Yearbook Of Islamic And Middle Eastern Law

Volume 11 20042005 Eugene Cotran And Martin Lau

download

https://ebookbell.com/product/yearbook-of-islamic-and-middle-
eastern-law-volume-11-20042005-eugene-cotran-and-martin-
lau-1880918

Explore and download more ebooks at ebookbell.com

Here are some recommended products that we believe you will be
interested in. You can click the link to download.

Yearbook Of Islamic And Middle Eastern Law 20022003 Eugene Cotran

https://ebookbell.com/product/yearbook-of-islamic-and-middle-eastern-
law-20022003-eugene-cotran-1397882

Yearbook Of International Humanitarian Law Volume 24 2021 Cultures Of

International Humanitarian Law Heike Krieger

https://ebookbell.com/product/yearbook-of-international-humanitarian-
law-volume-24-2021-cultures-of-international-humanitarian-law-heike-
krieger-48902012

Yearbook Of Astronomy 2023 Brian Jones

https://ebookbell.com/product/yearbook-of-astronomy-2023-brian-
jones-48941666

Yearbook Of Tourism Statistics Data 2014 2018 2020 Edition 1st Edition
World Tourism Organization

https://ebookbell.com/product/yearbook-of-tourism-statistics-
data-2014-2018-2020-edition-1st-edition-world-tourism-
organization-49113512
Yearbook Of The Maimonides Centre For Advanced Studies 2016

https://ebookbell.com/product/yearbook-of-the-maimonides-centre-for-
advanced-studies-2016-50988386

Yearbook Of Private International Law Volume Xvii Yearbook Of Private

International Law Vol Xvii 20152016 Andrea Bonomi Editor Gian Paolo
Romano Editor

https://ebookbell.com/product/yearbook-of-private-international-law-
volume-xvii-yearbook-of-private-international-law-vol-
xvii-20152016-andrea-bonomi-editor-gian-paolo-romano-editor-50989768

Yearbook Of Private International Law Volume Xxii Yearbook Of Private

International Law 20202021 Andrea Bonomi Editor Gian Paolo Romano
Editor Ilaria Pretelli Editor

https://ebookbell.com/product/yearbook-of-private-international-law-
volume-xxii-yearbook-of-private-international-law-20202021-andrea-
bonomi-editor-gian-paolo-romano-editor-ilaria-pretelli-editor-50989770

Yearbook Of Private International Law Yearbook Of Private

International Law Vol Xxiii 20212022 Andrea Bonomi Editor Ilaria
Pretelli Editor Gian Paolo Romano Editor

https://ebookbell.com/product/yearbook-of-private-international-law-
yearbook-of-private-international-law-vol-xxiii-20212022-andrea-
bonomi-editor-ilaria-pretelli-editor-gian-paolo-romano-editor-50989772

Yearbook Of Private International Law Volume Xvi Yearbook Of Private

International Law Vol Xvi 20142015

https://ebookbell.com/product/yearbook-of-private-international-law-
volume-xvi-yearbook-of-private-international-law-vol-
xvi-20142015-50989774
Yearbook of Islamic and
Middle Eastern Law

Volume 11
2004–2005
 CIMEL
Centre of Islamic and Middle Eastern Law
School of Oriental and African Studies, University of London

Chairman
HH Professor Judge Eugene Cotran

Directors
Mr Ian Edge, Barrister and Lecturer in Law, SOAS
Mr Nick Foster, Solicitor and Lecturer in Law, SOAS

Deputy Director
Dr Lynn Welchman, Senior Lecturer in Law, SOAS

The Management Committee

The Chairman
The Directors
The Deputy Director
Professor M.A.S. Abdul Haleem, King Fahd Professor of Islamic Studies, SOAS; and Director, Islamic Stu-
dies Centre, SOAS
Dr Mark Hoyle, Barrister and Editor, Arab Law Quarterly
Mr Mushtaq Khan, Associate Dean of Research for the Faculty of Law and Social Science; Senior Lecturer
in Economics, SOAS
Dr Martin Lau, Barrister-at-Law, Reader in Law, Department of Law, SOAS
Professor Michael Palmer, Professor of Law and Director of the Centre of East Asian Law, SOAS
Professor Iain Scobbie, Sir Joseph Hotung Research Professor in Law, Human Rights and Peace Building in
the Middle East, SOAS

The Advisory Council

The Chairman
The Director
The Deputy Director
The Management Committee
HE Dr Husain M.Al Baharna, former Minister of State for Legal Affairs, Bahrain
HE Judge Mohammed Bedjaoui, International Court of Justice, The Hague
Dame Elizabeth Butler-Sloss, President of the Family Division, Court of Appeal, England
Sir James Craig, former Ambassador of HMG to Saudi Arabia and Syria
Mr Michael Davies, Partner, Nabarro Nathanson, Solicitors
Sheikh Salah Al-Hejailan, President, Euro-Arab Arbitration Board of the Euro-Arab Arbitration System;
founder, Law Firm of Salah Al-Hejailan
Professor Enid Hill, Chairman, Department of Political Science, American University of Cairo
HE Judge Awn el-Khassawneh, International Court of Justice, The Hague
Professor Ahmed El-Kosheri, of Kosheri, Rashed & Riad of Cairo and ad hoc judge at the ICJ
Professor Chibli Mallat, Attorney and Professor of Law, Sir Joseph University, Beirut
Mr John Merrett, ICC Representative in the UK
The Hon. Mamdouh Mareé, Chief Justice, Supreme Constitutional Court, Egypt
Professor Abdullah An-Na'im, Professor of Law, Emory University, Atlanta, USA
Mr Richard Price, Partner, Clifford Chance, Solicitors
Dr Anis Al-Qasem, Barrister, Former Chairman, Legal Committee, Palestine National Council
Mr Nabil Saleh, Middle East Legal Consultant, Beirut and London
Dr Nageeb Shamiri, President, Criminal Chamber, Supreme Court of Yemen and Member of Yemen's
Supreme Constitutional Court
Dr Adel Omar Sherif, Deputy Chief Justice, Supreme Constitutional Court, Egypt
Lord Slynn of Hadley, Lord of Appeal in Ordinary, England
Dr Frank Vogel, Assistant Professor, Harvard Law School
HE Dr Ratib al-Wazani, former Minister of Justice, Jordan
Lord Woolf, Lord Chief Justice, England
Mr Hatem Zu'bi, Legal Counsel and Arbitrator, Bahrain and London
 Yearbook of Islamic and
Middle Eastern Law

Volume 11
2004–2005

General Editors
Eugene Cotran, LLD
Circuit Judge, Visiting Professor of Law, SOAS
Chairman, CIMEL
and
Martin Lau, MA, PhD
Barrister-at-Law, Reader in Law, Department of Law, SOAS
Assistant Editor
Victor Kattan, LLM (Leiden)
Visiting Research Fellow, British Institute of
International and Comparative Law
Published for
The Centre of Islamic and Middle Eastern Law
at the School of Oriental and African Studies
University of London

CIMEL

Leiden/Boston
Printed on acid-free paper

A Cataloging-in-Publication record for this book is available from the

Library of Congress

This Publication is to be cited as Yearbook of Islamic and Middle Eastern Law, Volume 11
(2004-2005)

ISBN 978 90 04 15148 2

ISBN 90 04 15148 6
© 2007 Koninklijke Brill NV
Koninklijke Brill NV incorporates the imprints Brill, Hotei Publishing,
IDC Publishers, Martinus Nijhoff Publishers and VSP.

www.brill.nl

This publication is protected by international copyright law.

All rights reserved. No part of this publication may be reproduced,
stored in a retrieval system, or transmitted in any form or by any
means, electronic, mechanical, photocopying, recording or otherwise, without
the prior permission of the publisher.
 Contents

Biographical Notes vii

Preface xi

Part I – Articles
An Intimate Disengagement: Israel’s withdrawal from Gaza, the Law
of Occupation and of Self-Determination 3
Iain Scobbie
From Beirut to Brussels: Universal Jurisdiction, Statelessness and the
Sabra and Chatila Massacres 33
Victor Kattan
United Kingdom Response to Terrorism and the Response of the
Courts to these Measures 83
Susan C. Breau
Corrie et al v Caterpillar: Litigating Corporate Complicity in Israeli
Violations of International Law in the U.S. Courts 97
Grietje Baars
Effective Legal Representation in“Shari’ah” Courts as a Means of
addressing Human Rights Concerns in the Islamic Criminal Justice
System of Muslim States 135
Mashood A. Baderin
Apostasy and Freedom of Religion in Malaysia: Constitutional
Implications 169
Pawancheek Marican and Mohamed Azam Mohamed Adil
Le Nouveau Code Marocain de la Famille: Une Réforme dans la
Continuité 205
Mohamed Loukili and Michèle Zirari-Devif
The Concept of mahr (Dower) in Islamic Law: The Need of Statutory
Recognition by English Law 219
Mohamed Jindani
Establishment of Islamic Courts in Egypt 229
Dawoud S. El-Alami
vi Contents

Part II – Country Surveys

Egypt – Kosheri, Rashed and Riad 241
Syria – Jacques el-Hakim 249
Jordan – Hamzeh Haddad 257
Lebanon – Dr. Nayla Comair Obeid 261
Libya – Mustafa El-Alem 279
United Arab Emirates – Terence Witzmann 285
Bahrain – Husain M. Al Baharna 293
Oman – Emma Block 301
Yemen – Nageeb Shamiri 307
Iran – M. A. Ansari-Pour 321
Morocco – Michèle Zirari-Devif 333
Tunisia – Afif Gaigi 343

Part III – Selected Documents

Text of the Iraqi Constitution 351
United Nations Security Council Resolutions regarding Iraq 373
United Nations Security Council Resolutions regarding Lebanon 379
Kingdom of Morocco – The Justice and Reconciliation Commission 391
Three-part Summary of the Final Report
Max Planck Institute Afghan Family Law Workshop Report 397
Martin Haars

Part IV – Selected Cases

Palestine: High Court of Justice, Constitutional Challenge No. 5/2005 407
Anis Al-Qasem
Pakistan: Legality of a Hisba Bill to introduce an Islamic Ombudsman
in the North-West-frontier Province 413
Makhdoom Ali Khan

Part V – Book Reviews

The Case of Ariel Sharon and the Fate of Universal Jurisdiction 465
Victor Kattan
Handbook on Protection of Palestinian Refugees in States Signatories
to the 1951 Refugee Convention 467
Victor Kattan
Honour. Crimes, paradigms and violence against women 471
Dr. Martin Lau

Index 473
 vii

Biographical Notes

Mohamed Azam Mohamed Adil has an LLM and a PhD from and is a Lecturer at
the Centre for Islamic Thought & Understanding (CITU) UiTM, Shah Alam,
Selangor, Malaysia.

Husain M. Al Baharna gained a doctorate in international law from the University

of Cambridge, and is a Barrister-at-Law of Lincoln’s Inn and a member of the Bahrain
Bar Society. He is a member of both the UN International Law Commission and
the International Council for Commercial Arbitration (ICCA). He is the former
Minister for Legal Affairs in the State of Bahrain, and is now an attorney and legal
consultant in Bahrain. He is also a registered arbitrator.

Anis Al-Qasem (LLM, PhD), a Barrister-at-Law of Lincoln’s Inn, was formerly Legal
Adviser to the Government of Libya and Chairman of the Libyan Petroleum
Commission during the monarchy. He is presently a practising lawyer and consultant
in London in the laws of the Middle East, a licensed legal consultant in Dubai, a
former visiting examiner and Associate Fellow of the Institute of Advanced Legal
Studies, University of London, and Chairman of the Legal Committee of the
Palestine National Council.

M. A. Ansari-Pour (LLB, LLM, PhD) was a judge in the Iranian judiciary before
coming to England to study for the LLM and a doctorate. He is the Chairman of
the Iranian Law Institute and he has written widely (including both articles and
books) in English and Persian. He is now a Legal Adviser and Attorney in Iran.

Grietje Baars is a Visiting Researcher at Birzeit University’s Institute of Law, where

she is setting up a research unit on international criminal law. She teaches
international humanitarian law and is the co-founder of the first university law clinic
in Palestine, at Al Quds University. Grietje holds an MA in English Literature from
Utrecht University and an LLM in international law from University College London,
where she is currently completing her PhD on corporate liability in international
criminal law. She has presented papers at many international conferences on the
subject. Prior to moving to the Middle East, Grietje qualified as a U.K. solicitor and
practised commercial law with a City law firm and a multi-national company.

Mashood A. Baderin (LLM, PhD (Notts.) is Professor of Law at the School of Law,
Brunel University, Uxbridge, West London. He is an expert in international human
rights and Islamic law. He is the author of International Human Rights and Islamic
Law (OUP, 2003, 2005) and a founding co-editor of the Muslim Journal of Human
Rights.
viii Biographical Notes

Emma Block is a Senior Assistant with the Oman office of Trowers & Hamlins.
Emma has worked on a wide range of banking and finance transactions. She is
also admitted to practise law in California and has experience of acting for both
lenders and borrowers in respect of secured and unsecured loans in the U.K., United
States and Oman.

Susan C. Breau, formerly the Dorset Fellow in Public International Law at the British
Institute of International and Comparative Law, is a Reader in Law at the University
of Surrey conducting research on the International Protection of Human Rights.
She was awarded her doctorate from the London School of Economics and Political
Science for her research into humanitarian intervention. In her academic career,
she has taught at Queen’s University Belfast, the London School of Economics,
Pepperdine University and King’s College London. Dr. Breau practised as a Barrister
and a Solicitor in Canada for 18 years. She is the author of Humanitarian Intervention:
The United Nations and Collective Responsibility (Cameron May in 2005) and is currently
writing a book entitled Sovereignty as Responsibility: The International Law implications
of the Responsibility to Protect.

Nayla Comair-Obeid is Doctor of Laws of the Pantheon-Assas University, Paris,

Attorney at the Beirut Bar, and Professor of the Lebanese Faculty of Law. Her
speciality is international commercial law, in which connection she has made
comparative studies in the field of law of arbitration, particularly arbitration in
Arab countries. This research has led her to make a detailed comparative study of
the civil and commercial codes of the states of the Middle East. She is the author of
important works in the field, notably Les contrats en droit musulman
des affaires (Economica, Paris, 1995 ); The Law of Business Contracts in the Arab Middle
East (Kluwer, 1996); and Arbitration in Lebanese Law: A Comparative Study (Delta,
1999).

Eugene Cotran (LLD) has been a circuit judge in England since 1992. He is a Visiting
Professor of Law at the School of Oriental and African Studies, University of London,
and the Chairman of the Centre of Islamic and Middle Eastern Law within the
School. He was formerly a practising Barrister-at-Law in England and the
Commonwealth, a Law Commissioner and High Court judge in Kenya and an
international arbitrator. He is also a Board Member of the Palestinian Independent
Commission for Citizens’ Rights. He has produced numerous publications on the
laws of Africa, the Commonwealth, the Middle East and international and
immigration law.

Dawoud S. El-Alami has a Licence en Droit from Cairo University and a doctorate
from Glasgow University. He was formerly a Research Fellow at the universities of
Kent and Oxford and an Assistant Professor, Al al-Bayd University in Jordan. He has
practised law in Egypt and Saudi Arabia and is now a lecturer in Islamic Studies at
the University of Wales at Lampeter. He has various publications on the personal
status laws of the Arab countries.

Mustafa El-Alem (LLB, LLM) is a Libyan practising lawyer and legal adviser and a
member of the Libyan Bar Association. He is a member of the Board of Directors of
the Arab Association for International Arbitration and the Libyan member of the
Alliance of Arab Lawyers and a full Member of the Euro-Arab Arbitration Board in
London.
Biographical Notes ix

Jacques el-Hakim (LLD) is agrégé from the French Faculties of Law and has graduated
in law in Syria, Lebanon and the United States. He is a member of the Damascus
Bar and is currently a Professor and Head of the Commercial Law Department,
Faculty of Law of Damascus University and an Attorney-at-Law. He has produced
several publications on Syrian and other laws and on economics.

Afif Gaigi is Avocat à la cour de cassation, Tunis; Enseignant universitaire.

Martin Haars studied at the Universities of Heidelberg, Leuven and Hamburg, where
he obtained a “Bac. Jur.” in 2003 and a “Mag. Jur.” in 2005. Currently, he works as a
legal research assistant at the Max Planck Institute of Comparative and Private
International Law in Hamburg, Germany, and does research for his doctoral thesis.

Hamzeh Haddad was educated at Cairo University, from which he graduated as a

Doctor of Laws, and the University of Bristol, where he gained a doctorate. He is
the author of numerous books and articles and a speaker at many regional and
international conferences. He is a member of the Jordan Bar Association and of
the Arbitration Board of the Arab-Swiss Chamber of Commerce, and a practising
attorney and arbitrator.

Mohamed Jindani was born in Zanzibar and first came to England in 1952. He has
been a practising lawyer for over 35 years, first as a Barrister then as a Solicitor. In
1980, he was appointed a part-time immigration adjudicator by the Home Office.
He enrolled for the degree of Master of Laws in 1993, graduated with Merit and
accepted the position of Visiting Lecturer at the School of Oriental and African
Studies, University of London (SOAS). In 2006, Mohamed was awarded the degree
of Doctor of Philosophy by the University of Wales. He hopes to convert his thesis,
“The Concept of Dispute Resolution in Islamic Law” into a book.

Victor Kattan is the Assistant Editor of this Yearbook, a Visiting Fellow at the British
Institute of International and Comparative Law and formerly a Research Associate
at the Institute for Advanced Legal Studies. He graduated from Brunel University
with an honours degree in Business and Finance law and with a Masters degree in
European Community Law from Leiden University. His current areas of interest
include the law of self-determination, U.N. law and international criminal,
humanitarian and human rights law. He has a particular interest in the question of
Palestine and is writing a book on the conflict from an international law perspective.
His previous publications include scholarly articles in the Palestine Yearbook of
International Law, the Nordic Journal of International Law and the Mediterranean Journal
of Human Rights.

Makhdoom Ali Khan is a Senior Advocate of the Supreme Court of Pakistan. He

has been the Attorney General for Pakistan since September 2001. He is a Graduate
in Law from the University of Karachi, Pakistan and the University of Cambridge
and obtained his LLM from the London School of Economics and Political Science.
He enrolled as an advocate at the High Court of Sindh in 1977 and became a
Barrister at Law in England and Wales in 1978.

Martin Lau is a Barrister and Reader in Law at the School of Oriental and African
Studies, University of London, where he teaches South Asian law.
He studied at the University of Heidelberg, Germany, and at the University
x Biographical Notes

of London. He has published extensively on South Asian law and frequently acts as
an expert in proceedings for the International Chamber of Commerce and English
courts. He was the Chair of the Department of Law at the School of Oriental and
African Studies (SOAS), University of London, from 2002 until 2005.

Mohammed Loukili is a Professor at the Faculty of Legal, Economic and Social

Sciences, University Mohammed V, Rabat-Agdal, Morocco. He is also a consultant
for various national and international organisations.

Pawancheek Marican graduated with an LLB (Hons.) and an LLM from Malaya,
and is an Advocate and Solicitor at the High Court of Malaya.

Iain Scobbie is the Sir Joseph Hotung Research Professor in Law, Human Rights
and Peace Building in the Middle East at the School of Oriental and African Studies,
University of London. Professor Scobbie was formerly Reader in International
Law at the University of Glasgow, and studied at the Universities of Edinburgh and
Cambridge, and at the Australian National University. His most recent publications
include scholarly papers in the American Journal of International Law, Law and Practice
of International Courts and Tribunals, and the Chinese Journal of International Law. He
recently contributed an article, “Wicked heresies or legitimate perspectives? Theory
and international law”, in Evans, M. (Ed.), International Law (Oxford: OUP, 2006,
2nd Edn.).

