The US says the UN Security Council's Gaza ceasefire resolution is non-binding. Is that correct?

On Monday, the UN Security Council demanded a ceasefire in Gaza through a resolution that, according to the United States, was "non-binding".

Resolution 2728 passed 14–0, with the US abstaining from voting.

Washington had blocked three previous ceasefire resolutions by using its veto as a permanent member of the Security Council.

US State Department spokesperson Matthew Miller said Resolution 2728 was non-binding at several press briefings this week.

However, legal experts who spoke with The New Arab disagreed.

What did the resolution call for?

UN Security Council Resolution 2728 "demanded an immediate ceasefire" for the rest of Ramadan "respected by all parties leading to a lasting sustainable ceasefire".

It also "demanded the immediate and unconditional release of all hostages, as well as ensuring humanitarian access to address their medical and other humanitarian needs".

Israel's war on Gaza has so far killed more than 32,600 people, according to the enclave's health ministry.

In January, the International Court of Justice found that it was "plausible" Israel was violating the Genocide Convention in Gaza.

Following a Hamas-led attack on Israel on 7 October, around 250 people were taken hostage. Some 130 hostages are still being held in Gaza, according to Israel, among them 34 presumed dead.

What did the US say?

The American messaging on Resolution 2728 has been consistent.

Addressing the Security Council in a statement following Monday's vote, US Ambassador to the UN Linda Thomas-Greenfield called the document "non-binding".

She said Washington was unable to vote in favour because the United States did not agree with everything in the resolution.

White House spokespeople John Kirby and Karine Jean-Pierre have both also described the resolution as non-binding.

"Because the final text does not have key language that we think is essential, such as condemning Hamas, we couldn't support it," Kirby told reporters on Monday.

"Though, because it does fairly reflect our view that a ceasefire and the release of hostages come together, we abstained."

On Tuesday, Miller clarified the US's definition of the resolution as non-binding.

"[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," he said.

However, the US believes the resolution "does carry weight" and "should be implemented", he added.

What have legal experts said?

Luigi Daniele, senior lecturer in international humanitarian law and international criminal law at Nottingham Trent University, said Miller's explanation for why the US calls the resolution non-binding was "preposterous legally".

"What Miller has tried to do [is] to basically downplay the binding nature of the resolution," Daniele told The New Arab on Thursday.

"[It] is also self-defeating because if the resolution is not binding, not even the demand of releasing the hostages unconditionally is binding."

Daniele said if coursework submitted by an undergraduate law student asserted UN Security Council resolutions are not binding, the error would be worth a fail.

Israel ties and enforcement issues

Marika Sosnowski, a postdoctoral research fellow at the University of Melbourne's law school, told The New Arab it was "disingenuous" to say Security Council resolutions are not binding.

"According to international law, a resolution of the Security Council is binding on all UN member states. This includes Israel and Palestine, which has UN observer status," she wrote in a Tuesday article for academic website The Conversation.

She told The New Arab she believed the US was trying to water down the importance of Resolution 2728 at a political level related to its ties with Israel.

Israeli Prime Minister Benjamin Netanyahu called off a delegation to the US after Washington's abstention enabled the resolution to pass.

Despite the American position the resolution was non-binding, Sosnowski said she thought Miller had suggested the text was binding but is difficult to enforce and so enforcement will come from talks being mediated by Qatar and Egypt.

"We believe [the resolution] can be implemented through a ceasefire agreement that secures the release of the hostages, which is what we are trying to pursue through negotiations," Miller told reporters on Wednesday.

Demand or emphasise?

Sosnowski said Resolution 2728 used "really strong language" when it "demanded" an immediate ceasefire and the release of hostages.

In addition to calling for a ceasefire, the resolution also "emphasised the urgent need to expand the flow of humanitarian assistance to and reinforce the protection of civilians in the entire Gaza Strip".

Sosnowski said the language here was weaker.

"Emphasising is a bit less strong a term than demand," she said.

"That doesn't mean that the resolution itself is not binding still – it is. But I think, in a way, this 'emphasising' is hedging."

She said other states or organisations like UNRWA, the UN's Palestinian refugee agency, are not authorised under the resolution to enter Gaza without Israeli or Egyptian permission.

Hannah Birkenkötter, an assistant professor at the law department of the Mexican university ITAM, wrote in a blog post that the Security Council "can adopt legally binding resolutions".

There is no legal obligation if Security Council resolutions "use hortatory [encouraging] language" like recommending measures, she said.

But she added that Resolution 2728 was "unequivocal and strong" in demanding a ceasefire and the release of hostages.

She said the resolution binds Israel and all other UN member states, adding that the demands for a ceasefire and the freeing of hostages "can only be understood as to refer directly to Hamas as well".

Ceasefire and release of hostages

Netanyahu's office said on Monday that Resolution 2728 "calls for a ceasefire that is not contingent on the release of hostages".

British Conservative MP Theresa Villiers said on Tuesday that the resolution "delinks a ceasefire [from] the release of hostages", but Miller said the day prior that the US did not believe this was the case.

Daniele, the Nottingham Trent University lecturer, said the key to understanding the relationship between the two issues in the resolution was logically examining how events could unfold.

The Israeli government appears to be requiring the surrender of Hamas and the freeing of the captives, all while it continues to kill and detain Palestinian civilians, he said.

"It's clear that… the release of the hostages and the ceasefire are inextricably linked," he added.

"They need to happen at the same time and unconditionally, according to the resolution.

"In practice, this means the Israeli government is obliged to prioritise the release of the hostages over the continuation of hostilities, which is what so far it has refused to do."