UNSC Veto Power Symposium: Reply to Professors Jalloh and Tladi

[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.]

This is my second and final post in response to the scholarly and thoughtful contributions received related to my book, Existing Legal Limits to Security Council Veto Power in the Face of Atrocity Crimes (CUP 2020).  I am deeply appreciative to all the reviewers for their comments. 

Professor Charles Jalloh provides an extremely insightful post.  Let me initially thank him for his many accolades.  

Professor Jalloh primarily addresses my first legal argument, that the Security Council’s powers, including its veto power, have limits created by jus cogens.  Professor Jalloh agrees with many of the arguments in the book, and appears to endorse the proposition that there are legal limits to the power of the Security Council, particularly when it comes to peremptory norms of international law recognized as jus cogens.

Professor Jalloh’s response (and Professor Tladi’s) also provide an additional retort to Dr. McDougall’s questioning whether crimes against humanity and war crimes are protected at the level of jus cogens.  As to war crimes, Professor Jalloh traces, as I do in my book (p. 154 & n. 57), the International Court of Justice’s ruling in the Nuclear Weapons Advisory Opinion that “the basic principles of international humanitarian law” are protected at the jus cogens level (para. 79).  Because there appears no precise clarity which war crimes might be recognized as “basic principles of international humanitarian law” (Trahan, p. 157, citing Dire Tladi), the book conservatively suggest that at minimum it would likely be “grave breaches” contained in the 1949 Geneva Conventions and violations of “Common Article 3” (Trahan, pp. 149, 157–58).  Professor Jalloh endorses my “wisely . .  . cautious approach,” as these Conventions are universally accepted.  (I do not argue that other war crimes might not rise to the jus cogens level; I just do not find clarity on what they are.)

As to crimes against humanity, a subject the International Law Commission (“ILC”) has been deeply involved in due to their drafting of the new crimes against humanity draft treaty, Professor Jalloh gives welcome additional background.  He explains that the ILC’s 2017 proposed draft articles on prevention and crimes against humanity (since adopted) and forwarded to the General Assembly in 2019 reinforce the ILC’s earlier conclusion that crimes against humanity are “clearly accepted and recognized” as jus cogens, as supported by “regional human rights courts, international criminal courts and tribunals, national courts, and the academic literature.”  My book also invokes the ILC’s Articles on the Responsibility of States for Internationally Wrongful Acts, which, in Article 26, recognize crimes against humanity as protected at the level of jus cogens.  Professor Jalloh concludes that my arguments “generally appear to align with the ILC’s thinking on the subject.” Significantly, Professor Jalloh also agrees that “it would be illogical for international law to, on the one hand, condemn certain conduct such as genocide or war crimes as violative of the most fundamental values of the international community only to, at the same time, give unfettered discretion to the States entrusted with upholding those sacred values to engage in procedural tactics blocking the adoption of robust measures aimed at stopping the commission of such crimes.”

Professor Jalloh additionally opines that “it appears more difficult than the author might have assumed to establish a causal connection between the (non)exercise of the veto to the prevention of certain atrocities in a given conflict.”   I agree with his point that adoption of a Security Council resolution does not guarantee compliance on the ground, but here Professor Clark persuasively explains that the obligation to “prevent” genocide, for example, is one of “conduct,” not “result” in that it mandates “due diligence” not success (see Professor Clark’s post), and Professor Jalloh also opines on this.  I also note that sometimes the linkage between the veto and fatalities on the ground appears quite clear.  For example, the book’s final chapter details the vetoes in Syria and the crimes occurring on the date of each veto (Chapter 5.1).  Among other vetoes, it focuses on the veto of six resolutions related to chemical weapons use (Chapter 5.1.5).  In particular, the book traces a decline in chemical weapons attacks in Syria after chemical weapons inspections initially commenced; then, after three successive vetoes of the Joint Investigative Mechanism that was attributing responsibility to the side using chemical weapons, there is a renewal in such attacks (see Trahan, p. 291). Thus, while it sometimes may be difficult to trace the linkage between the veto and atrocity crimes (or that the non-veto would have mitigated or prevented the crimes), there are times when the linkage is clear.

