Tag Archive | "UN Security Council"

298 Deaths with a Single Missile

m17

MH17 Route

On July 17, 2014 Malaysia Airlines Flight MH17 was shot out the sky at 33,000 feet above eastern Ukraine killing all 298 people on board. The cause of the 298 deaths can be attributed to the fighting between Ukraine and pro-Russian rebels during the Crimean crisis. However, it has not been confirmed whether the Ukrainian military or the pro-Russian rebels shot the SA-11 missile at the airline and both sides have denied responsibility for the deaths. Although there is evidence pointing to the rebels being the ones to have fired the missile, which may have been provided to the rebels by Russia, the crash site was initially closed off to the international investigators by the rebels. Therefore, there remains speculation and controversy as to what actually happened to flight MH17.

The lack of certainty of who caused this horrific tragedy has led Malaysia and the Netherlands to propose the creation of an international tribunal to investigate and prosecute those suspected of causing the crash. Malaysia and the Netherlands are the primary countries backing the resolution as the airline was Malaysian and the majority of passengers who died were Dutch. The vote to create the tribunal is set to go before the United Nations Security Council on July 29, 2015. While all want answers to what happened to flight MH17, there may be an issue as to whether an international tribunal could ever be created. The issue comes with the veto power that each permanent member of the Security Council has, as the creation of an international tribunal must be decided through the Security Council and not the General Assembly.  The power to create a criminal tribunal, which was exercised with the creation of the Criminal Tribunals of the former Yugoslavia and Rwanda, comes from Chapter VII of the United Nations Charter. Article 39 of Chapter VII gives the Security Council the power to take measures they deem fit to maintain and restore international peace and security. Therefore, in order to have an international tribunal for flight MH17, all five permanent members of the Security Council must vote yes for its creation. The issue is whether Russia will exercise its veto when the resolution comes to the table.

The positives of a creation of an international tribunal for flight MH17 far outweigh the negatives. A major negative is that an international tribunal will take years to investigate and prosecute, as seen with the International Criminal Tribunal for the former Yugoslavia. The real downside to the creation of a tribunal is that it takes away sovereign power from Ukraine to have the case heard nationally. Yet, if Ukraine were to try the case internally, Ukraine would not have power over the pro-Russian rebels as the Crimea is annexed nor would Ukraine have power over Russia if it were found that Russia supplied the weapon that shot down MH17. Therefore, the best option would be an international tribunal.

An international tribunal would be an effective way of revealing what actually happened and what specifically took down the flight. Since there is doubt as to what took place on July 17th, which can be somewhat attributed to the fact the pro-Russian rebels closing off the crash site for a few days after the crash, and denial by all parties involved, a tribunal would allow the international community to have peace of mind in knowing that the truth was out in the open.  The tribunal would also provide closure to the families of the victims because they would finally know all the details, while painful, of how and why they lost their loved ones.

A tribunal would give the families of the victims a chance to be heard. By allowing the families to testify, the case will be humanized. While emotion should not sway a judge in his or her ruling, the humanization would make the deaths no longer just a number but 298 individual people who were wrongly killed. The deaths of each victim should not be forgotten.

A tribunal may also have some deterrent effect and may dissuade others from committing similar acts during times of war and conflict. States need to know that while they are entitled to sovereignty, they must be careful with internal conflicts and the repercussions outside of the state. The tribunal may also have an effect on ensuring that airways are restricted over states that are experiencing internal conflicts. If the airways had been restricted over Ukraine last summer, this tragedy would not have occurred. Now while the restriction of airspace will have economic and travel consequences, which may make many states and international corporations upset, it will save lives.

Whether or not a tribunal is established, the facts surrounding the downing of flight MH17 and the 298 deaths need to be heard. The one missile that took 298 innocent lives needs to be answered for.

Teresa Milligan is a 3L law student at the University of Denver Sturm College of Law and the Editor-in-Chief for the Denver Journal of International Law and Policy.

