On December 8, 2023, the United States, as a permanent member of the Security Council, voted against a draft resolution calling for an immediate humanitarian ceasefire in the Gaza Strip. This American veto sparked angry reactions, especially since it contributes to the Zionist entity's continued commission of genocide, crimes against humanity and war crimes against the Palestinian people in the Gaza Strip.
While some of those who approach the right of veto (veto) from a purely formal perspective are content to say that permanent member states enjoy, under Article (27) of the United Nations Charter, the use of the right of veto in non-procedural matters without cause and in accordance with their discretionary authority, this (veto) raises many questions and observations about its legitimacy and legality. This article will highlight the US veto's lack of both legitimacy and legality in international law.
In fact, the United States' resort to using its veto power (veto) to prevent the issuance of a binding resolution that would stop the genocide committed by the Zionist entity in the Gaza Strip should not be viewed through a purely formal approach; rather, it must be analyzed and read through an objective, contextual, and comprehensive legal approach.
The United States used its veto power to enable the Zionist entity to continue its aggression and crimes, making it a legally flawed and illegal use for many reasons.
There is no doubt that the use of the veto by the United States contradicts peremptory international rules, especially those that prohibit genocide, crimes against humanity, war crimes and aggression. In addition to those that require respect for basic human rights.
The American veto would facilitate the continued violation of the aforementioned peremptory international rules by the Zionist entity. Jus cogens are rules that may not be excluded or dissolved from, and together they constitute international public order. In addition, this type of international legal rule occupies a hierarchical position among all other rules of international law. Of course, this is not the appropriate place to review the various international jurisprudence relevant to this type of international rules.
In any case, states, international organizations and bodies are all obligated to respect peremptory norms. Any agreement that conflicts with it is invalid. The obligation to respect peremptory norms of international law of course binds the Security Council as the executive organ of the United Nations. The judge of the International Court of Justice and the distinguished jurist (Fitzmoris) pointed out in his dissenting opinion within the framework of the advisory opinion of the International Court of Justice regarding Namibia, that the Security Council is subject to international law, as are the member states of the Council and the United Nations in general.
This is the same position adopted by the two judges at the International Court of Justice (Gennings and Vermantree) in the Lockerbie case. In addition, the Appeals Chamber of the Special International Criminal Tribunal for the Former Yugoslavia also indicated, in its ruling issued in the Tadic case, that the Security Council is subject to the provisions of international law, and that the language and phrases used in the Charter of the United Nations indicate that a number of the powers and authorities of the Security Council are not absolute.
The gist of the matter is that the Security Council, because it is subject to international law, is of course subject to the peremptory norms of international law, and, in the words of Professor James Crawford, must be subject to them. This commitment is not limited to the Council as a United Nations body, but also includes the Council's member states, including permanent members. Therefore, the latter's enjoyment of the right of veto (veto) does not mean at all that it is outside the obligation to respect the peremptory rules of international law while carrying out its work within the Security Council. Jus cogens rules govern everyone without any exception.
Another basis that supports the subjection of permanent members of the Security Council to peremptory international rules is the fact that the states that established the United Nations and recognized permanent members in that capacity and with veto power cannot grant those states the authority to violate peremptory international rules.
Moreover, Article (24/1) of the Charter entrusted the Security Council with the primary responsibility for maintaining international peace and security. The Council undertakes this task on behalf of the Member States of the United Nations. This means, in law and in practice, that the Security Council, as a body acting on behalf of those states, has absolutely no right to violate peremptory international rules; neither it nor the permanent members of it.
Based on the above, it is clear that the American "veto" (the subject of this article) contradicts the requirements of Article (24) of the United Nations Charter. In addition to violating peremptory international rules. It led to the Security Council deviating from fulfilling its primary responsibility of maintaining international peace and security. It is therefore permissible to emphasize that the optimal interpretation of the texts of the United Nations Charter in light of the text of Article (24/1) thereof supports the idea that the United States' use of the veto contributes to the continued disruption of international peace and security in the region by perpetuating the Zionist entity's commission of genocide in the Gaza Strip. This was confirmed by the Secretary-General of the United Nations in the exercise of his powers contained in Article (99) of the Charter.
Another reason why the American veto is tainted with illegality is that it involves an abuse of the veto power, as the provisions of the United Nations Charter can be interpreted as prohibiting the abuse of the aforementioned right, especially since Article (24/2) of the Charter assumes that the Security Council carries out its responsibilities in accordance with the purposes and principles of the United Nations. Among those objectives, as we mentioned, are the maintenance of international peace and security, respect for human rights and the right of peoples to self-determination.
All of them are characterized as peremptory international rules. What is striking in this regard is that the United States itself has previously commented on Russia's use of the veto on more than one occasion as an abuse of the right.
In addition to the above, the US veto contradicts one of the fundamental principles of the United Nations, which is that member states must implement their obligations arising from the Charter in good faith. It is also one of the general principles of international law, and permanent members of the Security Council must take it into account when using the veto.
This is what the United States did not do in the context of its use of its veto power to prevent the issuance of an immediate ceasefire decision, especially since its intention behind it is clear: to facilitate and enable the Zionist entity to continue its crimes against the Palestinian people in Gaza.
It is most likely in international law that Security Council resolutions that conflict with peremptory international rules are invalid. Does this ruling apply to the use of the veto in a way that contributes to maintaining a breach of a peremptory international rule, as happened in the case of the American veto?
It is no surprise that the US veto contributed to the Zionist entity's continued commission of genocide, crimes against humanity, war crimes, and aggression. The draft resolution, the issuance of which was obstructed by the United States, calls for an immediate ceasefire, and the American veto perpetuates and facilitates this violation of peremptory international rules, and its continuation and preservation. In doing so, it inevitably conflicts with the necessity of ending any situation that involves a breach of a peremptory norm of international law.
Finally, the United States' use of the veto power contradicts the provision contained in Article (41/1) of the Articles on State Responsibility for Unlawful Action adopted by the United Nations in 2001, as the aforementioned article requires states to cooperate to put an end to and end any serious breach of a peremptory norm of international law through legal means. The US veto can be considered to have prevented cooperation to end a breach of a peremptory international norm as mentioned above.
In addition, the American veto also contradicts Article (41/2) of the Articles of State Responsibility, which requires states not to recognize the legality of any situation arising from a serious breach of a peremptory norm, and not to provide any aid or assistance to perpetuate or maintain it. There is no doubt that the American veto perpetuates such a situation in the Gaza Strip.
We conclude from the above data that the American veto is legally flawed and illegitimate, and that it places legal responsibility on the United States. In this regard, we call for investing in the measure adopted by the United Nations General Assembly in 2022 under Recommendation No. 76/262, which allows the United Nations General Assembly to meet automatically after ten days of using its veto power to discuss it, comment on it, and determine its reasons, and to put dots on the United States' involvement in the genocide crimes committed in the Gaza Strip Emphasizing that its use of the veto falls within this context, and that through its behavior it has become a source of undermining international peace and security and is not qualified to preserve and maintain it.