Making Effective Use of Existing Legal Obligations in the Face of Atrocity Crimes

 

Making Effective Use of Existing Legal Obligations in the Face of Atrocity Crimes
Remarks Delivered in the UN Trusteeship Council
Statement by Professor Jennifer Trahan, NYU, Global Affairs

October 22, 2018 check against delivery

Good afternoon.   It is a great pleasure to have this opportunity to present to you.

Thank you to the Permanent Mission of Poland for inviting me.

As we commemorate the 70th anniversary of the adoption of the Genocide Convention and discuss the topic of “Preventing and Punishing Atrocity Crimes,” I note, initially, that Rafael Lemkin would not be proud of us—the international community has not done well in ensuring that “never again” means “never again.”  We have only to look at the genocides in Rwanda, at Srebrenica, in Darfur, and against the Yazidis and the Rohingya.

I will identify three current challenges to addressing the crimes of genocide, crimes against humanity, and war crimes.

First, we are in a political landscape growing increasingly less tolerant of pursuing accountability, with some countries in retreat from multilateral engagement.  Even for countries where this is not true, there is perhaps some fatigue about the field of international justice.  And yet, atrocity crimes continue.  We must find ways, particularly in the face of “pushback” and lack of leadership from some countries, for other countries to lead and to reenergize engagement and stay the course in this incredibly important field dedicated to ensuring that the gravest crimes are no longer tolerated and are punished. 

Furthermore, we must ensure that we are always moving forward in this field, not backwards.  There is no need to revisit questions that have been established law since the 1945 Nuremberg Tribunal and all subsequent international and hybrid tribunals that have made it clear there is no head of state immunity to commit atrocity crimes.  Nor should we move backwards in domestic immunities laws to protect ex-government officials.

Secondly, over the last twenty years, we have reached agreement that the international community bears a responsibility to protect (“R2P”) against atrocity crimes.  Yet, one might legitimately ask where R2P has been when it comes to Syria.  There has been no responsibility shown and no protection.  I will suggest in order to revitalize R2P we might refocus on its hard law legal obligations, its foundational roots.

Thirdly, we have seen extensive veto use by at least some permanent members of the United Nations Security Council even in the face of atrocity crimes.  Despite important initiatives over the last twenty years to seek voluntary veto restraint, these initiatives have not reined in such veto use.  We should consider a new and complementary approach, again examining hard law legal obligations, and whether use of the veto in the face of genocide, crimes against humanity, and war crimes is always consistent with all bodies of international law.

My remarks will focus on the second and third topics:  (1) the hard law underlying R2P, and (2) veto use in the face of genocide, crimes against humanity, and war crimes.   As to how to strengthen support for international justice in an increasingly hostile landscape, I will simply ring the warning bell that the field appears to be facing increasing challenges, and much needs the support and engagement of those states and individuals still committed to it.

I. HARD LAW UNDERLYING R2P

As to the responsibility to protect, over the last twenty years, we have seen this important concept grow into a broad doctrine, encompassing a “continuum of prevention, reaction and rebuilding,” and formulated in terms of three pillars of responsibility.  Pillar I emphasizes that states have the primary responsibility to protect their own populations from genocide, war crimes, ethnic cleansing, and crimes against humanity, and from their incitement.  Pillar II focuses on the commitment of the international community to assist States in meeting those obligations.  And, Pillar III stresses the responsibility of Member States to respond collectively, in a timely and decisive manner, when a State is manifestly failing to provide such protection. 

This broad doctrine is extremely important, and should be part of R2P, but in building this doctrine so broadly, we maybe have lost sight of what is at its core.  Too often people speak of R2P as if it were merely “soft law”—as if it is optional, a nice moral aspiration, but nothing more.  In fact, there are hard law legal obligations underlying R2P.  And on this 70^th Anniversary of the Genocide Convention, we should go back to remember these.  These are obligations that must be implemented.  Put another way, the obligations provide states that want to assist, with an opportunity to do so. 

Under the Genocide Convention, Article 1 imposes an obligation to “prevent and punish” genocide.   We have an elaboration of what the obligation to “prevent” means recently articulated by the International Court of Justice (“ICJ”) in the Bosnia v Serbia case.  Two facets of that holding are most relevant.  First, that the obligation to “prevent” depends on means.   I quote:  “The obligation of States is . . . to employ all means reasonably available to them, so as to prevent genocide as far as possible.”  Therefore, countries with particular ties or particular positions of influence, or ones intervening in a situation, would have particularly strong obligations of due diligence.

