The Veto Should Not Sanction the Violation of the Law – conversation with Jennifer Trahan

The conflict between Russia and Ukraine culminated into a full-scale and still ongoing war after the Russian attack in February. Besides the geopolitical and security considerations, the war of course concerns many areas of international public law. Let’s begin our conversation with the attack itself. International lawyers unanimously agree that the act of Russia is unjustified and amounts to a so-called aggression that violates the fundamental principles of international law. However, Russia made several attempts to justify its acts and referred to preemptive self-defense and humanitarian intervention as legitimate exceptions to the general ban on the use of force or the “jus contra bellum”. Are there any historical precedents of this claim? How do you see this case from a legal standpoint?

We have

a very clear violation of the U.N. Charter’s prohibition on the use of force.

First, it in only anticipatory self-defense (not preemptive self-defense) that is permissible, or arguably permissible, under international law, and Russia was not imminently about to be attacked by Ukraine, so anticipatory self-defense is not a possible legal justification.  As to humanitarian intervention, a doctrine that is in a “grey area” of legality, that also is inapplicable, because, as the International Court of Justice (“ICJ”) has now provisionally ruled, there was no genocide occurring against Russian nationals in Eastern Ukraine.

Before the aggression, Russia also officially and unilaterally recognized the Donetsk and Luhansk People's Republic as independent states. They referred to collective self-defense How would you evaluate this act in light of the relevant customary rules and also in light of the recent examples of state recognitions?

Under international law, as to self-determination, if Ukraine had given Donetsk and Luhansk a referendum and if they had voted for independence, that would be another matter. That did not occur.  Absent that, the law does not permit groups within a state to simply break off from a sovereign state at will (secession), nor can one country simply declare part of the territory of a neighboring state to be independent states and make it so.  

Let’s turn to the U.N. Security Council that is the key institution for the maintenance of international peace and security. In the present case the Security Council is facing with an aggression, the very thing against which this collective security mechanism was once established. Article 24 of the Charter says that “[i]n discharging these duties the Security Council shall act in accordance with the Purposes and Principles of the United Nations.” The Council, however, has been paralyzed in the face of the Russian veto. I am kindly wondering whether the Charter itself can limit the veto power. What are the previous examples? How and why may legal interpretation limit the use of veto?

The U.N. Charter does have limitations on the veto of the permanent members of the U.N. Security Council—only they are not being respected.  Under the U.N. Charter, all states must act in accordance with the “Purposes and Principles” of the U.N., and one of the “Purposes” of the U.N. requires respect for international law.  As you mentioned, the Security Council is also bound to respect the U.N.’s “Purposes and Principles.” 

The veto power is being used abusively. 

As to previous examples, in my book, I examine the 16 vetoes by Russia, with China often joining, related to the situation in Syria. They blocked the condemnation of crimes; referral to the International Criminal Court (“ICC”); measures to prevent chemical weapons use; and even humanitarian assistance.  Those vetoes were at odds with the “Purposes and Principles” of the U.N.

Another example would be vetoes and veto threats which have effectively countenanced the continued commission of genocide; this occurred with China’s vetoes and veto threats related to Darfur, Sudan, and well as crimes being committed against the Rohingya in Myanmar. Similarly, due to the veto, there will be no resolutions passed related to the crimes being committed against the Uyghurs in China, also believed to constitute genocide.

Russia’s recent veto of its own condemnation of aggression is similar.  In the same way that genocide is prohibited at the highest level of international law (jus cogens)—as are crimes against humanity and war crimes—the same holds true for use of force in violation of the Charter.  Thus, Russia is violating both numerous provisions of the U.N. Charter and international law (at the highest level) by its invasion.  It should not simultaneously be permitted to effectively sanction (by blocking condemnation) its own aggression.  The veto is simply not above all law—and should not be used to sanction continued violations of peremptory norms of international law, nor violations of the “Purposes and Principles” of the U.N.

In my book, I argue that

the General Assembly should request an advisory opinion from the ICJ on a question such as whether international law contains limitation on the use of the veto

by permanent members of the U.N. Security Council in situation where there is ongoing genocide, crimes against humanity, or war crimes.  One might also add aggression to this list.

Does the misuse of veto power only characterize Russia and China or does it happen with Western members?

I make my arguments across the board. You see vetoes related to South Africa when it was still under the apartheid regime. Western powers also refused to send additional peacekeepers to Rwanda and refused to permit the word “genocide” to be used in any Security Council resolution.  The US periodically also uses its veto related to Israel.  By now, both the

U.K. and France have made a voluntary commitment not to use their vetoes while there is ongoing genocide, crimes against humanity, or war crimes. 

Unfortunately, the other three permanent members (the US, Russia, and China) make no such pledge.

Who should decide on a situation that limits the veto power?

The question would ideally be put to the ICJ.  Either the Security Council or the General Assembly may request the ICJ to render an “advisory opinion.”  This could be on a general questions (such as the one I suggested), or a particularly egregious veto.  It might also arise in a contentious case, for example, related to the interpretation or application of the Genocide Convention or Torture Convention (assuming a veto in the face of genocide or torture, and the resolution that was blocked would have taken measures to prevent the crimes). 

Individual states could also take a stand against abusive vetoes by making statements at the U.N. and other appropriate fora

that the veto must be used in conformity with international law and the U.N. Charter, or the General Assembly could issue a resolution recognizing legal limits to the use of the veto.

