Why the Trump-Blair Gaza plan is unlawful

More than two decades ago, in the run-up to the 2003 Iraq War, a group of UK-based international lawyers, myself included, wrote a letter to then Prime Minister Tony Blair, explaining that the war would be illegal under international law. 

Plus ça change, plus c'est la même chose.

Again, a warning of illegality is required for another global adventure - an international trusteeship over Gaza - involving the same individual, this time as a possible leader of the proposed protectorate, alongside US President Donald Trump.

The Gaza trusteeship would replace the more than half-century-long occupation by Israel, which has involved serious violations of fundamental rules of international law in its conduct: racial discrimination, apartheid, torture, grave breaches of the laws of war, crimes against humanity, and genocide.

At the heart of these rules of international law is the duty of “trusteeship”: dominion by the “trustee” (Israel) should be exercised selflessly, in the interests of the “beneficiary” (the Palestinians of Gaza), not selfishly. There should be protection, not abuse.

Befitting his role as an icon of western liberal interventionism, Blair’s association with the Gaza trusteeship builds on the tradition of western humanitarians who sought to “humanise” colonialism by grafting onto it a duty of care. 

Trusteeship was a self-serving sham invoked in bad faith, serving as an alibi to rationalise colonial rule, which could now be justified as a 'civilising mission'

This concept of “trusteeship over people” was adopted by Europeans for colonial rule over Africa at the Berlin Conference in the late 19th century; by the League of Nations after the First World War for the Mandate territories; and by the United Nations after the Second World War for the Trust Territories and all other non-settler colonies.

Trusteeship assumes a world divided between “child-like” people incapable of looking after themselves - a characterisation now applied to the Palestinian people of Gaza - and “adults”, such as Blair et al, who are able to rule over not only their own people, but also others.

Falling into the “child” category is the rationale for requiring trusteeship. In the League of Nations Covenant, the people of the mandates were “not yet able to stand by themselves under the strenuous conditions of the modern world”. 

The child/adult relationship is the rationale for the duty of care - the adult is in charge, but must act in the interests of the “ward”. The adult’s responsibility is to “bring up” the child so it will eventually attain maturity. To conduct tutelage, enabling “development”.

The Gaza trusteeship will thus be temporary, because it is transitional: the adults will build up local capacities for self-administration; the children will consequentially mature and attain adulthood, and the need for trusteeship will then end.

Follow Middle East Eye's live coverage of the Israel-Palestine war

Racist, self-serving sham

At heart of this model is racism. In the colonial era, a racist global “standard of civilisation”, adopted within a system dominated by Europeans, determined who the adults and children were (no prizes for guessing who conceived themselves as the adults). Trusteeship was a self-serving sham invoked in bad faith, serving as an alibi to rationalise colonial rule, which could now be justified as a “civilising mission”.

But the consequence of colonial liberation struggles after the Second World War - the end of formal colonisation for non-settler-colonies - was the adoption in international law of the right of self-determination. 

The great betrayal: Why Arab and Muslim rulers backed Trump's Gaza plan

Read More »

This was a repudiation of trusteeship. There were no more child-like and adult-like people in the world: the racist child/adult distinction between peoples was supposedly abolished. All peoples were equal, and deserved freedom, as “adults”. As the UN General Assembly stated: “Inadequacy of political, economic, social or educational preparedness should never serve as a pretext for delaying independence.”

Despite this, trusteeships continued, mostly conducted by international organisations, as in Bosnia and East Timor. Global human rights rules were invoked as a seemingly non-racist “standard of civilisation” that could determine, legitimately, where trusteeship was needed. International organisations were seen as capable of acting selflessly and thus performing the duty of trustee in good faith, in contrast to states (the US-led occupation of Iraq - bad; the UN in East Timor - good). 

And “temporary” arrangements, when actually followed (yes, East Timor; no, Bosnia), were seen as “genuine” trusteeships, in that they didn’t endlessly defer independence as the sham colonial versions had. I wrote a book on these arrangements and their antecedents in the colonial era. Western diplomats tell me it is being used as their “manual” for the Gaza “day after” plans.

This horrifies me. At the International Court of Justice advisory opinion case last year, I argued for the Arab League, based on my academic research, that the Palestinian people had a legal entitlement to be free of the Israeli occupation without preconditions, and simply because of their right to self-rule - not because they were being treated abusively. 

In its landmark ruling, the court agreed. This was a conclusion about the right to self-determination, pure and simple, in and of itself. It would, therefore, apply equally to any form of foreign administration, however ostensibly “humanitarian” and time-limited. Replacing an abusive trustee with another form of trusteeship is not self-determination, and would be illegal.

The views expressed in this article belong to the author and do not necessarily reflect the editorial policy of Middle East Eye.