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Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949.
. -- PENAL LEGISLATION:
IV. APPLICABLE PROVISIONS (1)
Article 67 relates to the military courts before which the Occupying Power may bring accused persons under the terms of the preceding Article
The object of the provision is to limit the possibility of arbitrary action by the Occupying Power by ensuring that penal jurisdiction is exercised on a sound basis of universally recognized legal principles. The rule that penal laws cannot be retroactive, which is stated here in general terms, had already been mentioned at the end of Article 65
. Nullum crimen, nulla poena sine lege is a traditional principle of penal law. There can be no offence, and consequently no penalty, if the act in question is not referred to in a law in force at the time it was committed and subject to punishment under that law.
The Article then makes express mention of the rule that the penalty is to be proportionate to the offence; this was because of certain abuses committed during the Second World War, when heavy punishments, and even the death penalty, were inflicted for minor offences such as listening to enemy radio programmes or coming out on strike.
This clause may be regarded as a welcome addition to Article 33
, which prohibits all measures of intimidation or terrorism, since penalties which were out of proportion to the offence would undoubtedly constitute a form of terrorism.
[p.342] The "general principles of law", which are not set out individually here but are referred to as a whole, include the rule concerning the personal nature of punishments, under which nobody may be punished for an offence committed by someone else. This rule is also laid down in Article 33
After mentioning these principles, the Convention makes an additional stipulation upon which it is desirable to dwell: before sentencing a protected person to any penalty the courts of the Occupying Power must take into consideration the fact that the accused is not its national and consequently does not owe it allegiance. An act which would be odious treachery if carried out by a national of the Occupying Power, in view of the offender's duties of allegiance to the State to which he belongs, is of an entirely different nature when it is committed by a person who is not a national of that Power. Not only can the perpetrator of the act no longer be regarded as a traitor, but, on the contrary, the patriotic sentiments which animate him and may have caused him to act in a manner detrimental to the enemies of his country, deserve consideration. His honourable motives must be taken into account when deciding on the penalty for an act which the laws of war authorize the Occupying Power to punish.
The same idea will be met with again in connection with Articles 68
; it also occurs in the corresponding Articles of the Third (Prisoners of War) Convention (2).
Notes: (1) [(1) p.341] For the origin of Article 67, see ' Final
Record, ' Vol. I, p. 123; Vol. II-A, pp. 673, 765, 810,
833, 858; Vol. II-B, pp. 195, 424; Vol. III, p. 140;
(2) [(1) p.342] See Third Convention, Articles 87, para. 2,
and 100, para. 3;