Article 99 invoked for Gaza by UN Secretary General Antonio Guterres

For only the sixth time in the history of the United Nations, Article 99 has been called. Cynical reporters ask why no investigation into the UN's dead staff.

For the sixth time in the history of the United Nations, Article 99 has been called. Secretary-General Antonio Guterres is using his powers to order an urgent meeting of the UN Security Council. He’s ensuring that he’s standing on the right side of history, but does it matter when he knows he’ll face the veto power of the USA.

It’s expected that Israel’s Foreign Minister Eli Cohen would respond in this tone:

“Guterres’ tenure is a danger to world peace. His request to activate Article 99 and the call for a cease fire in Gaza constitutes support of the Hamas terrorist organization and an endorsement of the murder of the elderly, the abduction of babies and the rape of women.”

More interesting was the cynicism of the reporters attending the UN briefing. That’s the real story that should be front page news.

The reporters wanted to know why Guterres hadn’t acted long ago, if it meant he was out of options, why he wasn’t addressing the elephant in the room (the USA and its weapon deliveries), and why there isn’t an official investigation into Israel’s killing of UN’s staff. I’ve included the transcript but the video is a must watch.

But let me share the information in order of Guterres letter, the UN spokesperson’s briefing, and then the question and answer session with the reporters.

The Secretary-General letter to the President of Security Council invoking Article 99 of the United Nations Charter

To: His Excellency Mr. Jose Javier de la Gasca Lopez Dominguez
President of the Security Council
New York

6 December 2023

Dear Mr. President,

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.

More than eight weeks of hostilities in Gaza and Israel have created appalling human suffering, physical destruction and collective trauma across Israel and the Occupied Palestinian Territory. 

More than 1,200 people were brutally killed, including 33 children, and thousands were injured in the abhorrent acts of terror by Hamas and other Palestinian armed groups on 7 October 2023, which I have repeatedly condemned.

Some 250 people were abducted, including 34 children, more than 130 of whom are still captive. They must be immediately and unconditionally released. Accounts of sexual violence during the attacks are appalling.

Civilians throughout Gaza face grave danger. Since the start of lsrael's military operation, more than 15,000 people have reportedly been killed [figure may be as high as 23,000], over 40 per cent of whom were children. Thousands of others have been injured. More than half of all homes have been destroyed. Some 80 per cent of the population of 2.2 million has been forcibly displaced, into increasingly smaller areas. More than 1.1 million people have sought refuge in UNRWA facilities across Gaza, creating overcrowded, undignified, and unhygienic conditions. Others have nowhere to shelter and find themselves on the street. Explosive remnants of war are rendering areas uninhabitable. There is no effective protection of civilians.

The health care system in Gaza is collapsing. Hospitals have turned into battlegrounds. Only 14 hospitals out of 36 facilities are even partially functional. The two major hospitals in south Gaza are operating at three times their bed capacity and are running out of basic supplies and fuel. They are also sheltering thousands of displaced persons. Under these circumstances, more people will die untreated in the coming days and weeks.

Nowhere is safe in Gaza.

Amid constant bombardment by the Israel Defense Forces, and without shelter or the essentials to survive, I expect public order to completely break down soon due to the desperate conditions, rendering even limited humanitarian assistance impossible. An even worse situation could unfold, including epidemic diseases and increased pressure for mass displacement into neighbouring countries.

In Resolution 2712 (2023), the Security Council "calls for the scaling up of the provision of such supplies to meet the humanitarian needs of the civilian population, especially children."

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 recognize that in the present circumstances, that is untenable.

While delivery of supplies through Rafah continues, quantities are insufficient and have dropped since the pause came to an end. We are simply unable to reach those in need inside Gaza. The capacity of the United Nations and its humanitarian partners has been decimated by supply shortages, lack of fuel, interrupted communications, and growing insecurity. Humanitarian personnel have joined the vast majority of Gazan civilians in evacuating to south Gaza ahead of advancing military operations. At least 130 UNRWA colleagues have been killed, many with their families.

We are facing a severe risk of collapse of the humanitarian system. The situation is fast deteriorating into a catastrophe with potentially irreversible implications for Palestinians as a whole and for peace and security in the region. Such an outcome must be avoided at all cost.

