Date: 13 April 2024

On 25 March 2024, after nearly six months of intensive Israeli bombing and shelling of the Gaza Strip, in a military campaign which has been found to be plausibly genocidal, the UN Security Council (UNSC) reached a ceasefire agreement adopting UN Security Council Resolution 2728. Crucially the UNSC demanded “an immediate ceasefire for the month of Ramadan respected by all parties leading to a lasting sustainable ceasefire”. It further demanded “the immediate and unconditional release of all hostages, as well as ensuring humanitarian access to address their medical and other humanitarian needs”. In addition to emphasising “the urgent need to expand the flow of humanitarian assistance to and reinforce the protection of civilians in the entire Gaza Strip” reiterating its demand for the lifting of all barriers to the provision of humanitarian assistance at scale”. Importantly, the United States (US), did not use its veto power at the UNSC traditionally exercised in support of Israel, opting instead to abstain from the vote, ensuring that the resolution carried.

While Al-Haq, Al Mezan Center for Human Rights, and Palestinian Centre for Human Rights (PCHR) staunchly welcome this resolution, we are alarmed by the intervention of the United States attempting to water down the applicability of the UN Security Council resolution and calling into question its binding nature. The United States’ representative at the Security Council, Linda Thomas-Greenfield outlined that “while her delegation did not agree with everything in the resolution — and therefore was unable to vote in favour — it supports ‘some of the critical objectives in this non-binding resolution’ and that the Council must make clear that the release of all hostages accompany any ceasefire” (emphasis added). In a press briefing, US White House National Security Communications Advisor, John Kirby, publicly assured that UN Security Council resolution 2738, is “a nonbinding resolution.  So, there’s no impact at all on Israel and Israel’s ability to continue to go after Hamas”, and as such “it does not represent a change at all in [United States] policy.  It’s very consistent with everything that we’ve been saying we want to get done here . . . so, again, no change in our policy” (emphasis added).

In a press briefing of the Elected 10 Group following the adoption of the UN Security Council resolution, the representative for Mozambique stressed that “all Security Council resolutions are binding and that every Member State[s] are under the obligation to implement those resolution”. However taking a contrary minority position, the representative to South Korea elaborated its view, that the resolution was non-binding because “this UN Security Council resolution did not use the word ‘decide’ and it did not invoke Chapter VII of the UN Charter, so legally speaking it may not be legally binding”.

Legal Analysis

Contrary to the claims of the US and South Korea, Al-Haq, Al Mezan, and PCHR, establish that UN Security Council Resolution 2728 is legally binding on States. First, as South Korea rightly expressed, the legal basis for the binding nature of UN Security Council decisions can be found in Article 25 of the UN Charter, which provides that the “Members of the United Nations agree to accept and carry out the decisions of the Security Council”, without distinction whatsoever. The question then is what constitutes a UN Security Council decision?

In Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970) the International Court of Justice (ICJ) determined that “Article 25 is not confined to decisions in regard to enforcement actions but applies to the ‘decisions of the Security Council adopted in accordance with the Charter”, clarifying that Article 25 “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”. The Court explained that: “In view of the nature of the powers under Article 25, the question whether they have been in fact exercised is to be determined in each case, having regard to the terms of the resolution to be interpreted, the discussions leading to it, the Charter provisions invoked and, in general, all circumstances that might assist in determining the legal consequences of the resolution”. In Namibia, the ICJ relied on the language of the resolution to infer its binding effect and considered that terms such as “calls upon” are sufficiently strong to bind its recipients. Accordingly, the lack of the word “decide” in the present resolution does not mean that it does not contain binding obligations since similarly binding language exists, namely “demands”. Hence, the recipients of the resolution, “all parties”, which refers to Hamas and Israel, are bound by it.

Furthermore, we note that the resolution was not adopted under Chapter VII of the UN Charter. However, according to Article 39 of the UN Charter, this chapter is applicable in case of a “threat to the peace, breach of the peace, or act of aggression”. The situation in Gaza constitutes a serious threat to the peace or breach of the peace and one can affirm that it amounts to an act of aggression, defined as “the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State”. Accordingly, Article 2(5) of the UN Charter requires that “[a]ll Members shall give the United Nations every assistance in any action it takes in accordance with the present Charter, and shall refrain from giving assistance to any state against which the United Nations is taking preventive or enforcement action”. This provision has been interpreted by the ICJ in Reparation for Injuries Suffered in the Service of the United Nations [1949] as “requiring [members of the United Nations] to give it every assistance in any action undertaken by it (Article 2, para. 5), and to accept and carry out the decisions of the Security Council”. All States, including Israel and the United States are required to give effect to the ceasefire.

Conclusion and Recommendations

Israel has flagrantly breached UNSC resolution 2728 since 25 March, continuing hostilities in Gaza, and killing a further 1,301 Palestinians and injuring another 1,520 –– bringing the death toll between 7 October and 12 April, to 33,634 killed and 76,214 injured –– with a further estimated 20,000 people believed to be buried under the rubble. Given the scale of the suffering, the forced starvation of the Palestinian people, the systematic targeting and destruction of hospitals and shelters, mass forcible transfer and the complete annihilation of the Gaza Strip, there can be no return to hostilities. The requirement that the Ramadan ceasefire must lead “to a lasting sustainable ceasefire”, contained in UN Security Council Resolution 2728 is also legally binding on all States. The requirement builds on the UN General Assembly resolution in December demanding an immediate humanitarian ceasefire.

In light of Israel’s continued refusal to comply with international law and stop committing the ongoing genocide of Palestinians in Gaza as required by the international community, we call upon the UNSC to take further and more coercing measures to enforce the present resolution. The UN Security Council must fulfil its mandate to maintain international peace and security and adopt concrete measures, including economic and individual sanctions, and a three-way arms embargo to hold Israel to account. We strongly welcome the commitment by the President of Columbia, Gustavo Petro, promising to sever diplomatic relations with Israel for non-compliance with the UN Security Council and urge that Third States follow suit applying full countermeasures. The existence of the Palestinian people and the credibility of the international legal order are at stake.