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Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949.
-- JUDGES AND PUBLIC OFFICIALS (1)
[p.303] This Article, like the preceding one, was not included in the Draft Convention prepared by the International Committee of the Red Cross. It was inserted in the Convention by the Diplomatic Conference in 1949 at the suggestion of the Belgian Delegation.
PARAGRAPH 1. -- STATUS. PROHIBITION OF COERCIVE MEASURES
1. ' The problem '
Public officials and judges are among the persons protected under Article 4
of the Convention. They therefore enjoy the same safeguards under the Convention as any other protected person. In view, however, of their special position as representatives of the national authorities invested with official power, the Conference felt that it was necessary to devote a special Article to their position. Their official status and their functions create a close relationship between them and the State.
It might be suggested that the fact of their continuing to carry out their duties after the territory is occupied indicates their personal support of the changes which have taken place. There may arise questions of conscience which were not always taken into account in actual practice under occupation, especially during the last world war. In their dealings with judges and public officials, the occupation authorities aimed at inducing them to support the Occupying Power's policies and to place themselves in opposition to the legal government to which they had sworn allegiance.
In the light of such experiences, the Diplomatic Conference decided to make the legal position of public officials and judges in occupied territory clearer by adopting a new Article dealing specifically with them.
Although the Hague Regulations contain no clause dealing expressly with the question, it is not new. It was the subject of detailed study both at the Brussels Conference in 1874 and at the first Hague Conference of 1899 when Draft Articles of a detailed nature were submitted (2).
[p.304] 2. ' Status '
The clause begins by stipulating that the Occupying Power may not alter the status of public officials or judges in the occupied territories.
Since it contains no definition of the terms "public officials" and "magistrates", the Convention must be taken to refer on that point to the public law of States. Although the sense given to the two terms in the legal terminology of different countries varies and they are not always exactly defined even within one and the same State, the term ' public official ' generally designates people in State or local government service, who fulfil public duties. The word ' magistrat ' in French is used in different senses, but it is normally used more especially of members of the judiciary, and that is its sense in the present Article, as shown by its translation into English as "judges".
The principle that the status of public officials and judges may not be altered is one case of the application of a general principle implicitly contained in the Convention -- namely that the personal status of all protected persons must be respected (3).
The purpose of the stipulation that public officials and judges must be allowed to retain their pre-occupation status is to enable them to continue carrying out the duties of their office as in the past, without being the object of intimidation or unwarranted interference. They must be in a position of sufficient independence to act according to their consciences and not to run the risk of being called to account for disloyalty when the national authorities resume their rights after the occupation ceases. An important point to be noted is that occupation does not involve a transfer of sovereignty and does not sever the ties of allegiance; public officials and judges therefore continue to be responsible before national opinion for their actions.
The rule prescribing respect for the status of persons holding public posts is particularly important in the case of judges in the occupied territory. It means that the occupation authorities, so long as they keep them at their posts and do not set up their own courts, undertake to respect the principle of the independence of judges (4). It will be seen, in the commentary on the last sentence of Article 54, however, that the rule that the status of public officials and magistrates must not be altered is subject to an important restriction.
[p.305] 3. ' Prohibition of coercive measures '
The second half of the paragraph lays down that the Occupying Power may not apply sanctions or other coercive or discriminatory measures to public officials or magistrates when they abstain from fulfilling their functions for reasons of conscience. That is one way of expressing the principle that every public official or judge in an occupied territory retains the right to hand in his resignation.
