UNSC Veto Power Symposium: Mass Atrocities and the Security Council–The Limits of the Law

[Carrie McDougall (@IntLawCarrie) is a Senior Lecturer at the University of Melbourne and former Legal Specialist at the Australian Department of Foreign Affairs and Trade and Legal Adviser at Australia’s Mission to the United Nations.]

In her new book, Existing Legal Limits to Security Council Veto Power in the Face of Atrocity Crimes, Jennifer Trahan provides an excellent overview of the veto power enjoyed by the Permanent Five Members of the UN Security Council (P5), as well as a detailed critique of how the veto has been used to block a wide range of Council actions aimed at responding to armed violence around the globe – at catastrophic human cost. In doing so, she makes a compelling case for why the veto should not be used in the face of unfolding mass atrocities, and the fact that such use (or threat of use) amounts to an abuse of the extraordinary rights bestowed on the P5 under the UN Charter, as well as a manifest failure of the Council to meet its responsibility in relation to the maintenance of international peace and security, and its Responsibility to Protect (R2P). 

Trahan’s principal argument, of course, goes further: she asserts that, as a matter of international law, the veto must not be used to block resolutions aimed at preventing or halting genocide, crimes against humanity, or war crimes.  As summarised in Trahan’s opening post in this forum, she argues that this obligation rests on three overlapping sources: (i) the asserted jus cogens status of the prohibitions of genocide, crimes against humanity and war crimes; (ii) the requirement under Article 24(2) of the UN Charter that ‘…the Security Council shall act in accordance with the Purposes and Principles of the United Nations’; and (iii) relevant treaty obligations of P5 States, principally, the duty to ‘prevent’ genocide under Article I of the Genocide Convention, the obligation to ‘ensure respect’ under Common Article 1 of the Geneva Conventions and Article 1 of Additional Protocol I (API), and the various obligations under Article 146 of the Fourth Geneva Convention.

I confess that, in large part, I do not subscribe to these arguments.  An exhaustive analysis is beyond the scope of a short blog post, but can be briefly sketched out.

It might first be questioned whether a very large majority of States have recognised and accepted that crimes against humanity and war crimes are norms from which no derogation is permitted, not least because of the lack of reaction to the widespread occurrence of these crimes, in addition to the comments made by States on the Draft Conclusions on Peremptory Norms of General International Law (Draft Conclusions) adopted by the International Law Commission (ILC) on first reading.  Nonetheless, assuming for the sake of argument that at least certain crimes against humanity and core rules of international humanitarian law are properly characterised as jus cogens alongside the prohibition of genocide, there is little agreement on the consequences of such characterisation – particularly in relation to positive duties.

Building on the ILC’s efforts to develop international law in Article 41 of the Articles on the Responsibility of States for Internationally Wrongful Acts, ILC Draft Conclusion 19 expresses the view that ‘States shall cooperate to bring to an end through lawful means any serious breach by a State of an obligation arising under a peremptory norm of general international law’.  The commentary to this provision clearly hints at what this means for Members of the Security Council when it says that ‘where an international organisation has the discretion to act, the obligation to cooperate imposes a duty on the members of that international organisation to act with a view to the organisation exercising that discretion in a manner to bring to an end the breach of a peremptory norm of general international law.’ 

And yet, among States, there is little agreement as to whether such a duty to cooperate is presently an obligation under customary international law (notwithstanding relevant findings of the ICJ) – and there is nothing approaching consensus in relation to the content of any such duty. Indeed, it is worth highlighting in this context that a significant number of States have been critical of the ILC’s lack of engagement with States ahead of the adoption of its Draft Conclusions, as well as the lack of State practice cited in support of them, with many urging the ILC to be more cautious in its future work.  This is not a shortcoming that has been remedied by Trahan.  As such, while her jus cogens argument is not without precedent, it is also not without controversy.