Nageeb Shamiri (LLD) is a member of the Supreme Judicial Council of Yemen and
of the Constitutional Division of the Supreme Court of Yemen. He was formerly
the Chief Justice of South Yemen. He is the Chairman of the Judicial Inspection
Commission, the Secretary of the Law Reform Unit at the Ministry of Legal and
Parliamentary Affairs and contributed to the drafting of the Republic’s main unified
laws. He is a member of the National Committee regarding the Arbitration with
Eritrea, and of the Joint Commission with Saudi Arabia regarding Maritime
Boundaries.

Terence Witzmann is Head of Middle East Litigation and Dispute Resolution

Practice, Clifford Chance, Dubai.

Michèle Zirari-Devif is a Professor at the Faculty of Legal, Economic and Social

Sciences, University Mohammed V, Rabat-Agdal, Morocco. She is also a legal
consultant for various organisations, including FAO and UNICEF and a member of
the National Counsel of Transparency-Maroc.
 xi

Preface

In last year’s Preface it was “democratic change” which dominated the agenda
with new constitutions having been introduced in Iraq and Afghanistan and
elections having taken place in various Arab countries. Much has happened
since and, regrettably, resulting, as we write, in the war in Lebanon. The U.N.’s
inaction, backed, disappointingly, by the U.S. and Britain, has led to the
destruction of the Lebanese infrastructure and the displacement of some
900,000 Lebanese from the south of the country. Although the U.N. has been
slow to act, a resolution has finally been passed, resolution 1701 (see the
Documents section, p. 387).1 Despite the initial reluctance of some European
countries to send troops, this is now being built up. A fragile peace remains.
The action taken by Israel is a subject which will certainly be a dominant feature
in next year’s volume. So far as the introduction of democracy is concerned,
the parliamentary elections in Palestine were certainly democratic with the
result of Hamas winning them. Unfortunately, however democratic, it was not
to the liking of the U.S., Europe and Israel, with the former cutting funding
and the latter refusing to enter into any talks with the new government. The
new “peace plan” of unilaterally withdrawing from Gaza, originally conceived
by Sharon and since adopted by Olmert and his new government, reviewed in
Iain Scobbie’s article in this volume, was an utter failure. The road map is
certainly dead. Gaza itself receives the same punishment in recent events as in
Lebanon.
Iraq’s transition to democracy finally, after much discussion, resulted in a
new constitution, which might look good on paper, and which may well be the
answer to the different ethnic groups, given that it provides for a type of federal
government. Although this bodes well for the unity of Iraq as one nation, the
situation has regrettably worsened and a civil war is repeatedly being predicted,
though some commentators are of the opinion that it is actually taking place.
As reported last year, the presidential elections in Egypt resulted in the re-
election of President Mubarak and parliamentary elections have resulted in a
majority for his party with a substantial increase in seats going to the only real
opposition, i.e. the Muslim Brotherhood, who were not allowed to stand as a
party. Fractures in the new democracy have already started with problems
with the judiciary over the arrest and conviction of Mubarak’s only real rival.

1 Israeli troops have now left Southern Lebanon.

xii Preface

Despite the death of John Garang, the peace agreement with the South in
the Sudan has resulted in the formation of a new government with a slower
implementation of its remaining parts. Unfortunately, the Darfur atrocities
continue, although there was a glimmer of a hope with the new peace
agreement, which has, however, not seen the light of day, having been rejected
by one of the Darfur parties.
On the surface, Afghanistan offers a rosier picture with both presidential
and parliamentarian elections having taken place and the first democratically
elected government in power in some three decades. However, many legal
problems remain, as illustrated in the report of a workshop on family law in
this volume.
On the issue of family law, Mrs. Zirari-Devif and Mr. Loukili have dealt with
the new family law of Morocco in their article, which brings in many innovations
and reforms of classical Islamic law, and which can be expected to be a model
for other Islamic countries. In this connection we have included in the
Documents section a report on the Moroccan Truth Commission, certainly an
innovation in an Arab country. We have also an article by Susan Breau on the
British court’s response to the measures adopted by the British government
in relation to the threat from terrorism. Innovations in Egypt’s family courts’
system are analysed in Dr. Dawoud El-Alami’s article, whereas the application
of Islamic family law in the U.K. is the subject of Dr. Mohamed Jindani’s article.
Islamic criminal law is the focus of two articles in this volume: Pawancheek
Marican and Mohamed Azam Mohamed Adil examine in detail the offence of
apostasy under Malaysian law whilst Mashood Baderin offers an overview of
the theory and practice of Islamic criminal law.
Grietje Baars’s article on the U.S. Caterpillar case examines the issue of civil
liability for the export of machinery used by Israel in the demolition of
Palestinian houses.
The Cases section this year includes an article and commentary by Anis
Qasim on a constitutional challenge in Palestine, and the decision of the
Pakistani Supreme Court on the legality of a Bill to introduce an Islamic
Ombudsman in the NWFP, introduced by Makhdoom Ali Khan.
We welcome as our new Assistant Editor Victor Kattan, who has contributed
an article on the 1982 Sabra and Chatila massacres in Lebanon and universal
criminal jurisdiction in the light of the World Court’s decision in the Arrest
Warrant case between Belgium and Congo. He has written two book reviews as
well on the legal status of Palestinian refugees in countries outside the Middle
East and on the 2001 Belgian case against Ariel Sharon. Thanks to all our
contributors without whose input this volume would not have been possible,
to the Hotung Foundation for its continued financial assistance and to Ruth
Eldon, our book editor.

Eugene Cotran,
Martin Lau,
Victor Kattan August 2006
Part I

Articles
2
 3

An Intimate Disengagement:
Israel’s withdrawal from Gaza,
the Law of Occupation and of
Self-Determination
Iain Scobbie *

1 INTRODUCTION
As the final text of this article was being prepared, Israel launched Operation
Summer Rain on 28 June 2006 in response to the taking of Corporal Gilad
Shalit by Palestinian militants following an attack on Israel Defence Forces on
25 June 2006. At the time of writing (July 2006), Israel’s military operations in
Gaza are continuing, and the final outcome cannot yet be discerned. This is
not the appropriate place to discuss the legality of these actions – whether
those of Israel or those of armed Palestinian groups. As matters are still in a
state of flux, it is premature to reach a definitive legal conclusion. Nevertheless,
the deployment of Israel Defence Forces in Gaza has an obvious pertinence to
the issue examined in this article, the international status of Gaza following
Israel’s apparent withdrawal in August 2005. Consequently, where necessary
and relevant, a provisional and tentative legal assessment of the implications
of Operation Summer Rain will be attempted.

2 THE ISSUE IN QUESTION

In August 2005, Israel evacuated its settlements and withdrew its land forces
from Gaza. This was in accordance with its Revised Disengagement Plan of 6
June 2004,1 the implementation of which was intended to ensure that:
In any future permanent status arrangement, there will be no Israeli towns and
villages in the Gaza Strip. On the other hand, it is clear that in the West Bank, there

* Sir Joseph Hotung Research Professor in Law, Human Rights and Peace Building in the Middle
East, School of Oriental and African Studies, University of London.
1 Available at: <www.mfa.gov.il/MFA/Peace+Process/Reference+Documents/Revised+
Disengagement+Plan+6-June-2004.htm>.
4 Articles

are areas which will be part of the State of Israel, including major Israeli population
centers, cities, towns and villages, security areas and other places of special interest
to Israel.2
To this end, Israel claimed that its evacuation of Gaza had the consequence
that there was no longer any permanent presence of Israeli security forces
within Gaza.3 Sub-section 1 of Section 3 (Security Situation following the Relocation),
however, provides:
1. The State of Israel will guard and monitor the external land perimeter of the
Gaza Strip, will continue to maintain exclusive authority in Gaza air space, and
will continue to exercise security activity in the sea off the coast of the Gaza Strip.
2. The Gaza Strip shall be demilitarized and shall be devoid of weaponry, the
presence of which does not accord with the Israeli-Palestinian agreements.
3. The State of Israel reserves its fundamental rights of self-defense, both preventive
and reactive, including where necessary the use of force, in respect of threats
emanating from the Gaza Strip.
The primary implication of the Disengagement Plan was set out in Principle
Six (Political and Security Implications) of the Revised Disengagement Plan.
This provides:
The completion of the plan will serve to dispel the claims regarding Israel’s
responsibility for the Palestinians within the Gaza Strip.
The meaning of Principle Six is intentionally ambiguous: it refers to the
termination of Israel’s responsibility for the population of Gaza, but says
nothing about the status of the territory itself. Before the implementation of
the Revised Disengagement Plan, Gaza was territory occupied by Israel: did
the implementation of the plan entail a change in the international status of
Gaza? In particular, once Israeli troops and settlers were withdrawn, was Gaza
no longer occupied?

3 GAZA – OCCUPIED OR NOT OCCUPIED?

In anticipation of the implementation of the Revised Disengagement Plan,
the Canadian Government’s International Development Research Centre
commissioned a report – the Aronson Report4 – to examine the implications
of disengagement. This noted that when then-Prime Minister Sharon initially
announced the unilateral withdrawal plan in April 2004, one of the declared
objectives was to end Israel’s role and responsibility as the occupying power in
Gaza. In particular, Article 2 of the 18 April 2004 Disengagement Plan provided
that, the completion of withdrawal would mean that there would be “no
permanent Israeli civilian or military presence” in the evacuated areas, and

2 Revised Disengagement Plan, Section 1 (Political and Security Implications), Principle Three.
3 Revised Disengagement Plan, Section 2.A (Main Elements: The Process), Article 3.1, The Gaza
Strip.
4 A “lightly edited version” of this report has been published as Aronson, G., Issues arising from
the implementation of Israel’s disengagement from the Gaza Strip, 34 Journal of Palestine Studies 49
(2005).
Israel’s withdrawal from Gaza, the Law of Occupation and of Self-Determination 5

therefore there would “be no basis for the claim that the Gaza Strip is occupied
territory”.5 This express reference to Gaza as “occupied territory” was deleted
in the 6 June 2004 Revised Disengagement Plan which was approved by the
Cabinet.
The Aronson Report argues that one of the reasons for this deletion was
that the Israeli Cabinet had received legal advice to the effect that any claim
regarding the end of occupation could not be maintained while Israel remained
in control of the Philadelphi corridor (the Salah al Din border road), essentially
a buffer zone along the Egypt/Gaza border, and arguably also ports and
airports. Retaining control of these areas was seen as enough to give Israel de
facto control over the territory and thus maintain the occupation.6 In the event,
Israel reached an agreement with Egypt which took over security functions in
the Philadephi Corridor,7 but Israel remains in effective control of Gaza’s
airspace and maritime zones. Further, passage through the Rafah crossing
between Gaza and Egypt is regulated by an agreement concluded between
Israel and the Palestinian Authority, subject to an annexed statement of
principles, and under the supervision of the European Union Border Assistance
Mission.8 Nevertheless, in a Ha’aretz article pubished in December 2004, Shavit
Matias, the deputy to Israel’s Attorney-General for international law was quoted
as saying:
When we quit Philadelphi, even if the Palestinians don’t yet have a port or airport,
the responsibility will no longer be ours. The area will not be considered occupied
territory. When the Palestinians have a crossing to Egypt and additional options for
transferring merchandise, even if there is no port yet, we have no responsibility.9
The question under consideration in this article is quite simple: is this view
correct?

5 Available at: <http://electronicintifada.net/bytopic/historicaldocuments/264.shtml>; and

also: <www.mfa.gov.il/MFA/Peace+Process/Reference+Documents/Disengagement+Plan+-
+General+Outline.htm>.
6 Aronson, above n. 4, pp. 49-50: see also Roy, S., Praying with their eyes closed: reflections on the
disengagement from Gaza, 34 Journal of Palestine Studies 64 (2005), p. 70.
7 For an account of the basic principles of the Israel-Egypt “military arrangement” on the
deployment of Egyptian border guards on the Egyptian side of the corridor, see the Israeli
Cabinet Communique of 28 August 2005, available at: <www.mfa.gov.il/MFA/Government/
Communiques/2005/Cabinet+Communique+28-Aug-2005.htm>.
8 The instruments dealing with the Rafah crossing – the 15 November 2005 Israel-PA Agreement
on Movement and Access and annexed Agreed Principles for Rafah Crossing, and 23 November
2005 Agreed Arrangement on the European Union Border Assistance Mission at the Rafah
Crossing Point on the Gaza-Egyptian Border (concluded at the invitation of Israel and the
Palestinian Authority) may be found at: <www.nad-plo.org/listing.php?view=palisraeli_
roadagree>; and at: <www.mfa.gov.il/MFA/Peace+Process/Reference+Documents/Agreed+
documents+on+movement+and+access+from+and+to+Gaza+15-Nov-2005.htm>. See also, the
EU Council press release 15011/05 (Presse 322) which gives an account of the mission of the
Border Assistance Mission, available at: <http://register.consilium.eu.int/pdf/en/05/st15/
st15011.en05.pdf>.
The crossing was closed by Israel following the capture of Cpl. Shalit. Israel claimed this
was done to prevent him being smuggled into Egypt.
9 See Aronson, above n. 4, p. 51.
6 Articles

Commentators are divided on this. Some, such as Aronson, argue that

because Israel retains a “security envelope” around Gaza, controlling who and
what goes in and out of the territory, disengagement did not terminate
occupation.10 In contrast stand the revised views of Bruderlein on the nature
of effective military control.11 Bruderlein states that effective military control
is essentially a question of fact, and is not dependent on the size and distribution
of the occupying forces within a territory. He cites the Tsemel case before the
Israel Supreme Court which held that occupation forces do not need to be in
actual control of all the territory and population, but simply have the potential
capability to do so.12 This ruling is in accordance with the decision in the List
case by the U.S. Military Tribunal at Nuremberg,13 and also with the Naletili
and Martinovi case before the International Criminal Tribunal for the Former
Yugoslavia. In the latter, the Trial Chamber referred to an occupant having “a
sufficient force present, or the capacity to send troops within a reasonable
time to make the authority of the occupying power felt”.14 Nevertheless,
Bruderlein continues, and this is the change introduced into the revised
version, that,
some form of military presence on land remains a necessary condition for an
occupation, i.e. a military occupation cannot be solely imposed by the control of
the national airspace by a foreign air force...or of the national seashore by a foreign
navy. The law of occupation belongs historically to the law of land warfare which
requires, at its core, a land-based security presence.15
Again the question arises: which view is correct? Is the question wider than
one that is dependent simply on the law of land warfare? Bruderlein’s
positioning of occupation questions solely within this context may be seen as
rather formalistic. It is important to bear in mind that the situation is not one
of creating an occupation, which as a practical matter would appear to require

10 Aronson, above n. 4, p. 51; see pp. 51-53.

11 See Bruderlein, C., Legal aspects of Israel’s disengagement plan under international humanitarian
law: <http://www.ihlresearch.org/opt/pdfs/briefing3466.pdf>. This paper was initially issued
in, and is dated, November 2004 but at some later point it was revised, modifying the original
analysis of “effective military control”. The paper does not indicate that it has been amended
and, moreover, it retains its original date. I am grateful to Anne Massagee for drawing this to
my attention.
12 See Bruderlein, above n. 11, p. 9, n.14. Tsemel v. Minister of Defence, HCJ 102/82, 37(3) Piskei
Din 365: also cited employing a more extended quotation in Lein, Y., One big prison: freedom of
movement to and from the Gaza Strip on the eve of the Disengagement Plan (B’Tselem/HaMoked:
Jerusalem: 2005; and <www.hamoked.org.il/items/12800_eng.pdf>) pp. 73-74. Tsemel is
summarised in 13 Israel Yearbook on Human Rights 360 (1983), see pp. 362-363 in particular.
This and the following cases dealing with “effective occupation” are discussed in more detail
below.
13 See Trial of Wilhelm List and others (the Hostages trial), VIII Law Reports of Trials of War Criminals
34 (1949), pp. 55-56.
14 Prosecutor v. Naletili and Martinovi, Case No.IT-98-34-T (trial judgment, 31 March 2003), available
at: <www.un.org/icty/naletilic/trialc/judgement/nal-tj030331-e.pdf>, p. 74, para. 217. In
support of this ruling, the Trial Chamber cited as authority the United Kingdom’s Manual of
military law of war on land, Part III, paras. 502 and 506 (1958); the United States’ The law of
land warfare: Field manual No.27-10, Chapter 6, para. 356 (1956); and the New Zealand Defence
Force’s Interim law of armed conflict manual, paras. 1302.2, 1302.3 and 1302.5 (1992).
15 Bruderlein, above n. 11, p. 9.
Israel’s withdrawal from Gaza, the Law of Occupation and of Self-Determination 7

the use of ground forces to create and maintain control,16 but rather is whether
an existing occupation has been terminated or maintained. Termination could
well involve different considerations: the conditions required to end an
occupation are not as clearly delineated in the governing instruments as those
which determine whether and when an occupation has been established. As
von Glahn comments, “most books on international law make little mention
of the intricate and numerous problems arising at the end of...military
occupation”.17

4 IS THE END OF OCCUPATION PURELY A

FACTUAL QUESTION?
Occupation has been described as “a transitional period following invasion
and preceding the cessation of hostilities” which “imposes more onerous duties
on an occupying power than on a party to an international armed conflict”.18
The term is not defined in 1949 Geneva Convention IV relative to the
Protection of Civilian Persons in Time of War: on the whole it relies on the
definition contained in the Regulations annexed to 1907 Hague Convention
IV respecting the Laws and Customs of War on Land which have the status of
customary international law.19
It is settled that the test which determines the start of an occupation is
essentially a question of fact,20 albeit one which must be distinguished from
invasion pure and simple:
Invasion is the marching or riding of troops – or the flying of military aircraft – into
enemy country. Occupation is invasion plus taking possession of enemy country for
the purpose of holding it, at any rate temporarily. The difference between mere

16 von Glahn raises the hypothesis of an occupation being created through control of a territory’s
airspace: “Since international law does not contain a rule prescribing the military arm through
which an effective belligerent occupation is to be exercised, it might be theoretically possible
to maintain necessary control through the occupant’s air force alone”. Nevertheless he
comments that the practical problems which would arise in this type of occupation “would
seem to rule out such an experiment”. See von Glahn, G., The occupation of enemy territory: a
commentary on the law and practice of belligerent occupation (University of Minnesota Press:
Minneapolis: 1957), pp. 28-29.
17 von Glahn, above n.16, p. 257.
18 Prosecutor v Naletili and Martinovi: <www.un.org/icty/naletilic/trialc/judgement/nal-tj030331-
e.pdf>, p. 73, para. 214.
19 See Prosecutor v Naletili and Martinovi: <www.un.org/icty/naletilic/trialc/judgement/nal-
tj030331-e.pdf>, p. 73, para. 215. The customary nature of the Hague Regulations was declared
by the International Criminal Tribunal at Nuremberg in the Trial of German major war criminals,
Cmd. 6964 (1946) p. 65. The customary status of the Regulations has since been affirmed by
various other courts, see, e.g. In re Krupp (U.S. Military Tribunal at Nuremberg), 15 Annual
Digest 620, p. 622; R. v. Finta (Canadian High Court of Justice), 82 ILR 425, p. 439; Affo v. IDF
Commander in the West Bank (Israel High Court), 83 ILR 122, p. 163; Polyukhovich v. Commonwealth
of Australia (Australian High Court), 91 ILR 1, p. 123. See also Meron, T., Human Rights and
Humanitarian Norms as Customary Law (Clarendon Press: Oxford: 1989), pp. 38-40.
20 See McNair, A. and Watts, A.D., The Legal Effects of War (Cambridge UP: Cambridge: 1966, 4th
Edn.), pp. 377-378; and Schwarzenberger, G., International Law as applied by International Courts
and Tribunals. Vol.II: The Law of Armed Conflict (Stevens: London: 1968), p. 324.
8 Articles

invasion and occupation becomes apparent from the fact that an occupant sets up
some kind of administration, whereas the mere invader does not.21
This distinction flows clearly from the terms of Articles 42 and 43 of the Hague
Regulations, which provide:
42. Territory is considered occupied when it is actually placed under the
authority of the hostile army.
The occupation extends only to the territory where such authority
has been established and can be exercised.22
43. The authority of the legitimate power having in fact passed into the
hands of the occupant, the latter shall take all the measures in his power
to restore, and ensure, as far as possible, public order and safety, while
respecting, unless absolutely prevented, the laws in force in the country.
Thus, in the List case, the U.S. Military Tribunal ruled that
an occupation indicates the exercise of governmental authority to the exclusion of
the established government. This presupposes the destruction of organised
resistance and the establishment of an administration to preserve law and order. To
the extent that the occupant’s control is maintained and that of the civil government
eliminated, the area will be said to be occupied.23
Traditionally, the test for the termination of an occupation was seen as a simple
corollary of this, and likewise a question of fact – “Occupation comes to an
end when an occupant withdraws from a territory, or is driven out of it”:24

