Veto Power Reform in the Face of the Commission of Mass Atrocities
About the author: Nayomi Goonesekere holds an LLM in International Law from the George Washington University Law School as a Thomas Buergenthal Scholar. She served as Associate Legal Officer (2020-2021) and Judicial Fellow (2019-2020) at the International Court of Justice.
Image by UN Women Gallery available here.
Deadlock in the United Nations Security Council (the Security Council or Council) due to the veto power of its five permanent members obstructs the ability of the United Nations (the UN) to effectively address atrocity crimes. The procedural failures of the Security Council have led to the escalation of crisis situations around the world. In this context, this article will analyze the background of the veto and the composition of the Council, proposals for veto restraint in the case of atrocity crimes, and an inclusive path forward.
Role of the Security Council
Under the United Nations Charter (the Charter), the Security Council holds primary responsibility for the maintenance of international peace and security. In furtherance of this responsibility, the Council wields a binding decision-making power recognized by all member States under Article 25 of the Charter. Under Chapter VI of the Charter, the Council can make recommendations for resolving conflicts by various peaceful means. It may also take a range of enforcement measures including sanctions and military force under Chapter VII of the Charter.
That the Council is the only UN organ with the power to make binding decisions is of particular importance when resolving deadlocks.
The veto power
At the heart of the deadlock issue lies Article 27, paragraph 3 of the Charter, which is often called the veto power of the permanent members. Article 27, paragraph 3, states that all matters of the Security Council pertaining to non-procedural matters must be made by “an affirmative vote of nine members including the concurring vote of the permanent member.” A “concurring vote” means an affirmative vote or an abstention. Therefore, a draft resolution on non-procedural matters that has the support of nine or more non-permanent members can be vetoed by a single negative vote by a permanent member. The five permanent members thus have the ability to cast a veto and prevent the adoption of any resolution.
Composition of the Security Council, bias, and the need for review
As per Article 23 of the Charter, the Security Council is a 15-member Council composed of five permanent seats and ten rotating non-permanent seats. The Charter affords the veto power to only the five permanent members: the United States, Russia, France, the United Kingdom, and China. This power was the sine qua non for the participation of the most powerful States in the United Nations. In 1963, the General Assembly recognized the problematic membership structure of the Council which permitted the abuse of the veto to the detriment of international peace and security, and recommended an increase in membership from 11 to 15. It also suggested a pattern for representation in non-permanent membership as follows: (a) five from African and Asian States; (b) one from Eastern European States; (c) two from Latin American States; and (d) two from Western European and other States.
The amendments recommended in A/RES/1991(XVIII) are largely reflected in the language of Article 23 of the Charter. Despite the changes, the permanent five continue to dominate the Council’s agenda. Both Article 23, paragraph 1 of the Charter and Rule 143 of the Rules of Procedure of the General Assembly in dealing with the election of non-permanent members provides for the equitable geographic representation almost as an afterthought. The 1963 recommendations have failed to prevent the propagation of particular State interest. As a result, few non-permanent members currently support the veto power.
Recent deadlocks and how they impair the effective functioning of the United Nations
Russia’s February 2022 veto on the Albania-United States draft resolution calling for a cease-fire in Ukraine once again spurred discussion on deadlocks. The resolution inter alia requested that Russia immediately cease its use of force against Ukraine and withdraw all military forces. It also called for unhindered access to humanitarian assistance for vulnerable persons and children. The draft, which garnered the support of 11 members and abstention by three, was not adopted.
Fears have also arisen about the increase in the use of the veto. Since the beginning of the uprising in Syria in 2011, Russia has used its veto power 17 times to block the UN’s efforts to prevent the crisis from escalating catastrophically. In 2016, Russia vetoed a Franco-Spanish resolution that demanded a halt to airstrikes in Aleppo and access to humanitarian aid. Russian vetoes have also prevented the adoption of a resolution commemorating the twentieth anniversary of the Srebrenica genocide and the establishment of an international criminal tribunal to prosecute those responsible for the downing of Malaysian Airlines Flight MH17.
