More Evidence of States Agreeing that There are Some Limits under International Law to the Veto Power of the Permanent Members of the UN Security Council

[Jennifer Trahan is a Clinical Professor at NYU’s Center for Global Affairs and Director of their Concentration in International Law and Human Rights.]

On February 21, 2024, the United Arab Emirates (UAE) stated the following in hearings before the International Court of Justice (ICJ) regarding the General Assembly’s request for an advisory opinion on the Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem:

I wish to invite the Court to consider the following: the obligations to co-operate and to ensure respect for international law carry implications for States in the exercise of their vote on the Security Council. Voting against or preventing the adoption of a Security Council resolution that seeks to put an end to serious breaches of international law cannot be compatible with such obligations.

(Verbatim record, p. 47, para. 53.)

The UAE’s statement comes on the heels of a veto by the US before the UN Security Council of a resolution that would have imposed a ceasefire in Gaza, and the recent grant by the ICJ of provisional measures in the case initiated by South Africa against Israel on the basis “that at least some of the rights asserted by South Africa under the Genocide Convention are plausible.” (Application of the Convention on the Prevention and Punishment of the Crime of Genocide in Gaza (S. Africa v. Israel), Order on the Request for the Indication of Provisional Measures, January 26, 2024, p. 19, para. 58.)

This post considers the broader implications of the UAE’s statement regarding ongoing considerations about existing limits under international law to the veto power in the face of atrocity crimes, as well as how the UAE’s statement could be presented as a question for adjudication by the ICJ, and why it should be.

For far too long have we seen a clear linkage between veto use in the UN Security Council in situations of ongoing, or the serious risk of genocide, crimes against humanity, or war crimes. To date, states have responded by proposing that the permanent members voluntarily curb veto use in such instances (the “ACT Code of Conduct,” and “French/Mexican initiative”). While France and the United Kingdom have welcomed these initiatives, the practice has not been stopped by the other three permanent members. There is, however, another initiative that is drawing the attention of members of the international community. It questions whether veto use in such situations is consistent with several existing rules of international law. (See Jennifer Trahan, Existing Legal Limits to Security Council Veto Power in the Face of Atrocity Crimes (CUP 2002); Concept Note).

Vetoes in the face of atrocity crimes are, sadly, all too frequent. Examples include when Russia, with China sometimes joining, used its veto to “protect” the Assad regime’s crimes in the Syrian civil war. These included vetoes that blocked Security Council resolutions that would have created mechanisms to investigate the use of chemical weapons in that conflict (thereby shielding chemical weapons use). (For details, see Trahan, ch. 5.1 (chronology of vetoes and crimes believed to be occurring on the date of each veto)).

One sees similarly problematic use of the threat of the veto. For instance, China’s veto threats led to watered down measures (weakening sanctions, and delaying the deployment and weakening the mandate of the peacekeepers), while genocide, crimes against humanity, and/or war crimes were thought to be occurring in Darfur in the early 2000s. (For details, see Trahan, ch. 5.2 (chronology of veto threats and crimes believed to be occurring on the date of each veto threat; see, e.g., ICC warrant against former Sudanese President Bashir for genocide)).

Recently, there has been tremendous consternation at the use of the veto by the United States. On December 8, 2023, the US blocked a resolution that would have demanded an immediate humanitarian cease-fire in Gaza. Then, as mentioned, the US veto was repeated on February 20, 2024, in a resolution that was supported by 13 of 15 members of the Council, and again would have mandated an immediate ceasefire in Gaza.

The February 2024 veto may be even a clearer case, because, in the interim, the ICJ has granted provisional measures in the case brought by South Africa against Israel. Specifically, it granted the measures because it found “that at least some of the rights asserted by South Africa under the Genocide Convention are plausible.” (S. Africa v. Israel, Order on the Request for the Indication of Provisional Measures, p. 19, para. 58.)

The Independent International Commission of Inquiry on the Occupied Palestinian Territory, including East Jerusalem, and Israel has also issued a press release opining that “[t]here is already clear evidence that war crimes may have been committed . . . by all sides since 7 October 2023” (see here). The ICC Prosecutor has described the October 7 attacks by Hamas as “some of the most serious international crimes that shock the conscience of humanity” and called on Israel to adhere to the laws of war (implying that it was not doing so). And, US President Biden has described Israeli airstrikes as indiscriminate bombing.  

The UAE is therefore right to raise the question of whether it is compatible with international legal obligations for a Security Council member to vote against the adoption of a Security Council resolution—that has the support of at least nine Security Council members—that seeks to stop a situation in which atrocity crimes (genocide, crimes against humanity, and/or war crimes) are claimed to be taking place.