21 Oppenheim, L., International Law: a Treatise. Vol.II: Disputes, War and Neutrality (Longman:
London: 1952, 7th Edn. by Lauterpacht, H.) (hereinafter Oppenheim-Lauterpacht), p. 434:
see also, Re Lepore, 13 Annual Digest of Public International Law Cases 354 (Supreme Military
Tribunal, Italy: 1946) at p. 355; Disability pension case, 90 International Law Reports 400 (Federal
Social Court, F.R. Germany: 1985) at p. 403; and von Glahn, above, n.16, pp. 28-29. See also
below on the notion of effective control of occupied territory.
22 Given Operation Summer Rain, it is worth emphasising that Geneva Convention IV comes into
operation in relation to the civilian population earlier than the provisions of Section III of
the Hague Regulations which deal with belligerent occupation. Article 6 of Geneva Convention
IV provides that it applies “from the outset of any conflict or occupation mentioned in Article
2”. The International Committee of the Red Cross’ commentary to Article 6 states that this
language was employed to indicate that the Convention “became applicable as soon as the
first acts of violence were committed...Mere frontier incidents may make the Convention
applicable, for they may be the beginning of a more widespread conflict. The Convention
should be applied as soon as troops are in foreign territory and in contact with the civilian
population.” Accordingly, the term “occupation” in Article 6 bears a wider meaning than in
Article 42 of the Hague regulations: “So far as individuals are concerned, the application of
the Fourth Geneva Convention does not depend upon the existence of a state of occupation
within the meaning of Article 42...The relations between the civilian population of a territory
and troops advancing into that territory, whether fighting or not, are governed by the present
Convention. There is no intermediate period between what might be termed the invasion
phase and the inauguration of a stable regime of occupation. Even a patrol which penetrates
into enemy territory without any intention of staying there must respect the Convention in its
dealings with the civilians it meets.” Pictet, J. (ed), Commentary to Geneva Convention IV relative
to the protection of civilian persons in time of war (ICRC: Geneva: 1958) pp. 59-60. See also Mettraux,
G., International Crimes and the Ad Hoc Tribunals (Oxford U.P.: Oxford: 2005) pp. 64-71; and
Prosecutor v. Naletili and Martinovi: <www.un.org/icty/naletilic/trialc/judgement/nal-tj030331-
e.pdf>, pp. 74-75, paras. 219-221.
23 VIII Law Reports of Trials of War Criminals 34 (1949), pp. 55-56.
Israel’s withdrawal from Gaza, the Law of Occupation and of Self-Determination 9

the moment the invader voluntarily evacuates [occupied] territory, or is driven

away by a levée en masse, or by troops of the other belligerent, or of his ally, the
former condition of things ipso facto revives. The territory and individuals affected
are at once, so far as International Law is concerned, considered again to be under
the sway of their legitimate sovereign. For all events of international importance
taking place on such territory the legitimate sovereign is again responsible towards
third States, whereas during the period of occupation the occupant was responsible.25
This traditional test depends entirely upon factual criteria to the exclusion of
normative considerations. This approach now appears inadequate – for
instance, it fails to take into account the possibility, far less the legitimacy, of
the termination of an occupation under the auspices of the Security Council,
as occurred in Iraq.26 Also, during the drafting of the Geneva Conventions,
the view was expressed that in prolonged occupations there could be a gradual
transfer of powers to the administrative departments of the occupied power,
but that this would not alter the fact of occupation.27
Facts are undoubtedly important to determine when an occupation ends –
“Who effectively exercises the authority? Is it the new government? Or is it
still the former occupying power? International recognition by states and the
United Nations is likely to play an important role”28 – but is a test which is
essentially dependent on an instrument a centur y old still fitted for
contemporary conditions?29
At the Diplomatic Conference which culminated in the adoption of the
1977 Additional Protocols to the 1949 Geneva Conventions, the majority of
participating States emphasised that, in order to maintain the unity of
international law, international humanitarian law could not be isolated and
self-contained but had to take into account the rules of general international

24 Oppenheim-Lauterpacht, above, n. 21, p. 436: see also Heintschel von Heinegg, W., Factors in
war to peace transitions, 27 Harvard Journal of Law and Public Policy 843 (2003-2004), at p.
845: “The end of an occupation is a question of fact. It will be brought about by any loss of
authority over the territory in question”.
25 Oppenheim-Lauterpacht, above n. 21, p. 618.
26 See Security Council resolution 1546 (8 June 2004), reproduced 43 International Legal Materials
1459 (2004); and also Carcano, A., End of occupation in 2004? The status of the multinational force
in Iraq after the transfer of sovereignty to the interim Iraqi government, 11 Journal of Conflict and
Security Law 41 (2006); McCarthy, C., The paradox of the international law of military operations:
sovereignty and the reformation of Iraq, 10 ibid 43 (2005); and Roberts, A., The end of occupation:
Iraq 2004, 54 International and Comparative Law Quarterly 27 (2005). For critical accounts
of the conduct of the occupation of Iraq, see, Afsha, E., Limits and limitations of power: the
continued relevance of occupation law, 7 German Law Journal 563 (2006) available at:
<www.germanlawjournal.com>; and Fox, G.H., The occupation of Iraq, 36 Georgetown Journal
of International Law 195 (2005).
27 See Pictet, above n. 22, pp. 62-63: for the travaux, see Final Record of the Diplomatic Conference of
Geneva of 1949 (Federal Political Department: Berne: 1949), Vol. IIA, pp. 623-625, 775-776
and 815-816, and Vol. IIB, pp. 386-388. Compare Dinstein, Y., The international legal status of
the West Bank and the Gaza Strip–1998, 28 Israel Yearbook on Human Rights 37 (1998).
28 Lavoyer, J.P., Jus in bello: occupation law and the war in Iraq, 98 ASIL Proc 121 (2004), p. 123. On
the importance of the recognition of the termination of occupation, see Pictet, above n. 22,
p.63; and also Aronson, above n. 4, pp. 59-61.
29 Article 6 of 1949 Geneva Convention IV does not deal with the end of occupation per se, but
with the conditions under which the Convention ceases to apply, whether in whole or in part:
see, Pictet, above n. 22, pp. 58-64.
10 Articles

law. In this connection, emphasis was placed on the need to adapt international
humanitarian law to conform with the principle expounded by the
International Court of Justice in the Namibia Advisory Opinion,30 namely that
“an international instrument must be interpreted and applied within the overall
framework of the juridical system in force at the time of the interpretation”.31
Accordingly, can it be argued that developments in international law since
1907 have amended the traditional test used to determine the end of
occupation by introducing normative factors?
The assumption embedded in the traditional test is that occupation
terminates when authority passes back into the hands of the displaced
sovereign. This must be a genuine transfer and not simply a pretence which
masks a retention of authority by the occupant. To employ Roberts’ phrase, “it
is the reality not the label that counts”,32 as:
the withdrawal of occupying forces is not the sole criterion of the ending of an
occupation; and the occupant has not necessarily withdrawn at the end of all
occupations.33
The nature of the authority that must be exercised by a post-occupation
government in order to establish that the occupation has effectively ended
can only be sovereignty, the classic formulation of which is that of Judge Huber
in the Island of Palmas case:
Sovereignty in the relations between States signifies independence. Independence
in relation to a portion of the globe is the right to exercise therein, to the exclusion
of any other State, the functions of a State.34
The determination whether a post-occupation entity is truly sovereign, able to
exercise actual independence over the territory in question, is not a simple
matter of fact but introduces normative factors into the issue.35
Further, self-determination, which has been termed “one of the essential
principles of contemporary international law”,36 may also be relevant. It should
be recalled that in the Legal Consequences of the Construction of a Wall in the
Occupied Palestinian Territory advisory opinion,37 the International Court of
Justice authoritatively affirmed the entitlement of the Palestinian people to

30 See Sandoz Y et al. (eds), Commentary on the Additional Protocols of 8 June 1977 to the Geneva
Conventions of 12 August 1949 (ICRC: Geneva: 1987), pp. 51-52.
31 Legal consequences for States of the continued presence of South Africa in Namibia (South West Africa),
notwithstanding Security Council resolution 276 (1970) advisory opinion, ICJ Rep, 1971, 16 at p. 31,
para. 53.
32 Roberts, above, n. 26, p. 47.
33 Roberts, above n. 26, p. 28.
34 Island of Palmas case (United States/Netherlands, 1928), 2 Reports of International Arbitral
Awards 829, p. 838. The “classic” judicial definition of independence is that of Judge Anzilotti
in the Austro-German Customs Union advisory opinion, PCIJ, Ser.A/B, No.41, pp. 57-58 (1931).
35 On the disjunction between formal and actual independence in the context of Statehood,
see Crawford, J., The Creation of States in International Law (Clarendon Press: Oxford: 2006,
2nd Edn.), pp. 62-89.
36 East Timor case (Portugal v. Australia), ICJ Rep, 1995, 90 at p. 102, para. 29.
37 Legal consequences of the construction of a wall in the occupied Palestinian territory advisory opinion, 9
July 2004: text available on the website of the International Court of Justice: <www.icj-cij.org>,
and also as UN Doc.A/ES-10/273 (13 July 2004), and at 43 International Legal Materials
1009 (2004).
Israel’s withdrawal from Gaza, the Law of Occupation and of Self-Determination 11

the right of self-determination, ruling that this had also been recognised by
Israel.38 The Court further held that self-determination was a right erga omnes,
whose realisation all U.N. Member States, by virtue of General Assembly
resolution 2625 (XXV) (24 October 1970),39 as well as all States parties to the
U.N. Covenants on Human Rights by virtue of common Article 1 of these
Covenants, had the duty to promote.40 Further, as Roberts notes, the “essential
feature of the ending of an occupation is often, though not always, an act of
self-determination”, although he cautions that this cannot be “the sole decisive
criterion for determining when an occupation ends”.41
Self-determination has had a direct influence on specific treaty provisions
that unequivocally form part of international humanitarian law per se. This is
particularly true of 1977 Additional Protocol I:42 self-determination provided
an important part of the substantive normative backdrop to the negotiation
of this instrument. Before the convening of the Diplomatic Conference that
led to the conclusion of Additional Protocol I, the General Assembly adopted
resolution 3103 (XXVIII) (12 December 1973), which was entitled Basic
principles of the legal status of the combatants struggling against colonial and alien
domination and racist régimes. This recalled in its penultimate preambular
paragraph that there was a “need for the elaboration of additional international
instruments and norms envisaging, inter alia, the increase of the protection of
persons struggling for freedom against colonial and alien domination and
racist régimes”. The fourth preambular paragraph reaffirmed that such
struggles were undertaken in exercise of the right of self-determination.
A consequence of the influence of self-determination on Additional Protocol
I was the adoption of Article 1.4 which extended the definition of international
armed conflict to encompass “armed conflicts in which peoples are fighting
against colonial domination and alien occupation43 and against racist régimes
in the exercise of their right of self-determination”. Wilson notes that this
provision demonstrated widespread support for self-determination as an
established legal right.44 Governments which opposed or abstained in the vote

38 Legal consequences of a wall Advisory Opinion, 43 International Legal Materials (2004), pp.
1041-1042, para.118.
39 In the Nicaragua case, the International Court ruled that resolution 2625 expressed rules of
customary international law – see Military and paramilitary activities in and against Nicaragua
case: merits judgment (Nicaragua v. United States), ICJ Rep, 1986, 14 at pp. 99-100, para.188: see
also Legal consequences of a wall Advisory Opinion, 43 International Legal Materials (2004), p.
1034, para.87.
40 Legal consequences of a wall Advisory Opinion, 43 International Legal Materials (2004) 1034,
para. 88: see also, p. 1053, paras. 155-156.
41 Roberts, above n. 26, p. 8.
42 1977 Protocol I Additional to the Geneva Conventions of 12 August 1949: Israel is not a party
to this treaty, although a number of its provisions express customary international law.
43 Sandoz, above n. 30, p. 54 notes: “The expression ‘alien occupation’ in the sense of this
paragraph – as distinct from belligerent occupation in the traditional sense of all or part of
the territory of one State being occupied by another State – covers cases of partial or total
occupation of a territory which has not yet been fully formed as a State.” Notes omitted: see
also Cassese, A., Self-determination of Peoples: a Legal Reappraisal (Cambridge U.P.: Cambridge:
1995), 90 et seq.
44 Wilson, H., International Law and the Use of Force by National Liberation Movements (Clarendon
Press: Oxford: 1988), pp. 77-78.
12 Articles

on Article 1.445 did so because they thought that the criteria it employed were
arbitrary and subjective, and feared that it would lead to an unequal and partial
application of international humanitarian law. No delegation argued that the
use of force in pursuit of self-determination was, in itself, illegitimate.46
Accordingly, self-determination has been recognised as a relevant factor in
international humanitarian law, but its constituent treaties do not determine
its consequences, if any, in the termination of an occupation. This is a matter
which must be determined by examining the import, contours and inter-
relationship of the doctrines in issue:
The law of war is to be found not only in treaties, but in the customs and practices
of states which gradually obtained universal recognition, and from the general
principles of justice applied by jurists and practised by military courts. The law is
not static, but by continual adaptation follows the needs of a changing world. Indeed,
in many cases treaties do no more than express and define for more accurate
reference the principles of law already existing.47

5 EFFECTIVE CONTROL –
THE TRADITIONAL DOCTRINE
Article 42 of the Hague Regulations provides that territory is occupied when
it is actually under the authority of the adversary, but that occupation extends
only to the territory where that authority “has been established and can be
exercised”. As Oppenheim-Lauterpacht observes, this definition “is not at all
precise” but that when an occupant is able to assert authority over territory “it
matters not with what means, and in what ways, his authority is exercised”.48
The test is one of effective control, but the conditions by which this is
established varies with the nature of the territory. An occupant need only
deploy troops strategically to occupy a larger area:49
for occupation of an area it is not necessary to keep troops permanently stationed
throughout that area. It is sufficient that the national forces have withdrawn, that
the inhabitants have been disarmed, that measures have been taken to protect life
and property and to secure order, and that troops are available, if necessary to
enforce authority in the area.50

45 Article 1.4 was adopted by 87 votes to 1, with 11 abstentions – only Israel cast a negative vote:
the abstaining States were Canada, Federal Republic of Germany, France, Guatemala, Ireland,
Italy, Japan, Monaco, Spain, the United Kingdom, and the United States – see Wilson, above
n. 44, p. 165.
46 Wilson, above, n. 44, p. 128.
47 List trial, VIII Law Reports of Trials of War Criminals 34 (1949), p. 54.
48 Oppenheim-Lauterpacht, above, n. 21, p. 435.
49 See, e.g. Lein, above, n. 12, p. 74; Oppenheim-Lauterpacht, above, n. 21, p. 435; and also the
separate opinion of Judge Kooijmans in the Armed activities on the territory of the Congo case,
Democratic Republic of the Congo v. Uganda, 19 December 2005, available on the International
Court’s website: <www.icj-cij.org>, and at 45 International Legal Materials 353 (2006), p. 360,
paras.42-49: compare the judgment of the Court, ibid, pp. 310-311, paras.172-179.
50 U.K. Ministry of Defence, The Manual of the Law of Armed Conflict (Oxford U.P.: Oxford: 2004),
p. 276, para. 11.3.2.
Israel’s withdrawal from Gaza, the Law of Occupation and of Self-Determination 13

As Benvenisti notes, however, although an occupant has the legal duty to

establish an administration of territory it occupies, today this “is the rare
exception rather than the rule”.51 Thus, in the Armed activities on the territory of
the Congo case, Judge Kooijmans noted in his separate opinion:
Occupants feel more and more inclined to make use of arrangements where
authority is said to be exercised by transitional governments or rebel movements or
where the occupant simply refrains from establishing an administrative system.52
Further, as the U.S. Military Tribunal held in the List case, when considering
the effect of resistance to occupation:
While it is true that the partisans were able to control sections of these
countries [Greece, Yugoslavia and Norway] at various times, it is established
that the Germans could at any time they desired assume physical control of
any part of the country. The control of the resistance forces was temporary
only and did not deprive the German Armed Forces of its status of an
occupant.53
Similarly, in the Tselem case, which was heard before the Israel High Court
and dealt with the internment of individuals by the IDF in Southern Lebanon
in 1982, Justice Shamgar ruled that the application of the laws of war, including
Geneva Convention IV, to an occupied area was not dependent on the existence
of a durable belligerent occupation or the creation of a military administration
in the area,54 but rather:
One of the tests is whether the military forces are capable of entering into the shoes
of the previous governing bodies, and not just that they did so in
practice...Applicability of the third chapter of the Hague Regulations and
applicability of the comparable provisions of the Fourth [Geneva] Convention are
not dependent on the existence of a special organized system that takes the form of
a military government. The duties and powers of the military forces, resulting from
effective occupation of a particular territory, arise and are created as a result of
military control of the territory, that is, even if the military forces maintain control
only by means of regular combat units, without having a special military framework
for the [military] government’s needs.55
This ruling is supported by the judgment of the International Court in the
Armed activities in the Congo (D.R.C. v. Uganda) case. The Court ruled that a
Ugandan occupation of Congolese territory would be established if its forces
“had substituted their own authority for that of the Congolese Government”,
and it would be irrelevant “whether or not Uganda had established a structured
military administration of the territory occupied”.56

51 Benvenisti, E., The International Law of Occupation (Princeton U.P.: Princeton: 1993) pp. 4-5:
see also, U.K. Manual, above, n. 50, p. 276, para. 11.3.1; Prosecutor v. Tadi?, Case No. IT-94-1-T
(trial judgment, 7 May 1997): <www.un.org/icty/tadic/trialc2/judgement/tad-tsj70507JT2-
e.pdf> pp. 204-205, para.584; and Prosecutor v. Blaški, Case No. IT-95-14-T (trial judgment 3
March 2000): <www.un.org/icty/blaskic/trialc1/judgement/bla-tj000303e.pdf> p. 51, para.
149.
52 45 International Legal Materials 271 (2006), 353 at p. 359, para. 41.
53 VIII Law Reports of Trials of War Crimes Trials 34 (1949), p. 56.
54 13 Israel Yearbook on Human Rights 318 (1983), p. 363.
55 Tselem judgment, as translated and quoted in Lein, above, n. 12, pp. 73-74.
56 45 International Legal Materials 271 (2006), p. 310, para.173.
14 Articles

The view that effective occupation could lie in the capacity to assert control
was also affirmed by the Yugoslav Tribunal in Prosecutor v Naletili and Martinovi
where it ruled that one of the guidelines to determine whether an occupation
was established was whether “the occupying power has a sufficient force present,
or the capacity to send troops within a reasonable time to make the authority
of the occupying power felt”.57 Indeed, there is arguably even some authority
that occupation can arise when a threat of force is followed by capitulation:
It is not necessary to discuss here the question whether Germany was technically a
belligerent power at all in relation to Czechoslovakia when control was assumed by
the former country without any armed resistance on the part of the latter. If
submission by the victim to a threat of immediate invasion relieves the other party
of the character of a belligerent, the case for the application in our Courts of the
same rules as to the consequences of control would appear to be an a fortiori one.58
Probably little weight should now be placed on this ruling, as the situation it
envisages was subsequently expressly regulated by Article 2.2 of Geneva
Convention IV, which provides that the Convention applies to all instances of
the partial or total occupation of the territory of a High Contracting Party,
even if this “meets with no armed resistance”.59 Nevertheless, the authorities
are agreed that occupation can be established and maintained when the
occupant has the capacity to exert control over territory. Once established,
does this require a physical presence on the ground, or can an occupation be
maintained by other means?

