On 25 March, the UN security council finally adopted a ceasefire resolution – because the United States finally stood aside and did not use its veto.
Resolution 2728 called for a two-week ceasefire in Israel's war on Gaza, the release of hostages being held in Gaza and an 'expansion' in the flow of humanitarian aid into Gaza – none of these items was made conditional on any other (see below for the full text of the resolution).
The resolution called for a ceasefire lasting 'for the month of Ramadan'. As Ramadan in Palestine this year is expected to last until 9 April, the resolution was effectively calling for a 15-day ceasefire – 'leading to a lasting sustainable ceasefire'.
'The resolution today is a non-binding resolution.' US state department spokesperson Matthew Miller said four times, on the day the resolution was passed, that it was not binding on Israel. US ambassador to the UN Linda Thomas-Greenfield added that the US supported 'some of the critical objectives in this non-binding resolution' (emphasis added).
However, deputy UN spokesperson Farhan Haq confirmed that security council resolutions are international law: 'so to that extent they are as binding as international law is' (emphasis added).
When she was asked if the resolution was binding, the British ambassador to the UN, Barbara Woodward, said: 'This resolution needs to be implemented immediately. It sends a clear council message, a united council message, and we expect all council resolutions to be implemented.'
The main argument that the US seems to be relying on depends on wording: the resolution 'demands' a ceasefire but does not 'decide' anything.
Under Article 25 of the UN Charter, 'Members of the United Nations agree to accept and carry out the decisions of the Security Council' (emphasis added). This is where the legally-binding nature of UN security council resolutions comes from.
Maya Ungar, of the International Crisis Group, told CNN: 'The US – ascribing to a legal tradition that takes a narrower interpretation – argues that without the use of the word “decides” or evocation of Chapter VII [of the UN Charter] within the text, the resolution is non-binding.' Ungar added: 'Other member states and international legal scholars are arguing that there is legal precedence to the idea that a demand is implicitly a decision of the council.'
Hannah Birkenkötter, an assistant professor at the law department of the Mexican university ITAM, wrote in a blog post that there is no legal obligation if a security council resolution uses 'hortatory' (encouraging) language – if it 'recommended' an action, for example.
However, Birkenkötter pointed out that Resolution 2728 was 'unequivocal and strong' in demanding a ceasefire and the release of hostages.
Birkenkötter also pointed out that the world court decided, in its Namibia Advisory Opinion in 1970, that a security council resolution can be legally binding without mentioning Chapter VII of the UN Charter. The world court stated (in paragraph 114): 'The language of a resolution of the Security Council should be carefully analysed before a conclusion can be made as to its binding effect.'
Birkenkötter dismisses the idea that, because the security council does not use the word 'decides' in its Gaza ceasefire resolution, that Resolution 2728 cannot be legally binding: 'the Security Council does not typically decide that a ceasefire exists – it cannot will a ceasefire into existence through a decision' (emphasis in the original). The security council can 'decide' to set up a peacekeeping mission or to send observers but it can't 'decide' a ceasefire.
Here's more Birkenkötter: 'The text of the resolution adopted today is unequivocal and strong: it explicitly demands an immediate ceasefire for the month of Ramadan as well as the immediate and unconditional release of all hostages. There is no uncertainty in the language: what weight should a demand carry, if not that of a legal obligation? To compare, in the abovementioned Namibia Advisory Opinion, the Court found (at para. 115) that inter alia the following requests were legally binding: “Calls upon the Government of South Africa to withdraw its administration from the Territory immediately” (S/Res/269 (1969), para 5) and “Calls upon all States…to refrain from any dealing with the Government of South Africa which are inconsistent with paragraph 2 of the present resolution [declaring the continued presence of South Africa in Namibia illegal]” (S/Res/276 (1970), para 5). It is not clear on which basis there should be a difference between the words “calls upon” and “demands” – if anything, the latter has a stronger connotation.'
Another argument the US has pointed to turns on 'obligations'.
State department spokesperson Miller said the resolution 'does not impose any new obligations on the parties, the way, for example, some UN resolutions that impose obligatory sanctions impose actual requirements on people to implement them.'
Luigi Daniele, senior lecturer in international humanitarian law and international criminal law at Nottingham Trent University, told the New Arab that this explanation for calling the resolution non-binding was 'preposterous legally'. He told the New Arab that if an undergraduate law student handed in coursework arguing that UN security council resolutions are not binding, they would be failed.
Daniele added that it was 'also self-defeating because if the resolution is not binding, not even the demand of releasing the hostages unconditionally is binding'.
The New Arab gathered together expert views on whether the resolution is non-binding, including Birkenkötter's blog post.
Marika Sosnowski, a postdoctoral research fellow at the University of Melbourne's law school, told the New Arab it was 'disingenuous' to say that security council resolutions are not binding. In her view, Resolution 2728 used 'really strong language' when it 'demanded' an immediate ceasefire and the release of hostages.
'Disingenuous' is a polite way of saying 'dishonest', as in 'not sincere, especially when you pretend to know less about something than you really do'.
Resolution 2728 (2024)
Adopted by the Security Council at its 9586th meeting, on 25 March 2024
The Security Council,
Guided by the purposes and principles of the Charter of the United Nations,
Recalling all of its relevant resolutions on the situation in the Middle East, including the Palestinian question,
Reiterating its demand that all parties comply with their obligations under international law, including international humanitarian law and international human rights law, and in this regard deploring all attacks against civilians and civilian objects, as well as all violence and hostilities against civilians, and all acts of terrorism, and recalling that the taking of hostages is prohibited under international law,
Expressing deep concern about the catastrophic humanitarian situation in the Gaza Strip,
Acknowledging the ongoing diplomatic efforts by Egypt, Qatar and the United States, aimed at reaching a cessation of hostilities, releasing the hostages and increasing the provision and distribution of humanitarian aid,
1. Demands an immediate ceasefire for the month of Ramadan respected by all parties leading to a lasting sustainable ceasefire, and also demands the immediate and unconditional release of all hostages, as well as ensuring humanitarian access to address their medical and other humanitarian needs, and further demands that the parties comply with their obligations under international law in relation to all persons they detain;
2. Emphasizes the urgent need to expand the flow of humanitarian assistance to and reinforce the protection of civilians in the entire Gaza Strip and reiterates its demand for the lifting of all barriers to the provision of humanitarian assistance at scale, in line with international humanitarian law as well as resolutions 2712 (2023) and 2720 (2023);
3. Decides to remain actively seized of the matter.