Putting Down their Cards: Limiting the Veto in RtoP Cases

 “How can we as a body allow unarmed civilians; men, women and children to be slaughtered, time and time again? (…) Will the Security Council, the body charged with maintaining peace and security, stands idle when chemical weapons or worse are deployed on the homes of those whose only crime was to be in the wrong place at the wrong time?…In the months ahead, I will reach out to my counterparts in Great Britain, France, Russia and China to begin a conversation on how we can use this paramount responsibility which we share, the veto, in a more responsible manner that can protect those who most need the United Nations to act, while preserving our national sovereignty.”

Those are the words the CEO of the non-governmental organization and ICRtoP Member, Global Solutions.org, wishes United States President Barack Obama had said at the 68th United Nations General Assembly Debate.

While the United States remained mute on this matter, other countries did not. Earlier this month, the Foreign Minister of France, Laurent Fabius reminded us that the United Nations Security Council (UNSC),“constrained by vetoes, was powerless in the face of the Syrian tragedy…For all those who expect the United Nations to shoulder its responsibilities in order to protect populations, this situation is reprehensible.”To overcome such paralysis in situations of mass atrocities, Foreign Minister Fabius offered a solution“Our suggestion is that the five permanent members of the Security Council — China, France, Russia, Britain and the United States — themselves could voluntarily regulate their right to exercise their veto. The Charter would not be amended and the change would be implemented through a mutual commitment from the permanent members.”

As you will see from our blog on this very topic last year, France’s proposal is not a new one . The International Commission on Intervention and State Sovereignty report, which outlined the Responsibility to Protect (RtoP, R2P), also suggested that the permanent members (P5) of the UNSC refrain from using their veto power in RtoP situations. This call was later echoed in the 2004 report of the UN Secretary-General’s High Level Panel on Threats, Challenges and Change, which included a recommendation for the P5 to refrain from the use of veto in cases of genocide and other large scale human rights violations. However, according to former Canadian Foreign Minister Lloyd Axworthy and Allan Rock, former Canadian Ambassador to the UN, the call for veto restraint was abandoned during negotiations on RtoP paragraphs within the 2005 World Summit Outcome Document because “fierce P5 opposition forced negotiators to drop the demand or risk losing approval for R2P altogether.”

The issue of refraining from the use of the veto was raised more recently in 2012, when the “Small Five” countries (S5) – Costa Rica, Jordan, Liechtenstein, Singapore and Switzerland – initiated a resolution on the working methods of the UNSC that included a recommendation calling on the P5 not to wield their veto power in cases of atrocities. However, according to Friedrich Ebert Stiftung‘s (FES) latest report, “Reforming the Working Methods of the UN Security Council: The Next ACT”, the P5 actually “undertook concerted action to prevent member states from casting a positive vote” for the S5’s initiative, which was later dropped.

While the resolution was not adopted and the S5 ultimately disbanded, a new initiative, the Accountability, Coherence and Transparency (ACT), was launched in 2013. Led by 21 governments seeking to improve the working methods of the UNSC, the ACT has followed in the footsteps of the S5 in its efforts to address the much contested proposal of the use of the veto in the UNSC. To achieve its goals, the ACT has developed a series of smaller groupings underneath the larger umbrella of Council working methods reform initiatives, with each group being led by various governments. As such, the work on the veto falls within the scope of the Accountability and Veto cluster.

Increasing and Diverse Support for Limiting the Veto

Ambassador Vitaly Churkin, Permanent Representative of the Russian Federation to the United Nations, casts his veto against a draft resolution on the situation in Syria in 04 February 2012 (UN Photo, Paulo Filgueiras)

Security Council meeting and voting on draft resolution on Syrian matters.
Russia and China vetoes. UN Photo/Paulo Filgueiras

The governments in ACT don’t stand alone on this issue. As the Global Centre for the Responsibility to Protect (GCR2P) highlighted, the trend to call for such restraint at the 2012 and 2013 General Assembly Debates on RtoP continued at this year’s 68th General Assembly debate, when 9 states – Chile, Costa Rica, Croatia, France, Liechtenstein, Mexico, New Zealand, the Netherlands, and Slovenia – called for the limiting of the veto in RtoP situations. The reason is simple, as Liechtenstein clearly stated:-“our inability to respond to the crisis in Syria demonstrates a crucial weakness in the system,” so restraining the veto for actions to end or prevent atrocity crimes “would be crucial to enhance the Council’s effectiveness – and its credibility”.

Chile agrees that using the veto in such cases “prevents the Council from effectively defending the most fundamental values and principles of mankind.” Even France, a P5 member, understands that “if we do not wish to lose our legitimacy, we must learn from the recent blockages to avoid running into such difficulties in the future”.