6 EFFECTIVE CONTROL AND THE CHANGED

NATURE OF WARFARE
When the Hague Regulations were adopted in 1907, aerial warfare was (at
most) rudimentary, although Article 25 prohibited the attack or bombardment
of undefended towns, villages, dwellings and buildings “by whatever means”.
This phrase was intended to encompass aerial warfare. On the same day the
Conference adopted its various Conventions, 18 October 1907,60 it also adopted
Declaration XIV prohibiting the Discharge of Projectiles and Explosives from
Balloons. This prohibited “the discharge of projectiles and explosives from
balloons or by other new methods of a similar nature”. Although technically
still in force, this Declaration has few parties and has been rendered obsolete
by subsequent practice.

57 Prosecutor v. Naletili and Martinovi: <www.un.org/icty/naletilic/trialc/judgement/nal-tj030331-

e.pdf>, p. 74, para. 217.
58 Anglo-Czechoslovak and Prague Credit Bank v. Janssen (Australia: Supreme Court of Victoria,
1943), 1943-45 Annual Digest 43, p. 47.
59 On the interpretation of this provision, see Pictet, above, n. 22, pp. 21-22.
60 The Wright brothers’ first flight of 39 metres, which lasted 12 seconds at an altitude of just
over 3 metres, took place on 17 December 1907.
Israel’s withdrawal from Gaza, the Law of Occupation and of Self-Determination 15

Oppenheim-Lauterpacht indicates that international law is indifferent as

to the manner by which authority is exercised over occupied territory,61 and
von Glahn thinks it at least theoretically possible that an occupation may be
maintained through the control of the adversary’s airspace.62 Bruderlein, on
the other hand, argues that land-based forces are indispensable for an
occupation, which cannot be created by an adversary’s control of airspace or
maritime zones.63 There is some virtue in Bruderlein’s claim; he correctly notes
that the no-fly zone over southern Iraq64 did not amount to belligerent
occupation, but should there not be a difference between the creation of an
occupation and its subsequent maintenance? If, once an occupation is
established, effective control lies in the capacity to make the authority of the
occupying power felt within a reasonable time or, in the words of Israel’s High
Court, to “maintain control only by means of regular combat units”, then is
there any reason why this should not be done through aerial warfare? Indeed,
the importance of air power was stressed by Major General Amos Yadlin in
2004 after he became head of Israeli military intelligence. An Israeli air force
officer, he stated:
Our vision of air control zeroes in on the notion of control. We’re looking at how
you control a city or a territory from the air when it’s no longer legitimate to hold
or occupy that territory on the ground.65
Further, at least in the circumstances of Gaza, only to consider Israel’s
withdrawal of ground troops and continued control of its airspace in isolation
is to ignore the wider context.

7 EFFECTIVE CONTROL AND GAZA –

THE WIDER CONTEXT
Apart from the military method by which effective control may be exercised
and Israel’s enforcement of its “security envelope” around Gaza – its control
of terrestrial borders, whether as principal or through the agency of Egypt
and the E.U.’s Border Assistance Mission, and of Gaza’s maritime zones and
airspace – other issues are relevant to determine whether Gaza remained
occupied after implementation of the Disengagement Plan.
An assessment of these issues must proceed at two distinct normative levels.
General international law is relevant to the analysis of the situation not simply
for Israel and Palestine but, importantly, also for third States. Equally pertinent,
however, are the specific bilateral obligations assumed by Israel and Palestine

61 Oppenheim-Lauterpacht, above, n. 21, p. 35.

62 von Glahn, above, n. 16, pp. 28-29.
63 Bruderlein, above, n. 11, p. 9.
64 For an account, see Malone, D.M., The International Struggle over Iraq: Politics in the U.N. Security
Council 1980-2005 (Oxford U.P.: Oxford: 2006) 97-101; and also Schmitt, M.N., Clipped wings:
effective and legal no-fly zone rules of engagement, 20 Loyola LA International and Comparative Law
Journal 727 (1997-98).
65 Quoted in Li, D., The Gaza Strip as laboratory: notes in the wake of disengagement, 35 Journal of
Palestine Studies 38 (2006), p. 48.
16 Articles

as a result of the instruments adopted during the Oslo process.66 The 1969
Vienna Convention on the Law of Treaties does not govern the Oslo
instruments because one of the parties, the Palestine Liberation Organisation,
is not a State. The Vienna Convention consciously adopted a restricted
definition of treaties for its purposes, reflected in Article 1 which expressly
provides: “The present Convention applies to treaties between States.”67
Further, Article 2.1.a defines a treaty as “an international agreement concluded
between States in written form and governed by international law, whether
embodied in a single instrument or in two or more related instruments and
whatever its particular designation”. Article 3 of the Vienna Convention,
however, provides that the Convention does not prejudice the legal force of
“international agreements concluded between States and other subjects of
international law”, nor the application to them of rules contained in the
Convention which have customary status.68 On the basis of customary law,
Watson convincingly argues that the Oslo instruments are binding bilateral
treaties.69
Further, neither Israel nor Palestine has claimed that the 1995 Israel-Palestine
Liberation Organisation Interim Agreement, in particular, has terminated as
the result of the operation of the customary law of treaties following alleged
material breach or by the operation of the clasula rebus sic stantibus.70 Indeed,
Section 1 (Political and Security Implications) Principle Seven of the
Disengagement Plan expressly contemplates the continued applicability of
these instruments:
The process set forth in the plan is without prejudice to the relevant agreements
between the State of Israel and the Palestinians. Relevant arrangements shall
continue to apply.

66 Principally, the 1993 Israel-Palestine Liberation Organisation Declaration of Principles on

Interim Self-Government Arrangements, 32 International Legal Materials 1525 (1993); 1994
Israel-Palestine Liberation Organisation Agreement on the Gaza Strip and Jericho Area, 33
ibid 622 (1994); 1995 Israel-Palestine Liberation Organisation Interim Agreement on
Implementation of the Declaration of Principles, 36 ibid 551 (1997); 1997 Israel-Palestine
Liberation Organisation Protocol concerning the Redeployment in Hebron, 36 ibid 650 (1997);
1998 Israel-Palestine Liberation Organisation Wye River Memorandum, 37 ibid 1251 (1998);
and 1999 Israel-Palestine Liberation Organisation Sharm el-Sheikh Memorandum on
Implementation Timeline of Outstanding Commitments Signed and the Resumption of
Permanent Status Negotiations, 38 ibid 1465 (1999).
67 See the Final Draft Articles and Commentary on the Law of Treaties adopted by the
International Law Commission in 1966, reproduced Watts, A., The International Law Commission
1949-1998 (Oxford U.P.: Oxford: 1999), Volume II, p. 619, Commentary to draft Article 1, para.
2.
68 See Commentary to draft Article 3, Watts, above, n. 67, pp. 626-627.
69 See Watson, G.R., The Oslo Accords: International Law and the Israeli-Palestinian Peace Agreements
(Oxford U.P.: Oxford: 2000) pp. 57-102, and his The “wall” decisions in legal and political context,
99 American Journal of International Law 6 (2005), pp. 22-24: see also Benvenisti, E., The
Israeli-Palestinian Declaration of Principles: a framework for future settlement, 4 European Journal
of International Law 542 (1993); but compare Sabel, R., Review of Watson’s “The Oslo Accords”,
95 American Journal of International Law 248 (2001), pp. 249-251.
70 See, e.g. Watson, above, n. 69 (Wall decisions), p. 23.
Israel’s withdrawal from Gaza, the Law of Occupation and of Self-Determination 17

Nevertheless, the implementation of the Disengagement Plan expressly

contemplates a unilateral change by Israel of the legal status of Gaza – “the
State of Israel is required to initiate moves not dependent on Palestinian
cooperation”71 – which, as Principle Six states, aims to “dispel the claims
regarding Israel’s responsibility for the Palestinians within the Gaza Strip”.
A belligerent occupant bears duties in relation to the territory and its people;
for instance, under Article 43 of the Hague Regulations, the duty to maintain
public order within the territory, and under Articles 55 and 56 of 1949 Geneva
Convention IV, the duties of ensuring that food and medical supplies are
available to the population and of ensuring and maintaining public health
and hygiene within the territory “to the fullest extent of the means available
to it”. As implementation of the Revised Disengagement Plan aimed to divest
Israel of these and its other responsibilities, Principles Six and Seven are surely
contradictory. For instance, Article XXXI.7 of the 1995 Israel-Palestine
Liberation Organisation Interim Agreement on the West Bank and the Gaza
Strip, which was re-affirmed in Article V of the Wye River Memorandum,72
provides:
Neither side shall initiate or take any step that will change the status of the West
Bank and the Gaza Strip pending the outcome of the permanent status negotiations.
If Principle Six envisages a unilateral change effected by Israel in the status of
Gaza, then this entails a breach of Article XXXI.7. It is difficult to see what
guarantee against prejudice Principle Seven may afford in this eventuality.73
Crawford comments that the Oslo instr uments “are remarkably
unforthcoming on issues of status, no doubt because of fundamental
disagreements between the parties”.74 That Israel did not relinquish authority
within the Occupied Territories is clear from the provisions of the 1995 Interim
Agreement which established and yet simultaneously circumscribed the powers
of the Palestinian Interim Self-Government Authority (styled “the Council” in
the Agreement). Pending its creation, these powers are to be exercised by the

71 Revised Disengagement Plan, Section 1 (Political and Security Implications), Principle One.
72 The Israeli Cabinet approved the Wye River Memorandum on 11 November 1998. This
decision is available at: <www.mfa.gov.il/MFA/Peace+Process/Guide+to+the+Peace+Process/
Government+Decision+on+the+Wye+River+Memorandum+N.htm>. It is worth noting that
paragraph 8 of this decision provided: “The government asserts that a unilateral declaration
by the Palestinian Authority on the establishment of a Palestinian state, prior to the achievement
of a Final Status Agreement, would constitute a substantive and fundamental violation of the
Interim Agreement. In the event of such a violation, the government would consider itself
entitled to take all necessary steps, including the application of Israeli rule, law and
administration to settlement areas and security areas in Judea, Samaria and Gaza as it sees fit.
Israel reiterates its position, in accordance with the Agreement with the Palestinian Authority,
that the final status must be the result of free negotiations between the parties without the
implementation of unilateral steps which will change the status of the area.” For commentary
on this, see Crawford, above, n. 35, p. 445.
73 It should also be recalled that Section 1 (Political and Security Implications), Principle Three
envisages the maintenance of settlements in the West Bank and thus contradicts, e.g. Interim
Agreement Article XXXI.5 which expressly reserves the question of settlements for the
permanent status negotiations.
74 Crawford, above, n.35, p. 433.
18 Articles

Palestinian Authority.75 In implementing the 1993 Declaration of Principles,

the 1995 Interim Agreement did not transfer sovereignty to the PLO but simply
created a temporary régime until the outcome of the final status negotiations.76
This is clear at the outset of the Interim Agreement, as Article I.1 provides:
Israel shall transfer powers and responsibilities as specified in this Agreement from
the Israeli military government and its Civil Administration to the Council in
accordance with this Agreement. Israel shall continue to exercise powers and
responsibilities not so transferred.
Article III.6 restricts the jurisdiction of the Council to those matters specified
in Article XVII. In principle, the Council’s jurisdiction is specified in Article
XVII.1:
In accordance with the [Declaration of Principles], the jurisdiction of the Council
will cover West Bank and Gaza Strip territory as a single territorial unit, except for:
(a) issues that will be negotiated in the permanent status negotiations: Jerusalem,
settlements, specified military locations, Palestinian refugees, borders, foreign
relations and Israelis: and
(b) powers and responsibilities not transferred to the Council.
In relation to paragraph (a), Crawford points out that although this ostensibly
defines the jurisdiction of the Palestinian Authority in “normal territorial
terms”, in practical effect its competence is restricted to “jurisdiction over
Palestinians (and visitors)”.77 Further, Article XVIII.2 restricts the legislative
power of the Council to matters over which it has jurisdiction, subject to the
exigencies of paragraph 4.a:
Legislation, including legislation which amends or abrogates existing laws or military
orders, which exceeds the jurisdiction of the Council or which is otherwise
inconsistent with the provisions of the [Declaration of Principles], this Agreement,
or of any other agreement that may be reached between the two sides during the
interim period, shall have no effect and shall be void ab initio.
These provisions clearly demonstrate that the Palestinian Authority does not
possess the exclusive governmental powers which are characteristic of
sovereignty. One can only concur with the opinion of a former Legal Adviser
to the Israeli Ministry of Foreign Affairs that, under the Declaration of
Principles and thus throughout the interim period, “the Palestinian Council
will not be independent or sovereign in nature”. Moreover:

75 1995 Interim Agreement, Article I.2 provides: “Pending the inauguration of the Council, the
powers and responsibilities transferred to the Council shall be exercised by the Palestinian
Authority established in accordance with the Gaza-Jericho Agreement, which shall also have
all the rights, liabilities and obligations to be assumed by the Council in this regard. Accordingly,
the term ‘Council’ throughout this Agreement shall, pending the inauguration of the Council,
be construed as meaning the Palestinian Authority.”
76 On the status and powers of the Palestinian Authority under the Interim Agreement, see
Dajani, O.M., Stalled between seasons: the international legal status of Palestine during the interim
period, 26 Denver Journal of International Law and Policy 27 (1997), pp. 60-74.
77 Crawford, above, n. 35, p. 444.
Israel’s withdrawal from Gaza, the Law of Occupation and of Self-Determination 19

the military government will continue to be the source of authority for the Palestinian
Council and the powers and responsibilities exercised by it in the West Bank and
Gaza Strip.78
Of particular note is the retention by Israel of competence over foreign relations
by virtue of Articles IX.5 and XVII.1.a. Singer argued that this was crucial in
denying Statehood to the Palestinian entity pending the outcome of the final
status negotiations.79
Consequently, the Palestinian Authority – “an interim local government body
with restricted powers”80 – may best be seen as an administration to which the
occupant has devolved competence. The drafters of Geneva Convention IV
had envisaged that this could occur during a prolonged occupation, without
terminating that occupation.81 As Bruderlein notes, the end of occupation
requires the termination of the military control of the Occupying Power over
the governmental affairs of the occupied population that limits that people’s
right to self-determination.82 This resonates with Judge Huber’s definition of
independence in the Island of Palmas case, namely “the right to exercise therein,
to the exclusion of any other State, the functions of a State”.83 Obviously
occupation turns this on its head, as occupation lies in the exclusion of the
right of the territorial sovereign to exercise power on its territory. Thus, for
instance, in his separate opinion in the Armed activities on the territory of the
Congo case, Judge Kooijmans quoted with approval from the United States’
Manual on the Law of Land Warfare:
occupation presupposes a hostile invasion, resisted or un-resisted, as a result of
which the invader has rendered the invaded government incapable of exercising
its authority, and [secondly] that the invader is in a position to substitute its own
authority for that of the former government.84
Given the restrictions on the powers of the Palestinian Authority in the Interim
Agreement, if Principle Seven of the Disengagement Plan is to be taken at
face value in its avowal that “the plan is without prejudice to the relevant

78 Singer, J., The Declaration of Principles on Interim Self-Government Arrangements: some legal aspects:
<gopher://israel-info.gov.il:70/00/mad/dop/ 940201s.dop>, on file with author. This article
was also published by the International Association of Jewish Lawyers and Jurists in 1 Justice
4 (1994).
79 See Singer, J., Aspects of foreign relations under the Israeli-Palestinian Agreements on interim self-
government arrangements for the West Bank and Gaza, 26 Israel Law Review 268 (1994), pp. 269-
273.
80 Crawford, above, n. 35, p. 444.
81 See Pictet, above, n. 22, pp. 62-63, and pp. 272-276. As Dajani notes, above, n.76, pp. 77-78,
there is a presumption against the creation of a new State on a territory under belligerent
occupation. These are generally seen as puppet States which lack independence. See also
Crawford, above, n. 35, pp. 78-83 and pp. 156-157; and Marek, K., Identity and Continuity of
States in Public International Law (Droz: Geneva: 1968, 2nd Edn.), pp. 110-120. Dajani (at pp.
90-91) argues that separation between the PLO and Palestinian Authority preserves Palestinian
negotiators’ independence from Israel, and thus avoids the application of this presumption.
82 Bruderlein, above, n. 11, p. 1.
83 Island of Palmas case (United States/Netherlands, 1928), 2 Reports of International Arbitral
Awards 829, p. 838.
84 Separate opinion of Judge Kooijmans, 45 International Legal Materials (2006) p. 360, para.
45.
20 Articles

agreements”, then the Plan contains an intractable contradiction. It cannot

both efface Israel’s responsibilities for Gaza and yet maintain the legal integrity
of the Oslo instruments.
If, however, implementation of the Disengagement Plan were to amount to
a unilateral termination of occupation, all other things being equal, breach of
treaty probably would not be fatal to an Israeli claim that it had successfully
divested itself of responsibility for Gaza’s population, even although this had
been effected unlawfully in a manner which engaged Israel’s responsibility.
The legal consequences of breach of the Interim Agreement would, however,
in principle only be relevant in the bilateral relations between Israel and
Palestine. Palestine could choose either to pursue remedies available under
Article XXI of the Interim Agreement,85 or simply disregard the breach. For
third States (and international organisations), breach of a bilateral agreement
is a res inter alios acta in which they have no legal interest, and which entails no
mandatory legal consequences for them.

8 TERMINATION OF OCCUPATION –
A NEW NORMATIVITY?
Israel’s obligations towards Gaza are not delimited solely by the law of
occupation and the bilateral Olso instruments, but also by general international
law.86 It may be recalled that in the Legal consequences of a wall Advisory Opinion,
the International Court of Justice authoritatively affirmed the entitlement of
the Palestinian people to the right of self-determination, ruling that this had
been recognised by Israel,87 and moreover was a right erga omnes whose
realisation all U.N. Member States had the duty to promote.88 Disengagement
concerns a possible change in the international status of territory. Given its
status as an “essential principle” of contemporary international law, the
principle of self-determination must play a significant role in the legal appraisal
of disengagement, particularly in evaluating the implications for third States
and international organisations.

