18 No. 70 JUSTICE E. The Use of Article 99 by the Secretary-General On December 6, 2023, Secretary General Guterres used Article 99 of the UN Charter to bring the Hamas-Israel war to the attention of the UNSC. Article 99 grants this political power to the Secretary General if he thinks that a situation may threaten the maintenance of international peace and security, but this power is seldom used. The last time a Secretary General invoked Article 99 was in 1989, and Secretary General Guterres’ December 6, 2023, letter was the seventh application of Article 99 in the entire history of the UN. After declaring that the Secretary General had repeatedly condemned the abhorrent acts of terror by Hamas and other Palestinian groups, the focus of his letter is on the effect of the Israeli military operations in Gaza. He mentions the high number of fatalities, the forcible displacement of people, the collapse of the health care system, the breakdown of public order and the insufficient delivery of supplies. He urges the members of the UNSC to demand a humanitarian ceasefire. This move by the Secretary General led to a fierce reaction from Israel’s Foreign Minister, Eli Cohen. He accused the Secretary General of supporting Hamas and asked for his resignation. According to Israel’s Ambassador to the UN, Gilad Erdan, the Secretary General has “reached a new moral low.”19 A former Israeli ambassador to the UN, Gabriela Shalev, spoke of a very low point in the relations between Israel and the UN. She observed, “We have the feeling that organizations of the UN all over the world don’t understand that Israel is now at war for its existence as a Jewish and democratic state, it is (facing) an existential threat from all sides.”20 F. The Failure of the Security Council to Adopt a Second Resolution The UNSC discussed the Secretary General’s letter in an emergency meeting on December 8, 2023. On the previous day and with the support of the Islamic and Arab states, the United Arab Emirates (UAE) submitted a draft resolution calling for an urgent humanitarian ceasefire, the release of all hostages, and humanitarian access. The resolution was supported by thirteen members of the UNSC, the UK abstained, and the U.S. used its veto to prevent the adoption of the resolution. It was unacceptable for the U.S. because the drafters declined to condemn the Hamas terrorist attack, failed to demand that the International Committee of the Red Cross have access to the hostages to provide medical treatment, and failed to acknowledge Israel’s right to self-defense. Several Member States that voted in favor, as well as the UK which abstained, would have preferred a condemnation of Hamas. The position of the Russian Federation was particularly remarkable in that it unabashedly castigated both Israeli bombings and U.S. diplomacy by claiming they created “a cemetery of Palestinian children,” and obviously ignored its own tactics in Ukraine.21 Israeli Ambassador Erdan was clear in his criticism of the Secretary General for initiating the meeting of the UNSC, using his power under Article 99 of the UN Charter, something he had not done in respect of the war between Russia and Ukraine. Moreover, the proposed resolution sent the message “that Hamas is forgiven for their deliberate atrocities, and Hamas’ oppression of Gazans is given green light by the international community.”22 G. The General Assembly’s Second Resolution As was to be expected, the General Assembly again used the “Uniting for Peace” procedure. The General Assembly met on December 12, 2023, in the continued Tenth Emergency Special Session. It adopted a resolution that shows strong similarities with the rejected UNSC resolution. It demands an immediate humanitarian ceasefire, the release of all hostages, and humanitarian access. Resolution (A/ES-10/22) was adopted and the 19. Agence France-Presse (AFP), “As UN chief uses rare clause to urge truce, Israeli envoy says he ‘reached a new moral low’,” TIMES OF ISRAEL, Dec. 6, 2023, available at https:// www.timesofisrael.com/liveblog_entry/as-un-chief-usesrare-clause-to-urge-truce-israeli-envoy-says-he-reacheda-new-moral-low/ 20. Abbas Al Lawati and Nadeen Ebrahim, “Israel-UN relations at historic low as secretary-general invokes rare diplomatic measure,” CNN, Dec. 8, 2023, available at https://edition. cnn.com/2023/12/08/middleeast/israel-un-diplomaticshowdown-hamas-war-mime-intl/index.html 21. United Nations, “Security Council Fails to Adopt Resolution Demanding Immediate Humanitarian Ceasefire in Gaza on Account of Veto by United States,” UN NEWS, Dec. 8, 2023, available at https://press.un.org/en/2023/sc15519. doc.htm; see also Ambassador Robert Wood, “Explanation of Vote on a United Arab Emirates-Drafted UN Security Council Resolution on the Situation in the Middle East,” United States Mission to the United Nation, Dec. 8, 2023, available at https://usun.usmission.gov/explanation-ofvote-on-a-united-arab-emirates-drafted-un-security-councilresolution-on-the-situation-in-the-middle-east/ 22. United Nations, “US vetoes resolution on Gaza which called for ‘immediate humanitarian ceasefire’,” UN NEWS, Dec. 8, 2023, available at https://news.un.org/en/ story/2023/12/1144562
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