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Yearbook of International Humanitarian Law Volume 18, 2015 pp 43–65Cite as

Puppet States: A Growing Trend of Covert Occupation

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Part of the book series: Yearbook of International Humanitarian Law ((YIHL,volume 18))

Abstract

This article deals with what it defines as puppet states or instances of covert occupation. In order to bypass the political burden and especially the legal obligations which international humanitarian law and general international law impose on the occupying power, a growing trend has come into place for states to create secessionist entities within another state. These secessionist entities, which have all outside aspects of a de facto state, are in fact effectively controlled by their sponsor state. Furthermore, the sponsor state not only establishes the puppet state through military force, but also controls its everyday life through the use of military, economic and political means, leading to a de facto annexation of the given territory. Five regions in the world are in this situation, while a sixth is under creation in Eastern Ukraine. Northern Cyprus, Nagorno-Karabakh, Transnistria, South Ossetia and Abkhazia can all be defined as puppet states. The unclear status of these regions makes them areas of impunity, regions which largely fall outside the implementation of international humanitarian law. The present paper intends to present this phenomenon and unveil the legal gaps that enable the use of puppet states for escaping the burden of international humanitarian law.

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Notes

  1. 1.

    While being mainly used in political science literature, the term “puppet state” (or “état fantoche” in French) has been adopted by a handful of legal scholars to refer to entities which, while preserving the external appearance of a regular state, are fully dependent on and controlled by a foreign state. Among the legal scholars who used this term more than in passing are Krystyna Marek, James Crawford and Joe Verhoeven. However, none of them dwelled on the topic at length: a more extensive study on puppet states is yet to be written. Despite the use by some legal scholars, the term has never made its way into mainstream legal scholarship or practice nor has been used by any relevant source of law so far.

  2. 2.

    Crawford 2006, pp. 63, 75, 78–83, 87 and 156–157.

  3. 3.

    Referring to puppet states in French as “états fantoche”. See Verhoeven 2000, pp. 57 and 70; and Verhoeven 1975, pp. 54 and 64.

  4. 4.

    Wallace-Bruce 1994, p. 66.

  5. 5.

    Wallace 2005, p. 63.

  6. 6.

    Ibid.

  7. 7.

    UN Security Council (1999) Resolution 1272 (1999), UN Doc. S/RES/1272.

  8. 8.

    Stăvilă 2010, interview with author.

  9. 9.

    Popescu 2006, p. 12.

  10. 10.

    Stăvilă 2010, interview with author.

  11. 11.

    Popescu 2006, p. 12.

  12. 12.

    What is also pertinent to note at this point is the quite massive armament producing plants in Transnistria which are also controlled by Russia. Such plants like Electromash Tiraspol export arms to states in conflict and other secessionist entities—Deleau 2005, Document 2 of the annexes.

  13. 13.

    Stăvilă 2010, interview with author.

  14. 14.

    Ibid.

  15. 15.

    Ibid.

  16. 16.

    Ibid.

  17. 17.

    Popescu 2006.

  18. 18.

    Ibid., p. 12.

  19. 19.

    Ibid., p. 11.

  20. 20.

    King 2001, p. 539.

  21. 21.

    Vahl and Emerson 2004, p. 8.

  22. 22.

    King 2001, p. 539.

  23. 23.

    Ibid.

  24. 24.

    King 2000, pp. 194–196.

  25. 25.

    Akgün, p. 54.

  26. 26.

    Agreement on Questions Relating to Military Property (Russian Federation and the Moldavian Republic of Trandniestria), signed on 20 March 1998 in Odessa, Ukraine, Articles 1 and 5.

  27. 27.

    ECtHR, Case of Ilaşcu and others v Moldova and Russia, Grand Chamber Judgment, 8 July 2004, Appl. No. 48787/99 (Ilaşcu), para 382.

  28. 28.

    The League of Nations 1932.

  29. 29.

    ICTY, Prosecutor v Ivica Rajić, Review of the Indictment Pursuant to Rule 61 of the Rules of Procedure and Evidence, 13 September 1996, Case No. IT-95-12-R61, para 26.

  30. 30.

    If it is clear when the application of Common Article 2(1) commences [see Article 6(1)], it is more challenging to identify the end moment of its application. The reading of Article 6 of the Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War, opened for signature on 12 August 1949, 75 UNTS 287 (entered into force 21 October 1950) (GC IV), Article 2 of Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts, opened for signature 8 June 1977, 1125 UNTS 609 (entered into force 7 December 1978), and the ruling at para 70 in ICTY, Prosecutor v Duško Tadić, Judgement, 15 July 1999, Case No. IT-94-1-A (Tadić) leads to the conclusion that a conflict does not come to conclusion simply when a peace or ceasefire agreement is signed, but when the intensity of fighting on the ground subsides below the intensity of an armed conflict.

  31. 31.

    GC IV, above n 30.

  32. 32.

    ICJ, Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States of America), Judgment, 27 June 1986, [1986] ICJ Rep 14, para 115.