85 Article XXI (Settlement of differences and disputes) provides: “Any difference relating to
the application of this Agreement shall be referred to the appropriate coordination and
cooperation mechanism established under this Agreement. The provisions of Article XV of
the [Declaration of Principles] shall apply to any such difference which is not settled through
the appropriate coordination and cooperation mechanism, namely:
1. Disputes arising out of the application or interpretation of this Agreement or any related
agreements pertaining to the interim period shall be settled through the Liaison
Committee;
2. Disputes which cannot be settled by negotiations may be settled by a mechanism of
conciliation to be agreed between the Parties.
3. The Parties may agree to submit to arbitration disputes relating to the interim period,
which cannot be settled through conciliation. To this end, upon the agreement of both
Parties, the Parties will establish an Arbitration Committee.”
86 See Crawford, above, n. 35, pp. 448, n. 286.
87 43 International Legal Materials (2004), pp. 1041-1042, para. 118.
88 43 International Legal Materials (2004), pp. 1034, para. 88: see also, p. 1053, paras.155-156.
Israel’s withdrawal from Gaza, the Law of Occupation and of Self-Determination 21

The International Law Commission’s exegesis of the Court’s jurisprudence

argues that self-determination is not simply an obligation erga omnes which all
States must respect, but also that it has ius cogens status. In other words, that it
is peremptory – States cannot derogate from its exigencies in their international
relations.89 Doctrine affirms that there is a conceptual connection between
the two categories of obligations erga omnes and ius cogens norms, but does not
conclusively affirm their coincidence.90 De Hoogh underlines that obligations
erga omnes are essentially connected with remedies available to States following
a breach of international law, whereas the notion of ius cogens norms places
emphasis on their substantive content.91 When considering the impact of self-
determination on the law of occupation, the issue is that of the influence of its
substantive content – in particular all States’ duty to promote respect for and
realisation of this right – rather than the remedies to which they may have
recourse following a denial of self-determination.
Termination of occupation, to be legally effective, must be in conformity
with the requirements of self-determination. This is a matter of concern to all
States. If the exigencies of self-determination are disregarded, then this breach
of self-determination can only entail a duty for States of non-recognition of
the illegal situation thus created, as well as a duty not to render aid or assistance
in maintaining that illegal situation.92 Nor would States be absolved of their
duty to promote, through joint and separate action, the actual realisation of
the right of the people entitled to self-determination.93
In the Legal consequences of a wall Advisory Opinion, the Court’s elucidation
of the implications of the Palestinian people’s right to self-determination is
rather terse and couched abstractly. This attracted criticism from within the
Court itself. For instance, while endorsing the Court’s affirmation of the
Palestinian people’s right to self-determination, Judge Higgins thought it “quite
detached from reality for the Court to find that it is the wall that presents a
‘serious impediment’ to the exercise of this right”.94 Nevertheless, elsewhere

89 International Law Commission, Report of the work of the 53rd session, U.N. Doc.A/56/10,
Commentary to Article 40 of its 2001 Articles on Responsibility of States for Internationally Wrongful
Acts, ibid 282 at p. 284, para. 5: reproduced at: <http://www.un.org/law/ilc/reports/2001/
english/chp4.pdf>, and also, Crawford, J, The International Law Commission’s Articles on State
Responsibility: Introduction, Text and Commentaries (Cambridge U.P.: Cambridge: 2002), pp. 246-
247.
90 See, for instance, de Hoogh, A., Obligations Erga Omnes and International Crimes (Kluwer: The
Hague: 1996), pp. 53-56, p. 91; and Ragazzi, M., The Concept of International Obligations Erga
Omnes (Clarendon Press: Oxford: 1997), Chapter Three, p. 182 and p. 190. See also, Scobbie,
I., Unchart(er)ed waters?: consequences of the advisory opinion on the legal consequences of the construction
of a wall in the Occupied Palestinian Territory for the responsibility of the UN for Palestine, 16 European
Journal of International Law 941 (2005), pp. 949-952.
91 de Hoogh, above, n. 90, p. 53: compare Ragazzi, above, n. 90, p. 203 et seq.
92 Compare Legal consequences of a wall Advisory Opinion, 43 International Legal Materials (2004)
p. 1053, para. 159.
93 Compare Legal consequences of a wall Advisory Opinion, 43 International Legal Materials (2004),
p. 1034, para.88 and p. 1053, para. 156.
94 Legal consequences of a wall Advisory Opinion, separate opinion of Judge Higgins, 43
International Legal Materials 1058 (2004), pp. 1062-1063, para. 30: see pp. 1062-1063, paras.
28-31.
22 Articles

and also in the context of an argument on self-determination, Judge Higgins

cautioned against:
the pursuance of a policy of legal deconstructionism – the systematic attempt to
empty everything of all substance and meaning. Resolutions must be shown to say
nothing. Findings must be shown not to have been made. The substantive rights of
others must be shown to amount to nothing more than United Nations procedures
that may or may not be invoked, but which have no objective existence of their
own.95
The question is therefore that of identifying the content of self-determination
– the aspects of the “objective existence” of this right – relevant to the
termination of occupation.
Like many legal concepts, self-determination designates a core content and
an associated, yet integral, bundle of rights and duties. The core content is
clear:
all peoples have the right freely to determine, without external interference, their
political status and to pursue their economic, social and cultural development, and
every State has the duty to respect this right in accordance with the provisions of
the Charter.96
Further:
The establishment of a sovereign and independent State, the free association or
integration with an independent State or the emergence into any other political
status freely determined by a people constitute modes of implementing the right of
self-determination by that people.97
Following Drew’s analysis,98 self-determination has two distinct vectors. The
classic formulation of its core content emphasises self-determination as process
– the right freely to determine a political status – but this entails that self-
determination must have a substantive content:
the right to a process does not exhaust the content of the right of self-determination
under international law. To confer on a people the right of “free choice” in the
absence of more substantive entitlements – to territory, natural resources, etc –
would simply be meaningless. Clearly, the right of self-determination cannot be
exercised in a substantive vacuum. This is both explicit and implicit in the law. For
example, implicit in any recognition of a people’s right to self-determination is
recognition of the legitimacy of that people’s claim to a particular territory and/or
set of resources...[T]he following can be deduced as a non-exhaustive list of the
substantive entitlements conferred on a people by virtue of the law of self-
determination...: (a) the right to exist – demographically and territorially – as a

95 Professor Higgins, advocate for Portugal, East Timor case (Portugal v. Australia), Pleadings,
CR.1995/13 (13 February 1995), p. 8, para. 1.
96 General Assembly resolution 2625 (XXV) (24 October 1970), Declaration on principles of
international law concerning friendly relations and co-operation among States in accordance with the
Charter of the United Nations: affirmed Legal consequences of a wall Advisory Opinion, 43
International Legal Materials (2004), pp. 1034-1035, paras. 88-89.
97 General Assembly resolution 2625.
98 Drew C, The East Timor story: international law on trial, 12 European Journal of International
Law 651 (2001).
Israel’s withdrawal from Gaza, the Law of Occupation and of Self-Determination 23

people; (b) the right to territorial integrity; (c) the right to permanent sovereignty
over natural resources; (d) the right to cultural integrity and development; and (e)
the right to economic and social development.99
In connection with the Israeli planned withdrawal from Gaza, two aspects of
self-determination take on particular importance: the exercise of the process,
of the free determination by the Palestinian people of its political status; and
the substantive issue of the integrity of the self-determination unit.
Drew notes that:
Despite its text book characterization as part of human rights law, the law of self-
determination has always been bound up more with notions of sovereignty and title
to territory that what we traditionally consider to be “human rights”.100
This uncontroversial view also found expression in Palestine’s written statement
to the International Court during the Legal consequences of a wall Advisory
Opinion proceedings. Palestine repeatedly spoke of “the territorial sphere
over which the Palestinian people are entitled to exercise their right of self-
determination”.101
Similarly, in the East Timor case proceedings, Portugal underlined that self-
determination has a territorial basis, and that its exercise simultaneously decides
both the destination of the people and of the territory. Portugal described
the relationship between the people and the territory as a “principle of
individuality”. This entails that the territory which is the basis of the right is
legally distinct from any other territory and, moreover, is entitled to territorial
integrity. It forms a single unit which must not be dismembered. Further:
un territoire qui constitute l’assise du droit d’un peuple á disposer de lui même...ne
peut changer de statut juridique que par un acte d’autodétermination de ce peuple.
La Résolution 1541 du 17 décembre 1960 de l’Assémblée générale précise bien
cette norme.102
Leaving to one side East Jerusalem, which Israel has purported to annex despite
the protests of other States and the United Nations that this is illegal,103 Israel
and the Palestine Liberation Organisation have agreed that the West Bank

99 Drew, above, n. 98, p. 663: paragraph break suppressed and notes omitted: for a similar
affirmation of a substantive core content of self-determination, see Orakhelashvili, A., The
impact of peremptory norms on the interpretation and application of United Nations Security Council
resolutions, 16 European Journal of International Law 59 (2005), p. 64.
100 Drew, above, n. 98, p. 663.
101 See, e.g. Legal consequences of a wall Advisory Opinion Pleadings, Palestine Written Statement,
p. 239, para. 548 and p. 240, para. 549.
102 East Timor Pleadings, Portuguese Memorial (18 November 1991), p. 195, para. 7.01: emphasis
suppressed in quotation. See also Legal consequences of a wall Advisory Opinion Pleadings,
League of Arab States Written Statement, p. 62, para. 8.2 and p. 76, para. 8.28.
103 For instance, for the views of the European Union, see, e.g. Marston, G. (ed.), United Kingdom
materials on international law, 61 British Yearbook of International Law 463 (1990) p. 624; ibid, 62
British Yearbook 535 (1991), pp. 696, 697; and ibid, 64 British Yearbook 615 (1993), p. 724; for
the United States’ view, see 1976 United States practice in international law, p. 634, and for a
consensus statement issued by the Security Council on 12 November 1976, see ibid, 711 at p.
712; see also, in particular, Security Council resolutions 476 (30 June 1980) and 478 (20
August 1980), and the review of Security Council action at Legal consequences of a wall Advisory
Opinion, 43 International Legal Materials (2004), p. 1031, para. 75.
24 Articles

and Gaza form “a single territorial unit” whose integrity is to be preserved

pending the conclusion of permanent status negotiations.104 Consonant with
the International Court’s finding that the Interim Agreement affirmed the
Palestinian people’s right to self-determination,105 this simply records the status
and integrity of the West Bank and Gaza as a single self-determination unit,
upon which the Palestinian people are entitled to exercise that right. Further,
relying on the Interim Agreement, the Israel High Court has affirmed Israel’s
recognition of the unity of the West Bank and Gaza as a single territorial unit.106
In the case of withdrawal from Gaza, two aspects of self-determination assume
fundamental importance: the substantive aspect of the territorial integrity of
the self-determination unit; and the process aspect of the free expression of
the will of the Palestinian people.
As Portugal declared in the East Timor case proceedings, the fundamental
idea that dominates the exercise of the right of self-determination is that of
freedom of choice:
au sens où le choix accompli par la population concernée doit s’être effectué en
l’absence de toute contrainte extérieure, notamment militaire.107
A situation imposed unilaterally by an occupant involves no choice on the
part of the population entitled to self-determination, and thus cannot under
any circumstances be considered as an exercise of that right. This does not
obser ve – indeed it brazenly disregards – the process aspect of self-
determination, and consequently cannot change the status of the territory in
question. As Australia affirmed during the East Timor case proceedings, a State
will:
breach the obligation to respect the right of a people to self-determination if its
conduct prevents or hinders the exercise by the people of a non-self-governing
territory of their right freely to determine their future political status.108
Consequently, any claim that the international status of Gaza may be changed
by virtue of unilateral action undertaken by Israel which does not take into
account the free choice of the indigenous population is manifestly a breach of
self-determination, in addition to a breach of the provisions of the Interim
Agreement.

104 See the 1993 Declaration of Principles on Interim Self-Government Arrangements, Article
IV; and the 1995 Washington Israeli-Palestinian Interim Agreement on the West Bank and
the Gaza Strip, Article XI.1: for commentary, see Shehadeh, R., From occupation to Interim
Accords: Israel and the Palestinian Territories (Kluwer: London: 1997), pp. 35-37.
The question of Jerusalem is, of course, a matter reserved for the permanent status
negotiations, see the Agreed minutes to the Declaration of Principles on Interim Self-
Government Arrangements, Understanding in relation to Article IV; and 1995 Interim
Agreement, Articles XVII.1 and XXXI.5.
105 Legal consequences of a wall Advisory Opinion, 43 International Legal Materials (2004), pp.
1041-1042, para.118.
106 Ajuri v. IDF Commander, HCJ 7015/02 (3 September 2002), [2002] IsrLR 1, opinion of
President Barak, pp. 17-18, para. 22. See also Lein, above n. 12, pp. 20-21, who notes, inter
alia, that Israel incorporated the Interim Agreement in its entirety into its military legislation
in both the West Bank and Gaza, and that this legislation has not been revoked.
107 East Timor Pleadings, Portuguese Memorial, p. 91, para. 4.22.
108 East Timor Pleadings, Australian Counter-Memorial (1 June 1992), p. 167, para. 375.
Israel’s withdrawal from Gaza, the Law of Occupation and of Self-Determination 25

To evaluate the self-determination issues that might be implicated in Israel’s

withdrawal by concentrating solely on Gaza is, however, to adopt too narrow a
focus. To note that no self-determination process has taken place in Gaza is to
consider only the procedural aspect of the right: it fails to consider its
substantive content. One substantive aspect is decisive in evaluating the
disengagement plan: the population of Gaza alone cannot exercise a right of
self-determination. It possesses no such right: in the case of Palestine, that
right belongs to the population of the territorial self-determination unit as a
whole which comprises the West Bank (including occupied East Jerusalem) as
well as Gaza. The territorial integrity of a self-determination unit109 cannot be
disrupted, particularly by a belligerent occupant:
If an occupant controlled only part of a state and that part was not considered to be
a distinct unit entitled to self-determination, the occupant would not be entitled to
effect the secession of the occupied area (as in Northern Cyprus). Similar
considerations imply that the occupant would not be entitled to establish a new
government in such a region even if its inhabitants supported such an act.110
Whether one considers either the process aspect of self-determination, or the
substantive aspect of the occupant’s duty to maintain the integrity of the
territory, Israel’s unilateral withdrawal – insofar as this aims to change the
international status of Gaza – either fails to observe the requirements of the
former, or threatens to breach the latter, or both.111 Accordingly, Israel’s
withdrawal does not respect the right of the Palestinian people to self-
determination and thus is in breach of international law, whether respect for
self-determination is conceived of as an obligation erga omnes incumbent upon
all States or as a peremptory norm. Within the compass of the law of self-
determination, what consequences flow for the international legal status of
Gaza after Israel’s withdrawal?

9 THE NORMATIVE CONSEQUENCES OF

SELF-DETERMINATION
If it is correct to conclude that Israel’s unilateral attempt to change the
international status of Gaza is in breach of the Palestinian people’s right to
self-determination, then other States have a duty not to endorse the result
Israel seeks to achieve. Even if self-determination is regarded only as an
obligation erga omnes, as opposed to a ius cogens norm, then its breach entails a

109 On the territorial integrity of self-determination units, albeit within the context of
decolonisation, see, e.g. Cassese, above n. 43, p. 72 and pp. 78-79.
110 Benvenisti, above, n. 51, 183: see also, Roberts, above, n. 26, pp.28-29; and Sassòli, M., Article
43 of the Hague Regulations and peace operations in the twenty-first centur y: <http://
www.ihlresearch.org/ihl/pdfs/sassoli.pdf>, 14. In the separate opinion he appended to the
Legal consequences of a wall Advisory Opinion, Judge Koroma expressed this point more bluntly:
“Under the régime of occupation, the division or partition of an occupied territory by the
occupying Power is illegal”, 43 International Legal Materials 1056 (2004), p. 1057, para. 4.
111 As noted above, it will also be in breach of the obligation Israel assumed under Article
XXXI.7 of the 1995 Interim Agreement.
26 Articles

duty of non-recognition for third States.112 Further, in its commentary on Article

6 of Geneva Convention IV regarding the conditions under which the
Convention ceases to apply, the ICRC indicated that where a termination of
occupation involves a change in the international status of the occupied
territory:
The Convention could only cease to apply as the result of a political act, such as the
annexation of the territory or its incorporation in a federation, and then only if the
political act in question had been recognized and accepted by the community of
States; if it were not so recognized and accepted, the provisions of the Convention
must continue to be applied.113
Non-recognition of any change in Gaza’s status is thus doubly mandated.
This, however, is based on the assumption that Israel has withdrawn from
Gaza and no longer exerts effective control over the discharge of governmental
functions. If this is so, then at least an initial supposition must be that the
exercise of sovereignty resides with the Palestinian Authority—that it has gained
“the right to exercise...to the exclusion of any other State, the functions of a
State”.114 As von Glahn observes, in all cases of the termination of belligerent
occupation of enemy territory “it can be assumed that the legitimate sovereign
will be in control of the territory in question as soon as the occupation ends”.115
Aronson saw this as a further complication in the post-withdrawal puzzle of
Gaza’s status which he raised with “a senior member of Israel’s national security
establishment”. Aronson thought that there were three possible solutions:
Palestinian sovereignty; Egyptian rule; or some third-party administration. He
was informed that there was a fourth option, “None of the above”:
In other words, an acceptable scenario for Israel would be the continuation of the
control and authority exercised by Palestinian institutions created by Israel and the
PLO under the Oslo accords, but now expanded de facto by an end to occupation.
Without the creation of a sovereign successor in the wake of Israel’s withdrawal, the
Gaza Strip under this scenario would belong to no state (terra nullius). This is an
extraordinary proposition.116
This indeed would be anomalous: international law prefers sovereignty over
territory to rest somewhere or other, and preferably with a State. The principal
contemporary exception of territory unclaimed by any State or putative State
is Antarctica, but that is regulated by treaty, as indeed are the West Bank and
Gaza by virtue of the Oslo instruments whose force and legal validity the
Disengagement Plan avowedly preserves.
Neither Egypt nor any third party have claimed rights of sovereignty or
administration over Gaza following disengagement. It therefore must be
considered whether withdrawal constitutes a devolution of authority to the

112 Legal consequences of a wall Advisory Opinion, 34 International Legal Materials (2004), p.
1053, para. 159.
113 Pictet, above, n. 22, p. 63.
114 Judge Huber, Island of Palmas case (1928), 2 Reports of International Arbitral Awards 829,
p. 838.
115 von Glahn, above, n. 16, p. 257.
116 Aronson, above, n. 4, p. 54.
Israel’s withdrawal from Gaza, the Law of Occupation and of Self-Determination 27

Palestinian Authority, causing it to become the presumptive government of

an independent Gaza, which is perceived as the initial, if partial, emergence
of Palestine as a State. Accordingly, simply by unilaterally removing its presence
from Gaza, has Israel propelled Gaza into the world of States? The validity of
this assumption depends on whether Gaza fulfils the internationally recognised
requirements for Statehood.
The classic account of the basic criteria for Statehood is that contained in
Article 1 of the 1933 Montevideo Convention on the Rights and Duties of
States. This provides:
The State as a person of international law should possess the following qualifications:
(a) a permanent population; (b) a defined territory; (c) government; and (d)
capacity to enter into relations with other States.117
These criteria constitute the minimum elements of Statehood118 and, as
Crawford notes, they are based on the principle of effectiveness of territorial
units,119 which is essentially a factual test. Manifestly, a permanent population
inhabits Gaza, and its borders are reasonably well-defined. The requirement
of territory for the purposes of the criteria of Statehood does not entail that
the territory in question has exactly defined or undisputed borders. If this
were the case, then Israel itself would not be a State. As the International
Court of Justice observed in the North Sea continental shelf cases, there is:
no rule that the land frontiers of a State must be fully delimited and defined, and
often in various places and for long periods they are not, as is shown by the case of
the entry of Albania into the League of Nations (Monastery of Saint Naoum, Advisory
Opinion, 1924, PCIJ, Series B, No.9, at p.10).120
In broad terms, the requirement of government entails that there is an
authority which is “in general control of its territory, to the exclusion of other
entities not claiming through or under it”.121 This formulation is obviously
influenced by Judge Huber’s definition of independence in the Island of Palmas
case. Indeed Crawford, like other doctrinal writers, substitutes independence

