The UN ‘Humanitarian Pause’ Resolution for the Israel-Hamas Conflict: Beacon of Hope or Dead End?

Commentary

The UN ‘Humanitarian Pause’ Resolution for the Israel-Hamas Conflict: Beacon of Hope or Dead End?

October 31, 2023 12:45:16 pm

Edited by: Ingrid Burke Friedman | JURIST Editorial Director

The author, a Senior Fellow at the Harvard Kennedy School and professor of law at the University of Arkansas, contends that while the recent UN resolution concerning the Israel-Hamas conflict serves as a potent expression of support for the Palestinian people, its practical impact is substantially constrained by fragmentation within the UN Security Council...

Editors’ note: Amid surging violence between Hamas and Israeli forces, JURIST is seeking perspectives from law students, law professors and lawyers around the world. Neither this nor other commentaries constitute JURIST editorial policy, nor do they necessarily reflect the opinions of the editorial team.

On Friday, October 27, at its tenth emergency special session, the United Nations (UN) General Assembly (“UNGA” or “General Assembly”), a principal organ of the United Nations, voted in favor of Resolution A//ES-10/L.25, which calls for a “humanitarian truce” in Gaza. Considering that the Resolution is “the first United Nations response to the war,” it deserves close analysis and attention. The Resolution arguably “breaks the deadlock at the UN over a response to the Israel-Palestine crisis,” and if respected, could bring some relief to hundreds of civilians in Gaza. But is the Resolution dead on arrival?

For starters, although the UN voted overwhelmingly for the Resolution, the vote was not unanimous. Rather, the United Nations (a 193-member world body) adopted the resolution by a vote of 121-14-44, meaning that 120 countries voted in favor of the resolution, 14 countries voted against it, and 45 countries abstained. Under Article 18(2) of the UN Charter, the Resolution required a two-thirds majority of members present and voting to be adopted. The fourteen countries that voted against the Resolution were: the United States, Austria, Croatia, Czechia, Fiji, Guatemala, Hungary, Israel, the Marshall Islands, Micronesia, Papua New Guinea, Paraguay, and Tonga. Among the countries that abstained were Canada, Australia, the United Kingdom, Germany, Italy, India, and Ukraine.

Furthermore, the Resolution is non-binding. Although a principal organ of the UN, under the UN Charter, the General Assembly lacks the mandate to take binding action on peace and security issues. Article 10 of the UN Charter provides that the General Assembly “may discuss any questions or any matters within the scope of the … Charter or relating to the powers and functions of any organs provided for in the … Charter, and … may make recommendations to the Members of the United Nations or to the Security Council or to both on any such questions or matters” (emphasis added). Under Article 18 (2), the General Assembly may make “recommendations with respect to the maintenance of international peace and security.” By contrast, the power and mandate to respond to peace and security issues is squarely vested in the Security Council, another principal organ of the UN. Article 39 of the UN Charter provides that the Security Council “shall determine the existence of any threat to the peace, breach of the peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in accordance with Articles 41 and 42, to maintain or restore international peace and security” (emphasis added).

What exactly is in the Resolution? The primary focus of the Resolution which is titled ‘Protection of civilians and upholding legal and humanitarian obligations’ is on protecting civilians from the brutal impact of the ongoing Israel-Hamas war and ensuring that essential goods and services get to the civilians. Among other things, the Resolution:

“[c]alls for an immediate, durable and sustained humanitarian truce leading to a cessation of hostilities;
“[d]emands that all parties immediately and fully comply with their obligations under international law, including international humanitarian law and international human rights law, particularly in regard to the protection of civilians and civilian objects, as well as the protection of humanitarian personnel, persons hors de combat, and humanitarian facilities and assets, and to enable and facilitate humanitarian access for essential supplies and services to reach all civilians in need in the Gaza Strip;
“[d]emands the immediate, continuous, sufficient and unhindered provision of essential goods and services to civilians throughout the Gaza Strip…;
“[c]alls for immediate, full, sustained, safe and unhindered humanitarian access for the United Nations Relief and Works Agency for Palestine Refugees in the Near East and other United Nations humanitarian agencies and their implementing partners, the International Committee of the Red Cross and all other humanitarian organizations upholding humanitarian principles and delivering urgent assistance to civilians in the Gaza Strip, encourages the establishment of humanitarian corridors and other initiatives to facilitate the delivery of humanitarian aid to civilians, and welcomes efforts in this regard;
“calls for the rescinding of the order by Israel, the occupying Power, for Palestinian civilians and United Nations staff, as well as humanitarian and medical workers, to evacuate all areas in the Gaza Strip north of the Wadi Gaza and relocate to southern Gaza…;
“[f]irmly rejects any attempts at the forced transfer of the Palestinian civilian population;
“[c]alls for the immediate and unconditional release of all civilians who are being illegally held captive, demanding their safety, well-being and humane treatment in compliance with international law;
“[c]alls for respect and protection, consistent with international humanitarian law, of all civilian and humanitarian facilities, including hospitals and other medical facilities, as well as their means of transport and equipment, schools, places of worship and United Nations facilities, as well as all of humanitarian and medical personnel and journalists, media professionals and associated personnel, in armed conflict in the region;
“stresses the need to urgently establish a mechanism to ensure the protection of the Palestinian civilian population, in accordance with international law and the relevant United Nations resolutions; and
“[e]mphasizes the importance of preventing further destabilization and escalation of violence in the region, and in this regard calls upon all parties to exercise maximum restraint and upon all those with influence on them to work toward this objective.”

