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Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949.
-- PENAL LEGISLATION: III. COMPETENT COURTS
1. ' General '
As has been seen, Article 64
authorizes the Occupying Power to subject the inhabitants of the occupied territory to whatever measures it considers necessary for its own security and to ensure that the present Convention is enforced and the territory properly administered.
Article 66 recognizes the right of the Occupying Power to bring offenders before its own military courts for the purpose of punishing offences against such measures, which may cover a very wide range. [p.340] The legislative powers of the occupying forces are thus reinforced by judicial powers designed to make good the deficiencies of the local courts, should this be necessary.
2. ' Conditions '
The powers referred to may only be exercised on certain conditions, the observance of which is imperative:
(a) The accused may only be brought before "military courts", that is before courts whose members have military status and are subordinate to the military authorities (1). These courts, dealing as they do with the offences committed by the army of occupation, will normally sit in occupied territory, and can therefore try cases involving other people in such territory. That is doubtless the reason why military courts have been prescribed, since it will be seen that another of the conditions on which the right to exercise jurisdiction depends, is that the court should sit within the occupied territory.
(b) The military courts must be "non-political". This clause forbids certain practices resorted to during the Second World War when the judicial machinery was sometimes used as an instrument of political or racial persecution.
(c) The courts are to be "regularly constituted". This wording definitely excludes all special tribunals. It is the ordinary military courts of the Occupying Power which will be competent. Such courts will, of course, be set up in accordance with the recognized principles governing the administration of justice.
It will be seen later (Article 71
and following) that the proceedings in such courts are governed by a set of extremely detailed provisions, providing protected persons with every guarantee of respect for the human person.
(d) A last condition, already referred to above, is that the courts in question should "sit in occupied territory". If they are sitting, for any special reason, outside the occupied territory, they must move into it in order to try the cases mentioned here. This obligation is in accordance with the principle of the territoriality of penal jurisdiction. It prevents protected persons who are accused of an offence from being brought before a court in a country other than that in which the offence was committed and thus provides them with a safeguard of the utmost value. In the same way, the Convention lays down that protected persons against whom proceedings [p.341] are taken are to be "detained within the occupied country" and, where necessary, "serve their sentence there".
The Occupying Power is, on the other hand, free to decide whether or not the competent courts of appeal are to sit in occupied territory. The text itself states that they should "preferably" sit in the occupied country; this would be likely to provide the protected persons with additional safeguards.
Notes: (1) [(1) p.340] See ' Final Record of the Diplomatic
Conference of Geneva of 1949 ', Vol. I, p. 123; Vol. II-A,
pp. 765, 833;