scobbie-gaza disengagement (yimel 2006)

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An Intimate Disengagement:Israel’s withdrawal from Gaza,the Law of Occupation and of

Self-DeterminationIain Scobbie*

1 INTRODUCTION

As the final text of this article was being prepared, Israel launched OperationSummer Rain on 28 June 2006 in response to the taking of Corporal GiladShalit by Palestinian militants following an attack on Israel Defence Forces on25 June 2006. At the time of writing (July 2006), Israel’s military operations inGaza are continuing, and the final outcome cannot yet be discerned. This isnot the appropriate place to discuss the legality of these actions – whetherthose of Israel or those of armed Palestinian groups. As matters are still in astate of flux, it is premature to reach a definitive legal conclusion. Nevertheless,the deployment of Israel Defence Forces in Gaza has an obvious pertinence tothe issue examined in this article, the international status of Gaza followingIsrael’s apparent withdrawal in August 2005. Consequently, where necessaryand relevant, a provisional and tentative legal assessment of the implicationsof Operation Summer Rain will be attempted.

2 THE ISSUE IN QUESTION

In August 2005, Israel evacuated its settlements and withdrew its land forcesfrom Gaza. This was in accordance with its Revised Disengagement Plan of 6June 2004,1 the implementation of which was intended to ensure that:

In any future permanent status arrangement, there will be no Israeli towns andvillages 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 MiddleEast, 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>.

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are areas which will be part of the State of Israel, including major Israeli populationcenters, cities, towns and villages, security areas and other places of special interestto Israel.2

To this end, Israel claimed that its evacuation of Gaza had the consequencethat there was no longer any permanent presence of Israeli security forceswithin 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 theGaza Strip, will continue to maintain exclusive authority in Gaza air space, andwill 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, thepresence of which does not accord with the Israeli-Palestinian agreements.

3. The State of Israel reserves its fundamental rights of self-defense, both preventiveand reactive, including where necessary the use of force, in respect of threatsemanating from the Gaza Strip.

The primary implication of the Disengagement Plan was set out in PrincipleSix (Political and Security Implications) of the Revised Disengagement Plan.This provides:

The completion of the plan will serve to dispel the claims regarding Israel’sresponsibility for the Palestinians within the Gaza Strip.

The meaning of Principle Six is intentionally ambiguous: it refers to thetermination of Israel’s responsibility for the population of Gaza, but saysnothing about the status of the territory itself. Before the implementation ofthe Revised Disengagement Plan, Gaza was territory occupied by Israel: didthe implementation of the plan entail a change in the international status ofGaza? In particular, once Israeli troops and settlers were withdrawn, was Gazano 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 Centrecommissioned a report – the Aronson Report4 – to examine the implicationsof disengagement. This noted that when then-Prime Minister Sharon initiallyannounced the unilateral withdrawal plan in April 2004, one of the declaredobjectives was to end Israel’s role and responsibility as the occupying power inGaza. In particular, Article 2 of the 18 April 2004 Disengagement Plan providedthat, the completion of withdrawal would mean that there would be “nopermanent 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).

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therefore there would “be no basis for the claim that the Gaza Strip is occupiedterritory”.5 This express reference to Gaza as “occupied territory” was deletedin the 6 June 2004 Revised Disengagement Plan which was approved by theCabinet.

The Aronson Report argues that one of the reasons for this deletion wasthat the Israeli Cabinet had received legal advice to the effect that any claimregarding the end of occupation could not be maintained while Israel remainedin control of the Philadelphi corridor (the Salah al Din border road), essentiallya buffer zone along the Egypt/Gaza border, and arguably also ports andairports. Retaining control of these areas was seen as enough to give Israel defacto control over the territory and thus maintain the occupation.6 In the event,Israel reached an agreement with Egypt which took over security functions inthe Philadephi Corridor,7 but Israel remains in effective control of Gaza’sairspace and maritime zones. Further, passage through the Rafah crossingbetween Gaza and Egypt is regulated by an agreement concluded betweenIsrael and the Palestinian Authority, subject to an annexed statement ofprinciples, and under the supervision of the European Union Border AssistanceMission.8 Nevertheless, in a Ha’aretz article pubished in December 2004, ShavitMatias, the deputy to Israel’s Attorney-General for international law was quotedas 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 occupiedterritory. When the Palestinians have a crossing to Egypt and additional options fortransferring 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 viewcorrect?

5 Available at: <http://electronicintifada.net/bytopic/historicaldocuments/264.shtml>; andalso: <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 thedisengagement 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 thedeployment of Egyptian border guards on the Egyptian side of the corridor, see the IsraeliCabinet 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 Agreementon Movement and Access and annexed Agreed Principles for Rafah Crossing, and 23 November2005 Agreed Arrangement on the European Union Border Assistance Mission at the RafahCrossing Point on the Gaza-Egyptian Border (concluded at the invitation of Israel and thePalestinian 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, theEU Council press release 15011/05 (Presse 322) which gives an account of the mission of theBorder 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 thiswas done to prevent him being smuggled into Egypt.

9 See Aronson, above n. 4, p. 51.

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Commentators are divided on this. Some, such as Aronson, argue thatbecause Israel retains a “security envelope” around Gaza, controlling who andwhat goes in and out of the territory, disengagement did not terminateoccupation.10 In contrast stand the revised views of Bruderlein on the natureof effective military control.11 Bruderlein states that effective military controlis essentially a question of fact, and is not dependent on the size and distributionof the occupying forces within a territory. He cites the Tsemel case before theIsrael Supreme Court which held that occupation forces do not need to be inactual control of all the territory and population, but simply have the potentialcapability to do so.12 This ruling is in accordance with the decision in the Listcase by the U.S. Military Tribunal at Nuremberg,13 and also with the Naletiliand Martinovi case before the International Criminal Tribunal for the FormerYugoslavia. In the latter, the Trial Chamber referred to an occupant having “asufficient force present, or the capacity to send troops within a reasonabletime to make the authority of the occupying power felt”.14 Nevertheless,Bruderlein continues, and this is the change introduced into the revisedversion, that,

some form of military presence on land remains a necessary condition for anoccupation, i.e. a military occupation cannot be solely imposed by the control ofthe national airspace by a foreign air force...or of the national seashore by a foreignnavy. The law of occupation belongs historically to the law of land warfare whichrequires, at its core, a land-based security presence.15

Again the question arises: which view is correct? Is the question wider thanone that is dependent simply on the law of land warfare? Bruderlein’spositioning of occupation questions solely within this context may be seen asrather formalistic. It is important to bear in mind that the situation is not oneof 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 issuedin, and is dated, November 2004 but at some later point it was revised, modifying the originalanalysis of “effective military control”. The paper does not indicate that it has been amendedand, moreover, it retains its original date. I am grateful to Anne Massagee for drawing this tomy attention.

12 See Bruderlein, above n. 11, p. 9, n.14. Tsemel v. Minister of Defence, HCJ 102/82, 37(3) PiskeiDin 365: also cited employing a more extended quotation in Lein, Y., One big prison: freedom ofmovement 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 issummarised 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 detailbelow.

