The power of the veto: How the rules of the UN Security Council let some countries get away with murder

by Richard Harman / 22 September, 2016
The Security Council’s horseshoe table. Photo/Getty Images

The rules of the UN Security Council, where New Zealand is serving a two-year stint, are letting some countries get away with murder.

Bashar Jaafari holds degrees from Damascus, Paris and Jakarta, is fluent in four languages and has been a Syrian diplomat for 36 years.

But according to UN Under-Secretary for Humanitarian Affairs Stephen O’Brien, Jaafari represents a regime that has committed human rights abuses on an almost industrial scale.

Addressing the UN Security Council, O’Brien lists a long catalogue of abuses, including chemical weapons; bombs landing on schools, hospitals and civilian neighbourhoods; rape; illegal detention; torture; sieges of entire cities; and deliberately starving people to death.

“All of that has occurred when someone has the power – with the simple stroke of a pen – to allow food to get to people.”

But Jaafari says the accounts of atrocities and rights abuses are fabrications. He claims they have been orchestrated by French newspaper Le Monde, which would be better titled “Alice in Wonderland”, and that some have actually been committed by the French intelligence services.

France’s delegate, Alexis Lamek, sitting at the other end of the Security Council’s horseshoe table, accuses Jaafari of “absurd ranting” and “grotesque and insulting musings”.

Jaafari replies: “I will not use terminology such as ‘the French regime’ here in my statement because I am a diplomat, and I know that those words are not fit for use in the chamber.”

If only it were that simple. If only the UN Security Council was just a civilised debating society where the great issues of the day could be politely discussed by erudite ambassadors.

Syria’s Bashar Jaafari, left, and France’s Alexis Lamek. Photo/Getty Images

Of course, that was the hope that many had when the UN was created. But as countless horrific wars have shown – most notably currently the Syrian war – the Security Council, the UN’s ultimate body, has been impotent more often than not.

Jaafari is right: it is really a stage in a political theatre with its own language and etiquette. Even the deliberations that take place in public are largely scripted. The real talk goes on in another room next to the chamber where the members gather for private “consultations”.

Jaafari is not a member of the Security Council, so it really doesn’t matter much what he says.

Unlike with the UN General Assembly, the council’s resolutions are binding on all UN members. It is the organisation’s power­house; it is the part of the UN system that ­­deals with matters of war and peace.

But Jaafari is protected from its decisions by Syria’s ally Russia and the veto it holds.

The right to veto a resolution is held by the five permanent members of the council: the US, Russia, China, the UK and France.

At the founding meeting of the United Nations in San Francisco, New Zealand Prime Minister Peter Fraser spoke at length opposing the veto, an action that has assumed an almost mythological status in the history of New Zealand’s foreign policy, even though he ultimately agreed to its introduction. He wasn’t alone: the campaign against the veto was led by Australian Deputy Prime Minister Bert Evatt.

NZ's Peter Fraser

American design

Stephen Schlesinger is the author of a widely acclaimed history of the founding of the UN and has worked for the organisation as well as maintaining an academic eye on its actions. He says the UN was essentially designed within the US State Department as World War II proceeded, but that design was heavily influenced by President Franklin D Roosevelt’s desire for it to avoid the failures of the League of Nations.

He was determined that the UN’s overriding objective should be to prevent the outbreak of another world war, if necessary by using its own force. And so he selected five countries, the victors in the war, to have the power of veto.

“He thought these countries could produce the armed forces and the financial wherewithal to mount collective missions on behalf of the UN, whereas the rest of the world he regarded as unable to live up to that profile.

“For that reason, he thought the veto should be accorded to those five, since the lives of their soldiers would be at risk. They should have the right to veto a mission if they felt it was against their national interest.

“And he realised that without the veto, the US Senate would never have ratified the UN Charter, and the Soviets would never have joined if they didn’t have the veto. He knew that without the Soviet Union and the United States, once again you would have created another League of Nations.”