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Critical Analysis: Can We Abolish the United Nations Security Council Veto? Thoughts in Honor of the +100,000 People Dead So Far In Syria

In a previous article on this blog, I discussed a tradition particular to this school –that of Myres McDougal – a tradition I am proud to be a part of. Myres McDougal advocated for law to be a subtle mixture of positive rule and moral aspiration. He emphasized that “the global public order of human dignity” should undergird any legal system.

Thus, since my turn is up again to put some of my thoughts into words, I feel obliged to stir the pot a bit (who will read another article on UN Security Council reform and the veto?) and urge us to take the opportunity to circumvent, do away with, ignore what may be positive laws that protect the UNSC’s structure and veto, and to answer the call of moral aspiration.

The Michigan Stadium holds 100,000+ people. Image Source: Wikipedia

The Michigan Stadium holds 100,000+ people, a conservative estimate of those lost in Syria. Image Source: Wikipedia

Moral aspiration or moral obligation?

The image to the right represents 100,000 people, a conservative estimate of the number of people who have died in Syria to date. Each of them is a parent, a child, a brother or sister. I recognize that the current status of the debate on what to do about Syria is quite different from when I first became interested in exploring UNSC reform.  Reform first came to mind when China and Russia cast a double veto that blocked the Western and Arab League-backed resolution condemning Syria for its brutal crackdown on citizen protests and calling for regime change. While calls are being made to circumvent the UNSC, perhaps by invoking the Responsibility to Protect, the international community does not yet seem comfortable with the legitimacy of the collective use of force for humanitarian purposes without UNSC approval.  Therefore, the UNSC veto is still a critical and relevant topic.

Moral aspiration should compel ordinary global citizens to pressure the international community to do what it has to in order to respond effectively to the humanitarian crisis in Syria, even if it means flexing, circumventing, or ignoring certain laws that lead to a UNSC stalemate. Too often, we resort to a pragmatic approach because we think that the Permanent 5 will not give up their power without bringing down the entire system, or that perhaps it will be impossible to get them to do so. Wouters and Ruys urge that one cannot afford to be overly pragmatic on this point. What is at stake is the very survival, legitimacy and efficiency of the collective security system in the 21st century. I think the individual lives at stake are just as important. Therefore at least a substantive debate on the veto power is needed.

However, one such argument is that the UNSC already has a moral obligation to do better. This obligation, put forward by the four sponsoring States when the UNSC was created 1945, was based on the need to guarantee peaceful relations among the world’s main powers –which needed the assurance of their support to make it sufficiently credible and vigorous. This goal, the Allied Powers argued, could only be achieved by introducing a mechanism to safeguard the vital national interests of the most important UN Member States. The reverse side was the responsibility of these privileged members to maintain international peace and security through the United Nations.[1]

The Veto As It Is Used Today

The Council has had successes, but its record is more distinguished by its repeated failure to reach agreement on how to adequately deal with threats to peace and security. A principal reason for this has been the refusal of one or another of the Permanent Members to set aside their own interests.[2] Additionally, the veto is often “used in order to protect countries with which [permanent members] have close cultural, economic and/or political ties,” most notoriously in situations of mass genocidal killings.[3]

Since the beginning of its work, there have been 265 vetoes cast in the Security Council. The U.S.S.R./Russia Federation has cast 126, the United States 82, the United Kingdom 32, France 18, and China 7. The vetoes cast by Russia and the United States were cast largely in the period of the Cold War, and by each of them in defense of their client states. For example, Russia would veto on behalf of Eastern European clients and the United States would often veto for Israel.[4]

Thus the great privilege and great responsibility given to the Permanent Five has come to be appropriated by them as a right. The P-5 have behaved and continue to behave in ways that suggest that they see the power that they hold as rightful and free, to be exercised by them in whatever manner they choose. The notion that this power was given to them, over strenuous objections, because of the good that it might do in preserving the peace, has been substantially replaced by the idea that they have a power that they can use to protect and extend their own individual national interests.[5]

