The Duran Podcast - UNSC resolution, binding or non-binding?

Episode Date: March 28, 2024

UNSC resolution, binding or non-binding?

All right, Alexander, let's talk about the United Nations Security Council resolution. And let's start with the big question. Binding or not binding? And I guess the follow-up question, which I think is perhaps the most important aspect to this resolution, can it be enforced if it's considered binding? now what are your thoughts if you ask a question like that to a lawyer especially an international lawyer they will probably you know provide you with a rather long answer to a very simple question is it binding or not well i'm going to cut straight to the point i think it's binding and i think

in the end the great majority in fact the overwhelming majority of international lawyers would say it was binding. The United States, of course, is pretending that it's not binding. But go to the text of the resolution. It's very short, by the way. It's a very short, very clear resolution drawn up by Algeria. And it says that the United Nations Security Council demands an immediate ceasefire. Now, there are three levels of, you know, three levels of language that a resolution of this kind might use. One is the Security Council calls for a immediate ceasefire. Now, that would not be binding because it's a request. But it doesn't say calls, it says demands.

the strongest possible language that it might use is the Security Council orders and immediate ceasefire. Well, that isn't a word that is, as far as I know, often used anyway, in Security Council resolutions. Demands looks to me like equivalent to an order. It says this is what the Security Council insists must happen. And given that the Security Council is authorised in international law to make these kind of determinations, and that security council resolutions that, you know, require a party to do something,

are binding under international law. I would say unequivocally, personally, that this is a binding resolution. I know others are trying to try and argue otherwise. The United States is trying to argue otherwise, but it seems to me that this is absolutely clear. Now, over the course of the debate itself, the Russian ambassador Vasily Nabenzia

made the point that this was essentially the same resolution as the one which the United States vetoed some months ago when it was proposed by Brazil. and as I understand it one of the reasons why the United States at that time vetoed that resolution was because they thought it would be binding so you know they thought it would be binding then

they're saying it's not binding now but I think unequivocally I don't have any doubt myself it is binding and I think the vast majority of lawyers would say so right it's clear why the US is is trying to walk this this fine line of on the one hand abstaining from from this resolution not voting this resolution down and then on the other side of of things they're saying

now that it's not binding because they don't want to upset Israel they believe this will keep Israel on side with the Biden White House so it's clear why they're doing this they are trying to walk this this this tight rope but But, you know, I've read that the United States' argument is that the word demand is not akin to if it was decide. If they use the word decide, not even order. For them, they're saying that demand does not mean that it was, that it is a decision. They're demanding, but they're not deciding. What do you know?

I agree to make that argument. The word demanding, in my opinion, is stronger than decides. Because decides, decides, says, you know, this is what we want. But demands, the word demand contains within it the concept of decides, but actually makes it mandatory to the other side. I mean, this is, I mean, we're now, you know, interpreting words. But, you know, very much. That's the argument, though. I know, absolutely.

But, you know, which is, I mean, by the way, it's desperate. When a party does that, it's desperate. You should never do that kind of thing. But, you know, speaking as the husband of somebody who teaches English literature and English literature criticism, English criticism. So I would say that demands is actually stronger than decides, because the demand. contains within it the concept of the decision but makes it more urgent and more more insistent

right okay so then we get to the to the question of enforcement can this can this be enforced must this be enforced will the u.s agree to to enforce this right there is another very compelling reason why I think this is a binding resolution and that is the last paragraph now the last paragraph is a standard provision in many UN Security Council resolutions

especially in my opinion binding ones and it says that the Security Council remains seized of the matter now that means that if the resolution is not implemented

the Security Council reserves to itself the right to make further decisions to ensure that the terms of the resolution are complied with. It's a legal phrase, but seized, seized of the matter, means that it is the Security Council. By the way, the Security Council alone and no other party, will come to that in a moment, which has the right to make a decision

if the terms of the Security Council resolution are not implemented. So that to me it says also that it is binding, but it also means that the Security Council is now looking at its various options if the resolution is not complied with. And that brings us to Chapter 7 of the UN Charter and Chapter 7 provides the Security Council with powers which it can use to enforce its resolutions. This is standard. the Security Council normally makes a first resolution, which is an order, and then if the order is not obeyed, there's a second resolution which goes forward towards enforcement. And Chapter 7 gives the Security Council power, either to impose sanctions, and there are many, many international lawyers, and though I'm not an international lawyer, it is also my own belief that in fact the Security Council is the only body that is authorised to impose sanctions. Unilateral sanctions imposed by countries are not in my opinion authorised by international law.

