Israel – Hamas 2023 Symposium – After the Conflict: A UN Transitional Administration in Gaza?

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| Nov 17, 2023

Transitional administration

Recent reporting around potential international involvement in the management of post-conflict Gaza has focussed on the idea of a multinational—perhaps a UN—peacekeeping force. Although there is little detail available beyond the fact that the United States would support but not contribute forces to any such force, there is a long history to peacekeeping operations in the region.

The first UN Emergency Force (UNEF I) established in 1956 to monitor the armistice along the Israel-Egypt border was a UN General Assembly (UNGA) mission, ending with the Six Day War in 1967. The UN Security Council (UNSC) mandated UNEF II following the Yom Kippur War in 1973, withdrawing in 1979. In parallel, the UNSC has created and evolved: the UN Truce Supervision Organisation (1948–ongoing); the Israel-Syria focussed UN Disengagement Observer Force (1974–ongoing); and the Israel-Lebanon focussed UN Interim Force in Lebanon (1978–ongoing). Additionally, the treaty-based Multinational Force and Observers (1979–ongoing) operates in the Sinai area.

Each of these forces has or had ceasefire or disengagement monitoring at the core of its mandate. Additionally, other UN agencies engaged with specific sectoral mandates have had a long-term presence in the region: The UN Special Coordinator for the Middle East Peace Process; the UN Relief and Works Agency for Palestine Refugees in the Near East; along with UNESCO, the UN World Food Program, and other agency regional programs.

However, there have also been more comprehensive proposals for international engagement in the broader Palestine region. The UNGA endorsed the 1947 UN Partition Plan for Palestine. Implementation challenges coupled with the approaching end of the British Mandate led to a 1948 U.S. proposal for UN Trusteeship over Palestine to bridge the gap until the Partition Plan could be actioned. However, neither was implemented as the 1948 war and subsequent conflicts have created new polities, boundaries, societies, and concerns.

In this post, I seek to briefly describe the three basic models for UN transitional administration, along with some of the pros and cons of each in respect of Gaza. I then briefly note some common additional factors that would need to be accounted for (regardless of the model adopted) should a UN transitional administration for Gaza be considered.

UN Transitional Administration

Subsequent to the 1947 plan, the United Nations has gained a wide range of practical experience in designing, implementing, and managing comprehensive plans for transitioning territorial entities from a deeply unsatisfactory and generally terminal trajectory towards a more stable and secure future. The results have been mixed, but somewhat successful in terms of their mandated objectives.

Given that almost all parties agree that a return to the status quo in Gaza is not an option, perhaps the potential for a moderately successful transition to something else is worth considering. A UN transitional administration is one potential path to that end. There have been three broad models for such Transitional Administrations. However, each displays benefits and challenges in terms of potential utility for a future UN transitional administration in Gaza.

Model 1: UNGA Temporary Executive Authority

The UN Temporary Executive Authority (UNTEA) was a short term, UNGA-authorised mission in West New Guinea (now Indonesian Papua), mandated to oversee the transition of sovereignty and management of this territory from The Netherlands to Indonesia, in line with an agreement between these two States. UNTEA was accompanied by a UN Security Force (UNSF), which was responsible for internal security in support of the UNTEA administration. This short, seven-month mission was jointly financed by The Netherlands and Indonesia and provided an interim administrative function that transitioned political institutions and public services including policing, health, and the judiciary, from Dutch leadership to UN leadership, and then to Indonesian leadership from May 1, 1963.

The UNTEA model holds some potential utility when considering Gaza. Perhaps the most relevant factor is that as a UNGA mission, it could sidestep potential UNSC vetoes if these were likely. Also, if there were an already identified “successor” administration in the wings—as Indonesia was for UNTEA—the transition could be relatively quick, although the seven-month life of UNTEA and its UNSF would arguably be unrealistic.

However, the utility of a UNTEA model is deeply hampered by some of its inherent challenges when considering Gaza. First, UNTEA was based on a Netherlands–Indonesia agreement as to the fact and mode of transition, including—explicitly—agreement that the UN Secretary General would create UNTEA and the UNSF to serve the purposes envisioned in the agreement. There is no equivalent agreement in place between (for example) Israel and the Palestinian Authority and an UNTEA model would require that one be negotiated. Furthermore, who would the temporary UN executive authority be transitioned to? The Palestinian Authority? A new, Gaza-specific authority? And if the latter, how is that new authority to be identified or determined? If the answer is elections, then this is already a process well beyond the UNTEA experience and will inevitably extend the required timeline for UN executive authority.

