Justice under occupation: A legal analysis of prosecutor's and judge's relation to an occupying power in armed conflict
Publish date: 2025-05-09
Report number: FOI-R--5726--SE
Pages: 81
Written in: Swedish
Keywords:
- prosecutors
- judges
- occupation
- international armed conflict
- international humanitarian law
- international human rights law
- civil contingency
- total defence
- wartime posting
- courts
Abstract
This report examines the legal framework applicable to the prosecutors and judges relations to an Occupying Power. An armed attack against Sweden cannot be ruled out, nor therefore can an occupation of Swedish territory. One of the many questions that arises from such a scenario relates to the legal framework applicable to the maintenance of core societal functions, including public order and security. International humanitarian law presupposes that in a situation of occupation, the local legal system continues to function, but it is primarily the Occupying Power rather than the territorial State that is responsible for public order and security in the occupied territory. Prosecutors and judges of the territorial state who remain on the territory must relate to both the territorial State and the Occupying Power. Prosecutors and judges are protected persons under the Geneva Convention IV. Additionally, their status as public officials is also addressed in specific obligations. These requirements are further balanced with the Occupying Power's authority to compel protected persons to work. From a Swedish perspective, national law does not explicitly address the relation between prosecutors and judges, and an Occupying Power. The Constitution regulates the actions of public bodies in occupied territory, and other legislation regulates the roles and tasks of authorities and individuals within the Swedish total defence and civil contingency. However, it is unclear if and how this law should be applied or is relevant to situations of occupation. The report analyses these legal complexities, the legal scope for interpretation, and the challenges that arise.