By Prof. (Dr.) Bharat H. Desai
A simple, matter-of-fact statement issued on October o1, 2024 by the United Nations Secretary-General (UNSG) Antonio Guterres caused an unprecedented diplomatic storm. “I condemn the broadening of the Middle East conflict, with escalation after escalation. This must stop. We absolutely need a ceasefire”, the UNSG said. Similarly, the statement (October 01, 2024) issued by the spokesperson for the UNSG, Stéphane Dujarric, specifically on Lebanon, reflected a similar concern. “The Secretary-General is extremely concerned with the escalation of the conflict in Lebanon. He appeals for an immediate ceasefire. An all-out war must be avoided in Lebanon at all costs and the sovereignty and territorial integrity of Lebanon must be respected”, Dujarric said.
Declaring the UNSG persona non grata
Though the UNSG’s statement did not mention any country per se, use of the jargon “escalation after escalation” and “broadening of the Middle East conflict” touched a raw nerve, caused alarm in Israel and drew swift reaction from its combative foreign minister, Israel Katz. Katz crossed the limits of his office to declare the UNSG a persona non grata. The term is used to expel a diplomat whenever his/her presence in the country of posting becomes “undesirable”. It is not meant for someone who is already outside the territorial jurisdiction. To equate the SG of the UN, of which Israel has been ‘difficult’ member from the beginning, with such cases of diplomatic misdemeanors is beyond all canons of Law of International Organization as well as time-tested corpus of diplomatic immunities and privileges (1961 Vienna Convention on Diplomatic Relations). More importantly, the persona non grata missile thrown by the Israeli minister at the UNSG does not apply to international organizations per se.
The UN and its staff are governed by a special 1946 Convention on the Privileges and Immunities of the United Nations. Referred to as the “General Convention”, it was negotiated and adopted immediately after establishment of the UN. As provided for in Article 105 of the UN Charter, the Convention was adopted by the UNGA at its first session on February 13, 1946 (resolution 22 A (I)) and entered into force on September 17, 1946. The General Convention specifies the notion of “functional” personality and immunity of the UN. It contains detailed provisions on the privileges and immunities enjoyed by UN officials. The over-the-board Israeli reaction was unwarranted. It is a classic example of ‘shooting the messenger’ who is discharging his UN Charter mandate and troubled by the habitual and willful defiance of International Law in the Middle East imbroglio by the state actors (Israel, Iran etc.) as well as non-state actors (Hamas, Hezbollah, Houthi etc.). The UNSG has sought to act within the remit of his office.
The tone, tenor and phraseology of the Israeli minister was not unexpected in the aftermath of Prime Minister Netanyahu’s defiant address to the UNGA on September 27. In diplomatic parlance, any such statement prohibiting entry of the UNSG is tantamount to coercive action against the Chief Administrative Officer (Article 97) of the 193-member political organization of sovereign states. The outburst of the Israeli foreign minister is not new in the UN history. Several member countries, some overtly and others covertly, have sought to make disparaging remarks against incumbent UNSGs from time to time or threatened or dissuaded them from visiting specific territories (including disputes ones). Most of such leaders vent their personal frustration on the UNSG. If the UNSG is strong enough (like Antonio Guterres), actively seeks to carry out the Charter mandate in letter and spirit (like Dag Hammarskjöld) or even tries to make the UN stronger with radical ideas and proposals (like Butros Butros-Ghali), they are not sparred. It seems the rule is: stronger the Secretary-General, greater the attack and the outburst! Similarly, for proposing An Agenda for Peace (1992), Butros-Ghali, a Professor of International Law, was not forgiven by the powerful actors. As a result, Butros-Ghali remains the only UNSG, who was not given the second term. Though very mild-mannered, even Kofi Annan was not sparred. Yet the shoulders of the UNSG must be broad enough to receive all the brick backs and the sheer weight of the office of the UNSG is beyond slights or insults (as in Mahabharata, as the Peace Envoy, Lord Krishna tells renegade Kaurava Prince Duryodhana).
All the UNSG’s who took their task seriously had to face this professional hazard from ill-tempered heads of government or their representatives. The UN history is replete with stories of such mercurial people. To control the damage, in the wake of a discussion on situation in the Middle East on October 3, 2024, however, the 15-member UNSC, promptly issued a joint statement that indirectly chided Israel. Expressing its full support for the UNSG, the Council said, “any decision not to engage with the U.N. Secretary-General or the United Nations is counterproductive, especially in the context of escalating tensions in the Middle East.” Thus, all UN member countries need to exercise restraint and sobriety in consonance with highest standards of diplomatic etiquettes so as not to shoot the messenger but to pay heed to the UNSG’s words of wisdom, concern, sobriety and empathy.