Alternatively, the mechanisms of the Uniting for Peace Resolution (as for UNEF I) might be employed to establish a UNGA-endorsed arrangement. However—as also for UNEF I—the consent of the “territorial” authority would be required in terms of facilitating the deployment and operations necessary to the mission. Who would that be? Who could that be?

Additionally, the use of force options available to UNGA missions are traditionally limited to the self-defence of people. Authorisations for use of force in “defence of the mandate” are a post-1970s expansion of the UN approach to self-defence and would be difficult to negotiate through a UNGA process. Were all parties to agree to a UNGA “temporary authority” in Gaza, it might be workable to limit the use of force to basic policing powers. However, if violent elements remained within Gaza, the need for more robust disarmament rules of engagement would certainly pose real challenges for the necessary effectiveness and legitimacy of an UNGA-authorised force.

Model 2: UNSC Chapter VI Transitional Administration

The UN Transitional Administration in Cambodia (UNTAC) (1992-1995) was a UNSC-mandated mission, authorised under Chapter VI of the UN Charter. It was established to implement the UN’s tasks as per the 1991 Paris Agreement, which created a Supreme National Council (SNC) with representatives from the main contesting groups in Cambodia. This SNC then acted as the representative of Cambodian sovereignty for the purposes of providing consent for the deployment of the UN Chapter VI operation into Cambodian territory, and to its mandate. UNTAC’s key task was to organise and administer elections so that a new Cambodian government could take over, but its mandate also included acting as the governance authority for Cambodia in the transitional period and—to the extent possible—the security and disarmament force.

This model has potentially more relevance for a UN transitional administration in Gaza than the UNTEA model. On the positive side, the specific UNTAC focus on preparing for and administering a free and fair election has direct relevance for Gaza, although this core mandate has been accompanied by more robust powers in subsequent Chapter VII transitional administrations. The pre-agreed timescale—just a few years—is also a useful indicator, given that it was a timeline in effect set by the “sovereign” (the SNC) and agreed by the implementing party (the UN).

On the negative side, however, the UNTAC experience of trying to keep within the limits set by SNC consent, and the Chapter VI approach to use of force, when carrying out disarmament and demobilisation and in terms of enforcing the ceasefire, was mixed at best. Additionally, as a Chapter VI operation, much effort was necessarily expended in creating “consent” from the territorial “sovereign”—but who or what that “sovereign” is or might be in the case of Gaza is far from clear. Could a manufactured, temporary sovereign representative body—such as the SNC in the Cambodia situation—be created, or would this fall afoul of politics from the outset, thus delaying even an initial enabling and framework agreement to deploy a Chapter VI operation?

Finally, if disarmament and demobilisation of the multiple armed groups inside Gaza is a mandated task—as it would have to be—the use of force rules of engagement available for Chapter VI operations will inevitably and quickly be exposed as completely inadequate. This is clear from reports into UNTAC, the United Nations Assistance Mission for Rwanda (UNAMIR), and the United Nations Protection Force (UNPROFOR).

Model 3: UN Security Council Chapter VII Transitional Administration

The most robust model for UN transitional administration is a UNSC-mandated Chapter VII mission. There have been three: The UN transitional administration for Eastern Slavonia, Baranja and Western Sirmium (1996-1998); the UN Interim Administration Mission in Kosovo (1999-ongoing, but now with a much reduced mandate); and the UN Transitional Administration in East Timor (UNTAET) (1999-2002).

There are three key features of the Chapter VII model that tend to suggest this would be the most logical option for a Gaza transitional administration. The first is that there is no legal requirement for the territorial State to consent to the deployment and mandate of the operation. In the situation of Gaza, where it is not clear which State(s) might be seen as responsible for the territory, this absolution from the need to secure such formal consent could be a positive. This said, consultation with relevant and willing States and entities is a sensible preliminary feature of Chapter VII transitional administration mandates. In establishing UNTAET, for example, the preamble to UNSCR 1272 affirmed at several points the agreement of Indonesia (and Portugal) to the UN operation. Therefore, while a Chapter VII operation would not require consent, it could nevertheless seek to pre-embed regional buy-in via consultations with Israel, Egypt, the Palestinian Authority, the Arab League, and so on. But this is a political necessity, not a legal requirement.