13 See Trial of Wilhelm List and others (the Hostages trial), VIII Law Reports of Trials of War Criminals34 (1949), pp. 55-56.

14 Prosecutor v. Naletili and Martinovi, Case No.IT-98-34-T (trial judgment, 31 March 2003), availableat: <www.un.org/icty/naletilic/trialc/judgement/nal-tj030331-e.pdf>, p. 74, para. 217. Insupport of this ruling, the Trial Chamber cited as authority the United Kingdom’s Manual ofmilitary law of war on land, Part III, paras. 502 and 506 (1958); the United States’ The law ofland warfare: Field manual No.27-10, Chapter 6, para. 356 (1956); and the New Zealand DefenceForce’s Interim law of armed conflict manual, paras. 1302.2, 1302.3 and 1302.5 (1992).

15 Bruderlein, above n. 11, p. 9.

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

4 IS THE END OF OCCUPATION PURELY AFACTUAL QUESTION?

Occupation has been described as “a transitional period following invasionand preceding the cessation of hostilities” which “imposes more onerous dutieson 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 theProtection of Civilian Persons in Time of War: on the whole it relies on thedefinition contained in the Regulations annexed to 1907 Hague ConventionIV respecting the Laws and Customs of War on Land which have the status ofcustomary international law.19

It is settled that the test which determines the start of an occupation isessentially a question of fact,20 albeit one which must be distinguished frominvasion pure and simple:

Invasion is the marching or riding of troops – or the flying of military aircraft – intoenemy country. Occupation is invasion plus taking possession of enemy country forthe 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’sairspace: “Since international law does not contain a rule prescribing the military arm throughwhich an effective belligerent occupation is to be exercised, it might be theoretically possibleto maintain necessary control through the occupant’s air force alone”. Nevertheless hecomments that the practical problems which would arise in this type of occupation “wouldseem to rule out such an experiment”. See von Glahn, G., The occupation of enemy territory: acommentary 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 declaredby 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 byvarious other courts, see, e.g. In re Krupp (U.S. Military Tribunal at Nuremberg), 15 AnnualDigest 620, p. 622; R. v. Finta (Canadian High Court of Justice), 82 ILR 425, p. 439; Affo v. IDFCommander in the West Bank (Israel High Court), 83 ILR 122, p. 163; Polyukhovich v. Commonwealthof Australia (Australian High Court), 91 ILR 1, p. 123. See also Meron, T., Human Rights andHumanitarian 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, 4thEdn.), pp. 377-378; and Schwarzenberger, G., International Law as applied by International Courtsand Tribunals. Vol.II: The Law of Armed Conflict (Stevens: London: 1968), p. 324.


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invasion and occupation becomes apparent from the fact that an occupant sets upsome kind of administration, whereas the mere invader does not.21

This distinction flows clearly from the terms of Articles 42 and 43 of the HagueRegulations, which provide:

42. Territory is considered occupied when it is actually placed under theauthority of the hostile army.

The occupation extends only to the territory where such authorityhas been established and can be exercised.22

43. The authority of the legitimate power having in fact passed into thehands of the occupant, the latter shall take all the measures in his powerto restore, and ensure, as far as possible, public order and safety, whilerespecting, 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 ofthe established government. This presupposes the destruction of organisedresistance and the establishment of an administration to preserve law and order. Tothe extent that the occupant’s control is maintained and that of the civil governmenteliminated, the area will be said to be occupied.23

Traditionally, the test for the termination of an occupation was seen as a simplecorollary of this, and likewise a question of fact – “Occupation comes to anend 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 MilitaryTribunal, Italy: 1946) at p. 355; Disability pension case, 90 International Law Reports 400 (FederalSocial Court, F.R. Germany: 1985) at p. 403; and von Glahn, above, n.16, pp. 28-29. See alsobelow on the notion of effective control of occupied territory.

22 Given Operation Summer Rain, it is worth emphasising that Geneva Convention IV comes intooperation in relation to the civilian population earlier than the provisions of Section III ofthe Hague Regulations which deal with belligerent occupation. Article 6 of Geneva ConventionIV provides that it applies “from the outset of any conflict or occupation mentioned in Article2”. The International Committee of the Red Cross’ commentary to Article 6 states that thislanguage was employed to indicate that the Convention “became applicable as soon as thefirst acts of violence were committed...Mere frontier incidents may make the Conventionapplicable, for they may be the beginning of a more widespread conflict. The Conventionshould be applied as soon as troops are in foreign territory and in contact with the civilianpopulation.” Accordingly, the term “occupation” in Article 6 bears a wider meaning than inArticle 42 of the Hague regulations: “So far as individuals are concerned, the application ofthe Fourth Geneva Convention does not depend upon the existence of a state of occupationwithin the meaning of Article 42...The relations between the civilian population of a territoryand troops advancing into that territory, whether fighting or not, are governed by the presentConvention. There is no intermediate period between what might be termed the invasionphase and the inauguration of a stable regime of occupation. Even a patrol which penetratesinto enemy territory without any intention of staying there must respect the Convention in itsdealings with the civilians it meets.” Pictet, J. (ed), Commentary to Geneva Convention IV relativeto 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; andProsecutor 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.

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the moment the invader voluntarily evacuates [occupied] territory, or is drivenaway by a levée en masse, or by troops of the other belligerent, or of his ally, theformer condition of things ipso facto revives. The territory and individuals affectedare at once, so far as International Law is concerned, considered again to be underthe sway of their legitimate sovereign. For all events of international importancetaking place on such territory the legitimate sovereign is again responsible towardsthird States, whereas during the period of occupation the occupant was responsible.25

This traditional test depends entirely upon factual criteria to the exclusion ofnormative considerations. This approach now appears inadequate – forinstance, it fails to take into account the possibility, far less the legitimacy, ofthe 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 gradualtransfer 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 itstill the former occupying power? International recognition by states and theUnited Nations is likely to play an important role”28 – but is a test which isessentially dependent on an instrument a century old still fitted forcontemporary conditions?29

At the Diplomatic Conference which culminated in the adoption of the1977 Additional Protocols to the 1949 Geneva Conventions, the majority ofparticipating States emphasised that, in order to maintain the unity ofinternational law, international humanitarian law could not be isolated andself-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 inwar 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 ofauthority 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 forcein Iraq after the transfer of sovereignty to the interim Iraqi government, 11 Journal of Conflict andSecurity 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 accountsof the conduct of the occupation of Iraq, see, Afsha, E., Limits and limitations of power: thecontinued 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 Journalof International Law 195 (2005).

27 See Pictet, above n. 22, pp. 62-63: for the travaux, see Final Record of the Diplomatic Conference ofGeneva of 1949 (Federal Political Department: Berne: 1949), Vol. IIA, pp. 623-625, 775-776and 815-816, and Vol. IIB, pp. 386-388. Compare Dinstein, Y., The international legal status ofthe 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. Onthe 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, butwith the conditions under which the Convention ceases to apply, whether in whole or in part:see, Pictet, above n. 22, pp. 58-64.