But that's another question. We won't get into that now. The Security Council can impose sanctions under Chapter 7. It can also authorise military action by members of the Council. Now, the United States will not agree to a Security Council resolution that imposes sanctions on Israel or which authorizes military action on Israel. That is inconceivable. So, on its face, we have a Security Council resolution which is binding. I think that is unequivocally the case when you look at it in its totality and you examine the language carefully. And at the same time, the United States can still prevent this Security Council from blocking enforcement of the resolution.

They can veto any future Chapter 7-based resolution that is put to the Council. So that's, I just wanted to explain the legalities of this, the procedural legalities. And we can go on from there because there is a lot more to say. But that was just to clarify, to answer your question. Is the U.S.'s play here to put additional pressure to Netanyahu into Israel by not vetoing this resolution, while at the same time they try to work out a ceasefire on their own outside of the United Nations? Is this the play that they're working on? Because if they can place this pressure on Israel or appear to place this pressure on Israel by vetoing,

by not vetoing this resolution, and if they can somehow work out some sort of ceasefire as the United States, maybe they're thinking that this asserts our dominance, our position in the Middle East again, because we're the ones as the United States that came to. to a ceasefire. We were the ones that broke it a ceasefire. The UN, they couldn't quite do it, but we did it. I mean, is that kind of what they're aiming for? Right.

I'm going to say, I think you're absolutely right, except in one respect. I don't think this is a cunning plan. I don't think that this is the United States trying to get ahead of the situation. I think the whole business of this resolution confirms our analysis, going all the way back to the events of October of last year and that we started making in the immediate aftermath of the Hamas attack and when all the talk of the attack, the counter-attack by the Israelis on Gaza began.

We said that there would be enormous losses, civilian losses of life in Gaza. Nobody disputes that. We said that eventually the pressure would become, overwhelming, there would be a resolution demanding a ceasefire in the Security Council, or if not the Security Council in the General Assembly, that the United States might try to prevent it as long as it could, but the diplomatic pressure would eventually become so strong and the political pressure within the United States would become so strong that sooner or later

the United States would buckle. it was the product of the mistaken decisions taken by the Biden administration back in October when they gave Netanyahu carte blanche. And by the way, Donald Trump has also come round to our way of thinking on this. He too thinks that the way in which the Israelis acted and by extension, the Biden administration in enabling it has turned out badly. both for Israel and for the United States. So we've now reached that point, which we always said we would eventually come to.

The United States has been forced to accept a resolution demanding an immediate ceasefire. It's no longer a humanitarian pause. It's no longer a humanitarian ceasefire. It's none of this euphemistic and complicated language. It is an immediate ceasefire. for the month of Ramadan, with a long, sustainable ceasefire beyond it. So they've reached that point which they never wanted to come to. But they had no choice.

The international pressure was too strong. They've lost the support of their European allies. All of them, the French and even the British, voted for this resolution. opinion around the world has now solidified. They know perfectly well that if they continue to resist, they face the ultimate disaster of a mandatory vote under the United for Peace formula in the General Assembly, and that would have been a diplomatic catastrophe.

And they also know that within the United States, people are extremely unhappy. Biden risks losing Michigan, all kinds of other places. So they've had to capitulate. They authorised this resolution. They've allowed this resolution to pass. They didn't vote for it, but they allowed this resolution to pass. And as I said, it is binding.

