President Trump’s proposal for the United States to take over Gaza and remove some two million Palestinians who live there would unquestionably be a severe violation of international law, experts say. As further details of his proposal emerge, the list of potential violations becomes even clearer.
In a Fox News interview on Monday, Mr. Trump said that under his plan, Gaza’s Palestinians would not be allowed to return to the territory, a violation in its own right of an important principle of international law, as well as a component of other international crimes.
His latest comments undermine his aides’ attempts to walk back his initial proposal by claiming he was actually suggesting a temporary, voluntary evacuation of Gaza’s population — a scenario that could have been legally defensible.
“Trump is just casually making major international crimes into policy proposals,” said Janina Dill, the co-director of the Oxford Institute for Ethics, Law and Armed Conflict. “He just normalizes violating, or proposing to violate, the absolute bedrock principles of international law.”
Forced deportation
The forced deportation or transfer of a civilian population is a violation of international humanitarian law, a war crime and a crime against humanity.
The prohibition has been a part of the law of war since the Lieber Code, a set of rules on the conduct of hostilities that dates back to the U.S. Civil War. Forced deportation is also prohibited by multiple provisions of the Geneva Conventions, which the United States has ratified, and the Nuremberg Tribunal after World War II defined it as a war crime.
The Rome Statute that established the International Criminal Court lists forcible population transfers as both a war crime and a crime against humanity. And if the displacement targets a particular group based on their ethnic, religious or national identity, then it is also persecution — an additional crime.
(Because the International Criminal Court recognizes a state of Palestine as a party to the court, it has jurisdiction over those crimes if they take place within Gaza. That is true even if they are committed by citizens of the United States, which has never adopted the Rome Statute and so is not a member of the court.)
When Mr. Trump was asked during a Feb. 4 news conference how much of Gaza’s population he wanted to move, he said, “all of them,” adding, “I would think that they would be thrilled.” When he was pressed on whether he would force them to go if they did not want to, he said, “I don’t think they’re going to tell me no.”
U.S. allies and foes around the world, including France, Germany, Ireland, Spain, Turkey, Russia, and China, immediately and unequivocally condemned Mr. Trump’s proposal. “In the search for solutions, we must not make the problem worse,” said António Guterres, the U.N. secretary general. “It is vital to stay true to the bedrock of international law. It is essential to avoid any form of ethnic cleansing.”
The right to return
Mr. Trump’s response to Fox News, saying that he did not plan to allow Gaza’s population to return, nullifies what otherwise might have been the strongest legal defense of his plan: It is legal under the laws of war to temporarily evacuate civilians for their own safety.
Even with a cease-fire in place, Gaza remains extremely dangerous to civilians because of unexploded bombs, many of them hidden beneath rubble or underground, as well as catastrophic damage to civilian necessities like shelter, water, and power.
However, Mr. Trump made clear on Tuesday that he does not intend to allow the Gazan population to return, even after those dangers have been cleared and the territory is once again safe, which would mean his plan could not be legally justified as a temporary safety measure.
The “right of return,” the principle that all people have the right to enter their own country, is enshrined in multiple treaties, including the International Covenant on Civil and Political Rights, which the United States has signed and ratified.
That principle has also been one of the most contentious issues of the Israeli-Palestinian conflict.
Israel has refused to allow the return of the approximately 700,000 Palestinians who fled or were forced out during the 1948 war that followed the creation of an independent Jewish state — a mass displacement that the Palestinians refer to as the “nakba,” or catastrophe.
The question of whether those refugees and their descendants, now numbering in the millions, will be permitted to return to the territory that is now Israel has been one of the thorniest points of negotiation in the decades of peace talks that have sought to resolve the conflict.
In addition, right-wing Israelis have waged a decades-long effort to build settlements within the West Bank and Gaza in order to lay claim to that land as part of Israel rather than a future Palestinian state.
Seizure of territory
On Sunday, Mr. Trump reiterated his proposal for the United States to take over Gaza, telling reporters on Air Force One that the strip of land was “a big real estate site” that the United States was “going to own.”
It would be a severe violation of international law for the United States to permanently take over the territory of Gaza. The prohibition against a nation forcibly annexing territory is one of the most important and foundational principles of international law.
“There’s a clear rule,” said Marko Milanovic, a professor of international law at the University of Reading in England. “You cannot conquer someone else’s territory.”
It is rare for states to violate that rule. When they have, as in the case of Russia’s invasion of Ukraine, they have tended to claim at least some pretense of legality. Russian President Vladimir Putin claimed that the invasion was necessary to protect the Russian-speaking population of eastern Ukraine from genocide by the Ukrainian government. Although that assertion was false, it paid lip service to the deeper principle that annexation for its own sake would be illegal.
In the case of Gaza, the specifics of that violation would depend partly on whether Palestine is considered a state, said Marko Milanovic, a professor of international law at the University of Reading in England. The United Nations recognizes Palestine as a permanent observer state, and 146 out of 193 U.N. member states recognize Palestinian statehood, but the United States and Israel do not.
But even if Gaza is not considered part of a state, U.S. annexation of the territory would still violate the civilian population’s right to self-determination. The International Court of Justice has ruled twice that the Palestinian people are entitled to that right within Gaza.
“If you take it without their consent, you’re violating their right to self-determination,” Professor Milanovic said. “There’s really no doubt about that.”
The role of international law
Mr. Trump seemed unconcerned with how his proposal might be viewed by the institutions that underpin the international legal system, and he has shown disdain for those institutions.
Last week, he announced sanctions against the International Criminal Court. On Tuesday, he signed an executive order calling for a general review of U.S. funding for and involvement in the United Nations, raising questions about the U.S. commitment to that global body. He also withdrew the United States from the U.N. Human Rights Council.
Even if Mr. Trump’s Gaza plan ultimately does not move forward, his attitude toward international law could have serious consequences for U.S. interests around the world.
By appearing to disregard the value of those rules, Mr. Trump could send a message that he is not strongly committed to defending them in other contexts, such as a potential Chinese invasion of Taiwan, Professor Dill said.
“If we live in a world where conquest is normalized and the legal rule is simply set aside, we live in a completely different world, in a world that’s incredibly dangerous also for Americans,” she said.
