A New Occupation of Palestine

With President Trump declaring the end of the war in Gaza, and Hamas and Israel agreeing on the ‘first phase’ of a US-brokered peace deal, what comes next for Palestine is still uncertain. Nonetheless, it can be safely presumed that subsequent phases would involve the realisation of Trump’s plans for transitional governance (TG) under the “Board of Peace” headed by himself and Former UK Prime Minister Tony Blair. Point 9 of Trump’s 20-point plan for Gaza, which sets out his vision for TG, is extracted below:

“Gaza will be governed under the temporary transitional governance of a technocratic, apolitical Palestinian committee, responsible for delivering the day-to-day running of public services and municipalities for the people in Gaza. This committee will be made up of qualified Palestinians and international experts, with oversight and supervision by a new international transitional body, the “Board of Peace,” which will be headed and chaired by President Donald J. Trump, with other members and heads of state to be announced, including Former Prime Minister Tony Blair. This body will set the framework and handle the funding for the redevelopment of Gaza until such time as the Palestinian Authority has completed its reform programme, as outlined in various proposals, including President Trump’s peace plan in 2020 and the Saudi-French proposal, and can securely and effectively take back control of Gaza. This body will call on best international standards to create modern and efficient governance that serves the people of Gaza and is conducive to attracting investment.”

Celebration of a halt in hostilities brokered by Trump must not distract from the dangerous imperialism and disregard for international law that this transitional plan demonstrates. Seidl recently wrote that it reflects a “regressive retreat” from post-liberal peacebuilding. Echoing this criticism, we offer a different critical legal theoretical assessment of Trump’s plan, focusing specifically on Point 9. We argue that this plan is fundamentally neo-imperialist and at odds with the rules of international law that govern transitional periods. To that end, we first briefly introduce the framework of this body of law and its foundational principles of self-determination and inclusivity. We then undertake a critical theoretical analysis of Point 9 to demonstrate its neo-imperialist logic and affront to these foundational principles. Moving from an abstract to a specific assessment, we then demonstrate how Trump’s transitional plan violates two specific rules of international law governing transitional periods: those prescribing limitations ratione materiae on the scope of transitional governance, and those prohibiting the role of external actors.

The International Law on Transitional Arrangements and Self-Determination

Some commentators have argued that transitional periods exist in a regulatory void since they reflect a period of interruption in the normal operation of international law (see here at pp. 38 and 65). This claim, however, reflects a mischaracterisation of the functioning of international law. International law often encounters situations where its normal operation is interrupted. This does not, however, mean that such situations exist in regulatory voids; it only means that the general set of rules is replaced by a set of rules specific to that situation. For example, during armed conflict, many general rules of international law (such as rules prohibiting lethal targeting) are modified or replaced by international humanitarian law (see here and here). In transitional periods, therefore, though the normal operation of international law may be suspended, some special body of rules would nonetheless govern transitional arrangements.

Through an extensive analysis of state practice on transitional arrangements, Emmanuel De Groof has characterised this special body of rules as the ‘jus in interregno’. This body of rules thus refers to the lex specialis of transitional governance. The internal ideological throughline running across all rules of the jus in interregno is the primacy of inclusion and self-determination such that these rules essentially add “specificity to the principle of self-determination” (De Groof, p. 193). Therefore, any transitional arrangement must take these principles as the starting point. To the contrary, Point 9 of Trump’s plan fundamentally affronts these foundations of the jus in interregno.

The Neo-Imperialist Logic of the Transitional Arrangement

The imperialist logic of Point 9 is evident at once by reference to its text. Words such as ‘technocratic’ and ‘apolitical’ project an image of neutral, rational governance to the obscuration of the profoundly political act of displacing Palestinian sovereignty. For example, the language of ‘technocracy’—governance by “qualified Palestinians and international experts”—transforms political questions of legitimacy and justice into managerial problems of efficiency to the exclusion of the political aspirations and self-determination of real Palestinians affected by the war and historical conflict. This reflects a translation of contested histories and political conflicts into technocratic projects of institutional design and capacity-building. ‘Technocracy’ thus works to effectively deny much of the colonial and apartheidist history of Palestine. This is a recurring motif and hallmark of imperialist TG. As Vasuki Nesiah notes, in TG there is a “relationship between the denial of colonialism, and its replication” (p. 140). Therefore, by recasting occupation, dispossession, and genocide as technical issues solvable by expert oversight, Point 9 naturalizes external control and entrenches a new form of imperialism in Palestine.

The juxtaposition of “qualified Palestinians” and “international experts” is also one that encodes an imperialist hierarchy. Palestinian participation is permitted only through the filter of “qualification” as defined by foreign interests. This, along with reference to ‘supervision’ of Palestinian people by a foreign board, echoes the colonial paternalism that often finds itself in conversations about the Global South, where non-Western states are portrayed as needing Western mentoring before they can exercise full sovereignty.

The syntax of Point 9 also enacts the kind of subordination that is reminiscent of imperial control. Point 9 posits that Gaza “will be governed under” a committee “with oversight and supervision by” a foreign board. Such language explicitly serves to subordinate the Palestinians to an entirely foreign authority – an idea entirely at odds with and in denial of the principle of self-determination.