In my book, Existing Legal Limits to Security Council Veto Power in the Face of Atrocity Crimes, I examine such legal obligations. The book’s premise is that the veto sits within the context of a system of international law and not separate and apart from (or above) it. Specifically, I argue that legalityissues arise as to veto use in the face of genocide, war crimes, and/or crimes against humanity. Such vetoes are inconsistent with respect for: (1) jus cogens (the highest body of law, and hence a source of law above the UN Charter); (2) the UN Charter, including its Purposes and Principles, which include respect for international law; and (3) treaty obligations, such as those contained in the Genocide Convention and Geneva Conventions. (Trahan, ch. 4; Opinio Juris’ book symposium.)

For example, in the same way that a Security Council resolution should not aid the commission of genocide—as discussed by Judge ad hoc Eli Lauterpacht in the Application of the Genocide Convention Case before the International Court of Justice (separate opinion, Further Requests for the Indication of Provisional Measures, Order of 13 September, 1993, paras 102-04)—I argue that a veto should not aid the commission of genocide. Yet, if at least nine members of the Security Council are willing to support a resolution that would prevent or stop a situation where atrocity crimes may be occurring, to cast a veto aids the status quo, i.e., the commission of any such crimes. I question how a privilege granted in the UN Charter (Article 27.3), if used in that way, could be consistent with the international legal obligations enumerated in the above paragraph. Put another way, States, in concluding the UN Charter cannot have granted power to violate jus cogens, the Charter’s own Purposes and Principles (UN Charter, Arts 1-2), or obligations such as those contained in the Genocide Convention and Geneva Conventions. My argument occupies nearly 120 pages (Trahan, ch. 4) so I am not stating the full version here. The argument is largely the same as to war crimes and crimes against humanity, although for crimes against humanity I do not make a treaty-based argument. In later writing, I extend some of the arguments to a permanent member casting a veto that aids its own aggression (Russia’s February 25, 2022 veto).

My book additionally suggests that a legal question related to veto use could be teed up before the ICJ. Three methods of doing so are suggested below. While the author by no means discourages the question being addressed as part of the ICJ’s current case, it is not one of the three. This is because it is unclear whether the ICJ will find the topic within the scope of its considerations (see question asked by the General Assembly); in any event, the parties and other intervening states would need to brief the topic.

First, the UN General Assembly could seek an advisory opinion from the ICJ on a question such as:

Does existing international law contain limitations on the use of the veto power by permanent members of the UN Security Council in situations where there is ongoing genocide, crimes against humanity and/or war crimes? 

(One might add aggression to the list of crimes.) Such an approach has the advantage of not focusing on any particular veto, and thus not being pursued in a context that could be politicized. While the answer would be technically non-binding, it would be simultaneously strongly authoritative, and could help shape Security Council practice. (UN Member States that do not like asking an open-ended question to the ICJ could alternatively consider issuing a General Assembly resolution on the topic.)

Second, the UN General Assembly could seek an advisory opinion from the ICJ on the legality of a particular veto. For instance, the US veto last week, or some (or one) of the series of vetoes cast by Russia (often supported by China), related to the situation in Syria (Trahan, ch. 5.1).

Thirdly, a party to the Genocide Convention could pursue a contentious case against a permanent member that is a party to the Genocide Convention on an interpretive question, such as asking whether a particular veto is fully in line with the obligation contained in the Convention, particularly the obligation in Article 1 to prevent genocide (an obligation triggered before genocide is fully occurring). However, because the US (as well as China), have reservations against such suits, this route would not be open regarding these countries, at least, without first reopening the issue of the compatibility of such reservations with the object and purpose of the Convention—a challenge that arguably should be brought. (SeeArmed Activities on the Territory of the Congo, DRC v. Rwanda, Judgment of 3 February 2006, Joint Separate Opinion of Judges Higgins, Kooijmans, Elaraby, Odawa, and Simma, paras. 25, 29 (suggesting the Court reconsider the acceptability of such reservations)).

The time could not be riper for challenging how the veto is used, and whether it is acceptable to use the privilege of the veto in a way that furthers the commission, or suspected commission, of genocide, crimes against humanity, or war crimes. The UAE should be commended for raising this topic and joining the growing group of States that are realizing the importance of recognizing that existing international law necessarily limits the use of the veto in situations where the Security Council is otherwise ready to act to prevent or stop actions that may amount to genocide, war crimes, and/or crimes against humanity.