It may be mentioned in this connection that public officials and judges act under the superintendence and control of the occupant to whom legal power has passed in actual practice and to whom they, like any other protected person, owe obedience. But this duty of obedience does not cancel out the duty of allegiance which subsists during the period of occupation. The occupation authorities may not, therefore, compel judges or public officials to swear allegiance to them, nor demand that they should exercise their functions or pronounce their decisions and sentences in the name of the Occupying Power. There is not in general any inconsistency between the two ideas, provided that the Occupying Power, in exercising its authority, keeps strictly to the Convention and to other rules governing occupation and that it demands nothing of public officials and judges which might constitute an act of treason towards their country. The position is still, of course, a very delicate one in practice; for it is very difficult to avoid some conflict between these
duties. It is for that reason that persons holding public posts are left free to abstain for reasons of conscience. In such cases the Occupying Power cannot hold it against them, nor apply sanctions or take any measures of coercion or discrimination.
PARAGRAPH 2. -- RESERVATIONS
1. ' General principles '
This paragraph begins with a clause whose object is to harmonize Article 54 with the second paragraph of Article 51
. It has been seen that under that paragraph, the Occupying Power may compel protected persons over eighteen years of age to do "work which is necessary either for the needs of the army of occupation, or for the public utility services, or for the feeding, clothing, sheltering, transportation or health of the population of the occupied country".
In order to avoid the officials' right to resign from conflicting with the Occupying Power's right of requisition, the Diplomatic Conference made it quite clear that the prohibition to take coercive [p.306] measures against public officials and judges who abstain from fulfilling their functions does not prevent their services being requisitioned for work which is to be carried out under the conditions laid down in Article 51
(5). Does it imply that in this case the right of requisition has priority over the right of persons holding public posts to resign? Can such persons be required to remain at their posts whenever the accomplishment of their duties is connected with the authorized classes of work?
The reservation should be considered primarily in relation to the ideas of "public utility services" and it relates to public officials belonging to the various services concerned. Mention has already been made in the comments on Article 51
of the importance to the population of maintaining public services -- such as the water, gas, electricity, transport, health services, etc. -- the function of which would be seriously compromised by a general withdrawal of the officials employed in them. It may be reasonably considered that the Occupying Power would be justified in refusing the resignation of such officials and requisitioning their services in the same way as those of any protected person.
The same would apply to services connected with the other categories of work mentioned in Article 51, paragraph 2
, namely those necessary for the feeding, sheltering, clothing, transportation or public health of the population of the occupied country (6).
Besides officials attached to public utility services or other services referred to in Article 51
there is a whole series of persons holding public posts who also fulfil an essential role in the life of the public, for example, of local, district and provincial officials, of mayors, of officials in the registry of births, deaths and marriages, of police officers, prison staff and social welfare officers. Judges and other members of the judiciary, for their part, are the natural guardians and protectors of the inhabitants of the country in their relations with the Occupying Power and their resignation might well paralyse the whole administrative and judicial machinery, in which case protected persons would be the first to suffer. It is therefore generally agreed that it is their moral duty to remain at their posts in the interests of their fellow citizens; such a requirement is all the more justified as the non-political nature of their duties is generally such as to remove any conscientious scruples they might have.
[p.307] 2. ' Particular cases '
The reference to Article 51
relates not only to the list of different types of work, but also to the conditions and safeguards contained in that Article, in particular the prohibition on the use of compulsion to make protected persons take part in military operations. This is particularly important in the case of police officers, who cannot under any circumstances be required to participate in measures aimed at opposing legitimate belligerent acts, whether committed by armed forces hostile to the Occupying Power, by corps of volunteers or by organized resistance movements. On the other hand it would certainly appear that the Occupying Power is entitled to require the local police to take part in tracing and punishing hostile acts committed under circumstances other than those laid down in Article 4
of the Third Geneva Convention. Such acts may in fact be regarded as offences under common law, whatever ideas may have inspired their authors, and the occupation authorities, being responsible for maintaining law and order, are within their rights in
claiming the co-operation of the police.
Since the application of the Convention to police officials is a particularly delicate matter, internal laws or regulations will probably be issued to define in greater detail the professional duty of such persons in wartime. It is essential that they should be able to carry out their duties with complete loyalty without having to fear the consequences, should the terms of the Convention be liable to be interpreted later in a manner prejudicial to them.
