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Commentary of 1958 


1. ' The principle '

The government experts who met in 1947 under the auspices of the International Committee of the Red Cross had already condemned certain punitive measures taken by an Occupying Power in respect of events which had occurred before the occupation or acts committed during a temporary interruption of the occupation (2). The inhabitants of the occupied country had been punished for having helped their own country's troops or those of its allies, for having belonged to a political party banned by the occupying authorities and for having expressed in the Press or in broadcasts political opinions which conflicted with the occupant's views. The clause under discussion was [p.349] adopted in order to avoid such measures being taken in the future. It covers not only the action of private individuals, but also legal action taken by a magistrate or official of the occupied territory in carrying out his public duties. The rule limiting the jurisdiction of the Occupying Power to the period during which it is in actual occupation of the territory is based on the
fact that occupation is in principle of a temporary nature (3).
The Occupying Power is therefore legally entitled to exercise penal jurisdiction in the occupied country in respect of acts which occur during occupation, and in respect of such acts only.

2. ' Exception '

There is one very important exception to this rule: when a protected person is guilty of breaches of the laws and customs of war, the occupying authorities are entitled (and it is even, as will be seen, their duty) to arrest and prosecute him, irrespective of the date of the offence. This is the only case in which the Convention authorizes the Occupying Power to prosecute and punish a protected person for acts committed before the territory was occupied, or during a temporary interruption of the occupation.
The expression "laws and customs of war" (4) covers the whole of the rules relating to the conduct of hostilities and to the treatment of war victims, particularly under the Geneva Conventions, the Hague Regulations, and unwritten international law.
The following example will serve to illustrate the difference between offences in respect of which the Occupying Power may take proceedings and those for which it may not do so. The occupation authorities cannot bring penal proceedings against an official of the occupied country who before the occupation began had ordered the internment of enemy civilians residing in the territory provided that he has observed the rules laid down in the Convention when interning those concerned. On the other hand, if the official in question had given orders -- also before the occupation of the territory -- for enemy civilians (or prisoners of war) to be exterminated or ill treated, the occupying authorities could prosecute and convict him; for he would then have acted in violation of the laws and customs of war.
Repression in such cases is based on the principle that penal legislation relating to war crimes is of universal application. Whereas [p.350] an ordinary criminal breaks only the law of the country, a war criminal breaks an international law or custom. The punishment of such crimes is therefore as much the duty of a State which becomes the Occupying Power as of the offender's own home country. The universal character of the law implies universal jurisdiction. It is, incidentally, by virtue of this essential principle that every Party to the Geneva Conventions of 1949 is under an obligation to "enact any legislation necessary to provide effective penal sanctions for persons committing, or ordering to be committed, ... grave breaches of the present Convention", to "search for persons alleged to have committed, or to have ordered to be committed, such grave breaches" and to bring such persons, "regardless of their nationality", before its own courts (Article 146).


1. ' Object of protection '

The second paragraph relates to "nationals of the Occupying Power who, before the outbreak of hostilities, have sought refuge in the territory of the occupied State".
The clause is absolutely exceptional in character; for Part III, like the whole Convention, except for Part II, is concerned only with non-nationals of the Occupying Power.
The paragraph refers to persons who fled from their home country before the outbreak of hostilities and found asylum in the occupied country; they rank as refugees, which distinguishes them from other subjects of the Occupying Power who are in occupied territory and to whom this clause does not apply.
The clause should be compared with Article 44 , which also deals with the position of refugees. The two texts are complementary: Article 44 deals with the refugees' relations with the authorities of the country which receives them; Article 70 governs their position vis-à-vis their own country of origin when it becomes the Occupying Power.
The commentary on Article 44 showed the meaning attached to the word "refugee" in the Convention. Refugees are people who have left their home country to seek refuge on alien soil as a result of political events or under the threat of persecution. They are thus in actual fact without the protection normally afforded by the State to which they belonged, but are not yet entitled to the legal protection of the State which has given them refuge.

