Tracking the U.S. Position on Gaza Through UN Security Council Resolutions

On June 10, the UN Security Council adopted Resolution 2735, which calls for Hamas to accept a three-phase ceasefire proposal outlined in the text and urges both parties to the conflict to implement it immediately. The United States sponsored and drafted the resolution based on President Biden’s May 31 statement, in which he proposed a similar three-phase plan to reach a ceasefire in Gaza and to coordinate the release of the remaining Israeli hostages.

The resolution was adopted with 14 votes in favor and one abstention from Russia. The first phase consists of “an immediate, full and complete ceasefire,” along with other measures that include the release of certain hostages, the withdrawal of Israeli forces from areas of Gaza, and the distribution of humanitarian assistance throughout the region. Additionally, the resolution states that if the first phase takes longer than the designated six weeks, the ceasefire will continue so long as negotiations continue between the parties. The second phase, upon the agreement of both parties, would be a “permanent end to hostilities, in exchange for the release of all other hostages still in Gaza, and a full withdrawal of Israeli forces from Gaza.” And the third phase is a multiyear reconstruction plan for the region following the war and the “return of the remains of any deceased hostages still in Gaza to their families.”

Resolution 2735 came eight months into the conflict that started on Oct. 7, 2023, when Hamas led an attack on Israel. Throughout the war, the U.S. evolved from being an unwavering military and political ally of Israel to supporting a ceasefire resolution publicly opposed by Israeli President Benjamin Netanyahu. In addition to statements made by Biden administration officials, the UN Security Council is one venue to track changes in the U.S. position.

The UN Security Council, one of the six main organs of the United Nations, is responsible for maintaining international peace and security. The body is made up of 15 member states—five states that hold permanent seats and have veto privileges and 10 states elected by the UN General Assembly. Under Chapter V, Article 25, of the UN Charter, “[t]he Members of the United Nations agree to accept and carry out the decisions of the Security Council in accordance with the present Charter.” Of all the UN organs, the Security Council is arguably the most powerful due to the binding nature of its decisions and its ability to directly address conflict.

As one of the five permanent Security Council members, the U.S. has frequently expressed its views regarding Israel through different measures in the council’s chamber. As of December 2023, the U.S. used its veto 45 times against UN Security Council resolutions it viewed as critical of Israel. How has the U.S. position on Israel’s war in Gaza evolved since Oct. 7, based on the language used, proposed, and rejected in UN Security Council resolutions? Revisions from three of the four UN Security Council resolutions (S/RES/2712, S/RES/2720, and S/RES/2728) passed since Oct. 7 demonstrate a shift in U.S. position toward a more critical view of Israel—drifting away from the two states’ historic and no-longer ironclad alliance.

Resolution 2712

The UN Security Council failed to pass a resolution for nearly six weeks following Hamas’s Oct. 7 attack on Israel. UN experts blamed conflicting interests, poor dynamics, and a significant lack of unity—all issues that have been prevalent on the council in recent years—for the inability to agree on a text resolution. On Oct. 18, Brazil submitted the first draft resolution, which the United States vetoed. U.S. Ambassador Linda Thomas-Greenfield attributed the U.S. veto to the lack of mention of “Israel’s right of self defense” and the possibility of interrupting ongoing diplomatic efforts in the region by Biden (who was visiting Israel at the time). The United States submitted the next draft resolution, but Russia and China vetoed it. Russian Ambassador Vasily Nebenzya stated that the resolution failed to call for a ceasefire, among other provisions, and that Russia could not support “a document that is designed for one purpose and one purpose only—to serve the geopolitical interests of one of the members of the Council.” Chinese Ambassador Zhang Jun stated in the explanation of his vote that “in terms of effectiveness, [the resolution] does not reflect the world’s very strong calls for a ceasefire and an end to the fighting, and it does not help resolve the issue.”