  33. 33.

    Ibid.

  34. 34.

    Ibid., para 86.

  35. 35.

    Tadić, above n 30, paras 116–145.

  36. 36.

    ICJ, Case Concerning Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), Judgment, 26 February 2007, [2007] ICJ Rep 43, paras 399–400.

  37. 37.

    International Law Commission 2001, Article 7.

  38. 38.

    Ibid.: “The State cannot take refuge behind the notion that, according to the provisions of its internal law or to instructions which may have been given to its organs or agents, their actions or omissions ought not to have occurred or ought to have taken a different form. This is so even where the organ or entity in question has overtly committed unlawful acts under the cover of its official status or has manifestly exceeded its competence. It is so even if other organs of the State have disowned the conduct in question”.

  39. 39.

    Pictet, Article 2.

  40. 40.

    See above n 30.

  41. 41.

    GC IV, above n 30.

  42. 42.

    Ibid.

  43. 43.

    Ibid.

  44. 44.

    Ibid.

  45. 45.

    A possible exception might be found in the UK Military Manual, which reads at paragraph 11.3.1 that “[i]n some cases, occupying troops have operated indirectly through an existing or newly appointed indigenous government. This type of occupation is not discussed in detail in this chapter. In such cases, despite certain differences from the classic form of military occupation, the law relating to military occupation is likely to be applicable. Legal obligations, policy considerations, and external diplomatic pressures may all point to this conclusion.”—UK Ministry of Defence 2004. It is, however, unclear if this passing and un-detailed mention applies to the case of puppet states. Anyhow, due to the use of the word likely, paragraph 11.3.1 can only be read as a guideline or recommendation, leaving the question of whether the creation and maintenance of puppet states should be equated with a state of occupation open. Moreover, such a stance has not been reflected in British state practice.

  46. 46.

    UN Security Council (1993) Resolution 822 (1993), UN Doc. S/RES/822.

  47. 47.

    Fleck 2008, p. 606.

  48. 48.

    Tadić, above n 30, para 145.

  49. 49.

    ICJ, Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 1970, Advisory Opinion, 21 June 1971, [1971] PCIJ Rep 16, para 118.

  50. 50.

    ECtHR, Case of Loizidou v Turkey, Preliminary Objections, 23 March 1995, Appl. No. 15318/89, para 54.

  51. 51.

    Ibid., para 62.

  52. 52.

    Ilaşcu, above n 27, paras 392–393.

  53. 53.

    Schoiswohl 2004.

  54. 54.

    Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, opened for signature 12 December 1977, 1125 UNTS 3 (entered into force 7 December 1979).

  55. 55.

    UN 2009 International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991: Rules of Procedure and Evidence, UN Doc. It/32/Rev.44, Rule 2.

  56. 56.

    Kadic v Karadžić, US Court of Appeals 2nd Circuit, 13 October 1995 (Kadic), para 158.

  57. 57.

    Convention against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987).

  58. 58.

    Kadic, above n 56, para 152.

  59. 59.

    Convention on the Prevention and Punishment of the Crime of Genocide, opened for signature 9 December 1948, 78 UNTS 277 (entered into force 12 January 1951).

  60. 60.

    Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 90 (entered into force 1 July 2002), Articles 6 and 7; UN Security Council 1993 Report of the Secretary-General pursuant to para 2 of Security Council Resolution 808 (1993), UN Doc S/25704, Annex: Statute of the International Tribunal, Article 5; UN Security Council 1994 Resolution 955 (1994), UN Doc. S/RES/955, Annex: Statute of the International Tribunal for Rwanda, Article 3.

  61. 61.

    Meron 1984.

  62. 62.

    Meron 1988, pp. 59–76.

  63. 63.

    Gasser 1988, pp. 51–53.

  64. 64.

    UN General Assembly 1987 Letter dated 26 June 1987 from the representative of Norway to the commission on Human Rights addressed to the Under-Secretary-General for Human Rights (transmitting the Oslo Statement on Norms and Procedures in Times of Public Emergency or Internal Violence), UN Doc. E/CN.4/Dub.2/1987/31.

  65. 65.

    Expert Meeting (1990) Declaration of Minimum Humanitarian Standards, Adopted by an expert meeting convened by the Institute for Human Rights, Åbo Akademi University, in Turku/Åbo, Finland, 2 December 1990. http://www.ifrc.org/Docs/idrl/I149EN.pdf. Accessed 14 June 2016.

  66. 66.

    Ibid.

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  1. L’Institut D’études Politiques (IEP) de Paris (Sciences Po Paris) Law School, Utrecht, The Netherlands

    Bogdan Ivanel

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  1. University Amsterdam and Netherlands Defence Academy, Amsterdam/Breda, The Netherlands

    Terry D. Gill

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Ivanel, B. (2016). Puppet States: A Growing Trend of Covert Occupation. In: Gill, T. (eds) Yearbook of International Humanitarian Law Volume 18, 2015. Yearbook of International Humanitarian Law, vol 18. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-141-8_2

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