This article is not a piece of investigative reporting. It is an exercise in legal forensics that reveals the hands that robbed the late Boutros Boutros-Ghali of a second term as UN secretary-general. These hands are not those that are publicly peddled. They are not those of then-US President Bill Clinton, but of a UN Charter that is full of gaps and contradictions. Looking at the charter, it is not what is taught at law schools. At Fordham Law School in New York, when I am teaching the charter I focus on the words and do not analyse the provisions. Those provisions, drafted in 1945, belong to a museum and not to the world of the 21st century, and Boutros-Ghali and I discussed this at length. First, the term “peacekeeping” does not appear in the UN Charter, a Second World War document. In San Francisco, where the charter was drawn up, the allies that were then fighting the war wanted to maintain their cooperation in the post-war years. However, they did not do so, and the Cold War began, completely nullifying Article 47 of the charter, which provides for “a military staff committee”. There was to be no pooling of military expertise with the adversary. The vacuum was provisionally filled by pioneering secretary-general Dag Hammarskjöld, when UN peacekeepers, the so-called “Blue Helmets,” were his response to the Tripartite Aggression on Egypt by Israel, France and Britain in 1956. The Blue Helmets were born not in the UN Security Council chamber but in Port Said. Their helmets were painted blue, the UN colour, in Italy. When they expanded into Congo in 1960, the Blue Helmets were a huge flop, and an Italian contingent was massacred by supporters of former Congolese president Patrice Lumumba. When they were called on to help, an Irish contingent a few miles across a nearby river did not respond. But this was not because of cowardice. It was because the Italian signal could not be understood. At the time there was no training in peacekeeping, including signalling. The chaos resulting from this dysfunction in the UN Charter reached the shores of the former Yugoslavia as it was breaking up in the 1990s. It also engulfed Rwanda in the same decade. The Muslims of Bosnia and Herzegovina were ethnically cleansed in the Balkans, and a million Tutsis in Rwanda were massacred. UN Security Council resolutions, as expected, proved to be hollow moralising. But not only was the Security Council failing in its charter-outlined duties. It was also ironically expanding its jurisdiction in areas prohibited by other charter provisions. Article 2, paragraph 7 of the UN Charter prohibits intervention in “matters which are essentially within the domestic jurisdiction of any state,” although each state decides such matters as it pleases. Later, the same provision regarding respect for sovereignty takes a turn towards a dead end, saying, “but this principle shall not prejudice the application of enforcement measures under Chapter VII (i.e., on sanctions)”. Guess who decides on sanctions: a veto by any of the five permanent members of the Security Council (the US, UK, France, Russia and China) or four non-permanent members (there are 10 non-permanent members on the council). The result is a system where the five permanent members agree on the selection of a state to be sanctioned, which cannot be one of their protégés. World justice disappears as a result of such selectivity. It is inequality before the law. It is easy to sanction an Iraq, a Libya, an Iran, or a Sudan, since these countries have no big-power umbrella and no powerful uncle or godfather to protect them. With no hope of reforming the Security Council, the council turned its gaze on individuals within sovereign states and came up with the idea of a “travel ban” on individuals without advance notice and with no hope of reviewing such a list of banned individuals. It created Guantanamo-style islands without the addition of torture. As a result, there were two UN systems in one: the General Assembly (akin to a House of Commons), and the Security Council (akin to a House of Lords). But General Assembly resolutions are mere wishful thinking as they have no enforcement mechanisms. The “House of Lords” is the only body that can take decisions, though it does so selectively. If there is a tie, say on Afghanistan, then a new non-charter mechanism, called “a presidential statement”, is put in place that does not even have the teeth of an executive order. In the thick of this mess stands the secretary-general. The most neutral body in the world organisation is the UN Secretariat, where I myself served for 32 years. The secretariat is on duty 24/7, serves all UN member states on an equal footing, and provides data and mission reports for the guidance of the secretary-general and, through him, to the entire membership. But speaking of the secretary-general, you have to be careful which secretary-general you mean, as there are two of them in the same body: an executive secretary-general and a political secretary-general. The former is covered by Article 98 of the charter, the latter by Article 99. And it was within the latter article that the problems faced by Boutros-Ghali emerged. The article is the real separator between the former League of Nations and its presumed inheritor, the UN of the San Francisco charter. The text reads, “The secretary-general may bring to the attention of the Security Council any matter which in his opinion may threaten the maintenance of international peace and security.” Thus, the political secretary-general is born through the midwifery of Article 99. Armed with the big word “may” — meaning, “at his discretion” — there is born a form of power-sharing, expressed by Boutros-Ghali in what he called “the sixth veto”. Boutros-Ghali was not a politician. He was a lecturer in