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law. In this connection, emphasis was placed on the need to adapt internationalhumanitarian law to conform with the principle expounded by theInternational Court of Justice in the Namibia Advisory Opinion,30 namely that“an international instrument must be interpreted and applied within the overallframework of the juridical system in force at the time of the interpretation”.31

Accordingly, can it be argued that developments in international law since1907 have amended the traditional test used to determine the end ofoccupation by introducing normative factors?

The assumption embedded in the traditional test is that occupationterminates when authority passes back into the hands of the displacedsovereign. This must be a genuine transfer and not simply a pretence whichmasks a retention of authority by the occupant. To employ Roberts’ phrase, “itis the reality not the label that counts”,32 as:

the withdrawal of occupying forces is not the sole criterion of the ending of anoccupation; and the occupant has not necessarily withdrawn at the end of alloccupations.33

The nature of the authority that must be exercised by a post-occupationgovernment in order to establish that the occupation has effectively endedcan only be sovereignty, the classic formulation of which is that of Judge Huberin the Island of Palmas case:

Sovereignty in the relations between States signifies independence. Independencein relation to a portion of the globe is the right to exercise therein, to the exclusionof any other State, the functions of a State.34

The determination whether a post-occupation entity is truly sovereign, able toexercise actual independence over the territory in question, is not a simplematter of fact but introduces normative factors into the issue.35

Further, self-determination, which has been termed “one of the essentialprinciples of contemporary international law”,36 may also be relevant. It shouldbe recalled that in the Legal Consequences of the Construction of a Wall in theOccupied Palestinian Territory advisory opinion,37 the International Court ofJustice 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 GenevaConventions 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 Anzilottiin 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 Materials1009 (2004).

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the right of self-determination, ruling that this had also been recognised byIsrael.38 The Court further held that self-determination was a right erga omnes,whose realisation all U.N. Member States, by virtue of General Assemblyresolution 2625 (XXV) (24 October 1970),39 as well as all States parties to theU.N. Covenants on Human Rights by virtue of common Article 1 of theseCovenants, had the duty to promote.40 Further, as Roberts notes, the “essentialfeature of the ending of an occupation is often, though not always, an act ofself-determination”, although he cautions that this cannot be “the sole decisivecriterion for determining when an occupation ends”.41

Self-determination has had a direct influence on specific treaty provisionsthat unequivocally form part of international humanitarian law per se. This isparticularly true of 1977 Additional Protocol I:42 self-determination providedan important part of the substantive normative backdrop to the negotiationof this instrument. Before the convening of the Diplomatic Conference thatled to the conclusion of Additional Protocol I, the General Assembly adoptedresolution 3103 (XXVIII) (12 December 1973), which was entitled Basicprinciples of the legal status of the combatants struggling against colonial and aliendomination and racist régimes. This recalled in its penultimate preambularparagraph that there was a “need for the elaboration of additional internationalinstruments and norms envisaging, inter alia, the increase of the protection ofpersons struggling for freedom against colonial and alien domination andracist régimes”. The fourth preambular paragraph reaffirmed that suchstruggles were undertaken in exercise of the right of self-determination.

A consequence of the influence of self-determination on Additional ProtocolI was the adoption of Article 1.4 which extended the definition of internationalarmed conflict to encompass “armed conflicts in which peoples are fightingagainst colonial domination and alien occupation43 and against racist régimesin the exercise of their right of self-determination”. Wilson notes that thisprovision demonstrated widespread support for self-determination as anestablished 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 ofcustomary international law – see Military and paramilitary activities in and against Nicaraguacase: merits judgment (Nicaragua v. United States), ICJ Rep, 1986, 14 at pp. 99-100, para.188: seealso 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 ofthe territory of one State being occupied by another State – covers cases of partial or totaloccupation of a territory which has not yet been fully formed as a State.” Notes omitted: seealso 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 (ClarendonPress: Oxford: 1988), pp. 77-78.


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on Article 1.445 did so because they thought that the criteria it employed werearbitrary and subjective, and feared that it would lead to an unequal and partialapplication of international humanitarian law. No delegation argued that theuse of force in pursuit of self-determination was, in itself, illegitimate.46

Accordingly, self-determination has been recognised as a relevant factor ininternational humanitarian law, but its constituent treaties do not determineits consequences, if any, in the termination of an occupation. This is a matterwhich 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 practicesof states which gradually obtained universal recognition, and from the generalprinciples of justice applied by jurists and practised by military courts. The law isnot 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 accuratereference the principles of law already existing.47

5 EFFECTIVE CONTROL –THE TRADITIONAL DOCTRINE

Article 42 of the Hague Regulations provides that territory is occupied whenit is actually under the authority of the adversary, but that occupation extendsonly to the territory where that authority “has been established and can beexercised”. As Oppenheim-Lauterpacht observes, this definition “is not at allprecise” but that when an occupant is able to assert authority over territory “itmatters 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 isestablished varies with the nature of the territory. An occupant need onlydeploy troops strategically to occupy a larger area:49

for occupation of an area it is not necessary to keep troops permanently stationedthroughout that area. It is sufficient that the national forces have withdrawn, thatthe inhabitants have been disarmed, that measures have been taken to protect lifeand property and to secure order, and that troops are available, if necessary toenforce 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, aboven. 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 InternationalCourt’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.

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As Benvenisti notes, however, although an occupant has the legal duty toestablish an administration of territory it occupies, today this “is the rareexception rather than the rule”.51 Thus, in the Armed activities on the territory ofthe Congo case, Judge Kooijmans noted in his separate opinion:

Occupants feel more and more inclined to make use of arrangements whereauthority is said to be exercised by transitional governments or rebel movements orwhere the occupant simply refrains from establishing an administrative system.52

Further, as the U.S. Military Tribunal held in the List case, when consideringthe effect of resistance to occupation:

While it is true that the partisans were able to control sections of thesecountries [Greece, Yugoslavia and Norway] at various times, it is establishedthat the Germans could at any time they desired assume physical control ofany part of the country. The control of the resistance forces was temporaryonly and did not deprive the German Armed Forces of its status of anoccupant.53

Similarly, in the Tselem case, which was heard before the Israel High Courtand dealt with the internment of individuals by the IDF in Southern Lebanonin 1982, Justice Shamgar ruled that the application of the laws of war, includingGeneva Convention IV, to an occupied area was not dependent on the existenceof a durable belligerent occupation or the creation of a military administrationin the area,54 but rather:

One of the tests is whether the military forces are capable of entering into the shoesof the previous governing bodies, and not just that they did so inpractice...Applicability of the third chapter of the Hague Regulations andapplicability of the comparable provisions of the Fourth [Geneva] Convention arenot dependent on the existence of a special organized system that takes the form ofa military government. The duties and powers of the military forces, resulting fromeffective occupation of a particular territory, arise and are created as a result ofmilitary control of the territory, that is, even if the military forces maintain controlonly by means of regular combat units, without having a special military frameworkfor the [military] government’s needs.55

This ruling is supported by the judgment of the International Court in theArmed activities in the Congo (D.R.C. v. Uganda) case. The Court ruled that aUgandan 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 structuredmilitary 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. Bla!ki, Case No. IT-95-14-T (trial judgment 3March 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.


