Limiting the Security Council veto

BACK in 2001, France floated a proposal that the five permanent members of the United Nations Security Council (P5) should voluntarily refrain from using their veto power when dealing with mass-atrocity crimes. And now, in the lead-up to the commemoration of this year's 70th anniversary of the UN, French President François Hollande's government is actively pursuing the idea again. Could such an arrangement really work?

The predictable initial response is to dismiss the possibility out of hand. As Australia's wartime prime minister, Ben Chifley, once famously remarked: "The trouble with gentleman's agreements is that there aren't enough bloody gentlemen."

It is indeed hard to believe that Russia and China, in particular, would be accommodating. Russia, for example, has exercised vetoes more than 100 times since 1946, most recently -- and unhappily -- four times since 2011 to block resolutions intended to halt the carnage in Syria.

Nor has the United States, which has used its veto some 80 times (most frequently, in recent years, on Israel-related issues), shown much enthusiasm, notwithstanding its generally strong stand on genocide and related cases. Only the United Kingdom (which, like France itself, last resorted to the veto in 1989) has given any hint of support for the French initiative.

The right to veto was the price demanded by China, France, Great Britain, Russia, and the US for joining the UN. No one believes that a formal Charter amendment to abolish or limit this right is remotely likely.

But international pressure on the P5 has been mounting for the last 15 years -- and especially since the General Assembly's unanimous embrace in 2005 of the "responsibility to protect" (R2P) principle. Advocates of the French position want these countries to forswear their veto when a clear majority supports proposed action to mitigate the risk of a mass-atrocity crime. Distaste for the blocking of the Syrian resolutions has been particularly intense, and, at last count, 68 countries had given explicit support to the French proposal in various UN forums.

The moral argument that the veto should not be used in cases of mass-atrocity crimes is overwhelming. The P5 have obligations under the UN Charter, as well as international humanitarian and human rights law, not to undermine the effectiveness of the UN or that body of law. And the political argument against using the veto in these situations -- that it jeopardises the credibility and legitimacy of the Security Council, whose structure is already seen as not reflecting the geopolitical realities of the twenty-first century -- should also weigh heavily on the P5.

But is it possible to craft a veto-restraint proposal to which all of the P5 can agree? In January, at a conference I attended in Paris that brought together French policymakers and international experts, it became clear that a draft agreement could meet most, if not all, objections. But it would need to have at least three key elements.

First, the agreement would have to define the relevant cases clearly -- neither too widely nor too narrowly -- and build on well-established R2P language. The definition might be something like "situations where populations are suffering, or at imminent risk of, genocide, other crimes against humanity, or major war crimes."

Second, an agreement would need to include a mechanism to determine when such cases had actually arisen. This would need to be speedy, provide some assurance of objective assessment, and ideally generate strong concern across a wide cross-section of the international community.

One way to meet these needs would be to have a double trigger. The first requirement would be a certification, communicated to the Security Council by the UN Secretary-General and his Office of Special Advisers on the Prevention of Genocide and R2P (which has the necessary resources, expertise, and credibility) that the case meets the agreed definition. The other would be a request for veto-restraint by at least 50 member states, including at least five members from each of the recognised geographical groupings.

A third key element, unattractive ethically but probably necessary politically to win the support of the US and others, would be a provision allowing any P5 member to veto when it claimed a "vital national interest" to be at stake. The consolation is that trying to rely on such an escape clause in most atrocity cases would not pass the laugh test. Could Russia and China really have used it to veto Security Council resolutions on Myanmar and Zimbabwe in, respectively, 2007 and 2008? Even given the intensity of Russia's political and military relationship with Bashar al-Assad's regime in Syria, could it really claim that a resolution would place its own vital interests at risk?

Many kinds of pushback can be expected, not least the argument that the veto exists not to protect the P5's interests, but to ensure unanimity of the major players (conspicuously missing in the UN's ill-fated predecessor, the League of Nations) in any action undertaken, in order to maintain international peace and security. We will be told that it is unconscionable to ask a P5 member to forgo a veto when it genuinely believes that a proposed resolution will cause more harm than good.

One response is that it is almost impossible to find any such genuinely high-minded rationale for any veto ever cast in a mass-atrocity situation. Another is that any UN Security Council resolution requires at least nine affirmative votes (in a Council of 15). If there are genuine concerns on the merits, that requirement will prove a very high bar.

The point of the veto restraint is, at minimum, to raise the political cost for those who would block action designed to ensure that there are no more Cambodias, Rwandas, Srebrenicas, or Syrias. The French proposal, though still evolving, has already struck a responsive chord internationally. The other P5 members will ignore it at their peril.

The writer, a former Australian foreign minister (1988-1996) and past president of the International Crisis Group (2000-2009), is the author of The Responsibility to Protect: Ending Mass Atrocity Crimes Once and For All and a co-chair of the International Advisory Board of the Global Center for the Responsibility to Protect.

Copyright: Project Syndicate, 2015.  www.project-syndicate.org
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