Understanding the resolution

The March 25 resolution of the UNSC was remarkably brief — only two substantial operative clauses which “demanded" both “an immediate ceasefire for the month of Ramadan” (of which only nine days are left) and the “immediate and unconditional release of all hostages”, apart from a short preamble appreciating the efforts of mediators and calling for the respect of international humanitarian law in Gaza. Led by Mozambique and the other non-permanent members of the Council (E-10), the resolution could only pass because of an abstention by the United States, instead of a veto. The US abstention was novel for the current conflict but not surprising given the degree to which the White House’s relationship with Benjamin Netanyahu’s government has been strained.

Also Read: Eye on the Middle East | The United States has subtly shifted its stand towards the Israel-Gaza war

Moreover, the United States has abstained from voting for dozens of UNSC resolutions against Israel in the past, allowing the UNSC to pass significant orders against Israel especially during and after the 1967 war.

A key question surrounding the resolution, however, has been whether or not it creates binding obligations on Israel to halt its military campaign and implement a ceasefire. The United States, for one, has categorically termed it non-binding, even while calling for its implementation. For the US, such a position is not new. As far back as 1980, when the UNSC deemed Israel’s declaration of Jerusalem as its capital illegal, the US abstained from voting (UNSCR 478) but deemed it a non-binding resolution. Objectively, UNSCR 2728 does not have the unarguable markers of a binding resolution, such as a direct invocation of Article 25 of the UN Charter (which calls on states to abide by SC resolutions), or being passed under Chapter VII of the Charter (titled ‘Action with Respect to the Peace, Breaches of the Peace and Acts of Aggression’).

However, the debate on which the Security Council resolution is considered to be binding is still ongoing. This is evident in legal experts writing for Arab news outlets pointing to the counter-intuitive nature of the US assertion — if the call for a ceasefire is non-binding, then so is that for the release of hostages. Other experts maintain that Article 25 does not make a distinction between the chapters invoked, as also stated by the International Court of Justice (ICJ) in the 1971 Namibia case. However, in that case, the court had ultimately pointed to the text of the resolution and discussions leading to it as the main markers of the intention to create binding obligations.

In any case, the general interpretation is irrelevant. The enforcement of an older resolution can only occur with a subsequent resolution under Chapter VII containing punitive measures such as sanctions against Israel — which the US is highly unlikely to back. Its representative to the UN said as much in 1980, vis-a-vis UNSCR 478 - “There can be no mistake, let me note that we will continue firmly and forcefully to resist any attempt to impose sanctions against Israel under Chapter VII of the Charter.” For all effects and purposes, this position remains.

The actual effects

Legal interpretations aside, Washington’s view of the non-binding nature of the resolution significantly undermines the resolution’s power as an instrument of law as it implies that the state with (arguably) the greatest leverage over Tel Aviv will not support punitive measures in the absence of a ceasefire. In any case, US military assistance to Israel has continued even after the resolution. More importantly, Israel has continued its bombing campaign in Gaza, even as it ended its controversial siege on Gaza’s Al-Shifa hospital. While on March 26, the UN Special Rapporteur on Human Rights asserted that there were reasonable grounds to believe that Israel was committing genocide in Gaza, two days later, the ICJ issued additional provisional measures in the South Africa vs Israel case, freshly calling on Israel to take measures necessary to prevent “starvation and famine” in Gaza.

This, combined with the fact that Israel has consistently militated against UN resolutions, meant that the resolution was set to fail in meeting the terms it laid out. However, Resolution 2728 has different effects. On one hand, it sets the ground for future UNSC action: Both the E-10 and P-5 groupings now have a common denominator for subsequent resolutions at the UN’s apex body, with incrementally stronger language. On the other hand, its effect is that of a shape-charge for US-Israel bilateral ties (or rather US-Netanyahu ties). Hence, even as US general support to Israel continued, the immediate development following the resolution was not a ceasefire, but rather Netanyahu’s cancellation of an Israeli delegation’s scheduled visit to Washington; the US later expressed its disappointment on the cancellation.

What of Gaza's future?

Given that consensus now exists in the UNSC over the need for a ceasefire along with the release of hostages, the next resolution is likely to proceed with the same nature, but an increase in scale. As of April 2, France has already presented a more comprehensive draft resolution to other Permanent Five/E-10 members, which will include a ceasefire call that is not time-limited, as well as address core issues in the Israel-Palestine dispute. Key to this draft resolution is the potential for a UN monitoring team to oversee a potential ceasefire, in the near or distant future.

Note that this does not necessarily need to be under Chapter VII of the UN Charter, should the Council agree on a mission under Chapter VI (Pacific Settlement of Disputes). This is more likely to draw US support, as no Chapter VII resolution against Israel has ever passed in the Council — forcing special emergency sessions of the UN General Assembly in the past which has then called for sanctions against Israel.

Moreover, India, which called UNSCR 2728 a “positive development”, is more likely to support a peacekeeping mission under Chapter VI, which is based on the consent of all parties and is more likely to succeed, than a Chapter VII-based mission which has an enforcement character — as a ministry of external affairs note outlines.

Bashir Ali Abbas is a research associate at the Council for Strategic and Defense Research, New Delhi, and a South Asia Visiting Fellow at the Stimson Center, Washington DC. The views expressed are personal.