Second, note that this obligation of due diligence to “prevent” was there applied vis-à-vis Serbia’s responsibilities in another state, Bosnia.  Therefore, the obligation to “prevent” genocide includes genocide occurring in another state’s territory.  There is also the obligation to “punish” genocide in Article 1 of the Convention.

Turning to the 1949 Geneva Conventions, we have in Common Article 1 an obligation to “respect and ensure respect for” the Conventions, and an obligation to “prosecute” at least the fairly large subset of war crimes known as “grave breaches.”  By virtue of Common Article 1, the same is likely required for Common Article 3 war crimes.

As to Common Article 1, the International Committee for the Red Cross explains that the obligation to “respect” is an internal obligation for a state to respect the Geneva Conventions, but the obligation to “ensure respect” is to ensure that other states respect the Geneva Conventions; it is thus an external obligation.

The ICJ recognized this obligation of third states to ensure respect for the Geneva Conventions in both the Nicaragua case (where the US was admonished to ensure respect for the Conventions and humanitarian law more broadly), and the Wall case (where every state party was reminded of its obligation to ensure that Israel comply with the Fourth Geneva Convention).  As to what “ensure” means, a state should “use all the means at their disposal to persuade” the government to abide by the applicable Convention.

I am here sticking to a fairly narrow set of war crimes, and one could make these arguments more expansively to encompass other war crimes, and crimes against humanity, but as you know from Professor Murphy’s remarks, as to crimes against humanity one cannot rely upon any treaty source as there is not yet a crimes against humanity treaty.  But, here, one could rely upon the erga omnes obligations of all states.  Note also under Articles 40 and 41 of the International Law Commission’s Articles on State Responsibility there is a positive duty of all states “to cooperate to bring to an end any serious breaches, by a state, of an obligation arising under a peremptory norm of international law.”

Are all states living up to their legal obligations?  Are all states seizing the opportunities these obligations provide?  As we try to revitalize R2P, we must not lose sight that the core of R2P rests on a solid foundation of hard law legal obligations.  These obligations are not optional.  These measures must be implemented.

II. LEGAL LIMITS TO THE VETO IN THE FACE OF ATROCITY CRIMES

My last set of remarks pertain to use of the veto power by certain permanent members of the UN Security Council in the face of genocide, crimes against humanity, and war crimes.

If we go back to the negotiations leading into the San Francisco conference, we see primarily the desire by those who became permanent members of the Security Council to have “unanimity” in decisions to use force—that was the primary rationale for the veto.  There was no discussion in San Francisco of how the veto might interact with what we now call the field of international justice, because of course in 1945 that field did not yet exist.  In 1945, the Nuremberg Tribunal was just starting its work.  The 1948 Genocide Convention was not yet finalized.  We did not yet have the four 1949 Geneva Conventions. 

So, would contemporaneous use of the veto— such as blocking a ceasefire to provide humanitarian assistance, or blocking chemical weapons inspections that would attribute responsibility to the side using them—be in line with the drafter’s original intentions?  At a minimum, we can say we do not know, they did not reach these issues.  There was however, a commitment made by four of the permanent members at San Francisco not to use the veto to willfully obstruct the operations of the Council.

Of course, you all know there was extensive veto use during the Cold War, and already as soon as 1946—one year after the Charter’s creation—we have the General Assembly asking the permanent members for restraint in veto use.  After a series of such resolutions in the late 1940s, this culminates in the 1950 Uniting for Peace Resolution. 

For a brief period of time after the Cold War, in the 1990s, the political landscape was conducive enough for the creation of the International Criminal Tribunal for the former Yugoslavia (“ICTY”) and the International Criminal Tribunal for Rwanda (and later, the Special Tribunal for Lebanon), but unfortunately that kind of agreement appears to have been short-lived.  We can only wonder whether any international or hybrid criminal tribunals will ever be created again through the Security Council.

