How UN Members Want To Bypass a Security Council Veto

PARIS — The veto held by the five permanent members (P5) of the UN Security Council is one of the most contentious rules of the United Nations. It was included in the UN Charter of 1945 as the explicit price for agreement among the P5—the members that bore the greatest responsibility for maintaining world order—to establish the UN in the first place. However, the veto has repeatedly stymied the Security Council in the face of mass atrocities, despite unanimous endorsement by all UN member states of their individual and collective responsibility to protect (R2P) all people from crimes against humanity.

Since 2011, Russia and China have cast four vetoes to block international action in Syria, where more than 200,000 have been killed since the conflict began. Wednesday in Paris, French Foreign Minister Laurent Fabius repeated [in French] France’s determination to overcome this paralysis by establishing a new international norm to accompany R2P: a “responsibility not to veto” (RN2V) that would apply in situations of mass atrocities.

The French proposal includes a trigger—a request by some subset of UN member states (perhaps fifty) to the secretary-general that (s)he determine whether atrocities are being committed. It also includes an important caveat—and potential Achilles heel: P5 members can still use a veto when they perceive a “vital national interest” at stake. At Wednesday’s conference at Sciences Po Paris, where Fabius spoke, I offered my own thoughts on the many hurdles and preconditions France and like-minded countries must surmount to translate these ambitions into reality. What follows is an abridged version of those remarks.

The desire to limit the use of the veto is both understandable and laudable, given growing frustration at the clear failures of a divided Security Council to prevent or end atrocities. The French have wisely framed their initiative not as an amendment to the UN Charter—something that has occurred only three times in the UN’s history—but as a voluntary code of conduct to be embraced by the P5. In principle, the code would reduce not only the explicit use of the veto—which is only the tip of the iceberg in Security Council diplomacy—but the more frequent abuse of the “silent veto” to forestall condemnation of or responses to atrocities.

Nonetheless, the French proposal contains conceptual ambiguities and raises practical dilemmas—raising doubts about whether it would actually shore up R2P. These quandaries need to be addressed before the norm can move forward.

First, proponents must decide the criteria to determine when the threshold for “mass atrocities” has been crossed—and who gets to make that determination. Inasmuch as any violent conflict is, sadly, likely to include some atrocities, there should presumably be at least some rule of thumb for when the RN2V principle kicks in. Is it a question of body count? Of the stated intent of perpetrators? There should also be provisions for decision-making when the P5 disagree. The initial French proposal would give the secretary-general such authority. This is legally innovative but problematic. The secretary-general is not a judge and it is unclear whether (s)he has (or should be given) the standing to make this determination.

Second, proponents must persuade skeptics that the “vital national interest” caveat is not a crippling loophole that P5 states can casually invoke. In the case of Syria, it could be argued that Russia and China have already defined coercion against the government of Bashar al-Assad as contrary to their national interests. From Moscow’s perspective, the Security Council’s failure to act in Syria is not evidence of its failure but of its working as intended, by allowing permanent members to veto coercion that is contrary to their perceived interests.

Third, a code of conduct to limit the use of the veto should be coupled with elaboration of yet another norm—proposed by Brazil—known as “responsibility while protecting” (RWP). RWP has its origins in the Libya operation. It emerged from criticism that Western powers hijacked UN Security Council Resolution 1973, intended to halt the imminent massacre of civilians, to pursue a broader campaign of regime change. In response, Brazil advocates the principle of RWP, designed to increase accountability by interveners. As Richard Gowan has written, “if Paris really wanted to secure support for veto restraint, it would make a parallel commitment that any armed intervention at regime change would require a separate explicit authorization.”

Despite these misgivings, establishing a norm that permanent members not veto a Security Council resolution in cases of mass atrocities could have at least two salutary effects.

• First, it would presumably place pressure on each of the P5 to narrow or delimit their definition of “vital national interest” exceptions—and to offer more persuasive public justifications when they do use the veto in such circumstances.
• Second, beyond creating a normative expectation, the new code could lay down a useful political marker. In the event that a P5 member used its veto in ways others perceived to violate the norm, countries intent on stopping genocide would be on firmer moral and political (though not necessarily legal) ground in intervening in an alternative multilateral manner—such as through NATO (as in Kosovo in 1999), through an ad hoc coalition, or through a Uniting for Peace resolution.

France has begun intense diplomatic efforts to win support from the other four permanent members. It faces an uphill struggle. Russia is adamantly opposed to any dilution of their veto prerogative, China has expressed skepticism, and the United Kingdom remains coy.

The Obama administration appears ambivalent. Although it has declared the prevention of atrocities itself to be a “core national interest,”it has misgivings about the proposed code. There are concerns that the current proposal is too open to competing interpretations, vague concerning the processes by which the RN2V would be triggered, unmoored from specific types of missions or contingencies, and vulnerable to manipulation by great powers, which might use it as a cloak to intervene for baser motives. (After all, Russia has already thrown around the term “atrocities” with reference to Ukraine, presumably to justify its assistance to separatists there.) Moreover, some worry that debates over RN2V within the UN General Assembly could deteriorate into a more general attack by non-permanent members on the P5 veto prerogative. Lastly, protracted negotiations for a code of conduct could detract from more practical steps to strengthen R2P atrocities prevention, including capacity building within vulnerable countries, as well as strengthening international tools to identify and respond to crisis situations.

Given strains between the West and Russia, in particular, the P5 are unlikely to reach agreement any time soon on voluntary limits to the veto.

Still, there may be useful steps France, the UK, and the United States (the Western “P3”) can take together:

• First, as my colleague Matthew Waxman has suggested, the three countries should jointly declare their own position that the veto should never be used “to block timely and decisive action when genocide and crimes against humanity are manifestly occurring,” as long as other criteria, such as proportionality and necessity are satisfied. This step alone would raise the political costs of threatening a veto.
• Second, the P3 should cooperate on a strategy to minimize the risk that discussions over RN2V within the UNGA do not deteriorate into a broader assault on the veto prerogative or a general debate on the (important but distracting) topic of Security Council expansion. It will be especially important for France to carefully identify a cosponsor (or cosponsors) from the developing world that can resist such pressures.
• Third, the P3 should link the proposed norm with something resembling the Responsibility while Protecting proposal. Such a package deal could help reassure influential swing states like Brazil—as well as the influential African bloc—that their post-Libya concerns are being taken seriously.

Finally, before endorsing the RN2V, the Obama administration will need to consider its potential ramifications for U.S. freedom of action with respect to the Israeli-Palestinian dispute. As a staunch defender of Israel, the United States frequently finds itself isolated internationally, at times even from European allies, when it comes to Israeli conduct in the Occupied Territories. Since the UN High Level Event that endorsed R2P in 2005, the United States has used the veto three times with reference to Israel and the Occupied Territories. In all likelihood, it will feel the need to do so in the future.

Although there are many traps to avoid if the RN2V is to come into force, the proposal has reopened a much-needed discussion on how to make the Security Council more effective at addressing mass atrocities. The Syria conflict has made it clear that the status quo is unacceptable. Despite outstanding questions regarding its implementation, the French proposal should be pursued as far as possible to raise the political cost of a veto, restore the credibility of the Security Council, and, most importantly, prevent atrocities.

This post appears courtesy of CFR.org.