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Commentary - Art. 65. Part III : Status and treatment of protected persons #Section III : Occupied territories
    [p.338] ARTICLE 65. -- PENAL LEGISLATION: II. PUBLICATION.
    NON-RETROACTIVITY (1)


    1. ' Publication '

    It may seem surprising that a whole Article of the Convention should be devoted to stating such an obvious principle, but the experience of two World Wars has shown that that principle is not always observed. Article 65 was adopted with a view to ensuring its observance in the future (2).
    The Occupying Power must not, for example, rest content with merely broadcasting the information, for the broadcast may only be heard by a portion of the population. The full text of the legislation must be published. The Convention does not prescribe the mode of publication, which may be through the medium of the local press, in an "Official Gazette" specially issued for the purpose, or by posting notices in places specially set aside and known to the public. The Occupying Power will sometimes resort to all three methods simultaneously. The language used will, of course, be the official language of the country concerned, that is to say the language in which the laws of the State are published (3).
    In all probability most armies of occupation will begin by promulgating the provisions of their military penal code dealing with offences committed against members of the armed forces or against military installations. That was what happened very often during the Second World War: as the armed forces advanced into enemy territory, they posted notices drawing the attention of the population to the measures which would be taken to punish unlawful attacks on military personnel and material.
    [p.339] If offences are committed against the occupation forces before such notices have been brought to the knowledge of the population of the occupied territory, the Occupying Power may punish them by having recourse to the military law of the territory which has been occupied. It may be noted, in this connection, that nearly all codes of military law provide some form of punishment for acts committed against members of the armed forces or against military installations.

    2. ' Non-retroactivity '

    The clause stipulating that penal provisions cannot be made retroactive in their effect expresses a fundamental principle of law (4). Its importance is underlined in another Article of the Convention (Article 67 ) according to which the Occupying Power's courts "shall apply only those provisions of law which were applicable prior to the offence."
    The non-retroactivity of penal law is absolute: in exercising penal jurisdiction, the Occupying Power will not be able to depart from established practice; that rule provides the population of the occupied territory with an important safeguard against persecution.


    Notes: (1) [(1) p.338] For the origin of Article 65, see ' Final
    Record ', Vol. I, p. 122; Vol. II-A, pp. 672-673, 765,
    833; Vol. II-B, p. 424;

    (2) [(2) p.338] See ibid., Vol. II-A, pp. 672-673, 833;

    (3) [(3) p.338] In countries which have more than one official
    language the Occupying Power will follow local practice
    and publish the penal provisions it enacts in either one
    or more than one language, according to whether the
    country's legislation was published in one or in more than
    one language before the occupation;

    (4) [(1) p.339] See ' Final Record of the Diplomatic
    Conference of Geneva of 1949 ', Vol. II-A, pp. 672-673,
    833;