The Security Council Veto in Syria: Imagining a Way Out of Deadlock

by Philippa Webb | Aug 12, 2021

Editor’s note: This post concludes the Articles of War Symposium on Beth Van Schaack’s book, Imagining Justice for Syria. The symposium offers a platform for the contributing experts to carry the conversation on justice and accountability in Syria forward.

In 2014, I published an article that asked whether the United Nations Security Council (UNSC) veto was a tool for deadlock or restraint. At the time, the Security Council was in a stalemate over authorizing military action in response to the crises in Syria, Crimea, and Gaza. But I was, on balance, optimistic that the veto could be perceived as a neutral power that can be managed on a case-by-case basis to enhance international peace and security through its use or non-use by the Security Council. In short, I considered that the veto could make the Security Council more accountable.

Seven years later—with political developments in the UNSC itself and, perhaps more importantly, within governments of influential nations—I am less optimistic. The stalemate created by the veto has not been in the service of peace. I agree with Beth Van Schaack, in her book Imagining Justice in Syria, that rather than effectuating its mandate to maintain international peace and security, “the Council has been largely paralyzed by the re-emergence of great power rivalries” (p 8).

In this contribution I look at recent trends in the use of the veto. Given the role the veto has had in obstructing the maintenance of peace and security, I consider whether the Security Council has a legal obligation to act and whether the Council or the individual member State can be held accountable in any way. Finally, I consider whether the Security Council deadlock in the case of Syria may inspire reform of the Council. Despite the dim outlook on each of these possibilities, I conclude there is still some cause for optimism.

Trends in the Use of the Veto

The veto is not just a public, negative vote in the chambers of the Security Council. It also includes the threatened use of the veto (sometimes called the “pocket veto”). The pocket veto is largely hidden from the statistics but has a very real impact on the UNSC’s ability to act. This type of veto may enable one of the five permanent members of the Security Council—collectively known as the P5—to keep an issue off the Council agenda or to soften the language of a resolution by the mere threat of veto power. For example, the United States used the pocket veto to water down Resolution 2467 on Sexual Violence in Armed Conflict in 2019 by threatening a veto if the text spoke of reproductive rights.

Article 27 of the Charter does not in fact use the word “veto.” Instead, paragraph 3 provides that:

Decisions of the Security Council on all other [non-procedural] matters shall be made by an affirmative vote of nine members including the concurring votes of the permanent members .…

Since 1946, the “non-concurring vote,” or veto, has been exercised by members of the P5 over two hundred times. Alternatively, the ten elected members (E10) of the Security Council could exercise a form of “veto.” Because a resolution needs nine affirmative votes to pass, even when the P5 are in agreement, at least four members of the E10 must support a resolution for it to pass. Theoretically, therefore, the E10 could block joint action by the P5 if they so choose, though this is yet to happen in practice.

As for the P5, France and the UK have not cast a veto since 23 December 1989 (S/21048) when they prevented condemnation of the U.S. invasion of Panama. The United States has resorted to the veto around 20 times since the end of the Cold War. China, which has historically used the veto the least, has become increasingly active on this front and cast 16 of its 19 vetoes since 1997. Russia cast about 30 vetoes in this period.

As Van Schaack rightly notes, relations within the UNSC have become “increasingly acrimonious” since the Syrian conflict erupted. She explains there are “two camps occupying very little common ground”: the P2 (Russia and China) and the P3 (U.S., UK, and France) (p 55). In the period September 2019 to July 2020, Russia’s and China’s double vetoes have all pertained to Syria. In the words of Van Schaack, “As a result of this paralysis, coercive measures of any consequence against Assad or senior members of his regime have been foreclosed” (p 57).

A Potential Legal Obligation on the Security Council to Act?

Trends in the use of the veto and the paralysis as regards Syria have raised the question of whether the Security Council has a duty to act. Three potential sources may legally obligate the Council to act in situations such as Syria.

