Overview by Cleo Meinicke, Research Associate PILPG NL
Jennifer Trahan, researching the legal limits to the use of the veto power of the Permanent Members (P5) of the UN Security Council in the face of genocide, crimes against humanity or war crimes, argued that the main problem is that “we treat veto as above law, for which no explanations are required.” On a positive note, she stated that since two decades there is agreement that vetoes for atrocity crimes are problematic.
Justice Richard J. Goldstone attended the panel discussion and supports the idea of limited veto powers in the face of genocide, crimes against humanity or war crimes.
Co-hosted by Costa-Rica, Liechtenstein, and the Netherlands, this side event was based on research by Jennifer Trahan, Clinical Professor at NYU Center for Global Affairs,on legal limits to the use of the veto power of the Permanent Members (P5) of the United Nations Security Council (UNSC) in the face of genocide, crimes against humanity or war crimes.
Moderated by Anna Myriam Roccatello, deputy Executive Director and Director of Programs of the International Center for Transitional Justice, the panel consisted of representatives of the co-hosts including H.E. Sergio Ugalde, Ambassador of Costa Rica, and H.E. Paul van Ijssel, Permanent Representative of the Netherlands to the ICC and OPCW, as well as Justice Richard Goldstone, Jennifer Trahan, James Goldston, Executive Director of the Open Society Justice Initiative, and David Donat-Cattin, Secretary-General of Parliamentarians for Global Action.
H.E. Ugalde opened the discussion by asking the question why the concept of veto powers is promoted even in cases where it might contradict general international law and in particular ius cogensnorms. Holding international criminals accountable is a well-accepted international practice that is supported by opinio jurisand constitutes a principle of international law. Thus, a veto preventing the UNSC to act in the face of genocide, crimes against humanity or war crimes can be considered a breach of international law. He explained the acceptance of this practice with politics and the current power imbalance on the international level.
H.E. Van den Ijssel provided the perspective of the Netherlands on the issue. The Netherlands is strongly against ignoring events of mass atrocities and Van den Ijssel stressed the responsibility of the international community for the protection of civilians, whose government failed to do so.
Justice Goldstone provided an overview of the past use of veto powers. He referred to the actions by the P5 with regard to the apartheid in South Africa. There the U.S. and the U.K. blocked several requests for intervention. Similarly, in 1994 at the outset of the Rwandan Genocide, France and the U.S. threatened to veto resolutions. Justice Goldstone highlighted the power threats of vetoes can have. The opinions of the P5 on certain topics are well known and resolutions are often not even drafted or referred to the UNSC. The use of veto powers however, according to Justice Goldstone, could be curbed if the requests for resolutions go public and where they concern a strong and clear moral imperative.
Following Justice Goldstone’s insights, Jennifer Trahan introduced her research, which formed the basis of the panel discussion. She argued that the main problem was that “we treat veto as above law, for which no explanations are required.” On a positive note, since two decades there has been agreement that vetoes for atrocity crimes were problematic, and two permanent members have already adopted this idea.
In her research she addressed three main issues. First, the contradiction between on the one hand classifying the prohibition of core crimes as ius cogensfrom which no derogation is allowed, and on the other hand the power of the P5 to veto resolutions concerning atrocities. Second, the ability to allow vetoes on atrocity crimes is in contradiction with Article 24(2) of the UN Charter, which prescribes that the UNSC “shall act in accordance with the Purposes and Principles of the UN.” A veto restricting reaction to atrocities goes against the principle of the maintenance of international peace and security. Third, the veto powers contradict foundational treaties the P5 are parties to, such as the Genocide Convention. Even though the Charter can outweigh treaties, this should not apply to foundational treaties in the panelist’s opinion.
James Goldston reiterated the points raised by the previous panelists and added that a way to restrict the power of the P5 in cases concerning atrocities would be to accept one veto in the presence of at least nine positive votes in the UNSC.
Lastly, David Donat-Cattin, agreeing with the other panelists that the ultimate goal should be to restrict veto powers with regards to atrocities, pointed out that due to the difficulty of this project short-term actions should be considered as well. Those actions include the Arria-Formula meetings, which are informal gatherings of UNSC members where private exchanges of views are possible, but also the “Uniting for Peace” resolution, which provides for the General Assembly to consider matters that are not worked on in the UNSC due to the members’ unanimity. Moreover, the International Impartial and Independent Mechanism (IIIM) to assist in the investigation and prosecution of persons responsible for the most serious crimes under international law committed in the Syrian Arab Republic, adopted by a UNGA resolution, is a useful mechanism to address atrocities committed in Syria at the moment. Then there are also tools such as compelling the UN to become more proactive in the shaming and encouragement of states. All those alternative methods can have a strong cumulative effect on the actions taken against atrocities according to Donat-Cattin.
Questions were raised concerning the management of expectations attached to the idea of restricting the veto power and who would be responsible to determine whether there was a breach of international law by a permanent member of the UNSC. Expectations in international law are widely disappointed and this can be countered according to Donat-Cattin by learning more about what the expectations of the victims are. Most discussions are held between international lawyers, but the inclusion of victims and other civil society actors is important to understand their expectations and tackle the problem of disappointment. Concerning the determination of a breach, the International Court of Justice may be a valuable tool even though this requires a state to bring the case to the Court.