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The view that effective occupation could lie in the capacity to assert controlwas also affirmed by the Yugoslav Tribunal in Prosecutor v Naletili and Martinoviwhere it ruled that one of the guidelines to determine whether an occupationwas established was whether “the occupying power has a sufficient force present,or the capacity to send troops within a reasonable time to make the authorityof the occupying power felt”.57 Indeed, there is arguably even some authoritythat 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 abelligerent power at all in relation to Czechoslovakia when control was assumed bythe former country without any armed resistance on the part of the latter. Ifsubmission by the victim to a threat of immediate invasion relieves the other partyof the character of a belligerent, the case for the application in our Courts of thesame 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 itenvisages was subsequently expressly regulated by Article 2.2 of GenevaConvention IV, which provides that the Convention applies to all instances ofthe partial or total occupation of the territory of a High Contracting Party,even if this “meets with no armed resistance”.59 Nevertheless, the authoritiesare agreed that occupation can be established and maintained when theoccupant has the capacity to exert control over territory. Once established,does this require a physical presence on the ground, or can an occupation bemaintained by other means?

6 EFFECTIVE CONTROL AND THE CHANGEDNATURE OF WARFARE

When the Hague Regulations were adopted in 1907, aerial warfare was (atmost) rudimentary, although Article 25 prohibited the attack or bombardmentof undefended towns, villages, dwellings and buildings “by whatever means”.This phrase was intended to encompass aerial warfare. On the same day theConference adopted its various Conventions, 18 October 1907,60 it also adoptedDeclaration XIV prohibiting the Discharge of Projectiles and Explosives fromBalloons. This prohibited “the discharge of projectiles and explosives fromballoons or by other new methods of a similar nature”. Although technicallystill in force, this Declaration has few parties and has been rendered obsoleteby 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.

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Oppenheim-Lauterpacht indicates that international law is indifferent asto the manner by which authority is exercised over occupied territory,61 andvon Glahn thinks it at least theoretically possible that an occupation may bemaintained through the control of the adversary’s airspace.62 Bruderlein, onthe other hand, argues that land-based forces are indispensable for anoccupation, which cannot be created by an adversary’s control of airspace ormaritime zones.63 There is some virtue in Bruderlein’s claim; he correctly notesthat the no-fly zone over southern Iraq64 did not amount to belligerentoccupation, but should there not be a difference between the creation of anoccupation and its subsequent maintenance? If, once an occupation isestablished, effective control lies in the capacity to make the authority of theoccupying power felt within a reasonable time or, in the words of Israel’s HighCourt, to “maintain control only by means of regular combat units”, then isthere any reason why this should not be done through aerial warfare? Indeed,the importance of air power was stressed by Major General Amos Yadlin in2004 after he became head of Israeli military intelligence. An Israeli air forceofficer, he stated:

Our vision of air control zeroes in on the notion of control. We’re looking at howyou control a city or a territory from the air when it’s no longer legitimate to holdor occupy that territory on the ground.65

Further, at least in the circumstances of Gaza, only to consider Israel’swithdrawal of ground troops and continued control of its airspace in isolationis to ignore the wider context.

7 EFFECTIVE CONTROL AND GAZA –THE WIDER CONTEXT

Apart from the military method by which effective control may be exercisedand Israel’s enforcement of its “security envelope” around Gaza – its controlof terrestrial borders, whether as principal or through the agency of Egyptand the E.U.’s Border Assistance Mission, and of Gaza’s maritime zones andairspace – other issues are relevant to determine whether Gaza remainedoccupied 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 simplyfor 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 LawJournal 727 (1997-98).

65 Quoted in Li, D., The Gaza Strip as laboratory: notes in the wake of disengagement, 35 Journal ofPalestine Studies 38 (2006), p. 48.


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as a result of the instruments adopted during the Oslo process.66 The 1969Vienna Convention on the Law of Treaties does not govern the Osloinstruments because one of the parties, the Palestine Liberation Organisation,is not a State. The Vienna Convention consciously adopted a restricteddefinition of treaties for its purposes, reflected in Article 1 which expresslyprovides: “The present Convention applies to treaties between States.”67

Further, Article 2.1.a defines a treaty as “an international agreement concludedbetween States in written form and governed by international law, whetherembodied in a single instrument or in two or more related instruments andwhatever 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 ofinternational law”, nor the application to them of rules contained in theConvention which have customary status.68 On the basis of customary law,Watson convincingly argues that the Oslo instruments are binding bilateraltreaties.69

Further, neither Israel nor Palestine has claimed that the 1995 Israel-PalestineLiberation Organisation Interim Agreement, in particular, has terminated asthe result of the operation of the customary law of treaties following allegedmaterial breach or by the operation of the clasula rebus sic stantibus.70 Indeed,Section 1 (Political and Security Implications) Principle Seven of theDisengagement Plan expressly contemplates the continued applicability ofthese instruments:

The process set forth in the plan is without prejudice to the relevant agreementsbetween the State of Israel and the Palestinians. Relevant arrangements shallcontinue to apply.

66 Principally, the 1993 Israel-Palestine Liberation Organisation Declaration of Principles onInterim Self-Government Arrangements, 32 International Legal Materials 1525 (1993); 1994Israel-Palestine Liberation Organisation Agreement on the Gaza Strip and Jericho Area, 33ibid 622 (1994); 1995 Israel-Palestine Liberation Organisation Interim Agreement onImplementation of the Declaration of Principles, 36 ibid 551 (1997); 1997 Israel-PalestineLiberation 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 onImplementation Timeline of Outstanding Commitments Signed and the Resumption ofPermanent Status Negotiations, 38 ibid 1465 (1999).

67 See the Final Draft Articles and Commentary on the Law of Treaties adopted by theInternational Law Commission in 1966, reproduced Watts, A., The International Law Commission1949-1998 (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., TheIsraeli-Palestinian Declaration of Principles: a framework for future settlement, 4 European Journalof 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.

