Aggression and the Veto

[Jennifer Trahan is Convenor of the Global Institute for the Prevention of Aggression, and Clinical Professor at NYU’s Center for Global Affairs.]

Let us be clear why the United Nations is largely paralyzed in the face of one of the clearest cases of aggression since 1939:  it is because of the veto power of a permanent member of the UN Security Council, used without any regard for other aspects of international law.  Friday’s veto has shown the Security Council unable even to condemn unprovoked aggression by the Russian Federation into Ukraine (see GIPA statement), which is a strong indication that the Security Council will also be unable to take any actual measures, such as referral to the International Criminal Court (“ICC”), which has jurisdiction to investigate and prosecute the crime of aggression (Rome Statute, Arts 5(1), 8bis, 15bis, 15ter; see also my blog post on Opinio Juris).

There is, of course, the possibility of using the Uniting for Peace Resolution, which would allow matters blocked before the Security Council to be taken up by the General Assembly (which is also free to debate them without such a resolution).  Indeed, all such measures that the General Assembly can utilize should be explored (see Rebecca Barber’s post).  Yet, the General Assembly does not have the same competence as the Security Council, so there are measures the Security Council may take under the UN Charter that the General Assembly cannot.

I have written a book on existing legal limits to the veto power of the permanent members of the UN Security Council in the face of genocide, crimes against humanity, or war crimes.  Current events suggest, however, the importance of considering the use of the veto in the face of aggression (a violation of the core norm in the UN Charter—Article 2(4)).  Does the realm of international law have anything to say about this?

The thesis of my book is that vetoes in the face of genocide, crimes against humanity, or war crimes need to be measured against the legal obligations within the remainder of the system of international law, and not treated as if they were above all law.  Specifically, these include: (1) obligations to respect jus cogens, (2) obligations to respect the UN Charter, including its “Purposes and Principles” (UN Charter, Arts. 1-2), and (3) other treaty obligations.  

By way of example, a veto in the face of ongoing genocide, if the resolution in question were attempting to prevent or stop the genocide, I argue, faces potential legality problems at these three levels.  First, can the veto be used in a way that allows the continued commission of genocide, which is prohibited at the level of jus cogens?  Doing so, among other things, would violate obligations under the Articles on the Responsibility of States for Internationally Wrongful Acts of the International Law Commission (“ILC”), which, in Article 41, preclude states from “recognize[ing] as lawful,” or giving “aid or assistance in maintaining” a situation where there is a serious breach of a peremptory norm of international law.  That obligation is recognized in the Wall (para. 159) and Chagos Archipelago (paras. 177, 182) Advisory Opinions by the International Court of Justice (“ICJ”).  Secondly, can the veto be used in a way that violates other parts of the UN Charter, such as the UN’s “Purposes and Principles”?  And, thirdly, can the veto be used in a way that violates the obligation to “prevent” genocide that all permanent members of the Security Council hold as parties to the Genocide Convention?  

Two out of the three arguments (1) obligations to respect jus cogens, and (2) obligations to respect the UN Charter, including the “Purposes and Principles” of the United Nations (UN Charter, Arts. 1-2), also apply in the case of aggression.  (The third argument also applies but merges into the second because the treaty being violated by aggression is also the UN Charter.)

Jus cogens.  The prohibition against the “use of force” under the UN Charter is a jus cogens norm.  (See Military and Paramilitaries Activities case, para. 190, citing the ILC’s work and the views of states.)  The Charter prohibits, in Article 2(4), “the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.“  There are only two express exceptions:  (1) force authorized by the Security Council acting under Chapter VII; and (2) Article 51 self-defense.  Accordingly, the invasion we are witnessing is, like genocide, prohibited at this same highest level of law, jus cogens, which is binding on all actors within the system of international law.  It is the author’s contention that the veto is improperly used when it allows the continued violation of a jus cogens norm.  If the Security Council could not pass a resolution to endorse genocide (as Judge Lauterpacht suggests in the Bosnia Arms Embargo case before the ICJ), such that a resolution doing so could be void and Member States free to disregard it (para. 103), then a permanent member of the Security Council should not be vetoing a situation where genocide is occurring, as it has the same effect.  Similarly, a veto should not be used to sanction the continuing jus cogens violation of use of force contrary to the UN Charter.  

Obligations under the UN Charter.  The UN Charter imposes various obligations related to international peace and security.  The Preamble shows that the United Nations was created:  

“Determined to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow on mankind . . . .”  

With that in mind, the preamble endorses that countries “unite our strength to maintain international peace and security.”

The “Purposes of the United Nations” then include—as the very first one—“[t]o maintain international peace and security, and to that end to take effective collective measures for the prevention and removal of threats to the peace and for the suppression of acts of aggression or other breaches of the peace.”

This is followed by Article 2(4), which states: “All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.”

Article 24(1) then grants the Security Council “primary responsibility for the maintenance of international peace and security.”

And, Article 24(2) states that “[i]n discharging these duties the Security Council shall act in accordance with the Purposes and Principles of the United Nations.”  As Judge Weeramantry wrote in his Dissenting Opinion in the Lockerbie case, Provisional Measures order: 

Article 24 itself offers us an immediate signpost to such a circumscribing boundary [on the powers of the Security Council] when it provides in Article 24(2) that the Security Council, in discharging its duties under Article 24(1) “shall act in accordance with the Purposes and Principles of the United Nations”.  The duty is imperative and the limits are categorically stated.  

(Lockerbie (Libya v. UK), Provisional Measures, at 61; Lockerbie (Libya v. U.S.), Provisional Measures, at 171).  The “Purposes and Principles” of the UN, in Article 1(1), include respecting international law and acting to maintain international peace and security and suppress acts of aggression.

And, of course, all of Chapter VII is empowering the Security Council to act to maintain international peace and security.  

It is, therefore, in this context (of the recognition of these obligations) that other “Members of the United Nations agree to accept and carry out the decision of the Security Council in accordance with the present Charter” under Article 25.  

Another way to think of it is:  is the veto power so sacrosanct that it is legally effective despite the permanent member casting the veto violating all of these other obligations under the UN Charter including the “Purposes” of the United Nations itself, when the veto shields the perpetrator from condemnation or other measures, and in so doing enables continued violations of all of these provisions of the Charter?  

The veto power is contained within the Charter (Art. 27(3)).  It is at the same level as all of the other obligations in the Charter (or even a lower level, as it is procedural, and the obligations above are substantive).  So why is the veto power supposed to be “read” in isolation of the remainder of the UN Charter?  Just as it should not be able to be utilized to authorize the continued commission of genocide, war crimes, or crimes against humanity, it should not be permitted to sanction continuing aggression.

Practically, what could the other members of the United Nations do?  They could speak out against such vetoes (see, e.g., statement of Norway: Russia’s veto “undermines the purpose of the Security Council” and violates “the very foundation of the UN Charter”).  Additionally, in exploring measures the General Assembly could take, one possibility relates to the General Assembly being able, under Article 96(1) of the Charter, to request an Advisory Opinion on “any legal question” from the ICJ.  Thus, in the case of Friday’s veto blocking Security Council condemnation of aggression by the Russian Federation, the legality of the veto in question could be put to the International Court of Justice by the General Assembly.