The Security Council resolution on Gaza.. Is it binding? Experts answer

Several countries welcomed the adoption by the UN Security Council, on Monday, of a resolution calling for an immediate ceasefire between Israel and Hamas in Gaza, but experts doubted the possibility of implementing it on the ground “despite the positive spirit it contains.”

The resolution, which was adopted by a majority of 14 votes in favor and one abstention (the United States), calls for “an immediate ceasefire during the month of Ramadan,” which began two weeks ago, provided that it “leads to a permanent ceasefire.” It also calls for “the immediate and unconditional release of all hostages.”

The resolution submitted by the ten elected members of the Council received the support of Russia, China and the Arab Group, which includes 22 countries in the United Nations.

With the specter of famine approaching in Gaza, and increasing international pressure to impose a truce in the war that resulted in the deaths of more than 32,000 Palestinians, according to estimates by the Palestinian health authorities, a ceasefire in Gaza, even if temporarily, has become one of the priorities of the international community, but the question arises: Is this decision binding?

Legal expert, Sabah Al-Mukhtar, says that there is no doubt that the resolutions adopted by the UN Security Council are mandatory, “but this is linked to several factors,” as he put it.

In an interview with Al-Hurra website, Al-Mukhtar, who heads the Arab Lawyers Association in London, pointed out that the implementation of the decision depends first on the state concerned with it, “whether it respects international resolutions or not,” also pointing out that the actual implementation responds to the desire of powerful countries in the world. It is mandatory to implement it.

Under the UN Charter, Security Council resolutions are binding of its 193 member states, although it is often violated, according to the agency Associated Press.

Al-Mukhtar pointed out that there were decisions taken by the UN Security Council regarding Israel, but it did not implement them. He continued: “I do not think that Israel will care if this decision is implemented or even issued.”

On the other hand, political analyst, Tawfiq Bouqada, believes that there are positive aspects in adopting the resolution itself, about six months after the start of the war between Hamas and Israel.

The new war began between Israel and Hamas, after the latter’s attack on Israel on October 7, which resulted in the killing of 1,160 people. About 250 people were also kidnapped, 130 of whom are still hostage in Gaza, and 33 of them are believed to have died.

On the other hand, the Israeli attack (air and land) on Gaza resulted in the deaths of 32,333 people, according to the latest toll announced by the Ministry of Health in the Strip.

What does the resolution mean for Israel?

The UN Security Council, which has been divided for years over the Israeli-Palestinian conflict, has been able to adopt only two resolutions out of nine that have been put forward since October 7, and they are essentially humanitarian resolutions.

Tawfiq Bouqada said in particular in a call with the Al-Hurra website that the new Security Council resolution may serve efforts to stop the war in that it effectively translates the position of countries on the ongoing war and its impact on civilians.

He said that although he doubted that Israel “will comply with the decision, especially since it did not implement previous decisions related to aid,” he believes that “it is possible to build on this decision to reach a permanent ceasefire.”

He pointed out that the fear that the resolution would not be implemented, expressed by UN Secretary-General António Guterres, which he expressed in a post on Monday on the X platform, is “evidence that there are real doubts about the possibility of obligating Israel to implement it.”

“This decision must be implemented,” Guterres wrote. “Failure would be unforgivable.”

On the other hand, Bouqada pointed out the possibility that this resolution constitutes a new way towards imposing the entry of aid to civilians, and pointed out that the positive thing in today’s resolution is that the Security Council “stipulated that there be no obstacles from Israel to the aid coming to Gaza.”

For his part, the American analyst, Paulo Van Chirac, confirmed in an interview with the “Al-Hurra” website that Israel will not implement the resolution, and he specifically mentioned Prime Minister Benjamin Netanyahu, who expressed dissatisfaction with Washington’s failure to use its veto power in the Security Council.

Bouqada said, “Netanyahu did not give an indication that he would implement the decision, so I do not see that it will be binding on him.”

But he reiterated that there are positive aspects to this decision, although they are “temporary,” as it may lead to a framework of understanding regarding a truce during which we may witness Hamas releasing its hostages, “perhaps as part of an exchange deal for prisoners with Israel, like what happened before… and nothing more.”