Malta—one of the 10 elected members—submitted a draft resolution on Nov. 15, which passed. S/RES/2712 received 12 votes in favor, with three abstentions from the U.S., Russia, and the U.K. According to Malta Ambassador Vanessa Frazier, the preparations of the text were extensive, consisting of engagements with Security Council members, humanitarian organizations, and other countries in the region. Malta, as chair of the council’s Working Group on Children and Armed Conflict, stated that the goal of the deliberations was “an effort to achieve a balanced and operational text that can address one part of the current crisis—the immediate needs of the affected children.” While Thomas-Greenfield thanked Malta for its initiative in crafting the resolution and said the U.S. could support the humanitarian efforts outlined in the resolution, she noted that the U.S. could not vote in favor of the resolution given that it “did not condemn Hamas or reaffirm the right of all Member States to protect their citizens from terrorist attacks.” However, the abstentions allowed the resolution to pass and were the first sign of cooperation from the U.S. on the Security Council.

The text in the second and third operative paragraphs of Resolution 2712 is most notable regarding the purpose and decisions made in the resolution:

2. Calls for urgent and extended humanitarian pauses and corridors throughout the Gaza Strip for a sufficient number of days to enable, consistent with international humanitarian law, the full, rapid, safe, and unhindered humanitarian access for United Nations humanitarian agencies and their implementing partners, the International Committee of the Red Cross and other impartial humanitarian organizations, to facilitate the continuous, sufficient and unhindered provision of essential goods and services important to the well-being of civilians, especially children, throughout the Gaza Strip, including water, electricity, fuel, food, and medical supplies, as well as emergency repairs to essential infrastructure, and to enable urgent rescue and recovery efforts, including for missing children in damaged and destroyed buildings, and including the medical evacuation of sick or injured children and their caregivers;

 

3. Calls for the immediate and unconditional release of all hostages held by Hamas and other groups, especially children, as well as ensuring immediate humanitarian access; 

The second operative paragraph calls for “urgent and extended humanitarian pauses and corridors throughout the Gaza strip for a sufficient number of days,” which was, at the time, the closest language that the U.S. could agree on regarding the pausing of hostilities for the purpose of aid. Secretary of State Antony Blinken had stated in a press conference in Jordan earlier that month “that a ceasefire now would simply leave Hamas in place, able to regroup and repeat what it did on October 7.” At that time, the term “ceasefire” was still off the table.

Resolution 2720

On Dec. 22, the UN Security Council successfully passed a draft resolution submitted by the United Arab Emirates (UAE), the second successfully passed resolution related to the war in Gaza. Resolution 2720 called for UN Secretary-General António Guterres to appoint a senior humanitarian and reconstruction coordinator for the Gaza Strip and demanded that the parties to the conflict “allow, facilitate, and enable” the delivery of humanitarian aid into Gaza.

Resolution 2720 followed a previous failed draft resolution, which the UAE had submitted on Dec. 8 following Guterres’s invocation of Article 99. In his letter, Guterres urged “the members of the Security Council to press to avert a humanitarian catastrophe” and reiterated that “a humanitarian ceasefire be declared.” Article 99, in Chapter XV of the UN Charter, allows the UN secretary-general to raise matters “in his opinion, may threaten the maintenance of international peace and security” to the Security Council. Despite the resolution’s significance, which some UN experts considered as an “unmistakable critique” of the council’s inability to deliver diplomatic action, the United States vetoed the resolution. The next product put forward was then the original draft of Resolution 2720.

The original text in the first draft of Resolution 2720 was quite different from the final product. The second operative paragraph of the original draft resolution called for “an urgent and sustainable cessation of hostilities to allow safe and unhindered humanitarian access in the Gaza Strip for those in need” (emphasis added).

OP2. Reaffirms the obligations of the parties to the conflict under international humanitarian law regarding the provision of humanitarian assistance, demands that they shall allow, facilitate and enable the immediate, safe and unhindered delivery of humanitarian assistance at scale directly to the Palestinian civilian population throughout the Gaza Strip, and in this regard calls for an urgent and sustainable cessation of hostilities to allow safe and unhindered humanitarian access in the Gaza Strip for those in need[.]