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Nevertheless, the implementation of the Disengagement Plan expresslycontemplates a unilateral change by Israel of the legal status of Gaza – “theState of Israel is required to initiate moves not dependent on Palestiniancooperation”71 – which, as Principle Six states, aims to “dispel the claimsregarding 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 maintainpublic order within the territory, and under Articles 55 and 56 of 1949 GenevaConvention IV, the duties of ensuring that food and medical supplies areavailable to the population and of ensuring and maintaining public healthand hygiene within the territory “to the fullest extent of the means availableto it”. As implementation of the Revised Disengagement Plan aimed to divestIsrael of these and its other responsibilities, Principles Six and Seven are surelycontradictory. For instance, Article XXXI.7 of the 1995 Israel-PalestineLiberation Organisation Interim Agreement on the West Bank and the GazaStrip, 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 WestBank 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 ofGaza, then this entails a breach of Article XXXI.7. It is difficult to see whatguarantee against prejudice Principle Seven may afford in this eventuality.73

Crawford comments that the Oslo instruments “are remarkablyunforthcoming on issues of status, no doubt because of fundamentaldisagreements between the parties”.74 That Israel did not relinquish authoritywithin the Occupied Territories is clear from the provisions of the 1995 InterimAgreement which established and yet simultaneously circumscribed the powersof the Palestinian Interim Self-Government Authority (styled “the Council” inthe 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 thatparagraph 8 of this decision provided: “The government asserts that a unilateral declarationby the Palestinian Authority on the establishment of a Palestinian state, prior to the achievementof a Final Status Agreement, would constitute a substantive and fundamental violation of theInterim Agreement. In the event of such a violation, the government would consider itselfentitled to take all necessary steps, including the application of Israeli rule, law andadministration 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 theimplementation of unilateral steps which will change the status of the area.” For commentaryon this, see Crawford, above, n. 35, p. 445.

73 It should also be recalled that Section 1 (Political and Security Implications), Principle Threeenvisages the maintenance of settlements in the West Bank and thus contradicts, e.g. InterimAgreement Article XXXI.5 which expressly reserves the question of settlements for thepermanent status negotiations.

74 Crawford, above, n.35, p. 433.


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Palestinian Authority.75 In implementing the 1993 Declaration of Principles,the 1995 Interim Agreement did not transfer sovereignty to the PLO but simplycreated 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 fromthe Israeli military government and its Civil Administration to the Council inaccordance with this Agreement. Israel shall continue to exercise powers andresponsibilities not so transferred.

Article III.6 restricts the jurisdiction of the Council to those matters specifiedin Article XVII. In principle, the Council’s jurisdiction is specified in ArticleXVII.1:

In accordance with the [Declaration of Principles], the jurisdiction of the Councilwill 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, foreignrelations and Israelis: and

(b) powers and responsibilities not transferred to the Council.

In relation to paragraph (a), Crawford points out that although this ostensiblydefines the jurisdiction of the Palestinian Authority in “normal territorialterms”, in practical effect its competence is restricted to “jurisdiction overPalestinians (and visitors)”.77 Further, Article XVIII.2 restricts the legislativepower of the Council to matters over which it has jurisdiction, subject to theexigencies of paragraph 4.a:

Legislation, including legislation which amends or abrogates existing laws or militaryorders, which exceeds the jurisdiction of the Council or which is otherwiseinconsistent with the provisions of the [Declaration of Principles], this Agreement,or of any other agreement that may be reached between the two sides during theinterim period, shall have no effect and shall be void ab initio.

These provisions clearly demonstrate that the Palestinian Authority does notpossess the exclusive governmental powers which are characteristic ofsovereignty. One can only concur with the opinion of a former Legal Adviserto the Israeli Ministry of Foreign Affairs that, under the Declaration ofPrinciples and thus throughout the interim period, “the Palestinian Councilwill not be independent or sovereign in nature”. Moreover:

75 1995 Interim Agreement, Article I.2 provides: “Pending the inauguration of the Council, thepowers and responsibilities transferred to the Council shall be exercised by the PalestinianAuthority established in accordance with the Gaza-Jericho Agreement, which shall also haveall 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, seeDajani, O.M., Stalled between seasons: the international legal status of Palestine during the interimperiod, 26 Denver Journal of International Law and Policy 27 (1997), pp. 60-74.

77 Crawford, above, n. 35, p. 444.

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the military government will continue to be the source of authority for the PalestinianCouncil and the powers and responsibilities exercised by it in the West Bank andGaza Strip.78

Of particular note is the retention by Israel of competence over foreign relationsby virtue of Articles IX.5 and XVII.1.a. Singer argued that this was crucial indenying Statehood to the Palestinian entity pending the outcome of the finalstatus negotiations.79

Consequently, the Palestinian Authority – “an interim local government bodywith restricted powers”80 – may best be seen as an administration to which theoccupant has devolved competence. The drafters of Geneva Convention IVhad envisaged that this could occur during a prolonged occupation, withoutterminating that occupation.81 As Bruderlein notes, the end of occupationrequires the termination of the military control of the Occupying Power overthe governmental affairs of the occupied population that limits that people’sright to self-determination.82 This resonates with Judge Huber’s definition ofindependence 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 Obviouslyoccupation turns this on its head, as occupation lies in the exclusion of theright of the territorial sovereign to exercise power on its territory. Thus, forinstance, in his separate opinion in the Armed activities on the territory of theCongo 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 ofwhich the invader has rendered the invaded government incapable of exercisingits authority, and [secondly] that the invader is in a position to substitute its ownauthority for that of the former government.84

Given the restrictions on the powers of the Palestinian Authority in the InterimAgreement, if Principle Seven of the Disengagement Plan is to be taken atface 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 articlewas also published by the International Association of Jewish Lawyers and Jurists in 1 Justice4 (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 belligerentoccupation. These are generally seen as puppet States which lack independence. See alsoCrawford, above, n. 35, pp. 78-83 and pp. 156-157; and Marek, K., Identity and Continuity ofStates 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 Palestiniannegotiators’ 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.


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agreements”, then the Plan contains an intractable contradiction. It cannotboth efface Israel’s responsibilities for Gaza and yet maintain the legal integrityof the Oslo instruments.

If, however, implementation of the Disengagement Plan were to amount toa unilateral termination of occupation, all other things being equal, breach oftreaty probably would not be fatal to an Israeli claim that it had successfullydivested itself of responsibility for Gaza’s population, even although this hadbeen 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 andPalestine. Palestine could choose either to pursue remedies available underArticle XXI of the Interim Agreement,85 or simply disregard the breach. Forthird States (and international organisations), breach of a bilateral agreementis a res inter alios acta in which they have no legal interest, and which entails nomandatory legal consequences for them.

8 TERMINATION OF OCCUPATION –A NEW NORMATIVITY?

Israel’s obligations towards Gaza are not delimited solely by the law ofoccupation and the bilateral Olso instruments, but also by general internationallaw.86 It may be recalled that in the Legal consequences of a wall Advisory Opinion,the International Court of Justice authoritatively affirmed the entitlement ofthe Palestinian people to the right of self-determination, ruling that this hadbeen recognised by Israel,87 and moreover was a right erga omnes whoserealisation all U.N. Member States had the duty to promote.88 Disengagementconcerns a possible change in the international status of territory. Given itsstatus as an “essential principle” of contemporary international law, theprinciple of self-determination must play a significant role in the legal appraisalof disengagement, particularly in evaluating the implications for third Statesand international organisations.

