UNSC Veto Power Symposium: Reply to Professors Sterio and Clark, and Dr. McDougall

[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.]

I am extremely appreciative of the thoughtful and scholarly contributions received related to my book, Existing Legal Limits to Security Council Veto Power in the Face of Atrocity Crimes (CUP 2020).  They represent a spectrum of reactions by academics and/or state’s representatives from geographically diverse perspectives. 

Professor Milena Sterio focused on Chapter 3 of the book, which examines voluntary veto restraint initiatives—that is, initiatives that advocate that the permanent members of the Security Council should refrain from exercising their veto power in the face of ongoing “atrocity crimes” (defined in the book as genocide, crimes against humanity, and/or war crimes).  Professor Sterio discusses the various veto restraint initiatives and describes some of the variations in approach, which are detailed extensively in the book (Chapter 3.2.2).  I much appreciate her enthusiastic endorsement of both the chapter and book as a whole, describing it as “thought-provoking” and “a significant contribution to existing literature on the subject of the Security Council and the role that it plays in addressing, and potentially preventing and halting atrocity crimes.”  Her concluding sentence—urging leaders of P5 countries to read the book—is indeed a most welcome suggestion.

I am also exceedingly appreciative of Professor Roger Clark’s thoughtful post. Professor Clark starts by explaining how the UN Charter, much like the U.S. Constitution, is an “evolv[ing]” document that must be read in light, not of our understandings of jus cogens, the UN’s “Purposes and Principles,” and the obligations of treaty and customary law as they were in 1945, but how we read them today.  (See also Trahan, p. 61, n. 49 & p. 147, n. 22 (similar).) 

Professor Clark lends support to all three of my core legal arguments.  First, he seemingly rebuts an argument raised by Dr. McDougall when he takes the view:  “[n]o serious scholars, and few government functionaries, deny the existence of the category of peremptory norms or that the three ‘atrocity crimes’ that are central to Professor Trahan’s argument, genocide, crimes against humanity and war crimes, fit the category.”  As to the UN’s “Purposes and Principles” (which form the basis of my second argument), he likens these to “hortatory vessels waiting to be filled” in 1945, but with far more specific content today.  And he endorses my third argument, explaining similarly that the obligation to “prevent” genocide was a “sleeper” “until the International Court of Justice gave very precise content to the obligations” in the Bosnia v. Serbia Case.

Professor Clark seemingly responds to a question raised by Professor Jalloh who wrote “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 the atrocities in a given context.”  Professor Clark persuasively explains: 

Most importantly, the obligation [to prevent genocide] is one of conduct not of result “in the sense that a State cannot be under an obligation to succeed, whatever the circumstances, in preventing the commission of genocide; the obligation of States parties is rather to employ all means reasonably available to them, so as to prevent genocide as far as possible.”  A Security Council resolution is not guaranteed to do the trick, but that does not mean that supporting an initiative can be avoided.

(quoting the Bosnia v. Serbia Case, para. 430).

Finally, Professor Clark also answers a point raised by both Professors McDougall and Tladi when he explains that UN Charter obligations binding on the “Security Council” also bind its permanent members. 

Professor Clark closes by hoping my arguments may in the future encompass the crimes of aggression, torture, and apartheid.  Torture and apartheid are somewhat already included in that torture can be an underlying crime of genocide, crimes against humanity, and war crimes, and apartheid is a crime against humanity.  As to the crime of aggression, that will have to await future scholarship.  As I explain also in responding to Professor Tladi, I cabin my writing to the three “atrocity crimes.”

Dr. Carrie McDougall’s response necessitates a lengthier reply.  Dr. McDougall acknowledges that the book “makes a compelling case for why the veto should not be used in the face of unfolding mass atrocities,” while not always agreeing with the reasoning in Chapter 4 of the book.  

Some of Dr. McDougall’s statements may be based on misinterpretations of what is in the book and therefore simply warrant correction:  (a) the book is not aimed at “Council actions aimed at responding to armed violence around the globe”; rather, it examines Council actions (or inaction) when there is ongoing genocide, crimes against humanity, and/or war crimes, or the serious risk of these crimes occurring; (b) the book does not argue the P5 are “abus[ing] . . . extraordinary rights” but—aside from one brief invocation of the doctrine of abus de droit (pp. 196–97)—the book argues that the P5 were never given the power to act inconsistently with jus cogens, the UN Charter’s “Purposes and Principles,” and/or certain foundational treaties to which they are parties.