Nesiah’s observation that TG regimes may revive colonial forms of international authority under the language of global management and humanitarianism is particularly prescient here (Nesiah, 145). By formalizing subordination through institutional architecture and managerial ‘oversight’, the “Board of Peace” does exactly this. As the entity that will “set the framework and handle the funding,” it reconfigures Gaza’s future as an international project managed by representatives of former imperial capitals. This reflects a linguistic and political logic of an international body of economically and financially ‘sophisticated’ States overseeing a supposedly unready people until it meets Western benchmarks of development. The Board’s authority to determine funding and redevelopment ensures that the political economy is directed solely by external actors. Thus, Point 9 embeds a permanent political economy of dependency beneath an illusion of temporary assistance and guidance.

The promise to “create modern and efficient governance that serves the people of Gaza and is conducive to attracting investment” further reveals how neoliberal logics are sewn directly into this neo-imperial vision. The invocation of “modern” and “efficient” governance frames market rationality as the universal metric of progress, which converts sovereignty into an investment opportunity. Palestine’s political autonomy thus risks subordination to international investor confidence.

Thus, Point 9 of the peace deal’s text, structure, and logic is a technology and construction of imperialist domination. The Palestinians appear only as beneficiaries of governance, never as the authors of it. As such, Point 9 not only ignores principles of self-determination and inclusivity but also actively works to defeat them. The cumulative result is a neo-imperial legal order that reproduces, through the expressions of expertise and supervision, the same imperial relations that have always been in place.

The neo-imperial logic of Point 9 thus violates the foundations of the jus in interregno. Testing Point 9 against specific rules of the jus in interregno further reveals that Trump’s plans are also unlawful under international law.

The Transitional Arrangement’s Violations of Restrictions Ratione Materiae and Prohibitions on External Influence

De Groof identifies two sets of rules under the jus in interregno. The first set of rules consists of limits ratione temporis and ratione materiae to the TG (p. 199). This means that the existence of the TG must be temporary, and that the scope of its work must be strictly transitional in nature. Though Point 9 notes the ‘temporary’ nature of the TG, the scope of its powers is undoubtedly overbroad.

De Groof finds that, in relation to limitations ratione materiae, the scope of work of a transitional authority is restricted to “[preparing] for the future without entrenching it” (p. 218). In concrete legal terms, this means that the TG must not make decisions effectuating permanent change. Trump’s Point 9, however, does exactly that. As we have already argued, Point 9 entrenches economic dependency and commits Gaza to an economic future to be determined by a Board of Peace contemplated to be dominated by foreign heads of State to the exclusion of meaningful Palestinian representation. Such entrenchment consequently violates TG’s ratione materiae limitations, especially considering that “fundamental state transformation choices” which involve “substantive decision-making” such as long-term investment decisions are beyond the scope of transitional work (De Groof, p. 270). The mandate of controlling economic development and making investment decisions also means that the transitional authority is empowered to enter into politico-economic alliances and treaties. This would also breach rationae materiae restrictions since “the power to conclude political or alliance treaties is arguably limited during the interregnum” (De Groof, p. 270).

These violations of the ratione materiae restrictions are compounded and exacerbated when considering Point 9’s constitution of the “Board of Peace” as the transitional authority. It is unclear whether Point 9 contemplates any Palestinian representation on this board. The explicit mention of Palestinian representation on the ‘apolitical Palestinian committee,’ contrasted against the absence of any such contemplation and explicit reference to foreign heads in relation to the board is, however, indicative of the lack of any meaningful Palestinian representation on this board, if at all. We have already demonstrated how this neo-imperialist setup deeply affronts the principles of inclusivity and self-determination in the transitional process in the abstract. A transitional authority constituted as such also specifically violates the second set of rules of the jus in interregno.

As a starting point, all external actors must respect ratione materiae restrictions discussed above. Therefore, external actors are also bound by the first set of rules restricting the scope of TG. This means that “[e]xternal actors are barred from influencing TG with a view to leaving a definitive imprint on the post-transition stage” (De Groof, p. 296). As we already explained, the transitional authority’s economic mandate would inevitably lead to a definitive imprint on Gaza’s economic future. But even if the proposal is amended to limit or decentralise economic and development-related decisions, the “Board of Peace” is nonetheless stillborn. The second set of rules identified by De Groof – limiting the role of external actors – includes the “prohibition on externally imposing transitional governance” (p. 286) even if such imposition is consensual. This means that external actors are limited to only providing ‘assistance’ to TG and cannot create or be the transitional authority itself, even with consent, since this would be incompatible with the principle of self-determination. The “Board of Peace” then undeniably breaches this prohibition, for it is a transitional authority chaired and dominated by external actors and foreign heads of states. As such, the entire form and locus of external intervention envisaged under Point 9 violates the jus in interregno.

Conclusions

Trump’s 20 Points, and particularly Point 9, must thus not be accepted as the framework for peace in Palestine, as they represent an opportunistic neo-imperialist conquest laundered as institutional peacebuilding. Any meaningful conception of ‘peace’ anywhere must commit itself to the rules of international law and its promise of self-determination; and Palestine is no exception. Therefore, though Trump’s deal may have ended a devastating humanitarian crisis, it must be acknowledged and rejected for what it is: a neo-imperialist fantasy unlawful under international law.