Prosecuting a Permanent Member of the UN Security Council through the Security Council -An Analysis
-By Swarnil Dey
Introduction
Humanity has always been a witness to wars, man-made calamities and destruction. The horrors of the World Wars which had left a scar on the face of humanity, forced the world leaders to devise the continuation of politics, through other means. After the Second World War, the United Nations was brought into being by the Allied powers. To simply state, in 1945, the UN was empowered with the task of maintaining world peace and stability and salvage humanity from any future wars. It was determined to reaffirm faith in fundamental human rights, honour, dignity and worth of the human person, in the equal rights of men and women and of nations large and small. The ideals, goals and objectives, inter alia, were scribed in stone, i.e. the Charter of the UN which came into effect on 26th June, 1946. The Charter laid down the preamble, the organs of the UN and the powers and functions of each organ. Of all these organs of the UN, and known to all, is the Security Council. Merely calling the Security Council to be powerful would be understatement. It is more like a prime minister heading the council of ministers whose duty is to report to the nominal head, the General Assembly of the UN. However, this Article does not aim to parrot and glorify the powers of the Security Council. This Article has rather attempted to raise the question of the long due reforms/amendment to the Security Council.
The P5s
Article 23 of the UN Charter (“Charter”) describes the composition of the Security Council. The Security Council shall consist of fifteen members, comprising five permanent members and 10 non-permanent members. The permanent members ‘shall’ consist of the United States of America, the Republic of China (whose seat now rests with People’s Republic of China), Russia (erstwhile USSR) and the United Kingdom of Great Britain and Northern Ireland. The ten non-permanent members are elected for a period of two years. The wide discretionary powers of the Security Council are known to all. However, certain provisions, which had endowed the Council with such sweeping powers, ought to be relooked owing to contemporary developments in the geo-political crisis.
A Contractual Relationship
Article 24 of the Charter has tasked the Security Council with the primary responsibility for the maintenance of international peace and security and in discharging these duties, the Security Council shall act in accordance with the Purposes and Principles of the United Nations. As per Article 24 and 25, the Member countries of the UN confer the duty of maintaining international peace and stability on the Security Council and agree that in doing so the Security Council acts on their behalf. And the Members are bound to agree to accept and carry out the decisions of the Security Council in accordance with the Charter.
The import of the above is that Member countries are more so in a contractual agreement with the Security Council and hence with the UN; the Charter being a contractual document laying down the rights and liabilities, powers and functions of the stakeholders. It is known to all that the Security Council has very wide powers when it comes maintaining international peace and in settlement of disputes. It can also go to the extent of enforcing economic and military sanctions. And history is evident to the fact that when such measures were taken, for instance in the Korean War and the Gulf War, though proved to be a short-term solution, however turned to be a liability to humanity without offering a long-run solution.
The Security Council has been reactive, if not effective, in matters of international settlement of disputes. But the question here is, what shall happen when a permanent member of the Security Council is itself to be blamed for causing disruptions to world peace and stability. The suspected permanent member may not have perpetrated a conventional war using arms and armaments, but through its scientific experiments which has led to a pandemic, intentional or unintentional, and has brought the whole world down to their knees. The question, whether causing health issues, loss of lives and bringing the economies to their abysmal lows due to silent scientific experiments, is the new ‘art of war’. If this is proved, can the permanent member be then held liable by the proceedings of the Security Council itself? Is the Charter well equipped to deal with such liabilities created due to mischiefs of contemporary times? These are the questions which surround this Article.
Relevant provisions of the Charter
The UN Charter is completely silent on the above questions. The Charter has no express and exclusive mechanism to question its permanent members if they end up breaching the Principles and provisions of the Charter itself, leave alone holding them accountable. This is a worry because the P5 group of the Security Council and the Council itself, is no infallible institution, as it ultimately a group of countries with respective vested interests. What is even more worrisome that in a world of nuclear arsenals and uninterrupted political differences, whether the P5 countries be entrusted with the responsibility of tackling geo-political crisis and maintaining world peace and order, and most importantly world health.
The privileges of P5 can be applied so arbitrarily that, in March 2020 the Security Council (which was under the Presidency of China for March 2020) failed to even schedule a discussion on the origins and outbreak of the Covid-19 coronavirus. This delay has been attributed to China indirectly vetoing the matter from being taken-up in the UN Security Council. This was a draft-discussion which was proposed by Estonia; called for transparency in the discussion and hinted at suppression of origin of the virus by China. The apathy is that the institution could not even raise a discussion on the pandemic, leave alone initiating an investigation and prosecuting a Member Country. Thus one can rightly question the lack of checks-and-balances in the Charter, for the P5 group of the Security Council. No Member of the UN, whether belonging to the P5 group or not, can go scot-free as they have contractually bound themselves to the provisions of the Charter. By not living up to the noble ideals and goals of the Charter, would only amount to a pen-and-paper presence of the Charter.
