Abstract
This article examines the law of occupation by proxy which was identified by the International Criminal Tribunal for the Former Yugoslavia in the Tadić case. In particular, this article reviews the necessary nature of occupation by proxy, the case law development of the concept and then its substantive content. The article next uses Eastern Ukraine as a practical example of a possible occupation by proxy situation. Lastly, the effectiveness of the concept is analysed to see if it could be applied in a conflict today and how the concept could be development and brought to the forefront of international humanitarian law.
Highlights
The well-being of an individual is the ultimate object of all law.[1]
The law of occupation only applies in international armed conflict (IAC) but the relatively new concept of internationalised non-international armed conflict (NIAC) creates the possibility for occupation by proxy to be further recognised
It is clear that the Donetsk People’s Republic (DNR) and Luhansk People’s Republic (LNR) have made progress in independently administering the territories putting them in the position to ensure public order and safety
Summary
The well-being of an individual is the ultimate object of all law.[1]. Sir Hersch Lauterpacht QC. The application of the law of belligerent occupation under international humanitarian law (IHL) has been defined narrowly which significantly hampers its effectiveness in conflicts. It has evolved over the last 140 years showing the capacity for this body of law to adapt to new challenges. Of occupation and current treaty law is inadequate and the non-recognition of occupations by proxy creates a gap in protection for civilians States may deny their obligations as Occupying Powers because the international community is largely unwilling to recognise a law of occupation by proxy or an overall or effective control relationship with a third party cannot be established. Section three’s factual evaluation of the applicability of the law of occupation is significantly impeded and rests on open source information from news media and UN institutions
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