Canada should support legal limits on UN Security Council vetoes

Giving the veto to the five permanent members of the Security Council (the United States, the United Kingdom, France, Russia and China) was the political price paid some 75 years ago to get the “Big Powers” to support the creation of the United Nations. (File photo: Patrick Gruban/Flickr, CC BY-SA 2.0)

The Security Council is the most powerful of all United Nations organs. The UN Charter assigns it both immense authority and grave responsibilities. Among other things, the council is empowered to maintain or restore international peace and security by whatever measures may be necessary, including military action.

Few threats to international peace are more urgent and compelling than the possibility of mass atrocity. When the council becomes aware that genocide, war crimes or crimes against humanity are in progress or in prospect, it has both the duty and the means to respond effectively. Doing so quickly is important. The violence that accompanies such crimes can rapidly spread across borders. And forced displacement almost always results, producing large numbers of refugees that can destabilize neighbouring states.

Just 15 years ago, with haunting memories of the Rwandan genocide still fresh, UN member states unanimously adopted the Responsibility to Protect (R2P) principles. The principles expressly acknowledge our collective responsibility to prevent and, if necessary, to stop mass atrocity, and to do so, “in a timely and decisive manner” through the Security Council. For a brief but heady period, it seemed that the world had finally given meaning to the words, “Never again.”

Experience since, of course, tells us that it has done no such thing.

The Syrian government of Bashar Assad has murdered and gassed countless numbers of its own population and forcibly displaced millions more since 2011, but there has been no collective response through the Security Council.

When the government of Myanmar in 2017 turned its military forces against its own population, committing against the Rohingya of Rakhine State what a UN fact-finding mission has called a genocide, there was no collective response through the Security Council.

Nor has the council exercised its authority to refer to the International Criminal Court allegations of mass atrocity crimes in these and other cases.

The reason in each instance for the council’s inaction? The veto.

Giving the veto to the five permanent members of the Security Council (the United States, the United Kingdom, France, Russia and China) was the political price paid some 75 years ago to get the “Big Powers” to support the creation of the United Nations.

That price was very high. The veto is an arbitrary power, exercised without accountability. It is too often employed in a cynical and unprincipled way, not to safeguard a legitimate national interest but rather to shield a client or proxy state of the permanent member.

The International Commission on Intervention and State Sovereignty, whose 2001 report led to the adoption of the R2P principles, had also proposed a “code of conduct” for the five permanent members (the P5). The code would govern the use of the veto when action is needed to stop or avert a crisis of grave humanitarian concern. The voluntary code provides that a permanent member, where its vital national interests were not claimed to be involved, would not use its veto in such a case to defeat an otherwise majority resolution.

Although France and the United Kingdom have committed to the code, the three other members of the P5 refuse to do so. The shameful result? Vetoes by China or Russia (and sometimes both) have repeatedly blocked a collective response to mass atrocity. Genocide and other atrocity crimes have been committed while the Security Council has stood by and watched. And that has caused deep and lasting damage to the credibility and moral authority of the UN.

UN member states frustrated by the veto in such cases felt until recently that they had only three less than satisfactory options:

1. Establish independent mechanisms, like the one created by the General Assembly in Syria, to preserve evidence of the crimes until a prosecution becomes possible.
2. Pursue a declaration of state responsibility in the International Court of Justice (ICJ), as The Gambia has done in relation to Myanmar’s genocidal acts.
3. Seek authority for intervention to stop mass atrocity from some other body, like the General Assembly or a regional organization. Such authority may not have the force of law, but the legitimacy it confers might shield the actors from the consequences of illegality (as it did in the case of NATO action in Kosovo).

Professor Jennifer Trahan of New York University’s Center for Global Affairs has now provided a fourth option. She argues in a recent book that P5 vetoes are outside the proper exercise of Security Council power when they do any one of three things: facilitate ongoing violations of peremptory norms in international law; undermine the duty of other Security Council members in responding to serious crimes; are inconsistent with protections that are fundamental to international law. Trahan concludes that vetoes that shield mass atrocities meet these criteria and are therefore illegal. She has suggested, among other things, that the General Assembly could refer her legal analysis to the International Court of Justice for an advisory opinion.

Such an ICJ opinion would not be binding, but it would have enormous moral force. For example, Security Council members concerned with an unfolding atrocity could add the matter to the agenda and discuss it despite the veto of members such as China and Russia. If a subsequent resolution were tabled at the 15-member council for the use of force and garnered at least nine votes, it could theoretically pass and be implemented even with the vetoes. The ICJ opinion would confer a degree of assurance that the legality of the council’s resolution would not be challenged.

Trahan’s analysis is highly attractive. The case she makes is cogent and compelling. She raises serious questions about the legality of P5 vetoes that have the effect of blocking Security Council measures aimed at stopping mass atrocity. Some UN member states have already shown interest in supporting a referral of her analysis to the ICJ.

We strongly urge Canada to support the International Court of Justice referral and to lead the effort in the General Assembly to adopt a resolution to that effect. Such a referral presents an historic opportunity to rein in unbridled power whose capricious exercise has cost so many lives and brought such discredit to the UN.

Establishing legal limits to the veto could open the way, at long last, for the Security Council to fulfill its Charter responsibilities fully, by responding effectively when the needs of humanity require “timely and decisive” action.

This article first appeared on Policy Options and is republished here under a Creative Commons license.