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After months of failed attempts, the UN Security Council approved the first on Monday resolution to call for an immediate ceasefire in the Gaza Strip. The resolution obtained 14 votes in favor and passed because the United States, instead of opposing it as it had already done three other times in recent months, only abstained, allowing the text to be approved.
The news was welcomed positively by those who support the need to stop the fighting to allow humanitarian aid to be sent to the civilian population of Gaza, and confirmed how the US government is partially distancing itself from the Israeli government of Benjamin Netanyahu, who since weeks he resists American pressure to reduce the intensity of violence in Gaza. However, it does not necessarily mean that the war will stop, because it seems very unlikely that Israel will agree to respect the UN resolution.
In the last few hours, a debate has developed on the issue on what Israel is obliged to do: on paper, in fact, the Security Council resolutions are binding, so all UN members (including Israel) are obliged to respect them; but some, including US government representatives, have questioned this, arguing that this is not necessarily the case.
Immediately after the vote, in fact, the US spokesperson Matthew Miller and Linda Thomas-Greenfield, who represents the United States at the UN Security Council, spoke of the resolution as a “non-binding” text, without however specifying what difference was between this and previous resolutions. Commenting on it to the Council, Thomas-Greenfield said the United States “fully supports some of the important objectives of this non-binding resolution,” and when Miller was asked to explain why he used that term he replied: “our interpretation of this resolution is that it is not binding.”
The representative of South Korea also did the same, but he went into more specifics: he argued that the resolution would not be binding because it does not use the verb “decide” and was not adopted under Chapter VII of the Statute of United Nations, the one that lists the measures that the Council can take to restore peace in conflict situations. The interpretation of the US and South Korean officials, however, was criticized by the other members of the Council and by several international law experts, who argued that these reasons, while weakening the effectiveness of the resolution, are not enough to make it non-binding.
The Security Council is considered the most important of the six main bodies of the UN and is made up of ten alternating countries and five permanent members who have the power of veto (they therefore have the power to block the approval of any measure of the UN organ): they are Russia, China, the United States, France and the United Kingdom.
The UN Charter places the responsibility on the Council for maintaining world peace and security. The most legally relevant instrument used by the Council is that of “resolutions”, which are considered binding for all member states on the basis ofarticle 25: It means that, at least on paper, when the Security Council tells a member state to do a certain thing through a resolution, that state is obliged to respect the decision. Despite this, some resolutions can be considered “more binding” than others when they are adopted «within the framework of Chapter VII» of the UN Charter, which allows the Council, in particularly critical situations or in the event that a state ignores its requests, to mobilize member states of the United Nations, including at a military level, to “maintain or restore international peace and security”.
The mention of Chapter VII does not necessarily imply a request to member states by the UN to intervene to restore or maintain peace, and in recent years it has increasingly become an expression used to give theoretical force to a resolution: while the number total number of Council resolutions did not grow, starting from the mid-1990s the resolutions mentioning Chapter VII they have passed from being 16 percent to over 50 percent.
In the past the international community wondered whether the lack of citation of Chapter VII in a Council resolution made it non-binding: in 1971 the International Court of Justice, the most important tribunal of the United Nations, he argued however, what makes resolutions binding is Article 25, which is not part of Chapter VII, and therefore citing Chapter VII or not does not change the nature of a resolution, which is always binding.
However, in practice this lack is seen by many as a way to make a resolution less strong, less “binding”, since it deprives it of practical means that could be adopted to enforce it.
Although there is no reference to Chapter VII, the resolution on the ceasefire in the Gaza Strip is however very clear about its binding nature through the language used. Even if it does not contain the verb “decide” (decide in English) in the paragraph dedicated to the ceasefire, the most used when the Council wants to assertively express its requests, contains another very strong one, namely “demand, request” (demands):
The Security Council […] requires an immediate ceasefire for the month of Ramadan, respected by all parties, leading to a long-lasting and sustainable ceasefire; requires furthermore the immediate and unconditional release of all hostages and the guarantee that medical and humanitarian aid will be given to them; requires finally, that the parties respect their obligations under international law in relation to all persons detained.
The use of the verb “request”, instead of less incisive, although still binding, options used in the past such as “the Court urges (calls upon)” or “the Court urges (urges)” demonstrates how the Council wanted to make clear the urgency and seriousness of its request.
Therefore, although Monday’s resolution is binding, it is unlikely that it will lead to results. As has always happened in international law, respect for rules depends not so much on the way they are written, but on the willingness of states to respect them, because there are no truly effective coercive instruments. Among the most used are sanctions, i.e. the tool that the Security Council has at its disposal to try to convince (or force) a state to respect the rules of international law or a binding resolution, but over time many governments subjected sanctions not only did they not change their behavior, but they also found ways to get around them. Israel is one of those states that have repeatedly circumvented binding Security Council resolutions.
Regarding Israel’s settlements in the West Bank, for example, the Council has issued several resolutions since 1967 challenging their legality and calling on the Israeli government to withdraw settlers from that territory: thelast resolution, passed in 2016 with the abstention of the United States, «reaffirms that the creation by Israel of settlements in the Palestinian territories occupied since 1967, including East Jerusalem, has no legal validity» and «reiterates the request that Israel immediately cease and completely all settlement activities in the occupied Palestinian territories.” However, in recent years Israel has continued to expand its settlements in the West Bank, despite condemnation from the international community.
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Israel’s behavior in this context has a lot to do with that of the United States, which is its main ally and has often been accused of adopting “double standards”. On several occasions, most recently in recent months, the United States has blocked resolutions against Israel, preventing the adoption of more severe measures (it should be noted, however, that it is not a practice used only by the US government: in recent years China has also and Russia have used the power of veto several times to defend their allies, and only last Friday they vetoed another ceasefire resolution).
Given Israel’s record of not complying with UN resolutions, and given the statements of US representatives who attempted to pass off the latest resolution as “non-binding”, it is very likely that Prime Minister Netanyahu’s government will decide to ignore the Council of Security and not stopping the violence in the Gaza Strip.
At the same time, the United States‘ decision to abstain, and therefore not to vote against as it had done with previous resolutions, has an important political value, because it shows how criticism of Israel and its war in Gaza is becoming increasingly widespread even among his allies. It is no coincidence that, following the approval of the resolution, Netanyahu he cancelled a visit expected soon by an Israeli delegation to Washington: during the meeting US and Israeli officials were supposed to discuss an alternative attack plan on the city of Rafah, which the Israeli army wants to attack by land, despite the dramatic consequences that this would have on the million and a half Palestinians who have found refuge in the area.
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