Legal Limits to the Veto Power in the Face of Atrocity Crimes

This is a guest post by Professor Jennifer Trahan, Clinical Professor, NYU SPS Center for Global Affairs, in advance of the "Atrocity Crimes and the Veto" panel discussion at NYU's the Center for Global Affairs on April 17th, 2019. ICTJ's deputy director, Anna Myriam Roccatello, will also participate in the panel. The views expressed here do not necessarily reflect the official policies or positions of ICTJ.

The permanent members of the UN Security Council have an extraordinary power granted to them under the UN Charter, the veto power, allowing any one of them to block a resolution before the Security Council.  In recent years, some permanent members have used this power to block resolutions while ongoing atrocity crimes (genocide, crimes against humanity, and/or war crimes) are being committed.  Such vetoes have blocked condemnation of crimes, investigation and prosecution of crimes, as well as other measures designed to curtail or alleviate the commission of these crimes.  There is no indication in the drafting history of the UN Charter that the veto power was ever designed to be used in this way.

This post describes a current Initiative, titled “Legal Limits to the Veto in the Face of Atrocity Crimes,” which takes a critical look at whether blocking Security Council resolutions when such crimes are ongoing is fully consistent with all bodies of international law.  It argues that it is not, and that the UN General Assembly should seek an advisory opinion from the International Court of Justice (“ICJ”), on a question such as:  is unrestrained veto use while genocide, crimes against humanity, and/or war crimes are ongoing consistent with international law?

What kinds of vetoes and veto threats have been occurring?

The permanent members of the Security Council (the United States, United Kingdom, France, China, and Russia) have periodically utilized their veto power, threats to invoke the veto, or the “silent” veto, to block resolutions despite ongoing genocide, crimes against humanity, and/or war crimes being perpetrated.  (The “silent veto” occurs when, due to a permanent member’s political alignment, Security Council resolutions are not even proposed, due to the permanent member’s veto power.)

Historically, this issue arose during the Apartheid era in South Africa (with US, UK, and French vetoes) as well as Rwanda during the 1994 genocide (with the US and France threatening to veto any resolution using the word “genocide” or deploying forces to try to halt the genocide).  More recently, it is the existence of the veto power (or the silent veto), particularly, the veto power of China, that explains the Security Council’s lack of condemnation of mass atrocity crimes and general unresponsiveness while such crimes have been committed in Darfur (Sudan), Sri Lanka, and Myanmar.  (As to Myanmar, there was also one express veto, blocking a resolution that would have in 2007 condemned crimes against the Rohingya).  Recently, there has also been a series of 12 vetoes related to the situation in Syria (cast by Russia, sometimes joined by China) blocking condemnation of crimes, blocking chemical weapons inspections that would attribute responsibility to the side using them, as well as other measure designed to curtail or alleviate the commission of the crimes.  The US also uses the veto with respect to Israel, sometime in the face of such crimes.

Are there initiatives seeking voluntarily to restrain veto use while genocide, crimes against humanity, and/or war crimes are occurring?

Over the last twenty years, a variety of initiatives have developed that seek “voluntary veto restraint”—that is, that the permanent members of the Security Council should voluntarily restrain their veto use in the face of genocide, crimes against humanity, and war crimes.  The first of these (a “responsibility not to veto”) developed as part of the doctrine of the “responsibility to protect” (R2P), in 2001.  The most prominent of the current voluntary veto restraint initiatives are the ACT Group of States’ Code of Conduct (supported by 119 States) and the “French/Mexican Initiative” (supported by 101 States).

These initiatives are extremely important in galvanizing momentum that the veto needs to be restrained when atrocity crimes are occurring, increasing the political cost of using the veto during the commission of such crimes, and stressing the importance of all states acting in the face of such crimes (as the Code of Conduct does).  Yet, only two permanent members (France and the UK) have joined such initiatives.  Additionally, both voluntary veto restraint initiates are considered “soft law”—a Code of Conduct and a “political doctrine”—so neither purports to create binding legal obligations.

Are there arguments that there are legality problems with unrestrained veto use while atrocity crimes are being committed?

Arguments can be made to question the legality of unrestrained veto use while genocide, crimes against humanity, and/or war crimes are occurring.  They are briefly summarized below. 

First, the veto power, created in UN Charter Article 27(3), is subordinate to jus cogens which, as the highest level of international law, sits above the UN Charter.  The prohibition of genocide, crimes against humanity, and war crimes are all recognized as jus cogens.  There is, at minimum, an inconsistency between these crimes supposedly receiving the highest level of protection under international law, and having unrestrained veto use with respect to them.  The veto, in such circumstances, is arguably enabling the continued perpetration of such crimes.