117 Reproduced, 29 American Journal of International Law: Document supplement 75 (1934).

118 See, for instance, Brownlie, I., Principles of Public International Law (Oxford U.P.: Oxford:
2003, 6th Edn.), pp. 70-72; Crawford, above, n. 35, pp. 45-62; Higgins, R., The Development of
International Law through the Political Organs of the United Nations (Oxford U.P.: London: 1963),
pp. 17-42; Jennings, R.Y. and Watts, A., Oppenheim’s International Law: Volume One, Peace
(Longmans: London: 1992, 9th Edn.), pp. 120-123; Lauterpacht, H., Recognition in
International Law (Cambridge U.P.: Cambridge: 1947), pp. 26-32; and Okeke, C.N.,
Controversial Subjects of Contemporary International Law (Rotterdam U.P.: Groningen: 1974),
p. 87. On Palestine and Statehood, see Boyle, F.A., The creation of the State of Palestine, 1
European Journal of International Law 301 (1990): the better view is expressed by Crawford
and Watson – see Crawford, J., The creation of the State of Palestine: too much too soon?, 1 European
Journal of International Law 307 (1990), his Israel (1948-1949) and Palestine (1998-1999): two
studies in the creation of States, in Goodwin-Gill, G. and Talmon, S. (eds.), The Reality of
International Law: Essays in Honour of Ian Brownlie (Clarendon Press: Oxford: 1999), p. 95,
and above, n. 35, pp.421-448; and Watson, above, n. 69 (Oslo Accords), pp. 60-63.
119 Crawford, above, n. 35, p. 6.
120 North Sea continental shelf cases (Federal Republic of Germany v. Denmark; Federal Republic of Germany
v. the Netherlands), ICJ Rep, 1969, 3 at p. 32, para. 46.
121 Crawford, above, n. 35, p. 59; see pp. 55-62.
28 Articles

for the traditional criterion of the capacity to enter into relations with other
States. As he correctly observes, this capacity is not confined to States and is
better seen as a consequence of, rather than a criterion, for Statehood.122
Independence is the central requirement of Statehood, which is dependent
on the existence of an effective government.123
A distinction must, however, be drawn between formal and actual
independence.124 Formal independence denotes the situation when an entity
apparently possesses the outward signs of Statehood: actual independence
describes the factual ability of the relevant authorities to exercise governmental
powers – in other words, whether the government in fact fulfils Judge Huber’s
definition of independence. Formal independence can mask a relationship
of dependence, where an ostensibly independent government acts under the
direction of another State. This relationship is frequently associated with some
form of occupation, such as Japan’s creation of Manchukuo in occupied
Manchuria in the early 1930s.125 If, for the purposes of argument, we assume
that disengagement has terminated occupation in terms of the (traditional)
law of armed conflict, and an effective and independent government emerges,
may that government legitimately be able to claim that Gaza is a State?
The traditional criteria for Statehood – population, territory, government
and independence – are based on the notion of (factual) effectiveness, but in
contemporar y international law Statehood is tempered by normative
considerations. If an entity, ostensibly qualified to be a State according to the
traditional criteria, emerges into the international arena in breach of a
normative component of Statehood, then its existence is tainted by illegal
creation. Consequently it cannot claim to be a State. A clear example of the
denial of Statehood to an entity that apparently fulfilled the traditional
descriptive requirements was Rhodesia, which emerged as a result of the
Unilateral Declaration of Independence promulgated by its minority racial
government in 1965. This was seen as the creation of an entity in violation of
the right to self-determination which thus could not be recognised as a State.126
Breach of self-determination has also been adduced as a reason for the non-
recognition of the “homeland-States” or bantustans created by the South

122 Crawford, above, n. 35, pp. 61-62: see also, Brownlie, above n. 118, pp. 71-72; and Jennings
and Watts, above, n. 118, p. 122. In relation to Palestine’s ability to conduct foreign relations
under the Oslo instruments, see Singer, above, n. 79 (Aspects of foreign relations).
123 See, e.g. Crawford, above, n. 35, p. 62; Higgins, above, n. 118, p. 25; Lauterpacht, above, n.
118, pp. 27-28; and Marek, above, n. 81, p. 162.
124 See, for instance, Brownlie, above, n. 118, pp. 71-72; Crawford, above, n. 35, pp. 67-89;
Higgins, above, n. 118, pp. 26-27; Lauterpacht, above, n. 118, pp. 26-30; and Marek, above,
n. 81, pp. 165-180.
125 See, e.g. Crawford, above, n. 35, pp. 74-76, pp. 78-83; Dugard, J., Recognition and the United
Nations (Grotius: Cambridge: 1987), pp. 27-35; Lauterpacht, above, n. 118, pp. 46-47; and
Marek, above, n. 81, pp. 110-122, and pp. 173-179. Article 47 of Geneva Convention IV
attempts to guard against the formation of ostensibly independent, but nonetheless puppet,
authorities in occupied territory, see the materials cited above, n. 81.
126 See, for instance, Crawford, above, n. 35, pp. 128-131; Dugard, above, n. 125, pp. 90-98;
Okeke, above, n. 118, p. 81 et seq; and Wilson, above, n. 44, p. 69.
Israel’s withdrawal from Gaza, the Law of Occupation and of Self-Determination 29

African government during the apartheid period.127 This consequence follows

logically from the status of self-determination as a peremptory norm of
international law which cannot be disregarded in international relations.
Entities which purport to be States but which have been created in violation
of self-determination are legal nullities:
they are without legal effect as States, not because they fail to meet the essential
requirements of statehood but because their existence violates a peremptory rule
of international law.128
Accordingly, even if we assume that Israeli disengagement terminated its
occupation and that Gaza fulfils the traditional descriptive requirements of
Statehood, it cannot claim to be nor can it be regarded as a State by other
international actors. Israel’s Disengagement Plan violated the process aspect
of the Palestinian people’s right to self-determination because of the absence
of popular consultation. Further, were the claim to be made that Gaza alone
had emerged as the putative State of Palestine, this would breach the substantive
aspect of self-determination which prohibits the dismemberment of the self-
determination unit. Consequently, any claim that Gaza can achieve Statehood
as a result of the disengagement is the assertion of a legal nullity:
An act offending against jus cogens cannot be voidable or relatively invalid but only
void. All acts and transactions, such as treaties, unilateral acts and actions of states
that offend again jus cogens are void and not voidable.129
Any consideration of the factual effectiveness of the territorial entity is over-
ridden by the circumstance of illegal creation arising from the breach of the
peremptory norm of self-determination. Whether seen as a norm with ius
cogens status or as an obligation erga omnes, third States are under a duty not to
recognise Gaza as a State.
This argument is, however, redundant because it is clear that Gaza is not
formally or actually independent. A State’s sovereignty extends over its
territorial sea, and to the airspace above its territorial sea and land territory.130
The Disengagement Plan expressly states that Israel will continue to exercise
control of Gaza’s maritime zones and airspace. If a State claims to possess a
discretionary authority to intervene in the internal affairs of a putative State,
whether or not this claim is based in consent, this is inconsistent with the

127 See Crawford, above, n. 35, pp. 338-348; Dugard, above, n. 125, pp. 98-108: and also, more
generally, deKieffer, D. and Hartquist, D., Transkei: a legitimate birth, 13 New England Law
Review 428 (1978); Dugard, J., South Africa’s “independent” homelands: an exercise in
denationalization, 10 Denver Journal of International Law and Policy 11 (1980); Heydt, D.,
Nonrecognition of the independence of Transkei, 10 Case Western Reserve Journal of International
Law 167 (1978); Norman, G., The Transkei: South Africa’s illegitimate child, 12 New England
Law Review 585 (1977), and his The Transkei revisited, 13 New England Law Review 792
(1978); Richardson, H., Self-determination, international law and the South African bantustan
policy, 17 Columbia Journal of Transnational Law 185 (1978); and Rogers, B., Divide and
rule: South Africa’s bantustans (International Defence and Aid Fund: London: 1980, 2nd
Edn.).
128 Dugard, above, n. 125, p. 131, see pp. 127-131; and also Crawford, above, n. 35, pp. 97-107.
129 Orakhelashvili, above, n. 99, p. 83.
130 See, e.g. Jennings and Watts, above, n. 118, p. 479, p. 573, pp. 600-601 and pp. 650-655.
30 Articles

latter’s formal independence.131 While Article XXXI.13 of the Interim

Agreement contained arrangements for effective Israeli control of the maritime
areas off Gaza, which one can only assume are maintained in the
Disengagement Plan, the usurpation of authority over airspace appears to be
unilateral. Either way, Gaza is unable to exercise “to the exclusion of any other
State, the functions of a State” in these areas, which is fatal to any claim to
independence. As Israel continues to exercise governmental functions in Gaza,
how can it be claimed that occupation has ended?
It is impossible to accept at face value and in good faith the provisions of
the Revised Disengagement Plan because of the contradictions it contains. It
is at once a claim both to divest Israel of responsibilities for Gaza’s population
while retaining powers over the territory that would otherwise fall to be
exercised by the legitimate government. Principle Six, that completion of the
plan will dispel claims regarding Israel’s responsibility for the Palestinians within
Gaza, clearly contemplates that Israel will either divest itself of responsibility
for Gaza completely, or that it will remain as occupant of the territory, but
without the concomitant obligations, mandated by international law, owed to
its inhabitants. The latter is a legal impossibility: a State cannot unilaterally
absolve itself from the performance of its duties under international law. It
can, of course, act as if these obligations did not exist and thus breach them,
but a State cannot unilaterally cancel its obligations and declare that they no
longer exist. The former option, that disengagement has terminated
occupation, is not borne out by an analysis of the terms and implications of
the Disengagement Plan. The Plan is a disingenuous manifesto whereby Israel
seeks to foist onto the Palestinian Authority the dual status of sovereign
government in Gaza while maintaining it as a local administration in the West
Bank whose authority is ultimately derived from the military government. It is
a classic example of an occupant “inclined to make use of arrangements where
authority is said to be exercised by [a] transitional government”132 in an attempt
to disguise the truth in the hope of evading responsibility.

10 THE REALITIES OF EFFECTIVE CONTROL –

OPERATION SUMMER RAIN
This assessment of the post-disengagement status of Gaza is only reinforced
by Operation Summer Rain which was launched on 28 June 2006 in response
to the seizure of IDF Corporal Gilad Shalit on 25 June 2006 by Palestinian
militants. The IDF stated that the purpose of its military intervention in Gaza
was:

131 See Crawford, above, n. 35, pp. 71-72.

132 Separate opinion of Judge Kooijmans, Armed activities on the territory of the Congo case, 45
International Legal Materials (2006), p. 359, para. 41.
Israel’s withdrawal from Gaza, the Law of Occupation and of Self-Determination 31

to prevent the kidnappers from transferring the soldier within or out of the Gaza
Strip and otherwise disrupt their activity, and to send a clear message to the terror
organizations holding the soldier captive that if he is not released safely and quickly,
further operational means remain available to the IDF.133
This communique also noted that, inter alia, that armoured forces had entered
into the Dahaniya area which “represents a strategic control and observation
point over the area of Rafah and the Southern Gaza Strip”.
This is not the place to examine the legality of the capture of Corporal
Shalit, the military response by Israel, or the conformity of the conduct of the
hostilities with international humanitarian law. It is enough to note that the
re-entry of Israeli ground forces demonstrates that the Disengagement Plan
did not end the occupation, even if one applies the traditional doctrine of
effective control. The ease with which the IDF re-established a physical presence
on the ground in Gaza clearly fulfils the ruling in Prosecutor v Naletili and
Martinovi that a guideline to determine whether an occupation exists is whether
“the occupying power has...the capacity to send troops within a reasonable
time to make the authority of the occupying power felt”.134 This test was not a
legal innovation created by the Yugoslav Tribunal but simply re-stated
established law, following the U.S. Military Tribunal at Nuremberg in the List
case. An occupation subsists when the military forces of the adversary can “at
any time they desired assume physical control of any part of the country”,135 as
the IDF did during Operation Summer Rain in Gaza.

133 IDF communication, Operation Summer Rain: IDF enters southern Gaza Strip to secure release of
abducted soldier, 28 June 2006: <www.mfa.gov.il/MFA/Government/Communiques/2006/
IDF%20enters%20southern%20Gaza%20Strip%20to%20secure%20release%20of%20
abducted%20soldier%2028-Jun-2006>: see also the Political-security Cabinet communique, 5
July 2006, <www.mfa.gov.il/MFA/Government/Communiques/2006/Political-Security%20
Cabinet%20Communique%205-Jul-2006>.
134 Naletili and Martinovi: <www.un.org/icty/naletilic/trialc/judgement/nal-tj030331-e.pdf>, p.
74, para.217.
135 VIII Law Reports of Trials of War Crimes Trials 34 (1949), p. 56.
32
 33

From Beirut to Brussels:

Universal Jurisdiction, Statelessness and
the Sabra and Chatila Massacres
Victor Kattan*

1 UNIVERSAL JURISDICTION AND

THE ISRAELI-PALESTINIAN CONFLICT
Despite recent developments at the International Court of Justice (hereafter
“ICJ”),1 the Israeli-Palestinian conflict has, and continues to be, dominated by

* Assistant Editor, Yearbook of Islamic and Middle Eastern Law.

1 See the Advisory Opinion on the Construction of a Wall in the Occupied Palestinian Territory,
43 International Legal Materials (2004), pp. 1009-1098. See also “Agora: ICJ Advisory Opinion
on Construction of a Wall in the Occupied Palestinian Territory” 99 American Journal of
International Law (2005), pp. 1-140 with contributions from Watson, Pomerance, Falk,
Wedgwood, Murphy, Scobbie, Kretzmer, Imseis and Dennis. See further Roger O’Keefe, “Legal
Consequences of the Construction of a Wall in the Occupied Palestinian Territory: A
Commentary” 37 Revue Belge De Droit International (2004), pp. 92-149; Iain Scobbie, “The Wall
and International Humanitarian Law” 9 Yearbook of Islamic and Middle Eastern Law (2002-2003),
pp. 495-506; Pieter H.F. Bekker, “The World Court’s Ruling Regarding Israel’s West Bank
Barrier and the Primacy of International Law: An Insider’s Perspective” 38 Cornell International
Law Journal (2005), pp. 553-568; Aeyal M. Gross, “The Construction of a Wall between The
Hague and Jerusalem: The Enforcement and Limits of Humanitarian Law and the Structure
of Occupation” 19 Leiden Journal of International Law (2006), pp. 1-48; Marco Pertile, “Legal
Consequences of the Construction of a Wall in the Occupied Palestinian Territory: A Missed
Opportunity for International Law?” 4 Italian Yearbook of International Law (2004), pp. 121-
161; Andrea Bianchi, “Dismantling the Wall: The ICJ’s Advisory Opinion and Its Likely Impact
on International Law” 47 German Yearbook of International Law (2004), pp. 343-391; Paul J. I.
M. De Waart, “International Court of Justice Firmly Walled in the Law of Power in the Israeli-
Palestinian Peace Process” 18 Leiden Journal of International Law (2005), pp. 467-487; Michael
Lynk, “Down by Law: the High Court of Israel, International Law, and the Separation Wall”
35 Journal of Palestine Studies (2005), pp. 6-24; and Susan Akram, Michael Link, “The Wall and
the Law: a Tale of Two Judgements” 24 Netherlands Quarterly of Human Rights (2006), pp. 61-
106. The Israel Law Review dedicated a special double issue to discuss the domestic and
international legal issues arising from the construction of the “separation barrier” in volume
39, numbers 1-2. The Palestine Yearbook of International Law has also done something similar
reprinting the advisory opinion and Palestine’s submission. The current author’s paper, “The
Wall, Obligations Erga Omnes and Human Rights: The Case for withdrawing the European
Community’s Terms of Preferential Trade with Israel”, appears in Volume 13 of that Yearbook,
pp. 71-89.
34 Articles

politics.2 Since the early 20th century extra-judicial executions, assassinations,

acts of terror and war crimes have characterised the course of the conflict,
seriously undermining the rule of law.3 Although both sides have committed
appalling atrocities against civilian populations there remains a gross disparity
in the application and enforcement of criminal law in Israel and the occupied
Palestinian territories (hereafter “OPTs”).4 Whilst Israel can try Palestinians
in its courts, Palestinians are not permitted to try Israeli nationals in West
Bank or Gaza courts for any infringement of the criminal law.5 Due to the
general failure of the Israeli legal system to provide adequate remedies for
Palestinians harmed by Israeli nationals, the courts of third States have, in
recent years, invoked jurisdiction on the principle of universality to hold Israelis
accused of war crimes to account for their actions.6 On 10 September 2005,

2 In 2005, an interesting series of lectures were organised by the Sir Joseph Hotung Programme
on Law, Human Rights and Peace Building in the Middle East at the School of Oriental and
African Studies (SOAS), University of London, to examine the role of law and politics in the
Middle East Peace Process. Participants included former and current Palestinian and Israeli
negotiators such as Omar Dajani, Stephanie Koury, Leila Hilal and Moty Cristal, among others.
3 For a discussion of the legal issues involved in extra-judicial assassinations, see David Kretzmer,
“Targeted Killings of Suspected Terrorists: Extra-Judicial Executions or Targeted Killings?”
16 European Journal of International Law (2005), pp. 171-212; Orna Ben-Naftali and Keren R.
Michaeli “We Must Not Make a Scarecrow of the Law: A Legal Analysis of the Israeli Policy of
Targeted Killings” 36 Cornell International Law Journal (2003-2004), pp. 233-292.
4 Within Israel there have been relatively few prosecutions of Israeli soldiers who are alleged to
have carried out “shoot to kill orders” which has led some to argue that there is a culture of
impunity for atrocities committed against Palestinian civilians. See the report by the Israeli
human rights organisation B’Tselem, “Take No Prisoners: The Fatal Shooting of Palestinians
by Israeli Security Forces during “Arrest Operations” (May 2005) at: http://www.btselem.org/
Download/200505_Take_No_Prisoners_Eng.pdf (last accessed 7 October 2005) and
“Promoting Impunity: The Israeli Military’s Failure to Investigate Wrongdoing”, Human Rights
Watch, June 2005, available at their website: http://hrw.org/reports/2005/iopt0605/
iopt0605text.pdf (last accessed 7 October 2005).
5 According to Article 1. 2. b of Annex IV, Protocol Concerning Legal Affairs, Israeli-Palestinian
Interim Agreement on the West Bank and Gaza Strip, signed in Washington D.C. on 28
September 1995 between the State of Israel and the Palestine Liberation Organisation, Israel
has sole criminal jurisdiction over “offences committed in the Territory by Israelis”. The
Territory refers to the West Bank and Gaza Strip. For the text of the Interim Agreement see
36 International Legal Materials (1997), pp. 557-649.
6 For an article in the print media arguing that the U.K. has an obligation under the Geneva
Conventions Act of 1957 to “seek out and prosecute” alleged war criminals in OPTs, Kuwait
and East Timor, see Daniel Machover and Kate Maynard, “The U.K.’s duty to ‘universal
jurisdiction’” in the law supplement of The Times, 4 October 2005. This article is also available
via: www.timesonline.co.u.k./legalarchive. On 7 December 2005, The Center for Constitutional
Rights and the Palestinian Center for Human Rights brought a class action lawsuit against Avi
Dichter, the former Director of Israel’s General Security Service, on behalf of the Palestinians
who were killed or injured in an air strike on 22 July 2002, when the Israeli Air Force dropped
a one-ton bomb on al-Daraj, a residential neighbourhood in Gaza City in the OPT. In the
complaint, the plaintiffs claimed that: “… no adequate remedies are available to Plaintiffs
under the laws or in the courts of the OPT, which is the place in which the conduct giving rise
to the claim occurred, nor is any adequate remedy available in the State of Israel”. See the
class action law suit; Ra’ed Mohamad Ibrahim Matar v. Avraham Ditcher, United States District
Universal Jurisdiction, Statelessness and the Sabra and Chatila Massacres 35