international law ministering to a collection of rowdy states that, especially the US, resented his threatened intrusion into their preserve. He was conscious of the political pitfalls, but he felt deeply that the charter, though deficient, could be reformed through “political ijtihad”. In other words, he thought it could be interpreted broadly, by using common sense, as the existing text could not be easily revised. Boutros-Ghali's honeymoon with the Clinton administration was brief, and it was Afghanistan, not the ex-Yugoslavia or Rwanda, which unleashed the venom of Madeleine Albright, then-US permanent representative at the UN. This was in the early 1990s, when both Clinton and his rival, the Republican Robert Dole, found the UN an easy target to prove a nationalist point of view: namely, that America would not be legislated to by the UN, where anti-American feelings ran high. French support for Boutros-Ghali could not match a Clinton administration that saw in Boutros-Ghali an advocate of a UN that was not subservient to Washington's diktat. The great theoretician Boutros-Ghali, a close friend of mine for 50 years, lost the battle. Because of its fossilised nature, the UN Charter favoured Clintonite politics, and this iconic thinker lost the battle for a second term as secretary-general of the UN. He was succeeded by a politician, Kofi Annan, who had no problem staying for two terms. Annan was chosen to appease the UN's African membership after Boutros-Ghali, an African, had been jettisoned. From the major powers' point of view, Annan was an appeaser and not someone who went for confrontation like Boutros-Ghali. He was a manager, not a thinker. In Boutros-Ghali's failure to gain a second term, I find a strong echo of Hammarskjöld, as the two men's commonality of approach towards the charter is clear. Hammarskjöld stood his ground in 1960 when the leader of the Soviet Union, Nikita Khrushchev, banged his shoe on the table in the General Assembly and demanded that Hammarskjöld leave. A year later, in 1961, the white supremacist regime in the then-Rhodesia was suspected of causing the crash of a plane that Hammarskjöld was aboard, killing him and others. Boutros-Ghali also stood his ground. He advocated reform of the Security Council, and he ran afoul of Washington. But he kept his promise to his own convictions, and to an idealism that was not reflected in the rough and tumble political world of the “glass house” along the East River in New York City. In 1992, in his office on the 38th floor he asked me, “Do you wish to continue? Haven't you enjoyed your six years of retirement?” “No, Boutros,” I said. “I have left this cage. Now I am breathing in freedom on the outside where I have lots of options.” His silent but approving smile guided me to the exit. It is difficult, in fact it is impossible, to forget his ideas and his ideals. It is impossible to forget that quiet but knowing smile and innate wisdom. A second term would have been a further episode in a life that enriched the world. And there is more to the Boutros-Ghali saga. The media say that he lobbied for the post, which is wrong. Africa lobbied for him to have the post at an African summit meeting. Mobutu Sese Seko, then the president of Zaire (now known as the Democratic Republic of Congo), motioned to him and whispered, “The Anglophone Africans want to nominate one of them. You are our Francophone candidate.” Taken aback, Boutros-Ghali responded by asking, “What will President Mubarak say?” Mobuto winked and said, “I shall call Mubarak myself.” And he did, and then the game was on. How do I know all this? From the lips of Boutros-Ghali himself, who told me in Mexico City. He had invited me to join him there for personal consultations before François Mitterand, at the time the president of France, threw in his support and tipped the scales in favour of Boutros-Ghali as UN secretary-general. As a result of the Clinton administration's animosity, and forged in the crucible of an old and tattered UN Charter, the process of nominating a UN secretary-general is at long last about to change. The idea is to break the stranglehold of the five permanent members of the Security Council over the mediaeval method of nomination. This will end the method whereby the General Assembly is a mere rubber stamp for what the big five agree upon in private consultations. This earlier process sank the ship of nominating Tanzania's Salim Ahmed Salim in the early 1980s to replace Kurt Waldheim of Austria as secretary-general. Waldheim, later found to have been a former Nazi operative in Greece, was running for an unheard of third term at the time, and Salim was his opponent. America vetoed the Salim nomination. His sin? Dancing in the aisles of the General Assembly when mainland China was admitted to its rightful seat at the UN. China vetoed Waldheim, and the deadlock continued for 16 ballots. Salim, in our frequent meetings at the time, used to say, “Waldheim has no chance. The process is broken.” Finally, Javier Pérez de Cuéllar of Peru was called upon from a beach resort to occupy the post as a final compromise. Boutros-Ghali followed him, despite early American misgivings. In his book Unvanquished, Boutros-Ghali said there was one thing that the UN Charter could not accommodate: dedication by a secretary-general who dared to defy a major power armed with a veto. No meaningful reform of the Security Council is at present possible. If I were to write an epitaph for Boutros-Ghali, it would read: “Here lies a leader who sacrificed a worldly position for the world's principles.” Rest in peace, my friend. Egypt bade him farewell in an appropriate manner with a state funeral, for he was a true patriot and a defender of the universal rule of law.
The writer is a professor of law at New York University.