The Veto As It Was Intended to Be Used

The veto power was intended as a means of preserving unanimity between the Great Powers at the time, and far from being a menace to the small powers, it was their essential safeguard. Without that unanimity, all countries, large and small, would fall victims to the establishment of gigantic rival blocs, and in fact, the whole system would be threatened by such a situation.[6] There was no way the Great Powers would agree to take on responsibility for global peace and security without some guarantee that they wouldn’t be ruined at some point in the future. Thus, included in the veto was the ability to use it to protect “matters of vital importance to a permanent member.”[7]

This was not an easily settled issue. There was much debate and the entire world was very nervous about giving the P-5 such an extraordinary power. Efforts to influence Security Council permanent members’ voting behavior began within months of the Security Council’s first meeting. To convey the message that the veto ought to be used sparingly, opponents of the veto sought to instill in the permanent members a sense that exercise of the veto power was a profound act of disruption that had a moral dimension.[8] At that time, then Australian delegate to the Security Council, Herbert Evatt, stated before the Council that the veto “puts a special responsibility upon those members of the Council whose single vote may veto the action of the rest,” and he implored the permanent members to give “very serious consideration” before they chose to exercise their veto power.[9] Evatt was seeking to challenge any understanding of the veto as a morally neutral act; he aimed to present it instead as a destructive power that imposed on its holder a responsibility to the rest of the world. To Evatt, the exercise of the veto constituted a moral act that should require deliberation and should risk consequences. Forcing the vetoing state to bear the harsh light of publicity was part of his campaign against it. He was part of the efforts that ultimately lead UNSC voting results to be publicly available.[10]

What are ways we can remind the UNSC of this moral obligation or enforce it otherwise?

Evatt’s efforts suggest one strategy for counteracting the veto, which may have been diluted during the information age – public shaming. In her article “Shame in the Security Council,” Saira Mohamed unwraps shame as a powerful tool that has been used in situations like these in the past.[11] In fact, our very own Myres McDougal was active on this issue at the time as well. Myres argued that in order to veto a resolution, a state must “risk the censure of world opinion.”[12]  He did not want an absence from the UNSC to be counted as an abstention. A permanent member should not be allowed to obstruct global action simply by hiding; the power to defeat an effort at international cooperation should “be exercised in a formal, open manner, for all the world to see and hear.” Implicit in the argument was the notion that vetoing a measure should not be too easy, too casual, lest a permanent member too freely use its power in violation of the will of the rest of the world.

Should the UN Security Council veto be abolished?

Several options have been proposed, among them the idea that the UN Security Council veto should be abolished.

This argument can be brought into the modern era by creating some legal requirement that states explain their use of the veto, and some legal standard (clear and convincing evidence) that they must meet in convincing the international community that their decision was based on reasoned concern for international peace and security. Part of this might be defining when a matter is a “vital national interest.”[13] Vetoing U.N. action against a state that is clearly in violation of international law and practice because that state is an ally should not be acceptable.

McDougal, however, went one step beyond Evatt.[14] He expressly asserted that a permanent member should be given the right of veto only if it was subject to the possibility of condemnation for exercising that right. If a state was going to veto a resolution, it should have to pay a price. This brings up another idea –why can’t we create some kind of adjudicatory body[15] that can hear claims that a state vetoed for reasons other than ultimate concern for international peace and security? Could the ICJ hear such claims?[16] Then we could create some form of punishment for states that do not uphold their highest of moral obligations.

One author suggests that the General Assembly should suggest that the Permanent Members be allowed to declare that they are casting a negative vote, without having such vote constitute a veto.[17] Professor Michael J. Kelly suggests a procedural veto (although this would be in conjunction with additional Permanent Member seats for underrepresented countries –another important issue). The procedural veto is one by which the permanent members for Latin America, Africa and Asia may veto an item just as one of the other permanent members may do with its substantive veto. However, when the procedural veto is cast, the matter is not automatically dead. Instead, it is referred to a special session of the General Assembly for consideration. A majority vote in the Assembly after brief debate, either for or against the matter without possibility of amendment, will then determine the matter’s future.

