With fourteen votes in favor and the United States abstaining, the United Nations Security Council adopted a resolution on March 25, 2024 calling for a temporary ceasefire in the conflict between Israel and Hamas, which began following the attacks of October 7, 2023 After months of stalemate due to crossed vetoes of the permanent members of the Council (three US vetoes and two vetoes from China and Russia), an agreement was finally found on the basis of a text proposed by the ten non-permanent members of the Council and presented by Mozambique .
The text of Resolution 2728 (2024), which is very short, requires “all parties to the conflict to cease hostilities with immediate effect for the month of Ramadan”, with a view to a subsequent definitive resolution of the conflict through negotiation. It also calls for “the unconditional release of the hostages” and for all parties to the conflict to respect their obligations under international humanitarian law. These requests are not linked to each other by a link of conditionality.
The text represents a compromise between the various proposals previously put forward by the various parties involved, with the intention of giving greater or lesser binding nature to the resolution mechanism. The United States, concerned about the possible consequences for the ongoing negotiations, had previously proposed a more ambiguous wording that underlined “the imperative of an immediate and lasting ceasefire”, without an explicit request addressed to the Council. On the other hand, Russia had instead requested that the ceasefire be “permanent” and not limited to the period of religious holidays, but this amendment was not accepted.
The text of the resolution does not specifically mention the October 7 attacks nor the responsibilities of Hamas, as desired by Israel. Rather, it broadly condemns “all attacks against civilians […] and all acts of terrorism.” This led Israel’s ambassador and permanent representative to the United Nations, Gilad Erdan, to call the adoption of the resolution “a disgrace.”
Is the resolution binding on Israel?
The resolution sparked mixed reactions. Algeria’s ambassador said this could be the first step to putting an end to the “bloodbath” taking place in Gaza. The United States, while not opposing its adoption – which suggests a certain discontent on the part of the Biden administration towards current Israeli military policies – immediately declared that it did not consider it binding. In protest, Israel recently announced its withdrawal from ongoing talks in Qatar, and Foreign Minister Israel Katz said the country would not follow up on the ceasefire order.
While it is reasonable to expect states to respect Council decisions – given that the Council acts to protect common peace and security – it is technically complex to establish whether Security Council resolutions are legally binding. According to part of the internationalist doctrine, the only provisions of the Charter that allow the adoption of binding decisions would be articles 41 and 42, which allow the adoption of coercive measures, of a sanctioning nature (article 41), or of a military nature (article 42), in cases of threat to international peace or its violations. Resolution 2728 (2024) – probably by virtue of its compromise nature – does not contain any reference to the legal basis on which it was adopted, so it is difficult to identify its exact basis in the Charter. It does not appear to be Articles 41 and 42, because the Council has not formally determined, as Article 39 of the Charter would preliminarily require, the existence of a threat to peace or a violation thereof.
In United Nations practice, a “ceasefire” is typically considered an “interim measure” under Article 40 of the Charter, that is, a temporary measure that the Council may adopt for the purpose of preventing the conflict from escalating. Resolution 2728 would fall into this hypothesis, as it provides for a temporary ceasefire and contains reference to ongoing negotiations attempts. Usually, however, it is believed that provisional measures do not have a binding character, and in fact Article 40 speaks of an “invitation” that the Council can address to the parties to a conflict and specifies that, in case of failure to comply, the Council will will take “due account”.
Those who maintain that all Council decisions are binding rely on the literal meaning of Article 25 of the Charter, which imposes on member states a general obligation to observe and implement the decisions of the Security Council. This interpretation has also been endorsed by the International Court of Justice (1971 Advisory Opinion on the Legal Consequences of South Africa’s Continued Presence in Namibia, here, para. 113).
It must be underlined that a Council resolution can have both a decisive content (decisions) and a more merely exhortative content (recommendations) and that only the first will be considered binding. The International Court of Justice has held that the binding nature of a resolution must be assessed according to the circumstances, the language used, the discussions between the members of the Council and the provisions of the Charter invoked (Advisory Opinion on Namibia, 1971, para. 114 ).
