INTERNATIONAL CRIMINAL LAW

Proxy War under International law of armed conflict

Created by :
Ardya Syafhana (164 10028)

International Program
Academic Year 2018/2019
 Proxy War under International law of armed conflict

Introduction

Following the end of World War II, war and colonialization had continuously condemned
by international community, so does the involving state. Hence, most states are trying so hard to
behave in accordance with peace and justice but absolutely it does not hamper their ambition to
control international relations. The establishment of United Nations also did not fully eradicate
atrocities and violence, there are plenty of nations whose still fighting for their independence or
even for their own security. These Conditions are considerable for rationalization on why ongoing
conflict in Middle East and Palestine would never be settled. This phenomenon had been worsen
by powerful state tends to act clandestinely to fight for their interest and use the puppet states or
armed groups.

One of the real example, United States, the holder of Veto rights consistently vetoed
United Nations Resolution in regards any matters of Israel’s condemnation and UN enforcement.1
Furthermore, United States and its allies also allegedly supports and finance the conflicting party
in Palestine-Israel.2 It is quite predictable, because United States is the closest ally of Israel as well
as one of the most powerful supporter in the conflict. Accordingly, this paper will analyze whether
such partiality or supports in armed conflict can categorize the armed conflict as “Proxy War” or
even to determine the position of proxy war in international law and its legal significances.

Problem Formulation

1. What is Proxy war and circumstances to categorize as Proxy war?

1
Draft Resolution of United Nations Security Council 1 June 2018
2
Zack Beauchamp, “Why are the US and Israel so friendly?” , May 14th 2018,
https://www.vox.com/2018/11/20/18080080/israel-palestine-us-alliance,( Accessed on 5 July
2019)
 2. How to define Proxy war in the context armed conflict under International Law?

Content

a. The origin of “proxy war” terminology and elements

Proxy wars are not merely regional wars that seemingly mirror broader ideological
struggles perpetrated by influential superpowers, neither are form of convert action.3Proxy
war is deemed as indirect engagement with state helping proxies in State B to conduct
“Subversive Operations” on its behalf.4 So, it still controls the situation and at the same
time avoids engaging in direct, costly and bloody warfare.5
Major Amos C. Fox, U.S. Army Association, makes a comment on, proxy
environments appear to be bound by the following tenets: 6
“ • All proxy environments are driven by political interest; this
forms the basis for military partnership and aligned military
objectives.
• Proxy environments are based on a relationship between a
principal and a proxy, or agent. • Proxy relationships are
transactional or exploitative.
• Proxy relationships, being either transactional or exploitative,
have a limited duration.
• Proxy relationships are capricious and therefore always need
honest monitoring.
• Not all political, strategic and operational decisions come with a
noticeable or overt change at the tactical level.

3
Andrew Mumford (2013) Proxy Warfare and the Future of Conflict, The RUSI Journal, 158:2,
40-46, DOI: 10.1080/03071847.2013.787733
4
Ibid
5
Chris Loveman, ‘Assessing the Phenomenon of Proxy Interventi on’, Confl ict, Security and
Development (Vol. 2, No. 3, December 2002), p. 30. Also see Department of Defense, ‘Sustaining
U.S. Global Leadership: Prioriti es for 21st Century Defense’, January 2012 and Ministry of
Defence (MoD), ‘Future Character of Confl ict’, Development, Concepts and Doctrine Centre
(DCDC), Shrivenham, February 2010 as examples of recent US and UK att empts to wrestle with
this dilemma
6
Major Amos C. Fox, “In Pursuit of a General Theory of Proxy Warfare”, The Institute of land
warfare at the association of the united states army, land warfare paper 123 / February 2019.
 • Battles won accelerate divergence, while battles lost weaken the
principal-agent relationship.
• Proxy wars are not unique to one type of warfare but operate
anywhere along a war’s continuum.
• The status of a proxy relationship is subjective and relative to the
observer.
• The base of power within a proxy (principal-agent) relationship
can shift if
a) the proxy grows strong enough to stand on its own;
b) the proxy gains or mobilizes power from actors that are
not the principal partner; or
c) the proxy accomplishes the goals that brought it in line
with the principal “.

As outlined in Syria, Russia serves as a protectorate for President Bashar al-Assad.

