by Mona Ali Khalil, Legal Adviser at Independent Diplomat, originally published on PassBlue.
“Those who seek to bestow legitimacy must themselves embody it, and those who invoke international law must themselves submit to it.” So spoke United Nations Secretary-General Kofi Annan at the 59th session of the UN General Assembly on Sept. 22, 2004.
Annan’s statement should be understood to apply to the principal organs of the UN as it does to its 193 member states. Among the principal organs, it especially applies to the Security Council, when it fails to prevent or punish mass atrocities against civilians and other grave violations of international humanitarian and human-rights law, whenever and wherever they occur.
Among member states, it especially applies to the permanent members who shield those responsible for such atrocities and violations by preventing the council from fulfilling its responsibilities by using or threatening to use their veto — as Russia and, on a few occasions, China have done in respect to the war crimes and crimes against humanity being committed in Syria, and as the United States has done in respect to war crimes in Gaza and illegal settlements in the West Bank.
With tragic consequences around the world, all three principal organs — the Security Council, the General Assembly and the Secretary-General — have been failing to fulfill their respective mandates and in so doing have undermined the credibility and effectiveness of the UN. By failing to enforce international law, these three organs have violated it. By failing to uphold the UN Charter, they have betrayed its objects and purposes.
The founding fathers of the UN Charter were not naïve idealists but wide-eyed realists and war-hardened superpowers. They created a UN of six principal organs, each with distinct but complementary roles and functions: balancing the lowest common denominator among sovereign states, yet aspiring to meet the highest expectations of the people of the world, first and foremost to save us from the scourge of war and the mass slaughter of innocent civilians.
The authors of the Charter wrote about the Security Council’s responsibility, not its power; they wrote about its primary responsibility, not its exclusive prerogative; and they wrote about its obligation to act in accordance with the purposes and principles of the UN in discharging its duties. In doing so, they adopted a Charter that balances the principles of power with the power of principles. They sought to ensure that the council can act promptly and effectively on behalf of the international community to prevent conflict and, where necessary, to maintain or restore peace and security.
The founders foresaw situations where the council may be unable or unwilling to live up to its Charter responsibility, so it reserved residual authority to the General Assembly.
They foresaw situations where the council may wish to evade its responsibility and thereby endowed the secretary-general with the self-determined authority to remind the council of matters deserving its attention and action.
This system of checks and balances forms the basis of our international legal and political order, and it is only viable and desirable when each organ assumes its intended role and fulfills its assigned functions.
The Security Council has contributed to the erosion of its credibility and effectiveness — whether by apathy or by veto — by, among other ways:
- adopting resolutions promising consequences it does not enforce, as we have seen with the escalating atrocities by the Syrian regime and unexecuted International Criminal Court warrants against the leaders of Sudan;
- satisfying itself with managing crises rather than resolving conflicts lasting more than five decades in the Democratic Republic of the Congo and more than seven decades in Palestine;
- allowing unilateral actions by the stronger party to gradually distort and dilute the fundamental rights of the weaker party, as evidenced time and time again in Cyprus, Western Sahara and elsewhere.
The General Assembly, in turn, has contributed to the erosion of its relevance and authority — whether through lack of courage or lack of consensus — by, among other ways:
- failing to invoke the “Uniting for Peace” resolution since 1997, despite an eruption of new conflicts in Iraq, Syria, Ukraine and, most recently, Yemen;
- hesitating to resume the 10th emergency special session on the question of Palestine since 2009, despite the inhumane siege and disproportionate attacks on Gaza; the ongoing occupation; the continuing construction of the separation wall; and the crescendo of construction of settlements;
- relinquishing its prerogative to request or even to recommend certain actions to the Security Council (or at a minimum to request further information from the council on its lack of progress) in resolving longstanding conflicts in Cyprus, Jammu and Kashmir and Western Sahara, among others.
Last but not least, the Secretariat has contributed to the erosion of its independence and moral credibility — whether through internal weakness or external interference — by, among other ways:
- forgetting that it is a separate and independent principal organ as explicitly envisioned in the UN Charter;
- allowing itself to be bullied from maintaining a principled stand on violations of international humanitarian and human-rights law;
- evading its responsibility when those it deploys to protect civilians fail to do so and, worse, when they become the witting or unwitting perpetrators of harm to those they are meant to protect.
While the General Assembly cannot force the Security Council to act, it must draw greater attention to and criticism of the council’s failure to do just that — especially when such failure allows mass atrocities against civilians and other grave violations of international humanitarian and human-rights law to continue because of the threat or use of a veto.
While the secretary-general also cannot force the Security Council to act, he can and should fully exercise his authority, under Article 99 of the UN Charter, to put forth clear, concrete actions to be taken by the council to end impunity for gross violations of international humanitarian and human-rights law.
Now that it appears certain that António Guterres will soon take the helm of the UN, there is hope that a strong, principled, charismatic and independent secretary-general, answerable to all member states, will not hesitate to uphold the rule of law within the organization as well as throughout the world to ensure that the UN stands for the right of “we the peoples,” in whose name the Charter was adopted, to live in peace and security with equal rights and dignity.
Mona Ali Khalil is a legal adviser to Independent Diplomat, the international diplomatic advisory group, where she focuses on public international law to promote peace and justice in international diplomacy. She is also a fellow at the Harvard Law School program on international law and armed conflict. Previously, Khalil served with the United Nations for 22 years, including as a senior legal officer in the UN Office of the Legal Counsel, from 2009–2015, and in the International Atomic Energy Agency Office of Legal Affairs, from 2005–2009.
Khalil has a B.A. in government and an M.A. in Middle East studies from Harvard University as well as a Master of Science in foreign service and a Juris Doctorate from Georgetown University.