85 Article XXI (Settlement of differences and disputes) provides: “Any difference relating tothe application of this Agreement shall be referred to the appropriate coordination andcooperation mechanism established under this Agreement. The provisions of Article XV ofthe [Declaration of Principles] shall apply to any such difference which is not settled throughthe 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 LiaisonCommittee;

2. Disputes which cannot be settled by negotiations may be settled by a mechanism ofconciliation 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 bothParties, 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.

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The International Law Commission’s exegesis of the Court’s jurisprudenceargues that self-determination is not simply an obligation erga omnes which allStates must respect, but also that it has ius cogens status. In other words, that itis peremptory – States cannot derogate from its exigencies in their internationalrelations.89 Doctrine affirms that there is a conceptual connection betweenthe two categories of obligations erga omnes and ius cogens norms, but does notconclusively affirm their coincidence.90 De Hoogh underlines that obligationserga omnes are essentially connected with remedies available to States followinga breach of international law, whereas the notion of ius cogens norms placesemphasis 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 itssubstantive content – in particular all States’ duty to promote respect for andrealisation of this right – rather than the remedies to which they may haverecourse following a denial of self-determination.

Termination of occupation, to be legally effective, must be in conformitywith the requirements of self-determination. This is a matter of concern to allStates. If the exigencies of self-determination are disregarded, then this breachof self-determination can only entail a duty for States of non-recognition ofthe illegal situation thus created, as well as a duty not to render aid or assistancein maintaining that illegal situation.92 Nor would States be absolved of theirduty to promote, through joint and separate action, the actual realisation ofthe right of the people entitled to self-determination.93

In the Legal consequences of a wall Advisory Opinion, the Court’s elucidationof the implications of the Palestinian people’s right to self-determination israther terse and couched abstractly. This attracted criticism from within theCourt itself. For instance, while endorsing the Court’s affirmation of thePalestinian people’s right to self-determination, Judge Higgins thought it “quitedetached 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 WrongfulActs, 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 StateResponsibility: 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: TheHague: 1996), pp. 53-56, p. 91; and Ragazzi, M., The Concept of International Obligations ErgaOmnes (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 constructionof a wall in the Occupied Palestinian Territory for the responsibility of the UN for Palestine, 16 EuropeanJournal 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.


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and also in the context of an argument on self-determination, Judge Higginscautioned against:

the pursuance of a policy of legal deconstructionism – the systematic attempt toempty everything of all substance and meaning. Resolutions must be shown to saynothing. Findings must be shown not to have been made. The substantive rights ofothers must be shown to amount to nothing more than United Nations proceduresthat may or may not be invoked, but which have no objective existence of theirown.95

The question is therefore that of identifying the content of self-determination– the aspects of the “objective existence” of this right – relevant to thetermination of occupation.

Like many legal concepts, self-determination designates a core content andan associated, yet integral, bundle of rights and duties. The core content isclear:

all peoples have the right freely to determine, without external interference, theirpolitical status and to pursue their economic, social and cultural development, andevery State has the duty to respect this right in accordance with the provisions ofthe Charter.96

Further:

The establishment of a sovereign and independent State, the free association orintegration with an independent State or the emergence into any other politicalstatus freely determined by a people constitute modes of implementing the right ofself-determination by that people.97

Following Drew’s analysis,98 self-determination has two distinct vectors. Theclassic 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-determinationunder international law. To confer on a people the right of “free choice” in theabsence of more substantive entitlements – to territory, natural resources, etc –would simply be meaningless. Clearly, the right of self-determination cannot beexercised in a substantive vacuum. This is both explicit and implicit in the law. Forexample, implicit in any recognition of a people’s right to self-determination isrecognition of the legitimacy of that people’s claim to a particular territory and/orset of resources...[T]he following can be deduced as a non-exhaustive list of thesubstantive 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 ofinternational law concerning friendly relations and co-operation among States in accordance with theCharter of the United Nations: affirmed Legal consequences of a wall Advisory Opinion, 43International 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).

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people; (b) the right to territorial integrity; (c) the right to permanent sovereigntyover 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 ofself-determination take on particular importance: the exercise of the process,of the free determination by the Palestinian people of its political status; andthe 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 titleto territory that what we traditionally consider to be “human rights”.100

This uncontroversial view also found expression in Palestine’s written statementto the International Court during the Legal consequences of a wall AdvisoryOpinion proceedings. Palestine repeatedly spoke of “the territorial sphereover 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 decidesboth the destination of the people and of the territory. Portugal describedthe relationship between the people and the territory as a “principle ofindividuality”. This entails that the territory which is the basis of the right islegally distinct from any other territory and, moreover, is entitled to territorialintegrity. 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...nepeut 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 biencette norme.102

Leaving to one side East Jerusalem, which Israel has purported to annex despitethe protests of other States and the United Nations that this is illegal,103 Israeland 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 similaraffirmation of a substantive core content of self-determination, see Orakhelashvili, A., Theimpact of peremptory norms on the interpretation and application of United Nations Security Councilresolutions, 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 Kingdommaterials on international law, 61 British Yearbook of International Law 463 (1990) p. 624; ibid, 62British Yearbook 535 (1991), pp. 696, 697; and ibid, 64 British Yearbook 615 (1993), p. 724; forthe United States’ view, see 1976 United States practice in international law, p. 634, and for aconsensus 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 (20August 1980), and the review of Security Council action at Legal consequences of a wall AdvisoryOpinion, 43 International Legal Materials (2004), p. 1031, para. 75.


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and Gaza form “a single territorial unit” whose integrity is to be preservedpending the conclusion of permanent status negotiations.104 Consonant withthe International Court’s finding that the Interim Agreement affirmed thePalestinian people’s right to self-determination,105 this simply records the statusand 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’srecognition 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 assumefundamental importance: the substantive aspect of the territorial integrity ofthe self-determination unit; and the process aspect of the free expression ofthe will of the Palestinian people.

As Portugal declared in the East Timor case proceedings, the fundamentalidea that dominates the exercise of the right of self-determination is that offreedom of choice:

au sens où le choix accompli par la population concernée doit s’être effectué enl’absence de toute contrainte extérieure, notamment militaire.107

A situation imposed unilaterally by an occupant involves no choice on thepart of the population entitled to self-determination, and thus cannot underany circumstances be considered as an exercise of that right. This does notobserve – indeed it brazenly disregards – the process aspect of self-determination, and consequently cannot change the status of the territory inquestion. As Australia affirmed during the East Timor case proceedings, a Statewill:

breach the obligation to respect the right of a people to self-determination if itsconduct prevents or hinders the exercise by the people of a non-self-governingterritory of their right freely to determine their future political status.108

Consequently, any claim that the international status of Gaza may be changedby virtue of unilateral action undertaken by Israel which does not take intoaccount the free choice of the indigenous population is manifestly a breach ofself-determination, in addition to a breach of the provisions of the InterimAgreement.

