Contribution de Patrick STEWART

Transcription

1 Colloque international «L encadrement de l'usage du veto au Conseil de Sécurité de l'onu en cas d atrocités de masse» Regulating the Use of Veto at the UN Security Council in Case of Mass Atrocities Contribution de Patrick STEWART Paris, 21 Janvier 2015 Organisé par l Ecole des Affaires internationales de Sciences Po (PSIA) et le Centre d analyse, de prévision et de stratégie du Ministère des Affaires étrangères et du Développement international (CAPS) The copyright of this paper remains the property of its author. No part of the content may be reproduced,

2 Limiting the Veto in Cases of Mass Atrocities: Is the Proposed Code of Conduct Workable? It s a great honor to participate in this colloquium. I d like to express my thanks to Justin Vaisse and Ghassan Salame for their gracious invitation. I d like to offer some thoughts, from a U.S. perspective though to be clear not as a representative of the US government--on the proposal that the UNSC adopt a responsibility not to veto norm in situations of mass atrocities. I must say that my first reaction to President Hollande s proposal was skepticism. While it was laudable and understandable, given frustrations with the failure of Security Council action, it struck me as utopian. It seemed to rely too much on the good will of great powers and their willingness to exercise uncharacteristic selfrestraint. Moreover, the proposal seemed riddled with potential problems such as its triggering mechanism and potential loopholes such as the national interest exception. These left me wondering whether the proposed code of conduct would actually create a situation any different than the terrain on which we find ourselves today. Would it not be better to devote our energies, I thought, to actually strengthening the tools we need for the 3 pillars of R2P, including building the capacities of vulnerable states? Upon mature reflection, however, I believe there is merit in having a public debate and pursuing this concept as far as possible, for reasons that are as much moral and normative as pragmatic. So I will try not to be, as we say in the US, the skunk at the garden party. I ll begin my remarks on a skeptical note, focusing on doubts that this principle can be made operational, before closing on a slightly more optimistic note. The move to limit the use of the veto in R2P situations is understandable. There is growing frustration, particularly in the wake of the Syria, at the clear failure of a divided Security Council to act to prevent or end atrocities, including four instances of the double-veto by Russia and China to prevent more forceful action. That being said, the proposal contains conceptual ambiguities and raises practical dilemmas, creating room for doubt about whether such a system of self-restraint could be workable or, indeed, whether it would create a situation any different from what obtains today. As the last two panels suggested, these quandaries need to be addressed if we are going to move forward with implementing a new norm. Prospects for RN2V will of course depend above all on the attitudes of the P5 toward the veto and its potential limits. So where do these countries stand? What s the lay of the land? France is of course the main champion of this idea. The UK, while expressing support for France s aims, has not yet explicitly endorsed it. The copyright of this paper remains the property of its author. No part of the content may be reproduced, 2

3 Russia is adamantly exposed to any restrictions on the veto China has similarly declared its opposition to such limits. As for the United States, it has made no direct public comments for or against. My understanding is that there is ongoing, internal debate within the Obama administration about the merits of the proposal. On the one hand, there are powerful voices within the administration determined to advance the cause of atrocities prevention. They include first and foremost US Ambassador to the United Nations Samantha Power, who has dedicated much of her career to this topic. But they also include the President himself, who signed a presidential determination declaring the prevention of atrocities to be a core national interest of the United States, and who created an Atrocities Prevention Board (APB) intended to help the United States respond promptly to head off atrocity crimes. The United States has repeatedly bemoaned the failure of the Council to stop the killings in Syria, including at the UN high-level Meeting on Mass Atrocities in September, and it has spearheaded efforts to prevent atrocities in the Central African Republic, Burundi, and elsewhere. The Obama Administration would, I believe, very much like the United Nations to reaffirm R2P at its 10 th anniversary, during the opening of the General Assembly. On the other hand, my sense is that the administration has misgivings about the proposed code. I d mention at least seven areas of potential worry: First, there is concern that the French proposal is too general, too unmoored from specific types of missions or contingencies, too open to competing interpretations, too vague concerning the processes by which an RN2V situation would be triggered, and too open to manipulation by great powers. Second, there is the the question of criteria and right authority: By what criteria and by whom is an R2P case to be identified? Who is to say when the threshold for an R2P situation has been crossed? Inasmuch as any violent conflict is, sadly, likely to include a share of atrocities, on what basis do we distinguish one from another? Is it a question of body count? Of the stated intent of perpetrators? What is to be done when a situation is not clear-cut, or when P5 or other major powers disagree? The proposal to give the Secretary-General such authority is legally innovative but problematic. The Secretary-General is not a judge. Does he or she have the standing to make this judgment? Third, there is the vital national interest exception: While U.S. officials will insist on this exception for the United States, they may wonder whether it is not also the Achilles Heel of the proposed norm. What is to prevent one or more of the P5 from The copyright of this paper remains the property of its author. No part of the content may be reproduced, 3