Dr. McDougall agrees that genocide is protected at the level of jus cogens¸ although she questions whether crimes against humanity and war crimes are also protected at that level.  Her views stand at odds with those of Professors Clark, Jalloh, and Tladi.  I stand by my argument that all three crimes are peremptory norms from which no derogations are permitted, a conclusion based on the work of the International Law Commission (“ILC”) and numerous authorities (see Chapter 4.1.2 compiling authorities).  Moreover, one of our other contributors, Professor Tladi, was ILC Special Rapporteur specifically on jus cogens.  Neither he nor Professor Jalloh (also on the ILC) take issue with the conclusion that genocide, crimes against humanity, and at least certain war crimes are protected at this highest level (see ILC, Articles on the Responsibility of States for Internationally Wrongful Acts, Art. 26 (genocide and crimes against humanity); Commentary to Art. 40 (serious violations of international humanitarian law).  See also Professor Clark’s post.  To the extent Dr. McDougall questions that crimes against humanity and any war crimes have reached the jus cogens level because of “the widespread occurrence of these crimes,” she may be misinterpreting how the analysis works; torture and piracy, for example, have long been accepted as peremptory norms not because the crimes never occur but because their condemnation is so universal. 

Progressing to my argument about the relationship of the veto and jus cogens, Dr. McDougall may not be considering all three formulations of the argument: (a) that veto use in the face of atrocity crimes is “inconsistent” with recognizing that the prohibitions of genocide, crimes against humanity, and war crimes are protected at this highest level (Chapter 4.1.6.3); (b) that veto use in such circumstances may “facilitate” the commission of the crimes (Chapter 4.1.6.1); and (c) under the ILC’s Articles on the Responsibility of States for Internationally Wrongful Acts, states have a duty to 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 (Chapter 4.1.6.2; ILC, Articles on State Responsibility, Art. 41.1).

While Dr. McDougall characterizes argument (c) as not being “an obligation under customary international law,” the book discusses the significant weight to which the International Court of Justice (“ICJ”) often accords the ILC’s work and specifically the weight to which it has accorded the Articles of State Responsibility (pp. 172–73).  In fact, the obligation to cooperate in solving problems of a humanitarian character is also one of the UN’s “Purposes” (UN Charter, Art. 1(3)), and the obligation to cooperate for the promotion of human rights (and atrocity crimes are massive violations of human rights) is required under UN Charter Articles 55(c) and 56.  Thus, Dr. McDougall’s argument that there is no such duty appears contrary to the weight of considerable authority.  Moreover, she fails to take on arguments (a) and (b), so does not seriously grapple with the jus cogens argument.

Dr. McDougall’s analysis of my second argument appears to miss certain detailed analysis contained in the book.  In the second argument, I opine on the relationship of the veto with the remainder of obligations contained in the UN Charter, particularly the obligation to act in accordance with the UN’s “Purposes and Principles” (Chapter 4.2).  Dr. McDougall notes that the UN Charter in “Article 24(2) [which requires the Security Council to act in accordance with the UN’s ‘Purposes and Principles’] is not addressed to individual Members of the Security Council.” This ignores that (a) individual UN Member States are also bound to respect the UN Charter including its “Purposes and Principles” (and the P5 are, after all, UN Member States); and (b) if the Security Council as a whole is bound to respect the UN’s “Purposes and Principles,” then individual Council member states must necessarily also be bound, as a subset of the Council cannot have greater power than the Council as a whole (pp. 192–93 and authorities cited; see also Professor Clark’s post agreeing that individual permanent members are bound).  While Dr. McDougall suggests that my arguments lead to the proposition that “the veto can never lawfully be employed,” my book does not deal with all vetoes, but focuses specifically and only on those cast in the face of ongoing, or the serious risk of, genocide, crimes against humanity, and/or war crimes.  Indeed, Professor Dire Tladi’s post actually critiques my arguments as too narrow—he would include a veto of a resolution in the face of a claim of self-determination or unlawful use of force.