To this end the International Independent Friendship Federation of High Police Officers has prepared a draft "Declaration applying to Police Officers the Geneva Convention of August 12th, 1949, concerning the protection of civilians in wartime" (7).
[p.308] 3. ' Removal of officials from their posts '
The last sentence of Article 54 confirms the Occupying Power's right to remove public officials from their posts for the duration of occupation. That is a right, of very long standing, which the occupation authorities may exercise in regard to any official or judge, whatever his duties, for reasons of their own. It is an important exception to the rule enjoining respect for the status of persons holding public posts, set forth in paragraph 1.
The provision refers primarily to government officials and other political agents who are generally removed from their posts by the occupation authorities, if they have not resigned of their own accord. On the other hand the Occupying Power does not normally remove administrative officials, but on the contrary encourages them to continue their duties.
At all events the power to remove officials of any kind from their posts at any moment is a safeguard accorded to the Occupying Power. That safeguard helps to ensure the bona fide application of the present Article as a whole, since on the one hand it allows the occupying authorities to behave fairly generously, in the certainty that they have the power to put an end to any abuses; on the other hand, it prevents public officials and judges who have been retained from using their authority in a manner detrimental to the Occupying Power, as they would otherwise be liable to be removed.
Notes: (1) [(1) p.302] For the discussions on Article 54, see ' Final
Record, ' Vol. II-A, pp. 774-775, 809, 829, 856; Vol.
II-B, pp. 194, 418;
(2) [(1) p.303] None of these texts were finally embodied in
the Hague Regulations, however, as a result of the
opposition -- and this point is worthy of note -- of the
same country whose delegation at the Diplomatic Conference
fifty years later proposed the adoption of the Article we
are now studying;
(3) [(1) p.304] An explicit application of this principle is
contained in Article 50, which forbids the Occupying Power
to change the personal status of children;
(4) [(2) p.304] See comments on Article 66;
(5) [(1) p.306] See ' Final Record of the Diplomatic
Conference of Geneva of 1949, ' Vol. II-A, pp. 665, 829;
(6) [(1) p.307] The Declaration reads as follows:
' Point 1: ' In pursuance of art. 70, para. 1, of the
above-mentioned Convention Police officers shall not incur
any administrative or judicial penalties at the instance
of the Occupying Power by reason of the execution, prior
to the occupation, or during a temporary interruption
thereof, of orders of the government of the country,
whether such penalty is imposed by legislative,
administrative, or judicial methods, and in so far as
their acts have not been contrary to the Human Rights as
defined by the Universal Declaration.
' Point 2: ' In pursuance of art. 27 of the
above-mentioned Convention Police officers shall not be
required by the Occupying Power to carry out any orders
contrary to their constant duty to respect Human Rights as
defined in the Universal Declaration of 10 December 1948.
They may not be required to search for or question,
arrest, hold in custody, or transport, any persons
subjected to these measures on the grounds of race,
religion, or political convictions unless the said persons
express their beliefs by acts of violence not permitted
under the laws of war.
' Point 3: ' In pursuance of art. 51 of the
above-mentioned Convention the Police may not be required
to assist in the execution of orders designed to employ
the population for military purposes, or for the promotion
of military operations. The Police may only be required to
maintain law and order for the protection of the rights of
the civilian population as defined by laws and customs of
' Point 4: ' In pursuance of art. 54, 65 and 67 of
the above-mentioned Convention, Police officers discharged
from their duties by the occupying Power shall not be
liable to any compulsory service and shall enjoy the
benefits and security bestowed upon them by regulations
applicable to them. These regulations may not be altered
by the Occupying Power.
During or after the occupation, Police officers may
in no case be subjected to penalty or compulsion by reason
of the execution by them of an order of any authority
which could in good faith be regarded as competent,
especially if the execution of this order was a normal
part of their duty."
(Translation supplied by the Federation.);