Second, the veto sits within the context of the UN Charter, which imposes, in Article 24(2), obligations on the Security Council to “act in accordance with” the UN’s “purposes and principles.”  The UN’s “purposes” include, in Article 1, acting “in conformity with the principles of justice and international law,” and “promoting and encouraging respect for human rights.”  The UN’s “principles,” in Article 2, including acting under the UN Charter in “good faith.”   A veto while genocide, crimes against humanity, and/or war crimes are occurring accords with none of these obligations, thereby violating the UN’s “purposes and principles.”

Third, there are legal obligations under certain treaties that are relevant to states that are parties to them.  They include the obligation to “prevent” genocide in Article 1 of the Genocide Convention, and the obligation to “ensure” respect for the 1949 Geneva Conventions in Common Article 1.  Individual permanent member states are thereby bound to use due diligence, to the best of their abilities, based on their positions of influence, to try to prevent genocide, triggered (per the ICJ’s Bosnia v. Serbia decision) when there is a serious risk of genocide occurring.  They have similar obligations to “ensure” respect for the 1949 Geneva Conventions (and Protocols I and III for states parties to them). The 1949 Geneva Conventions prohibit war crimes known as “grave breaches” and violations of Common Article 3.   A veto while such crimes are occurring violates these treaty obligations.[i] 

Each of these arguments is largely or wholly independent, so any one argument would suffice to make the point.

Could the UN General Assembly request an Advisory Opinion from the ICJ?

Under the UN Charter, the General Assembly can seek an advisory opinion from the ICJ on “any legal question.”  Thus, States could request the ICJ to opine on a question about the legality of veto use while genocide, crimes against humanity, and/or war crimes are occurring, where there is a resolution designed to curtail or alleviate the commission of the crimes.

States could alternatively invoke these arguments at the UN.  They could also draft some of the legal arguments directly into a General Assembly resolution.

Why does the Initiative only cover vetoes, when veto threats are equally as problematic?

The current Initiative is being somewhat conservative in only covering the actual use of the veto, and not the threat of the veto.  In fact, the threat of the veto (and the silent veto) can be equally as problematic while genocide, crimes against humanity and/or war crimes are occurring.  Many of the same legal arguments could be made with respect to the threat of the veto.

Is there support from civil society for raising these questions?

Yes, there is an Initiative (still in its preliminary phases) that supports raising these questions about the legality of unrestrained veto use while genocide, crimes against humanity and/or war crimes are occurring.

The Initiative is currently supported by the following individuals (by order of joining):

• Hans Corell, former Under-Secretary General for Legal Affairs
• Richard Goldstone, former Prosecutor of the International Criminal Tribunal for the former Yugoslavia & the International Criminal Tribunal for Rwanda,
• Navanethem (“Navi”) Pillay, former High Commissioner for Human Rights
• Andras Vamos-Goldman, co-founder & former Executive Director, Justice Rapid Response
• David M. Crane, former Chief Prosecutor, Special Court for Sierra Leone
• Judge Christine Van den Wyngaert, formerly International Court of Justice (ad hoc), International Criminal Tribunal for the former Yugoslavia, International Criminal Court; presently Kosovo Specialist Chambers (signing in a personal capacity)
• Zeid Ra’ad Al Hussein, former High Commissioner for Human Rights; former President of the Assembly of States Parties to the Rome Statute of the International Criminal Court; former Ambassador of Jordan to the United States

The Initiative is currently supported by the following NGOs (by order of joining):

• The Global Centre for the Responsibility to Protect
• The International Center for Transitional Justice
• Parliamentarians for Global Action
• The World Federalist Movement - Institute for Global Policy
• Open Society Justice Initiative
• Global Justice Center
• Syrian Justice and Accountability Center
• Moroccan National Coalition for the International Criminal Court
• Lawyers for Justice in Libya
• Women’s Initiatives for Gender Justice

Ultimately, the goal of the Initiative, however, is for States to take up these issues by requesting an ICJ advisory opinion or raising the legal arguments in other ways.

Conclusion

The way that the veto power is being utilized—for example, blocking condemnation of indiscriminate aerial bombardment in Syria, blocking condemnation of mass detention and torture, blocking chemical weapons inspections that would attribute responsibility to the side using them—is out of line with the commitment that States have, including permanent members of the Security Council, to uphold the “purposes and principles” of the UN.  It is inconsistent with recognizing that the prohibition of genocide, crimes against humanity, and war crime are accorded the highest level of protection in the hierarchy of international law.  And, it is inconsistent with the treaty obligations of the individual permanent member states under foundational treaties such as the Genocide Convention and 1949 Geneva Conventions.  It is high time to question this state of affairs that, by unrestrained use of the veto despite ongoing atrocity crimes, is given the exact wrong message to perpetrators on the ground, providing a virtual “green light” to the continued commission of the crimes.  This cannot be how the UN Charter was designed to function.

Further Resources

Download a summary of the Initiative here.

Download Professor Jennifer Trahan’s speech “Making Effective Use of Existing Legal Obligations in the Face of Atrocity Crimes” here.