104 See the 1993 Declaration of Principles on Interim Self-Government Arrangements, ArticleIV; and the 1995 Washington Israeli-Palestinian Interim Agreement on the West Bank andthe Gaza Strip, Article XI.1: for commentary, see Shehadeh, R., From occupation to InterimAccords: Israel and the Palestinian Territories (Kluwer: London: 1997), pp. 35-37.

The question of Jerusalem is, of course, a matter reserved for the permanent statusnegotiations, see the Agreed minutes to the Declaration of Principles on Interim Self-Government Arrangements, Understanding in relation to Article IV; and 1995 InterimAgreement, 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 ofPresident Barak, pp. 17-18, para. 22. See also Lein, above n. 12, pp. 20-21, who notes, interalia, that Israel incorporated the Interim Agreement in its entirety into its military legislationin 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.

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To evaluate the self-determination issues that might be implicated in Israel’swithdrawal by concentrating solely on Gaza is, however, to adopt too narrow afocus. To note that no self-determination process has taken place in Gaza is toconsider only the procedural aspect of the right: it fails to consider itssubstantive content. One substantive aspect is decisive in evaluating thedisengagement plan: the population of Gaza alone cannot exercise a right ofself-determination. It possesses no such right: in the case of Palestine, thatright belongs to the population of the territorial self-determination unit as awhole which comprises the West Bank (including occupied East Jerusalem) aswell as Gaza. The territorial integrity of a self-determination unit109 cannot bedisrupted, particularly by a belligerent occupant:

If an occupant controlled only part of a state and that part was not considered to bea distinct unit entitled to self-determination, the occupant would not be entitled toeffect the secession of the occupied area (as in Northern Cyprus). Similarconsiderations imply that the occupant would not be entitled to establish a newgovernment in such a region even if its inhabitants supported such an act.110

Whether one considers either the process aspect of self-determination, or thesubstantive aspect of the occupant’s duty to maintain the integrity of theterritory, Israel’s unilateral withdrawal – insofar as this aims to change theinternational status of Gaza – either fails to observe the requirements of theformer, or threatens to breach the latter, or both.111 Accordingly, Israel’swithdrawal does not respect the right of the Palestinian people to self-determination and thus is in breach of international law, whether respect forself-determination is conceived of as an obligation erga omnes incumbent uponall States or as a peremptory norm. Within the compass of the law of self-determination, what consequences flow for the international legal status ofGaza after Israel’s withdrawal?

9 THE NORMATIVE CONSEQUENCES OFSELF-DETERMINATION

If it is correct to conclude that Israel’s unilateral attempt to change theinternational status of Gaza is in breach of the Palestinian people’s right toself-determination, then other States have a duty not to endorse the resultIsrael seeks to achieve. Even if self-determination is regarded only as anobligation 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 ofdecolonisation, 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., Article43 of the Hague Regulations and peace operations in the twenty-first century: <http://www.ihlresearch.org/ihl/pdfs/sassoli.pdf>, 14. In the separate opinion he appended to theLegal 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 theoccupying 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 ArticleXXXI.7 of the 1995 Interim Agreement.


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duty of non-recognition for third States.112 Further, in its commentary on Article6 of Geneva Convention IV regarding the conditions under which theConvention ceases to apply, the ICRC indicated that where a termination ofoccupation involves a change in the international status of the occupiedterritory:

The Convention could only cease to apply as the result of a political act, such as theannexation of the territory or its incorporation in a federation, and then only if thepolitical act in question had been recognized and accepted by the community ofStates; if it were not so recognized and accepted, the provisions of the Conventionmust 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 governmentalfunctions. If this is so, then at least an initial supposition must be that theexercise 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 aState”.114 As von Glahn observes, in all cases of the termination of belligerentoccupation of enemy territory “it can be assumed that the legitimate sovereignwill 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 ofGaza’s status which he raised with “a senior member of Israel’s national securityestablishment”. Aronson thought that there were three possible solutions:Palestinian sovereignty; Egyptian rule; or some third-party administration. Hewas informed that there was a fourth option, “None of the above”:

In other words, an acceptable scenario for Israel would be the continuation of thecontrol and authority exercised by Palestinian institutions created by Israel and thePLO 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, theGaza Strip under this scenario would belong to no state (terra nullius). This is anextraordinary proposition.116

This indeed would be anomalous: international law prefers sovereignty overterritory to rest somewhere or other, and preferably with a State. The principalcontemporary exception of territory unclaimed by any State or putative Stateis Antarctica, but that is regulated by treaty, as indeed are the West Bank andGaza by virtue of the Oslo instruments whose force and legal validity theDisengagement Plan avowedly preserves.

Neither Egypt nor any third party have claimed rights of sovereignty oradministration over Gaza following disengagement. It therefore must beconsidered 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.

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Palestinian Authority, causing it to become the presumptive government ofan independent Gaza, which is perceived as the initial, if partial, emergenceof Palestine as a State. Accordingly, simply by unilaterally removing its presencefrom Gaza, has Israel propelled Gaza into the world of States? The validity ofthis assumption depends on whether Gaza fulfils the internationally recognisedrequirements for Statehood.

The classic account of the basic criteria for Statehood is that contained inArticle 1 of the 1933 Montevideo Convention on the Rights and Duties ofStates. 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, asCrawford notes, they are based on the principle of effectiveness of territorialunits,119 which is essentially a factual test. Manifestly, a permanent populationinhabits Gaza, and its borders are reasonably well-defined. The requirementof territory for the purposes of the criteria of Statehood does not entail thatthe territory in question has exactly defined or undisputed borders. If thiswere the case, then Israel itself would not be a State. As the InternationalCourt 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, andoften in various places and for long periods they are not, as is shown by the case ofthe entry of Albania into the League of Nations (Monastery of Saint Naoum, AdvisoryOpinion, 1924, PCIJ, Series B, No.9, at p.10).120

In broad terms, the requirement of government entails that there is anauthority which is “in general control of its territory, to the exclusion of otherentities not claiming through or under it”.121 This formulation is obviouslyinfluenced by Judge Huber’s definition of independence in the Island of Palmascase. 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 ofInternational 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 inInternational 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, 1European Journal of International Law 301 (1990): the better view is expressed by Crawfordand Watson – see Crawford, J., The creation of the State of Palestine: too much too soon?, 1 EuropeanJournal of International Law 307 (1990), his Israel (1948-1949) and Palestine (1998-1999): twostudies in the creation of States, in Goodwin-Gill, G. and Talmon, S. (eds.), The Reality ofInternational 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.


