GC IV Commentary Series – Allegiance and Protected Persons in Proxy Warfare

Editors’ note: The following series considers ICRC’s 2025 updated Commentary on the Fourth Geneva Convention. Rosa-Lena Lauterbach, Liisi Adamson, and Sean Watts’s introduction to the series is available here.

As outlined in Dr. Anaïs Maroonian’s post, principles hold a unique position in international law, with various types fulfilling specific functions within the international legal framework. Yet all principles are distinguished from rules by their level of abstraction and are frequently operationalized through concrete norms. Despite the increasingly detailed nature of its rules, as far as international humanitarian law (IHL) is concerned principles are of paramount significance. This is particularly evident in the updated Commentary on Convention (IV) Relative to the Protection of Civilian Persons in Time of War (GC IV), where, whether specific to IHL or not, principles preserve the object and purpose of GC IV, guide the understanding of certain norms, ensure that a rule is interpreted consistently and efficiently, and reinforce the general coherence of IHL.

When examining “how the updated Commentary refers to, gives expression to, and relies upon principles in interpreting GC IV,” Dr. Maroonian’s post explored how the two foundational principles of IHL—humanity and military necessity—and other principles such as the preservation of status quo ante are embodied in Articles 4, 27, 53 and 64 of GC IV. In particular, she suggested that recourse to the concept of allegiance when identifying protected persons under Article 4 is not only consistent with the object and the purpose of GC IV, as stated by the updated Commentary, but may also be understood as reflecting the interplay between humanity and military necessity.

Building on Dr. Maroonian’s analysis of principles in IHL and the updated Commentary’s revised approach, this post examines how principles of international law and IHL can assist in interpreting and applying existing rules to situations not specifically envisaged at the time of their adoption. Focusing on international armed conflicts (IAC) by proxy and on the use of allegiance theory to identify protected persons under Article 4 of GC IV, it outlines how the concrete application of these principles ensures that IHL remains effective.

IHL, Proxy Warfare, and the Updated Commentaries

The updated commentaries of the four Geneva Conventions have endorsed the Tadić theory (para. 137). Accordingly, when an organized armed group is under the overall control of another State, the group becomes subordinated and the equivalent of “agents” of that State. From the perspective of the International Committee of the Red Cross (ICRC), “this means that the intervening State becomes a Party to the existing conflict in lieu of the armed group [hereinafter proxy] and that the conflict has become entirely international in nature” (para. 343). Resorting to overall control instead of the more stringent threshold of effective control might prevent the “intervening” State from hiding behind its proxy’s veil and evading its obligations under IHL (para. 343). Likewise, when that State “exercises overall control over de facto local authorities or other local organized groups that are themselves in effective control of all or part of a territory,” it becomes an occupying power, and the territory is considered to be placed under its “indirect effective control” (paras. 400, 402).

As addressed extensively in my monograph, both military occupation and IAC by proxy imply that the law of IACs would apply to situations that would have been classified as a non-international armed conflict (NIAC) in the absence of a third State’s overall control. Applicable IHL depends on whether the situation is an IAC or a NIAC. Moreover, “classic” IACs by proxy consist of the territorial State fighting the proxy while the third State remains absent from the battlefield. Therefore, classifying the situation as an IAC and then applying the law of NIACs to the two main actors actually fighting (i.e. the territorial State and the proxy), a body of rules that would have applied anyway if the conflict had not been (re)classified as an IAC, is largely pointless. Accordingly, once the conflict becomes international as a whole through the overall-control test, rules designed for IACs must be capable of operating in a relationship in which one of the actors on the ground remains an organized armed group.

As a result, because rules originally intended to apply exclusively between States would apply between a State and a non-State actor, preserving the coherence and effectiveness of the law of IACs requires interpretative efforts capable of accommodating the specific features of such conflicts. This includes resorting to the different principles of international law (see further my monograph, p. 111-12). A practical application of these efforts is the reliance on the concept of allegiance to identify protected persons under GC IV, as defended in my monograph (p. 196-200) and now in the updated Commentary on this instrument. 

