This chapter examines how a cyberattack that has consequences similar to a kinetic or physical attack – causing serious loss of life or physical damage – could be encompassed within the crimes that may be prosecuted before the International Criminal Court (“ICC”). While it is a very limited subset of cyber operations that might fall within the ambit of the ICC’s Rome Statute, the chapter explains when and how a cyberattack could constitute genocide, crimes against humanity, war crimes, or the crime of aggression. The chapter additionally acknowledges limitations as to which attacks would be encompassed, given, particularly, the ICC’s gravity threshold as well as the hurdle of proving attribution by admissible evidence that could meet the requirement of proof beyond a reasonable doubt. Notwithstanding such limitations, increased awareness of the largely previously overlooked potential of the Rome Statute to cover certain cyberattacks could potentially contribute to deterring such crimes and to reaching the goal of a state of “cyber peace.”

This chapter traces the origins of the veto power of the permanent members of the UN Security Council from the negotiations leading into the San Francisco Conference to the finalization of the UN Charter. It then examines early response to Security Council paralysis – resolutions in the late 1940s by the General Assembly calling for veto restraint as well as the “Uniting for Peace” Resolution in 1950. Even though expectations for the Security Council have probably gone beyond the intention of the drafters of the UN Charter, especially since the end of the Cold War it is clear that when there is sufficient political will, this body has the legal ability to prevent or stop many situations of catastrophic consequences to communities, countries, and regions around the world. Concomitantly, when the Council does not take on such a role, there is widespread disenchantment with its performance. The lack of responsiveness to the commission of mass atrocity crimes (genocide, crimes against humanity, and/or war crimes), which have occurred virtually unimpeded in places such as Rwanda, Darfur, Syria, Sri Lanka, Myanmar, and Yemen has come at a staggering toll in terms of lives lost. Much of the time, inaction by the Council can be specifically traced to use of the veto, or the threat of the veto, by one or more of the permanent members. This chapter makes the case that it is time to reconsider existing hard law legal obligations and recognize that these in fact impose limitations on the use of the veto in the face of atrocity crimes.

This chapter explores initiatives that have sought voluntarily to restrain use of the veto in the face of atrocity crimes. They include: the “responsibility not to veto” found in the “responsibility to protect,” the “S5 initiative,” the French/Mexican initiative not to veto in the face of atrocity crimes, the ACT (Accountability, Coherence and Transparency) group of states’ Code of Conduct, and a proposal by a group known as “The Elders.” In addition to explaining the initiatives and providing background on them, this chapter evaluates the merits of each of the different approaches. Because all the initiatives call for voluntary veto restraint, until the recalcitrant permanent members of the Security Council (the Russian Federation, the People’s Republic of China, and the United States) join these initiatives – which appears unlikely – the initiatives will not fully solve the problem of veto use, or the threat of veto use, in the face of atrocity crimes.

This chapter makes the case that it is appropriate, and justified, to revisit – based on existing international legal obligations – the problem of veto use in the face of genocide, crimes against humanity, and/or war crimes. The chapter presents three main legal arguments that indicate there are legal limits (or constraints) on the use of the veto in the face of genocide, crimes against humanity, and/or war crimes. First, the chapter argues that the veto power, which is conferred by the UN Charter, is subordinate to the highest-level jus cogens norms; as a consequence, the veto should not be used (i) where it has the effect of facilitating ongoing jus cogens violations, (ii) where it undermines the duty of other Security Council members to cooperate to make an appropriate response to a serious breach of a jus cogens norm, or (iii) where its use is inconsistent with jus cogens protections. Second, the chapter argues that the veto power sits within the context of the UN Charter, which states that the Security Council must act pursuant to the UN’s “Purposes and Principles”; a veto in the face of genocide, crimes against humanity, and/or war crimes does not accord with the UN’s “Purposes and Principles.” Third, the chapter argues that there are also treaty obligations that bind individual permanent member states, such as those under the Genocide Convention and 1949 Geneva Conventions, and veto use should not be contrary to obligations created under these treaties.

In light of the issues raised, the chapter considers the scope of judicial review by the International Court of Justice (“ICJ”), concluding that the above legal questions are ones on which the ICJ could, and should, opine. Ultimately, the chapter suggests that the General Assembly consider requesting an advisory opinion from the ICJ on a question such as: does existing international law contain limitations on the use of the veto power by permanent members of the UN Security Council in situations where there is ongoing genocide, crimes against humanity, and/or war crimes?

