‘Veto Restraint’ and the UN Security Council

By Jess Gifkin, Senior Lecturer in International Relations, Politics and Applied Global Ethics, Leeds Beckett University.

Is ‘veto restraint’ possible in the UN Security Council in cases of mass atrocity crimes?

Last week I presented a seminar for the R2P Student Coalition Leeds on the proposal of ‘veto restraint’ for permanent members of the UN Security Council. Similar proposals have been debated in international politics before, but the Council’s deadlock over Syria has reenergised these debates. A resolution in the UN Security Council requires affirmative votes from nine of fifteen members, as long as none of the permanent members vote negatively, which vetoes the resolution. Russia and China have jointly vetoed four resolutions in the Council on Syria so far. Is it right that in 2015 an individual member of the UN Security Council can block action when mass atrocity crimes are occurring, as they are in Syria?

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Photo credits: Benedict Docherty, Georgiana Epure and Jess Reed.

There are different proposals for ‘veto restraint’ currently being debated by states. I focused on two proposals: one put forward by France and one led by a group of UN member states who call themselves Accountability, Coherence and Transparency (ACT). Both of these proposals are firmly within the remit of the ‘responsibility to protect’, or R2P as it is known, and would apply when mass atrocity crimes are occurring – genocide, war crimes, ethnic cleansing and crimes against humanity. The French proposal has two key parts:

  1. Permanent members of the Security Council would agree in advance not to use their veto in cases where mass atrocity crimes are occurring
  2. The existence of mass atrocity crimes would be determined by a) the UN Secretary-General; b) the High Commissioner for Human Rights; or c) 50 members of the UN General Assembly

Similar to the French proposal, the ACT group have created a ‘Code of Conduct’, which currently has support from over 100 UN member states. The Code of Conduct asks all UN member states to agree in advance that they won’t block resolutions when they are in the UN Security Council if: a) mass atrocity crimes occurring; and b) there is a “credible” draft resolution to address such crimes.

After outlining these proposals I presented two broad sets of arguments, first focusing on the positive aspects of the proposals, and then the negative aspects: the ‘pros’ and ‘cons’.

Pros

To legally remove the veto rights in the Security Council would require an amendment of the UN Charter, which sets the bar very high. A formal amendment requires a two-thirds majority in the UN General Assembly and agreement from all five permanent members of the UN Security Council. This means that permanent members effectively have a veto on removing the veto. There are significant barriers to formal reform of the UN Charter. The proposals for informal reform (ie agreed veto restraint) are a pragmatic alternative.

There is broad support from UN members for the veto restraint proposals. This issue currently has momentum, and was recently debated in the UN General Assembly.

There is also a moral argument supporting veto restraint: that mass atrocity crimes are so egregious that different rules should apply.

After presenting these arguments that support the proposals, I took a vote from the audience on the question of “whether veto restraint proposals are a good idea”. Just over half the audience agreed.

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Photo credits: Benedict Docherty, Georgiana Epure and Jess Reed.

Cons

Then I moved to the second set of arguments. While there is widespread support for veto restraint from the UN as a whole, there is not support from the US, Russia or China. The UK and France support the proposals, but they haven’t used their veto since the end of the Cold War anyway. As such there are real problems with implementation of both of the proposals for veto restraint.

Taking Syria as a case study, I argued that even if there was agreement from all permanent members (which there isn’t) the proposals would likely only change the terms of debate, rather than the substantive outcome. As I have previously written, Russia has consistently disputed the Western interpretation of the situation on the ground in Syria. Russia argues that the Syrian government is legitimately targeting terrorist groups and international fighters, rather than committing mass atrocities, so would presumably argue that any veto restraint proposals would not apply to debates on Syria. There is consistent evidence disputing Russia’s interpretation of the situation, for example here and here, but this example shows that even if there were agreement on veto restraint, it may simply change the terms of debate around whether the situation was or was not mass atrocity crimes. This is why the French proposal attempts to formalise this determination and take it away from Security Council members, but the French proposal would currently fall down on the first point anyway (prior agreement from all permanent members).