If you look at the language used in resolution 2728, it is difficult to believe that it is not an actual order. Certainly the verb “demand” (“request” in a rough translation) does not seem merely hortatory. Furthermore, the “ceasefire” is indicated with a claim of immediacy and refers to a limited period of time, the month of Ramadan. Given that religious holidays are still ongoing, if the measure were considered as a recommendation, Resolution 2728 would most likely be deprived of any useful effect.
On the other hand, if the Council had wanted to make an invitation or a recommendation, it could have used different language. For example, the ceasefire in the 2006 Israeli-Palestinian conflict was called for by means of formulas such as “calls for” (Resolution 1701/2006).
Formulations similar to that of resolution 2728 have been used in other resolutions considered binding. For example, resolution 598/1987, which called for an immediate ceasefire between Iran and Iraq, used the term “demands” (“Demands that, as a first step towards a negotiated settlement, the Islamic Republic of Iran and Iraq observe an immediate cease-fire”), and was considered binding by numerous states (here, pp. 16, 21-22, 27-28) , by the then President of the Security Council (here), and by Iraq itself (see Doc. S/19045 of 14/08/1987), as well as accepted unconditionally by Iran (see Doc. S/20094 of 08 /08/1988). The same term was used in Resolution 660 of 1990, which called for the withdrawal of Iraqi troops following the invasion of Kuwait.
Some scholars believe that we can speak of a decision in the true sense only when the Council uses terms such as “decides”. However, in the past, decisions using more exhortative terms, such as “calls upon” (e.g. Resolution 269/1969 and Resolution 276/1970, on which point see Advisory Opinion on Namibia of the International Court of Justice, 1971, para. 115).
At the moment, in response to the US position, some states including China, Russia, Sierra Leone, France and Algeria have made it clear that they consider the resolution binding. By virtue of all these elements, it can be argued that Israel must comply with the requests of the Security Council and comply with the ceasefire order. A violation of the provisions of the resolution entails a violation of the obligations assumed by Israel through participation in the United Nations and ultimately a violation of international law.
From a legal point of view, this could lead to possible retaliatory and sanctioning behavior on the part of other States, as well as the adoption of sanctioning measures by United Nations bodies. From a political point of view, Israel’s failure to comply with the resolution could increase its isolation on the international scene and consequently distance it from its current allies. Furthermore, it would raise questions about the legitimacy of its military operations and their objectives, considering that they have so far been justified as self-defense operations (Article 51 UN Charter).
It should be remembered in this regard that the deadline for Israel to submit the report on the implementation of the provisional measures indicated by the International Court of Justice in the appeal brought by South Africa for the alleged violations of the Convention for the Prevention and Punishment of the Crime of genocide. The report has been submitted but is not currently public.
Is the resolution also binding for Hamas?
A slightly different question is whether the resolution is also binding on Hamas, given that Hamas cannot be considered a state under the UN Charter. As mentioned above, Article 25 of the UN Charter establishes the obligation to respect Security Council decisions only for member states.
However, it is widely accepted that Security Council resolutions may also concern non-UN member states and non-state actors. Unlike the sentences of the International Court of Justice, which are binding only for the parties involved in the proceedings (inevitably States), the resolutions of the Security Council do not encounter this limit, in consideration of the special nature of the United Nations Charter.
On numerous occasions, the Council has also addressed actors that are not strictly considered States, requiring them to comply with international obligations. For example, Resolution 814/1993 and Resolution 1474/2003 on conflicts in Somalia also addressed “movements and factions” and “other actors” respectively, while Resolution 1160/1998, adopted during the conflict in Kosovo, addressed it is also aimed at the “Albanian leadership of Kosovo”. Therefore, in the part in which Resolution 2728 orders a ceasefire to all parties involved in the conflict (“an immediate ceasefire […] respected by all parties”), the Security Council is unequivocally also addressing Hamas, with alleged binding effects. On the other hand, once again, if it had wanted, the Council could have used a different wording.
