MORE than five months into Israel’s pogrom against Palestinians, the UN Security Council finally adopted Resolution 2728/2024. The resolution, proposed by the 10 non-permanent members of the UNSC (E10), received unanimous assent with one abstention by the US — Israel’s staunchest ally and a permanent member of the UNSC (P5) — and comes after four prior attempts at its passage, three of which were vetoed by the US itself and one by China and Russia.

While the resolution’s passage is a positive step, much like with the provisional orders issued by the International Court of Justice earlier this year, expectations must be tempered; neither the resolution nor indeed the ICJ’s provisional orders offer a panacea for the ongoing slaughter of Palestinian civilians, the death toll for whom has credibly exceeded 30,000. The resolution does, nonetheless, represent a watershed in international law and diplomacy as they intersect with Israel’s pogrom against Palestine.

It must first be emphasised that the resolution itself limits the ceasefire to the month of Ramazan, which is likely to end around April 10. Thus, even were Israel to immediately comply and cease hostilities, this would only yield a fortnight’s reprieve for Gazans before the likely resumption of bloodshed. Such a brief cessation of hostilities would render relief efforts incredibly difficult and arguably have little impact on the unfolding humanitarian catastrophe in Gaza.

Immediately after the resolution’s passage, efforts were made to downplay its significance, with spin doctors attempting to frame the resolution as “non-binding”, and thus having no further legal effect than the numerous UN General Assembly resolutions on the matter. This characterisation is, however, inconsistent with the principles of statutory interpretation applicable to international legal instruments, including resolutions of the UNSC.

Neither the UN resolution nor the ICJ’s provisional orders offer a panacea for the ongoing slaughter of Palestinian civilians.

The UN Charter establishes the UNSC, lays out its powers, and delineates how the UNSC exercises those powers. The most overt of these powers can be found in Chapter VII of the Charter, which relates to the maintenance of international peace and security. Under this chapter, the UNSC is empowered to take any action — including military — in order to “give effect to its decisions”; as such, UNSC resolutions issued under this chapter are generally binding in nature. In this context, it is critical to note that Resolution 2728 was not issued under Chapter VII, but instead, in exercise of the UNSC’s general powers under and “guided by the purposes and principles of the Charter of the United Nations”.

Proponents of the non-binding nature of Resolution 2728 cite prior UNSC resolutions where the text of the resolution clearly identifies the UNSC’s reliance on its Chapter VII powers. At best, this is a myopic reading of such instruments, as pursuant to Article 25 of the UN Charter, “Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter”.

Thus, focusing exclusively on the UNSC’s Chapter VII powers misses the forest for the trees, as the Charter itself obliges UN members to comply with UNSC decisions, such as Resolution 2728. As described by the ICJ in its advisory opinion on South West Africa, “[a]rticle 25 is not confined to decisions in regard to enforcement action but applies to ‘the decisions of the Security Council’ adopted in accordance with the Charter. Moreover, that Article is placed, not in Chapter VII, but immediately after Article 24 in that part of the Charter which deals with the functions and powers of the Security Council. If Article 25 had reference solely to decisions of the Security Council concerning enforcement action under Articles 41 and 42 of the Charter, that is to say, if it were only such decisions which had binding effect, then Article 25 would be superfluous, since this effect is secured by Articles 48 and 49 of the Charter”.

In a press conference following the resolution’s passage, E10 representatives confirmed that “all Security Council resolutions are binding, and every Member States are under the obligation to implement those resolutions”. Though the South Korean representative sought to demur from this position, stating that “maybe legally speaking it’s non-binding because in accordance with the UN Charter, all Security Council decisions must be implemented and are legally binding, but this resolution does not use the word ‘decide’”, an analysis of the resolution’s language rebuts this perspective.

Firstly, the UNSC cannot ‘decide’ a ceasefire, any more than it can ‘decide’ a resumption of hostilities; instead, UNSC resolutions adopt text to give effect to the desired outcome.

Secondly, the language of Resolution 2728 unequivocally “demands” (i) an immediate ceasefire, (ii) the immediate and unconditional release of all hostages, and (iii) that parties comply with their obligations under international law in relation to all persons they detain. Resolution 2728 thus cannot be credibly interpreted in any other manner than for it to place binding legal obligations on the parties to the conflict, particularly in light of the ICJ’s own jurisprudence, which has interpreted the use of the phrase “calls upon” in UNSC resolutions 269/1969 and 276/1970 to be similarly mandatory.

UNSC Resolution 2728 is not the ‘silver bullet’ Palestine and its supporters are hoping for; outside of meaningful, impactful sanctions — such as arms or trade embargoes — on Israel, no pronouncement from ivory tower institutions such as the ICJ or the UNSC will halt the wanton slaughter in Palestine.

However, should Israel persist in its campaign against Palestine — in clear contravention of the ICJ’s provisional orders or Resolution 2728 — it may be “suspended from the exercise of the rights and privileges of membership by the General Assembly” pursuant to Article 5 of the UN Charter, or expelled from the UN pursuant to Article 6 of the Charter.

While such suspension or expulsion is subject to the “recommendation of the Security Council” — where it is unlikely that Israeli allies among the P5 would allow it to pass — it nonetheless represents further diplomatic and political isolation Israel — and its benefactors — are likely to experience going forward.

The writers are international law experts.

Published in Dawn, March 29th, 2024

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