these initiatives promote is that the permanent members should voluntarily refrain from casting a veto in the face of genocide, war crimes, and/or crimes against humanity. The chapter provides a detailed analysis of such initiatives, comparing and contrasting their merits. Yet, it ultimately concludes that when three permanent members refuse to join such initiatives (which is the current situation), there is no veto restraint and the international community requires a new approach. (The UK and France are the only permanent members that endorse one or more of the initiatives.)
Core Legal Analysis
The key chapter in presenting a new approach to the current state of affairs is Chapter 4. The chapter, as mentioned, situates the veto (within the Charter) in terms of its relationship with other existing obligations of international law: (1) jus cogens, (2) the UN Charter, and (3) certain treaty obligations.
Jus Cogens. First, it examines the relationship between the veto power and the protection accorded to “peremptory norms” of international law. The prohibitions of genocide, crimes against humanity, and war crimes are recognized as such peremptory norms, protected at the level of jus cogens.
Subchapter 4.1 concludes that a veto cast in instances where peremptory norms are being violated (a) is at minimum inconsistent with the respect due to these highest level norms; (b) more aggressively formulated, may in fact facilitate the commission of the crimes, thereby violating jus cogens; and (3) also violates what the International Law Commission identifies in its “Articles on the Responsibility of States for Internationally Wrongful Acts” as the duty of all states to “cooperate to bring to an end through lawful means any serious breach” “of an obligation arising under a peremptory norm of general international law” (Art. 41.1.)
The UN Charter. Second, the chapter examines the relationship between the veto power and the remainder of the UN Charter, in particular, the UN’s “Purposes and Principles,” articulated in UN Charter Articles 1 and 2. These include: respecting principles of justice and international law; promoting and encouraging respect for human rights; cooperation in solving international problems of a humanitarian character; and the obligation of good faith.
Subchapter 4.2 concludes that a veto cast in instances where there is ongoing genocide, crimes against humanity, and/or war crimes is at odds with these obligations. The Security Council as a whole is bound to the UN Charter’s “Purposes and Principles” by UN Charter Article 24(2). Individual states are also bound by the Charter’s “Purposes and Principles,” (see, e.g., UN Charter, Art. 2) and the permanent members are, after all, “states.” They are also bound in that their status as permanent members was created by the UN Charter, so they cannot have been granted power to go beyond the limits of the Charter or the power granted to the Security Council as a whole; if they do, their actions would be ultra vires.
Treaty obligations. Third, the chapter examines the relationship between the veto power and certain foundational treaties. In particular, the chapter focuses on the obligation to “prevent” genocide found in the Convention on the Prevention and Punishment of the Crime of Genocide (“Genocide Convention”) and the obligation to “ensure respect for” the Geneva Conventions found, for instance, in the 1949 Geneva Conventions.
Subchapter 4.3 concludes that a veto cast in instances where there is ongoing genocide or war crimes (at least those war crimes covered in the 1949 Geneva Conventions), or the “serious risk” of these crimes occurring, is at odds with these legal obligations. The subchapter contains a detailed analysis of the ICJ’s decision in the Bosnia v Serbia Case, which holds that the obligation to “prevent” genocide is a due diligence obligation for a state to “employ all means reasonably available” to prevent genocide, based on their “capacity to influence,” triggered when there is a “serious risk” of genocide, and that this obligation applies to crimes being committed beyond a state’s own territory—to prevent genocide occurring, or at serious risk of occurring, in another state (paras. 430–31; Preliminary Objections Judgment, para. 31). The 1949 Geneva Conventions contain a similar “due diligence” obligation in their Common Article 1, and the Geneva Conventions, pursuant to the ICJ’s Nicaragua Case and Wall Case, also create obligations that apply to international humanitarian law violations occurring beyond a state’s own boundaries (Nicaragua Case, para. 220; Wall Case, para. 158).
The book makes the case that the practice of casting a veto in the face of ongoing genocide, war crimes, and/or crimes against humanity, or the “serious risk” of these crimes occurring, is at odds with these legal obligations. The remainder of the chapter (subchapter 4.4.) is devoted to questions regarding reviewability of the Security Council by the ICJ and issues related to requesting an ICJ Advisory Opinion.
Actions States Can Take
I ultimately suggest that states could take three actions to challenge the interpretation that the veto can be threatened and used by permanent members in the face of atrocity crimes:
- invoke legal arguments wherever appropriate of the type above when there is the use or threat of use of a veto in the face of atrocity crimes—something a number of states have already been doing (and the book contains a selection of such statements by states at the UN);
- have the General Assembly expressly acknowledge in a resolution that there are existing legal limits to the Security Council veto power in connection with resolutions addressing genocide, crimes against humanity, and/or war crimes; and
- encourage the General Assembly to request the ICJ to issue an Advisory Opinion on a question such as: does existing international law contain limitations on the use of the veto power by permeant members of the UN Security Council in situations where there is ongoing genocide, crimes against humanity, and/or war crimes, or the serious risk of these crimes?
The Rising Death Tolls
Chapter 5 ends with two dispiriting chronologies regarding crimes in Syria and Darfur. The first traces vetoes related to the situation in Syria (14 are discussed in the book—there are now 16), and the crimes that were occurring on the date of each veto and the reported death tolls on the date of each veto. The vetoes can be loosely grouped into those that: (i) blocked condemnation of crimes; (ii) blocked referral to the International Criminal Court; (iii) blocked various measures related to chemical weapons; and (iv) blocked humanitarian relief (see Chapter 5.1 for details).
The second chronology traces veto threats made related to the situation in Darfur and the crimes that were occurring on the date of each veto threat and the reported death tolls on the date of each veto threat. Those veto threats watered-down the sanctions measures that had been proposed, and weakened the peacekeeping mandate and delayed the deployment of peacekeepers (see Chapter 5.2 for details). All in all, the chronologies (as well as other instances of veto use and veto threats) suggest an undeniable linkage between veto use and fatalities on the ground. Quite clearly, some of the vetoes cast are facilitating crimes and costing lives on the ground.
The Ultimate Question
The question that the book challenges the reader and the international community to grapple with is: Is this really how collective security under international law, including under the UN Charter, was designed to function?