The international community has a responsibility to use all its influence to prevent further escalation and end this crisis. I urge the members of the Security Council to press to avert a humanitarian catastrophe. I reiterate my appeal for a humanitarian ceasefire to be declared. This is urgent. The civilian population must be spared from greater harm. With a humanitarian ceasefire, the means of survival can be restored, and humanitarian assistance can be delivered in a safe and timely manner across the Gaza Strip.

Please accept, Mr. President, the assurances of my highest consideration. 

Antonio Guterres

PRESS BRIEFING BY UN SPOKESPERSON

Stéphane Dujarric, Spokesperson for the Secretary-General, stated yesterday that:

“I think you will have seen, because I think some of the Ambassadors already made the news, but I will share it with you nonetheless.

Given the scale of the loss of human life in Gaza and in Israel, in such a short amount of time, the Secretary-General has today delivered a letter to the President of the Security Council, invoking Article 99 of the Charter of the United Nations. 

This is the first time that António Guterres has done this since he became Secretary-General in 2017. Article 99 states — and I quote — that ‘the 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’.

In the letter, which has been shared with you, the Secretary-General urges the members of the Security Council to press to avert a humanitarian catastrophe, and he appeals for a humanitarian ceasefire to be declared.”

Q&A WITH REPORTERS

Spokesman Stéphane Dujarric: Sherwin?

Question: Steph, thanks. Good afternoon. Perhaps, can you explain the justification behind the invocation of Article 99, right? The letter doesn't contain anything new. It's bringing to the Council's attention a matter that has the Council's attention already. It reiterates what the Secretary-General himself has said, what Volker Türk has said, what Sima Bahous, Martin Griffiths and the list goes on in terms of UN officials speaking to these issues. So what do you expect this letter to do change? What's its impact going to be?

Spokesman: There will be a push to the Security Council and to the international community to push for what the Secretary-General has been calling for, which is a humanitarian ceasefire. I think he is invoking one of the few powers that the Charter gives him. So I think it is in whichever way you see it, a very dramatic constitutional move by the Secretary-General of the United Nations. The actual invocation of Article [99] has not happened in decades. A number of letters have invoked threats to international peace and security, but the actual invocation of the article hasn't happened. I think we're getting to a point of near paralysis of our humanitarian operations in a place where 15,000 people have reportedly already died, where 130 of our colleagues have died. He does not use the word catastrophe lightly. And we very much hope that the Security Council will take his call to heed.

Question: But my argument is he's made this call before, time and time again. I'm just wondering what difference Article 99 is going to make here, whether it is constitutional…

Spokesman: Well, let's hope, I mean, within the constitutional context of the United Nations, it's a very dramatic move. I mean, we understand that the perception from the outside world may be a little different. But for us, it is a very powerful move on behalf of the Secretary-General. And we hope that members of the Security Council will be moved by it, and we hope the international community will be moved by it to push and put in place a humanitarian ceasefire.

Question:  But it's essentially there to bring attention to an issue that the Council… it has the Council's attention already.  So I don't understand what the point is.

Spokesman: Well, the point is to push a little bit more. Pamela, then Dezhi.

Question: Thanks, Steph. Just to push this one notch further, on Article 99's invocation to clarify, would the Secretary-General, is he asking for a resolution or a product or a measure from the Security Council on this?  As Sherwin was saying, he has called for it before.  What precisely does Article 99…  I mean, is he calling for a resolution? Thank you.

Spokesman: Well, I think the letter…  To me, the letter is pretty clear. Also, what I said to you at the beginning, we would like to see a call by the Security Council for a humanitarian ceasefire.  We would like to see the international community and those who were involved in the fighting actually agree to a humanitarian ceasefire.

Question: Thank you.

Spokesman: Dezhi?

Question: So I'm going to have another follow-up on that letter.  I'm sorry. Well, first of all, does that letter mean that the Security Council could set up a meeting by the request of the Secretary-General on the exactly the same issue they discussed many times?

Spokesman: I do expect…  I think one could expect the Security Council to meet this week and the Secretary-General to address them on this very issue.

Question: So that meeting is requested by the Secretary-General? Can we say that?

Spokesman: I think the…  Let's wait for the meeting to be scheduled, but it is important for the Secretary-General to address the Security Council in this regard.

Question: So we talk a lot about this meaning of the Article 99 letter. But to me, I just want to ask, does this also somehow mean that the Secretary-General is dissatisfied with what the Security Council's move now?

