UNSC Veto Power Symposium: Doing Away with the Veto for Atrocity Crimes? Trimming the Edges of an Illegitimate Institution in Order to Legitimise It

[Dire Tladi is a Professor of International Law, at the University of Pretoria, a member of UN International Law Commission and its Special Rapporteur on Peremptory Norms of General International Law (Jus Cogens).]

I am grateful to Jennifer for inviting me to contribute to this symposium on her book Existing Limits to Security Council Veto Power in the Face of Atrocity Crimes. When she first asked me to participate in the symposium in August of this year, my response to her was: “I took a while to respond because I really had to think about it. I really should say ‘no’ because I have so many things going on, but this is so interesting.” I then added that I was probably not going to read the book, that I would read the introductory chapter and the summary that she provided to “pen something”. As it turns out, I read the whole book, in two days, because I really enjoyed it. It was, at once, thought provoking and an easy read, a very difficult to balance to strike.

When Jennifer first mentioned the project to me, several years ago, at the Vienna Café in the basement of the UN building, I expressed hesitant support about the merits of the central idea she was putting forward. Having now read the book, the reasons both for my support and my hesitation, have become clearer, at least to me.

Apart from enjoying reading the book, there is also much that I agree with in the book. In this post, however, I focus only on the deep concerns that I have about the underlying argument of the book. Given the brevity of the post (because of both time and space), the views expressed might, if not read with a sufficient degree of caution, be mistaken as a defence of the veto. So for the records, let me state categorically that I abhor the veto, probably more so than the Jennifer. Indeed my criticism of the general approach of the book is based on precisely that the book may have the effect, intended or not, to legitimise the veto – in much the same that we trim our hedges, not because we hate them but because we want them to look better. But to categorically exclude any misconceptions, let me begin by making the following brief points:

(i) I absolutely agree that the UNSC is bound by international law and, in particular, peremptory norms of general international law. I would here point to my third report on jus cogens (paras 150-159) and my article in the Nordic Journal (pages 256 et seq).

(ii) As a normative proposition, I also agree that it is problematic for the veto to be used in a manner that prevents action to address atrocities. I would go further, however, and suggest that it is deeply problematic for the veto to protect and preserve national interests. Indeed one of my problems with the book (one that I do not address here because of time and space) is that the critique of the veto in the book is limited to so-called “atrocity crimes”, excluding in the process the violation of other jus cogens norms such as the right of self-determination and the prohibition on the use of force.

Having laid out these two points, I now proceed to describe what I understand to be the main argument of the book. The main argument of the book is that there is both a legal and a moral obligation on the permanent members of the UNSC to refrain from the use of the veto (including the threat of the veto) in the face of atrocity crimes. Laced through the argument is the implicit proposition that failure to address the veto question might have the effect of legitimising humanitarian intervention, which the book accepts to be fundamentally flawed. Yet, I sense in the book an implied false (multiple) choice:

(a)        outlawing the veto in relation to atrocity crimes (the main thesis and preferred option);

(b)        unilateral humanitarian intervention; or

(c)        the international community having hands tied behind their back and watching helplessly as atrocity crimes, such as those in Darfur and Syria continue.

I will return to this false multiple choice momentarily but first, let me continue to describe the main thesis of the book. The book postulates that the Responsibility to Protect doctrine, seen correctly as the replacement for humanitarian intervention, must have some legal content. In the context of atrocity crimes, this legal content implies the responsibility of the permanent members not to veto resolutions on atrocity crimes. I have in several other publications (see, e.g. chapter 58 in this book, this article and this article) contested the proposition that the responsibility to protect doctrine is legal concept. It is fortunately not necessary to do this here, because while the book puts forward the proposition, the proposition is itself is based on the three concrete legal arguments:

(i) the exercise of the veto in these circumstances would be inconsistent with jus cogens;

(ii) the exercise of the veto in these circumstances would be contrary to purposes and principles of the United Nations;

(iii) the exercise of the veto in these circumstances would be a breach of specific treaty obligations.

