On December 6, the United Nations (UN) Secretary-General António Guterres, acting under Article 99 of the UN Charter, formally warned the UN Security Council of a looming global threat from the ongoing war between Israel and Hamas. This is the first time that Guterres has invoked Article 99 since becoming Secretary-General, and only the fourth time in the history of the UN that a Secretary-General has formally and explicitly invoked Article 99 — the most recent having been in 1989. In this explainer, I will explore the meaning and impact of Article 99, and consider why Gueterres invoked it.
What Exactly Is Article 99?
Article 99 is a rarely used clause in the UN Charter that states that “[t]he Secretary-General may bring to the attention of the Security Council any matter which in his opinion may threaten the maintenance of international peace and security” (emphasis). Article 99 is a preventive diplomacy tool that a UN secretary-general can use to bring an escalating crisis to the attention of the Security Council – the 15-member UN body with the primary responsibility for the maintenance of international peace and security. Article 99 was “designed to give the Security Council the benefit of warnings about current or potential threats to the peace so that that body may take appropriate (presumably preventive) action.”
As the Preparatory Commission of the United Nations, noted in 1944:
Under Article 99 of the Charter…, he [the Secretary-General] has been given a special right which goes beyond any power previously accorded to the head of an international organization, viz, to bring to the attention of the Security Council any matter (not merely any dispute or situation) which, in his opinion, may threaten the maintenance of international peace and security.
By explicitly invoking Article 99, a Secretary-General is able to either place a new item on the agenda of the Council or call for a special meeting of the Security Council. As the second UN Secretary-General Dag Hammarskjöld rightly noted in 1961, “[it] is Article 99 more than any other which was considered by the drafters of the Charter to have transformed the Secretary-General from a purely administrative official to one with an explicit political responsibility”.
Why Did Guterres Invoke Article 99?
Guterres rationale for having invoked Article 99 are laid out in his December 6 letter to the Security Council.
I am writing under Article 99 of the United Nations 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,” the letter stated. Further, Guterres warned that amid constant bombardment by the Israeli Defense Forces and without shelter or essentials to survive, he expected “public order to completely break down soon due the desperate conditions, rendering even limited humanitarian assistance impossible.
He also warned that “[a]n even worse situation could unfold, including epidemic diseases and increased pressure for mass displacement into neighboring countries.”
Even more significant, Guterres urged the Security Council to call for an immediate humanitarian cease-fire. The appeal to the Security Council was necessary because under the UN Charter, neither the Secretary-General nor the General Assembly has the mandate to issue a binding and enforceable ceasefire order.
What Sort of Precedent Exists for the Invocation of Article 99?
Article 99 has been formally invoked only three times in the 78 years that the UN been in existence – in 1960 (Congo), 1979 (Iran), and 1989 (Lebanon). In the face of the escalating crisis in Congo in 1960, the second UN Secretary-General Dan Hammarskjöld (1953 – 1961) invoked Article 99. In 1979, the fourth UN Secretary-General Kurt Waldheim (1972 – 1981) invoked Article 99 in response to the Iran Hostage Crisis. In 1989, the fifth UN Secretary-General, Javier Pérez de Cuéllar, specifically invoked Article 99 to urge the Security Council to call for a ceasefire during the Lebanese civil war. To be clear, a UN Secretary-General can bring a matter to the attention of the Security Council without explicitly invoking Article 99 and some former UN Secretaries-General have taken this route. Indeed, in the over 100 conflicts in which the Secretary-General intervened, only a very few included a formal Article 99 invocation.
Can Article 99 Effectively End the Humanitarian Crisis in Gaza?
Whether Article 99 is an effective early warning device largely depends on who you ask and also probably depends on what “effective” means in the context of the Security Council. Although all three times that the former UN Secretaries-General explicitly invoked Article 99, the Security Council acted, in the context of the Israel-Hamas war, Article 99 failed; it is the first time in the history of the UN that the Security Council failed to respond positively to a Secretary-General’s explicit invocation of Article 99.
