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.