Veto use in the face of atrocity crimes

In terms of veto use in the face of genocide, crimes against humanity, and war crimes.  We have:

• Historically, veto use by the US, UK, and France related to apartheid-era crime. The veto does not fully block the UN’s response, because ultimately Chapter VII sanctions are imposed.
• In Rwanda, we do not have express veto use, but significantly key permanent members have no interest or will in deploying any robust troop presence.
• The US periodically uses the veto related to Israel, sometimes in the face of atrocity crimes and sometimes not.
• Some states prefer to use a veto threat, or “silent veto” so that one does not have an express veto, but the lack of responsiveness of the Security Council can nonetheless be attributable to the existence of the veto power. This is no less problematic than the actual veto use. 
  • We see this regarding the situation in Darfur, where there was a hybrid force deployment only after the genocide was over. (And, if you are a state that contends the crimes were not genocide, I believe you are incorrect, but my remarks would apply equally if we consider the crimes to be crimes against humanity and war crimes.)
  • This lack of responsiveness repeats during the atrocities of the civil war in Sri Lanka and with respect to the crimes in Myanmar.
• And, of course, most recently, we have also had twelve vetoes related to the situation in Syria, including vetoes of chemical weapons inspections that would have attributed responsibility, vetoes of condemnation of chlorine gas use, veto of a referral to the International Criminal Court, veto of condemnation of indiscriminate aerial bombardment and condemnation of mass detention, and more.

In all these situations, we have staggering death tolls, amid recognition that genocide, crimes against humanity, and/or war crimes are occurring.  Again, I ask: are these kinds of vetoes in line with what was negotiated in San Francisco?  Are they in line with the UN Charter?  There is no indication they are.

Veto restraint initiatives

For the last twenty years, we also have had important initiatives calling for voluntary veto restraint in the face of genocide, crimes against humanity, and/or war crimes.  These started with the report of the International Commission on Intervention and State Sovereignty calling for a “responsibility not to veto” as part of R2P, because R2P can be all too easily blocked by veto use.  We then have the important work of the “S5” group of states.  After, and somewhat contemporaneously, there is both the French-Mexican initiative not to veto in the face of atrocity crimes, now endorsed by 101 states.  (They are trying to achieve endorsement by two-thirds of the members of the General Assembly to serve as a trigger for acknowledging the crimes are occurring.)  And, the ACT group of states’ Code of Conduct, calling for a variety of measures, including veto restraint, and a responsibility to act in the face of genocide, crimes against humanity, and war crimes.  It is now endorsed by 118 states.  There have also been other initiatives by “The Elders,” Hans Corell, and even a US-based genocide prevention task force during the Obama Administration.

On the positive side, together, these represent twenty years of agreement that the veto in the face of atrocity crimes is problematic.  Importantly, there are even two permanent members endorsing this approach, with France leading the French/Mexican initiative, and the UK and France being parties to the Code of Conduct.  On the negative side, these are all framed as “soft law” legal obligation—as a Code of Conduct and a “political declaration.”  Moreover, three of the permanent members have not joined any of these initiatives.  Thus, all of these initiates are important as they focus on the dilemma of veto use in the face of genocide, crimes against humanity, and war crimes, and increase the political “cost” of using the veto in the face of these crimes, but they do not ultimately reign it in.

Legal limits

Therefore, I would like to propose three arguments for your consideration.  Whereas the veto is often treated as a carte blanche, above all law, to be utilized for any reason or no reason, it actually sits within a system of international law.  When the veto was first created, as mentioned, there was not as much international law as exists today.  But there is much more law now, and the veto (read into Article 27(3) of the UN Charter) sits within this system of international law.  We might ask how the veto interacts with other aspects of this system of international law.

1)  Jus cogens

            First, we might consider that the prohibition of genocide, crimes against humanity, and war crimes are jus cogens norms.  That means they are the highest-level norms from which no derogation is ever permitted.  No state could avoid treating these as jus cogens; no state could opt out of this approach.  One might well ask:  is it then acceptable to have pervasive veto use in the face of genocide, crimes against humanity, and/or war crimes, where the veto blocks measures designed to curtail or alleviate the commission of these crimes?  Arguably it is not.

Jus cogens sits hierarchically above the veto, which is found, implicitly, as mentioned, in Article 27(3) of the UN Charter.  The UN is a body under international law, and subject to it.  Thus, the European Court of First Instance has held that jus cogens constitute “a body of higher rules of public international law binding on all subjects of international law, including the bodies of the United Nations.”  As an organ of the UN, the Security Council’s powers cannot exceed the powers of the UN.  This was recognized in the foundational Tadić case of the ICTY.  Thus, the Security Council is also constrained by jus cogens.

Thus, the Security Council in its resolutions cannot violate jus cogens.  Professor Dapo Akande, who has written extensively on limitations on the Security Council’s powers, concludes:  “[a]ny Security Council decision in conflict with a norm of jus cogens must necessarily be without effect.”  Judge Lauterpacht writes that when the operation of a Security Council resolution effectively “make[s] members of the United Nations accessories to genocide it cease[s] to be valid and binding,” such that Member States are “free to disregard it.”  So why do we read it that the permanent members can freely veto and thereby facilitate continuing jus cogens violations?  The veto power needs to be read in a way that is consistent with, and not violative of, jus cogens norms.

