The Security Council’s obligation to prevent atrocities

Second to those who are criminally responsible – those who kill and those who maim – the responsibility for the continuation of so much pain lies with the five permanent members of the UN Security Council.  So long as the veto is used by them to block any unity of action, when it is needed the most, when it could reduce the extreme suffering of innocent people, then it is they – the permanent members – who must answer before the victims.

— Zeid Ra'ad Al Hussein, then United Nations High Commissioner for Human Rights

The United Nations was established in the aftermath of World War II, with the stated aim of “savi[ng] succeeding generations from the scourge of war.” Since then, human rights treaties have been widely adopted, the UN’s human rights program has grown substantially, and the international community has reached consensus that it bears a Responsibility to Protect civilians against war crimes, crimes against humanity and genocide (together, referred to as ‘atrocity crimes’). However, one need not look further than Syria to understand that the promise of ‘never again’ has instead given way to ‘again and again.’ Eight years on, the humanitarian crisis is far from over and the statistics are alarming: from an estimated pre-war population of 22 million, over half a million have been killed, more than 5.6 million are now refugees, and at least 6.6 million are internally displaced.

The UN has often been accused of failing to prevent atrocity crimes. But, this is somewhat of a misnomer. Its failures are exposed for all to see, whereas its successes often go unnoticed. But more importantly, it is not the UN organization itself, but rather its member states, who bear the primary responsibility for preventing atrocities. Specifically, the primarily responsibility for upholding international peace and security lies with the 15-member Security Council, whose five permanent members – the United States, the United Kingdom, France, China and Russia (together, the P5) hold veto power. Regrettably, some of these members place political ambitions above legal obligations, and willingly use this veto power to block resolutions that would protect civilians from mass atrocities. Unless this changes, selective responses to civilian protection – such as action in Libya and inaction in Syria – will remain inevitable.

To date, much attention has focused on political commitments, such as the Responsibility to Protect (R2P) framework, which was adopted by the UN General Assembly at the 2005 World Summit. While a significant political development, in its present formulation, R2P does not entail revolutionary changes within the existing legal framework. It was made clear at the World Summit that even in the context of atrocity crimes, there were no new exceptions to the use of force, and that any such authorization would continue to be made “through the Security Council, in accordance with the Charter.” Voluntary veto restraint initiatives have also gained quite a bit of traction in recent years. Predictably however, neither Russia, China nor the U.S. has agreed to join. It is also legally problematic that the France/Mexico Initiative and the ACT Code of Conduct are framed as “soft law obligations” – as if atrocity prevention were merely optional, and nothing more.

It is time to move forward. Instead of advocating for the P5 to make voluntary political commitments, we ought to demand that they adhere to their hard law obligations, including their obligation to prevent atrocity crimes.

For instance, there is a strong legal argument that, under the Genocide Convention, all members of the Security Council have a duty to prevent genocide and, in the case of the P5, a corresponding duty not to veto. Notably, Article 1 of the Convention imposes on states an obligation to “prevent and punish” genocide. In 2007, the International Court of Justice (ICJ) in Bosnia v. Serbia and Montenegro, interpreted this obligation to require that all states do everything within their power to prevent genocide, provided that they have the requisite capacity to effectively influence the relevant genocidal actors and the knowledge of the serious risk that genocide might occur. The ICJ made clear that this duty was not territoriality limited and that compliance was to be measured by conduct rather than by result.

Given that the P5 have overwhelming, if not absolute control over the decision to employ coercive measures under Chapter VII of the UN Charter, they have a particularly strong capacity to influence genocidal actors. Furthermore, all members of the Security Council have access to numerous early warning systems (including the Offices of the Special Advisor on the Prevention of Genocide, the Special Advisor on the Responsibility to Protect, and the High Commissioner for Human Rights). They should be deemed to have knowledge about situations where there exist serious risks that genocide might occur.

With respect to war crimes, one could also make a similar type of argument about the Geneva Conventions. In particular, Common Article 1 sets out a state’s obligation to “ensure respect” for the Conventions, and requires all states – not just those who are party to the conflict – to “use all means at their disposal to persuade” a government to abide by international humanitarian law and the applicable convention.  While a similar treaty on crimes against humanity does not yet exist, the International Law Commission recently released its draft articles concerning the prevention and punishment of crimes against humanity.

Clearly, all states, including the P5, have international legal obligations, which do not cease simply by virtue of their Security Council membership. Accordingly, this author strongly believes that the UN General Assembly should seek an advisory opinion from the ICJ requesting further guidance on what the P5 can and cannot do when their duty to prevent is triggered. Specifically, clarity is required as to whether the unrestrained veto in the face of atrocity crimes is in accordance with international law. But for this to happen, there needs to be a country – or a group of countries – that is willing to stand up to the P5 and take this initiative forward. Perhaps Canada could lead the charge and commit to making atrocity prevention a priority as it bids for a Security Council seat in 2021.

Atrocity crimes are not inevitable. When all states, including the most powerful, are held to the same legal standard, we as an international community will be capable of uttering no more Holocausts, Cambodias and Rwandas, and actually mean it.