The Security Council Resolution Demanding an Immediate Ceasefire in Gaza and Hostage Release

As the hostilities between Israel and armed groups in Gaza persist and the levels of violence in the West Bank, including East Jerusalem, remain high, the Diakonia IHL Centre provides regular updates regarding legal aspects of the evolving situation. This update covers the Security Council resolution demanding an immediate ceasefire in Gaza and the release of all hostages.  

A full list of legal updates is available here.

On 25 March 2024, the United Nations (UN) Security Council adopted resolution 2728, which contains the following operative paragraphs:  

The resolution passed with a vote of 14 Council members in favour, including four of the five permanent members, and one abstention from the US. After the resolution was adopted, discussion ensued as to its legal effects, with US officials suggesting that the resolution is ‘non-binding’. Other Council members objected to this assessment. The remainder of this note clarifies the binding nature of the resolution and provides an overview of potential avenues for enforcement.  

The binding nature of the resolution 

The Security Council is the UN body endowed with ‘primary responsibility for the maintenance of international peace and security’ (Article 24(1) of the UN Charter). Pursuant to Article 25 of the UN Charter, all UN member States have undertaken ‘to accept and carry out the decisions of the Security Council in accordance with the present Charter’. The main issue in ascertaining the legal effect of the ceasefire resolution, then, is whether it amounts to a ‘decision’ of the Council within the meaning of Article 25.  

In this context, it is useful to recall the observations of the International Court of Justice (ICJ) in its Advisory Opinion on the Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) (Namibia Advisory Opinion). The Court noted in relevant part:  

The language of a resolution of the Security Council should be carefully analysed before a conclusion can be made as to its binding effect … having regard to [its] terms … the discussions leading to it, the Charter provisions invoked and, in general, all circumstances that might assist in determining the legal consequences of the resolution.  

This interpretive approach is broadly in line with the rules on treaty interpretation articulated in the Vienna Convention on the Law of Treaties, which reflect customary international law. In this case, the Council ‘demanded’ an immediate ceasefire and also ‘demanded’ the immediate and unconditional release of all hostages; such wording leaves very little room for doubt that these are not mere recommendations but rather concrete calls to action that give rise to corresponding legal duties. It is incorrect, as one commentator pointed out, to suggest that only resolutions that feature an iteration of the word ‘to decide’ in their operative part constitute decisions; indeed, it would be rather absurd if the Council ‘decided upon’ an immediate ceasefire while the hostilities remain ongoing, as if a ceasefire could be magically conjured up if only one utters the word, without the need for compliance by the addressees. Moreover, while the resolution does not make reference to Chapter VII of the UN Charter, which sets out the Council’s enforcement powers, the ICJ had also clarified in the Namibia Advisory Opinion that ‘Article 25 [of the Charter] is not confined to decisions in regard to enforcement action’. 

It is also possible to infer from the discussions of most Council members prior to and after the voting that a binding effect was intended; the representative of Algeria, for example, called the resolution ‘only the beginning … to put an end to the bloodbath without any conditions’.   

Finally, it is submitted that in case of doubt, given the Council’s preeminent role in the maintenance of international peace and security, its resolutions should be presumed to be decisions and, thus, legally binding.  

Pathways for enforcement 

While there can be little doubt regarding the binding nature of the resolution, a separate question is what pathways are available to ensure its enforcement in case of non-compliance by Israel and Hamas (the latter is arguably also bound by the terms of the resolution, albeit not being a UN member State). As noted, the Security Council itself has enforcement powers under Chapter VII of the UN Charter, which are triggered in case it has ‘determine[d] the existence of any threat to the peace, breach of the peace, or act of aggression’ (Article 39 of the UN Charter). In such a case, the Council has two types of enforcement actions at its disposal: ‘measures not involving the use of armed force’, such as ‘complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations’ (Article 41 of the UN Charter); and ‘action by air, sea, or land forces’ (i.e., the use of armed force; Article 42 of the UN Charter). Other UN member States that do not have a seat on the Security Council may also bring to its attention any situations or disputes that may give rise to a threat to international peace and security (Articles 34 and 35 of the UN Charter).  

On the face of it, failure to comply with the ceasefire resolution would fall within the category of a ‘threat to the peace, breach of the peace, or act of aggression’. However, the Security Council has considerable discretion in determining whether the conditions triggering its enforcement powers as per Article 39 have been met. It is not clear how the Council will choose to exercise this discretion should Israel fail to comply with the resolution. There is also a possibility that one, or more, of the Council’s permanent members may elect to employ their veto powers to prevent a decision on enforcement measures.  

In the absence of, and in addition to, international enforcement action within the Security Council framework, third States too have entitlements and obligations when it comes to ensuring compliance. A failure to adhere to the ceasefire resolution in itself amounts to an internationally wrongful act for purposes of the Draft Articles on the Responsibility of States for Internationally Wrongful Acts, which reflect customary international law. Third States, especially those that are members of the Council, should strive to uphold the Council’s integrity and – bilaterally or multilaterally – exert pressure on the parties to comply with the resolution. They could also take action via the UN General Assembly – while its resolutions are generally non-binding on UN member States, they nonetheless reflect to a large extent the opinions of the international community; expressions of forceful condemnation in this forum thus stand to (further) increase public pressure.  

Moreover, a continuance of the hostilities will likely go hand in hand with further serious violations of international law – which may amount to war crimes, crimes against humanity, or genocide. It is worth recalling in this context recent developments before the ICJ in the South Africa v. Isael case, which concerns obligations arising from the UN Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention). On 28 March 2024, in a rather unusual step, the ICJ indicated additional provisional measures, having previously held that ‘at least some of the rights claimed by South Africa and for which it is seeking protection are plausible’. President Salam noted in a separate declaration:  

… [T]hese new measures … can only take full effect if the “immediate ceasefire for the month of Ramadan” demanded by the Security Council in its resolution 2728 (2024) of 25 March 2024 prior to the issuance of this Order, and which the Court took note of (see paragraph 37), is duly and fully respected by all the parties “and leads to a lasting sustainable ceasefire”.  

Similarly, it is submitted that the simplest way of putting an end to suspected serious violations of international law is to ensure full compliance with the ceasefire resolution (and, for that matter, with all the provisional measures indicated by the ICJ – which, in the view of President Salam, also depends on the implementation of the ceasefire). The continuing entitlements and obligations that third States generally have vis-à-vis any party that commits, or is suspected of committing, such serious violations are explained here and here.  

Cover photo: The Security Council adopts Resolution 2728 (2024) demanding an immediate ceasefire for the month of Ramadan respected by all parties leading to a lasting sustainable ceasefire, and also demands the immediate and unconditional release of all hostages, as well as ensuring humanitarian access to address their medical and other humanitarian needs. A view of council members voting in favour of the resolution, 25 March 2024. UN Photo/Evan Schneider. All rights reserved.