How might ACT’s Code of Conduct work in the case of Syria? Again, the question of prior agreement would pose a problem. But assuming there was sufficient agreement, and that Council members could agree that mass atrocity crimes were occurring, what about a “credible draft”? The UN Security Council has a range of tools at its disposal and there are legitimate differences of opinion over which tool might work in responding to any given conflict. The Syrian conflict, which has reenergised the debates over veto restraint, also highlights the very real barriers to the veto restraint proposals.

I then asked the audience to vote on “whether veto restraint proposals are feasible and likely to advance R2P”. With this extra context, no one in the audience agreed (although it is hard to be the first to raise your hand!). As we discussed in question time, the barriers to veto restraint highlight how important it is to address escalating conflicts at the domestic and regional level, ideally circumventing the need for the UN Security Council to become involved. A new article by the UN Secretary-General’s Special Advisor on R2P, Jennifer Welsh, stresses the need to improve the preventative aspects of R2P, which is important in light of the barriers to both formal and informal reform of the veto.

Dr Jess Gifkins recently joined Leeds Beckett University from the University of Exeter.  Jess’s research interests are in international organisations, the UN Security Council, decision-making, and the ‘Responsibility to Protect’ (R2P). She is a founding member of the Asia-Pacific Centre for the Responsibility to Protect, at the University of Queensland, where she remains affiliated in an honorary capacity. Her article ‘Libya and the State of Intervention’, co-authored with Professor Tim Dunne, is ranked among the ‘most read’ articles in the Australian Journal of International Affairs. Her latest article in Cooperation and Conflict analyses the use of language on R2P within UN Security Council Resolutions and how this has changed over the past decade. She has published research on conflicts in Darfur, Libya and Syria and is also the Associate Editor for the Journal Critical Military Studies.

“Let bygones be bygones”: A glance at the Post War Sri Lankan Political dilemma

Last night the world lost who I would consider without a doubt the greatest political leader of our time, Nelson Mandela. A man so respected around the world by every political leader despite differences in ideology, a father to a nation who lived and ruled by example rather than words. Today he is gone in person but his legacy will live on for generations to come both in South Africa and elsewhere in the world as a man who did his bit for this world.

In 1990 then South African Apartheid government released Mandela after he served 27 years of rigorous imprisonment.  Soon after his release the world was amazed by what he had to say, ‘Let bygones be bygones. Let what has happened pass… Take your knives and your guns and throw them into the sea’. Followed by this remark the world witnessed the establishment of the world’s most successful reconciliation commission to date ‘(The Truth and Reconciliation commission) which was considered an alternative approach to the post world war Nuremberg trials for addressing the woes of the victims of the stark atrocities committed during the Apartheid era. This was established in 1995 led by former Archbishop Desmond Tutu.  Although the reconciliation commission had its ups and downs it enabled the country to get through the transitional period after decades of violence. The idea was to fight violence with non-violence, to forgive and forget, to ‘let bygones be bygones’.

Having said that I will take this occasion to look at an issue that is troubling my country Sri Lanka: war crimes and human rights violations during the final phase of the war in 2009.  The international community seems to be adamant about making sure the bleak past of the Sri Lankan war remains current in their agenda. Not letting bygones be bygones. It’s most recent episode being the commonwealth meeting.

About three weeks ago between the 15th and 17th November, Sri Lanka hosted the 23rd Commonwealth Heads of Government Meeting (CHOGM).  This meeting was subjected to international scrutiny months prior to it being held. Human right activists, various political leaders and prominent peace figures such as Nobel peace prize winner former Archbishop Desmond Tutu advocated world leaders not to attend the meeting. This was in protest against the government’s failure to address the alleged war crimes committed during the final phase of the 26 year old war and also for it’s delayed response to the recommendations made by the Lessons Learnt and Reconciliation Commission (LLRC) report.  This resulted in three leaders, namely Canadian, Indian and Mauritian boycotting the meeting. However what drew the attention most was the attendance of the British Premier and moreover his ultimatum that if the GoSL fails to carry out an investigation into alleged war crimes committed during the last phase of the war then the UK will use its powers at the UN human rights council to probe for an international inquiry into the matter. These recent incidents demand unravelling bit of history behind the Sri Lankan conflict.