Trahan’s argument that veto restraint is required by the stipulation that the Security Council act in accordance with the Purposes and Principles of the United Nations has initial appeal. However, in addition to the fact that Article 24(2) is not addressed to individual Members of the Council, her argument requires us to ignore the fact that virtually all violations of international law can be characterised as falling foul of the Purposes and Principles of the UN in one way or another. As a result, any action aimed at preventing or halting such acts can be characterised as being in accordance with those same Purposes and Principles, meaning that the logical extension of Trahan’s argument is effectively that the veto can never lawfully be employed. Such a reading of the Charter is unsustainable – not least in light of the objections to the veto made in San Francisco in 1945 by States that were clearly cognisant of the very real possibility of the veto being used to prevent Council action when it was needed most. The better interpretation, reflected in the leading commentaries on the Charter, is that Article 24(2) is a limitation on the Council’s powers, not a requirement that individual Members vote in a particular way.

The various treaty obligations to which Trahan points require differing treatment.  Article 146 of the Fourth Geneva Convention is generally understood to encompass a duty to search for persons on States’ own territory accused of having committed, or ordered the commission of, grave breaches, and to prosecute or extradite such persons. The Article’s reference to the ‘suppression’ of other violations of the Convention is understood to refer to the need to institute appropriate rules of engagement, administrative and disciplinary measures, and possibly criminal sanctions, in respect of one’s own armed forces.  Arguably it also covers the enactment of domestic criminal legislation based on the territorial, passive nationality, or universal, bases of criminal jurisdiction. But there is almost no textual basis, or relevant State practice, on which it can be argued that the scope of the Article extends to a requirement for States Parties to refrain from vetoing proposed Security Council action. 

Admittedly, Trahan’s interpretation of Common Article 1 (and Article 1 of API) finds support in the ICRC’s commentary and the ICJ’s Advisory Opinion in the Wall Case.  However, Trahan has not acknowledged that a significant number of States have expressed disagreement with this interpretation (see, for example, here, here and here), such that the existence of any global duty owed by third parties to take positive steps to ensure respect for the Conventions and API remains contested.

While some States and commentators have suggested that the ICJ’s findings in the Bosnia v Serbia Genocide Case regarding the existence of a global duty of due diligence represents a stretched interpretation of Article I of the Genocide Convention, the existence of such a duty is far less controversial than those discussed above. This said, the scope of the duty remains unsettled. The fact that Article VIII of the Convention merely authorises States Parties to call on competent organs of the UN to take action for the prevention and the suppression of genocide (clearly recognising that the organs retain discretion to determine whether and what action is appropriate) arguably mitigates against an interpretation that Article I requires States Parties to refrain from exercising their veto. But even if a contrary interpretation was accepted, this duty would of course not be applicable in all situations given the high threshold built into the legal definition of genocide. For example, contrary to Trahan, I do not believe that it would be applicable to the situation in Syria.

Trahan sees little hope in initiatives such as the Accountability, Coherence and Transparency Group’s Code of Conduct because they are premised on the notion of voluntary veto restraint: a commitment that she assesses the US, Russia and China are unlikely to make.  However, in my view, the P5 are far less likely to accept an argument that they are legally circumscribed from using their veto in situations involving mass atrocities – which, let’s face it, covers a very large portion of the Council’s agenda. Indeed, while Trahan cites some State practice that she says evidences a view that the misuse of the veto amounts to a violation of international law, in fact, read carefully, there is only one example cited (from Mexico) equating veto use to a violation of the law: the other quoted statements point to either the violation of international law by the perpetrator of mass atrocities or a veto wielder’s failure to meet political, as distinct from legal, responsibilities. Unfortunately, I believe it unlikely that Trahan’s suggested ICJ Advisory Opinion is unlikely to change minds, given the P5’s demonstrated willingness to ignore the ICJ when its decisions run counter to their national interests.

This raises the question of the merits of pursuing novel legal arguments in an attempt to spur Council action – particularly at a time when the international rules-based order is under threat. Will international law be strengthened by the pursuit of new interpretations of the rules – or does such a strategy risk more States drawing a conclusion that their national interests are better served by a retreat from the Charter-based system?