As to my third argument—examining the relationship of the veto and certain treaty obligations such as the obligation to “ensure respect” for the 1949 Geneva Conventions contained in Common Article 1 (and Additional Protocol I) and the obligation to “prevent” genocide contained in Article I of the Genocide Convention (Chapter 4.3), Dr. McDougall focuses primarily on the obligations contained in Article 146 of the Fourth Geneva Convention.  While she agrees that my arguments about Common Article 1 “find support in the ICRC’s Commentary and the ICJ’s Advisory Opinion in the Wall case,” she notes that there is some contestation of views as to Common Article 1.  (Indeed, I actually compile some of that authority in my book, see p. 81, n. 161; p. 219, n. 374.)  She may downplay the importance of the ICJ’s holding in the Wall Case; yet, given my argument that the General Assembly should request an Advisory Opinion from the ICJ, the ICJ’s view that Common Article 1 imposes legal obligations on all parties to the Conventions (Wall Case, 2004 ICJ Rep. 136, para. 158), is in fact significant.  The ICJ holds that Common Article 1 requires “that every State party to that Convention, whether or not it is a party to a specific conflict, is under an obligation to ensure that the requirements of the instruments in question are complied with” (id.; see also Nicaragua Case, 1986 ICJ Rep. 14, para. 220).  Viewing the series of vetoed resolutions regarding Syria (described below), in light of massive numbers of suspected war crimes and other international humanitarian law violations occurring, it is difficult to believe that, in casting such vetoes, Russia (and China when joining) were trying “to ensure that the requirements of the” Geneva Conventions were being complied with.  Even examining specifically the obligations in Article 146—to prosecute “grave breaches”—a veto of a referral to the International Criminal Court (“ICC”) appears the exact opposite of trying to ensure that “grave breaches” are prosecuted.  To the extent the conflict in Syria is viewed in part as a non-international armed conflict, Common Article 1 also pertains to Common Article 3, creating an obligation to ensure that Common Article 3 war crimes are not committed (see p. 216, n. 364, compiling authorities; Nicaragua Case, 1986 ICJ Rep. 14, para. 220 (applying Common Article 1 to Common Article 3)).

As to the duty to “prevent,” genocide, Dr. McDougall argues that “the scope of the duty remains unsettled.”  To the contrary, as Professor Clark explains above, the ICJ has given a clear roadmap of what is required by the duty (see the Bosnia v. Serbia Case, paras. 430–31).  While I largely agree with Dr. McDougall’s statement that: “I do not believe [this duty] would be applicable to the situation in Syria,” that is beside the point.  The book expressly notes the allegations of genocide in Syria relate to crimes against the Yazidis (p. 44; Chapter 5.1.3.5).  The relevant arguments related to most crimes in Syria are those pertaining to war crimes and crimes against humanity. 

My book also discusses the situation in Myanmar, where the Genocide Convention obligations have direct relevance (see discussion Chapter 4.3.6.1) especially in light of the double veto by China and Russia of a resolution that would have condemned the crimes being committed in Myanmar (draft resolution S/2007/14).  Chapter 5.2 additionally discusses how veto threats in the face of alleged genocide, as well as crimes against humanity and war crimes, in Darfur weakened the sanctions regime and weakened and delayed peacekeeping.  The vetoes and veto threats in both these situations appear the exact opposite of adhering to the due diligence obligation to “prevent” genocide, recognized by the ICJ in both the Bosnia v. Serbia Case and applied in the Gambia, et al. v. Myanmar (Provisional Measures Order of 23 January 2020), paras. 72, 86.  When Dr. McDougall dismisses the genocide arguments due to the “high threshold built into the legal definition of genocide,” she ignores the ICJ’s ruling (and my book’s discussion) that the obligation to prevent genocide is triggered by the “serious risk” of genocide occurring—one does not need to wait for it to fully manifest before treaty obligations are triggered (Bosnia v. Serbia Case, para. 431; Trahan, p. 212).