To do so, Russian equipped powers control Syrian intermediaries, homegrown hired
soldiers and Chechen clients to reinforce al-Assad’s grasp on control.7 Assist, Russia hones
operational and key jujitsu by utilizing the Syrian respectful war and the mission to
overcome the Islamic State within the Levant against the included parties whereas
advertising to intercede the chaos it makes. 8 General Votel, a retired four-star general in
the United States Army who was commander of United States Central Command, argued
that within the USCENTCOM zone of obligation, Russia plays both the arsonist and the
fire fighter.9

b. International Humanitarian Law or International law of armed conflict and Proxy War

Theoretically, International Humanitarian Law only recognizes two categories of

armed conflict which are International and Non-International Armed Conflict. According
to Common Article 2 of Geneva Conventions 1949, International armed conflict occurs

7
Neil Hauer, “Putin has a new secret weapon in syria :Chechens”, ForeignPolicy.com, [News],
https://foreignpolicy.com/2017/05/04/putin-has-a-new-secret-weapon-in-syria-chechens/, 2017,
(Accessed on 7 July 2019).
8
Carla E. Humud, Christopher M. Blanchard Mary Beth D. Nikitin, Armed Conflict in Syria:
Overview and U.S. Response, Congressional Research Service, March 2019.
9
Ibid
 when a declared war or armed conflict arises between two or more contracting parties.10
This category also encompasses the situation of fighting against colonial dominations, alien
occupation, and conflict against racist regime in the exercise of the right of Self-
determination.11 For Instances, conflict in Yugoslavia and in African Countries.

Secondly, Non-International Armed Conflict comprise the conflict which is occurring

in the territory of one of the contracting parties.12 This conflict must be distinguished an
armed conflict from banditry, unorganized and short-lived insurrections, or terrorist
activities, which are not subject to international humanitarian law’.13 Besides, it does
includes the conflict between armed forces of state against organized armed group.14
Factors when assessing the organization of an armed group, include presence of command
structure, ability to recruit new member, capacity to act on behalf of its members in political
negotiations with representatives of international organization or foreign countries.15

Although it is still debatable, jurisprudence in International Humanitarian law

showed that it conceives the grey-area category of the internationalized internal armed
conflict. Internationalized armed conflict is the Non-International Armed Conflict which
escalated into International armed conflict due to the intervention by third states.16 The
intervention divided into two direct intervention and Indirect Intervention. As confirmed
in the Kordic and Cerkez,17 in determining whether the case constitute a direct intervention
by looking at the presence of the troops from intervening state. While, indirect intervention

10
Geneva Conventions 1949 [GC], Common Article 2
11
Additional Protocol I 1977 [AP], Article 1 para.4
12
GC, Common Article 3
13
ICTY, Prosecutor v. Tadic ´, Case No. IT–94–1-T, Opinion and Judgment (Trial Chamber II),
7 May 1997, para. 562.
14
AP II, Article 1
15
ICTY, TC II, The Prosecutor v. Boskoski, IT-04-82, Judgement of 10 July 2008, paras. 199,
201, and 203.
16
Report of ICRC on 31th International Conference of The Red Cross and Red Crescent in
Geneva, Switzerland 28 November – 1 December 2011.
17
ICTY, AC, The Prosecutor v. Kordić and Čerkez, IT-95-14/2-A, Judgement of 17
December 2004, paras. 314-315.
 defined as when the conflicting party acted on behalf of another state or the existence of
overall control.18 The test will be met where that State has a role in organizing, coordinating
or planning the military actions of the military group, in addition to financing, training and
equipping the group or providing operational support to it.19 Some expert believe it still
remained to Non-International, some argue that it becomes the International Armed
Conflict.20

Internationalized internal armed conflict and Proxy war are not legal expression,21
Yet, International Humanitarian law indeed acknowledges the intervention of foreign states
or war between proxies had significantly changed the nature of armed conflict into
International.22 The intervention does not create new legal standard, it can be either Non-
International or International character. On the other hand, in the context of international
law, concept of Attribution ensures that the intervening power is prevented from hiding
behind a proxy to avoid its international obligations and responsibilities under IHL and
from refusing to be considered a party to the conflict.23 ICRC legal review implies that,

“Applied to the situations covered by the ICRC’s position, the

concept of attribution will help to reveal the extent of the relationship
between the non-State party and the intervening power and play a
crucial role in establishing whether the members of the non-State
armed group can be considered agents of the latter, which will have