Identifying Protected Persons Through Allegiance

When interpreting Article 4 of GC IV, the updated Commentary first recalls that, based on the letter of the provision, formal ties of nationality, i.e. nationality as provided by the State’s domestic law, are decisive for the determination of the status of protected persons. Indeed, according to Article 4(1) of GC IV, protected persons “are those who … find themselves … in the hands of a Party to the conflict or Occupying Power of which they are not nationals.” At that time, this nationality requirement was regarded as the expression of the recognized principle of international law that the international legal order does not interfere in a State’s relations with its own nationals.

Nevertheless, building upon the concept of allegiance developed by the International Criminal Tribunal for the former Yugoslavia, notably in Tadić (paras. 166 and 168), the updated Commentary states that, in line with the object and purpose of GC IV, “where a Party to an international armed conflict treats its national or group of its nationals as having allegiance to the adversary State, those individuals would exceptionally qualify as persons protected under the Fourth Convention” (paras. 1027-29, 1034).

As developed further in my monograph (p. 196-97), resorting to allegiance is particularly relevant within the context of proxy warfare since, in such conflicts, those fighting and acting in relation to the conflict on the ground usually share the same nationality. Indeed, by contrast with more traditional IACs that oppose two or more States through their respective nationals, “classic” IACs by proxy involve a State (e.g. Bosnia and Herzegovina) fighting an organized armed group (e.g. Republika Srpska comprised of Bosnian nationals) on its territory, while the group is under the overall control of another State (former Federal Republic of Yugoslavia, i.e. Serbia and Montenegro). In such contexts, if one opts for formal nationality, most individuals would be deprived of the status of protected persons. The only exceptions would be nationals of the third State or those who would hypothetically find themselves in the hands of that State (directly or through the proxy, see below).

Yet, as emphasized in the updated Commentary (para. 1031) and my monograph (p. 198), establishing allegiance is quite challenging in practice, as allegiance is less straightforward, more versatile, or may imply resorting to ethnicity and associated risks. Above all, asserting allegiance to the enemy to enhance an individual’s protection could eventually further endanger the individual instead of protecting them. Indeed, as stressed by Marco Sassòli (para. 8.159), claiming that the individual has severed their allegiance to the State in whose power they are would heighten the risks that this State will not afford them protection.

Keeping these obstacles in mind, the updated Commentary (para. 1032-4) and I (p. 199-200) suggest resorting to perceived allegiance, namely establishing the allegiance of individuals based on whether the party to the conflict “treats its nationals or group of its nationals as having allegiance to the adversary State.” For instance, if an individual is deprived of their liberty because of the threat they pose to the security of the detaining power in relation to the conflict, that party to the conflict presumably perceives this individual as having allegiance to the enemy (p. 199). Likewise, if someone is detained during a criminal case based on alleged actions related to the conflict and supporting the adversary to the detriment of the State of their nationality, they may be considered to profess allegiance to the adversary. Essentially, in this scenario, the person’s conduct in support of the adversary influences whether the party to the conflict perceives them as having allegiance to that adversary (p. 200).

Resorting to perceived allegiance to establish the status of protected persons is consistent with the object and purpose of GC IV (para. 1034). It also ensures the effectiveness of IHL, particularly the rules governing the status of protected persons (p. 196-200). As argued above and in my monograph, this is especially true in the context of proxy warfare (p. 196-200).

Moreover, as suggested by Dr. Maroonian’s post, this could also be interpreted as “reflecting the interaction between the principles of humanity and military necessity.” Indeed, the principle of military necessity limits permissible measures to what is necessary to achieve a legitimate military purpose (i.e. weakening the military capacity of the adversary) and is not otherwise prohibited by IHL. On the other hand, the principle of humanity provides for the respect of the elementary considerations of humanity in all circumstances. While weakening the adversary’s military capacity may require the belligerent to regard nationals with allegiance to the adversary as potential security threats and to apply comparable restrictive measures to those applied to enemy nationals, the elementary considerations of humanity prescribe that these individuals be regarded as protected persons and accorded the associated protections, even if they possess the nationality of the belligerent in question. In sum, the concept of perceived allegiance to identify protected persons under GC IV is not only consistent with the object and the purpose of that instrument, but it also ensures its effectiveness and reflects the interaction between humanity and military necessity.

During occupation by proxy, such reasoning can be further developed to justify the exclusion of specific individuals from the status of protected persons based on their allegiance.

