Secretary-General: Not the Chief Legal Scholar of the UN

The ever-impressive Laura Rozen sat down with Brazilian Foreign Minister Antonio Patriota on Tuesday for a wide-ranging conversation. Among the topics that came up was ongoing tension among the international community regarding Iran’s nuclear program. An IAEA mission left Iran this week after failing to gain access to the Parchin military facility to the inspection team on the ground. Brazil and Turkey have been working together for years now to attempt to find a solution to the stalemate outside of the P5+1 negotiation process, so it’s no surprise that Minister Patriota wanted to discuss the matter. What truly caught my interest was his statement regarding the potential for Israeli preemptive strikes:

“No doubt adding an additional flashpoint of military action in a volatile region will greatly exacerbate tensions,” Brazilian Foreign Minister Antonio Patriota told Yahoo News in an interview in New York Tuesday. The international community should proceed “with the utmost caution.”

“There is a role for him in this,” Patriota said he had proposed to the UN chief. “One sometimes hears the expression, ‘all options are on the table.’ But some actions are contrary to international law.”

Patriota’s comments come as the United States, United Kingdom and Russia have asked Israel both privately and publicly not to carry out a preemptive strike against Iran’s nuclear facilities.

I agree with Mr. Patriota that an Israeli strike on Iran’s nuclear facilities would be the catalyst for an even more unstable Middle East, and that states should actively seek to discourage Tel Aviv from taking such a course of action. I further believe that the United Nations most certainly has a role to play in continuing to foster negotiations between Iran and the rest of the world on how to verify that its nuclear program is peaceful. I’m slightly more hesitant about his stressing the need for the Secretary-General to weigh in.

The United Nations Secretary-General has many jobs as the head of the world’s most far-flung international organization. As the chief of the Secretariat, he manages thousands of civil servants around the globe, each strive to improve . As the face of the United Nations, Mr. Ban has to bear the brunt of criticism when things go wrong, when his nominal employees perform horrific acts, or when states dig their heels in against taking strong action counter to the rest of the world. Under the Article 99 of the UN Charter, the Secretary-General has a role in maintaining peace and security, having the unilateral ability to bring items of concern before the Security Council. Here’s where things get more conflicted. A denouncement of Israel planning strikes against Iran is perfectly valid as a practical matter; as a matter of legal principle, however, I’m uncertain whether “legal scholar” is a hat the Secretary-General does or should wear.

The UN Charter maintains some vagaries when it comes to Article 51’s defense of self-defense. International law experts have grappled with its terms for over six decades now, though the majority cite the need for “an armed attack” to occur prior to being able to invoke the clause. This becomes difficult to align with the notion of the preemption of an imminent attack, as intelligence-gathering has gained in sophistication since the drafting of the Charter. The cloud surrounding the concept if anything has grown murkier over the last decade, in no small part thanks to the Bush Administration’s acceptance of “preventive” action. Kofi Annan had no such qualms, however, addressing the General Assembly in 2010 denouncing the concept in its entirety. That was an immediate past Secretary-General, not a sitting one, though Annan didn’t hesitate in speaking out against the US’ war against Iraq.

If the Secretary-General does speak out against Israel taking unilateral action, it should be seen as a plea to keep the situation from spiraling out control and exacerbating the current threat to international peace and security. I’m less certain that it should be seen as international condemnation of the principles behind the theory of preemptive action and a rebuke of the concept in general. I personally feel a great deal of ambivalence towards the concept; the UN Charter leans strongly against its legality, and yet I have trouble squaring away that were I to be a world leader, I would ignore accurate intelligence to uphold it. It’s a matter that should be debated and rightly deserves a renewed focus in the current environment, but I believe that debate should be at the International Court of Justice, not the halls of the Secretariat.

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2 Responses to “Secretary-General: Not the Chief Legal Scholar of the UN”

  1. Great post! I’m a new fan.
    One nitpick: Israel’s government sits in Jerusalem, not Tel Aviv.

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