The second useful feature is that Chapter VII “all necessary means” mandates both facilitate and signal the availability of more robust uses of force, including for mandate enforcement and—should it be necessary—combat operations. Where disengagement and armed group disarmament, or the need to deal with disaffected factions unwilling to surrender their arms, is a likely contextual factor, the availability of more robust Chapter VII rules of engagement should be seen as a critical enabler.

The third feature is that a Chapter VII mandate gives the transitional administrator, the force commander, and the mission as a whole greater freedom and scope to act. This is for two main reasons. First, Chapter VII administrators and force commanders report to the UNSC and the Secretary-General without also being simultaneously beholden to territorial entity representatives because the mission’s presence is founded in that “sovereign’s” consent. This difficult situation proved an ongoing challenge for the (Chapter VI) UNTAC administrator and force commander, who were also responsible to the treaty-based SNC (and thus its factional politics and armed group manoeuvring).

The second reason is that a Chapter VII mission’s mandate is created by, and can be readily evolved by, the UNSC. That is, the mandate is not additionally subject to further situational treaty-based limitations or constraints on authority and freedom of action as demanded by the territorial State(s). The need to work within often quite rigid (non-UN set) parameters, as established by the relevant States in their foundational agreements (and thus binding upon the UNSC using its Chapter VI powers, or on the UNGA, as the case may be), created fundamental operational constraints for both UNTAC (via the Paris Agreement), and UNTEA (via the Dutch-Indonesia Agreement).

Some Common Considerations Regardless of the Model Adopted

Regardless of the approach taken to a UN Gaza transitional administration, should this emerge as a post-conflict option, there are a great many common factors that also need to be taken into account in mission design and planning. I will briefly mention three.

First, in every case noted above, the transitional administration or temporary executive authority was preceded by some form of stabilisation or ceasefire observation force, pre-conditioned on an already agreed ceasefire or disengagement plan. For UNTEA, a small observer force deployed prior to the mission, and the UNGA awaited confirmation of the disengagement and withdrawal of Dutch and Indonesian forces before deploying UNTEA and the UNSF. The UN Advance Mission in Cambodia confirmed basic adherence to the agreed ceasefire before UNTAC deployed. In East Timor, a “green helmet,” UNSC-authorised stabilisation force (The International Force East Timor or INTERFET) secured the territory prior to the UNTAET deployment. In each case, there was a ceasefire or disengagement plan in place, which was then monitored or guaranteed by a precursor force. This must be a non-negotiable precondition to any transitional administration.

Second, any Gaza transitional administration will need to design, manage, and supervise an electoral process. This is essential because—as with the examples above—it is necessary to identify who the UN’s temporarily adopted administrative authority will ultimately transition to. In the UNTEA case, there was a readily identified successor administration—Indonesia. In other cases, such as UNTAC and UNTAET, there was no identifiable new administrator in waiting, and thus elections were held, and institutions evolved or were created to identify and empower that new administration. In this regard, it is thus essential that the administered population have a stake in the design of the institutions that will administer them post-handover. As the history of transitional administrations indicates, developed rather than imposed institutions are a necessity for (but not a guarantee of) success.

Finally, the international community should anticipate that even once a UN transitional administration has handed over to a new local authority, an ongoing presence will be necessary to provide institutional mentoring (e.g. for police, justice, bureaucracy) and economic and social support. On occasion this ongoing engagement may also require re-deployment of international forces to assist in stabilisation when challenges spike, as was the case with Timor Leste in relation to instability associated with a subsequent election and a battle for influence between the police and the armed forces.

Conclusion

The political and historical context of the Gaza conflict tends to suggest that achieving a preconditional ceasefire, and then preliminary agreement to a meaningful UN transitional administration option, is likely to be challenging. Furthermore, this political and historical context also means that that a Gaza UN transitional administration—if one were contemplated—would likely need to be quite bespoke. Nevertheless, any such mission would not be designed in a vacuum; past UN transitional administration experience offers both lessons and models that might be usefully considered.

***

Rob McLaughlin is a Professor of Military and Security Law at UNSW Canberra and a Professor of International Law at Australian National Centre for Ocean Research and Security.

 

 

 

Photo credit: Cpl Watson RLC, UK Ministry of Defence 2023

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