Yet, the war continues

Gaza war: is UN security council ‘demand’ for a ceasefire legally binding? Here’s what international law says.

Despite the groundbreaking adoption of a UN security council resolution demanding a immediate ceasefire in Gaza, the war continues. The reaction from Israeli prime minister, Benjamin Netanyahu, to the passing of the resolution has been ferocious.

Israel has stated publicly that it will continue military action until all hostages are returned and there is little sign of the ceasefire being implemented. So, what happens now?

Resolution 2728 was adopted by the security council on March 25, with 14 members voting in favour of the resolution and the United States abstaining. The resolution demands a temporary but “immediate ceasefire”.

It also demands the release of all hostages and the “lifting of all barriers to the provision of humanitarian assistance, at scale, in line with international humanitarian law”.

This was a significant moment in the history of the question of Palestine at the security council. The fundamental importance of the US change in stance from one of vetoing such resolutions as Israel’s ally to one of abstaining (still as Israel’s ally, but with significant reservations) and therefore allowing the resolution to pass should not be underestimated.

The political fallout has been felt immediately both in Israel and in Washington. But the legal and practical outcomes of this resolution are not yet clear.

The legally binding nature of the resolution has been questioned by the US. The US representative to the UN stated explicitly that they did not agree with everything in the resolution – and could not therefore vote in favour of it. But they did support, she added, “some of the critical objectives in this non-binding resolution”.

The question of whether the resolution is binding revolves around whether it falls under the remit of chapter VII of the UN charter which provides the legal basis for the security council to undertake any “Action with Respect to Threats to the Peace, Breaches of the Peace, and Acts of Aggression”.

In the past, questions have been raised as to whether all resolutions of the security council are legally binding on member states or only those adopted under the specific powers provided for within chapter VII. The representative from South Korea asserted at the time of the vote that resolution 2728, “while not explicitly coercive under Chapter VII of the Charter of the United Nations – reflects the international community’s consensus”.

Within the UN charter itself, articles 24 and 25 set out the general authority and powers of the security council and article 25 requires that all member states accept and implement the security council’s binding decisions.

The International Court of Justice (ICJ) addressed this question beyond doubt in the Namibia Advisory Opinion. The court considered security council resolution 276 ordering South Africa to withdraw from Namibia, after the UN determined in 1966 that the South African administration in what had formerly been known as South West Africa was illegal.

The court declared that article 25 is not confined to decisions in regard to enforcement action under chapter VII, but applies to “the decisions of the Security Council adopted in accordance with the Charter”. It also stated that all member states must comply with such decisions, including members which voted against it and members of the UN who are not members of the council.

The ICJ opinion also has discussed the difference between what it calls “exhortatory rather than mandatory language”. It notes that: “The language of a resolution of the Security Council should be carefully analysed before a conclusion can be made as to its binding effect.”

In the case of resolution 2728 the mandatory language is clear: the security council “demands” a ceasefire.

Another issue to consider is whether such a legally binding resolution can apply to non-state actors such as Hamas. In 2010, in an advisory opinion on whether Kosovo’s declaration of its independent statehood was legal, the court determined that parties for which the security council “intended to create binding legal obligations” needs to be decided on a “case-by-case basis”.

The opinion added that “the language used by the resolution may serve as an important indicator in this regard”. Resolution 2728 demands that the ceasefire and international law be respected by “all parties”.

What can be done under chapter VII

So what can be done to enforce this legally binding resolution, if one or more of the parties refuses to comply with it? Under chapter VII, there are two main courses of action. Article 41 provides for measures not involving the use of armed force, including sanctions or severance of diplomatic relations.

If these are insufficient, and the security council is satisfied the situation represents a threat to the peace, article 42 provides that the council “may take such action by air, sea, or land forces as may be necessary to maintain or restore international peace and security”.

In regard to the situation in Gaza, it’s possible to argue that this has already been established historically. Resolution 54 in 1948 expressly determined that the situation in Palestine was a “threat to the peace within the meaning of article 39 of the Charter of the United Nations”. In 2024, the security council continues to discuss the Palestinian-Israeli conflict as a threat to international peace and security.

So the adoption of resolution 2728 is hugely symbolic. Politically, particularly given the decision of the US not to use its veto to block the resolution, it represents a significant development at the international level. This alone should send a strong signal to Israel.

Yet enforceability remains uncertain, especially given that Israel has failed to comply with the ICJ ruling that it should take all measures within its power to prevent the commission of genocide.

What happens next will mainly depend on political will. But the passing of this resolution does enhance the possibilities for further action under international law, especially if the five permanent members of the security council – including the US – have the appetite to act. Before resolution 2728 that would have been unimaginable. Now? Not so much.

Amanda Cahill-Ripley is a Senior Lecturer in Law, University of Liverpool. This article was first published in ‘The Conversation’.

Photo: The UN security council voting on resolution 2728 which ‘demands’ a ceasefire in Gaza. (EPA-EFE/Sarah Yenesel)

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