UNSG as a Conscience Keeper
The founders of the UN Charter envisaged role of the ‘secretariat’ (Chapter XV; Articles 97-101), a fulcrum around which the entire edifice of the organization would revolve. During his seven years (since January 2017) as the head of the UN Secretariat, Guterres has been a trail blazer and sought to the walk-the-talk as the principal liaison officer for all the main organs of the UN. Invoking a series of instrumentalities of annual reports, special reports, periodic updates, briefings, statements and as the most visible face of the UN, the SG (along with his team) does the fire-fighting all the time on literally any issue ‘under the sun’. It is the briefings and reports on the ground situation provided by the UNSG that enable the UNSC to provide authorizations (drawing mandates from Chapter VI and VII of the Charter) for the UN Peacekeeping Missions (Author: SIS Blog, September 18, 2024) as well as perform onerous task in making available crucial humanitarian assistance (Author: SIS Blog, August 23, 2022) wherever possible in situations of conflicts, misery, mass violence, hunger, droughts, disasters, displacements etc.). The regular updates provided by the UNSG personally to the UNSC have become a stuff of legends. When Antonio Guterres walks into the hallowed chamber of the UNSC (or for that matter the UNGA), his whole lifetime experience as a stateman, including as Prime Minister of Portugal, walks with him. The crisp statements, laden with facts, figures and marshalling of data as well as authentic updates from the ground speak for themselves. We have not seen in recent decades a UNSG speaking with such authenticity, sincerity, candor, power of language, facial expressions and sheer force of personality. No wonder the Nobel Peace Prize has eluded him – so far.
Invocation of the Charter Tool (Article 99)
Guterres has shown especially during his second term (2022-2026) that where is a will there is a way. As required, the UNSG has drawn power and competence scattered throughout the Charter. The UNSG can invoke ‘implied powers’ (Rahmatullah Khan, Implied Powers of the United Nations: Vikas, 1970), hidden in the Charter. However, Guterres took an unprecedented step by invoking power expressly contained in Article 99 by sending December 6, 2023 letter to the President of the UNSC. This audacious letter invoked Article 99 (Chapter XV), rarely used Charter provision. Under this extraordinary power, the UNSG can “bring to the attention of the Security Council any matter which in his opinion may threaten the maintenance of international peace and security”. The 2023 initiative of the UNSG was propelled by the “appalling human suffering, physical destruction and collective trauma across Israel and the Occupied Palestinian Territory.”
The invocation of Article 99 has been regarded as the “most powerful tool” in the arsenal of the UNSG. Since taking office in 2017, it was the first time Antonio Guterres had felt compelled to invoke Article 99. "In my opinion, the most powerful tool that he [the Secretary-General] has, " the UN spokesperson Dujarric told reporters at the UN Headquarters. The nuanced tone and tenor of the graphic letter appeared to sensitize the numbed senses of the 15 members of the UNSC including the veto-wielding five Permanent Members (China, France, Russian Federation, the UK and the USA). As the UN’s custodian for maintenance of international peace and security, the Council was expected to swing into action without any fear or favor to halt the brutality of warfare that has, over one year, resulted in colossal loss of civilian life (largely women and children), destruction and displacement of millions of people. Making the warring parties to adhere to the sanctity of International Humanitarian Law has been the biggest challenge for the UN since its principal ‘enforcement’ organ – UNSC – has remained paralyzed.
Notwithstanding the UNSG’s urgent appeal for consideration of the alarming situation in the OPT, the draft resolution was vetoed by the USA [13 in favor to 1 against (USA) and 1 abstention (UK)]. Not dejected by the outcome, the SG emphatically declared that he will continue with the efforts to avert a humanitarian catastrophe. “Regrettably the Security Council failed to do it but that does not make it less necessary. So, I can promise I will not give up”, the UNSG told assembled delegates on December 10, 2023 to the Doha Forum to discuss “Building Shared Futures” comprising collective security and other challenges.
Reports of the Secretary-General
The Preparatory Commission for negotiating the 1945 UN Charter had sought to endow the Secretary-General with “a quite special right which goes beyond any power previously accorded to the head of an international organization.” As a result, the Charter underscores the inherent strength and express constitutional position of the UNSG as preeminent international political organization of the sovereign states.
Thus, the proverbial ‘reports’ of the Secretary-General are eagerly awaited including on the ‘work of the organization’. The UNSG also provides reports to the other three principal organs: General Assembly (GA), Security Council (SC) and Economic and Social Council (ECOSOC). For instance, the 2024 report of the UNSG entitled “resolve”, literally and figuratively declares what the UN stands for and the entire secretariat staff (35, 000 plus), led by the UNSG, strives to achieve in furtherance of the UN’s objectives . The SG’s words in 2024 report duly underscore the UN’s raison d'être as: “At every step, our Organization and our personnel will continue to stand in solidarity with the people of the world through these trying times, as we seek to forge a more peaceful, healthy, equal and prosperous future together”. Entire UN organization wide effort comprises contributions of over 100 bodies and organizations, including some 30 agencies, funds, commissions and programs. It is no less miracle that in a world where one-fourth population (two billion) lives in conflict zones, the UN is able to provide material assistance to hundreds of millions of people with over $60 billion (2023). The expenses incurred by the UN comprise, at the top of the ladder, peace and security (203; in million US dollars). It is followed by other areas: climate action (178), food security (152), women (92), children (133), human rights (56), water and sanitation (36) and livelihoods (9).