Sri Lanka was granted its independence in 1948 after four centuries of colonial rule first by the Portuguese in 1505, second in 1658 by the Dutch and finally in 1796 by the British empires. A country that was never united was first united under the British rule in 1815. The British employed the ‘divide and rule’ policy in order to ensure that there would not be collective uprising against the British Empire within the country. Further under the British colonial rule the elite Tamil feudal class enjoyed the privileges such as better accessibility to education, jobs etc which was equally enjoyed by the elitist Sinhalese feudal class. This was also followed by an emergence of a capitalist class mainly located in Colombo, engaged in trade. Both Tamil and Sinhalese polity, which mainly comprised of these elitist groups during the final years of the colonial empire worked rigorously to achieve freedom for the country.  Finally in 1948 it was granted to them. But the British left the country in the hands of the majority Sinhalese creating a rift between not the general Tamil and Sinhalese populace but the elitist groups of the society comprised of both communities who in the years to come would take the country to one of the longest running civil wars in the world.

But ‘ let bygones be bygones’

I will not go into details of what happened between 1948 till 1983 here. The history records the war dating it back to the 1983 subsequent to the riots that erupted in Colombo taking large numbers of innocent Tamil lives in an event orchestrated mainly by the Sinhalese polity who was facing economic turbulent times affecting political stability.  Those who fled the country after the 1983 riots formed one of the strongest Diasporas in the world mainly located in Canada, Britain and India[1]. Between 1983 till 2001 the Tamil Diaspora in UK was able to openly finance the war that war carried out by the LTTE in Sri Lanka for a separate state[2]. It was only in 2001 the British government took measures to ban the LTTE as a terrorist outfit (The year 2001 marked the demise of many terrorist outfits around the globe after the 9/11 attacks on the center of the world’s capitalist empire). However between 1983-2000 the LTTE  carried out over 50 suicide bomb attacks in the Sri Lankan soil killing thousands with significant number of Tamil and Sinhalese political leaders including R. Premadasa in 1993, the country’s president at the time. Around the same period the LTTE also assassinated Rajiv Gandhi the former prime minister of India in 1991. But the organization continued to be openly financed in countries like Britain and Canada during this period. Lets not forget that Canada banned LTTE as a terrorist outfit only in 2006.

But ‘let bygones be bygones’

In May 2009 the Sri Lankan military struggle between the GoSL troops and the LTTE came to an end. This was achieved not only because the GoSL was strong enough to defeat the LTTE but because by the time confrontations started in May 2006 LTTE was financially paralyzed to finance a war in the advent of the post 9/11 bans that were imposed and the launch of the war against terror campaign. The GoSL at this juncture grabbed the opportunity to destroy the LTTE. In the process undoubtedly many innocent lives were lost.

Here one is confronted with the ultimate causal dilemma, whether it was the chicken or the egg that came first. Because it appears if it wasn’t for the financing that took place between the 1983- 2006 period the LTTE wouldn’t have been there to be defeated in the first place and then there wouldn’t have been a final stage of war to inquire into.

I have only one question; who actually were responsible for the conflict in Sri Lanka and its aggravation into a Civil War in the aftermath of 1983 riots? The Sinhalese state and the LTTE alone?

Should we let ‘bygones be bygones?’


[1] Guneratne, R (2003) Sri Lanka: Feeding the Tamil Tigers In Ballentine, K et al (eds) The Political Economy of Armed Conflict, London: Rienner. Pp 197-224

[2] ibid