Initiating a motion against a permanent member
This part of the Article discusses if a permanent member, accused of crimes, be made a party to an investigation, using the limitedly available scope of provisions for the purpose. Surprisingly, if one takes a look at the Chapters V and VI on the Security Council and Pacific Settlement of Disputes respectively, it may be apparent that there is no procedure to initiate a motion against a permanent member for its criminal or civil wrongdoings.
Article 27 (from Chapter V) of the Charter describes Voting procedure of the UN Security Council. It is the reason for the commonly used, famous term “veto”, when it comes to people discussing the veto powers of the P5s. Article 27 says that decisions on the ‘procedural matters’ shall be made by an affirmative vote of nine members. Though there is no veto power of any P5 member in this matter, surprisingly, ‘procedural matter’ has neither been described in the Charter nor in the rules of procedure of the Security Council, as per Article 30. What is bizarre that when there is a voting on an issue, it does not indicate whether the issue is on a ‘procedural matter’ or ‘any other matter’. The distinction between the two is made by the Security Council only when the voting is over. If a permanent member casts a negative vote on a motion, and it is still adopted, then it is procedural. This means all decisions that are not adopted where it has been voted negatively by a permanent member are non-procedural. Thus one can realize the wide and arbitrary powers of the Security Council.
Time and again many suggestions were forwarded to the Council regarding concretization of the list of procedural matters. However disagreements regarding the definition continues even today. Resolution 267(III), dated April 14th, 1949 was recommended by the General Assembly to consider a list of issues as procedural, namely:
· submission to the General Assembly of any questions relating to the maintenance of international peace and security;
· request to the General Assembly that it make a recommendation on a dispute or situation the Council is seized of;
· request to the Secretary-General for the convocation of a special session of the General Assembly;
· approval of annual reports to the General Assembly;
· holding of meetings at places other than the seat of the UN; or
· establishment of subsidiary organs the Council deems necessary for the performance of its functions.
However, till today there exists no concretized list of procedural matters and it is totally left to the Security Council to draw the line from situation to situation. Thus, one is at the liberty to speculate what might be a procedural matter. For instance, a procedure to remove a permanent member from the Security Council is a good suggestion of a procedural matter. But even if this proposal is taken up for vote and passed by a majority of the 15 Members of the Council, it still has a high chance of getting rejected by the Security Council itself. For the Council decides after a vote, what it shall adopt as a procedure and what is not.
But there is a silver lining. Article 27(3) says that:
“Decisions of the Security Council on all other matters shall be made by an affirmative vote of nine members including the concurring votes of the permanent members; provided that, in decisions under Chapter VI, and under paragraph 3 of Article 52, a party to a dispute shall abstain from voting.”
Even though the Security Council may be hesitant from formulating an outrageous procedure for removal of a permanent member for crimes against humanity, Article 27(3) still offers a flicker of hope. Under this Article, a Member, who is an aggrieved party, (or a non-Member) should bring a dispute to the attention of the General Assembly or the Security Council. This may be initiated by impleading the opponent party as per Article 35 (Chapter VI) of the Charter, which speaks on ‘Pacific Settlement of Disputes’. Now, if the grievances are against a permanent member, then as per Article 27(3), that permanent member shall become impleaded and thus be precluded from taking part in any resolution/ discussion of the Security Council dealing with the issue. Most importantly, this shall then negate the permanent member from voting/vetoing on a motion, to which it itself is a party. Any contravention of this understanding, shall then be a gross violation of the judicial doctrine of ‘nemo judex in causa sua’, for no one can be a judge in its own case. Therefore, any party if it wishes to implead such a member and also prevent it from vetoing, has to take the route of Chapter VI of the Charter. Thus in this manner a motion can go ahead with just four permanent members and rest of the non-permanent members.
Thus the impleaded permanent member can be precluded from voting on any motion it is a party to. Hereafter as per Article 34, the Security Council is free to take up the issue for discussion, and investigate the matter. Though these thoughts are outrageous, they have however proved to be necessary in the current times, where for instance topic of discussion like the Covid-19 pandemic is being prevented from being taken up due to the procedural bottlenecks of the Security Council.
There are precedents where UN Security Council resolutions were taken without a full coram of five permanent members. For instance, UNSC Resolution ‘82’ was taken in 1950 which imposed sanctions on North Korea. This resolution was passed with USSR abstaining from voting. The resolution led to a full-fledged Korean War. The First Gulf War ensured the (military sanction) of the UNSC Resolution 678, dated November 29th, 1990. This Resolution was passed with China abstaining from voting. Even though in these cases, China and Russia were not party to the disputes, the takeaway is that a full house P5 is not required for passing any Resolution.