Professor Dire Tladi’s post both endorses certain of my core legal arguments (indeed, sometimes going further than I would), and voices various critiques.  His title well-encapsulates his main disagreement, which I believe is more political than legal —that I am “Trimming the Edges of an Illegitimate Institution in Order to Legitimise it.” 

First, let me thank Professor Tladi for his thoughtful and probing post, and for his kind supportive comments.  I too remember mulling over my arguments with him in the Vienna Café when I was just starting to write the book. 

I am particularly delighted that Professor Tladi agrees with some of my core points:

• that “the UNSC is bound by international law and, in particular, peremptory norms of general international law”;
• that “it is problematic for the veto to be used in a manner that prevents action to address atrocities”;
• that “the UNSC is bound to respect jus cogens”; and
• that the “use of the veto to block legitimate action in the face of atrocities and other violations of peremptory norms of international law . . . is reprehensible.”

These propositions are central to my argument that we need to examine veto use measured against other legal obligations that are binding on the Security Council and its members.

Professor Tladi critiqued that I am propping up an “illegitimate institution.”  Under the UN Charter, the Security Council is a necessary component of the UN’s collective security infrastructure.  In acknowledging that many states are dissatisfied with the Security Council’s composition and the veto power of its permanent members (Chapter 1.4.1) as well as the various voluntary veto restraint initiatives (Chapter 3) my aim is to highlight that the international community is not in agreement with how especially the permanent members of the Security Council are interpreting and carrying out their responsibilities.  However, I also note that formal changes to the veto as well as the composition of the Council involve Charter amendments that require the agreement of all permanent members (Trahan, pp. 47–48), something that appears extremely unlikely.  Thus, my arguments do go toward attempting to make the Security Council function more effectively in a key area when the lives of many victims of atrocity crimes are potentially at stake.  I take this position out of pragmatism.  While it is difficult to argue with Professor Tladi’s view that the Security Council protects certain “geopolitical power dynamics,” and is “steeped in the tradition of those who have power,” it is the institution with which we have to work.  

In some places, Professor Tladi would go beyond the arguments in my book.  For example, he argues that “it is deeply problematic for the veto to protect and preserve national interests.”  He also questions why I do not encompass “the right of self-determination” or the “unlawful use of force” in my arguments, but only atrocity crimes.  I focused my book on existing legal obligations related to genocide, crimes against humanity, and war crimes because I found the case for these is very compelling.  I note that this is also the focus of the ACT Code of Conduct and the French/Mexican initiative.

As to R2P, Professor Tladi notes that he has contested the proposition that the “responsibility to protect doctrine is legal.”  I do not argue to the contrary.  My analysis in Chapter 2.2.2 demonstrates that there exist hard law obligations that underlie the doctrine; thus, I argue it should not be treated as entirely soft law.  I never go so far as to argue the entirety of R2P is hard law.

Nor do my arguments take the view that legal obligations “establish a positive obligation on States” “to vote in a particular way in resolutions of the United Nations.”  I argue that one needs to measure voting and veto use in terms of whether it accords with jus cogens, the UN Charter, and foundational treaties.  It is a case-by-case assessment whether the veto is (a) cast during the ongoing or threatened occurrence of genocide, crimes against humanity, and/or war crimes, and (b) it is at odds with these aforementioned legal obligations.  For example, while it might be difficult to determine exactly what is required by the “due diligence” obligation required by Article 1 of the Genocide Convention in terms of “preventing” genocide (Bosnia v. Serbia Case, para. 430), or the “good faith” requirement of UN Charter Article 2(2), I argue that certain vetoes appears to be the antithesis of meeting these requirements given the particular contexts in which they were cast.

Professor Tladi also questions whether the obligation to adhere to the UN’s “Purposes and Principles” extends to individual members of the Security Council as opposed to the Council itself.  I address this in the book (pp. 192–93) and in replying to Dr. McDougall’s post.  Professor Clark also addresses this in his post, concurring with my analysis.    