But the discussions on the UNSC veto are not just happening within the UN. Earlier this year, in April, the European Parliament adopted a resolution which recommends to the Council “to propose…the adoption of a voluntary code of conduct which would limit the use of the right of veto in cases of genocide, war crimes, ethnic cleansing or crimes against humanity”.

It’s a Matter of Self-Interest

The right to veto, as Daniel Wand from the British Institute of International and Comparative Law outlines, “allows the states to safeguard their national interests…It was however only to be used in extreme circumstances where a clear and direct threat to national interest existed.” Wand continues to point out, though, that historically this power has been abused, leaving the UNSC “paralysed and unable to sanction intervention in circumstances where mass atrocities are occurring, such as occurred in Bosnia, Srebrenica and Rwanda.”FES agrees, and highlights the case of Syria to show the inability of the Council to respond, which“ has undoubtedly damaged the reputation of the Council.”

Pointing out that an overall abolition on the veto will “simply not happen,” the Foreign Minister of New Zealand, Mr. Murray McCully, called for the P5 to be more restrictive on whether a situation falls within their governments’ national interests. Challenging the P5 at the 2012 UNGA debate, he called for consideration ofa process by which they collectively and voluntarily agree to confine their use of the veto to those issues that clearly and directly affect their vital national interests, and that they voluntarily agree not to use their veto in situations involving mass atrocities.”

Argentinean President Cristina Fernandez took the opportunity during her country’s August 2013 presidency of the UNSC to state that the veto is an outdated safeguard used during the Cold War to prevent a “nuclear holocaust”. It is now unnecessary as the US and Russia both sit at the same table. Claiming “we can’t deal with the problems in this new world with old instruments,” she suggests an alternative by comparing the situation “with South American regional and subregional organizations where resolutions are taken on the basis of unanimity when there is a conflict.”

Understanding the French proposal: something new, or maintaining the status quo?

Axworthy and Rock, confident of change, assert that in the “longer term, we are going to need limitations on the use of the veto in such cases [Syria]. Perhaps adopting rules on the use of force would soften P5 resistance. And those who use the veto to deny protection…should face significant consequences.”

David Bosco, writer for Foreign Policy, highlights the problematic nature of limiting veto use, reminding that “what constitutes a ‘mass-atrocity situation’ is largely in the eye of the beholder. Almost all…conflicts feature atrocities of one sort or another.” Yet he is positive towards the French proposal, as it suggests a mechanism for determining what constitutes such a situation.

The criteria for implementation, according to Fabius, would be simple:

At the request of at least 50 member states, the United Nations Secretary General would be called upon to determine the nature of the crime. Once he had delivered his opinion, the code of conduct would immediately apply.” Bosco believes “the notion of a combined role for the General Assembly and the Secretary General is innovative.”

The ICRtoP Secretariat, in conversations with UN officials in New York, learned that additional criteria for deterring the P5 from using their veto power may also be considered, including statements by the UN Special Advisers Office on the Prevention of Genocide and RtoP as well as findings by commissions of inquiry established by the UN. A key issue would remain, however, as Bosco points out, because realistically there would still be the possibility that “Russia and China are going to be very hesitant to adopt any code of conduct that restricts the veto power.” While FES is optimistic that pressure will “mount on the US given that the incoming UN Ambassador, Samantha Power, is a prominent advocate of the mass atrocity prevention” Global Solutions.org, which has been campaigning for the “Responsibility Not to Veto” (RN2V) since 2010, disagrees that the US has made any headway, stating that “even senior figures in the Obama administration who are…supporters of the Responsibility to Protect doctrine have made no public mention of RN2V.”

It’s important to note that according to Fabius, the proposal would exclude cases where the vital national interests of a permanent member of the Council were at stake” so as to be “realistically applicable,” which very well might quell concerns of hesitant members of the P5. A key topic during ICRtoP’s discussion with UN officials was whether or not the proposal would lead to real change given that the P5 could still use their veto power if it was in the name of “vital national interests.” The point was raised that in order to counter this problem, “national interests” could be defined to be more in line with the UN Charter, which allows states the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations” while simultaneously ensuring that such a definition does not jeopardize prevention and response under the RtoP framework.

A Final Push for an Effective and Legitimate Security Council

It is clear that for this proposal to become a reality and to ensure that national interests do not hold the Council hostage, as some argue is the case with responding in Syria, civil society needs to come together and push for a more effective, legitimate and accountable UNSC. If the proposals on the veto put out by the ACT initiative and the French are implemented, it could lead to substantial changes and a more effective system to ensure that the international community is able to uphold its responsibility to protect in the face of atrocities. This is something civil society should support, because as FES articulates, “what is at stake here is not just the Council’s reputation. The UN as a whole, indeed the world as a whole, could profit.”

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