The other tools used by the UNSG in his arsenal include conveying the view of the organization for maintenance of international peace and security, upholding adherence to International Law and well being of the humankind. It also comprises ‘statements’ issued by the SG or (on his/her behalf) by the spokesperson. The quantum of these finely crafted, nuanced and to the point statements is staggering. During January 3 to October 4, 2024 alone, the UNSG’s statements reached the figure of 298. They are mostly issued from New York (apart from others issued from places of visits of the UNSG). The statements address a wide range of issues within the remit of the UNSG’s mandate under the Charter and focus on contemporary issues of global concern. As a corollary, the UNSG provides a real time picture of the UN @work in our much-troubled world. The arduous nature of the task of the UN and its chief officer need to be measured in the context of the principal challenge faced by the organization: maintenance of international peace and security.
Making the United Nations Work
In his 2021 Vision: Restoring Trust and Inspiring Hope (as a candidate) for the second term (2022-2026), Antonio Guterres, without mincing words, stated: “The Charter perseveres even in the face of profound transformation. Its purposes, principles and provisions epitomize all that we stand for and guide all that we do”. As Guterres inches closer to his second (and final) term of office of the SG as well as the world organization attaining historic milestone of 80 years (1945-2025), everyone including the UN-baiters must be convinced that we have only one UN for our only one planet Earth. Having failed within 20 years (1919-1939), when Second World War broke out, the League of Nations (emanating from the great peacemaking at the 1919 Treaty of Versailles), did provide “vital lessons to reaffirm the resolve to work for realization of the idealism to eliminate war as an appalling evil.” (Author: “On the Century of Peacemaking at the 1919 Treaty of Versailles: Looking Back to Look Ahead,” International Studies 57(3) 2020 (201–222) at 216). Thus, the advent of the UN became a necessity, upon the ashes of the League of Nations, to eliminate war as a ‘scourge’ (Preamble to the UN Charter: ‘to save succeeding generations from the scourge of war, which twice in our lifetime has brought untold sorrow to mankind”). Hence, notwithstanding all the UN-bashing and personal targeting of the UNSG, the SG as a diplomat par excellence does keep reminding all the UN members that there is no substitute for this organization. Pending revitalization of the UN to face “21st century challenges” (UNSG, Summit of the Future, New York; September 22, 2024), we need to cherish and value the stellar role played by the Secretary-General (including use of negotiations, good offices and mediation), in espousing and symbolizing “United Nations ideals and a spokesperson for the interests of the world's peoples.”
Since January 01, 2017, as the 9th occupant of the post of the UNSG [previous UNSG were: Ban Ki-moon, Republic of Korea (2007-2016); Kofi Annan, Ghana (1997-2006); Boutros Boutros Ghali, Egypt (1992-1996); Javier Pèrez de Cuèllar, Peru (1982-1991); Kurt Waldheim, Austria (1972-1981); U Thant, Burma (1961-1971); Dag Hammarskjöld, Sweden (1953-61); Trygve Lie (Norway (1946-1952)], Antonio Guterres has left an indelible imprint on the organization wherein he has played the role of an elder stateman, a whistle-blower, a guide, a trouble-shooter and a messenger of peace. When Antonio Guterres speaks, as expected of the ace international civil servant, his words ring loud and clear. Even his October 2, 2024 UNSC address “on the situation in the Middle East” to the UNSC, gave a wakeup call to the Council: “We must never lose sight of the tremendous toll that this growing conflict is taking on civilians. We cannot look away from systematic violations of international humanitarian law. This deadly cycle of tit-for-tat violence must stop. Time is running out”. Nothing more could be adhering to the role envisaged for the SG in the UN Charter.
Conclusion
The UNSG as a messenger and genuine well-wisher, can only convey non-partisan concern for the escalating ground situation in different parts of our troubled world. Irrespective of the area of concern and instead of trying to shoot the messenger par excellence, it would be in the interests of the “peoples of the United Nations” (Preamble) in whose name the UN Charter was solemnly adopted (San Francisco Conference; April 25-June 26, 1945; Documents of the United Nations Conference on International Organization, San Francisco, Volumes I to XX, 1945-1954), it would be in the fitness of things if the UNSC and the member states pay heed to the calls for sanity and wisdom. “The people of the world are looking to us – and succeeding generations will look back on us. Let them find us on the side of the United Nations Charter…on the side of our shared values and principles…and on the right side of history”, Antonio Guterres prophetically said at the 79th UNGA, Sept. 2024. There is no alternative to peace. Since nothing is permanent in this impermanent world, rest will be decided by Time, as the final arbiter.
This is an Original Contribution to the SIS Blog.
Prof. (Dr.) Bharat H. Desai is (former) Chairperson and Professor of International Law at the Centre for International Legal Studies (SIS, JNU), who served as a member of the Official Indian Delegations to various multilateral negotiations (2002-2008), coordinated the futuristic knowledge initiatives for the SIS Faculty Wall of Honor (2023-24), the Inter-University Consortium: JNU; Jammu; Kashmir; Sikkim (2012-2020) and the Making SIS Visible (2008-2013) as well as contributes as the Editor-in-Chief of Environmental Policy and Law (IOS Press: Amsterdam).