Nor do I argue that “the exercise of the veto in relation to circumstances where atrocity crimes are being committed would be a violation of jus cogens,” as Professor Tladi states (emphasis added).  My arguments regarding jus cogens are that the veto:  (a) at times is inconsistent with having these crimes protected at the level of jus cogens; (b) sometimes appears to facilitate the commission of the crimes; and (c) can violate the duty of 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” (Chapter 4.1.6.1–3).  While Professor Tladi argues that only one International Court of Justice (“ICJ”) judge appears to somewhat support my positions (Judge Lauterpacht), in fact argument (a) is supported by substantial jurisprudence from the European Court of Human Rights (using an analogy from the “harmonious interpretation doctrine,” pp. 175–77 (citing cases)), and arguments (b) and (c) are supported by the work of the ILC in its Articles on the Responsibility of States for Internationally Wrongful Acts, Arts. 41.1–2).

Professor Tladi invokes dicta from the ICJ’s Germany v. Italy case to suggest that “the veto rule is ‘procedural in character,’” and not substantive—suggesting they thus address “separate matters” and substantive jus cogens obligations cannot affect the application of  a “procedural” vote.  Two points warrant making.  First, the Security Council votes on both “procedural matters” (requiring nine affirmative votes) and “substantive matters” (requiring nine affirmative votes and no veto) (UN Charter, Art. 27(2) –(3)); to argue that “substantive votes” are “procedural” contradicts the plain language of the UN Charter.  Second, given that Professor Tladi agrees with my core legal arguments (see bullet points above), it is simply counterintuitive to argue that the veto can be used without regard to its impact on jus cogens violations.  If individual permanent members of the Council are bound by international law and jus cogens, it is simply illogical that they have no responsibilities under these two bodies of law when it comes to voting, especially in light of the often clear linkage between that vote and continuing jus cogens violations.

Professor Tladi also raises the point that sometimes a negative vote indicates disagreement with language in a resolution and not necessarily the measure being adopted and that “there remain policy choices” as to how best to achieve “compliance with jus cogens norms.”  When considered in light of the vetoes I write about in the book, there was no policy choice to protect jus cogens norms another way.  Taking the series of Syria vetoes by Russia (and often also China) as examples, the vetoes did not mean those countries were:  trying to condemn the crimes in another fora; ensuring prosecutions through a mechanism other than the International Criminal Court (“ICC”); ensuring chemical weapons inspections attributing responsibility through another means; or otherwise facilitating humanitarian assistance.   

As to “humanitarian intervention,” I hardly defend it as “an option,” as Professor Tladi suggests.  Chapter 2 assesses where that doctrine stands subsequent to the development of R2P, noting that “humanitarian intervention” has received quite inconsistent support, with only the UK really articulating it as a legal doctrine (Chapter 2.3.3).  That clearly is not the majority of the international community.  I do suggest that if veto use in the face of atrocity crimes becomes more consistent with existing international law, then states should not even be “tempted” to engage in “humanitarian intervention.”  Note also that most of the vetoes discussed in the book are of much lesser measures than full-scale military intervention.  As I explain in responding to Dr. McDougall, the vetoes related to Syria blocked condemnation of crimes, referral to the ICC, chemical weapons inspections, and humanitarian assistance (Chapter 5.1.2–5).  When even these measures are blocked, it is difficult to claim that the blocking Security Council member(s) are working toward the Council fulfilling its Charter mandate to maintain international peace and security while respecting human rights and international law.

I do not believe that I give “short shrift” to the General Assembly sometimes being able to act when the Security Council is blocked, as Professor Tladi claims.  I acknowledge, for instance, the General Assembly’s creating the investigative mechanism for Syria known as the IIIM after veto of the referral of the situation to the ICC (Trahan, pp. 28, 280).  Similarly, the Human Rights Council created an investigative mechanism for Myanmar (the IIMM), given that any proposal for a Security Council created tribunal or investigative mechanism for Myanmar would surely face a veto.  Yet, I also explain that the creation of an investigative mechanism is no substitute for referral to a tribunal with prosecutorial power (pp. 280, 285).  Thus, while there are times another body can take up some measures when the Security Council is blocked, they may be weaker than what the Security Council could have done.  In other situations, another body cannot take up the measures at all, because under the Charter, certain powers are only vestedin the Security Council.  In such situations, a veto or veto threat means the measures simply fail, with sometimes dire consequences for victims on the ground.

Overall, Professor Tladi and I probably have more areas of agreement than disagreement.  I close by again thanking both Professors Jalloh and Tladi for posing probing and challenging questions.  I am indebted to them for so deeply grappling with the arguments in my book.