20TH SESSION OF THE ASSEMBLY OF STATES PARTIES
8 December 2021
Name of the Event: When Vetoes Prevent Accountability: a critical examination of blocking ICC referrals (co-hosted by Canada, The Kingdom of the Netherlands, The Permanent Mission of Costa Rica to the United Nations, The Permanent Mission of Sierra Leone to the United Nations and the Parliamentarians for Global Action)
Report by: Pauline Pfaff, Junior Research Associate PILPG-NL
Highlights:
Professor Trahan elaborated on the argument that the veto power of the permanent members of the United Nations Security Council is embedded in the existing system of law and is thus limited in the face of atrocity crimes by ius cogens norms, the principles and obligations of the United Nations Charter, as well as other treaty obligations of the individual states, including those arising from the Genocide Convention and Geneva Conventions.
Panelists called upon the United Nations General Assembly to request an advisory opinion from the International Court of Justice based on the proposed legal arguments regarding the potential unlawfulness of vetoing referrals to the International Criminal Court.
The panelists underlined the need for upholding the rule of law and ensuring accountability for atrocity crimes to break cycles of violence and prevent collateral challenges, such as corruption.
Speakers:
Melissa Verpile, Director of the Democratic Renewal and Human Rights Campaign, Parliamentarians for Global Action
Ambassador (ret.) Hans Corell, former Under-Secretary-General for Legal Affairs and the Legal Counsel of the United Nations
Justice Richard Goldstone, Prosecution at the International Criminal Tribunal for the former Yugoslavia and International Criminal Tribunal for Rwanda and Chair of the Independent Expert Review
Professor Jennifer Trahan, NYU Center for Global Affairs, author of “Existing Legal Limits to Security Council Veto Power in the Face of Atrocity Crimes” and PILPG Senior Peace Fellow
Summary of the Event:
Moderator of the event Melissa Verpile, Director of the Democratic Renewal and Human Rights Campaign by Parliamentarians for Global Action, introduced the panel discussion on the use of veto powers in the UNSC and their impact when they block referrals of situations to the International Criminal Court (ICC).
First, Ambassador Hans Corell addressed the UNSC’s operations generally, expressing disappointment with the current deficiency in statesmanship within the UNSC in relation to contemporary issues such as climate change and desertification, which threatens international peace and security. Further, Corell referred to the ongoing discussions on reforming the UNSC and highlighted that instead of a possible enlargement of the UNSC, reform should focus on how to better regulate the behavior of the members with veto power. He emphasized that the rule of law, both at the domestic and international level, is key to address such challenges and in particular the commission of atrocity crimes. Corell further underlined that the threshold to push for accountability today should be lower since - unlike in the 1990s - the UNSC does not have to establish new tribunals for a situation, but rather may refer them to the permanent ICC. Concluding, he commended Prof. Trahan for taking a legal approach to constraining veto powers to increase the prevention of core international crimes.
Justice Richard Goldstone agreed with Ambassador Corell and added that, as has also been recognized by the former UN Secretary General, the rule of law underpins the entire discussion. He cautioned, with reference to the Srebrenica genocide, that the threat of justice is not always an effective deterrent, but also underlined that there is strong evidence that states with effective justice systems experience lower crime rates than those without. He further highlighted that the concept of universal jurisdiction may not be considered as a full substitute to the ICC, since the powers of states acting on the basis of universal jurisdiction are more limited and situations may not be considered as a whole.
Next, Professor Jennifer Trahan elaborated on the core arguments found in her book “Existing Legal Limits to Security Council Veto Power in the Face of Atrocity Crimes.” The book’s central axiom is that the veto power of UNSC permanent members is embedded in the existing system of law and thus should be constraint by ius cogens norms, the principles and obligations of the United Nations Charter, as well as other treaty obligations of the individual states, including those arising from the Genocide Convention and Geneva Conventions. Thus, the use of veto or the threat thereof should not be in contravention to any of these obligations. Prof. Trahan elaborated on this argument with the example of genocide: ius cogens and the Genocide Convention oblige all states to prevent or end such crimes. Therefore a veto against a referral to the ICC can hardly be in line with these obligations and should, in fact, be considered a breach of law.
Panelists then turned to the question of realizing this argument in practice. Ambassador Correl and Justice Goldstone expressed that they found Prof. Trahan’s argument to be compelling and progressive. Both called upon the United Nations General Assembly to request an advisory opinion from the International Court of Justice (ICJ) regarding the unlawful use or threat of vetoes in situations of ongoing atrocity crimes, following Prof. Trahan’s line of argumentation. Ambassador Correl further elaborated that it strengthens the aforementioned political call on the UNSC permanent members to restrain the use of their veto power voluntarily and noted that it should always be kept in mind that the overriding purpose of international criminal law and the ICC is not only to punish perpetrators, but also to deter the commission of crimes. The deterrence function of international criminal law could be strengthened when the UNSC credibly conveys its commitment to accountability and willingness to refer situations to the ICC. Justice Goldstone in addition highlighted that the current use and threat of veto powers prevents important issues from being discussed within the UNSC, effectively rendering its mandate for peace and security insufficiently observed.
Prof. Trahan agreed with Justice Goldstone and elaborated on the meaning of this deficiency, using the example of Myanmar and the situation of the Uyghurs in China - important situations that remain undiscussed. She called upon states to raise such contentious situations in creative ways with the UNSC, at least to create an official record. In addition to the call upon the UNGA to request an advisory opinion from the ICJ, she urged the Assembly to issue a resolution reaffirming the existing rules of law and how they limit the powers of the UNSC.
Finally, moderator Mrs. Verpile asked the panelists to comment on the collateral challenges of the lack of accountability for atrocity crimes based on the UNSC failure to effectively utilize its referral powers. Ambassador Corell raised concerns regarding the potential undermining of the UN Charter’s principles and the credibility of the UNSC itself. Justice Goldstone added that the example of Rwanda shows that when impunity prevails, circles of violence perpetuate themselves, which has the potential to destabilize entire regions. These protracted conflicts in turn lead to high costs in humanitarian relief due to an ever-growing number of victims. In addition, these situations divert attention from other pressing challenges such as climate change or global pandemics. Justice Goldstone added that the example of Rwanda highlights that accountability measures, in this case the establishment of the International Criminal Tribunal for Rwanda, play an effective role in breaking such cycles. Prof. Trahan seconded this and stressed that vetoes violate the permanent member’s duty to protect victims of atrocity crimes.
Following Prof. Trahan’s final statement, the moderator opened the floor to the audience. Dr. David Donat Cattin, Secretary-General of the Parliamentarians for Global Action, joined the discussion and highlighted the example of Afghanistan and the severe impact of corruption on peace consolidation efforts as another collateral cost of impunity for atrocity crimes. All panelists agreed, and Justice Goldstone highlighted ongoing efforts to establish an international anti-corruption court. Prof. Trahan further demonstrated the detrimental role of veto powers with the situations of Syria and Myanmar. The use of vetoes in the UNSC in relation to both cases has signaled impunity to offending governments. She referred to a study which establishes a direct link between vetoes within the UNSC and the use of chemical weapons. On this basis, Prof. Trahan concluded that UNSC vetoes continue to cost lives on the ground.