Time and space definitely do not permit a consideration of all three pillars of the book’s argument, so I propose to focus on the first pillar. As for the second and third pillars, I can make two broad points. First, assuming the correctness of the proposition that these treaties (the Genocide Convention and the Geneva Conventions) establish a positive obligation on States (and this is not just permanent members) to vote in a particular way in resolutions of the United Nations, Article 103 of the Charter would probably be sufficient to address this assumption. It is the case that the book dismisses Article 103 by pointing to the jus cogens nature of atrocity crimes, which would take priority over article 103. My comments on the first pillar, developed below, can therefore be applied to the pillar three. Second, and in relation to the purposes and principles arguments, it is not clear that the obligation on the Council not to act contrary to the purposes and principles of the UN, implies, first that there is an obligation to act in particular way and, second, whether such an obligation, if it exists, extends to individual members of the Council as opposed to the Council itself. I recognise that this is a rather flippant response to an argument that is developed in some in some detailed in the book (pages 179-208), but some of the points raised in relation to the first pillar also apply to this. It is to the first pillar that I now turn.

The book addresses the jus cogens argument in some detail (pages 150-179). Yet, while it addresses many aspects, it does not address what is probably the key to the relationship between the exercise of the veto and jus cogens. It describes why atrocity crimes are jus cogens. No arguments there. It describes why the UNSC is bound to respect jus cogens. Again, no argument from me. It makes the argument that UNSC cannot explicitly authorise violations of jus cogens. I am not sure why it is necessary to include “explicitly” here, but again, no argument from me. From this, it is argued that the exercise of the veto in relation to circumstances where atrocity crimes are being committed would be a violation of jus cogens. The first major problem is that, as far as I could tell, the only authority advanced for this proposition – other than scholarly writings – is the separate opinion of Judge ad hoc Lauterpacht in the 1993 Order in Application of Genocide (para 103). Yet even reliance on that reference requires a bit of stretch. First, Judge Lauterpach is there speaking not of individual members and their exercise of a policy choices but is speaking of a specific provision in a UNSC resolution which may contribute to a breach of a jus cogens. But more importantly, what we are not told is that subsequently Judge ad hoc Lauterpacht explains that here, he was merely making a hypothetical proposition based on “chain of hypotheses” and “debatable links” (at para 104). One of these “debatable links” is the factual connection between the commission of genocide and, in that case, an arms embargo preventing Bosnia and Herzegovina from acquiring arms to protect its population. This “debatable link” between the exercise of the veto and the commission of atrocity crimes momentarily is indirectly related to key legal issue not discussed at all in the book, and to which I now turn.

From a legal perspective the main obstacle to the claim made in the book is the process-substance distinction made by the International Court of Justice in Germany v Italy (para 93). The principle enunciated in that paragraph is well-known, but it is worth recalling:

Assuming for this purpose that the rules of the law of armed conflict which prohibit the murder of civilians in occupied territory, the deportation of civilian inhabitants to slave labour and the deportation of prisoners of war to slave labour are rules of jus cogens, there is no conflict between those rules and the rules on State immunity. The two sets of rules address different matters. The rules of State immunity are procedural in character and are confined to determining whether or not the courts of one State may exercise jurisdiction in respect of another State. They do not bear upon the question whether or not the conduct in respect of which the proceedings are brought was lawful or unlawful.

Applied to the question of the right of veto, and the decision to exercise such a right, there is no conflict between the exercise of the veto and the atrocity crimes in question  – they “address separate matters.” The veto rule is “procedural in character and [is] confined to” the process by which decisions are made. That rules does “not bear upon the question whether or not [the atrocity crime in question is] lawful or unlawful.” I myself am not a big fan of this famous dictum, so I am certainly not suggesting that the book ought to simply adopt this line of reasoning. However, the book does not engage with this reasoning at all and that is problematic. Moreover, the dictum stands for a broader proposition, which I find to be correct: it does not follow that jus cogens norms extinguish every rule that makes the application that specific jus cogens norms difficult. The relationship between some rules and jus cogens are close enough that an argument can be made for jus cogens to affect their application. I believe this to be the case for the rule on immunity and jus cogens and it is for this reason that I believe that jus cogens does have an effect on immunities, notwithstanding German v Italy (see, e.g., generally this article and para 121 et seq of my third report on jus cogens). But the relationship between jus cogens and, for example, the rule that jurisdiction to the ICJ requires consent, is too remote. For that reason, I readily accept the conclusion of the Court, on which Germany v Italy was based, that jus cogens cannot affect the rule of consent to jurisdiction in DRC v Rwanda (para 64). I believe the procedural rules concerning voting in international organisation, such as article 27 of the UN Charter, are similarly remote (maybe even more so) in relation to the atrocity crimes at issue.

