About the author(s):
Dr. Joshua Joseph Niyo is Head of Unit and Senior Legal Expert – Africa at the Diakonia International Humanitarian Law (IHL) Centre in Nairobi, Kenya. He has served as Regional Legal Adviser for the Centre in East and Central Africa, adjunct lecturer at UCLA, UC Irvine, and Pepperdine University, and was a Swiss National Science Foundation Visiting Researcher. His work spans multiple conflict-affected contexts across Africa, including Mozambique, Ethiopia, the Democratic Republic of Congo, Sudan, Mali, and South Sudan, and leads efforts to strengthen IHL capacity among humanitarian stakeholders.
Introduction
When States exercise control over foreign territory through armed intermediaries rather than through their own regular forces, international humanitarian law (IHL) confronts a fundamental challenge: does the law of occupation still apply, or does indirect control create a space of diminished accountability? Eugénie Duss’s Chapter Seven offers an important and carefully reasoned answer. It rejects the suggestion that mediated territorial control displaces the law of occupation and insists instead that occupation law remains capable of attaching to such situations. In that respect, the chapter performs an important doctrinal task. It resists a form of legal evasion that would otherwise allow States to enjoy the strategic benefits of territorial domination while disclaiming the legal obligations that ordinarily accompany it.
That achievement should be taken seriously. Yet, once the question of legal qualification is answered, a second and more difficult question comes into view. If proxy occupation is legally cognizable, how should occupation law actually operate within a layered structure of authority in which legal status, effective territorial administration, coercive power, and practical capacity are not all located in the same hands? This, in my view, is where Duss’s chapter becomes especially valuable; not only because of the conclusions it reaches, but because of the further questions it raises.
What follows takes Duss’s Chapter Seven as a starting point and argues that its real significance lies in opening a second-order inquiry. The central issue is no longer simply whether proxy occupation exists, but how the obligations of occupation law should be understood, distributed, and engaged across a composite structure of control. If Duss’s chapter succeeds in making proxy occupation legally intelligible, the next task is to make it operationally meaningful.
I. Conceptual Achievement: A Demystification of the Occupier
A core strength of Duss’s analysis lies in its insistence that the sponsor State remains the Occupying Power even where it is normally absent from the territory, while the proxy group operates as the immediate bearer of occupation-related functions on the ground. This construction preserves the State-centred grammar of occupation law while adapting it to contemporary conflict realities. It avoids, on the one hand, the conclusion that occupation law falls away simply because the foreign State acts indirectly, and, on the other, the conceptual difficulty of treating the proxy group itself as the Occupying Power.
This is a significant contribution. It means that the population remains, in legal terms, within the power of a foreign State, even where that power is mediated through an armed intermediary. It also preserves the possibility of attaching responsibility to the sponsor State, including under international human rights law, rather than allowing it to disappear behind the proxy structure. This is especially important in conflicts in which strategic influence, operational dependence, and territorial domination are deliberately arranged so as to obscure formal responsibility.
Duss’s treatment of control is central here. She resists the argument that the sponsor State must itself exercise effective control over the territory or over each relevant act of the proxy for proxy occupation to arise. Instead, she accepts that overall control by the sponsor State, combined with the proxy group’s effective control over the territory, is sufficient. Her conception of “indirect effective control” is therefore doing important work. It allows occupation law to follow the chain of authority without requiring the foreign State’s physical presence on the ground. In my opinion, that is the right instinct. A stricter requirement would risk excluding from the reach of occupation law precisely those situations in which States have most successfully outsourced control.
II. From Qualification to Structure: The Problem of Layered Authority
Yet the moment one accepts this doctrinal framework; a more complex structure appears. Proxy occupation is not simply classic occupation by other means. It is a legally layered arrangement. The sponsor State retains formal status as Occupying Power; the proxy group exercises immediate coercive and administrative authority; and local institutions may continue to function to varying degrees. In some cases, as Duss shows, the proxy group may already have administered the territory before coming under the sponsor State’s overall control. In such situations, it acts not only as occupation force but also as local authority.