Spokesman: Have you…  I think you've been here in this room.  You've heard me.  I hope you've listened to me. I don't think you've seen anyone heap praise in that direction.

Question: But this is stronger language.

Spokesman: It is very much stronger language, which is my point.

Question: Yeah. And also in that letter, it mentioned the resolution 2712. Just now, I asked the Ambassador of Palestine. I said, do you think that resolution has been implemented or not?  And he said, not yet.  So what does the Secretary-General's view on the implementation of the resolution 2712?

Spokesman: He spoke to the Security Council and delivered a fairly detailed report on the implementation of that resolution.  So I don't think much has changed since then. Ephrem?

Question: Thank you so much. Just a quick follow-up on that and then another question. You said he doesn't use the word catastrophe lightly. The word catastrophe has been used since the very first week to describe what the Palestinians are going through. And since the resumption of the war, actually, people are running out of words to describe what the Palestinians are going through. So a quick question. Why hasn't he invoked this article before? What took him so long? What was he waiting for?

Spokesman: Well, you know, I think the line of questioning is, why does this matter, it doesn't really matter and why has he waited so long to do something that…  Right? I think the Secretary…  So I will leave you guys to debate that. I think the Secretary-General has been extremely clear, has been involved. Everything is done, in a sense, in a methodical way. One doesn't invoke this article lightly.  I think, given the situation on the ground and the risk of complete collapse, not only of our humanitarian operations, but of civil order, it's something that he felt needed to be done now.

Question: The former Irish President, Mary Robinson, of The Elders has said that if the United States doesn't restrain Israel, it will own the problem. Does the Secretary-General share this assessment? Does he believe the United States can…  President [Joseph] Biden can stop this war?

Spokesman: It's not for him to comment on that. I think the Secretary-General has been very clear on his calls to the Israelis, to Hamas and to all those who may have influence over the parties that are fighting.

Question: So he doesn't believe, like, many people believe…

Spokesman: That's not, I mean, he's not here to provide colour commentary… [cross talk]

Question: The United States is the only key ally.

Spokesman: I mean, the United States and others play a very important role in trying to, hopefully, bring an end to this conflict. Yes, sir?

Question: Thank you, Steph. A follow-up on the letter, as well.  You just mentioned, like, it is a very powerful move and it's one of the few powers that the Charter gives the SG. Given the situation, like, does that mean that the SG by taking this move is exhausting all his assets — like there's nothing else he can do on this matter?

Spokesman: I think there's… In terms of the Charter, I think it's arguably the most important invocation, given it's really the only sort of authority that the Charter gives to the Secretary-General. I mean, if you look at the Charter, you know, it describes the Secretary-General, basically, as the Chief Administrative Officer. So constitutionally, it is, in my opinion, the most powerful tool that he has. It doesn't mean that he's exhausted everything that he could possibly… that there always remains other things that can be efforts that can be done, and he will continue in that direction. Nabil?

Question: Yeah. So I'll ask again about the 130 UNRWA personnel who have been killed in Gaza until now. Is the SG planning to take any action on the investigation, on anything about the justice for the…?

Spokesman: I think one can expect at, you know, at the… Once this conflict ends, that there will be decisions taken.

Question: Why he will wait until the conflict ends? It may take weeks or months.

Spokesman: Well, because you can't… I mean, the invitation of Boards of Inquiries and Investigation, you need access on the ground and things. So there will be movements, but right now our focus is on the humanitarian work.

Question:  In previous cases, like when UN personnel were killed before, what kind of action was taken?

Spokesman: They were usually Boards of Inquiry.

Question: And last question about the monitoring mechanism on the 2712 resolution. Is he planning to provide options to the Security Council anytime soon?

Spokesman: Yeah. I mean, I'm sure that is in the works.

Question:  Given the fact that the US, and other countries, are delivering weapons to the Israeli Government, does the Secretary-General believe that, given the situation… The catastrophic situation he is describing, that this arm delivery should stop?

Spokesman: Can you repeat the last part?

Question: If he believes that the US and other countries who are delivering arms to Israel should stop this delivery.

Spokesman: Well, as in any conflict, we don't, you know, it's not more weapons that are needed. It's more of a commitment for us to get a humanitarian ceasefire.

Question: So does he believe that the weapon delivery should stop or not?

Spokesman: That stands. I mean, I think I answered your question. At least I think I answered your question.

Question: Well, I don't. [laughs]

Spokesman: Okay. But we'll leave it at that.

