LEGAL ISSUES SURROUNDING VETO USE AND AGGRESSION.

• Author: Trahan, Jennifer
• Position: Russia, Ukraine

TABLE OF CONTENTS TABLE OF CONTENTS I. INTRODUCTION II. AGGRESSION AND JUS COGENS A. Jus Cogens--the Highest Level of International Law B. The Prohibition of Aggression as Jus Cogens C. The Content of the Peremptory Norm D. The Obligation to Respect Jus Cogens Carries Over to the Security Council E. The Obligation to Respect Jus Cogens also Carries over to the Permanent Members F. A Security Council Resolution in Conflict with Jus Cogens Would Be Void G. Application to Russia's Veto H. Russia's Veto Is at Odds with the Obligations Reflected in the ILC's Articles of Responsibility of States for Internationally Wrongful Acts III. AGGRESSION AND THE PURPOSES AND PRINCIPLES OF THE UNITED NATIONS A. The Security Council's Powers Are Limited by the UN Charter, Including the Requirement of Acting in Accordance with the UN's Purposes and Principles B. The Permanent Members' Powers Are Limited by the UN Charter, Including the Requirement of Acting in Accordance with the UN's Purposes and Principles C. The UN's Purposes and Principles D. The Obligation to Adhere to the UN's Purposes Principles Pertains to Veto Use E. Application of the UN's Purposes and Principles to Russia's Veto F. Operationalizing These Legal Obligations IV. CONCLUSION I. INTRODUCTION

On February 24, 2022, in the largest mobilization of troops in Europe since World War II, Russia launched a full-scale invasion of the neighboring state of Ukraine. (1) Russia claimed to be demilitarizing and de-Nazifying Ukraine, protecting the people against genocide, and acting in self-defense. (2) The International Court of Justice has since provisionally ruled "that Ukraine has a plausible right not to be subjected to military operations by the Russian Federation for the purpose of preventing and punishing an alleged genocide in the territory of Ukraine" and issued a provisional measures order for Russia to "immediately suspend the military operations...." (3) Russia's intervention--which arguably began in 2014 with the attempted annexation of Crimea and installation of Russian separatist-backed forces in Eastern Ukraine (4)--appears, on its face, to constitute a clear violation of Article 2(4) of the UN Charter. (5) Indeed, in a resolution cosponsored by ninety-four UN Member States, the UN General Assembly "[d]eplore[d] in the strongest terms the aggression by the Russian Federation against Ukraine [which it declared to be] in violation of Article 2(4) of the Charter." (6)

Yet, despite the UN Charter violation--or at least apparent Charter violation (7)--the Russian Federation, using its veto power under Article 27(3), was able, on February 25, 2022, to block condemnation of its own aggression before the UN Security Council (8)--the body charged under the UN Charter with "primary responsibility for the maintenance of international peace and security." (9) Moreover, because of Russia's veto power, it is unlikely that the Security Council will play any significant role related to the situation in Ukraine--in implementing a sanctions regime, taking measures to try to stop or end the commission of atrocity crimes, (10) referring the situation to the International Criminal Court (which referral could include the crime of aggression), (11) or taking other measures to try to resolve the situation. (12) Thus, the Security Council will be largely paralyzed from carrying out its core mandate because of the veto power of a permanent member. (13) This is similar to the paralysis that resulted when the Security Council was repeatedly unable to act due to vetoes or veto threats with respect to the crimes occurring in Syria, (14) in Darfur, Sudan, (15) and numerous other situations. (16)

All of this begs the question of whether international law has anything to say about this. Can a permanent member of the Security Council, violating the core norm against the aggressive use of force (Article 2(4) of the UN Charter), (17) by using a single provision of the Charter (Article 27(3)), (18) block its own condemnation? Specifically, why should the veto, provided for in one provision of the Charter, Article 27(3), (19) be considered "above" the core norm obligations in article 2(4) (20)--not to mention other parts of the Charter and the requirements of international law, including respect for jus cogensl Is it logical that a permanent member still be allowed to reap all the benefits of permanent membership, even when violating the UN Charter, violating the "Purposes and Principles" of the UN, (21) violating international law, and causing the Security Council to be unable to carry out its core mandate? Is this not an "abuse of right" (22)--and the accompanying responsibility--that comes with veto power? (23) This article explores these tensions.