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for the traditional criterion of the capacity to enter into relations with otherStates. As he correctly observes, this capacity is not confined to States and isbetter seen as a consequence of, rather than a criterion, for Statehood.122

Independence is the central requirement of Statehood, which is dependenton the existence of an effective government.123

A distinction must, however, be drawn between formal and actualindependence.124 Formal independence denotes the situation when an entityapparently possesses the outward signs of Statehood: actual independencedescribes the factual ability of the relevant authorities to exercise governmentalpowers – in other words, whether the government in fact fulfils Judge Huber’sdefinition of independence. Formal independence can mask a relationshipof dependence, where an ostensibly independent government acts under thedirection of another State. This relationship is frequently associated with someform of occupation, such as Japan’s creation of Manchukuo in occupiedManchuria in the early 1930s.125 If, for the purposes of argument, we assumethat 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, governmentand independence – are based on the notion of (factual) effectiveness, but incontemporary international law Statehood is tempered by normativeconsiderations. If an entity, ostensibly qualified to be a State according to thetraditional criteria, emerges into the international arena in breach of anormative component of Statehood, then its existence is tainted by illegalcreation. Consequently it cannot claim to be a State. A clear example of thedenial of Statehood to an entity that apparently fulfilled the traditionaldescriptive requirements was Rhodesia, which emerged as a result of theUnilateral Declaration of Independence promulgated by its minority racialgovernment in 1965. This was seen as the creation of an entity in violation ofthe 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 Jenningsand Watts, above, n. 118, p. 122. In relation to Palestine’s ability to conduct foreign relationsunder 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 UnitedNations (Grotius: Cambridge: 1987), pp. 27-35; Lauterpacht, above, n. 118, pp. 46-47; andMarek, above, n. 81, pp. 110-122, and pp. 173-179. Article 47 of Geneva Convention IVattempts 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.

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African government during the apartheid period.127 This consequence followslogically from the status of self-determination as a peremptory norm ofinternational law which cannot be disregarded in international relations.Entities which purport to be States but which have been created in violationof self-determination are legal nullities:

they are without legal effect as States, not because they fail to meet the essentialrequirements of statehood but because their existence violates a peremptory ruleof international law.128

Accordingly, even if we assume that Israeli disengagement terminated itsoccupation and that Gaza fulfils the traditional descriptive requirements ofStatehood, it cannot claim to be nor can it be regarded as a State by otherinternational actors. Israel’s Disengagement Plan violated the process aspectof the Palestinian people’s right to self-determination because of the absenceof popular consultation. Further, were the claim to be made that Gaza alonehad emerged as the putative State of Palestine, this would breach the substantiveaspect of self-determination which prohibits the dismemberment of the self-determination unit. Consequently, any claim that Gaza can achieve Statehoodas 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 onlyvoid. All acts and transactions, such as treaties, unilateral acts and actions of statesthat 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 theperemptory norm of self-determination. Whether seen as a norm with iuscogens status or as an obligation erga omnes, third States are under a duty not torecognise Gaza as a State.

This argument is, however, redundant because it is clear that Gaza is notformally or actually independent. A State’s sovereignty extends over itsterritorial sea, and to the airspace above its territorial sea and land territory.130

The Disengagement Plan expressly states that Israel will continue to exercisecontrol of Gaza’s maritime zones and airspace. If a State claims to possess adiscretionary 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, moregenerally, deKieffer, D. and Hartquist, D., Transkei: a legitimate birth, 13 New England LawReview 428 (1978); Dugard, J., South Africa’s “independent” homelands: an exercise indenationalization, 10 Denver Journal of International Law and Policy 11 (1980); Heydt, D.,Nonrecognition of the independence of Transkei, 10 Case Western Reserve Journal of InternationalLaw 167 (1978); Norman, G., The Transkei: South Africa’s illegitimate child, 12 New EnglandLaw 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 bantustanpolicy, 17 Columbia Journal of Transnational Law 185 (1978); and Rogers, B., Divide andrule: South Africa’s bantustans (International Defence and Aid Fund: London: 1980, 2ndEdn.).

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.


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latter’s formal independence.131 While Article XXXI.13 of the InterimAgreement contained arrangements for effective Israeli control of the maritimeareas off Gaza, which one can only assume are maintained in theDisengagement Plan, the usurpation of authority over airspace appears to beunilateral. Either way, Gaza is unable to exercise “to the exclusion of any otherState, the functions of a State” in these areas, which is fatal to any claim toindependence. 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 ofthe Revised Disengagement Plan because of the contradictions it contains. Itis at once a claim both to divest Israel of responsibilities for Gaza’s populationwhile retaining powers over the territory that would otherwise fall to beexercised by the legitimate government. Principle Six, that completion of theplan will dispel claims regarding Israel’s responsibility for the Palestinians withinGaza, clearly contemplates that Israel will either divest itself of responsibilityfor Gaza completely, or that it will remain as occupant of the territory, butwithout the concomitant obligations, mandated by international law, owed toits inhabitants. The latter is a legal impossibility: a State cannot unilaterallyabsolve itself from the performance of its duties under international law. Itcan, 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 nolonger exist. The former option, that disengagement has terminatedoccupation, is not borne out by an analysis of the terms and implications ofthe Disengagement Plan. The Plan is a disingenuous manifesto whereby Israelseeks to foist onto the Palestinian Authority the dual status of sovereigngovernment in Gaza while maintaining it as a local administration in the WestBank whose authority is ultimately derived from the military government. It isa classic example of an occupant “inclined to make use of arrangements whereauthority is said to be exercised by [a] transitional government”132 in an attemptto 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 reinforcedby Operation Summer Rain which was launched on 28 June 2006 in responseto the seizure of IDF Corporal Gilad Shalit on 25 June 2006 by Palestinianmilitants. The IDF stated that the purpose of its military intervention in Gazawas:

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.

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to prevent the kidnappers from transferring the soldier within or out of the GazaStrip and otherwise disrupt their activity, and to send a clear message to the terrororganizations 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 enteredinto the Dahaniya area which “represents a strategic control and observationpoint over the area of Rafah and the Southern Gaza Strip”.

This is not the place to examine the legality of the capture of CorporalShalit, the military response by Israel, or the conformity of the conduct of thehostilities with international humanitarian law. It is enough to note that there-entry of Israeli ground forces demonstrates that the Disengagement Plandid not end the occupation, even if one applies the traditional doctrine ofeffective control. The ease with which the IDF re-established a physical presenceon the ground in Gaza clearly fulfils the ruling in Prosecutor v Naletili andMartinovi that a guideline to determine whether an occupation exists is whether“the occupying power has...the capacity to send troops within a reasonabletime to make the authority of the occupying power felt”.134 This test was not alegal innovation created by the Yugoslav Tribunal but simply re-statedestablished law, following the U.S. Military Tribunal at Nuremberg in the Listcase. An occupation subsists when the military forces of the adversary can “atany time they desired assume physical control of any part of the country”,135 asthe IDF did during Operation Summer Rain in Gaza.

133 IDF communication, Operation Summer Rain: IDF enters southern Gaza Strip to secure release ofabducted soldier, 28 June 2006: <www.mfa.gov.il/MFA/Government/Communiques/2006/IDF%20enters%20southern%20Gaza%20Strip%20to%20secure%20release%20of%20abducted%20soldier%2028-Jun-2006>: see also the Political-security Cabinet communique, 5July 2006, <www.mfa.gov.il/MFA/Government/Communiques/2006/Political-Security%20Cabinet%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.


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