Question: Because we need a more clear language.

Spokesman: As in any conflict, we do not want to see more violence. We want to see the humanitarian ceasefire. Ms. Fasulo, and then we'll go to the screen.

Question: Thank you, Steph. Given that the relationship, it seems, between the Secretary-General and Israel is not at its highest point, and Israel has asked for the SG to resign, there's been criticism over what's considered a late response in terms of condemning the killings and rapes of women in Israel. So I was wondering, what kind of communication is going on between the two parties at this juncture? And also, what kind of role is the UN playing, for example, in trying to get the hostages released?

Spokesman:  We continue to have daily interaction with the Israeli authorities mainly through the coordinator, COGAT and others in order to pursue our aim to get more aid into Gaza, to pursue our aim for humanitarian ceasefire. Tor Wennesland continues his contacts at the political level with the Israelis, with the Qataris, with the Americans, with the Egyptians and others in our efforts for the full implementation, for the release and unconditional release of all hostages. Okay. Let's go to the screen. Iftikhar, then Joe.

Question: Thank you, Steph. I may be wrong, but was Kurt Waldheim the last Secretary-General to invoke Article 99 in the Gulf War?

Spokesman: Was that for East Pakistan?

Question: Pardon?

Spokesman: Was that about East Pakistan?

Question: No. This was Gulf War.

Spokesman: No. We will go back. There have been a number of letters through the years invoking threats to international peace and security. But I will tell you exactly when the last invocation was of a letter that mentioned Article 99. I believe it was in 1971, but we will check further.

Question: But Kurt Waldheim was…

Spokesman: We will check…  Iftikhar, I'm already walking on quicksand here, so I will check further.

Question: I see. Secondly, before invoking Article 99, did the Secretary-General, apart from his own advisers, consult members of the Security Council?

Spokesman: Has he what?

Question: Did he also consult about…?

Spokesman: I mean, the Secretary-General is in regular contacts with members of the Security Council.

Question: Thank you.

Spokesman: Alright. We'll go to Joe, then Jordan. Mr. Klein? Alright. Well, let's… Jordan, you go ahead.

Question: Yes, Steve, I have two follow-up on Article 99, and please correct me if I'm wrong, what I understood from the letter and the article is that the Security Council is obligated to meet with the SG to hear his concerns and any products coming from the Security Council has to be under Chapter 7, if I'm right or wrong?

Spokesman: The Security Council will decide what it does and what articles it invokes.

Question: Okay. And my second question on Article 100b. What… How the UN… I know the SG is the custodian of the Charter. How are they going to deal with any violators of Article 100b?

Spokesman: I'm going to ask somebody to read out Article 100b to me. If you're going invoke the article, you might as well read it out, Jordan. Otherwise, you clearly did not come prepared.

Question: Well, it says that all countries has to respect the SG and his employees.

Spokesman: Yes. Article 100. Yes.

Question: Yeah. This is why… [cross talk]

Spokesman: I mean, except in this room clearly.

Question: Yeah. So what… and if someone violates this article, a Member State, what the SG can do?

Spokesman:  Well, I think the SG's powers and authority over Member States is found in the Charter. And if you find any authority of the Secretary-General over Member States in the Charter, let me know. Yes. Go ahead. And then we'll… I'm going to call it a day.

Question: Hi. Yeah. So can you give us an update on the visa status of Lynn Hastings?

Spokesman: Yeah. And I will take another question, apparently, from the screen, I'm told. Yes. I can tell you that we deeply regret and we're concerned regarding the decision by the Israeli authorities not to renew Lynn Hastings' visa, who, as you know, serves as the Deputy Special Coordinator, Resident Coordinator and Humanitarian Coordinator for the UN in the Occupied Palestinian Territory. That visa is set to expire on 20 December. We have asked the Israelis to reconsider their decision.  As I've said here repeatedly, the Secretary-General has full confidence in the way Ms. Hastings has been doing her job.  And again, we express our disappointment and shock at the targeted and personal attacks that have come towards on her. She's been acting with independence, neutrality and impartiality, as she should. I will also say that the non-renewal of visas of staff appointed by the Secretary-General is inconsistent with the Charter of the UN, as well as with the privileges and immunities according to UN officials, and could also disrupt the humanitarian engagement and operations at this critical juncture.

