The US provokes a controversy at the UN by considering the ceasefire resolution in Gaza “non-binding”

With its abstention in the vote on an immediate ceasefire resolution in Gaza, 2728, the first in six months of war, the United States provoked on Monday not only the anger of Israel, which had asked it to veto the text, but also also a noisy controversy, between legal and diplomatic, by minimizing the decision considering it “non-binding.” For Washington, it was a rhetorical feint so that the blow publicly dealt to its great ally in the Middle East would go more unnoticed: a non-binding resolution does not obligate anything in principle, much less the cessation of hostilities that Israel has been categorically rejecting. since the start of the war.

“A non-binding proposition,” was defined on Monday in unison by the US ambassador to the UN, Linda Thomas-Greenfield, and the spokesman for the White House National Security Council, John Kirby, who said: “It has no impact.” in Israel, nor in its ability to go against Hamas.” The words of both sounded like a torpedo hitting the waterline of the highest executive body of the UN, in charge of ensuring world peace and security: Are their resolutions binding or not? What's more, perhaps some are and others are not? Diplomatic representatives and experts on the subject came out in force to refute Washington's point of view. António Guterres, Secretary General of the UN, made his opinion clear: they are binding. This is stated in article 25 of the founding Charter: “The members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with this Charter.”

Several representatives of the Security Council, led by Mozambique and Sierra Leone, resorted to jurisprudence to shore up the link. The two African diplomats, both with legal training, affirmed that resolution 2728 is binding, ruling out that the abstention of one of the five permanent members in the adoption of the initiative (that of the United States) would modify its binding nature. Both relied on the 1971 advisory opinion of the International Court of Justice (ICJ), which established that all of the Council are. The Algerian ambassador summed it up even more categorically: “Security Council resolutions are binding. Hardly. Not partially. “No maybe.”

Legal unanimity

The United States waded into muddy waters on Monday, not only against Israel, but also before the sole arbiter of the international community, with its strident interpretation of the text, and in the end almost completely diverted attention from the Council's belated achievement. Adil Haque, professor of international law at Rutgers and executive editor of

Just Security

, has no doubts about this: “The resolution is binding. According to the UN Charter, all decisions of the Security Council are decisions of all member states. The International Court of Justice has ruled that a resolution need not mention Chapter VII of the Charter [action in case of threats to the peace, breaches of the peace or acts of aggression], refer to international peace and security or use the word

decides

to have a binding effect. Any resolution that uses 'obligatory language' creates obligations, and this includes the term

requires

used in the resolution on Gaza," explains Haque, who also underlines the "determining intention" of the Council members who drafted and voted in favor of the resolution. ceasefire resolution; only the South Korean representative was hesitant at first. “They intended it to have a binding effect.”

On what basis does Washington support a dissenting opinion? Is it more a political calculation than a legal objection? “For now, it does not seem that the US has a coherent legal argument,” explains Adil Haque. “Initially, he argued that the resolution did not use adequate language to have binding effect. The ICJ has ruled that resolutions do not need to use any particular 'magic word' and that a mandatory term such as

demands

is sufficient to create obligations. The US later argued that the resolution did not create any new obligations. But the resolution demands 'an immediate ceasefire during the month of Ramadan,' which is a new obligation." Haque warns against the temptation to see precedent in Washington's current objection: “His stance [on resolution 2728] may undermine other important resolutions that the country itself championed, including the recent one calling for a ceasefire in Sudan.”

Richard Gowan, for decades a senior official at the UN and today at the NGO International Crisis Group, specialized in conflict prevention, believes that the controversy is due to a substantial difference in interpretations. “Different States interpret the Charter in different ways and follow different traditions of interpretation. There are genuine and important differences in the way the US and other Council members read this text. American jurists will believe that the fact that the text

requires

a ceasefire means that it is not legally binding,” explains the expert, in line with what Haque stated. “From the American point of view, the text would have to have

decided

on a ceasefire to be legally binding.” Demand or decide: the intricate language of diplomacy, elevated to a Florentine subtlety. “It may seem like a very small distinction,” explains Gowan, “but it has its origins in Article 25 of the UN Charter, which says that States must

accept and comply with the decisions

of the Council, but does not refer to its demands.” .

“Important diplomatic signal, but with little force”

Despite the controversy generated by Washington's interpretation, the confusion, Gowan points out, could have been very useful on Monday. “The different interpretations of the text (which the ambassadors and their legal teams were surely aware of) allowed the United States to abstain from a resolution that it considers non-binding, and this could have been advantageous, because if it had seen it as legally binding it could have felt obliged to veto it” . Conversely, he emphasizes, “other members of the Council could have been dissatisfied with a text that they considered simply rhetorical.”

A satisfactory final compromise – the passage of the first resolution since the war began – stemming from ambiguity over a couple of terms, is how Gowan sums up the result of Monday's vote. But with a potentially negative side: “Of course, it may be a source of confusion if Israel declares that it does not feel bound by the text… That could lead to more discussions in the Council shortly. The happy vibes of today [Monday] in New York could soon evaporate.”

The US ambassador to the UN cited on Monday the non-binding nature of the resolution, as it was not included in Chapter VII, which would authorize the use of force to implement it. Gowan points out how difficult its application is, regardless of the chosen mode. “It is clear that the resolution does not contain any enforcement mechanism of its own, and if other Council members proposed sanctions against Israel for non-compliance, the US would veto them. So ultimately the resolution is an important diplomatic signal about the need for a ceasefire, but it has little force.”

There are many who, in the UN and outside it, consider that the prolonged negotiation (almost a month) of the ceasefire draft resolution linked to the release of the hostages presented by the United States, and vetoed the previous Friday by Russia and China, was nothing more than a diplomatic maneuver designed to gain time (or rather to lose it) while Washington bet all its cards on the negotiations between Israel and Hamas that it co-sponsors with Egypt and Qatar (and while Israel, against the opinion of Washington perseveres with its ground offensive plans on Rafah). That is, to let the UN do it, but not too much - for that it has the right of veto, as it demonstrated by previously rejecting three ceasefire proposals from the Council -, while the game is really being played on the ground.

The bath of reality that Gowan proposes, the resolution as an important but lacking diplomatic signal, draws a scenario of rhetorical fencing, where the difference between “demand” and “decide” would escape even a linguist, while another bath, but of blood, it takes place in Gaza.

Follow all the international information on

Facebook

and

X

, or in

our weekly newsletter

.

Subscribe to continue reading

Read without limits

Keep reading

I am already a subscriber

_