This language implies that the Security Council would call for the cessation of hostilities prior to, and with the purpose of, there being an opportunity to provide humanitarian aid into the region. According to Rami Ayari, a UN journalist, the U.S. objected to the wording of that paragraph, which resulted in a delay of the vote for further negotiations. The following draft, circulated on Dec. 18 by the UAE, contained amended wording, calling instead for “the urgent suspension of hostilities to allow safe and unhindered humanitarian access, and for urgent steps towards a sustainable cessation of hostilities” (emphasis added).

The language in the revised draft was still unacceptable to the U.S. Instead of “the urgent suspension of hostilities,” the U.S. proposed to call for “urgent steps to immediately allow safe, unhindered, and expanded humanitarian access and also for urgent steps toward a reduction of hostilities.” The third and final draft was scheduled for a vote on Dec. 22 and called “for urgent steps to immediately allow safe, unhindered, and expanded humanitarian access and to create the conditions for a sustainable cessation of hostilities” (emphasis added).

As opposed to the previous draft texts, the second operative paragraph in the resolution called for the creation of “the conditions” for a cessation of hostilities instead of explicitly calling for a cessation. The U.S. abstention signaled approval of this language and the first shift in its position on the conflict. Earlier that month, President Biden had also begun to change his rhetoric regarding Israel, after he spoke out against Israel for its indiscriminate bombing of Gaza.

Thomas-Greenfield acknowledged the urgency of the resolution following the vote. “This was tough,” she said, “but we got there. Since the resolution speaks to the severity of this crisis, and it calls on us all to do more.” She further explained her disappointment with the Security Council, stating that “[u]ltimately, while we are encouraged that the Council spoke out on this humanitarian crisis, we are deeply disappointed—appalled actually—that once again the Council was not able to condemn Hamas’s horrific terrorist attack on 7 October.”

Resolution 2728

The next U.S. diplomatic shift at the Security Council came on March 25 with the passage of Resolution 2728. On Feb. 20, Algeria submitted a draft resolution to the council that demanded “an immediate humanitarian ceasefire that must be respected by all parties”— but the U.S. vetoed it. Thomas-Greenfield explained that the U.S. believed the resolution “would not achieve the goal of a sustainable peace and could in fact run counter to it.” However, she said that the U.S. would engage on a text “that can and should be adopted by the Council so that we can have a temporary ceasefire as soon as is practicable, based on a formula whereby all hostages would be released.” 

By the end of the month, the U.S. circulated its own draft resolution, which contained similar language from Resolution 2720. Most notably, the draft contained—for the first time—the term “ceasefire.” In the first operative paragraph of the U.S.’s original draft, the council: 

1. Underscores its support for a temporary ceasefire in Gaza as soon as practicable, based on the formula of all hostages being released, and calls for lifting all barriers to the provision of humanitarian assistance at scale, as previously demanded in resolution 2712 and 2720, both of which would help to create the conditions for a sustainable cessation of hostilities as called for in Resolution 2720[.]

The original draft resolution underwent significant changes following its initial circulation by the U.S. Although it contained the term “ceasefire,” it did not accommodate the concerns from some council members that the fighting would resume once the ceasefire had ended. There was also significant pushback from members on the resolution’s support for a temporary ceasefire that was based on the condition that all hostages would be released.

Multiple revisions were further circulated throughout the council. The U.S.’s most predominant language changes throughout the negotiations were regarding the actual time frame of a ceasefire, how it would be used to further diplomatic efforts, and whether it would be on condition of the hostages being released. The first revision, for example, proposed “a temporary ceasefire,” whereas the third revision put forward “an immediate ceasefire of roughly six weeks.”

After nearly one month of deliberating, the U.S. submitted its final revision of the text on March 20, requesting that it be “put in blue” in order to be voted on by the council. This time, through the resolution, the council:

1. Determines the imperative of an immediate and sustained ceasefire to protect civilians on all sides, allow for the delivery of essential humanitarian assistance, and alleviate humanitarian suffering, and towards that end, unequivocally supports ongoing international diplomatic efforts to secure such a ceasefire in connection with the release of all remaining hostages.