In the end, Dr. McDougall writes that “the P5 are far less likely to accept an argument that they are legally circumscribed from using their veto in situations involving mass atrocities [.]”  There are a number of practical applications for the arguments in my book for those working to limit veto use in the face of atrocity crimes.   One can argue that by raising openly the existence of legal limits and then working to have them increasingly broadly accepted puts a new kind of pressure on the permanent members.  It puts them in a position where they either have to turn around and fight the growing acceptance of legal limits to their perceived unfettered authority over the veto—with a chance of a General Assembly resolution on the topic, a General Assembly request for an ICJ Advisory Opinion (measures suggested in the book) or other similar measures—or they can agree to embrace voluntarily veto restraint.  My arguments do not have to “cause” the P5 to agree to this legal interpretation in order to move the yardsticks toward a Security Council that is less likely to be deadlocked when there is sufficient support for a resolution that could help prevent or stop atrocity crimes.  The arguments in the book will succeed in their ultimate, practical purpose even if they cause the voluntary restraint initiatives to succeed.

I strongly disagree with Dr. McDougal’s position that the Security Council should be addressed through “international politics rather than international law.”  Politics are all too frequently the only way in which matters are handled; it is the purpose of the book to measure Security Council conduct against the requirements of international law.  I also reject her suggestion that it is not worth going to the ICJ “given the P5’s demonstrated willingness to ignore the ICJ when its decisions run counter to their national interests.”  In a rules-based system, abandoning the rule of law and surrendering only to considerations of realpolitik will quickly lead to the end of that system being based on rules.  And while just one possible avenue of action, ICJ Advisory Opinions are often accorded significant weight (see Trahan, p. 248).

As to Dr. McDougal’s endorsement of the ACT Code of Conduct, my book does so as well (also endorsing the French/Mexican initiative) (Trahan, p. 140).  My arguments are complementary to both.  Her comments however miss my point that until the three P5 (Russia, China, and the US)—that so far refuse to endorse any form of voluntary veto restraint in the face of atrocity crimes—do so, then there is no veto restraint.

Dr. McDougall appears to wonder whether the series of vetoes related to Syria actually blocked Security Council action, because she says it is not clear that the “international community would . . . have agreed to take action.”  Here she misconstrues my writing. The Security Council had certain concrete steps that at least nine members of the Council were willing to undertake related to Syria and these were vetoed:  various resolutions to (1) condemn crimes; (2) refer the situation to the ICC; (3) take measures against chemical weapons attacks, including renewing the mandate of the “Joint Investigative Mechanism” (“JIM”) that was attributing responsibility to the side using chemical weapons; and (4) provide humanitarian assistance (see details in Chapter 5.1.2–5).  These admittedly would not have ended the war or stopped all crimes by themselves, but these measures could have alleviated some of the harm, and the failure to take even these measures signaled the failure of international “collective security” and provided the equivalent of a “green-light” to would-be perpetrators.  Dr. McDougall acknowledges as much when she concedes that the Security Council’s paltry track recorded related to Syria “emboldened Assad.”  It is worth noting that, by extension, my arguments in the book also carry implications for the elected ten members on the Council. Their support for such resolutions is also necessary and aligns with the commitments all states have made in the World Summit Outcome Document.  (See Chapter 2.2.2 for discussion of the hard law underlying R2P, which should not be regarded as merely “soft law”; see also n. 399, 442, pp. 229, 234, 241, explaining the implications of the book’s legal arguments for states beyond the P5.)

Finally, Dr. McDougall offers “more dialogue,” endorsement of “R2P,” and a focus on “prevention” as viable ways forward.  My arguments hardly negate the importance of any of these measures.  In fact, my arguments actually strengthen the case for dialogue, endorsement of R2P, “prevention,” and voluntary veto restraint. This is because there is now a set of legal arguments outlining how current veto use in the face of atrocity crimes transgresses existing international law. The P5 may want to avoid their actions in such situations being examined under “legal” scrutiny.  They may also wish to avoid an ICJ Advisory Opinion examining the legality of some of their veto practice. This could “nudge” them toward taking their international law obligations more seriously when atrocity crimes are occurring. And, to take the “veto” away from legal scrutiny, they may be more willing to consider other avenues such as prevention and R2P, and—so that R2P is not blocked by vetoes—all P5 endorsing voluntary veto restraint in the face genocide, crimes against humanity, and/or war crimes.