There is a deeper problem with the analysis (and this brings me to the “debatable link” of Judge ad hoc Lauterpacht). The analysis ignores that decisions about whether to support a resolution is much more complicated than the support or not of atrocities. States can have a variety of reasons for not supporting a particular resolution. To illustrate from practice, several States, most notably Brazil, had expressed serious concern about the two UNSC resolutions making referrals to the ICC (UNSC Resolution 1593 and UNSC Resolution 1970). While these States supported action by the UNSC and the referral of the two situations to the ICC, they opposed certain elements that undermined the ICC.  It is unnecessary to describe these questionable elements referring resolutions, which I have criticised elsewhere.  The book notes, in a footnote, the Brazil abstained from resolution 1593 (footnote 449) but does not mention the reasons, which were not for lack of support of the referral but rather because Brazil did not support some elements that, in its view, undermined the ICC (See statement of Brazil).The point is it would be bizarre, to say the least, to accuse a State of commission of genocide when it objects to a text with an element, unrelated to the question whether action ought to be taken, that it opposes. Why should a state that supports UNSC action in a given situation but opposes a resolution that for some other reason is flawed be said to have facilitated an atrocity crime? Moreover, the argument seems to assume, incorrectly, that in the face of atrocity crimes, even where there is agreement on the need to act, that there remain policy choices. Different states might have different policy views on the best way to address atrocity. As the International Court of Justice noted in the Chagos Advisory, ultimately it is for the appropriate multilateral organs to identify the modalities for compliance with jus cogens norms (para 180) – a recognition that there will often be a continuum of options. The argument of the books seems to suggest that once a State is confronted with a resolution, it has not choice but to accede to the policy choices made by the drafters of the resolutions – often a particular group of states.  

Beyond the legal argument, I have serious difficulties with the geopolitical slant of the argument. Wittingly or not, the main argument has the effect of protecting geopolitical power dynamics. The false choice described above (continued commission of atrocities, unilateral humanitarian intervention or the restricted veto) is steeped in the tradition of those who have power. Why is humanitarian intervention even an option when it is overwhelmingly rejected by States (as acknowledged by the book)? States that routinely engage in humanitarian intervention are powerful States. Interestingly, these are the same States that benefit from the privilege afforded by the veto. The implication of this false choice is that those powerful States known for forcible intervention can eat their cake and have it – have the right to veto interventions that are not politically palatable but retain the right to go at it alone when others use their veto.

The use of the veto to block legitimate action in the face of atrocities and other violations of peremptory norms of international law – note this includes the right of self-determination and unlawful use of force, including when committed by a permanent member – is reprehensible. Humanitarian intervention, however, is not the answer to that problem. But neither is the attempt to restrict the right of the veto by law (unless you are talking about scrapping the veto completely). Throughout the book reference is made to
responsibility of the “the international community”. If what drives the argument of the book is the responsibility of the international community to deal with violations of peremptory norms, then the alternative in cases where the veto is used (or threatened) should not be humanitarian intervention or the gymnastics to restrict the veto by law, but rather the General Assembly. Instead the book gives the possibility of General Assembly, and its Uniting for Peace resolution, as an alternative a short shrift (pages 22-30). The argument for General Assembly action in the face of the veto is much simpler, avoiding doctrinal debates, than is the argument about amorphous jus cogens or the broad purposes and principles. Leaving aside Uniting for Peace, the argument for the General Assembly is based on Article 24 which makes plain that the powers of the UNSC are conferred by the full membership of the UN and are exercised on behalf of these members. The proposition that the GA is entitled to exercise those powers when the UNSC unreasonably fails to do so is less problematic that the arguments made to justify the legally restricting the right of veto.

I applaud Jennifer to taking on this monumental task of trying to seek problems to the unrestricted use of the veto. Her solution, however, seems designed to protect the veto from itself. It does this by trying trim around the edges of what is a deeply problematic institution instead of promoting a more representative and democratic one. The problem is not just the veto in the face of atrocity crimes. The problem is the veto, as such, and more generally the institution of permanent membership (see article).