17 Fall 2023 protection of civilian and humanitarian facilities and access to essential goods and services. The resolution completely omits the entities responsible and therefore fails to characterize them as terrorists. An attempt was made by Canada to name the perpetrator of the atrocities in a proposed amendment that: “Unequivocally rejects and condemns the terrorist attacks by Hamas that took place in Israel starting on 7 October 2023 and the taking of hostages, demands the safety, well-being and humane treatment of the hostages in compliance with international law, and calls for their immediate and unconditional release.”14 The amendment was not adopted since a few votes were missing from the required two-thirds majority: 88 States voted for; 55 were opposed; and 23 abstained. Even in light of such a critical omission, many supporters of the amendment continued to vote in favor of the original proposal resulting in the resolution’s adoption. It is relevant to note that the General Assembly is silent on Israel’s right to self-defense. The resolution further asks for the “release of all civilians who are being illegally held captive” as if both sides kidnapped innocent civilians. Of course, only the Palestinian terrorist organizations kidnapped civilians; Israel did no such thing. The hostages are almost all Israeli and Jewish babies, children, adults, and elderly who were abducted from Israeli soil. The resolution finally refers to the “Two-State” solution based on UN resolutions and public international law as the way to bring an end to the Israeli-Palestinian conflict. This first resolution set the tone for all subsequent texts adopted by UN bodies. D. The Security Council Resolution After multiple attempts, it wasn’t until November 15, 2023 – five and a half weeks after the October 7 attack – that the UNSC succeeded in promulgating its own resolution. It adopted Resolution 2712 (2003) which “[c]alls for the immediate and unconditional release of all hostages held by Hamas and other groups, especially children, as well as ensuring immediate humanitarian access.”15 Although it may be deplored that “calls” was used in lieu of the stronger term “demands,” the resolution distinguishes itself positively from the earlier General Assembly resolution because Hamas is mentioned explicitly. The resolution also calls for humanitarian pauses and corridors throughout the Gaza Strip. Absent in this resolution is a clear condemnation of Hamas for the cruel lethal attacks on October 7. There were twelve votes in favor of the resolution and not less than three abstentions, all by Permanent Members: the Russian Federation, the UK, and the U.S. Notwithstanding Article 27 of the UN Charter, which requires the concurring votes of the Permanent Members, these abstentions do not prevent the adoption of a resolution. U.S. Ambassador Linda Thomas-Greenfield was horrified that some members of the UNSC could not bring themselves to condemn Hamas. She stated, “What are they afraid of? Let’s be crystal clear: Hamas set this conflict in motion.”16 The UK, France, Switzerland, and Albania regretted the omission of a clear condemnation of Hamas.17 Except for the UK, these concerns were apparently not sufficient enough to compel them to abstain. Like the General Assembly, the UNSC does not mention the State of Israel’s inherent right to self-defense, as recognized in Article 51 of the UN Charter. It also fails to address, let alone condemn, Hamas’ well-known practice of using civilians as human shields and using civilian facilities such as apartment buildings, schools, mosques, and hospitals, as well as ambulances, for military purposes. Finally, as to the legal value of Resolution 2712, it has been suggested that it is binding under international law.18 It is sometimes even assumed that all UNSC resolutions are binding. This is not the case. Only resolutions adopted under Chapter VII of the UN Charter are binding. There is no indication in its text that Resolution 2712 was adopted under Chapter VII. If the UNSC wanted the resolution to become binding under Chapter VII, the resolution must state that the conflict constitutes “a threat to the peace, breach of the peace, or an act of aggression” (Article 39 UN Charter). In the resolution we find no such determination; this in contrast to Resolutions 1368 and 1373 that were adopted after 9/11. The conclusion, then, is that Resolution 2712 is not binding on UN Member States. 14. Canada, Amendment to Draft Resolution, UN GA Res. A/ES-10/L.26, Oct. 26, 2023. 15. UN SC Res. 2712 (2023), Nov. 15, 2023. 16. https://press.un.org/en/2023/sc.15496.doc.htm 17. United Nations, “Adopting Resolution 2712 (2023), Security Council Calls for ‘Urgent and Extended’ Humanitarian Pauses in Gaza, Immediate Release of Hostages,”, Nov. 15, 2023, available at https://press.un.org/en/2023/ sc15496.doc.htm 18. Maria Antonia Sánchez-Vallejo, El País (USA Edition) Nov. 16, 2023, available at https://english.elpaís.com/ international/2023-11-16/un-security-council-calls-forurgent-and-extende-humanitarian-pauses-for-aid-to-reachgaza
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