This final chapter presents two case studies, one where the veto was utilized while atrocity crimes were being committed, and one where the veto was threatened (expressly or implicitly) while atrocity crimes were being committed. The first case study traces climbing death tolls and growing recognition that mass atrocity crimes were occurring in Syria, while Russia, sometimes joined by China, invoked the veto on thirteen separate occasions. The vetoes blocked recognition of crimes, investigation of crimes, prosecution of crimes, as well as other measures. That a significant number of resolutions that would have condemned regime and/or opposition crimes failed to pass or were significantly delayed could not have failed to send a metaphorical “green light” to the perpetrators; thus, the vetoes are partly responsible for the still unfolding human tragedy. The second case study traces climbing death tolls in the early 2000s while the Sudanese military and Janjaweed militia committed mass atrocity crimes against the Fur, Masalit, Zaghawa, and other ethnic groups in the Darfur region of Sudan. These crimes likely constituted genocide, and, at minimum, war crimes and crimes against humanity. During the key years when the crimes were occurring, China blocked by threat of the veto: initially, any imposition of sanctions on the Government of Sudan, and, permanently, any oil embargo, as well as peacekeeping that was not consensually negotiated with the Government of Sudan. Eventually, a hybrid peacekeeping mission was agreed to and deployed, but only after the height of the killing had occurred and with a weakened mandate. The Security Council’s delays and tepid approach to sanctions and peacekeeping, which significantly increased the death toll, are at least partly attributable to Chinese threats (both express and implied) to use the veto.

This chapter explores two doctrines that developed in response to Security Council paralysis or inaction in the face of atrocity crimes. The first is the doctrine of humanitarian intervention, most famously invoked in 1999 to justify the intervention of NATO in Kosovo, although largely dismissed by most states as impermissible, at least under a strict reading of the UN Charter. The second doctrine is the “responsibility to protect” (“R2P”), which was first formulated in 2001 but has since undergone significant modifications. Because the later formulations of R2P require Security Council authorization for any forceful intervention, R2P ultimately fails to address the problem of Security Council paralysis in the face of atrocity crimes. Furthermore, because R2P was invoked as part of the 2015 intervention in Libya, which left a destabilized state, and appears to have been largely ignored with respect to atrocities in Syria, enthusiasm for R2P may be waning; some ideas for its revitalization are explored in the chapter. The chapter ultimately makes the case that until the international community solves the problem of veto use in the face of atrocity crimes, some states still will be tempted to invoke, or engage in, humanitarian intervention because there are currently no satisfactory alternatives to addressing Security Council paralysis blocking forceful intervention; yet, there remain significant dangers to such an approach. Ultimately, the chapter concludes that by addressing the problem of use, and threatened use, of the veto in the face of atrocity crimes, one could both strengthen R2P and lessen any need to invoke humanitarian intervention.

This book examines veto use by the permanent members of the UN Security Council while atrocity crimes are being committed – genocide, crimes against humanity, and/or war crimes. The veto power, conferred by UN Charter Article 27(3), allows any one of the five permanent members – the US, the UK, Russia, China, or France – to block a substantive resolution within the Council by casting a negative vote. Both today, and in the past, permanent members use, or have used, their veto power to block resolutions, including those designed to curtail or alleviate the commission of atrocity crimes, with dire consequences sometimes resulting on the ground. For example, when chemical weapons inspections that would have attributed responsibility to the side using the weapons in Syria are blocked by the veto and chemical weapons attacks continue, veto use appears to be costing lives.

INTRODUCTION

At the Review Conference on the International Criminal Court's Rome Statute, held in Kampala, Uganda, from May 31 to June 11, 2010 (Review Conference), States Parties to the Rome Statute1 achieved a significant and historic result. They adopted, by consensus, a definition of the crime of aggression and conditions for the exercise of its jurisdiction for purposes of the International Criminal Court (ICC).2 Not all States were completely satisfied with the outcome – some desiring a stronger jurisdictional regime, others desiring only Security Council referrals, and others disagreeing with the amendment process.3 Further disagreements surfaced after the Kampala negotiations as to the crime's jurisdictional reach. Nonetheless, States Parties have now seemingly resolved these disagreements, and have taken the second historic step, to activate the crime's jurisdiction effective July 17, 2018. The commencement of jurisdiction has potential to change State practice with regard to uses of force, as well as the development of international criminal law.

This Chapter provides a brief overview of the negotiations leading up to the Review Conference.4 It then discusses key features5 of the amendment package adopted in Kampala, including the definition of the crime, the conditions for the ICC's exercise of jurisdiction over the crime, the elements of the crime, and certain understandings. It also discusses the crime's jurisdictional reach – both the competing views that existed, as well as the result apparently concluded in the activation decision at the December 4–14, 2017, meetings of the ICC's Assembly of States Parties (ASP). The Chapter finishes with suggestions of how commencement of the exercise of ICC crime of aggression jurisdiction could impact state decisions regarding uses of force as well as the ICC's docket.

OVERVIEW OF THE NEGOTIATIONS OF THE CRIME OF AGGRESSION

The concept of aggression as a crime is hardly new. The international community envisioned a world in which States would arbitrate their disputes without recourse to war when, in 1899, they founded the Permanent Court of Arbitration (PCA), and, in 1913, opened the Peace Palace in The Hague (Vredespaleis) to house it.6 This vision failed with the advent of both World Wars I and II.