11.8.1 Paramount Authority of the Occupying Power Over Government Functions in
Occupied Territory. The functions of the hostile government—whether of a general, provincial,
or local character—continue only to the extent they are sanctioned by the Occupying Power.
139
11.8.2 Continued Performance of Duties by Civil Servants and Other Officials of Local
Governments. The Occupying Power may, while retaining its paramount authority, permit the
government of the country to perform some or all of its normal functions.140
It may, for
example, call upon the local authorities to administer designated rear areas, subject to the
guidance and direction of the Occupying Power.
141
Such action is consistent with the status of
occupation, so long as there exists the firm possession of territory and the purpose to maintain
paramount authority.142
Similarly, for example, courts are generally to continue the ordinary
administration of justice during occupation.143
The compulsion of civil servants and other officials of local governments to continue to
perform their duties must be justified by military necessity and consistent with applicable
provisions of the GC.
144
11.8.3 Local Governments Under Duress or Surrogate Governments. The restrictions
placed upon the authority of a belligerent State cannot be avoided by a system of using a puppet
government, central or local, to carry out acts that would be unlawful if performed directly by the
Occupying Power. Acts induced or compelled by the Occupying Power are nonetheless its
acts.145
11.8.4 Responsibility of the Occupying Power for Treatment Accorded to Protected
Persons by Its Agents. An Occupying Power, like belligerent States, is responsible for the
treatment accorded to protected persons by its agents, irrespective of any individual
responsibility that may be incurred.146
The responsibility of the Occupying Power for its agents
includes those agents that are not its nationals, such as locally recruited agents of the nationality
of the State whose territory is occupied.147
11.8.5 Immunity of Occupation Personnel From Local Law. Military and civilian
personnel of the occupying forces and occupation administration and persons accompanying
them are not subject to the local law or to the jurisdiction of the local civil or criminal courts of
the occupied territory, unless expressly made subject thereto by a competent officer of the
Occupying Power.
148
It is important for the Occupying Power to ensure that an appropriate system of
substantive law applies to such persons and that tribunals are in existence to deal with civil
litigation to which they are parties and with offenses committed by them.149
In the past, provost
courts have been used for these purposes.150
In recent practice, the Uniform Code of Military
Justice and the Military Extraterritorial Jurisdiction Act, among others, have been used to
address offenses committed by military and civilian personnel in the context of occupation.151 whether the government over an enemy’s territory consists in a military or civil or mixed
administration. Its character is the same and the source of its authority the same. It is a
government imposed by force, and the legality of its acts is determined by the law of war.152
For example, the governing authority established by the Occupying Power may be
composed of civilian personnel.153
Chapter 11.8 of the Law of War:
ADMINISTRATION OF OCCUPIED TERRITORY
11.8.1 Paramount Authority of the Occupying Power Over Government Functions in Occupied Territory. The functions of the hostile government—whether of a general, provincial, or local character—continue only to the extent they are sanctioned by the Occupying Power. 139
11.8.2 Continued Performance of Duties by Civil Servants and Other Officials of Local Governments. The Occupying Power may, while retaining its paramount authority, permit the government of the country to perform some or all of its normal functions.140 It may, for example, call upon the local authorities to administer designated rear areas, subject to the guidance and direction of the Occupying Power. 141 Such action is consistent with the status of occupation, so long as there exists the firm possession of territory and the purpose to maintain paramount authority.142 Similarly, for example, courts are generally to continue the ordinary administration of justice during occupation.143 The compulsion of civil servants and other officials of local governments to continue to perform their duties must be justified by military necessity and consistent with applicable provisions of the GC. 144
11.8.3 Local Governments Under Duress or Surrogate Governments. The restrictions placed upon the authority of a belligerent State cannot be avoided by a system of using a puppet government, central or local, to carry out acts that would be unlawful if performed directly by the Occupying Power. Acts induced or compelled by the Occupying Power are nonetheless its acts.145
11.8.4 Responsibility of the Occupying Power for Treatment Accorded to Protected Persons by Its Agents. An Occupying Power, like belligerent States, is responsible for the treatment accorded to protected persons by its agents, irrespective of any individual responsibility that may be incurred.146 The responsibility of the Occupying Power for its agents includes those agents that are not its nationals, such as locally recruited agents of the nationality of the State whose territory is occupied.147
11.8.5 Immunity of Occupation Personnel From Local Law. Military and civilian personnel of the occupying forces and occupation administration and persons accompanying them are not subject to the local law or to the jurisdiction of the local civil or criminal courts of the occupied territory, unless expressly made subject thereto by a competent officer of the Occupying Power. 148
It is important for the Occupying Power to ensure that an appropriate system of substantive law applies to such persons and that tribunals are in existence to deal with civil litigation to which they are parties and with offenses committed by them.149 In the past, provost courts have been used for these purposes.150 In recent practice, the Uniform Code of Military Justice and the Military Extraterritorial Jurisdiction Act, among others, have been used to address offenses committed by military and civilian personnel in the context of occupation.151 whether the government over an enemy’s territory consists in a military or civil or mixed administration. Its character is the same and the source of its authority the same. It is a government imposed by force, and the legality of its acts is determined by the law of war.152 For example, the governing authority established by the Occupying Power may be composed of civilian personnel.153