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Invoking Article 99 of the UN Charter: Does It Make a Difference?


Osama Tayeh, a volunteer known as the “children saver,” was killed on Dec. 5
Osama Tayeh, a volunteer known as the “children saver,” was killed on Dec. 5 by Israeli bombardment in Gaza. The essayist writes that invoking Article 99 of the United Nations Charter by Secretary-General António Guterres was a “rare initiative” but nothing more than a “political booster with no legal implications.” PALESTINE RED CRESCENT SOCIETY

On Day 60 of Israel’s offensive on Gaza, United Nations Secretary-General António Guterres took a rare initiative — invoking Article 99 of the UN Charter “to bring to the attention of the Security Council a matter, which in my opinion, may aggravate existing threats to the maintenance of international peace and security.” He also reiterated his call in the letter he sent to the rotating president of the Council for a “humanitarian ceasefire” and urged the Council to “avert a humanitarian catastrophe.”
Israel was particularly outraged by the secretary-general’s letter invoking Article 99, calling it a “biased step” against the country and that “Guterres’s tenure is a danger to world peace.” Palestine’s envoy qualified the move as “brave, courageous, principled position of the secretary-general upholding his sacred mission.” In reality, his surprising action was nothing more than a political booster with no legal implications.

The not-so-known Article 99 confers on the secretary-general the power to “bring to the attention of the Security Council any matter which in his [her] opinion may threaten the maintenance of international peace and security.” The article, procedural in nature, is arguably the only provision in the Charter that mandates the “Chief Administrative Officer” of the UN to act “politically,” as Secretary-General Kofi Annan pointed out in September 2001, although he said he had “never yet found it necessary” to invoke it.

Article 99 has seldom been used, expressly or by implication, throughout the history of the Council. But its powers have been implicitly used by secretaries-general to offer their good offices and establish fact-finding missions. More important, the Council, through its rotating president in July 2000, underscored “the essential role of the Secretary-General in the prevention of armed conflict in accordance with Article 99 of the Charter of the United Nations, and expresses its willingness to take preventive action in response to matters brought to its attention . . . by the Secretary-General.”

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Otherwise, it would be difficult for a secretary-general to formally draw the attention of the Council to a matter not already on its agenda. Parliamentary procedures of the principal organs of the UN are governed by rules designed to make ad hoc additions of items on their agenda time-consuming and not always politically feasible. That is also why Article 99 exists.

There is little doubt of the urgent need for the Security Council to demand a ceasefire, considering the humanitarian horrors occurring throughout Gaza. But the scope and human consequences of Israel’s onslaught are hardly breaking news for the Council, which has had before it no less than three draft resolutions calling for a “humanitarian ceasefire,” which were all defeated. (On Nov. 15, it adopted — with an abstention by the United States — a resolution merely “[calling] for urgent and extended humanitarian pauses and corridors throughout the Gaza Strip.”)

On Dec. 8, the Council voted on a fifth draft resolution, co-sponsored by a record 102 member states within 24 hours. Heeding the appeal of Guterres in his Dec. 6 letter, the Council would have demanded “an immediate humanitarian ceasefire” and that “all parties comply with their obligations under international law, including international humanitarian law” as well as “the immediate unconditional release of all hostages,” had the draft been adopted. But the US used its veto — Israel’s diplomatic iron dome — deeming the text “imbalanced.”

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Unlike other Council members who referred to Guterres’s letter, US Alternate Representative for Special Political Affairs Robert Wood made scant reference to it in a seeming snub of the secretary-general, just as Ambassador Linda Thomas-Greenfield’s absence suggested, rather than being the forever face of a lonely raised hand to veto a humanitarian ceasefire, as she did in mid-October on the same matter.

As a result of the Council’s inaction on the Dec. 8 vote, however, four days later, the General Assembly adopted by a vote of 153 to 10 a resolution that “demands” an immediate humanitarian ceasefire. Thomas-Greenfield was there to vote no with Israel, Austria, Czechia, Guatemala, Liberia, Micronesia, Nauru, Papua New Guinea and Paraguay, showcasing the increasing isolation of the Biden administration on the world stage.

The crude reality is that not even a binding Security Council resolution would have compelled Israel to halt its onslaught. After the Assembly’s adoption of the resolution, US President Biden said in a public setting that Israel’s bombing of Gaza was “indiscriminate” — a war crime — but Prime Minister Benjamin Netanyahu boasted that “nothing will stop us.”

So why invoke Article 99 to call for a humanitarian ceasefire that Guterres had already called for? Was it a procedural requirement, in keeping with the spirit and letter of the article or a stunt to mitigate internal criticisms and pressures from the humanitarian community, including the UN’s own staffers imperiled in Gaza?

In the past, UN secretaries-general have written to the Council about situations they deemed a threat to international peace and security without invoking Article 99. Procedurally, Guterres could have sent the same letter minus the reference to the article. What is surprising is not what he has done but what he has not done.

On Nov. 16, 36 special-mandate holders of the UN Human Right Council, all eminent jurists and experts, issued a clear and chilling statement declaring that “many of us already raised the alarm about the risk of genocide in Gaza” and that they “are also profoundly concerned about the support of certain governments for Israel’s strategy of warfare against the besieged population of Gaza, and the failure of the international system to mobilise to prevent genocide.”

Such alarms did not seem to be enough to impel Guterres to draw the Council’s attention to the presumption of a genocide or genocidal acts taking place in Gaza. Since Nov. 16, when the human rights specialists raised the alarm, the evidence of what bears the hallmarks of a genocide — the “carnage,” as Josep Borrell, the European Union foreign policy chief, and the UN’s top humanitarian boss, Martin Griffiths, put it — grew tragically larger.

Noteworthy, too, is the strange silence of Guterres’s special adviser on the prevention of genocide, Alice Wairimu Nderitu. Since Oct. 7, she has issued press statements on the Armenia-Azerbaijan and Darfur conflicts but none on Palestine.

If “there are no words to describe the horror” in Gaza, as Tedros Adhanom Ghebreyesus, the director-general of the World Health Organization, said, there are assuredly enough words to formulate, at the very least, the fear that a genocide might be afoot. With a bit of zivilcourage, a term Otto von Bismarck coined to describe the courage of one’s convictions that he deemed lacking in politicians and functionaries alike, a secretary-general of the UN should invoke Article 99 to enjoin the Security Council to prevent another genocide — this time in the State of Palestine, an observer state of the UN.

The call of genocide would come too late for the 20,000 dead Palestinians but not for the survivors of a 21st century calamity.

This is an opinion essay.

We welcome your comments on this article.  What are your thoughts of Article 99?

Moncef Khane is a former United Nations official who served as political director of the Office of the Joint Special Envoy for Syria (2012-2014), as well as in peacekeeping missions and in the Executive Office of Secretary-General Kofi Annan.

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Invoking Article 99 of the UN Charter: Does It Make a Difference?
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