Although UN Member States voted overwhelmingly in favor of the Resolution, the fact that 59 Member States either voted against the Resolution or abstained suggests that the Resolution is controversial in some quarters. Why did 14 nations vote against Resolution A//ES-10/L.25? The motivations and calculations of States are often difficult to decipher. However, two possible reasons can be gleaned from the public statements of some of the countries that voted against it. First, the Resolution notably does not mention Hamas at all nor does it clearly and unequivocally condemn the October 7 terrorist attack on Israel. Although the Resolution generally “[c]alls for the immediate and unconditional release of all civilians who are being illegally held captive,” it does not directly and explicitly reference the more than 200 hostages that were taken during the Hamas attack on October 7 These were no oversights though. A Canadian-led amendment to the draft Resolution wanted a statement in the draft Proposal 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 (emphasis in the original).” The Canadian-led amendment failed to get the requisite two-thirds vote needed to pass at the General Assembly; although 88 countries voted in favor of the amendment, 55 countries voted against it, while 23 countries abstained. Another concern is that the Resolution does not acknowledge the right of Israel to defend itself or to respond to the heinous attack on October 7, an attack that left about 1,400 people in Israel dead and more than 4,000 people injured. After the vote on Resolution A//ES-10/L.25, Gilad Menashe Erdan, Permanent Representative of Israel to the United Nations, said the world has witnessed that the United Nations “no longer holds even one ounce of legitimacy or relevance”.

Should Resolution A/ES-10/L.25 be welcomed? Celebrated? In the face of mounting civilian casualties in Gaza and predictions that the situation could get even worse, any action from the UN is probably better than inaction. By all accounts, the situation of Palestinians in Gaza is extremely dire and is getting even worse. The number of people killed in Gaza has exceeded 8,000 according to the latest reports from Hamas, the de facto authority in Gaza. Moreover, considering that the Resolution was the first formal U.N. response to the Hamas attacks on Israel and Israel’s counteroffensive there is perhaps a cause for celebration. To date, the Security Council has failed to reach agreement on four draft resolutions on the Gaza crisis. Since the October 7 attack on Israel, the U.S. and Russia have introduced competing Security Council Resolutions on the Gaza question; none of the resolutions passed. A resolution by Brazil also failed. Resolution A/ES-10/L.25 is a direct response to urgent calls from aid workers, civil society organizations and key UN personnel for the UN to do something. In the face of a deadlock in the Security Council, attention inevitably turned to the General Assembly. In a recent statement, Save the Children’s Country Director for the Occupied Palestinian Territory, Jason Lee: “call[ed] for the UN General Assembly to do what the Security Council will not, and pass a resolution that demands a ceasefire, unimpeded delivery of humanitarian assistance, including fuel, in line with international humanitarian law (IHL), return of all hostages, and an end on attacks on civilians.”

What does the future hold for Resolution A//ES-10/L.25? Not much. As already noted, although the Resolution is a powerful statement of solidarity for the Palestinian people, it is not binding and has very little chance of being enforced by the deeply fractured and divided Security Council, the UN organ with the power to enforce peace and security measures. Not surprisingly, on October 28, one day after the adoption of the Resolution, the U.N. Secretary-General Antonio Guterres repeated a call for an immediate humanitarian ceasefire for the delivery of aid. Also on October 28, the World Health Organization “reiterate[d] its calls for an immediate humanitarian ceasefire” and “remind[ed] all parties to the conflict to take all precautions to protect civilians and civilian infrastructure. In sum, despite the passing of Resolution A//ES-10/L.25, the future remains very bleak for Palestinian people as well as the more than 200 people believed to be held captive by Hamas and other Palestinian armed groups in Gaza and their loved ones.

Professor Uche Ewelukwa Ofodile (SJD, Harvard) is a Senior Fellow of the Mossavar-Rahmani Center for Business and Government at the Kennedy School of Government at Harvard University and a member of the Council on Foreign Relations. She holds the E.J. Ball Endowed Chair at the University of Arkansas School of Law.

Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.