But the imperative that they've been following since October, which is to support Israel, And the desire that exists within the administration, from the president down, to continue to support Israel, is still there. So you see, they are trying to both, to play both sides at once. They allow this resolution to pass. They then pretend it's not binding. They are trying to buy themselves time and maneuver space. they know full well

that what will happen is if there is, for example, an attack on Rafa is that there will be another resolution presented to the Security Council at some point within the next few weeks authorising action under Chapter 7

they want to avoid that at all costs they will veto that resolution if they do that another resolution of a similar and nature only stronger will come. Sooner or later, it will again go to the General Assembly under the Uniting for Peace formula. We could then get UN General Assembly sanctions against Israel. That would be again a diplomatic disaster. So they're trying to buy themselves time. They're going out and they're going to try and work as hard as they can on the Israelis to try to get some kind of a ceasefire. And I think that is going to be the priority now.

Right. Got it. They're trying to buy the time so that they can they can broker something with Netanyahu or if you go by some of the statements from people like like even Chuck Schumer maybe they're they're trying to maneuver Net and Yahoo or the hardliners out in order to get someone in place who they can talk into a ceasefire what do you think of that absolutely I mean Schumer's comments not going to be easy Shoot, oh, no, absolutely. Schumer speech, basically saying that Netanyahu should stand down,

which is clearly coordinated with the administration, was the big straw in the wind, the clue that we were going to, that we were on the brink of getting a resolution. Remember, Blinkett was talking about a resolution coming. The United States tried to, tried, as the last throw they had, they tried to propose their own resolution,

which is weaker than the one that's just passed, significantly weaker and the Chinese and the Russians fetid it. So that ploy didn't work. So the fact that Schumer and the administration are now calling on Netanyahu to step down is because they know that Netanyahu

is going to resist passionately any move to impose a ceasefire. So they're caught. They're trying to find some way to get the Israelis to agree to a ceasefire. fire. They have this massive obstacle in their path, which is

Netanyahu and the other people who support him on this issue within the Israeli cabinet and they don't know what to do. So they say Netanyahu, please go. We'll try and find someone else. Maybe the Israeli

defense minister, Ganskosram, I believe he's a more moderate figure or at least he's perceived to be that way. They, I suspect, haven't judged the political situation in Israel. Carefully, what Schumer said, by the way, was extraordinary. The United States is now openly calling for regime change in Israel.

I mean, this is something that we've never been, New Stever's seen before, is trying to reshape the Israeli government in its own interests. I mean, that has never happened. I am concerned about it. You know, my feelings about regime change. But that's what they've been reduced to. And of course, how do they get Netanyahu to step down? How do they get the entire Israeli cabinet reconstructed,

given the state of opinion in Israel, which is very, very strong on Hamas and on Gaza? it will be very, very difficult to persuade the Israelis, the Israeli political class to change its position. And of course, if they succeed, if they do remove Netanyahu, if they do remove all of these other people, if they do get a cabinet that agrees to a ceasefire,

going back again to what we were saying right from the start, way back in October, it's difficult to see how, most of the world, especially the Muslim world and the Arab world, will not see this as a Hamas victory. Because Hamas will have survived, it will have resisted the Israeli onslaught, and it will have, in effect, brought about changes in Israel leading to the change of the Israeli government, something which no other Palestinian party has ever been able to achieve up to this time.

I can't figure out a way out of this. I'm trying to think, what is the way out of this? How do you get to a permanent ceasefire? I can't, looking at all the parties involved, and looking at the big mess-up of the Biden foreign policy team, and looking at Netanyahu's motivations as well. I can't figure out how this comes to, to a conclusion. You know, you're very right to talk about the mess up of the Biden team,

because all of this was predictable. Every single part of it was predictable. Now, we could say that, you and I could say that with absolute confidence because we predict. We are where we are. We are where we predicted it. We said this is where we would come to and this is where we are. So it was completely predictable. You know, all these brilliant, clever people, the genius, Jake Sullivan, the foreign policy genius, the diplomatic supremo, Tony Blinken, they brought the United States.