[p.351] 2. ' Treatment '

The safeguard provided for refugees who are nationals of the Occupying Power is a clause prohibiting that Power from arresting, prosecuting, convicting or deporting them from the occupied territory. It is derived from the idea that the right to asylum enjoyed by them before the occupation began must continue to be respected by their home country, when it takes over control as Occupying Power in the territory of the country of asylum.
If the suffering of innumerable refugees in foreign lands who were subjected to acts of vengeance and persecution by the occupying authorities when those lands were invaded is called to mind, it is easy to understand the importance of giving refugees the status of protected persons.
There are two exceptions to the rule prohibiting the Occupying Power from arresting, prosecuting, convicting or deporting those of its nationals who rank as refugees.

(a) It does not apply to refugees who have committed offences "after the outbreak of hostilities". In making this reservation the plenipotentiaries of 1949 wished to make allowance for the possibility of nationals of a belligerent, who had taken refuge abroad, having been guilty in wartime of action prejudicial to their home country (propaganda broadcasts, attacks in articles of the press, etc.). If such acts have been committed before the outbreak of hostilities, those responsible for them cannot be prosecuted by the occupation authorities. They are then guilty only of political agitation. Once war has broken out, however, such agitation becomes treason and the higher interests of the State take precedence over the protection of the individual.

(b) The second exception concerns nationals of the Occupying Power who have committed ordinary criminal offences before the outbreak of hostilities and have taken refuge in the occupied territory in order to avoid the consequences of their action.
This reservation will be readily understood. Its object is to draw a clear distinction between two classes of persons: on the one hand, refugees, who are rightly entitled, as such, to humanitarian safeguards, and, on the other hand, common criminals who have no right at all to such protection. When criminals again fall into the hands of their State of origin, as a result of the occupation of the territory in which they are living, they must answer for their actions; the occupying authorities may therefore arrest them, take them back to their home country and bring them before its courts, provided always that the [p.352] law of the occupied State would have justified their extradition in time of peace. It is thus the legislation of the occupied State, and not that of the Occupying Power, which serves as a criterion for the definition of "offences under common law".
Municipal law usually authorizes extradition for ordinary criminal offences only, as distinct from offences of political, religious or military character, for which extradition is nearly always refused; refugees accused of offences which fall into the latter category can under no circumstances be arrested, prosecuted or deported by the occupation authorities; they are completely covered by the immunity accorded.
The problem -- often a difficult one -- of "connected offences" or "combined offences", that is offences which exhibit features of a political offence and at the same time those of an offence against ordinary law, must also be settled by reference to the law of the occupied State.
The reference to "the law of the occupied State" provides a further important safeguard: the occupation authorities will not be able to arrest and deport refugees in an arbitrary fashion, but only if they can produce proof that the charges against them are sufficient to warrant such action. Most domestic legislation and international treaties dealing with extradition contain a clause stating that the State applying for extradition must show a ' prima facie ' case; that is a normal judicial safeguard. It follows that an Occupying Power cannot take refugees into custody and send them back to its territory by merely alleging that they are guilty of ordinary criminal offences committed before the outbreak of hostilities; it must furnish adequate proofs in support of its allegations.
The express reference in the Article to the extradition laws which applied ' in peacetime ' is designed to meet the case of an Occupying Power which is tempted to apply pressure to the authorities of the occupied territory to persuade them to modify the provisions of their national legislation.

Notes: (1) [(1) p.348] For the background of this Article, see
' Final Record ', Vol. I, p. 123; Vol. II-A, pp. 674, 768,
834; Vol. II-B, pp. 433, 479; Vol. III, p. 142;

(2) [(2) p.348] See ' Commission of Government Experts for the
Study of Conventions for the Protection of War Victims,
Preliminary Documents submitted by the International
Committee of the Red Cross ', Geneva, 1947, Vol. III,
' Condition and Protection of Civilians in Time of War ',
p. 19;

(3) [(1) p.349] See p. 273;

(4) [(2) p.349] See ' Final Record of the Diplomatic
Conference of Geneva of 1949 ', Vol. II-A, pp. 674,