In my book, Existing Legal Limits to Security Council Veto Power in the Face of Atrocity Crimes, (24) I argue that there are certain in-built limitations to veto use in the face of genocide, crimes against humanity, and war crimes--i.e., "atrocity crimes." (25) Namely, the veto should not be used in a way that: (1) is inconsistent with, or facilitates violations of, jus cogens; (2) is contrary to the UN's Purposes and Principles; or (3) is inconsistent with treaty obligations, such as those found in the Genocide Convention (26) and 1949 Geneva Conventions. (27) Basically, my thesis is as follows: one would not expect the Security Council to endorse the commission of genocide in a resolution--indeed, the resulting resolution would likely be void; (28) thus, if there is ongoing genocide, and a plan to try to stop it is vetoed, why is that considered permissible, when the result is to sanction the continued perpetration of genocide? If the Security Council is unable to endorse genocide through its resolutions, (29) why is an individual permanent member permitted to do so through veto use? That, I argue, is an untenable reading of the UN Charter and obligations of international law as they have evolved over time, i.e., as they presently exist. (30) I make essentially the same arguments about vetoes cast in the face of crimes against humanity and war crimes, where the vetoing permanent member is essentially giving a green light to, and thereby helping to enable, the continuing perpetration of those crimes. (31)

This article examines the extent to which the first two arguments--about veto use that (1) is inconsistent with, or facilitates violations of, jus cogens, or (2) is contrary to the UN's Purposes and Principles--apply when there is ongoing aggression, i.e., use of force contrary to the UN Charter. The article does not examine the third level of obligation--aggression measured against treaty obligations--as, here, the treaty being breached by aggressive use of force is the UN Charter. Thus, the author's second argument (based on the UN Charter), and the third argument (based on treaty obligations) merge regarding aggression.

The article takes as a starting assumption that Russia has, at least in its 2022 invasion, if not already in 2014, (32) committed an act of aggression or use of force that appears to violate Article 2(4) of the UN Charter--i.e., a prima facie case exists. Of course, if there were to be litigation over state responsibility or a criminal case for the crime of aggression, (33) the legality or illegality of Russia's actions--and those of individual civilian and military leaders responsible for them (34)--would need to be adjudicated. (35) Thus, the author claims only that Russia's actions appear to violate jus cogens and appear to violate the UN Charter.

2. AGGRESSION AND JUS COGENS

   This first section explores the tension between veto use and a violation of a peremptory norm of international law protected at the level of jus cogens. Specifically, it examines veto use that appears to further or assist a jus cogens violation--i.e., violation of a peremptory norm of international law--by allowing continuation of the status quo where the jus cogens violation is occurring. This analysis is applied to Russia's veto in the face of its own apparent violation of a peremptory norm of international law, the prohibition of aggression, committed (36) through its invasion of Ukraine.

   1. Jus Cogens--the Highest Level of International Law

      According to the Vienna Convention on the Law of Treaties, (37) "a peremptory norm of general international law is a norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character." (38) Sir Gerald Fitzmaurice, the Special Rapporteur of the International Law Commission on the Law of Treaties, (39) explains jus cogens as follows: "There are certain forms of illegal action that can never be justified .... These are acts which are not merely illegal, but malum in se, [namely] rules in the nature of jus cogens--that is to say obligations of an absolute character, compliance with which is not dependent on corresponding compliance by others, but is requisite in all circumstances ..." (40) Professor Alfred Verdross, a member of the ILC writing in 1966, (41) articulated the concept this way:

      [I]n the field of general international law there are rules having the character of jus cogens. The criterion for these rules consists in the fact that they do not exist to satisfy the needs of the individual states but the higher interest of the whole international community. Hence these rules are absolute. (42)

      The hierarchical nature of international law, with jus cogens or peremptory norms at the apex, is explained as follows:

      Peremptory norms of international law or norms of jus cogens have a superior hierarchy in relation to other rules. This classification is reflected in the text of Article 53 of the [VCLT] ..., according to which a treaty is void if it conflicts with a peremptory norm of international law. (43) "Rules contrary to the...