Image credit: United Nations Photo/Loey Felipe

COMMENTARY

by Robert Hage

Over the centuries, European nations have engaged in many wars among themselves, extending to world-wide conflicts in the First and Second World Wars. Paradoxically, their outcomes led to the development of international law and the founding of the United Nations 77 years ago. Over time, the right of veto in the UN Security Council has become the organization’s Achilles heel. Canada can help change that.

The UN’s founders realized its predecessor, the League of Nations, failed in taking decisions by consensus, effectively giving each member a veto. Also, the United States didn’t join. To provide “prompt and effective action” by the United Nations, the drafters established a 15-member Security Council with the world’s five most important states at the time, the United States, United Kingdom, France, the USSR (now Russia) and China. The Charter granted them permanent Council membership and the right to veto its proposed resolutions. 

The USSR was first to use its veto in 1946, months after the UN’s founding and has used it 119 times since, including as Russia. Recently, Russia vetoed measures critical of its ally, Syria, an investigation into the downing of a Malaysian aircraft in Ukraine, the 2009 extension of the United Nations Observer Mission in Georgia (following Russia’s 2008 invasion) and in February, a resolution demanding Moscow stop its attack on Ukraine.

Although it is sometimes overlooked, the UN Charter also gives the General Assembly broad powers to make recommendations on “any matters” within the Charter’s scope. Specifically, it can make recommendations to “assist in the realization of human rights” and consider “any questions relating to the maintenance of international peace and security.”

In 1950, the USSR blocked Security Council decisions to protect the Republic of Korea from military aggression by North Korea. The General Assembly then adopted  a  Uniting for Peace resolution stating that “where the Security Council, because of lack of unanimity of the permanent members, fails to exercise its primary responsibility for the maintenance of international peace and security where there appears to be a threat to the peace, breach of the peace, or act of aggression, the General Assembly shall consider the matter immediately with a view to making appropriate recommendations to Members … to maintain international peace and security”.

The following year, the General Assembly did exactly that. It found that the People’s Republic of China had engaged in aggression and called upon “all States and authorities to continue to lend every assistance to the United Nations action in Korea.” Since then, Uniting for Peace resolutions calling on the General Assembly to act have emerged both from the Security Council following a deadlock (referrals are considered procedural and not subject to veto) or from the General Assembly itself. 

Until this year, these resolutions have only been used 10 times, the last in 2002. But with Russia’s invasion of Ukraine, members of the Security Council and General Assembly had enough. On February 27, the Security Council bypassed a Russian veto and agreed on a Uniting for Peace resolution, calling on the General Assembly to consider and recommend collective action on the situation in Ukraine. The General Assembly called for an emergency special session to consider Russia’s invasion.

The response came from one of the General Assembly’s smallest members, Liechtenstein. On April 26, its ambassador introduced a landmark resolution on behalf of 83 co-sponsors, entitled “Standing mandate for a General Assembly debate when a veto is cast in the Security Council without a vote to hold the five permanent members of the Security Council accountable for use of the veto.”  

It specifies that all UN members can scrutinize and comment on the veto, but precedence will be given to the “veto-casting states inviting them to account for the circumstances behind the use of the veto.” Liechtenstein’s ambassador said: “It’s not about putting anyone on the spot, but about accountability. It’s about being given a voice in what we think are issues over which we have ownership. The Charter of the United Nations says clearly that the Security Council does its work on behalf of the membership.”

Canada can provide leadership to further strengthen the General Assembly’s role. Lloyd Axworthy, Canada’s former Foreign Affairs minister and Allan Rock, its former UN ambassador, proposed that the General Assembly use these powers to send the UN’s military personnel, the Blue Helmets, to Ukraine. The UN states that protection of civilians “is at the heart of our (peacekeeping) mandate.”  Canada should advance this proposal.

Second, starting with President Vladimir Putin, the General Assembly can also play a key role in bringing the Russian perpetrators to international justice.  Following Russia’s invasion of Ukraine, the International Criminal Court’s (ICC) prosecutor opened an investigation, given “a reasonable basis to believe that both alleged war crimes and crimes against humanity have been committed in Ukraine.”

In a recent University of Toronto speech, former ICC president, Chile Eboe-Osuji, proposed that a key article in the Court’s founding Rome Statute, entitled “Exercise of Jurisdiction” be amended. The article allows the Court to exercise its jurisdiction over persons with respect to the most serious international crimes: genocide, crimes against humanity, war crimes and the crime of aggression.

However, in the UN only the Security Council was given the right to refer these crimes to the prosecutor for action. The most recent attempt to do so, a resolution to refer human rights violations in Syria to the ICC, was blocked by Russian and Chinese vetoes (just after Russia had seized Crimea). Eboe-Osuji proposed the statute be amended to give the General Assembly “the power to refer cases to the ICC after the veto power has been used by the Security Council to block the referral to the ICC.”    

He underlined that this would enhance the General Assembly’s power to maintain “international peace and security” when the Security Council cannot do so. Canada was a leading player in the drafting and implementation of the Rome Statute. It can now draft and submit this amendment to UN Secretary-General António Guterres “who shall promptly circulate it to all States Parties.”

There already is a Ukrainian aspect to the roles of the UN Security Council and General Assembly. Raphael Lemkin, of the University of Lviv, coined the term “genocide” in the wake of the Holocaust. Another graduate, Hersch Lauterpacht, advanced the legal concept of crimes against humanity first used to prosecute Nazi leaders at the 1945 Nuremberg trials.  In the words of a commentator: “Their legacies were enshrined in the 1945 United Nations Charter, which promised to save succeeding generations from the scourge of war.”

About the Author

Robert Hage is a Fellow at the Canadian Global Affairs Institute, was a Canadian diplomat with the Department of Global Affairs for 38 years and served as Canada’s Ambassador to Hungary and Slovenia, as Director General for Europe and Director General for Legal Affairs. He also served in Canada’s embassies in Washington, Lagos and Paris, as Deputy Head of the Canadian Mission to the European Union in Brussels and, in early 2012, acting Head of Mission at the Canadian Embassy in Riyadh, Saudi Arabia.

He was also Director of four divisions including International Financial and Investment Affairs and relations with the European Union; Principal Counsel for the Canada-U.S. Free Trade Agreement; Counsel on the Environmental Side Agreement to NAFTA and a representative for Canada at the United Nations Conference on the Law of the Sea. He has written and commented on a range of subjects including West Coast energy issues, maritime boundaries and Canada-EU relations. Mr. Hage formerly taught a course on Modern Diplomacy at the University of Ottawa’s graduate school.