18
ICC, PTC I, The Prosecutor v. Lubanga, ICC-01/04-01//06, Decision on the Confirmation of
charges of 29 January 2007, para. 209; ICTY, AC, The Prosecutor v. Dusko Tadic, IT-94-1-A,
Judgment of 15 July 1999, para. 84.
19
ICC, PTC I, Lubanga, Decision on the confirmation charges, para. 211.
20
Report of ICRC, Op.cit
21
ICRC CASEBOOK “Internationalized internal armed conflict “, Chapter 12.III.6 ; Andreas
Paulus and Mindia Vashakmadze, “Asymmetrical war and the notion of armed conflict- a
tentative conceptualization” , International Review of the Red Cross, Volume 91 Number 873
March 2009, P.101
22
Ibid
23
Antonio Cassese, “The Nicaragua and Tadić Tests Revisited in Light of the ICJ Judgment on
Genocide in Bosnia”, European Journal of International Law, Vol. 18, No. 4, 2007, p. 656. See
also ICTY, Tadić, above note 16, para. 117.
 legal implications, particularly with regard to the classification of the
situation under IHL. “ 24

In Conclusion, proxy war alone will not give any legal significance to international law of
armed conflict. It is one of the aspect in international character of armed conflict, so that the
intervening state can be imposed responsibility not only the proxies.

Conclusion

Proxy wars are the indirect engagement in a conflict by third parties wishing to influence
its strategic outcome. Proxy war can be indicated by the situation of political interest, transactional
or exploitative relationship between principal and a proxy, limited duration, and so forth. As a
normative terms, proxy war is not regulated explicitly under international humanitarian law or
international armed conflict. Despite its ambiguity, internationalized internal armed conflict
appears as the same context with proxy war or when there is an existence of intervention by third
party. Nevertheless, internationalized armed conflict is not the third category of armed conflict, it
might only be turned into International character. Thereafter, neither proxy war nor
internationalized armed conflict stand as independent legal threshold.

References

Additional Protocol I & II 1977 of Geneva Conventions 1949

Beauchamp Zack, “Why are the US and Israel so friendly?” , May 14th 2018,
https://www.vox.com/2018/11/20/18080080/israel-palestine-us-alliance

Carla E. Humud, Christopher M. Blanchard Mary Beth D. Nikitin, Armed Conflict in

Syria: Overview and U.S. Response, Congressional Research Service, March 2019.

Cassese Antonio, “The Nicaragua and Tadić Tests Revisited in Light of the ICJ Judgment
on Genocide in Bosnia”, European Journal of International Law, Vol. 18, No. 4, 2007.

24
Ibid
December 2004.

Draft Resolution of United Nations Security Council 1 June 2018

Geneva Conventions 1949

Hauer Neil, “Putin has a new secret weapon in syria :Chechens”, ForeignPolicy.com,
[News], https://foreignpolicy.com/2017/05/04/putin-has-a-new-secret-weapon-in-syria-
chechens/, 2017, (Accessed on 7 July 2019).

ICC, PTC I, The Prosecutor v. Lubanga, ICC-01/04-01//06, Decision on the Confirmation

of charges of 29 January 2007, para. 209; ICTY, AC, the Prosecutor v. Dusko Tadic, IT-94-1-A,
Judgment of 15 July 1999.

ICRC CASEBOOK “Internationalized internal armed conflict “, Chapter 12.III.6 ;

Andreas Paulus and Mindia Vashakmadze, “Asymmetrical war and the notion of armed conflict-
a tentative conceptualization” , International Review of the Red Cross, Volume 91 Number 873
March 2009.

ICTY, AC, the Prosecutor v. Kordić and Čerkez, IT-95-14/2-A, Judgement of 17

ICTY, Prosecutor v. Tadic ´, Case No. IT–94–1-T, Opinion and Judgment (Trial
Chamber II), 7 May 1997.

ICTY, TC II, the Prosecutor v. Boskoski, IT-04-82, Judgement of 10 July 2008.

Loveman Chris, ‘Assessing the Phenomenon of Proxy Intervention’, Conflict, Security

and Development (Vol. 2, No. 3, December 2002), p. 30. Also see Department of Defense,
‘Sustaining U.S. Global Leadership: Priorities for 21st Century Defense’, January 2012 and
Ministry of Defense (MoD), ‘Future Character of Conflict’, Development, Concepts and Doctrine
Centre (DCDC), Shrivenham, February 2010 as examples of recent US and UK att empts to wrestle
with this dilemma

Major Amos C. Fox, “In Pursuit of a General Theory of Proxy Warfare”, The Institute of
land warfare at the association of the united states army, land warfare paper 123 / February 2019.

Mumford Andrew (2013) Proxy Warfare and the Future of Conflict, The RUSI Journal,
158:2, 40-46, DOI: 10.1080/03071847.2013.787733

Report of ICRC on 31th International Conference of The Red Cross and Red Crescent in
Geneva, Switzerland 28 November – 1 December 2011.