First, the 1948 Convention on the Prevention and Punishment of Genocide obligates States to prevent genocide. In its 2007 Bosnia v Serbia Judgment, the International Court of Justice stated this obligation applies to any State with the “capacity to influence effectively the action of persons likely to commit, or already committing, genocide.” That “capacity to influence” is assessed by reference to two factors: the geographical proximity of the State to the situation and the strength of the political, economic, and other links between the authorities of that State and the potential perpetrators of the genocide.

A State under the obligation to prevent genocide must employ means reasonably available to it, which for the P5 may include refraining from vetoing the authorization of military action. The obligation is binding and without exception. It is irrelevant whether a State claims, or even proves, that it could not have prevented genocide even if it had employed all means reasonably at its disposal. This is because even though the efforts of a single State may be insufficient to prevent genocide, the combined efforts of several States could succeed. The obligation is triggered by knowledge of a “serious risk” of genocide occurring, which may not cover all situations of mass atrocity.

Second, the Responsibility to Protect (R2P) has been invoked as a source of an obligation to act. However, on closer examination—as agreed in the 2005 World Summit Outcome Document—R2P imposes no positive obligation on the Security Council to act. If a State manifestly fails to protect its population from genocide, war crimes, crimes against humanity, or ethnic cleansing, the document states that the “international community” is “prepared to take collective action in a timely and decisive manner through the Security Council, in accordance with the Charter, including Chapter VII, on a case-by-case basis and in cooperation with relevant regional organizations as appropriate” (A/RES/60/1 (2005) para 139). As Van Schaack carefully sets out, the invocation of R2P to justify a robust UNSC response in Libya in 2011 “gave Russia a set of arguments it could deploy to appeal to States concerned about Security Council overreach and distrustful of the [R2P] doctrine” (p 59). R2P has therefore only made “cameo appearances” in UNSC statements on Syria (pp 68-69).

Third, the Draft Articles on the Responsibility of International Organizations (DARIO) is a potential source. It may be said that the exercise of the veto and the deadlock in the face of relentless attacks on civilians and civilian infrastructure is “aiding the commission of an internationally wrongful act” under Article 14 of DARIO:

An international organization which aids or assists a State or another international organization in the commission of an internationally wrongful act by the State or the latter organization is internationally responsible for doing so if:

(a) the organization does so with knowledge of the circumstances of the internationally wrongful act; and

(b) the act would be internationally wrongful if committed by that organization.

However, it would be very difficult to characterize failure to pass resolutions as “aid or assistance,” let alone a “significant” contribution to the commission of the act. Even if this could be done, it would be almost impossible to prove that the UNSC had “intended, by the aid or assistance given, to facilitate the occurrence of the wrongful conduct and the internationally wrongful conduct is actually committed by the aided or assisted State.” Moreover, if a situation can be shown to be a serious breach of a jus cogens norm, Article 42 of DARIO provides for particular action by the Security Council:

1. States and international organizations shall cooperate to bring to an end through lawful means any serious breach within the meaning of article 41 [jus cogens norms].

2. No State or international organization shall recognize as lawful a situation created by a serious breach within the meaning of article 41, nor render aid or assistance in maintaining that situation.

The phrase “shall cooperate to bring to an end” could be interpreted as an obligation on the UNSC to act by passing relevant resolutions to maintain peace and security. But its ability to “cooperate” has to take into account its voting procedure and in-built balance of power. The duty to cooperate is an obligation of conduct, not result. It is not clear that the language “to bring to an end” changes that fact. What has to be shown is best efforts within the existing legal framework.

John Heieck has argued that we need to look at the obligations of individual P5 members, not only the obligations of the UNSC as an organ of the UN. He states that Russia and China have breached their duty to prevent war crimes (which he calls a jus cogens norm) by exercising the veto in Syria. But is there a duty to prevent war crimes? The duty to prevent does not appear in the Geneva Conventions. Even if there is a duty, what is the standard? How can it be shown that the exercise of the veto is causally linked to violations of international law on the ground?