It should also be acknowledged that blaming a veto wielder for Council inaction is often politically convenient.  To take Syria as an example: Russia and China can be blamed as the bad guys, responsible for the international community’s failure to act.  And yet it’s not clear that the balance of the international community would in all cases have agreed to take action – or have agreed on what action to take. 

In my view, there is little doubt that the paltry resolutions adopted by the Security Council in response to Syria’s mass atrocities have emboldened Assad and other parties to the conflict, and undermined the rules of international humanitarian and human rights law that have been so brazenly flouted. But this does not mean that the proper response was obvious or easy.

A referral to the ICC was vetoed – but even in supporting it, many ICC States Parties had quiet reservations about the wisdom of such a proposal: would a referral merely have represented the Council passing the buck to the ICC, which would no doubt have faced harsh criticism as a result of a lack of action in the face of an inevitable lack of cooperation from Syria and a lack of ongoing support from the Council? Resolution 2165 and successor resolutions enabling cross-border humanitarian access have been widely supported by States – but the negotiation of more robust humanitarian access resolutions has been complicated not only by vetoes patently aimed at protecting the Assad regime, but also because States beyond Russia and China have concerns about more ambitious measures in terms of both the implications for State sovereignty, and the possibility that such assistance could strengthen the hand of different non-State armed actors.

As Trahan acknowledges, accountability and humanitarian measures are unlikely to halt mass atrocities by themselves. In a situation such as Syria, it is difficult to see how that could be achieved absent a use of force. Military intervention in Syria has of course been only fleetingly considered: I’d argue that it has been dismissed not only because of the threat of Russian and Chinese vetoes but also because of the complexity of such a proposal. Syria has a sophisticated anti-aircraft defence system, meaning that anything like the enforcement of a no-fly zone would have entailed a high human cost to both those intervening and the people they would be trying to protect. Add to that the fact that there has been no individual or group that was an obvious successor to Assad (risking a political vacuum resulting in more bloodshed and increased State fragility), as well as the risk of an intervention in Syria setting off the powder keg that is the Middle East. And these are just the headline issues.

For all of these reasons, I believe that Council inaction is a problem better addressed by international politics rather than international law.

Building on R2P, the ACT Code of Conduct’s focus on building political will to take action – and the political cost of inaction – is a smart strategy. In addition to supporting this initiative, we need to do more to respond to the UN Secretary-General’s call to pivot to prevention in order to address the root causes of mass atrocities. Recognising that even with all the political will in the world we are unlikely to prevent all mass atrocities, we also need to start having more sophisticated conversations about the price we are willing to pay for action aimed at R2P ends.

For me, the real lesson learned from Libya is that, on those rare occasions when the Council is galvanized into taking meaningful action to help end atrocities, it is currently prepared to give those States willing to take action only enough rope to hang themselves. This results from the fact that there is no consensus among the international community as to the answer to difficult questions such as: how many deaths will be tolerated as collateral damage resulting from action that saves the lives of countless more? What do we do when a Head of State or Government responsible for mass atrocities refuses to relinquish power even when staring down military defeat? What is our end game when a military intervention results in State collapse?

In essence, we need more dialogue to try to find more common ground and to identify practical solutions. This was precisely my thinking in championing an initiative in 2017 on behalf of Australia, in partnership with Ghana, to have R2P included as an item on the GA’s annual agenda – an initiative that has seen the R2P agenda item become a fixture. We need to use opportunities such as this annual debate to exchange views on these difficult questions and to build greater trust between those who want action, those who are prepared to take it, those who view R2P as a trojan horse for interference in internal affairs, and those who fear being a target of action.  

Doing so is the best hope we have of achieving Trahan’s vision of an international community that takes decisive action when innocent lives are threatened by mass atrocities, for all of the reasons she so skilfully outlines.