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Law of War Manual
11.10 ORDINARY COURTS IN OCCUPIED TERRITORY
In general, the courts and other tribunals of the occupied territory, like other governmental functions, should continue to operate.175 For example, ordinary crimes that do not affect the security of the Occupying Power or its personnel should continue to be administered by the courts in the occupied territory.176
However, the administration of justice in the occupied territory, like the performance of other governmental functions, is subject to the direction of the Occupying Power.177
11.10.1 Authority to Suspend Ordinary Courts. The ordinary courts in occupied territory should be suspended only if: (1) judges and magistrates are unable or unwilling to perform their duties; (2) the courts are corrupt or unfairly constituted; or (3) the local judicial administration has collapsed due to the hostilities preceding the occupation.178
In such cases, the Occupying Power may use its own properly constituted, non-political military courts to ensure that offenses against the local laws are properly tried.179 The
173 Refer to § 11.11.2.1 (Publication of Penal Provisions Before Coming Into Force).
174 Refer to § 11.2.4 (Proclamation of Occupation).
175 LIEBER CODE art. 6 (“All civil and penal law shall continue to take its usual course in the enemy’s places and territories under Martial Law, unless interrupted or stopped by order of the occupying military power; but all the functions of the hostile government – legislative, executive, or administrative – whether of a general, provincial, or local character, cease under Martial Law, or continue only with the sanction, or, if deemed necessary, the participation of the occupier or invader.”).
176 Refer to § 11.11.1.4 (Continued Administration of Penal Law by Courts in the Occupied Territory).
177 For example, Coalition Provisional Authority Order No. 7, Penal Code, §1 (Jun. 10, 2003) (“All judges, police and prosecutors shall perform their duties in accordance with CPA Regulation No. 1 (CPA/REG/23 May 2003/01) and in accordance with any other Regulations, Orders, Memoranda or instructions issued by the CPA.”).
178 1956 FM 27-10 (Change No. 1 1976) ¶373 (“The ordinary courts of justice should be suspended only if: a. Judges and magistrates abstain from fulfilling their functions (see GC, art. 54; par. 422 herein); or b. The courts are corrupt or unfairly constituted; or c. Local judicial administration has collapsed during the hostilities preceding the occupation and the occupant must set up its own courts to ensure that offenses against the local laws are properly tried. In such cases, the occupant may establish courts of its own and make this measure known to the inhabitants.”).
179 Refer to § 11.11.3 (Properly Constituted, Non-Political Military Courts in Occupied Territory).