4 invoking this escape clause in a particular situation? Isn t the precise problem with the current situation in Syria that the Russians and Chinese have already in fact defined coercion against the government of Bashar al-assad as contrary to their national interests? In other words, isn t the national interest criterion already in play? Viewed in this perspective and bearing in mind the historical reality that the veto was the explicit price of getting the Big Five to agree to establish the UN in the first place the unwillingness of the Security Council to act in Syria could be interpreted not as evidence of its failure, but of its working as intended, by preventing coercion from being authorized contrary to the perceived interests of one (or more) Permanent Member. (I tend to agree with Gareth that national interest claims of most P5 vetoes fail the laugh test on these grounds but will that stop P5 members from casting a veto?) Fourth, there are specific worries that RN2V could be hijacked by countries seeking to intervene for ulterior motives under the cloak of R2P, without having to worry about a veto. After all, Russia has already thrown around the term atrocities with reference to Ukraine, in apparent justification for its assistance to separatists there. Fifth, there are some anxieties that the debate over RN2V could devolve into a more general and unproductive debate over the veto itself, and its legitimacy. Rather than focusing attention on the issue of atrocities, the focus of attention would shift to a critique of privileges and inequities within the UN system. Sixth, there is the vexing issue of Israel and Palestine. The United States, as a staunch defender of Israel, frequently finds itself isolated internationally, at times even from European allies, when it comes to Israeli conduct in the Occupied Territories. If the RN2V norm were made operational, Washington could in theory lose its ability to shield Israel from international condemnation, even intervention. This is not an idle concern, from the perspective of the United States. Since the UN High Level Event that endorsed R2P in 2005, the United States has used the veto 3 times with reference to Israel and the Occupied Territories. Whatever one thinks about the merit of these actions, one can anticipate that it will feel the need to do so in the future. Finally, there is the worry that negotiations for a code of conduct will detract from other, more practical steps to strengthen the Responsibility to Protect, including in the area of capacity building within vulnerable states, as well as strengthening international tools to identify and respond to R2P situations. Despite these misgivings and my own uncertainty about whether such a code would actually exert a pull towards compliance (as an norm should) there may still be some benefit in pushing for it. Establishing a norm that Permanent Members The copyright of this paper remains the property of its author. No part of the content may be reproduced, 4

5 should not veto a Council resolution in cases of mass atrocities could have at least two salutary effects: First, it would presumably place pressure on each of the P5 to narrow/delimit their definition of vital national interest exceptions and to offer more persuasive public justifications when they do use the veto in such circumstances. Were they to go on record in support of such a norm, China or Russia would presumably find it harder diplomatically to justify use of the veto. Second, beyond creating a normative expectation, the new code could lay down a useful political marker. In the event that a P5 member used its veto in ways others perceived to violate the norm, countries intent on stopping genocide would be on firmer moral and political (though not necessarily international legal) ground in intervening in an alternative multilateral manner such as through NATO (as in Kosovo in 1999), through an ad hoc coalition, or through a Uniting for Peace resolution. So, what way forward? Given strains between the West and Russia, in particular, the P-5 are unlikely to reach agreement any time soon on voluntary limits to the veto. Still, there are useful steps France, the UK, and the US can take together: One would be for the three countries to jointly declare their own position that the veto should never be used to block timely and decisive action when genocide and crimes against humanity are manifestly occurring, as long as other criteria, such as proportionality and necessity are satisfied. i This step, by itself, would raise the political costs of threatening a veto. This implies, of course, winning over a United States that remains deeply ambivalent. I would propose the following talking points for French diplomats in engaging the United States: o The proposed norm is consistent with the President s own espoused vision: Paris can press President Obama to live up to his strong rhetoric on the Responsibility to Protect. The President has declared the prevention of atrocities as a matter of U.S. values and national interest. This gives him an opportunity to act on his convictions. o The norm will not infringe on U.S. interests: French diplomats should stress that the vital national interest caveat will preserve U.S. freedom of action. For better or worse, this will be a precondition for U.S. endorsement. The copyright of this paper remains the property of its author. No part of the content may be reproduced, 5

6 Second, as Gareth suggested, the P3 should show some contrition over Libya and link the proposed norm with something resembling the Responsibility While Protecting. Such a package deal is likely to be the price for winning over those countries who felt burned by UNSC Resolution 1973 believing (fairly or not) that the P-3 exploited a resolution intended to halt the imminent massacre of civilians to pursue the removal of Gaddafi. As my friend Richard Gowan has written, If Paris really wanted to secure support for veto restraint, it would make a parallel commitment that any armed intervention at regime change would require a separate explicit authorization. Such a step might provide critical reassurance to pivotal countries like Brazil, as well as the members of the African Union which could well play a critical swing role. Third, France should cooperate closely and discreetly with the UK and France on a strategy to reduce the risk that the effort to limit the veto does not go astray for instance in efforts by certain UN member states to attack the veto prerogative itself. One could imagine certain member states exploiting the RN2V agenda to engage in grandstanding. It will be especially important to carefully identify co-sponsor (or cosponsors) for the resolution among developing countries that can resist such pressures. Finally, the Obama administration, should it choose to throw its weight behind this proposal, will need to work very carefully to avoid the issue becoming a partisan one at home. The good news is that a code of conduct unlike a treaty does not require ratification by the U.S. Senate something which has become virtually impossible for major multilateral treaties. But the proposed code could become a political lightning rod, given Republican Control of both houses of Congress. Opponents could depict such a norm as an unwarranted restriction on U.S. freedom of action including in defense of Israel. i Matthew Waxman, CFR Special Report The copyright of this paper remains the property of its author. No part of the content may be reproduced, 6