NEW YORK, NY - SEPTEMBER 20: (AFP OUT) U.S. President Barack Obama (C-R) and United Nations Secretary- General Ban Ki-moon (C-L) pose with world leaders during the United Nations 71st session of the General Debate at the United Nations General Assembly on September 20, 2016 at the UN headquarters in New York, New York. The general debate of the 71st session will conclude on September 26. (Photo by Peter Foley - Pool/Getty Images)[/caption]
By Bruno Stagno-Ugarte
The United Nations Security Council has long been on notice that it should be able to provide early warning of impending international crises. As early as 1985, speaking on the 40th anniversary of the founding of the UN, Secretary-General Javier Pérez de Cuéllar had already concluded 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."
In the 30 years since Pérez de Cuéllar’s call, the idea of an early-warning system gained traction, with the General Assembly and the Security Council adopting several resolutions to that effect.
Yet the Council has continued to underperform in anticipating and preventing conflicts, largely confining itself to reaction, which means higher political and financial costs, not to speak of lives lost. Its peacekeeping budget has swelled past eight billion dollars a year, and it maintains over 101,000 peacekeepers in 16 different operations around the world. But the UN is straining under the pressure of having too much peace to keep, and with Council members exerting tight control over the agenda to shield allies from scrutiny and the secretary-general unwilling to bring scrutiny to situations that warrant concern, reaction is the default substitute for prevention.
Security Council members are unlikely to change their ways anytime soon, so the next best option is for the next secretary-general to do so.
CALL OF DUTY
Article 99 of the UN Charter grants the secretary-general the authority “to bring to the attention of the Security Council any matter that in his opinion may threaten the maintenance of international peace and security.” Secretary-General Dag Hammarskjöld—who first formally invoked Article 99 in response to the situation in the Congo in 1960—interpreted it to mean that he had, as he said, the “duty to seek to anticipate situations that might lead to new conflicts or points of tension and to make appropriate suggestions to the governments.
Article 99 is the single substantive prerogative given to the secretary-general in the UN Charter, and it is considered to be something of a “nuclear” option. It shouldn’t be, though. It is right for the head of the UN to have the Council hear what it needs to know, not what it wants to hear. To be sure, that is not necessarily an easy task.
Hammarskjöld was able to navigate between “the platform and straitjacket,” as former UN Undersecretary-General Shashi Tharoor has described it. Others have not been so deft. For example, Secretary-General Kurt Waldheim was derisively described by diplomats and journalists accredited to the UN in the 1970s as a “head waiter” for waiting on and doing the bidding of key states.
LESSONS UNLEARNED
For the Security Council, the end of the Cold War seemed to offer a historic opportunity to turn words into action. At the Security Council’s first summit meeting, in 1992, its members tasked the secretary-general with providing “analysis and recommendations on ways of strengthening and making more efficient […] the capacity of the UN for preventive diplomacy.” They specifically agreed that the analysis and recommendations “could cover the role of the UN in identifying potential crises and areas of instability.”
But it never happened, as confirmed by two landmark 1999 reports on the failings of the UN in Rwanda in 1994 and Srebrenica in 1995. Both cited the continued absence of an early warning and intelligence-gathering capacity among the damning lessons about the UN response to those conflicts. The Rwanda report, for example, concluded that it was “essential both to continue to improve the capacity of the organisation to analyse and respond to information about possible conflicts, and its operational capacity for preventive action.” The report further called on the UN to “improve the flow of information to the Security Council.” Shortly after receiving these reports, Secretary-General Kofi Annan lamented, “the tragic irony of this age of human rights—where greater numbers are enjoying human rights than perhaps ever in history—is that it has been repeatedly darkened by outbursts of indiscriminate violence and organized mass killings.”
More than a decade later, the absence of early warning was yet again one of the main lessons of the inquiry into the brutal final months of the 2009 government offensive against the Liberation Tigers of Tamil Eelam in Sri Lanka. The 2012 report pointed to a “systemic failure” based on the absence of an “adequate and shared sense of responsibility for human rights violations” and a “coherent strategy in response to early warnings and subsequent international human rights and humanitarian law violations against civilians.”
Not only had Secretary-General Ban Ki-moon not raised the issue as allowed by Article 99, but the Security Council had sought to avoid becoming involved. Too many members were intent on not faulting a government that was waging what it described as a war against terrorism, regardless of the rising civilian toll. Recognizing the dual avoidance of the issue, the Sri Lanka report called on the secretary-general to make more use of a recent initiative for “horizon scanning” briefings of the Security Council. Yet the rise and demise of those briefings demonstrates that the more things changed, the more they stayed the same.