If the Security Council is paralyzed, what other avenues could serve as mechanisms of collective security? Ukraine initiated a lawsuit before the ICJ based on the Genocide Convention. How do you see the legal basis and the outlook of this lawsuit?

The U.N. General Assembly has some measures that it can take when the Security Council is blocked, but they are somewhat limited, as the General Assembly’s power under the Charter is chiefly to make recommendations.  As to accountability, for example, the General Assembly could recommend the creation of an ad hoc hybrid tribunal on aggression.  It might alternatively create a mechanism to compile evidence of the crime of aggression related to Russia’s invasion of Ukraine for use by a future tribunal or domestic courts.

The ICJ recently ordered the Russian Federation to immediately suspend its military operations.  The case was brought under the Genocide Convention related to Russia’s baseless claims of genocide occurring in Eastern Ukraine.  The difficulty, obviously, is that the Court does not have a way to force Russia to comply with the decision.  Yet, I find it quite amazing that the Ukrainian Government (while under attack) was able to file a case before the ICJ and thus harness the rule of law.  By failing to adhere to the ICJ’s ruling (and by the invasion and what appear to be clear war crimes), Russia is quickly becoming an international law pariah nation.

Let’s turn to the question of individual legal responsibilities both for the aggression as well as for the acts that violate the so-called “jus in bello”. Unfortunately, we are getting an increasing number of reports on violations of international humanitarian law. What are the chances of national or international criminal investigation?

The ICC has jurisdiction over genocide, war crimes and crimes against humanity committed on the territory of Ukraine. This was created by Ukraine’s execution of two Article 12(3) declarations.

Thus, the ICC has opened an investigation into war crimes and crimes against humanity being committed in Ukraine,

and this could well result in the eventual issuance of arrest warrants.

However,

the ICC does not have jurisdiction over the crime of aggression

which has a different jurisdictional regime. In 2010, there was a carve-out created in the ICC’s jurisdiction over the crime of aggression (at US insistence) that limits it from applying to the nationals of, or crime committed on the territory of, a state that is not a party to the ICC’s Rome Statute, such as Russia and Belarus.  Otherwise, the ICC would have been able to open an investigation into aggression in Ukraine, along with its current investigation.  

National courts may also eventually play a role, as many countries have war crimes as well as the crime of aggression in their domestic laws, some with universal jurisdiction.  However, aggression (at least in the Rome Statute’s definition) is a “leadership crime,” so that it applies to high level political or military leaders.  Such individuals may well have immunities that would attach in cases before domestic courts.

How do you see the procedure with the crime of the aggression?

In this present case, the U.N. General Assembly declared that an act of aggression has occurred with Russia’s invasion of Ukraine.  Therefore, any political or military leader who planed, prepared, initiated, or executed the invasion is committing, or has committed, the crime of aggression.  The difficulty is where to prosecute the crime.  If the U.N. Security Council were not paralyzed by Russia’s veto, then the Security Council could simply refer the situation in Ukraine to the ICC, which would permit the Prosecutor to include the crime of aggression in the investigation and allow its prosecution before the ICC.

Given the extreme improbability of a U.N. Security Council referral, there are proposals being made for establishing an ad hoc tribunal to prosecute aggression in the territory of Ukraine.  Obviously, due to the veto power, such a tribunal cannot be created through the U.N. Security Council as were the Yugoslav and Rwanda Tribunals.

The best way an ad hoc tribunal could be created would be if the U.N. and Ukraine agree to such a tribunal

(based on the models of the Sierra Leone Special Court and Cambodia Tribunal), with the General Assembly recommending the tribunal’s creation. 

There is another proposal, endorsed by U.K. officials, to pool domestic jurisdictions following the Nuremberg precedent.  The optics of such a Nuremberg style tribunal are quite poor as it is being proposed by the nationals of a country that worked to narrow the ICC’s jurisdiction over the crime of aggression in 2017 (in the resolution that activated the crime’s jurisdiction), and a country that used military force in Iraq (along with the U.S.) based on a flimsy legal theory.  Additionally, the Nuremberg precedent—which dates back to 1945 and is long outdated by the experience of all the more recent tribunals—could encourage states to pool jurisdictions when they want; perhaps Russia and Belarus will do so in the future.  Furthermore, there are immunities issues at the national level (as mentioned), and if one pools national jurisdictions, one may still have the same immunity issues—potentially immunizing the very leaders the crime of aggression is designed to prosecute.

A hybrid tribunal created by the U.N. and Ukraine, based on the General Assembly’s recommendation, by contrast:  (1) would have far greater legitimacy, as based on multilateral support and negotiated by the U.N.; and (2) could avoid these immunities problems, by relying on the Special Court for Sierra Leone’s precedent in the Charles Taylor case—that a sitting head of state lacks immunity before an international or hybrid tribunal.

In the long run, however, we don’t want ad hoc solutions.  The ICC’s States Parties need to fix the crime of aggression’s jurisdictional regime in the Rome Statute and bring it either in line, or more in line, with the ICC’s jurisdiction over its other three crimes. Only then could there be enough jurisdiction hopefully to some deterrence so that future perpetrators think twice before violating the U.N. Charter so flagrantly.