Article 99: Guterres knows that employing legality with UNSC is futile

In a letter dated December 6 2023, the UN Secretary-General Antonio Guterres invoked Article 99, a rarely used provision of the UN Charter, to bring to the attention of the Security Council “hostilities in Gaza and Israel’ as he believes it ‘may aggravate existing threats to international peace and security”.

The invocation of Article 99 is noteworthy because it has been invoked only six times since the founding of the UN in 1945. The practical impact of the invocation, which has made global headlines, is minimal, as the Secretary-General has no power to compel the Security Council to take action. While his letter resulted in a Security Council meeting on December 8, the United States used its veto power to prevent a draft resolution calling for an immediate ceasefire from being adopted. The veto power of the big five is a key factor that weakens the ability of the UN system to take action even at times when “There is no effective protection of civilians”, as in Gaza now.

The invocation’s value is only symbolic, as it is a formal means through which the Secretary-General placed on record before the highest body in the UN his repeated calls for a ceasefire. Interestingly, in his letter Guterres makes no reference to his previous public statements on the need to adhere to international humanitarian law. Nor has he reiterated that Israel, a member of the UN, is duty bound to adhere to international humanitarian law. He focuses on the "human suffering and collective trauma’ caused in the last eight weeks, rather than legal obligations imposed by international humanitarian law, to urge action by the Security Council. This is despite the fact that much of international humanitarian law, which governs armed conflict between states as well as between states and non-state armed groups, has the status of customary international law. Customary international law is law that has evolved from ‘a general practice accepted as law". It binds both state and non-state parties to a conflict regardless whether they have ratified the four Geneva Conventions.

The lack of a single mention of international humanitarian law in Guterres' letter is perhaps an indication that the deliberate disregard of international law by the permanent members of the Security Council has made the Secretary General realise that there might be a better chance of eliciting some action if he appealed to their humanity instead. The Secretary-General’s attempt failed and Israel's violence against the Palestinian people continues.

In his letter Guterres states, "The current conditions are making it impossible for meaningful humanitarian operations to be conducted. We are, nevertheless, preparing options for monitoring the implementation of the resolution, even if we recognise that in the present circumstances it is untenable". His statement demonstrates that many UN processes, although established with the intent of protecting the human rights and security of people, have become largely academic. This is because most UN bodies and processes have no enforcement authority and cannot compel member states to implement resolutions or recommendations.

The inability of UN systems and processes to provide substantive remedies, despite the stated aims, has contributed to the trauma of victims and survivors. The public have high and rather unrealistic expectations of the UN. For instance, they are unaware that even when complaints of enforced disappearances or torture are made to varying UN entities, the actions these bodies are empowered to take consist mainly of documenting violations, exchanging communications with the state concerned, concluding that rights violations have taken place and making recommendations for remedial action. The ultimate power to decide whether to take action lies with the state.

Despite this, human rights advocates and victims engage with these processes and mechanisms because when their country fails/refuses to provide remedies, they have no choice but to seek the assistance of the only other available mechanisms, however limited their powers and the chance of obtaining a remedy. They do it because they do not want the violations they experienced to be erased or denied and want to challenge the oppressor even in an extremely limited way.

The UN is what its members make of it, and over the decades member states have consistently and deliberately undermined the international legal system as well as the UN and its processes. The US veto on 8 December is an example of this, as it has weakened the international legal system by enabling the continuing violation of international humanitarian law by Israel.

At this moment in history we are witnessing the incineration of the international legal system. While many ask the valid question, ‘what’s the point of the UN/international law’, a world without an international legal system or a world in which states brazenly flout international law even when faced with devastating violence against civilians will be a more dangerous, violent and lawless world, including for Israel and its allies.