The following is a guest post by Thomas Obel Hansen. Thomas is the Maria Zambrano 2023-24 Distinguished Researcher with the Universidad Carlos III de Madrid (Spain) and a Senior Lecturer in Law with Ulster University Law School/ Transitional Justice Institute (UK).

For almost six months, the United Nations Security Council (UNSC) had been unable to reach an agreement to take meaningful action with regard to the Gaza War. But on 25 March, the UNSC finally adopted Resolution 2728 (2024). The operative paragraphs of the resolution states that the UNSC: 

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)

Resolution 2728 passed by a vote of 14 in favor to none against, with the U.S. abstaining. 

From the moment that Resolution 2728 was adopted, a debate was triggered as to whether the resolution creates legally binding law. Hannah Birkenkötter has already offered insightful reflections on this question, concluding that the resolution is indeed legally binding since it effectively makes a ‘decision’. That UNSC resolutions which make ‘decisions’ are legally binding ought to be absolutely clear. Article 25 of the UN Charter has been interpreted by the International Court of Justice ICJ in the Namibia Advisory Opinion in 1971 to imply that any decision by the UNSC is legally binding, even if it does not explicitly use the term ‘decision’ and even if it is not adopted under Chapter VII of the UN Charter. 

What is the U.S. and other States saying?

On the same day the resolution was passed, U.S. State Department spokesperson Matthew Miller made clear the U.S. view that the resolution is “a non-binding resolution” (a point also made by U.S. representative to the UN, Linda Thomas-Greenberg in the context of the resolution’s adoption). Asked if he expected Israel would announce a ceasefire in light of the Resolution 2728, Matthew Miller responded: “I do not”. White House National Security Spokesperson John Kirby similarly stated: “it’s a nonbinding resolution. So, there’s no impact at all on Israel and Israel’s ability to continue to go after Hamas”, further emphasizing that the U.S. abstaining on its vote “does not — I repeat — does not represent a shift in our policy”.

In another press briefing on 26 March, the U.S. State Department elaborated its position:

When we say the resolution is nonbinding, what we mean is that it 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. That said, we do believe that […] it does carry weight and it is something that should be implemented.

South Korea has also expressed doubt about the binding nature of the resolution, as has Germany with a Foreign Office spokesperson observing “the decision of the UN Security Council is politically binding”.

However, the U.S. position has been clearly countered by other permanent UNSC members in recent days. Russia has now stated its view that Resolution 2728 is legally binding, as has China. France too has clearly stated its view that the resolution is legally binding. The same goes for a number of non-permanent members of the Council, including Mozambique and Slovenia.

Why the U.S. position is wrong

It is well established that the term “demand”, as used in Resolution 2728, signifies a legally binding command. As Dan Joyner explains in his comments about UNSC Resolution 2334 concerning the Israeli settlements, “demand” is a term that is regularly “used by the Council to command an addressee to abide by its obligations existing independently in international law”. 

Importantly – and in contrast to Resolution 2334, which concerns existing legal obligations (namely to cease a practice already unlawful under existing international law) – Resolution 2728 both reiterates existing legal obligations and creates new legal obligations. Its demand for the release of hostages; ensuring humanitarian access; and compliance with obligations under international law in relation to persons detained are all requirements that already follow from existing international law. However, an “immediate ceasefire for the month of Ramadan”, leading to “a lasting sustainable ceasefire”, is not something that follows from existing obligations under international law, but something that clearly creates new legal obligations for the parties to the conflict. 

That is to say, even if international law requires the peaceful settlement of disputes, once there is an armed conflict there is nothing in existing international law, as such, that demands parties to enter a ceasefire at a particular moment. Rather, demanding a ceasefire is exactly one of the core prerogatives of the UNSC– and one that, when used, creates new legal obligations for the parties to a conflict. 

Regardless of what the U.S. and others may think, the substance of the demand that the Council makes in Resolution 2728 indisputably creates a new legal obligation for both Israel and Hamas (and other Palestinian armed groups taking part in the hostilities), namely to cease these hostilities for the remaining part of Ramadan and to work towards “a lasting sustainable ceasefire”.

Why the U.S. position is harmful

Claiming that UNSC resolutions, which clearly make decisions, are not binding undermines the authority of the Council – and more generally international law.

At a practical level, the U.S. position creates support for Israel to continue its military operations in breach of Resolution 2728 and to continue to take other measures in defiance of the resolution and international law more generally.

Israel indicated after the passing of Resolution 2728 that it intended to continue its military operations in Gaza. For example, Israeli Defence Minister Yoav Gallant – who at the time was in Washington for a meeting with White House National Security Adviser Jake Sullivan – made it clear that Israel will continue to:

operate against Hamas everywhere — including in places where we have not yet been […] We have no moral right to stop the war while there are still hostages held in Gaza.

Israeli National Security Minister Itamar Ben-Gvir stated that Israel “must enter Rafah now”, while War Cabinet Minister Benny Gantz clarified that the Resolution 2728 will have “no operational significance” for Israel. 

Indeed, Israel has continued military operations in Gaza, according to the IDF itself striking 60 targets in Gaza in less than 24 hours after the resolution was passed (reportedly killing dozens of Palestinians at both ends of the Gaza Strip, including a “double-digit” number of children, in that action). Military operations in Rafah have reportedly intensified since the adoption of Resolution 2728. The IDF also reported that it continued its military operations in al-Shifa Hospital. 

Israel has furthermore withdrawn its negotiation team from Doha, citing a lack of commitment from Hamas to the talks. It has also blocked UNRWA’s access to Northern Gaza, in a move criticized by allies such as the UK.

Taken together, it therefore seems clear that Israel has no intention to comply with core legally binding components of Resolution 2728, including those relating a ceasefire and those relating to ensuring humanitarian access and lifting of barriers to the provision of humanitarian assistance at scale. 

The position of the U.S. will certainly not encourage Israel to reconsider its actions in Gaza, neither will it do anything to alleviate widespread concerns that the U.S. operates outside the established framework of international law.