Excluding Persons from Protected Status on the Basis of Allegiance

Under the Tadić theory (paras. 137, 145, 167), individuals who find themselves in the hands of an organized armed group that is under the overall control of another State are considered to be in the power of that State, as the proxy group is considered to be acting as that State’s agents. As a result, those individuals are considered to be “in the hands of armed forces of a State of which they were not nationals,” and, therefore, to fulfil the requirement of nationality for the status of protected persons.

During occupation by proxy, members of the proxy group may also be residents of the territory effectively controlled by the group, which, in turn, is under the overall control of the intervening State. Should we accept that the third State acts as the occupying power, as argued in my monograph (p. 274-77) and the updated Commentary (paras. 400, 402), this would mean that members of the proxy group who inhabit the occupied territory would find themselves in the hands of a party of which they are not nationals.

However, it would be illogical and inconsistent with the object and purpose of GC IV for those individuals to possess the status of protected persons in their relations with the occupying power while acting as agents of that State. Conversely, members of the military and other wings of the proxy group must be excluded from the status of protected persons (p. 281-82). Nevertheless, their case must be distinguished from that of inhabitants who are simply sympathizers of the occupying power (p. 282). While the allegiance of the former category can be objectively determined based on their membership, for the latter category, defining their allegiance remains uncertain if not based on the attitude of the occupying power towards them (perceived allegiance).

Consequently, while the objective allegiance of members of the proxy group would allow us to exclude them from the status of protected persons, the subjective or perceived allegiance should not permit excluding inhabitants of an occupied territory from the same protective status. In this latter case, the risks that sympathizers face from coercive measures by the occupying power are comparatively limited. If said sympathizers were to become the subject of such measures, they would then have more in name than in fact as sympathizers, as such coercive measures would ultimately reveal that the State does not regard them as sharing the same allegiance. In this case, the occupying power could not invoke their supposed common allegiance to deny them protected person status.

Such reasoning aligns with the wording and core meaning of Article 4 of GC IV, which does not exclude residents of an occupied territory from the status of protected persons due to their collaboration with the occupying force. Conversely, it does not stipulate that the civil and military agents of the occupying power are entitled to the status of protected persons. This reasoning likewise aligns with the underlying principles of military necessity and humanity. It does not impede the pursuit of legitimate military objectives, while ensuring respect for IHL and preserving elementary considerations of humanity. Only individuals who have effectively professed allegiance to the occupying power and are treated as such by that State would be excluded from the status of protected persons under Article 4(1) of GC IV.

Conclusion

As emphasized by Dr. Maroonian, the revised approach of “[t]he updated Commentary on GC IV confirms that principles remain an integral part of IHL notwithstanding the increasing specificity of its conventional rules.” This assertion holds not only in theory but also in practice, where general principles of international law, including general principles of IHL, help ensure the effectiveness of IHL.

This is particularly the case when IHL is applied to IACs by proxy, including military occupation by proxy. In this context, not only principles of international law, but also the two core principles of IHL support the interpretation and application of IHL to the specificities of such conflicts. These interpretative efforts include resorting to allegiance, notably perceived allegiance, to extend the status of protected persons to certain nationals or a group of nationals. Similarly, the same principles would exceptionally permit excluding specific individuals based on objective criteria (allegiance through membership) but would forbid excluding others from protected-person status on the basis of subjective criteria (perceived allegiance), notably the “simple” inhabitants of an occupied territory.

This approach ensures the overarching objective of GC IV, i.e. that civilians remain protected during armed conflict (para. 112), while preserving the pragmatic character of IHL. Accordingly, the balance (para. 114) between the interests of civilians, as safeguarded by the principle of humanity, and those of the belligerents in implementing legitimate measures of control and security, as outlined by the principle of military necessity, is upheld, thereby promoting enhanced adherence to this body of rules.

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Eugénie Duss is a Research Fellow at the Geneva Academy, where she leads the joint organization of the Current Issues in Armed Conflict conference. She is also in charge of coordinating the Military Briefings, as well as developing updates for the RULAC portal.

The views expressed are those of the author, and do not necessarily reflect the official position of the United States Military Academy, Department of the Army, or Department of Defense. 

Articles of War is a forum for professionals to share opinions and cultivate ideas. Articles of War does not screen articles to fit a particular editorial agenda, nor endorse or advocate material that is published. Authorship does not indicate affiliation with Articles of War, the Lieber Institute, or the United States Military Academy West Point.

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