Proposals have been offered that limit the situations in which the veto can be used. One frequently recurring proposal consists in waiving the veto power in all proceedings arising under Chapter VI of the UN Charter on the peaceful settlement of disputes, or Chapter VII.[18] A variation on this idea is to establish a mechanism allowing for a veto to be overruled in the advent of genocide, ethnic cleansing, or large-scale massacres of civilians.[19]

A radical idea….

A majority of UN Member States support the abolition of the veto. Such a reform is being promoted by the African Union, the Arab League, the Group of Non- Aligned Nations, but also by numerous western countries. Apart from the P- 5 hardly any State explicitly supports the existing veto power (Poland, Australia, and Singapore figuring among the rare exceptions).[20]

A radical idea (that I like), suggested by Ambassador Richard Butler, is that the United States lead the way in modernization by declaring to the world that it will give up its veto. The United States could then seek to establish a two-thirds majority vote for the passage of any substantive decisions in the UNSC. The United States would then call upon all the P-5 members to do the same and make the fulfillment of its offer conditional upon the other four following suit.[21] Ambassador Butler calls this an act of leadership that would be “profound, imaginative, and graceful.” Quite in keeping with the tradition of Myres McDougal!

Call for further thoughts

I recognize that abolishing the veto is not the only answer to responding to the humanitarian crisis in Syria, nor is it necessarily the most effective one. I only wanted to take the time to find out what was being said about abolishing the veto for this post. I would love to hear any alternative suggestions you may have –as long as they are revolutionary! Of course, these are only my initial investigations. I welcome and invite comments, criticisms, and suggestions about abolishing or reforming the veto. Thank you!

For updates on UN Reform efforts, see http://www.centerforunreform.org/.

 

Jaime Menegus is a 3L and a Staff Editor for the Denver Journal of International Law and Policy

 


[1] Jan Wouters & Tom Ruys, Security Council Reform: A New Veto for a New Century? 29 (Academia Press 2005), available at http://www.egmontinstitute.be/paperegm/ep9.pdf.

[2] Richard Butler AC, Reform of the United Nations Security Council, 1 Penn St. J.L. & Int’l Aff. 23, 34 (2012), available at http://elibrary.law.psu.edu/jlia/vol1/iss1/2/.

[3] Brian Cox, United Nations Security Council Reform: Collected Proposals and Possible Consequences, 6 S.C.J. Int’l L. & Bus. 89, 119-20 (2009), available at http://scholarcommons.sc.edu/cgi/viewcontent.cgi?article=1035&context=scjilb.

[4] Butler, supra note 2, at 31.

[5] Id.

[6] Id. at 29.

[7] Cox, supra note 3, at 121.

[8] Saira Mohamed, Shame in the Security Council, 90 Wash. U. L. Rev. 1191, 1214-15 (2013), available at http://digitalcommons.law.wustl.edu/cgi/viewcontent.cgi?article=6014&context=lawreview.

[9] Id. at 1216.

[10] Id.

[11] Id.

[12] Myres S. McDougal & Richard N. Gardner, The Veto and the Charter: An Interpretation for Survival, 60 Yale L.J. 258, 286 (1951), available at http://digitalcommons.law.yale.edu/cgi/viewcontent.cgi?article=3481&context=fss_papers.

[13] Butler, supra note 2, at 34; Wouters & Ruys, supra note 1, at 33.

[14] Mohamed, supra note 8, at 1218.

[15] Wouters & Ruys, supra note 1, at 37.

[16] Kamrul Hossain, The Challenge and Prospect of Security Council Reform, 7 Regent J. Int’l L. 299, 300 (2010).

[17] Amber Fitzgerald , Security Council Reform: Creating a More Representative Body of the Entire U.N.

Membership, 12 Pace Int’l L. Rev. 319, 353 (200), available at http://digitalcommons.pace.edu/cgi/viewcontent.cgi?article=1231&context=pilr.

[18] Wouters & Ruys, supra note 1, at 25.

[19] Id. at 37.

[20] Id. at 25.

[21] Butler, supra note 2, at 39.

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