INTRODUCTION

In 2001, the International Commission on Intervention and State Sovereignty (ICISS) promulgated the ‘responsibility to protect’ (R2P) doctrine, which included the ‘responsibility not to veto’ (RN2V) initiative. The RN2V initiative provided that ‘[t]he Permanent Five members of the Security Council should agree not to apply their veto power, in matters where their vital state interests are not involved, to obstruct the passage of resolutions authorising military intervention for human protection purposes for which there is otherwise majority support.’ Although the UN Secretary-General's High-Level Panel of Experts endorsed the initiative in 2004, the UN General Assembly's World Summit Outcome Document dropped the RN2V at the behest of the five permanent members of the Security Council (P5) in 2005. Since 2005, proponents of the RN2V have repeatedly advocated for the adoption of the initiative in one form or another. And while there is greater consensus today on the RN2V as a result, the members of the P5, with the notable exception of France, continue to turn a deaf ear to this call for reform.

Notwithstanding the predominantly political nature of the RN2V initiative, when it comes to the crime of genocide – one of the ‘four core crimes’ under the R2P doctrine10 and the ‘crime of crimes’ under international law11 – it is necessary to move beyond the realm of political commitments to the domain of legal obligations in order to determine whether and to what extent the P5 have any legal duties when voting on Security Council (SC) resolutions dealing with the prevention of genocide. This chapter will argue that the duty to prevent genocide is a jus cogens norm12 that not only compels the P5 to vote for draft SC resolutions aimed at preventing or suppressing an imminent or ongoing genocide, but also constrains the P5 from expressly or impliedly veto ing such resolutions, if the P5 are to avoid international responsibility. As a result, the duty to prevent genocide imposes on the P5 a legal duty not to veto (DN2V), rather than a mere political RN2V. In support of this position, the remainder of this chapter will be divided into three parts and will present the following arguments.