2) The “purposes and principles” of the UN

            Second, the veto, in Article 27(3), sits within the UN Charter.  Article 24(2) of the Charter states that the Security Council must act in accordance with the “purposes and principles” of the UN.  That the Council’s powers are limited by Article 24(2) was, for example, recognized by Judge Weeramantry in the Lockerbie case, and Judge Lauterpacht in the Bosnia Arms Embargo case.

If we go to Article 1, the purposes of the UN are broadly worded.  Yet, Article 1.1 contains a reference to acting “in conformity with the principles of justice and international law.”  And, Article 1.3 requires international co-operation “in promoting and encouraging respect for human rights . . . .”

So are the vetoes we see today in conformity with the principles of “international law”?  Are they in conformity with “promoting and encouraging respect for human rights”?  Are they, thereby, in conformity with the “purposes and principles” of the UN?  No, it is pretty clear they are not, and the vetoing permanent member is thus acting ultra vires to the proper exercise of Security Council power.

3) Treaty obligations

Thirdly, I have mentioned certain foundational treaties that underlie R2P.  They also are potentially relevant to the question of veto use in the face of atrocity crimes as all permanent members are parties to both the Genocide Convention and the 1949 Geneva Conventions.  As mentioned, states parties to the Genocide Convention have an obligation to “prevent and punish” genocide.  And, as mentioned, under the 1949 Geneva Conventions, all states must “prosecute” at least gave breaches and “respect and ensure respect for” the Geneva Conventions.  And, as described previously, the ICJ had held that the obligation to “prevent” means to do everything in one’s power, depending on a state’s ability to influence.

A permanent member of the Security Council would seem to have a particularly strong ability to influence.  Similarly, one could argue that a permanent member who has ties to the regime at issue would also have a particularly strong ability and thus obligation to influence.   Louise Arbour has written: “keeping in mind the analysis on the International Court of Justice [in the Bosnia v Serbia case], one has to wonder why the exercise of a veto blocking an initiative designed to reduce the risk of, or put an end to, genocide would not constitute a violation of the vetoing States’ obligations under the Genocide Convention.”

Similarly, under the Geneva Conventions, there is an obligation to “ensure compliance” with the Geneva Conventions and what that requires also depends on a state’s ability to influence, based on the concept of “due diligence.”  Are the vetoes being used in line with these treaty obligations?  Clearly, they are not.

Here I will add a caveat that in terms of the hierarchy of norms, treaty obligations could be outweighed by the UN Charter, per Article 103 of the UN Charter.  Yet, perhaps that is not the result when dealing with foundational treaties that also embody jus cogens and the “purposes and principles” of the UN.  Put another way, one should read the veto in a way that is consistent with these foundational treaty obligations.

Note, also, that I am being somewhat conservative in only addressing the Genocide Convention and 1949 Geneva Conventions.  I think these arguments can be made regarding other war crimes and crimes against humanity, by virtue of erga omnes obligations, and to some extent, as to added war crimes, through treaty obligations.

III. CONCLUSION

In conclusion, as we see increasing pushback against the field of accountability, increasing hostility to prosecuting the gravest crimes of concern to the international community, we must ensure that we are always moving forward in terms of the progressive development of international law.  I say this particularly in the context of the current debate on immunities which seems to be taking us backwards.

To move forward on R2P, perhaps we need to remind ourselves that there are hard law legal obligations underlying it.  These obligations are not optional.  And here, I do not only address my remarks to states serving on the UN Security Council, but member states of the General Assembly, and individual states in their bilateral relations.  Are you doing all possible to “ensure” these protections?  That is what is required by treaty obligations.

When we ask:  why did R2P play virtually no role related to the situation in Syria?  We see that it all was blocked by veto use in the face of atrocity crimes.   Again, I urge us to go back to hard law legal obligations and take a critical look at whether unlimited veto use in the face of the genocide, crimes against humanity and war crimes really accords with the UN Charter and all bodies of international law.

One could even imagine the General Assembly requesting an ICJ advisory opinion on this issue:  is unrestrained veto use in the face of genocide, crimes against humanity and war crimes in accordance with international law?  I will end with that thought. 

Thank you.