The results of an attack on an aid convoy in Aleppo this week during a supposed ceasefire. Photo/Getty Images

New Zealand’s role

New Zealand has served on the Security Council four times – at first reluctantly, but in 1992 and 2015 it lobbied hard to win the seat.

The Holland National Government, wary of how much it could cost, had to have its arm twisted by the UK and by a newspaper campaign probably orchestrated by our US ambassador, Sir Leslie Munro, who wanted to sit on the council.

Munro, a former dean of the Auckland Law School and editor of the NZ Herald who would later become a National MP, was a political appointee variously described as an egomaniac and malevolent by permanent External Affairs staff, who in their correspondence called him “Big Jule”, after the Chicago gangster character in Guys and Dolls.

In 1966, Frank Corner was New Zealand’s Permanent Representative on the council for one term. He was often credited for Norman Kirk’s more independent foreign policy line, but it was independence within the way New Zealand saw the world, from inside the Western alliance. In later life, Corner became a strong critic of the Lange Government’s nuclear-free policies.

By 1993, the Cold War had ended and New Zealand was on the council again, this time having launched a comprehensive campaign to get elected.

Colin Keating was the New Zealand Permanent Representative from 1993-1996, and was Security Council President during the 1994 Rwandan genocide. He relentlessly sought the intervention of the international community to end the carnage. Though he subsequently received an award from the Rwandan Government, his hands were tied by France, a permanent member, which was effectively propping up the Rwandan Government, the author of the genocide.

And therein lies the problem, as our current Permanent Representative, Gerard van Bohemen, has found on any number of issues. The permanent members can always say no and stop any initiative dead in its tracks. It’s what the Americans did to a New Zealand proposal to push a two-state solution for Palestine and Israel, and it’s what Russia has been doing continuously in Syria.

“What the veto has done is solidify certain power dynamics that are no longer the same,” says van Bohemen. “That’s the part that gets up people’s noses.

“The criticism is particularly focused now on the United Kingdom and France. The other three permanent members – the US, China and Russia – you can sort of get.

“I think New Zealand was right to oppose the veto. We probably should also have opposed the permanent members.”

PM John Key. Photo/Hagen Hopkins

The “pocket veto”

Van Bohemen cannot see any immediate chance of either the permanent members or the veto changing.

Schlesinger is equally pessimistic. “If you are going to have any resolutions come out of the Security Council that have global legitimacy, it should represent the powers that exist today as opposed to those that existed in 1945,” he says.

“But you are not going to have any change unless there is a collective sense within the General Assembly that they are willing to organise in some sort of collective entity to oppose the arrangements within the Security Council.”

Russia has been particularly vocal in its opposition to the notion of veto restraint. Ambassador Vitaly Churkin said last year that the veto is “a tool that allows the Security Council to produce balanced decisions” and that “sometimes the absence of veto can produce disaster”.

The authoritative “Security Council Report” says China and the US also appear wary over restraint of their veto prerogative.

It’s not just the actual casting of the veto that freezes the Security Council but also the threat of it being cast, the so-called “pocket veto”. Thus the Permanent Five (P5) possess a big stick with which they can beat off any threats to the status quo.

That was evident in 2006 when five small countries – Costa Rica, Jordan, Liechtenstein, Singapore and Switzerland – proposed a relatively modest set of proposals to integrate the Security Council more closely with the General Assembly and to limit the use of the veto in situations involving genocide and war crimes.

But the P5 managed to persuade the UN Secretary-General’s legal advisers to prepare a legal opinion saying such a proposal would require two-thirds of the General Assembly’s members to support it. The Small Five, as the reformers became known, had little alternative but to withdraw their proposal, and shortly after disbanded.

However, from the ashes of the Small Five has emerged a group of 25 small and medium-sized countries called the Accountability, Coherence and Transparency group (ACT), of which New Zealand is a member. It seeks much the same agenda as that of the Small Five but also wants a more transparent process for the appointment of the UN Secretary-General.