Judge Timothy Workman, Chief Stipendiar y Magistrate at Bow Street

Magistrates’ Court (who is one of several judges in the U.K. dealing with the
special jurisdiction of Extradition and Terrorism Act cases), issued an arrest
warrant for Major General (retired) Doron Almog on suspicion that he
committed a grave breach of the Fourth Geneva Convention in Relation to
the Protection of Civilian Persons in Times of War of 1949 (hereafter Geneva
Convention IV), which is a criminal offence in England and Wales under the
Geneva Conventions Act of 1957.7 The warrant was issued in relation to the
destruction of 59 houses in the Rafah refugee camp on 10 January 2002.8 This
was not, however, the first time this principle of jurisdiction has been invoked
in relation to international crimes arising during the course of the Israeli-
Palestinian conflict or as a result of conflict elsewhere. On 19 July 2005, the
B.B.C. reported that the Afghan warlord Faryadi Zardad had been successfully

Court, Southern District Court of New York, 7 December 2005 (on file with author). Similarly,
in an international law opinion prepared by Oxford Public Interest Lawyers for the Association
for Civil Rights in Israel (ACRI) on the wall being built in the OPT they found that while
Israeli civilian courts are organizationally independent of the military they “cannot be regarded
as providing an opportunity for an effective remedy, in an impartial and substantively independent
setting, for Palestinians” (emphasis in original). See the Legal Consequences of Israel’s Construction
of a Separation Barrier in the Occupied Territories (University of Oxford, February 2004) available
at http://www.law.ox.ac.U.K./opbp/OXPIL%20Israel%20Barrier%20Opinion.pdf (last
accessed 17 November 2005) at para. 227.
7 See “Israeli war crimes suspect evades British Justice after U.K. court issues arrest warrant”,
Press Release, Hickman and Rose Solicitors, 11 September 2004: “This unprecedented arrest
warrant against a senior Israeli soldier was issued after years of failed efforts to obtain justice
through the Israeli judicial system because of the failure of the Israeli judiciary to combat
impunity…” For a commentary to the Geneva Conventions Act of 1957 see Elihu Lauterpacht
7 International and Comparative Law Quarterly (1958), pp. 133-142. He writes “the United
Kingdom has interpreted the obligation to provide effective penal sanctions as entitling, and
presumably as obliging, it to confer upon its courts ‘universal’ jurisdiction only over the crime
of piracy jure gentium … This appears to be the first occasion on which the courts have been
granted jurisdiciton over acts committed abroad by persons who are not British subjects.”
8 According to Hickman and Rose solicitors, Almog is also implicated in the killing of several
other people. He was due to speak at a synagogue in Solihull, Birmingham, on 11 September.
The police were unable (or unwilling) to make a decision whether to arrest Doron Almog in
the time available (i.e. before Mr Almog’s visit), but the police agreed to be neutral in relation
to any application to Bow Street Magistrates’ Court for an arrest warrant. See Daniel Machover
and Kate Maynard, “Prosecuting Alleged Israeli War Criminals in the U.K.” (draft article, 21
October 2005, on file with author). According to a report in an Israeli newspaper (Yuval Yoaz,
“IDF chief may also face legal proceedings in Britain”, Ha’Aretz, 13 September 2005) members
of the Israeli Yesh Gvul movement “were in contact recently with solicitor Daniel Machover of
the London-based law firm Hickman and Rose. They asked that the organisation’s name be
added to the complaint filed against Halutz and Ya’alon by the Palestinian Center for Human
Rights. The Israeli group also passed on ‘incriminating’ material it had amassed on incidents
in the Gaza Strip that were allegedly Almog’s responsibility”. Yishai Menuhin, a spokesperson
for the Israeli Yesh Gvul told the paper that: “We have lost our faith in the Supreme Court,
and in its ability to deliberate matters related to the IDF’s activities as an occupying power. We
are approaching instances abroad only after we have tried everything possible in Israel”.
36 Articles

prosecuted at the Old Bailey9 for torture and hostage taking in his home
country of Afghanistan.10 Britain’s Attorney-General Lord Goldsmith said that
Britain had decided to try the case because his crimes were so “merciless” and
such “an affront to justice” that they could be tried in any country.11 Judge
Treacy told Zardad that his crimes were so serious they “transcended national
boundaries”.12 He then told Zardad that the gravity of his crimes:
… is demonstrated by the fact that most unusually a person who has committed
them in another country can be tried and punished for them by the courts of this
country…It is clear to me from the evidence that for a period of over three years
you, as a powerful warlord, presided over a brutal regime of terror in areas under
your control. You represented the only real form of authority, law and government in
the areas under your control and you grossly abused your power (emphasis added).13
In late October 2002, Israel’s Chief of Staff, Shaul Mofaz, fled Britain after
being tipped off that Michel Abdel Massih Q.C., a British barrister, passed a
17-page dossier to the Director of Public Prosecutions alleging breaches of
the Geneva Conventions by forces under his command.14 This dossier was
subsequently passed on to Scotland Yard’s crimes against humanity unit for
an investigation.15 When Mofaz returned to Israel he was offered the position
of Defence Minister after Benjamin Ben-Elezier resigned.16 The Metropolitan
Police said that as Israel’s Defence Minister he was entitled to diplomatic
immunity17 and therefore a warrant was never issued for his arrest.18

9 The Central Criminal Court in England and Wales.

10 “Afghan Zardad jailed for 20 years”, B.B.C. News, 19 July 2005.
11 Ibid.
12 Ibid.
13 Ibid.
14 Stephen Farrell, “General Accused of War Crimes”, The Times, 30 October 2002. The British
solicitor Imran Khan acted as the solicitor in the case. See “Too much prima facie evidence”,
an interview with Dianne Luping, Palestine Report Online, 30 October 2002 (last accessed 10
April 2006).
15 Justin Huggler and Ian Burrell, “Scotland Yard Will Examine Claims of Israeli War Crimes”,
The Independent, 31 October 2002.
16 Justin Huggler, “General Linked to Jenin Atrocities Named Defence Chief”, The Independent,
1 November 2002. Huggler reported that, “General Mofaz had been advised to return to
Israel from Britain by the Israeli embassy after Scotland Yard opened an investigation into his
role in alleged war crimes.”
17 Chris McGreal, “Sharon’s ally safe from arrest in Britain” The Guardian, 11 February 2004.
McGreal wrote: “But Kathleen Cavanaugh, a professor of international law and author of an
Amnesty International report on Israel and the occupied territories, said diplomatic immunity
for crimes against humanity applied only to heads of state.”
18 According to a telephone conversation with Michel Abdel Massih QC on 3 May 2006, there
were two separate attempts to issue a warrant against Mofaz. It was argued that there was
prima facie evidence that targeted killings were a part of Israeli government policy and that
there was a link between these killings and Mofaz. At a two-day hearing, the Court did not
reject this contention, but merely ruled that on the basis of an analogy by reason to the
Belgium v. Congo case in the Hague, he was entitled to immunity. During the second attempt
to issue an arrest warrant District Judge CL Pratt ruled on 12 February 2004 that: “I recognise
that I am working in somewhat unchartered waters but having given the matter very
considerable consideration overnight and today I conclude that a Defence Minister would
automatically acquire [S]tate immunity in the same way as that pertaining to a Foreign Minister.
Universal Jurisdiction, Statelessness and the Sabra and Chatila Massacres 37

These series of high-profile-diplomatic incidents all occurred after 23

survivors of the Sabra and Chatila massacres, of whom 15 were stateless, filed
a complaint in a Belgian court on 28 June 2001, against Prime Minister of
Israel Ariel Sharon, Director-General of Israel’s Defence Ministry Amos Yaron
and a number of senior Lebanese officials, including former Lebanese Forces
(hereafter “LF”) leader Elie Hobeika for genocide, crimes against humanity
and grave breaches of Geneva Convention IV.19 The breakthrough in this case
came on 12 February 2003, when the Brussels Cour De Cassation (hereafter
“Belgium’s Supreme Court”) overruled a prior ruling by the Chambre Des Mises
en Accusation (hereafter, “Brussels Court of Appeals”) which held that
prosecution was not admissible against the alleged perpetrators of the Sabra
and Chatila massacres on the grounds that Belgian law required the presence
of the accused on Belgian territory.20 The Supreme Court ruled that although
the case could not go ahead against Ariel Sharon because he was entitled to
status immunity (i.e. immunity ratione personae) as the Prime Minister of Israel,
it could proceed against the other defendants in their absence under a Belgian
law which provided for universal jurisdiction in the case of genocide, crimes
against humanity and war crimes.21 Following this decision the Brussels Appeals
Court ruled on 10 May 2003 that Belgian courts shall have jurisdiction over
crimes provided for in this statute, “irrespective of where such offences were

Given that finding, I decline to issue the warrant requested”. For the text of the judgment,
see current developments in public international law, case comment by Colin Warbrick, 53
International and Comparative Law Quarterly (2004), pp. 771-773.
19 See the complaint lodged by the survivors against “Messrs. Ariel Sharon, Amos Yaron, and
other Israelis and Lebanese responsible for the massacre, killing, rape, and disappearance of
civilians that took place in Beirut between Thursday 16 and Saturday 18 September 1982 in
the camps of Sabra and Chatila and the surrounding area” in English at www.indictsharon.net/
cmptENen.pdf; for the original French version visit http://www.mallat.com/articles/
complaint.htm (last accessed 22 August 2005).
20 The defendants were based in Israel and Lebanon. See Belgian Court of Cassation Ruling
No. P.02.1139.F/1, 12 February 2003.
21 On the difference between status immunity and subject immunity see Lord Millet in Regina v.
Bartle and the Commissioner of Police for the Metropolis and Others, Ex Parte Pinochet; Regina v. Evans
and Another and the Commissioner of Police for the Metropolis and Others, Ex Parte Pinochet (On
Appeal from a Divisional Court of the Queen’s Bench Division), House of Lords, 24 March
1999. According to Lord Millet, an individual who enjoys status immunity does so because of
his official status: “It applies only so long as he holds office” (emphasis added). On the different
conclusions reached by the ICJ and the Cassation on the immunities accruing to former senior
state officials, see Antonio Cassese, “The Belgian Court of Cassation v. the International Court
of Justice: the Sharon and others Case” 1 Journal of International Criminal Justice (2003), pp.
437-452. According to Article 27 of the Rome Statute of the International Criminal Court,
“official capacity as a Head of State or Government, a member of a Government or parliament,
an elected representative or a government official shall in no case exempt a person from
criminal responsibility”. For the Belgian statute see “Act Concerning the Punishment of Grave
Breaches of International Humanitarian Law” (promulgated on 10 February 1999); “Act
Amending Belgium’s Act of 16 June 1993 Concerning the Punishment of Grave Breaches of
International Humanitarian Law” (promulgated on 23 April 2003); and finally, “Act Amending
Belgium’s Act Concerning Serious Violations of International Humanitarian Law”
(promulgated 5 August 2003), all reproduced in English in 12 Palestine Yearbook of International
Law (2002/2003), pp. 191-218.
Random documents with unrelated
content Scribd suggests to you:
The Project Gutenberg eBook of Tom Fairfield
in Camp; or, The Secret of the Old Mill
 This ebook is for the use of anyone anywhere in the United
States and most other parts of the world at no cost and with
almost no restrictions whatsoever. You may copy it, give it away
or re-use it under the terms of the Project Gutenberg License
included with this ebook or online at www.gutenberg.org. If you
are not located in the United States, you will have to check the
laws of the country where you are located before using this
eBook.

Title: Tom Fairfield in Camp; or, The Secret of the Old Mill

Author: Allen Chapman

Release date: November 27, 2013 [eBook #44293]

Most recently updated: October 23, 2024

Language: English

Credits: Produced by Donald Cummings and the Online

Distributed
Proofreading Team at http://www.pgdp.net

*** START OF THE PROJECT GUTENBERG EBOOK TOM FAIRFIELD

IN CAMP; OR, THE SECRET OF THE OLD MILL ***
WITH A SCREAM OF RAGE AND PAIN, THE BEAST
LAUNCHED ITSELF INTO THE AIR.
 Tom Fairfield
in Camp
Or

The Secret of the Old Mill

BY

ALLEN CHAPMAN
AUTHOR OF “TOM FAIRFIELD’S SCHOOLDAYS,” “TOM FAIRFIELD AT
SEA,” “FRED FENTON ATHLETIC SERIES,” “DAREWELL
CHUMS SERIES,” “BOYS OF PLUCK
SERIES,” ETC.

ILLUSTRATED

NEW YORK
CUPPLES & LEON COMPANY
PUBLISHERS
 BOOKS FOR BOYS
BY ALLEN CHAPMAN

TOM FAIRFIELD SERIES

12mo. Cloth. Illustrated.
TOM FAIRFIELD’S SCHOOLDAYS
TOM FAIRFIELD AT SEA
TOM FAIRFIELD IN CAMP
TOM FAIRFIELD’S PLUCK AND LUCK

FRED FENTON ATHLETIC SERIES

12mo. Cloth. Illustrated.
FRED FENTON THE PITCHER
FRED FENTON IN THE LINE
FRED FENTON ON THE CREW
FRED FENTON ON THE TRACK

THE DAREWELL CHUMS SERIES

12mo. Cloth. Illustrated.
THE DAREWELL CHUMS
THE DAREWELL CHUMS IN THE CITY
THE DAREWELL CHUMS IN THE WOODS
THE DAREWELL CHUMS ON A CRUISE
THE DAREWELL CHUMS IN A WINTER CAMP

BOYS OF PLUCK SERIES

12mo. Cloth. Illustrated.
THE YOUNG EXPRESS AGENT
TWO BOY PUBLISHERS
MAIL ORDER FRANK
A BUSINESS BOY’S PLUCK
THE YOUNG LAND AGENT

Cupples & Leon Co. Publishers, New York

Copyrighted 1913, by
Cupples & Leon Company

Tom Fairfield in Camp

Printed in U. S. A.
 CONTENTS
CHAPTER PAGE
I. Tom Gets a Letter 1
II. The Story of the Mill 12
III.Tom’s Chums Arrive 21
IV. Off to Camp 28
V. Launching the Boat 36
VI. A Big Fish 45
VII. A Midnight Visitor 53
VIII. Old Acquaintances 60
IX. At the Old Mill 68
X. A Curious Conference 75
XI. An Angry Hermit 84
XII. The Piece of Paper 89
XIII. A Shot in Time 98
XIV. Tom’s Scheme 106
XV. Almost Caught 113
XVI. Stranded 122
XVII. An Anxious Search 129
XVIII. Back in Camp 138
XIX. Strange Disappearances 148
XX. Lonely Days 156
XXI. Tom Makes Plans 165
XXII. Tom’s Discoveries 171
XXIII. The Calling Voices 179
XXIV. The Secret Room 187
XXV. The Hidden Treasure 193
TOM FAIRFIELD IN CAMP
 CHAPTER I
TOM GETS A LETTER

