August 2019 Monthly Forecast

In Hindsight: Article 99 and Providing the Security Council with Early Warning

Of the five articles in the UN Charter assigning functions to the Secretary-General, Article 99 is the most important in the context of international peace and security. It grants the Secretary-General the authority “to bring to the attention of the Security Council any matter which in his opinion may threaten the maintenance of international peace and security”. In this way, Article 99 allows the Secretary-General to initiate a Security Council discussion. Secretary-General Dag Hammarskjöld underscored that “[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”. The drafters of the Charter were fully aware of the weight of vesting this task in the Secretary-General: as the report of the UN Preparatory Commission points out, “the responsibility it confers upon the Secretary-General will require the exercise of the highest qualities of political judgment, tact and integrity”.

Article 99 is resorted to infrequently, and it is invoked explicitly even less often. The first time the implicit invocation of Article 99 led to immediate Council action was most likely the 13 July 1960 letter from Hammarskjöld requesting an urgent Council meeting on the Congo. While not specifically referring to Article 99, the Secretary-General used its language when he said, “I have to bring to the attention of the Security Council a matter which, in my opinion, may threaten the maintenance of international peace and security”. The meeting led to the Council’s authorising the next day the deployment of a UN military operation to assist the government of the Congo.

The Security Council has long been aware of the need for an early warning of impending international crises. At a 1985 meeting on the responsibility of the Security Council in maintaining international peace and security, Secretary-General Javier Pérez de Cuéllar pointed out that “as crises have frequently been brought before the Council too late for preventive action, it would seem to follow that the Council might well establish a procedure to keep the world under continuing survey in order to detect nascent causes of tension” (S/PV.2608).

At the Council’s first summit meeting in January 1992, its members charged the Secretary-General with providing “analysis and recommendations on ways of strengthening and making more efficient […] the capacity of the UN for preventive diplomacy”. The presidential statement adopted at the summit meeting agreed that the analysis and recommendations “could cover the role of the UN in identifying potential crises and areas of instability” (S/23500). In response, Secretary-General Boutros Boutros-Ghali issued An Agenda for Peace, a report in which, among other issues, he outlined a number of additional preventive diplomacy processes and advocated for an increased resort to fact-finding “by the Secretary-General, to enable him to meet his responsibilities under the Charter, including Article 99”.

While prevention is often espoused as a goal for the Council, it has been difficult to execute. The absence of an early warning, risk analysis, and intelligence-gathering capacity were cited as among the reasons why the UN failed to respond to the genocide in Rwanda and Srebrenica in 1994 and 1995 respectively. A report (S/1999/1257) on the UN’s failure in Rwanda concluded that it was “essential both to continue to improve the capacity of the organization to analyse and respond to information about possible conflicts, and its operational capacity for preventive action”.

In 2012, as the crisis in Sri Lanka unfolded, the UN and the Security Council again were criticised for failing to respond adequately. While the Secretary-General briefed the Council once in an informal interactive format on Sri Lanka, he did not use his Article 99 powers formally to bring the situation to the Council’s attention, which may have helped place the situation on the Council’s agenda. An internal review of the UN’s handling of the situation pointed to the absence of formal and clear early warning as a major lesson. The report also said that “the Secretary-General should make more regular and explicit use of his Security Council convening authority under Article 99 of the Charter”.

More recently, after attacks by the Arakan Rohingya Salvation Army on government security posts on 25 August 2017 were met with a violent response by the Myanmar military forces, and more than 745,000 Rohingya fled to Bangladesh, Secretary-General António Guterres wrote to the Council (S/2017/753). He urged a concerted effort to prevent further escalation of the Rohingya refugee crisis in Rakhine State, calling on the Council “to press for restraint and calm to avoid a humanitarian catastrophe”. While not evoking Article 99, he chose to bring the situation to the Council’s attention. This led to the first public briefing on Myanmar since 2009 where the Secretary-General spoke about immediate action that needed to be taken. Although the Council was able to adopt a presidential statement on Myanmar in November 2017, it has remained divided on stronger action. In June 2019, an independent review of the UN system’s operation in Myanmar in the lead-up to the mass exodus of Rohingya regretted that member states had not provided the UN with the necessary political support for effective action.

Starting in 2001 with resolution 1366, the Council adopted several decisions on conflict prevention, recognising the potential of Article 99 and the essential role of the Secretary-General in this context. In 2014, the Council encouraged the Secretary-General in resolution 2171 “to bring to its attention any matter which in his opinion may threaten the maintenance of international peace and security, in accordance with Article 99 of the Charter of the United Nations”.

In late 2010, the Council began a practice that could be characterised as being in the spirit of Article 99. The UK, as Council president in November 2010, began what became regular briefings by the Under-Secretary-General for Political Affairs on any issues that were causing the Secretariat serious concern, including those not on the Council agenda.  For 14 months, with the exception of the two US presidencies, the Council held these “horizon-scanning” briefings monthly. In the face of opposition from some countries being discussed, as well as a number of Council members, these briefings became less frequent and ended after December 2013.

Early warning seemed to be given another chance with the “Rights Up Front” (later renamed “Human Rights Up Front”) initiative, launched by the Secretariat in late 2013. It sought to bring together all three UN pillars—peace and security, development, and human rights, and called for earlier and more frank briefings by the Secretariat to the Council, including in formal sessions under Article 99. The Secretariat also launched a new format­—Situation Awareness Briefings—for its preventive engagement with the Security Council, outside the Council chambers. As with previous efforts, sensitivity to being discussed by the Council has generally led to pushback, making these attempts short-lived. Ultimately, the Secretariat’s heightened attention to human rights did not appear to translate into alerting the Council about worrying signs.

Other ways to apprise the Council of emerging issues have included the “Any Other Business” (AOB) part of Council consultations and the monthly Secretary-General’s lunches and Council wrap-up sessions. The Secretariat regularly asks to brief the Council under AOB and the Secretary-General has raised situations of concern that are not on the Council’s agenda during his lunches. However, a more structured early warning system has proved elusive.

A case could be made for the Secretary-General to make greater use of his Article 99 powers today, given that the current Council dynamics could make it difficult to get agreement on discussing emerging conflicts. Bringing such situations to the Council’s attention would open up the possibility that the Council might focus on its conflict prevention role and Chapter VII’s variety of tools. This, in turn, might lead the Council to take a step closer to fulfilling the promises of the “never again” pledge.

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