Van Bohemen knows that even getting the non-permanent members of the council to agree on anything is a battle. “We’re a small country, but we believe you say what you mean and mean what you say. There are a lot of cultures that are different from that.

“There are also small countries that don’t feel able to tell someone to their face ‘no’, because they are worried about the economic, social and political consequences. So the easiest default is to say yes to everybody.”

Van Bohemen says this has been a challenge during the campaign to get Helen Clark elected as Secretary-General.

The US’s Samantha Power, Russia’s Vitaly Churkin and NZ’s Gerard van Bohemen. Photo/Getty Images

Chasing reforms

But all this has not stopped New Zealand from pursuing both formal and informal reforms to the council.

Three years ago, France proposed that the veto be set aside when the council was considering “mass atrocities”, a proposal it says has the support of 70 of the UN’s 193 members. This proposal is supported by the ACT group.

Though New Zealand supports the French proposal, it has tried to work more subtly and arguably more practically. It has hosted an informal discussion on council decision-making, during which the elected members reportedly expressed concerns about the ways in which the permanent members arrive at outcomes without adequately consulting them.

And van Bohemen introduced the idea of breakfasts for the whole council without any staff or even interpreters, a sort of tough-love way of causing the Permanent Representatives to speak frankly to each other. Those breakfasts have continued, hosted by each month’s president of the council. This week, Prime Minister John Key chaired a special meeting of the council on Syria.

Small steps, but along with the New Zealand mission’s determination to do more than read written speeches at council meetings and van Bohemen’s lawyerly habit of interrogating members when he was in the chair, New Zealand has left a mark on the council.

The UN’s Under-Secretary-General for Political Affairs, Jeffrey Feltman, is positively effusive. “It has been extremely rewarding to work with New Zealand on the council,” he says. “New Zealand has played an incredibly constructive, positive and pragmatic role, always looking for creative solutions to the problems confronting the council.”

Van Bohemen says the realities of power and the veto mean the world pays much more attention when the US speaks than when New Zealand does, so New Zealand has had to develop its own style.

“We’ve had to be a bit more spiky, ­perhaps, because the world now is more difficult,” he says, reflecting on how things have changed since he first was part of the council team during the 1993-94 term.

Five-year-old Syrian Omran Daqneesh, injured in an air strike in Aleppo in August. Photo/Getty Images

The “forum-shopping” trend

Schlesinger measures the record of the UN by Roosevelt’s original goal for it, which was to prevent a global conflict. “We became used to global conflict during the 20th century,” he says. “But the UN has kept the peace in many ways, which is unprecedented in this world.”

The problem, though, is that regional conflicts can claim a huge number of lives; the UN estimates that more than 400,000 have been killed since the Syrian conflict started.

Because of the veto, any progress has tended to be made in Vienna by the International Support Group for Syria, a widely representative multilateral grouping.

Otherwise, both Russia and the US engage in tit-for-tat blaming at the council.

For example, last weekend, the Syrian Government, supported by Russia, requested an emergency meeting of the council to discuss what the Americans concede was the accidental bombing by them – and the Australians – of Syrian army forces.

But US Ambassador Samantha Power dismissed the call as a Russian “stunt”. She has previously been critical of the Russian use of its veto to stop council resolutions condemning Syria’s human rights abuses and war atrocities and the way this has left the council seemingly standing impotently on the sidelines of a major conflict.

Power has said the US and other countries have increasingly been going elsewhere to have atrocities investigated, and a “forum-shopping” trend was likely to continue. “It’s a Darwinian universe here. If a particular body reveals itself to be dysfunctional, then people are going to go elsewhere.”

The only bright spot in the dismal Syrian situation is that it may add urgency to the reformers’ campaign to moderate the veto to avoid exactly the situation that Power forecasts.

Ultimately, it will depend on whether the General Assembly wants change and whether its smaller members can resist the pressure of the veto holders.

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