Proposals for reform
Following the February 2022 Russian veto relating to Ukraine, the General Assembly adopted A/RES/76/262. It provides that the members would gather “within 10 working days of the casting of a veto by one or more permanent members of the Security Council, to hold a debate on the situation as to which the veto was cast.” This resolution only serves to bring an element of scrutiny to the use of the veto but does not require swift action.
The October 2013 French initiative proposed a voluntary pledge where the permanent members would voluntarily and collectively pledge not to use the veto in cases of recognized mass atrocity crimes. To trigger this code of conduct, the Secretary General would have to make a determination as to the occurrence of a mass crime at the request of at least fifty member States.
The Accountability, Coherence and Transparency Group (ACT) initiative in July 2015 proposed a code of conduct for the Security Council, by calling for both elected and permanent members to not vote against “credible” draft resolutions intended to prevent or halt the commission of mass atrocities, including the use of the veto power. This code lacks a procedural trigger, as it merely requests that the Secretary General bring situations or facts on the ground to the Security Council’s attention by using the UN system’s early warning capacities.
The February 2015 Elders proposal provided that the permanent five must not use the veto in crises where mass atrocities are committed or threatened without explaining their decision by publicly proposing an alternative plan to protect the populations in question in accordance with international law. While this proposal also contains no procedural trigger, the Secretary General would play a role in the Security Council’s decisions. Publicly proposing an alternative plan in the presence of the Secretary General would help to ensure that the permanent-five do their utmost to find common ground. The Secretary General, as a third party, is also well placed to scrutinize the credibility of the alternate plan.
Signing onto either the ACT code or the Elders proposal does not constitute an obligation under international law.
The Uniting for Peace Resolution (General Assembly Resolution 377(V)) presents another avenue to circumvent the use of the veto. It grants the General Assembly subsidiary responsibility where the Council has failed to exercise its primary responsibility for the maintenance of international peace and security due to lack of unanimity of the permanent members. It may be invoked in any case where there appears to be a threat to the peace, breach of the peace, or an act of aggression. However, it does not carry any binding legal weight.
For a proposal calling the Security Council to adopt criteria to restrain its members from using their veto power to succeed, the provisions of the Charter would have to be amended. This is a difficult task. Articles 108 and 109 of the Charter grant the permanent-five veto over any proposed Charter amendments. Therefore, it is unlikely that a permanent member would approve of a proposal where they would be called to relinquish their powers. Even though calls for Russia’s exclusion from the Security Council and sanctions have grown louder, this is a practical impossibility because Russia is well within its rights to veto any resolution to that effect or to even veto the curtailment of its powers within the Council. The challenges in the existing proposals for Council reform – procedural triggers and measures such as pledges and General Assembly Resolutions that have no binding effect – must be dealt with.
To prevent the propagation of particular State interest, the Security Council should adopt a resolution that prohibits permanent members from exercising their veto power in cases of mass atrocities resulting from genocide, war crimes and crimes against humanity. The Secretary General can determine the existence of such circumstances on a need basis. Resolutions adopted by the Security Council acting under Chapter VII of the Charter are considered binding. The Security Council should be reformed further by enlarging its membership, both permanent and non-permanent. The permanent-five should include three more developing countries, and the Council of 15 should be expanded to 19 where members are enabled to make substantive decisions by majority.
The Security Council’s failure to address mass atrocities around the world stems from its continued and unfettered use of the veto as well as the ability to use it. The inclusive path forward proposed here is a political solution. Greater representation within the Council will bring about a much needed change to the status quo. Radical changes to membership of this nature could potentially bring in a new era of decision making where the permanent members would make greater efforts to agree on an effective course of action in the event that one or more members feel obliged to cast a veto. Such a political solution may be the only viable way forward considering the absolute discretion granted to the Council with respect to the veto under the UN Charter. Whether States that enjoy discretion would be agreeable to such change remains a question mark.