In the absence of a clear legal obligation on the UNSC to act—and in the absence of its action in Syria—certain States have been taking their own measures. In September 2020, The Netherlands announced its decision to hold Syria responsible under international law for gross human rights violations and torture in particular. Its envisaged route (should bilateral negotiations fail) is the International Court of Justice, not the UNSC, but the Dutch action is no doubt motivated by its frustration with the deadlock in the UNSC. In March 2021, Canada announced that it has requested formal negotiations, under the Convention Against Torture, “to hold Syria accountable for the countless human rights violations it has inflicted on the Syrian people since 2011.”

Reform of the Security Council: Formal and Informal Approaches

As Van Schaack observes, the Syria deadlock “has helped galvanize the age-old U.N. reform movement” (p 112).

Prospects for change through formal amendment to the Charter are vanishingly remote. The UN Charter has been amended only once with respect to the Security Council: on 17 December 1963 it was amended to increase the number of non-permanent members from 6 to 10.

Formal amendment to alter the use of the veto would—in accordance with Article 108—require two-thirds of the General Assembly to agree and necessitate ratification of the amendment by two-thirds of Member States in accordance with their respective constitutional processes, including all of the P5. It would probably be easier to dissolve the UN than amend the veto power under the Charter.

Informal change in UNSC practice has been achieved in the past. Article 27(3) of the Charter was redefined through practice to mean that voluntary abstention from a resolution by a permanent member did not constitute a bar to the adoption of the resolution. This interpretation was later ratified by the International Court of Justice in its Advisory Opinion on the Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970).

The Council’s powers have expanded through informal means, such as peacekeeping, the creation of ad hoc criminal tribunals, and the targeting of non-State actors and individuals through detailed sanctions regimes. Informal change has also come about through reform of working methods and procedure, which has led to more open meetings, expert meetings, and the involvement of “groups of friends.”

Following the 2005 World Summit, the Small 5 (S5) (Costa Rica, Jordan, Liechtenstein, Singapore, and Switzerland) called on the P5 “in their individual capacities, to pledge themselves to refrain from the use of the veto in cases of genocide and large-scale human rights abuses.” The S5 disbanded in 2012, but its position on the veto was taken up in 2013 by a group of 27 States called Accountability, Coherence and Transparency (ACT). The ACT created a code of conduct that urges the permanent members voluntarily to agree to refrain from using their veto in situations involving mass atrocity crimes. Any member of the Council is invited to sign onto the code, as is any other State that may, at some point, become a member of the Council. In 2019, there were 119 member States supporting the Code of Conduct, including two P5 Members—France and the UK. Van Schaack notes that some States have invoked the Code in their explanation of vote in connection with the Syria crisis (p 114, citing Uruguay).

However, there is a savings clause that the code of conduct would “exclude cases where vital national interests” of a P5 member were at stake. This would render the code inapplicable to many situations.

Conclusion

The Syria crisis has demonstrated that the UNSC veto has become a tool for political deadlock. In principle, the veto can help prevent a rush to action and provide a space for discussion and reflection. But in reality, it is being used to advance self-interest, protect perpetrators of atrocities unfolding in real time, and to water down UNSC action for domestic political gain.

Despite this disappointing reality, Van Schaack’s masterful analysis gives me some cause for optimism. She observes that the UNSC has agreed on a strong counter-terrorism platform; produced important statements on “the illegality of siege warfare, the use of starvation as a weapon of law, the neutrality of medical personnel and journalists, and the deployment of indiscriminate weapons”; mandated the provision of humanitarian assistance in the absence of territorial State consent; and confirmed the use of chemical weapons triggers Chapter VII (p 117). Even if concrete follow-up action by the UNSC has been hampered by the veto, some progress has been made, and as discussed in Imagining Justice for Syria, there has been an “inventive upwelling of new institutions dedicated to promoting accountability” (p 117).

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Philippa Webb is Professor of Public International Law at King’s College London.

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