19 Fall 2023 support, compared to the earlier General Assembly resolution, was rather overwhelming.23 One hundred and fifty-three States voted in favor, among them no fewer than seventeen EU Member States. One remark made during the debate deserves special attention. Egypt, one of the sponsors of the resolution, responded to Members who stressed the right of Israel to self-defense, by observing that Israel, as occupying power, did not have that right.24 Only ten States voted against the resolution, including Israel, the U.S., Austria and the Czech Republic. Both an American amendment to include a condemnation of Hamas and an Austrian amendment to mention Hamas explicitly as responsible for the keeping of hostages, failed to be adopted with the required two-third majority. Finally, there were 23 abstentions, including Germany, the Netherlands, and Ukraine. Reflective Analysis Reflecting on the texts produced by the three major UN organs, the General Assembly, the UNSC, and the Secretary General, leads to some observations. A. No Condemnation of Hamas First, what is completely absent in the resolutions adopted by both the General Assembly and the UNSC is a clear and unequivocal condemnation of Hamas and its proxies who perpetrated the October 7 pogrom and started the war. This is shocking to believe considering the UN was created in 1945 as a direct response to the atrocities of Nazi-Germany, whose primary objective was to annihilate the Jewish people. This is also strikingly different from the response to the Islamist terrorist attacks in 2001 on the U.S., the atrocities of the Islamic State in Iraq and the Levant (ISIL) and the Al Nushra Front (ANF), and the brutal Russian invasion of Ukraine. UNSC Resolution 1368 (2001) “[u]nequivocally condemns in the strongest terms the horrifying terrorist attacks which took place on 11 September 2001 in New York, Washington, D.C. and Pennsylvania.”25 Thirteen years later, the UNSC adopted Resolution 2170 (2014)26 on the terror attacks in Iraq and Syria, which identified ISIL, ANF and other individuals, groups, undertakings, and entities associated with Al-Qaida as perpetrators of criminal terrorist acts. The resolution stated that the UNSC, “Strongly condemns the indiscriminate killing and deliberate targeting of civilians, numerous atrocities, mass executions and extrajudicial killings…persecution of individuals and entire communities on the basis of their religion or belief, kidnapping of civilians …” Notably, both resolutions depict the perpetrators as terrorists, a term that is not used in the resolutions on the HamasIsrael war in respect of Hamas and similar Islamist groups. Additionally, the 9/11 resolutions call for the full implementation of the relevant international anti-terrorist conventions and resolutions, which is completely missing in the resolutions addressing the present war between Hamas and Israel. The latter strongly suggest that Hamas and its proxies should not be portrayed as terrorist organizations. Similarly, on March 2, 2022, when the General Assembly addressed a “classical” inter-state war with Resolution A/RES/ES-11/1 on the “Aggression against Ukraine,” they made it unequivocally clear that the Russian Federation was the aggressor. Yet in the context of the October 7 attacks and Israel’s war against Hamas, such clarity is completely absent. To conclude, the focus of the debates within the major UN bodies and the adopted resolutions on the present war between Hamas and Israel is not the brutal attack of terrorist groups but the military response of Israel to these attacks. The UN seems to agree with mainstream opinions in prominent political circles and the media that the main legal issue to address is whether Israel’s response will be in conformity with international humanitarian law (IHL), thereby shifting the focus from the liability of the perpetrator to the counteraction of the victim. B. No Recognition of Israel’s Right to Self-Defense Also missing in the current UN approach is a clear recognition of Israel’s right to self-defense under international law, notwithstanding Article 51 of the UN Charter. This provision guarantees “the inherent right of individual or collective self-defense if an armed attack occurs against a member of the United Nations.” It is an indispensable legal instrument in a world of sovereign states, especially when such states do not comply with the ideals of universal peace and security that inspired the drafters of the UN Charter. The Charter confirms a right that already existed under customary international law. The right to self-defense justifies the military response by Israel to the massive terrorist attack by Hamas cum suis, yet we do not read anything about this in the 23. UN GA Res. A/ES-10/22, Dec. 12, 2023. 24. United Nations, “UN General Assembly votes by large majority for immediate humanitarian ceasefire during emergency session,” UN NEWS, Dec. 12, 2023, available at https://news.un.org/en/story/2023/12/1144717 25. Supra note 7. 26. UN SC Res. S/RES/2170, Aug. 15, 2014.
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