On March 22, permanent members Russia and China vetoed the U.S.’s proposed resolution, as did Algeria, an elected council member representing the Arab group. Points of contention included the failure to call for an immediate ceasefire, the failure to mention the potential Israeli ground offensive on Rafah, and the resolution’s referring to Hamas as a “terrorist organization,” given that the group had not been designated as such by the council or some of its members. Following the vote, Algerian Ambassador Amar Bendjama explained that his country “relentlessly emphasized the urgency of an immediate ceasefire in order to prevent further loss of life” and that their “core concerns remained unaddressed, despite the many circulated revised versions.” China’s representative emphasized that “the final text remains ambiguous and does not call for an immediate ceasefire,” emphasizing only the importance of one, while Russia’s representative asserted that it “will no longer adopt pointless draft resolutions that do not contain a call for a ceasefire and lead us nowhere.”

Shortly after the March 22 vote, the 10 elected members of the Security Council circulated their own draft resolution, meant to represent a compromise between the diverging positions of the U.S. and other council members. Before it was put to a vote, the U.S. asked that the word “permanent” be removed and replaced with “lasting” regarding the ceasefire. This final and revised text explicitly stated that the Security Council:

1. Demands 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, and further demands that the parties comply with their obligations under international law in relation to all persons they detain.

On March 25, the resolution passed with 14 votes in favor and one abstention from the U.S., becoming the third successful Security Council resolution related to the war in Gaza since Oct. 7 and the first to demand “an immediate ceasefire.”

Legal Complexities Regarding Resolution 2728 

Despite abstaining from the vote, which allowed the resolution to pass, Thomas-Greenfield signaled U.S. ambivalence to the resolution by describing it as “nonbinding” in a statement following its adoption. The statement differed from other widely held legal interpretations of Security Council resolutions. Unlike UN General Assembly resolutions, which are nonbinding recommendations with political value, UN Security Council’s resolutions are considered binding for all member states because of the nature of Article 25.

Various U.S. officials echoed Thomas-Greenfield’s interpretation. In a press briefing on March 25, National Security Communications Adviser John Kirby also called it “a nonbinding resolution” with “no impact at all on Israel and Israel’s ability to continue to go after Hamas.” U.S. State Department Spokesperson Matthew Miller also used the “nonbinding” language. In a press briefing the next day, Miller further remarked on the U.S.’s position on the resolution, explaining that:

[The resolution] does not impose any new obligations on the parties the way, for example, some UN resolutions that impose obligatory sanctions, impose actual requirements on people to implement them. That said, we do believe that even though … this resolution lacks nonbinding provisions and lacks new requirements that [are] imposed on the parties, it does carry weight and it is something that should be implemented.

The “nonbinding” interpretation, explained by South Korea’s representative following the adoption, additionally comes down to a distinction between the use of “demands” versus “decides.” The resolution used the former, which, according to various legal experts, means that under Article 25 the resolution does not obligate member states to accept it and carry it out.

Many other international legal scholars and UN experts disagreed. Deputy UN Spokesperson Farhan Haq stated that “all the resolutions are international law, so to that extent they are as binding as international law is.” International legal scholar Hannah Birkenkötter wrote that “the resolution is—despite statements to the contrary—legally binding and creates a legally binding request for an immediate ceasefire during Ramadan and a legally binding request to immediately release all hostages.”

Despite this disagreement, the U.S. maintained its stance, a move that some experts fear could undermine the legal significance of the adoption. Other experts have criticized the U.S. for “selectively interpreting international law to favor its political objectives.” Regardless of the disputed legal interpretation of the resolution, the U.S.’s abstention on Resolution 2728 was an important diplomatic message.

Though there would be no immediate change on the ground, it signified a shift in the United States’s position and rhetoric toward the conflict.

– Maya Nicholson, Published courtesy of Lawfare.