They brought the administration to this point. I don't know. I don't know how they get around this. I mean, they could perhaps, one way, perhaps, might be to try to get Netanyahu to agree to a ceasefire or to try to get him to agree to at least a,

long ceasefire through Ramadan and then a ceasefire beyond that and then try and massage it. And instead of having one big long ceasefire, say, you know, that this is a ceasefire that is rolling ceasefire. They're trying to get the hostages released. The Security Council resolution we've just had, by the way, requires the release of the hostages, demands the sea release of the hostages. bear in mind, it uses the same word demands. So, you know, if they demand release of the hostages, which I am sure the United States feels is mandatory,

I mean, it could have insisted on a stronger word. It might as a decides to demand, I don't know what the word wording would it be, the release of the hostages. But one part of the resolution, which everybody agrees is mandatory, is for the release of the hostages. But anyway, they can try and spin that.

That demand for the release of the hostages, by the way, isn't linked to the demand for the ceasefire. They're separate issues. But the United States might try in some way to obscure this. They might try some big haggle over the hostages and something of that kind. Try to get the Israelis strung along. They can weave and dark.

and play but they've got Nbenzia the Security Council against them they've got the Chinese against them Wangy and Lava off in the background all of the others ready to call them out

it's going to be very difficult to get out of this mess you know one can come up with strategies that they might use it's going to be very very difficult all right we will the risk and I just say one last thing which is that of course the risk is that facing a diplomatic disaster, the Security Council, the hardliners in Washington will start to reassert themselves and say, look, all this dithering, look where it's led us, the right

thing to have done, obviously, we could never have agreed to anything less than support, outright support for Israel. So what we must now do is actually go after the head of the snake to push forward. Bush forward. You know, what we always say, these people have no reverse gear. So, you know, it caught in this, caught on this issue which a lot of people in the US, US voters, and even more so, European voters, care about. I can easily see how in the ultimate outcome might be

that in desperation, they decide to, you know, play, for the highest stakes, play for quits, if you like, and launched finally that strike on Iran. That doesn't seem likely at the moment. The mood music doesn't point in that way, but as we know, with this administration, things can change on a dime. Even without the Iran component,

I'm thinking that's what Netanyahu is playing for, to play stubborn, to be stubborn, he understands that the hardliners will reassert themselves if they haven't already. And they will say, you know, there is no pathway to a ceasefire without us losing face, without it looking like Hamas has won. So what we have to do, the only way forward is, this is what they're going to tell the Biden White House. The only way forward is to just support Netanyahu and push through this difficult

operation that he's planning. And that's what I'm thinking Netanyahu is playing for. Oh, absolutely. And that's what I fear the U.S., the Biden White House, is going to probably concede to. Maybe, I don't know.

But that's a possibility, even without the Iran, compointed to it. You're absolutely correct. I mean, that is exactly what Netanyahu you say. You follow Netanyahu. He is hammering away at these points all the time.

And I've been already reading commentaries. I see them more in the British media than the American, because, as we know, the American media in an election season is very, very reluctant to criticize the administration at this time. But in the British media, which is more, the neocons are now more able to express themselves, they are already talking betrayal that Israel has been betrayed. And how do you get out of this mess? How do you win them back?

How do you win back, you know, the Israel supporters in the US? How do you avoid this humiliation? Well, at some point, the drumbeat to attack Iran could very well return. Can I just say the military picture overall across the Middle East is looking grim. The bombing of the Houthis has achieved absolutely nothing. The Houthis are even now launching missiles. against Israel and some of them are getting through. One landed in the port of Eilat, for example, and apparently did some damage there.

Ships continue to be sunk. That whole operation has been an absolute fiasco. No one has been deterred. Nobody has been impressed by what the US is doing in the Middle East with all this military activity. But the threat, the possibility, the danger of some disastrous escalation, is absolutely there. When you back these people into a corner, they're very dangerous people, and they might decide to do utterly reckless things. And the president himself, I think, is always open to that kind of persuasion. He is, after all, a neocon himself.

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