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Commentary - Art. 64. Part III : Status and treatment of protected persons #Section III : Occupied territories
    ARTICLE 64. -- PENAL LEGISLATION: I. GENERAL
    OBSERVATIONS (1)


    [p.335] Article 64 expresses, in a more precise and detailed form, the terms of Article 43 of the Hague Regulations, which lays down that the Occupying Power is to respect the laws in force in the country "unless absolutely prevented".

    PARAGRAPH 1. -- PENAL LAWS -- COURTS OF LAW

    1. ' First sentence. -- Penal legislation '

    A. ' The rule '. -- The first sentence expresses a fundamental notion: that the penal legislation in force must be respected by the Occupying Power. This is an application of a basic principle of the law of occupation (Article 43 of the Hague Regulations, as quoted above) (2).
    The idea of the continuity of the legal system applies to the whole of the law (civil law and penal law) in the occupied territory. The reason for the Diplomatic Conference making express reference only to respect for penal law was that it had not been sufficiently observed during past conflicts; there is no reason to infer a contrario that the occupation authorities are not also bound to respect the civil law of the country, or even its constitution.
    The words "penal laws" mean all legal provisions in connection with the repression of offences: the penal code and rules of procedure proper, subsidiary penal laws, laws in the strict sense of the term, decrees, orders, the penal clauses of administrative regulations, penal clauses of financial laws, etc.

    B. ' Reservations '. -- The principle that the penal laws in force in the occupied territory must be maintained is subject to two reservations.
    The first relates to the security of the Occupying Power, which must obviously (3) be permitted to cancel provisions such as those concerning recruiting or urging the population to resist the enemy.
    The second reservation is in the interests of the population and makes it possible to abrogate any discriminatory measures incompatible with humane requirements. It refers in particular, to provisions which adversely affect racial or religious minorities, such provisions being contrary to the spirit of the Convention (Article 27 ), which forbids all adverse distinction based, in particular, on race, religion or political opinion.
    [p.336] This means that when the penal legislation of the occupied territory conflicts with the provisions of the Convention, the Convention must prevail.
    These two exceptions are of a strictly limitative nature. The occupation authorities cannot abrogate or suspend the penal laws for any other reason -- and not, in particular, merely to make it accord with their own legal conceptions.

    2. ' Second sentence. -- Courts of law '

    A. ' The rule '. -- Owing to the fact that the country's courts of law continue to function, protected persons will be tried by their normal judges, and will not have to face a lack of understanding or prejudice on the part of people of foreign mentality, traditions or doctrines (4).
    The continued functioning of the courts of law also means that the judges must be able to arrive at their decisions with complete independence. The occupation authorities cannot therefore, subject to what is stated below, interfere with the administration of penal justice or take any action against judges who are conscientiously applying the law of their country.

    B. ' Reservations '.-- There are nevertheless two cases -- but only two -- in which the Occupying Power may depart from this rule and intervene in the administration of justice.
    1. As has just been said, the occupation authorities have the right to suspend or abrogate any penal provisions contrary to the Convention, and in the same way they can abolish courts or tribunals which have been instructed to apply inhumane or discriminatory laws (5).
    2. The second reservation is a consequence of "the necessity for ensuring the effective administration of justice", especially to meet the case of the judges resigning, as Article 56 gives them the right to do for reasons of conscience (6). The Occupying Power, being the temporary holder of legal power, would then itself assume responsibility for penal jurisdiction.
    For this purpose it may call upon inhabitants of the occupied territory, or on former judges, or it may set up courts composed of judges of its own nationality; but in any case the laws which must be applied are the penal laws in force in the territory.

    [p.337] PARAGRAPH 2. -- LEGISLATIVE POWERS OF THE OCCUPANT

    The legislative power of the occupant as the Power responsible for applying the Convention and the temporary holder of authority is limited to the matters set out in a limitative list below.

    (a) It may promulgate provisions required for the application of the Convention in accordance with the obligations imposed on it by the latter in a number of spheres: child welfare, labour, food, hygiene and public health etc. (7)

    (b) It will have the right to enact provisions necessary to maintain the "orderly government of the territory" in its capacity as the Power responsible for public law and order.

    (c) It is, lastly, authorized to promulgate penal provisions for its own protection. This power has long been recognized by international law (8). The provision is sufficiently comprehensive to cover all civilian and military organizations which an Occupying Power normally maintains in occupied territory. The Convention mentions "the Occupying Power" itself besides referring to the members and property of the occupying forces or administration, so that general activities such as activities on behalf of enemy armed forces are covered.

    The Occupying Power is entitled to use establishments and lines of communication for its own needs; it is therefore entitled to take appropriate measures to ensure their security.
    It will be seen that the powers which the Occupying Power is recognized to have are very extensive and complex, but these varied measures must not under any circumstances serve as a means of oppressing the population. The legislative and penal jurisdiction exercised by the occupation authorities, as holder of public power, is therefore hedged about with numerous safeguards set forth in the following Articles .


    Notes: (1) [(2) p.334] For the origin of the Article, see ' Final
    Record ', Vol. I, p. 122; Vol. II-A, pp. 670-672, 771,
    833; Vol. II-B, p. 424;

    (2) [(1) p.335] See ' Final Record of the Diplomatic
    Conference of Geneva of 1949 ', Vol. II-A, p. 672;

    (3) [(2) p.335] See ibid., pp. 670, 771 and 833;

    (4) [(1) p.336] See ' Final Record of the Diplomatic
    Conference of Geneva of 1949 ', Vol. II-A, p. 771;

    (5) [(2) p.336] See ibid., pp. 670, 833;

    (6) [(3) p.336] See ibid., pp. 672, 771;

    (7) [(1) p.337] See ' Final Record of the Diplomatic
    Conference of Geneva of 1949 ', Vol. II-A, pp. 672, 833;

    (8) [(2) p.337] See ibid., Vol. II-A, pp. 672, 833;