Referral to the International Court of Justice
Most of the disputes which knock the doors of the UN, fall under the domain of international law.
The Chapter VI of the Charter on Pacific Settlement of Disputes empowers the Security Council to take any appropriate peaceful measure without exercising its power of sanctions, economic or military. As per Article 33, firstly the Security Council can call upon the parties to settle their disputes by way of a negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resorting to regional agencies or other peaceful arrangements. In furtherance to the procedures recommended in Article 33, Article 36 empowers the Security Council, at any stage of the ongoing dispute recommend appropriate procedures or methods of adjustment. If the parties fail to resolve their claims as per the procedures listed on Article 33, the Security Council shall decide whether to take action under Article 36 or to recommend such terms of settlement as it may consider appropriate.
Thus as per the above proposal when the matter has been successfully raised in the Security Council against a permanent member and a preliminary investigation made as per Article 34, the Security Council can then recommend the parties to refer the matter to the International Court of Justice, without directly exercising its power of executing sanctions. So as per Article 36(3), the Security Council, as a general rule, may refer the dispute to the International Court of Justice (“ICJ”). Now it is up to the disputing parties to mutually confer jurisdiction on the ICJ. If they succeed in conferring jurisdiction, then the decision of the ICJ shall be binding on the parties as per Article 94 of the Charter. If any party fails to perform its obligations incumbent upon it under a judgment rendered by the Court, the other party may have recourse to the Security Council, which may, if it deems necessary, make recommendations or decide upon measures to be taken to give effect to the judgment. Hereby, the ICJ can take up matters and satisfy itself of the gravity of the situation by taking cognizance of the numerous civil law suits filed in respective countries for claims of monetary damages. Though such domestic cases are not binding on the ICJ, it can however consider facts, data and initiate its own analysis before passing an advisory opinion on monetary damages.
In another situation the opposing party may not accept the jurisdiction of the ICJ and it is also true that a Member country or a group of Member countries, unilaterally cannot file a case against another Member Country at the International Court of Justice. The only option left is to take the aforementioned route by referring the matter to the Security Council. Consequently, when the parties fail to confer jurisdiction on the ICJ, as per Article 96 of the Charter, the Security Council may now invoke Article 65 of the Statute of International Court of Justice and again refer the matter to the ICJ, but this time for advisory opinion. The Security Council can do this of its own accord of statutory powers, as referring matters to the ICJ does not need the consent of the parties.
At this point let us remind ourselves that all this can be done by the Security Council (as aforementioned) by keeping the permanent member at abeyance, as it is a disputed party, per Article 27.
Considering the opponent party may resist from accepting ICJ’s advisory opinion on monetary compensation and in the event of exhaustion of all the above means, the Security Council may be left with no option but invoke its powers as per Chapter VII of the Charter: ‘Action with respect to threats to the peace, breaches of the peace, and acts of aggression.’ As per the provisions of this Chapter, the Security Council has all means of recommending non-invasive measures for making good for the damages.
In an exemplary scenario, once the Covid-19 pandemic situation has stabilized and a permanent member country again promotes dangerous activities within its territories which can further affect world health, the Security Council, in continuation of the above discussed proposals, as per Article 39 may decide what measures may be taken to restore international peace and security. This may be in form of provisional measures, or economic sanctions and military sanctions in the worst case as per Article 41. The worst case scenarios like commanding provisional measures on a country, economic sanctions and military sanctions have not been discussed as this is beyond the scope of this Article and every lay-person knows historically, such sanctions have led to wars. In the exemplary scenario, a group of Member countries can therefore claim monetary damages for disruptions caused to world health and the Security Council may definitely endorse such claim as per its powers under Pacific Settlement of Disputes.
Removing a Permanent Member from the Security Council
The Charter of the UN simply has no whisper, express or implied, for expelling a Permanent Member from its Security Council. Article 6 of the Charter only speaks of expelling a Member of the UN for repeated violations of the Principles of the Charter. This can be done by the General Assembly on recommendation of the Security Council.
Let us now take a look at the available provisions for amendment of the Charter. Chapter XVIII containing Articles 108 and 109 of the Charter speak about procedure for amendments to the Charter. Article 108 says:
“Amendments to the present Charter shall come into force for all Members of the United Nations when they have been adopted by a vote of two thirds of the members of the General Assembly and ratified in accordance with their respective constitutional processes by two thirds of the Members of the United Nations, including all the permanent members of the Security Council.”
