That Ceasefire Resolution Is Absolutely Binding on Israel
After declining to veto it at the Security Council, Biden's officials insist the resolution is "nonbinding." That's "hopelessly thin," says a leading international-law expert
Edited by Sam Thielman
AFTER VETOING THREE CEASEFIRE RESOLUTIONS at the United Nations Security Council—and after their sham ceasefire resolution crashed and burned last week—on Monday the Biden administration declined to veto U.N. Security Council Resolution 2728, which demands Israel cease its destruction of Gaza and permit the entrance of food and medicine. All 14 other members of the Security Council, including the other four permanent members, affirmatively voted for it.
But almost as soon as Ambassador Linda Thomas-Greenfield raised her hand to abstain this afternoon, she attempted to deny that the resolution would have any force. "This nonbinding resolution," was what she called UNSCR 2728 during her official explanation of her non-vote. Shortly afterward, John Kirby, the White House's national-security spokesman, echoed her language from the White House podium.
Team Biden's attempt at insisting the resolution imposes no legal obligation on Israel—where, whatever the material impact of the resolution, the freakout over the lack of a U.S. veto is intense—is "hopelessly thin," according to Mary Ellen O'Connell, the international law expert at the University of Notre Dame Law School and FOREVER WARS friend.
Mary Ellen explains:
The U.S. is saying it is a "Chapter VI" not a "Chapter VII" resolution. There is no reference to Chapter VI in the resolution. And it would not matter if there was one--the U.S. reference appears to be an attempt to reduce its abstention to as close to a veto as possible with an indirect, hopelessly thin legal argument.
The only relevant Charter provision to this situation is Article 25, which makes clear that all UN Members, which is only Israel in this case--have a duty to comply with "decisions" of the Security Council. The "decision" in 2728 binding on Israel is for a ceasefire and allowance for the massive flow of aid.
PM Netanyahu has pulled back Israel's representatives traveling to discuss the planned operation against Rafah in anger over the U.S. failure to veto the ceasefire resolution. Time now for the U.S. to pull back weapons from Israel. To continue to arm Israel if it fails to ceasefire and open routes for aid makes the U.S. both complicit in the starvation and other international crimes occurring and renders U.S. foreign policy unacceptably determined by Israel.
My emphasis.
The remedy for noncompliance with a U.N. Security Council resolution demanding a ceasefire is not merely "not providing more weapons." Sanctions often result from noncompliance. But, as FOREVER WARS pal Zuri Linetsky observes, consequences are usually reserved for U.S. adversaries.
U.N. Special Rapporteur for Israel and Palestine Francesca Albanese had a different idea. In a U.N. report released the same day as UNSCR 2728, Albanese said Israel was attempting "to legitimize genocidal violence against the Palestinian people," and recommended
immediately implement[ing] an arms embargo on Israel, as it appears to have failed to comply with the binding measures ordered by the ICJ on 26 January 2024, as well as other economic and political measures necessary to ensure an immediate and lasting ceasefire and to restore respect for international law, including sanctions.
None of that is to say the Biden administration will move in that direction, just that credible people in positions of responsibility believe such movement is warranted by the enormity of Israel's assault on Gaza.
Kirby further diluted the impact of the abstention by saying the resolution will not impact U.S. arms sales, thereby placing the U.S. on the side of arming a combatant in a war that the Security Council, with the force of law, demanded must stop. That was underscored by the State Department's willful blindness in finding that Israel's use of U.S. weaponry complies with international law, in order to keep the arms pipeline active. This, after the International Court of Justice interim ruling and UNSCR 2728! Via Daniel Larison, former Biden USAID official Jeremy Konyndyk, now of Refugees International, commented, "Whatever good the UN Resolution does is offset by this. Just mystifyingly incoherent policy."
I would only add that the clash between international law and the U.S.' Rules Based International Order is now a pitched battle.
YESTERDAY, ISRAELI MEDIA REPORTED that a one-star IDF reservist general, Amir Avivi, claims a State Department official in the Near East Affairs bureau, recently told him that State found Israel "systematically" committed sexual violence against Palestinian women. Asked by FOREVER WARS, the State Department is denying Avivi's account of the meeting.
"What has been said throughout our meetings with Israeli leadership is consistent with what we've been saying publicly: Israel must thoroughly and transparently investigate credible allegations of wrongdoing and ensure accountability for any abuses or violations," according to a State official. "We take seriously all reports of sexual violence, including reports of sexual violence against Palestinians in detention—as we said after the recent release of U.N. Special Envoy Representative Patten's report on this subject." Spokesman Matt Miller used very similar language in his briefing today.
Just last month, U.N. experts, including Albanese, expressed "alarm over credible allegations of egregious human rights violations to which Palestinian women and girls continue to be subjected in the Gaza Strip and the West Bank. … We are particularly distressed by reports that Palestinian women and girls in detention have also been subjected to multiple forms of sexual assault, such as being stripped naked and searched by male Israeli army officers."
I KNOW I SAID there wasn't going to be any more FOREVER WARS in March, but today's events compelled one. I have a book to write—particularly as I only got 400 words down today—and accordingly, there won't be another edition this week and possibly next. We'll see! I would appreciate the news not happening until early April.
CALLING ALL FOREVER WARS MASSHOLES! I'll be speaking on a wide-ranging March 29 panel at Hampshire College in Amherst about "U.S. Foreign Policy and the 2024 Elections." I'm excited to say that joining me on this panel will be my friend Van Jackson, whose newsletter you really should read, and who is making a rare U.S. appearance now that he lives in New Zealand. We'll be speaking at 5:30pm on Friday the 29th at what the website says is "FPH Building, Main Lecture Hall." Stop by and say hi!
MY STUFF! WALLER VS. WILDSTORM, the superhero spy thriller I co-wrote with my friend Evan Narcisse and which the masterful Jesús Merino illustrated, is available for purchase in a hardcover edition! If you don't have single issues of WVW and you want a four-issue set signed by me, they're going fast at Bulletproof Comics! (Jesús' panel from issue 1 of Lois Lane provides our illustration for this edition.)
No one is prouder of WVW than her older sibling, REIGN OF TERROR: HOW THE 9/11 ERA DESTABILIZED AMERICA AND PRODUCED TRUMP, which is available now in hardcover, softcover, audiobook and Kindle edition. And on the way is a new addition to the family: THE TORTURE AND DELIVERANCE OF MAJID KHAN.