Legal expert, Sabah Al-Mukhtar, also stressed the need to compel Israel to implement the resolution, saying, “The problem is not the issuance of international resolutions, but rather the tendency of the major powers to compel implementation.”

He explained that Security Council resolutions that are supposed to be binding under Chapter Seven of the United Nations Charter do not always enjoy the same degree of desire to be implemented.

Mukhtar stressed that his point of view is based on previous experiences with Security Council resolutions directed at Israel, saying, “There are more than 70 resolutions related to the West Bank and the separation wall that Israel has not implemented.”

On the other hand, the legal expert pointed out that previous resolutions issued by the Security Council “met the desire for implementation among the major powers, and witnessed strict implementation,” pointing to examples, including Iraq.

Mukhtar ruled out, in this context, that there would be any direct consequences for Israel if it did not implement the resolution “in the absence of a real will to deter it.”

What does the UN Charter say?

even though Chapter VII Of the United Nations Charter, it stipulates that the international community may take military steps against a state that threatens global peace and security. However, according to Mukhtar, this chapter “does not talk about an executive institution, but rather a power granted by the United Nations Charter to states to restore peace by force against a rogue state,” noting. Once again, the implementation of any Security Council resolution is linked to the desire of countries to implement it, whether it is the countries directly concerned with the conflict, or the countries that make up the Council.

Article 39 of Chapter Seven of the United Nations Charter states that the Security Council shall determine whether a threat to the peace has occurred, a breach thereof, or an act of aggression, and shall make its recommendations or decide what measures must be taken in accordance with the provisions of Articles 41 and 42 to preserve peace. International peace and security or restore it to normal.

Article 41 affirms that the Security Council may decide what measures must be taken that do not require the use of armed forces to implement its decisions, and it may request members of the United Nations to implement these measures, which may include stopping economic ties and rail, sea, air, postal, telegraphic and wireless communications. And other means of transportation, partially or completely, and the severing of diplomatic relations.

As for Article 42, it affirms that “if the Security Council deems that the measures stipulated in Article 41 are not sufficient for the purpose or it is proven that they have not fulfilled it, it may take, through air, sea and land forces, such actions as are necessary to maintain international peace and security or to restore it to normal.” .

In many cases, binding Security Council resolutions are ignored by the countries concerned. Therefore, the French Ambassador to the United Nations, Nicolas de Rivière, said, “This crisis is not over. Our Council will have to continue its movements and immediately return to work, after Ramadan, which ends in two weeks.” “He will have to establish a permanent ceasefire.”

For her part, the US Ambassador to the United Nations, Linda Thomas-Greenfield, stressed the link between the ceasefire and the release of the hostages.

She said, “The ceasefire may begin immediately after the first hostage is liberated. This is the only way to guarantee the ceasefire and the release of the hostages.”

And enthusiasm?

The resolution adopted Monday condemns “all terrorist acts,” but without mentioning the Hamas attacks on October 7, which killed at least 1,160 people, most of them civilians, according to official Israeli data.

No resolution adopted by the Council or the UN General Assembly since October 7 has specifically condemned Hamas, something that has faced criticism from Israel, which responded to the Hamas attack with a war that even killed more than 32,000 Palestinians in Gaza, according to the Gaza Ministry of Health.

In particular, legal expert Sabah Mukhtar says that the Security Council does not address the Hamas movement because it is neither a state nor an institution.

Many Western countries, led by the United States, classify Hamas as a “terrorist movement.”

The position of the Palestinian Authority and Israel

Shortly after the resolution was adopted, Netanyahu announced that he would not send a delegation to Washington, as was scheduled at the request of US President Joe Biden.

A statement issued by his office confirmed that Washington’s failure to use its veto to thwart the resolution “harms the war effort and efforts to release the hostages,” noting that “in light of the change in the American position, the Prime Minister decided that the delegation will not leave” Israel.

The Palestinian Ambassador to the United Nations, Riyad Mansour, praised, in emotional statements, a “turning point” in ending the war in Gaza.

With tears in his eyes, Mansour said that “this historic day” should “be a turning point… It should be an indication of the necessity of ending this aggression, these atrocities affecting our people.”

He added, “I ask for forgiveness from those who have been let down by the world, from those who could have been saved but were not saved.”

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