Article 109 says:
1. “A General Conference of the Members of the United Nations for the purpose of reviewing the present Charter may be held at a date and place to be fixed by a two-thirds vote of the members of the General Assembly and by a vote of any nine members of the Security Council. Each Member of the United Nations shall have one vote in the conference.
2. Any alteration of the present Charter recommended by a two-thirds vote of the conference shall take effect when ratified in accordance with their respective constitutional processes by two thirds of the Members of the United Nations including all the permanent members of the Security Council.
3. If such a conference has not been held before the tenth annual session of the General Assembly following the coming into force of the present Charter, the proposal to call such a conference shall be placed on the agenda of that session of the General Assembly, and the conference shall be held if so decided by a majority vote of the members of the General Assembly and by a vote of any seven members of the Security Council.”
As per the above reading, it is procedurally difficult to amend the Charter, leave alone of bringing amendments to the Security Council. A plain reading of Article 108 imports that any amendment to the present Charter shall be brought by a majority votes of two-thirds of the members of the General Assembly and ratified in accordance with their respective constitutional processes and the two-thirds of the Member’s ratification shall include the respective ratifications of all the permanent members of the Security Council. Article 109 lays down the procedure of any amendment. It mandates holding a ‘General Conference’ of the Members for reviewing the current Charter. This can be fixed by a two-thirds majority of the Members of the General Assembly and by a vote of any nine members of the Security Council. In this case the P5s does not have an option of veto. Unlike the recent case where a mere discussion on the Covid-19 pandemic could not be passed in the Security Council, the current procedure under Article 109(1) allows a general discussion on the amendment of the Charter. However, to a dismay, Article 109 (2) mandates that any recommendation by the General Conference shall take effect when it is ratified by two-thirds of the Members of the UN in accordance with their respective constitutional processes, including all the permanent members of the Security Council. It is clear that any recommendation for an amendment, procedural or substantive, which intends to check the powers of the P5s would not be acceptable to them. It is also clear that if any recommendation is made which is adverse to any permanent member, may not pass any constitutional process which shall remove itself from the Security Council. While a general discussion may be made on the floor of the UN, removing a permeant member from the Security Council, with the available provisions in the Charter, is almost impossible. No country would ratify a resolution which speaks of its own exit from the P5s of the Security Council.
Conclusion
According to ‘Oppenheim's International Law: United Nations’, permanent membership of the Security Council was given to the P5 based on their importance in World War 2. It is indeed true that the P5 had spearheaded the Allied forces and had also bore the brunt of the War. And it is amply clear that the victors of the World War 2 who had charted the UN Charter never intended to disposes themselves of the privileges, which they had given to themselves. It must be remembered that the Member nations (including the P5) are bound to the Charter and must uphold the Principles in letter and spirit. It is more like a contractual obligation. The Security Council had stepped in, time and again, whenever there was violation of international peace and stability. So now in the times of the Covid-19 pandemic, it cannot turn a blind eye when one its own P5 is suspected of causing disruptions to world health. Thus in situations when a permanent member is suspected of causing sever dents in international peace, Member countries can come together to raise a matter in the Security Council. A constructive interpretation of the Articles of Chapter V and VI, brings a conclusion that the Security Council can investigate and pass appropriate directions on such matter by keeping the accused permanent member country at abeyance. This is because Article 27 of the Charter says that decisions of the Security Council on “all other matters” would require concurring votes of the permanent members, barring the party to the dispute who shall abstain from voting. When a permanent member is made a party to a dispute as per Pacific Settlement of Disputes, the permanent member country can thus be legally prevented from vetoing, only on that matter in dispute, till the outcome of the proceedings of the dispute. On the issue of amendment to the Charter, the available provisions are very rigid and gives an impression that the original P5 is here to stay, irrespective of prospective geo-political developments. However, existing provisions can definitely be construed to hold a permanent member country liable for crimes against humanity or for any civil wrongs. Turning a blind eye to such issues, like the origins of the Covid-19 pandemic due to misdeeds of any Member country, would be a contractual violation of the Charter.
The way ahead
Many suggestions on reforms to the Security Council have been proposed by institutions, academicians and governments. If the Security Council truly intends to respect its democratic nature, it may deliberate on bringing reforms to thyself. It can bring checks and balances for its own permanent members. It can also consider the long due additions to the current list of P5s. This may be on a rotational basis and shall proportionally represent Members who come from different geo-political backgrounds. Lastly, while nobody would like to lose its throne, the P5 must realize that it has a contractual obligation to serve the geo-political interests of the whole world and not just itself. If these issues remained unresolved, the UN Charter would stand to be the most violated contractual document, now and in the coming times.
The opinion expressed in this Article is personal, is personal.