“Say, Dick, just throw that forward switch in; will you?”
“Sure I will, Tom. Going any place in particular?”
“Oh, just for a run down the river, and on my way back I guess I’ll
stop and get the mail.”
“Can I go along?”
“Certainly. Did you see anything of Will to-day?”
“No, he’s gone fishing, I guess,” and Dick Jones, one of the best
chums of Tom Fairfield, threw in the connecting switch of the latter’s
motorboat, and the craft was ready to run.
“Now I wonder if she’ll start easily, or if I’ve got to break my back
cranking her?” murmured Tom.
“What’s the matter?” asked Dick. “Hasn’t she been behaving
herself lately?”
“Oh, yes, but you never can tell. One day she’ll run like a sewing
machine, and the next I can’t seem to get her started. She’s like all
the other motorboats, good at times, and off her feed occasionally.
That’s why I called her the Tag. I never know whether I’m ‘it’ or
whether she is. However, here’s for a try.”
Tom revolved the fly wheel vigorously, but there was only a sort of
sigh from the engine, as if it did not like to be disturbed from the
rest it had been taking.
“One strike,” murmured Tom whimsically as he looked at the
engine to see if all attachments were in their proper place. “Here
goes for another spasm.”
Once more he whirled the heavy wheel around. But, save for a
more pronounced sigh, and a sort of groan, there was no result.
“Let me try,” suggested Dick.
“I’m afraid to. This engine is like a balky horse at times, and if
anyone but the regular trainer monkeys with her she just sulks all
day. I’ll get her going yet.”
Again came an attempt to make the motor do its work, and again
there came a sigh, accompanied by a cough.
“Three strikes, and I’m out!” exclaimed Tom, sinking back on the
seat rather exhausted. “But she’s speaking better than at first. Didn’t
you think you heard her sort of talking back at me, Dick?”
“Yes,” laughed his chum. “But say, are you sure you’ve got any
gasolene?”
“I put in five gallons last night, and didn’t run two miles.”
“Are you sure it’s turned on?”
“Of course I am!”
“Have you adjusted the carburetor?”
“Foolish question number twenty-six!” exclaimed Tom. “Say, you’re
as bad as a chap at Elmwood Hall—George Abbot. We call him ‘Why,’
because he’s always asking questions. Don’t you get in that habit,
Dick.”
“I won’t, but I wanted to be sure you’d done everything you ought
to to make the boat go.”
“Don’t worry. Nobody can do all he ought to do in running a
motorboat. The best authority that ever was would get stuck once in
a while, and then some greenhorn could come along, scatter a little
talcum powder on the cylinder head, and off she’d go. And the funny
part of it is that no one would know why.”
 For a moment Tom sat looking at the refractory engine, as though
trying to read its mind, and then, with a sigh himself, he once more
cranked up. This time there was hardly a murmur from the engine.
“Hum! Gone to sleep again!” commented Tom. “I can’t understand
this.”
Taking off his coat he made up his mind that he would go
systematically over every part of the engine, from the batteries and
magneto to the gasolene tank and vibrator coil. He started up in the
bow, and, no sooner had he looked at the switch which Dick had
adjusted, than he uttered an exclamation.
“There it is!” he cried.
“What?” asked his chum.
“The trouble. Look, that one wire is loose, and even though the
switch was connected I didn’t get any spark. It’s a wonder you didn’t
see it when you turned it on.”
“Say, I’m not a motorboat expert,” declared Dick. “All I can do is to
steer one.”
“I guess that’s right,” agreed Tom with a laugh. “It’s my fault for
not looking there first. I must have jarred that wire loose when I
came in last night. I hit the dock harder than I meant to. But I’ll
soon have it fixed.”
With a screw driver he presently had the loose wire back in place
on the switch connection. Then, with a single turn of the flywheel,
the Tag was in operation, and Tom steered out into Pine river, on
which was located the village of Briartown, where our hero lived.
“She’s running fine now,” commented Dick, who, at a nod from
Tom, took the wheel.
“Yes, as slick as you’d want her. She’s making good time, too,” and
Tom glanced over toward shore, watching the trees seemingly slip
past.
 “Hey, Tom, wait up, will you?” This came as a hail from the shore,
and, following it, Tom and Dick saw a lad running along the river
bank, waving his hand at them. “Wait!” he cried.
“It’s Dent Wilcox,” said Dick Jones.
“Yes, and he’s running—that’s the strange part of it,” commented
Tom. “I wonder how he ever got out of his lazy streak long enough
to get up that much speed.”
“It is a question,” agreed Dick, for Dent Wilcox was known as the
laziest lad in Briartown. “Probably he wants a ride badly enough to
chase after you,” added Tom’s chum.
Once more came the hail:
“Hey, Tom, give me a ride; will you?”
“What for?” called back our hero.
“I’ve got to go down to Millford for a man. I’ve got a job,”
answered Dent.
“Then you’d better walk,” answered Tom. “It’s good exercise for
you.”
“Aw, say, stop and take me aboard,” begged Dent.
“Not much!” shouted Tom. “I’m not going to take any chances on
stopping this engine now, just when it’s going good. You walk!” and
as Dick steered the boat out from shore Tom opened wider his
gasolene throttle to increase the speed of the boat, which he had
checked when Dent hailed him.
“Aw, say, you’re mean!” charged the lazy lad as the craft got
farther and farther from shore. “You wait; I’ll get square with you
yet!”
“Think he will?” asked Dick, glancing anxiously at his chum.
“Of course not. In the first place he won’t dare, and in the second
he’s not smart enough to think up something to do to me, and if he
is, he’s too lazy to carry it out after he’s planned it. Dent can’t worry
me.”
The two chums kept on down the river toward the main part of
the town, for Tom’s home was on the outskirts.
“I want to get a new set of batteries,” explained the owner of the
Tag. “I always carry two sets so I can run on one even if some of
them give out, and one set I’ve got now is running pretty low. This
motor won’t start on the magneto, for some reason, so I have to
start on the batteries and then switch over.”
They soon reached the town, and Tom tied his craft at a public
dock. Having purchased the batteries, and some other things he
needed, he went to the post office.
There were several letters in the Fairfield box, and as Tom looked
them over he found one for himself.
“Hum, I ought to know that writing,” he murmured. “If that isn’t
from Jack Fitch I’m a cowbird. I wonder what’s up? I thought he was
in Europe, with his folks, this vacation.”
Tom quickly opened the missive. As he glanced through it he gave
utterance to an exclamation of delight.
“What is it?” asked Dick, who stood near his chum.
“Why it’s great news,” explained Tom. “It seems that there was
some slip-up in the plans of Jack’s folks, and he didn’t go to Europe
after all. And now here it is, just at the beginning of the summer
vacation, and he writes to know what my plans are. He says he’d
like to go somewhere with me.”
“Why don’t you go traveling together?” asked Dick.
“We might, that’s a fact,” agreed Tom. “Hello, here’s another page
to Jack’s letter. I didn’t see it at first. Well, what do you know about
that?” he cried.
“More news?” asked Dick.
 “I should say so! Bert Wilson—he was my other chum with Jack,
you know, at Elmwood Hall—Bert will come with Jack and me if we
go somewhere, so Jack says. By Jove! I have it!” cried Tom, with
sparkling eyes.
“What’s the game?”
“We’ll go camping! We talked of it this spring, just after I got back
from Australia, but we couldn’t seem to make our plans fit in. Now
this will be just the cheese. Jack, Bert and I will go off camping
together in the deepest woods we can find. It will be great sport.”
“It sure will,” said Dick enviously.
Something in the tone of his chum’s voice attracted Tom’s
attention.
“Say, look here!” he exclaimed suddenly. “Wouldn’t you like to go
camping with us, Dick?”
“Would I? Say, just give me the chance!”
“I will! Do you suppose your folks’ll let you?”
“I’m sure they would. When can we start?”
“Oh, soon I guess. I’m glad this letter came at the beginning of
the summer, instead of at the end. I’m going home, tell dad and
mother, and see what they say. Maybe dad can suggest a good place
to go.”
Tom’s motorboat, though making good time on the home trip, did
not go half fast enough to suit him, as he was anxious to get back
and tell the news. But finally he did reach his house, and, while Dick
hurried off to see what arrangements he could make with his family,
Tom sought his parents.
“Go camping; eh?” mused Mr. Fairfield when Tom broached the
subject to him. “Why of course. That will be a good way to spend
the summer. Where will you go, the seashore or the mountains?”
 “Mountains, of course!” exclaimed Tom. “It’s no fun camping at
the seashore. Mountains and a lake for mine! I thought maybe you
might know of some good place.”
“Well, I’ve done some camping in my time,” admitted Mr. Fairfield,
“and come to think of it, I don’t know any better place than up in
the northern part of New York state. It’s wild enough there to suit
anyone, and you can pick out one of several lakes. There’s one spot,
near a little village called Wilden, that would suit me.”
“Then it will suit us,” declared Tom. “Tell me all about it. Were you
ever camping there?”
“No, but I used to live near there when I was a boy. So did your
mother. It’s a beautiful country, but wild.”
“Then I’m for Wilden!” cried Tom. “I’ll write to the fellows at once.
I’m going to take Dick Jones along with us. Hurray for Wilden!”
Mrs. Fairfield came into the room at that minute, and at the sound
of the name she started.
“Wilden!” she repeated. “What about Wilden, Tom?”
“Nothing, only I’m going camping there, mother.”
“Camping at Wilden! Oh, Brokaw, do you think that’s safe for
Tom?” and the lady looked apprehensively at her husband.
“Safe? Why shouldn’t it be safe?” asked Tom quickly.
“Well—Oh, I don’t know but—Oh, well, I suppose it’s silly of me,”
his mother went on, “but there’s a sort of wild man—a half insane
character—who roams through the woods up there, and you might
meet him.”
“How did you hear that?” asked Tom.
“I had a letter from a lady with whom I used to go to school in
Wilden years ago,” explained Mrs. Fairfield. “She wrote me the other
day, and mentioned it. I told you at the time, Brokaw.”
 “Yes, I remember now. Old Jason Wallace. Let’s see, didn’t Mrs.
Henderson say he stayed part of the time in the old mill?”
“Yes, he’s trying to solve the secret of it, Mrs. Henderson said, and
that’s one reason why he acts so strange, as if he was crazy. Oh,
Tom, I wish you’d go camping some other place!” finished his
mother.
“What, mother! Pass up a place like that, with all those attractions
—a wild man—a mysterious old mill? I guess not! What is the secret
of the old mill, anyhow?”
“Ask your father,” advised Tom’s mother. “He knows the story
better than I do.”
“Let’s have it, dad,” begged our hero. “Say, this is great! A mystery
and a wild man in camp! Maybe the boys won’t like that! I must
write and tell ’em to hurry up and come on. Oh, I can see some
great times ahead of me this summer, all right!”
 CHAPTER II
THE STORY OF THE MILL

“Let me see if I can remember the story of the old mill,” mused
Mr. Fairfield, as Tom stood expectantly waiting. “It’s quite some
years since I heard it,” and he gazed reminiscently at the ceiling.
“This is better luck than I expected,” murmured Tom, and, while
he is thus waiting to hear the story of the secret of the old mill, I will
take the opportunity to tell you something more about him and his
friends, and the two previous books in this series.
My first volume was entitled, “Tom Fairfield’s Schooldays,” and in
that I related how our hero came to go to Elmwood Hall. It was
because his parents had to go to Australia to claim some property
left by a relative of Tom’s father.
As Tom could not go to the land of the kangaroo with his folks
they decided to send him to a boarding school, called Elmwood Hall.
Tom at once entered into the activities of the school. He made a
friend and an enemy the same day, the friend being Jack Fitch, with
whom Tom roomed, and whom I have already mentioned, in this
story. Of course Tom had other friends at the school, one being Bert
Wilson.
Sam Heller, and his crony Nick Johnson, made it unpleasant for
Tom, but our hero managed to hold up his end. It was harder work,
however, in regard to Professor Skeel, who was a most unpleasant
instructor. He was unfair to the boys, and Tom proposed a novel plan
to get even.
He suggested that they all go on a “strike” against Mr. Skeel,
refusing to recite to him unless he changed his manners. The
unpopular professor did not change, and Tom headed the revolt
against him. This took Doctor Pliny Meredith, the head master of the
school, and all the faculty by surprise. They did not know what to do
until Mr. Skeel proposed that the whole Freshman class, of which
Tom was a member, be kept prisoners in their dormitory, and fed on
bread and water until they capitulated.
Among the pupils at Elmwood Hall was Bruce Bennington, a
Senior, and Tom was of great service to him in securing a forged
note that Mr. Skeel held over the head of Bennington, threatening to
expose the student and ruin his career. Tom put an end to the illegal
acts of the professor, who unexpectedly withdrew from the school.
Tom and his mates, after that, greatly enjoyed their life at
Elmwood Hall, and matters were more to their liking, but Tom was
not at an end of having adventures.
As I have said, Mr. and Mrs. Fairfield had gone to Australia to look
after some property. When Spring came they started for home,
coming in a sailing vessel for the sake of the long sea voyage.
Unexpectedly, one night, one of Tom’s chums saw a note in a
paper telling of a vessel picking up wreckage from the Kangaroo, the
ship on which Tom’s parents had sailed. This at once plunged Tom
into the depths of despair, but he did not give up hope. He at once
decided to go to Australia himself, and if necessary charter a small
steamer and cruise about in the location where the wreckage was
picked up, hoping his parents might still be afloat on some sort of
life raft, or in an open boat.
In the second volume of this series, entitled “Tom Fairfield at Sea,”
I related the details of his most exciting trip. For Tom’s vessel, the
Silver Star, on which he was proceeding to Sydney, was wrecked in a
storm, and Tom was tossed overboard. He managed to grab a life
belt, and floated until, in the early dawn, he saw two sailors from
the ship clinging to a derelict which the Silver Star had hit, and
which had wrecked her.
 Tom got aboard, and a little later a partly smashed lifeboat was
sighted. It was brought to the derelict by one of the sailors, and
found to contain Professor Skeel, who, it seems, had, by accident,
taken passage for Honolulu on the same ship as that on which our
hero started out. Naturally there was a mutual surprise.
Tom, the two sailors and Mr. Skeel were on the derelict for some
time, and then having patched up the lifeboat they set out in that.
But it was some time before they were picked up, and they had
nearly starved. There was also a little boy saved from the wreck—
Jackie Case—and Tom took charge of him.
Eventually Tom got to Australia, and then set out in a small
steamer he hired to search for his parents. It was a long trip, but he
heard that some survivors of a wreck were on an island in the
Friendly group, though which island it was could not be learned. Tom
searched on several and at last, and just in time, he discovered his
father and mother, and some others who had gotten away in a small
boat from the sinking Kangaroo.
That Tom was overjoyed need not be said, and he and his parents
lost no time in starting back for their home in this country. All the
details of the wreck, and how Tom brought his quest to a successful
close, will be found in the second volume. I might add here that
later nearly all those on board the Silver Star were saved, including
the father of Jackie Case.
Tom went back to Elmwood Hall, and finished the spring term,
graduating and becoming a Sophomore. He had come home, ready
for the long summer vacation, when he received the letter from Jack
Fitch, mentioned in the first chapter of this book.
I might state that Tom’s father was quite well off, and that our
hero had sufficient spending money for his needs. He had, as I have
mentioned, a good motorboat.
“Well, dad,” remarked Tom, when he thought his parent had
sufficiently collected his thoughts. “Let’s have the story of the secret
of the old mill.”
 “As nearly as I can recollect it,” began Mr. Fairfield, “this mill is
located about eight miles from the town of Wilden, where, as I told
you, I spent some years when a lad. No one seems to know when
the mill was built, but it is quite old, and must have been put up by
the early settlers. It is of stone, and used to grind grain by water
power.
“The mill is on the bank of a small river that flows into Lake
Woonset, and it was this lake I was thinking of when I suggested
that you go camping near it. It’s of good size, and there is fine
fishing in it.”
“But about the mill, dad. What’s the secret of it, and what about
the wild man?”
“I’m coming to that. As I said, the mill was probably built by the
early settlers, and, ever since I can remember, there has been a
rumor that there is treasure concealed in or about the old place.”
“Treasure, dad? What kind?”
“Well, there were all sorts of rumors. Some said pirates had come
that far inland, and had buried their ill-gotten gains there, and
another story was that during the Indian wars the settlers, of the
then small village of Wilden, fled one day, after warning had been
given them of a raid by the redmen. Before fleeing, however, it was
said that they had hidden all their money, gold and silver ornaments,
and so on, in the old mill. I think that story is more likely to be true
than the other. At any rate it is history that the Indians once
descended on Wilden, and killed nearly all the inhabitants.”
“Well, I’m glad there aren’t any Indians up there now, if we’re
going camping,” remarked Tom, “though one or two might be nice
for variety. But go on dad.”
“So it may be true that there is some treasure in or about the old
mill,” went on Mr. Fairfield. “I know we boys used to hunt for it, but I
never found any, though one of my chums, Tommy Gardner, did find
a dime once, and right away there was a wild story that he had
come upon the buried treasure. But it happened that the dime was
one of recent date, so that story soon fell through.
“Still, ever since I can recollect, there has been more or less of a
search made from time to time for gold and silver in the mill. In fact
while it was pretty much of a ruin as long as I can remember, it must
be much worse now, as the treasure hunters literally pulled it apart.”
“What about the wild man, dad?”
“Well, that has to do with the old mill also. This old Jason Wallace,
of whom your mother spoke, is a descendant of some of the early
settlers of Wilden. Naturally he heard the story of the treasure
supposed to be in the mill, and he was one of the most persistent
searchers after it. I never knew him very well, but it seems that
constant searching, and never finding anything, has turned his mind.
“He is practically crazy now, and fairly lives in the old mill. He has
fitted up some sort of a room there and goes about through the
woods at times, looking in all sorts of places for the treasure,
thinking I suppose that, after all, it may not be in the mill, but
somewhere around it.”
“Is he a dangerous character, dad?”
“Well, I suppose he might be in a way, if you crossed him, or if he
thought you were trying to do him out of the treasure.”
“Then we won’t cross him,” said Tom, with a laugh. “But all this
sounds interesting, and I don’t believe we could camp in a better
place.”
“You’ll be careful; won’t you, Tom?” asked his mother.
“Oh, sure,” he answered with a smile. “But after what I went
through in the shipwreck I’m not afraid of a wild man. Why, I might
even help him find the treasure.”
“I don’t really believe there is any,” said Mr. Fairfield. “I wouldn’t
lose any sleep over it if I were you, Tom.”
 “I won’t. We fellows will probably be so busy having a good time
in camp that we won’t go near the old mill, except maybe to take
some photos of it. Is that all there is to the story, dad?”
“That’s all I know,” replied Mr. Fairfield. “You might see your
mother’s friend, Mrs. Henderson, when you get to Wilden, and she
may be able to give you some additional particulars.”
“She wrote me,” said Mrs. Fairfield, “that the way old Jason
Wallace takes on is terrible at times. He rushes around through the
woods, yelling at the top of his voice, and whenever he meets
people he imagines they are after the treasure in the mill. I do wish,
Tom, that you weren’t going to such a place. Can’t you pick out just
as good a spot somewhere else, to go camping?”
“Oh, no, momsey! This is great! I wouldn’t miss this for anything,
and the fellows will think it’s the best ever, I know. I’m going to tell
Dick Jones first, and then write to Jack and Bert.”
“Well, do be careful,” urged Mrs. Fairfield, who seemed filled with
anxiety.
“Don’t worry,” advised her husband. “Tom can take care of himself
I guess. Why, he even found us when we were shipwrecked, you
know.”
“Yes, I know. But this is different, up there in the woods, with that
crazy creature roaming about. And it’s so lonesome and so far from
a town!”
“All the better,” laughed Tom. “It’s no fun camping next door to a
village. We want to rough it. I’m going to find Dick.” And he hurried
off to tell his village chum the good news.
 CHAPTER III
TOM’S CHUMS ARRIVE

“Well, Tom, how about it?” greeted Dick, when our hero met him,
soon after having heard the details about the old mill and the wild
man from Mr. Fairfield. “Is it all right for camp?”
“I should say yes, and then some more! Say, Dick, it’s going to be
great! Think of it; a mystery to solve, and a wild hermit sort of a
chap, roaming around through the woods, looking for your scalp.”
“Where’s that?”
“Where we’re going camping—where else? Here’s the yarn,” and
Tom told it as he had heard it. “How about that?” he asked when he
had finished.
“Couldn’t be better,” declared Dick enthusiastically.
“Have you fixed things with your folks so you can go?” asked Tom.
“I sure have.”
“Then come on down to the river and we’ll take another spin in
the Tag. I want to get out on the water, where it’s nice and quiet,
and talk about going camping.”
“So do I,” agreed Dick, and a little later the two chums were once
more chugging away, and talking of everything, from the best way to
kill a bear to what to do when the motorboat would not “mote,” as
Tom put it.
“And we may get some game up there,” said Tom. “This Lake
Woonset is away up in the northern part of New York state, and it’s
wild there. I’m going to take my gun along.”
 “So am I,” declared Dick. “When are your other friends coming?”
“I’ll get ’em here as soon as I can.”
“Say, Tom, maybe they won’t want me to come along.”
“Don’t you worry about that,” declared our hero. “I’m in charge of
this camping party, and I’ll take whom I please. But they’ll like you
all right, Dick, and you’ll like them. That’s sure.”
“When do you think you’ll go camping?”
“Just as soon as we can. In about a week, I guess. I’ll have to get
a lot of things together. I’ve got a tent that will do, but we’ll need
another small one to cook in, and a connecting piece of canvas for
an awning so we can go from the kitchen to the dining room when it
rains, without getting wet. The only thing I’m sorry about is leaving
the Tag behind.”
“Why don’t you take her along?”
“By Jove!” cried Tom. “I never thought of that. I believe I will. I
wonder if I could ship her to Lake Woonset?”
“I don’t see why not,” declared Dick.
“I’ll find out from dad,” declared Tom.
“Then go right back and do it,” suggested Dick. “We might as well
get this thing settled.”
Tom turned the boat back, and in a short time was getting
information from his father about the shipping facilities to Lake
Woonset.
“You can get the boat up there all right,” declared Mr. Fairfield,
“but you’ll have to hire some sort of a truck to haul it to the lake, as
it isn’t near any railroad station.”
“Oh, we’ll manage it,” declared Tom. “Now I’m going to mail the
letters to Jack and Bert.”
The missives were posted, and then Tom and Dick began to make
out lists of what they needed, and to get their camping outfits
together.
This took them several days, and in the meanwhile word came
back from Tom’s two school chums that they would come on at
once. They were delighted with the prospect of going camping in
such a location as Tom described, though he did not give them all
the particulars by letter.
“If we’re going to take the motorboat,” said Dick, one afternoon,
about a week later, “we had better make a sort of crate for it, hadn’t
we.”
“Yes, and take off the rudder and propeller,” added Tom. “It’s
going to be quite a job, but I guess we can manage it.”
They at once began this task, the tent and other camping supplies
having been gotten in readiness to ship. At work on the crate for the
boat the next afternoon, Tom was surprised to hear a shout behind
him.
“Hi there, old man!” a voice called. “What in the world are you up
to?”
Tom turned to behold his two school chums, Jack and Bert,
coming toward him.
“Well for cats’ sake!” he cried, running forward. “I didn’t expect
you until to-morrow? How’d you find me down here?” for Tom was
at work in his boathouse.
“We managed to get off sooner than we expected,” said Jack, as
he and Bert shook hands with Tom.
“And we hiked for your house as soon as we landed,” added Bert.
“Your folks said you were down here, and we managed to find the
place without getting lost more than ten times,” broke in Jack with a
laugh. “Now what’s going on? Tell us all about it.”
“I’m going to take the boat along,” explained Tom. “And say, talk
about luck! We’re going to camp near a mysterious old mill, and
Welcome to our website – the perfect destination for book lovers and
knowledge seekers. We believe that every book holds a new world,
offering opportunities for learning, discovery, and personal growth.
That’s why we are dedicated to bringing you a diverse collection of
books, ranging from classic literature and specialized publications to
self-development guides and children's books.

More than just a book-buying platform, we strive to be a bridge

connecting you with timeless cultural and intellectual values. With an
elegant, user-friendly interface and a smart search system, you can
quickly find the books that best suit your interests. Additionally,
our special promotions and home delivery services help you save time
and fully enjoy the joy of reading.

Join us on a journey of knowledge exploration, passion nurturing, and

personal growth every day!

ebookbell.com