Veto power for human rights, not against it!

The international community has witnessed two World Wars and a number of non international armed conflicts costing the lives of millions. From World War II through 1996, the number of people killed reached as many as 86 million in armed conflicts. Unfortunate as it may be, the 21st Century has also started with the international and non international armed conflicts in which civilians have been killed, tortured, raped whereas villages, towns, hospitals, schools, mosques, churches have been destroyed in many parts of the world. The grave war crime in Sri Lanka and the ongoing conflict in Syria are examples proving this fact.

International human rights law always has been the inspiration for the International Community. As Professor Kim Lane Scheppele noted in her 2011 paper, ‘Global Security Law and Challenge to Constitutionalism’: “In country after country, constitutional drafters simply copied directly into their fundamental law the provisions of the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights.”

This shows that countries trust and expect International Humanitarian Law to protect populations domestically and internationally. Responsibility lies with each individual State, whose primary duty is to protect its population. However, if national authorities are unable or unwilling to protect their citizens, then the responsibility shifts to the international community to use diplomatic, humanitarian and other methods to help protect human rights and the well-being of civilian populations.

When such methods appear insufficient, the United Nations may out of necessity decide to take action under the Charter of the United Nations, including enforcement action.

According to Article 24 (1) of the UN Charter, the UN Security Council (SC) has the “primary responsibility for the maintenance of international peace and security” and it acts on behalf of member states. The SC has the mandate to authorise military action to achieve the stated objective.

However, one of the greatest hurdles that must be overcome is found in the structure of the SC itself. The constant objection of the Five Permanent Members (United States, China, Russia, United Kingdom and France) of the SC against peacekeeping resolutions had impeded the SC from engaging in effective action to combat war crimes and acts of aggression.

This particular hitch is demonstrated in the veto against the Syria resolution which came a day after reports that Assad’s security forces in the city of Homs killed about 330 people in one of the bloodiest days of protest in the 11-month uprising. The exercise of veto power shows that there is no attempt to condemn these nternational crimes. War crimes are continuing and still being dealt with passivity. The resolution has gone under the drain and the Syrian leadership has received an undeserved clean bill of health.

As long as the disagreement within the Five Permanent Members on war crimes and crimes of aggression persists, the UN Security Council will never be able to act swiftly to deter these acts of aggression and protect the civilians. As a result, International humanitarian law will only reflect good intentions without action which is not enough.

Kofi Annan, in his report In Larger Freedom, urged the States to embrace the responsibility in protecting and peacekeeping. He stated that ‘investment in prevention, peacemaking, peacekeeping and peacebuilding can save millions of lives.

It has been suggested by the International Commission on Intervention and State Sovereignty in its report, “The Responsibility to Protect”, that the Permanent Five Members of the Security Council should agree not to apply their veto power, in matters where their vital state interests are not involved, to obstruct the passage of resolutions authorising military intervention for human protection purposes for which there is otherwise majority support.

This may well be the solution to the current predicament. Clearly, to subject humanitarian decisions to the veto power of the permanent members of the Security Council falls foul of its objectives to protect human rights as expected by the International Community at large.

US Supreme Court Justice Robert Jackson could not avoid developing a strong feeling for this basic truth when he famously stated in his Nuremberg Speech: “Does it take these men by surprise that murder is treated as a crime? … Under the law of all civilised peoples, it was a crime for one man with his bare knuckles to assault another. How did it come that multiplying this crime by a million, and adding fire arms to bare knuckles, made it a legally innocent act?”

Perhaps the Permanent Members of the Security Council should attempt to answer Justice Jackson’s question first before exercising their right to veto against persecuting crimes of aggression.

The writer is an Advocate and Solicitor


(2012-02-10/freemalaysiatoday)