In response to the Congo crisis and Secretary-General Dan Hammarskjöld’s invocation of Article 99, the Security Council adopted resolution 143 (1960) of 14 July 1960, by which it decided “to authorize the Secretary-General to take the necessary steps, in consultation with the Government of the Republic of the Congo, to provide the Government with such military assistance as might be necessary until … the national security forces might be able … to meet fully their tasks”. When Secretary-General Kurt Waldheim’s invoked Article 99 in response to the Iran Hostage Crisis, the Security Council unanimously adopted Resolution 457 (1979) of 4 December 1979 which among other things “call[ed] upon the Government of Iran to release immediately the personnel of the Embassy of the United
States of America being held at Teheran, to provide them with protection and to allow them to leave the country.” And, when in 1989 then Secretary-General Javier Pérez de Cuéllar urged the Security Council to call for a ceasefire in the Lebanese civil war, the Security Council responded by issuing a statement that called for a ”total and immediate cease-fire” and the ”opening of lines of communication and the lifting of sieges” in Beirut. The New York Times notes that “the Security Council’s appeal came at the end of an unusual late-night meeting called by Secretary General Javier Perez de Cuellar on his own authority under Article 99 of the United Nations Charter.”
Did Article 99 Fail in the Context of the Israel-Hamas War?
In the context of the Israel-Hamas war, Article 99 failed woefully. Although by invoking Article 99, the Secretary-General was able to compel an emergency meeting of the Security Council, he ultimately could not get the Security Council to call for a ceasefire. On December 8, the U.S. vetoed a Security Council draft resolution that demanded an immediate humanitarian ceasefire in Gaza and the immediate and unconditional release of all hostages. Thirteen out of the fifteen members of the Security Council voted in favor of the said resolution, one member (the United Kingdom) abstained, and one member (the U.S.) voted against the resolution. The ceasefire resolution failed because under the UN veto system, a negative vote from any of the five permanent members of the Security Council effectively blocks a resolution from being passed.
Is the Invocation Value of Article 99 Purely Symbolic?
First, as a sole independent political tool, Article 99 enables the UN secretary-general to convene a meeting of the Security Council without external influence but does not guarantee any particular outcome. Past Secretaries-General that invoked Article 99 did not always get the Security Council to act exactly the way they wanted. In the context of the Lebanese civil war, The New York Times reports that Mr. Perez de Cuellar, the United States, France, Britain and most other Council members wanted a formal resolution, which is theoretically binding on United Nations members, rather than the presidential statement that was finally adopted. Anxious to minimize any implicit criticism of the Arab League for abandoning its mediation efforts, Algeria reportedly blocked a formal resolution in response to the Lebanese civil war, according to The New York Times.
Second, although all three times that former Secretaries-General invoked Article 99 the Security Council actually acted, the use of Article 99 has had mixed results overall. For example, in the context of the crisis in Congo in 1960, although the Security Council adopted Resolution 143 (1960) in response to the invocation of Article 99, the Congolese war continue, the country’s first legally elected Prime Minister Patrice Lumumba was assassinated in 1961 and country’s crisis deepened in the years that followed. And, although the invocation of Article 99 during the Iran Hostage Crisis got the Security Council to unanimously adopt Resolution 457 which among other things called for the release of American hostages, the hostages were held for a total of 444 days and were only released in 1981 after the signing of the Algiers Accords.
In essence, Article 99 is not immune to the veto powers of the five permanent members of the Security Council nor to broader geopolitics that rock the UN. Walter Dorn is right in his observation that “[t]he crux of the problem for early warning and Article 99 invocations has been that the major powers will themselves alert the Security Council to threats to the peace if and when they see the need; if they do not bring up such matters up, it usually means that they do not want them brought up.” He notes that “If the Secretary-General “forces” the matter on the agenda of the Council by invoking Article 99, he risks raising the ire of one or more members of the Council.”
Conclusion
The third UN Secretary-General U Thant (1961 to 1971) believed that “nothing could be more divisive or useless than for the Secretary-General to invoke Article 99 in a situation where there is no real possibility of the Security Council agreeing on any useful positive role.” He was probably right. Although Article 99 gives a primary, independent political role to the UN Secretary-General to nudge the Security Council to act when and where international peace and security is threatened, primary responsibility for the maintenance of international peace and security remains with the Security Council. Although a unique tool, ultimately, a Secretary-General’s intervention does not “fundamentally change the political calculation of the Security Council’s most powerful members.” With mounting civilian casualties in Gaza and the failure of the Security Council to call for a ceasefire, impatience with the Security Council, the UN, and international law will only grow. The time is arguably ripe to revisit some of the fundamental principles, laws, and processes that underpin the UN system.
Uche Ewelukwa Ofodile (SJD, Harvard) is a Senior Fellow of the Mossavar-Rahmani Center for Business and Government at the Kennedy School of Government at Harvard University and a member of the Council on Foreign Relations. She holds the E.J. Ball Endowed Chair at the University of Arkansas School of Law where she has taught a broad range of courses including Public International Law.