HORIZON-SCANNING
Following the disastrous final months of the Sri Lanka conflict, a number of Security Council members started to call for early-warning procedures. Taking the lead, on November 4, 2010, the United Kingdom invited B. Lynn Pascoe, then undersecretary-general for political affairs, to brief Council members in informal consultations on issues that may warrant their future attention, if not concern.
Although the United States immediately discontinued the practice during its December 2010 presidency of the Council, every other member nation scheduled a horizon-scanning briefing during their respective monthly presidencies through March 2012. This included China and Russia, as well as France and the United Kingdom, and every elected member: Bosnia and Herzegovina, Brazil, Colombia, Gabon, Germany, India, Lebanon, Nigeria, Portugal, South Africa, and Togo.
By all appearances, a consensus was building—one that included states with very divergent views about the appropriate role for the Council in early warning. Yet, once again, the United States broke the cycle during its April 2013 presidency. This came at a time when the Obama administration was building an atrocities-prevention mechanism within the White House, yet, surprisingly, was ill-disposed to the UN doing likewise.
Unfortunately, neither the relevant UN department, no longer headed by Pascoe, nor the secretary-general’s office pursued the matter after. Instead of defending the exercise as falling within the prerogatives of the secretary-general, they deferred to Council members on whether to schedule a briefing. And instead of improving the briefings with minor fixes here and there after some council members said they weren’t particularly useful or insightful and others complained they were crowding the Council’s already busy agenda, the briefings became the exception rather than the norm. After December 4, 2013, they were discontinued.
NEVER AGAIN
With Ban recognizing on November 22, 2013, that the “current state of protection of civilians leaves little room for optimism,” a reset seemed necessary. On December 17, 2013, Deputy Secretary-General Jan Eliasson formally introduced the “Rights up Front” (later Human Rights up Front) initiative. He told the UN General Assembly that, “It is irrefutable, and needs repeating, that serious human rights violations are the best early warning of impending atrocities… The need for early action, and the crucial role of responding early to human rights violations, is at the heart of the ‘Rights up Front’ initiative.”
Early warning seemed to have been given another chance, yet the initiative never actually materialized into a renewal of horizon scanning or early-warning briefings to the Council due to continued resistance by some of its members and the apparent unwillingness of the secretary-general to bring them under the mantle of Article 99.
Instead, the relevant UN department scheduled informal briefings that are not conducted in the Security Council’s consultations room or regularly attended by council ambassadors. Whereas horizon-scanning briefings literally brought issues of concern to the Security Council, these other briefings depend on Council members showing up for them. The UN Secretariat did start to raise some issues of concern under the Council agenda item “Any Other Business,” but that has largely been used for updates on issues that are already on the agenda. In fact, the “any other business” option has always existed, even when Pérez de Cuéllar, back in 1985, called for “a procedure to keep the world under continuing survey.” These alternatives are a far cry from the commitment in the Rights up Front plan that the UN Secretariat made to strengthen its “dialogue and engagement” with the Council.
Although permanent members of the Security Council are mostly to blame for such cowering, with the United Kingdom leading efforts for horizon-scanning and the United States, joined by China and Russia, opposing them, all Council members are partly responsible. After all, the body has unfettered leeway to decide, adapt, and amend its internal procedures or create subsidiary bodies to carry out its business. The threshold for creating new bodies or procedures is lower than for substantive issues; it requires any nine affirmative votes and is not subject to a veto by one or more of the permanent members.
As the damning 1999 Srebrenica report concluded, “ending conflict does not preclude moral judgements, but makes them necessary.” This does not suggest that moral judgements may not come at a price. In fact, they usually do, as parties to a conflict may react by denying the UN humanitarian access to affected or besieged civilians or by breaking off talks with the UN altogether. Yet, as the Sri Lanka report noted, “the tendency to see options for action in terms of dilemmas frequently obscured the reality of UN responsibilities.” This usually happens when the UN seeks to keep a safe distance from what is sees to be “political,” something it expansively interprets to encompass any UN action that would provoke criticism.
Yet, with the Security Council still largely delinquent on heeding the lessons of Rwanda, Srebrenica, and Sri Lanka, it is ever more important for the secretary-general to rise to the challenge. Avoidance of Article 99 reveals not only a manifest absence of courage—it is also a dereliction of duty. With less than four months remaining in Ban’s second term, and with the UN about to select a new head, it is high time for the candidates to take a principled stance in defense of recourse to Article 99 and turning early warning and horizon scanning into more than a nice promise whenever the UN has to make a “never again” apology.
*Bruno Stagno-Ugatre is Deputy Executive Director for Advocacy at Human Rights Watch.