This is one of the most analytically rich parts of her exposition. It captures an empirical reality that doctrinal accounts often flatten: the same armed group may be both the vehicle of foreign domination and the operator of local governance. Duss’s treatment of this “double hat” problem is subtle. She rightly refuses to collapse the proxy group into the Occupying Power. At the same time, she recognizes that where the group was already administering the territory, it may continue to exercise certain pre-existing functions as a local authority and thus enjoy a broader margin of maneuver than it would as occupation force alone.
This compromise is, in my view, one of the chapter’s most original moves. But it also reveals a structural indeterminacy: the same actor is effectively both constrained and less constrained, depending on which legal role it is said to be performing. In theory, that distinction is defensible. In practice, however, the same armed actor may exercise coercion, adjudicate disputes, administer services, regulate movement, and govern local institutions through a single apparatus of authority. That raises a further question that the chapter itself helps expose: how should legal obligations be engaged when authority is unified in practice, but differentiated in law?
III. Capacity, Restraint, and the Risk of Under-Compliance
A second major contribution of Duss’s analysis lies in her treatment of capacity. Because armed groups are structurally less equipped than States, she argues that the principle of preserving the status quo ante must be applied with particular rigor in proxy occupation. The proxy should, as far as possible, interfere minimally, rely on local institutions and local law, and assume the role of supervisor rather than direct provider. This is a principled and pragmatic reading of occupation law. It resonates with the traditional anti-transformative orientation of the law of occupation while also recognizing the institutional poverty that characterizes many armed groups.
At the same time, this argument produces a tension that deserves closer scrutiny. Occupation law is not exhausted by restraint. It also contains affirmative obligations: to maintain public order and civil life, to facilitate relief, to administer justice, to protect property and persons, and to ensure the conditions under which the population can live. If the proxy is oriented to minimize interference because of its limited capacities, a subtle tension arises: when does minimalism become non-compliance? When does deferring to local institutions cease to preserve the status quo ante and instead amount to a failure to discharge the occupier’s obligations?
I would suggest that this is one of the most important unresolved questions raised by Chapter Seven. The language of non-interference is indispensable in occupation law, but in proxy settings, I suggest, it cannot operate alone. A functional and capacity-sensitive approach must still be able to ask whether the relevant obligations are actually being fulfilled. If local institutions are weak, politically captured, or no longer able to secure basic protection, then strict fidelity to non-interference may risk reflecting a doctrinal shield for protection shortfalls.
IV. Legal Obligation and Practical Capacity
This leads directly to what I consider the central issue: the distinction between formal obligation and practical capacity. Duss’s framework convincingly identifies the sponsor State as the Occupying Power. But the actor that bears legal status is not always the actor that can, in practical terms, secure compliance with a given obligation. The sponsor State may bear ultimate responsibility, yet the proxy group may be the actor that controls the checkpoint, operates the detention site, determines access, oversees the local administration, or exerts force over the population.
In my view, this means that proxy occupation requires not only a doctrine of attribution but also —what I would call—a doctrine of legal address. Simply, it is not sufficient to say who the Occupying Power is; one must also ask who must act in relation to the particular obligation at issue. Who can prevent the violation? Who can remedy it? Who can be engaged in real time about relief, detention, movement restrictions, property destruction, or administrative abuse?
This is where I would suggest that Duss’s chapter points beyond itself. Its own discussion of contextual allocation—respect, facilitation, and, where necessary, substitution—already gestures toward a more operational understanding of obligation. That line of reasoning could be pushed further. The sponsor State should not lose responsibility simply because it acts through a proxy. But neither should the proxy disappear from legal engagement simply because it does not hold the formal status of Occupying Power. In proxy occupation, law must be able to see both the State behind the structure and the group within it.
V. Protected Civilian Status and the Caution required by “Allegiance”
Duss’s treatment of protected civilian status is another strong and delicate part of the chapter. She distinguishes civilian members of the proxy group from the broader population and excludes the former from protected civilian status on the basis that their allegiance is aligned with that of the occupation forces. At the same time, she resists extending this logic too far and preserves protected civilian status for “sympathizers”. This is, in my view, a prudent balance. It preserves doctrinal coherence without allowing the notion of allegiance to swallow civilian protection.