Question: And do you know where she's based currently?  [cross talk]

Spokesman: I'm sorry. Right. Hold on. Please stay muted.  She is currently in Jerusalem and, obviously, she will leave before her visa expires because… unless there's a change of the decision because we don't… we're not going to overstay the visas and her functions will be filled after she leaves by an Acting Humanitarian and Resident Coordinator until a full-time replacement arrives. She will not be working remotely.  Okay. Sorry? Yeah. Go ahead. Ibtisam and then Pam… [cross talk]

Question: Okay. So just a follow-up on visa issues.  The Human Rights Council personnel, international; they had… like, they have been having visas… they were not having visas by the Israeli authorities for years now.  The question is if this changed or not?

Spokesman: No. I'm not aware that it has. But you should check with our colleagues in the Human Rights Office.  Pam?

Question: And just what was the reason that Israel gave on the non-visa…?

Spokesman: You should ask them.

Question: But they didn't give you…

Spokesman: But you should… you should ask… you should…

Question: No, we will but…

Spokesman: No, no, but it’s not for me to repeat what they've said or to speak on their behalf.

Question: But we'll do, but you were given a reason?

Spokesman: We were informed.

Question: Thank you.

Spokesman: Yes, ma'am and then Margaret.

Question: Thank you, Stéphane.  So I just want to clarify something really quickly, and then I have a question.  My understanding is that with Article 99, the Secretary-General is asking the Security Council to do something or at least make a clear stance on the issue of the attacks in Gaza on the Palestinian people. And that this is one of his… as you've claimed, one of the few constitutional powers that he holds, and one of, like, the few times that he can make a direct stand or, like, take some direct action, is that correct?  That's my understanding so far.

Spokesman: Yeah. I mean, you know, we… I mean, we're… we've sent out by email the kind of the introduction in the letter. So, yeah.

Question: Yeah, yes. My and… What I would like to know, I guess, is what will happen if this letter and the invocation of Article 99 does not achieve the intended effect?

Spokesman: I mean, what will happen… forget the constitute… the legislative process is that we fear that, without a humanitarian ceasefire extremely soon, there will be even greater suffering on a terrifying scale in Gaza.

Question: Right, but I think you mentioned that, like, the Secretary-General has like, other means, or has other powers that he can invoke.

Spokesman: His other means are the means that he's been using, which is diplomatic in contacts and discussions. Within the Charter, we are where we are.

Question: Right. Thank you.

Spokesman: Margaret Besheer?

Question: Thank you, Steve.  [laughs] There have been near daily verbal attacks on the UN by Israeli officials, including the ambassador here from the Secretary-General on down, Dr. Tedros [Adhanom Ghebreyesus], UN‑Women, UNRWA has come in for a lot of attacks, and as a result, a lot of social media comments have also attacked UN and UN officials when some officials post about it.  So has the Secretary-General spoken with any Israeli officials, the ambassador, anyone about this? And is this campaign against the UN undermining your work and putting your people in danger?

Spokesman: Well I mean… I think social media campaigns, and we've seen it in other contexts as well, targeting the UN, can have real-life impacts, and they do put people at risk. They put people's lives at risk. And it does have a risk of undermining our work in certain areas, and we've made that clear. Okay, Michelle and Joe, and then basta.

Question: Hey, Steph. Thank you. Just on the letter, as everyone knows, nothing sort of seems to surprise the Security Council.  And I know you've said the Secretary-General is going to reach out to Council members in the coming days.  But what conversations has he already had with the United States or any US officials on invoking Article 99 and what he expects from them?

Spokesman: There's nothing for me to share with you at this point on that. Mr. Klein and then we're going to go.

Question: Okay. I can finally speak here. I’m having an echo going on. Okay. My question is why didn’t the Secretary-General invoke the Article 99 regarding Ukraine?

Spokesman: It is up to the Secretary-General to decide when it is appropriate to do so.  He made that decision. But I think as you will recall, he was anything but silent or inactive on the situation in Ukraine. Thank you all.

W.H.O. EMERGENCY

On Monday, the World Health Organisation called for a rare emergency session. It’s expected to be held on December 10.

UPDATE: DECEMBER 9 2023

U.S.A. stands alone vetoing Gaza ceasefire at United Nations Article 99 Security Council Meeting

Correction: I previously stated that Article 99 had been invoked only 3 times before, but it has happened 6 times since WW2.

Header image credit to Hosny Salah.