Even so, this area calls for caution. Allegiance is a fluid and potentially dangerous criterion in conflict settings. It may be politically manipulated, socially ambiguous, or simply impossible to determine with confidence. For that reason, I would suggest that occupation law should be very hesitant to expand allegiance-based exclusions beyond those most directly integrated into the occupying structure. The protective logic of occupation law depends on stable and conservative thresholds for civilian status, especially where patterns of association, coercion, and loyalty are themselves unstable.
VI. End of Proxy Occupation and the Persistence of Material Control
The chapter is also especially strong in its analysis of endings. Duss demonstrates that proxy occupation may end either because the proxy group loses effective control over the territory or because the sponsor State no longer exercises overall control over the group. That is a significant doctrinal clarification. It confirms that proxy occupation depends on a double requirement of control: effective territorial control by the group and overall control by the sponsor State. Once either is durably lost, the occupation may come to an end.
But this is also where the legal and material dimensions of conflict may diverge most sharply. The legal end of proxy occupation does not necessarily coincide with the end of domination, coercion, or civilian vulnerability. A group may continue effectively controlling the territory even after the sponsor State’s overall control has ended. The legal category changes; the lived condition of those under the group’s authority may not. In my opinion, this is one of the most important implications of Chapter Seven. It shows that the law’s classificatory transitions do not always map neatly onto the continuity or discontinuity of harm.
That point does not undermine Duss’s doctrinal account. Rather, it reinforces the need to think beyond classification. If the end of proxy occupation does not necessarily transform the material conditions of control, then legal analysis must be attentive not only to thresholds of applicability, but to the persistence of protective needs across legal transitions.
VII. Open Questions for Exploration
Precisely because Chapter Seven is so systematic, it throws into relief a number of further questions that merit continued exploration.
First, how should one engage an actor that simultaneously acts as local authority and occupation force when the same conduct may fall under different legal descriptions? Second, what criteria should guide the allocation of occupation-related obligations between the sponsor State and the proxy in concrete operational settings? Third, how should occupation law respond where local structures formally remain in place but are too compromised or too weak to perform the functions that the law presumes them capable of performing? Fourth, how should one think about the continuity of protection where occupation ends in law but coercive territorial control persists in fact?
These are not reasons to doubt the value of Duss’s framework. On the contrary, they are reasons to treat it as a platform for further inquiry. In my view, the significance of Chapter Seven lies not only in the doctrinal answer it provides, but also in the way it compels us to ask these further questions with greater precision.
Conclusive Remarks
Eugénie Duss’s Chapter Seven makes a major contribution to the law of occupation in contemporary conflict. It demonstrates that proxy occupation is not a conceptual impossibility and that occupation law can remain applicable even where foreign control is exercised through an armed intermediary. In doing so, it closes off a dangerous route to legal avoidance and preserves the continuing relevance of one of IHL’s most important protective regimes.
At the same time, I would suggest that the real importance of the chapter lies in what follows from this conclusion. Once proxy occupation is recognized, the central challenge is no longer whether occupation law applies, but how it should function under conditions of layered control, uneven capacity, and divided authority. That requires moving from legal recognition to operational interpretation; from attribution in the abstract to engagement with the actual distribution of power on the ground.
In my opinion, the enduring value of Duss’s analysis lies precisely here. It gives us the doctrinal grammar needed to name proxy occupation. The next task is to ensure that this grammar remains protective in practice. That means preserving the sponsor State’s responsibility without allowing the proxy’s immediate authority to vanish from view. It means reading occupation law in a way that is sensitive to capacity without becoming indulgent toward under-compliance. And it means taking seriously the possibility that legal categories may change while structures of domination and civilian exposure remain.
Proxy occupation, on this account, is both a doctrinal extension of classical occupation law to new facts, and a test of whether occupation law can continue to speak effectively in a world of mediated, composite, and strategically obscured forms of control. Duss shows that it can still speak. The question now is whether we are prepared to hear, and to use, all that this recognition requires.