LEGAL REVIEW

Cosialls Ubach, Andrés Miguel. “Jueces y funcionarios públicos bajo ocupación beligerante: el alcance del artículo 54 del IV CG.” Boletín CODESEL, vol. 2, no. 10, August 2026, ISSN-e: 3045-7750.

Review

The administration of occupied territory poses one of the most persistent structural dilemmas of the law of belligerent occupation. An Occupying Power must preserve public order and ensure the functioning of essential institutions, yet it cannot treat temporary authority as sovereignty or transform the local administration into an instrument of its own political project. In this extensive and carefully constructed study, Andrés Miguel Cosialls Ubach examines this tension through Article 54 of the Fourth Geneva Convention, focusing specifically on the legal position of judges and public officials under occupation. The central thesis is clear: Article 54 does not establish absolute security of tenure, but neither does it grant the Occupying Power an unrestricted power of dismissal. Removal must remain functional, temporary and individualised, and must comply with necessity, proportionality, non-discrimination, reversibility and appropriate control.

One of the article’s most important contributions lies in identifying Article 54 as a rule against what may be described as institutional capture. Judges, police officers, municipal authorities, civil registrars, technical personnel and other public servants constitute the institutional infrastructure through which everyday life continues during occupation. Their protection is therefore not merely a matter of individual employment status. The destruction or political appropriation of the local civil service may undermine the Occupying Power’s own obligation to maintain public life and protect the civilian population. Cosialls Ubach consequently places institutional continuity at the centre of the provision’s normative purpose.

Particularly persuasive is the systematic interpretation of Article 54 alongside Article 43 of the Hague Regulations and Articles 47 and 64 of the Fourth Geneva Convention. The author rejects an isolated reading of the Occupying Power’s authority to remove public officials. Instead, the provision must be understood within a broader legal structure based upon the non-transfer of sovereignty, continuity of existing institutions and preservation of the pre-occupation legal order. The Occupying Power possesses effective authority because it controls the territory, but that factual authority does not extinguish the sovereignty of the displaced State or transform local officials into servants of the foreign power.

This distinction between effective obedience and political allegiance represents one of the conceptual strengths of the article. Public officials may be required to comply with lawful administrative instructions necessary to preserve public life, while continuing to owe allegiance to the displaced sovereign. Cosialls Ubach formulates this intermediate legal position with considerable precision: occupation permits functional obedience without political adhesion and continuity of public service without a rupture of the pre-existing legal relationship with the occupied State. This interpretation gives practical meaning to Article 54’s prohibition on coercion and discrimination against officials who abstain from carrying out their functions for reasons of conscience.

The article’s treatment of temporariness and reversibility is equally significant. Belligerent occupation is by definition provisional, even where it continues for a prolonged period. Measures affecting the administration must therefore remain capable, as far as possible, of subsequent revision by the restored sovereign. Temporary reassignment, suspension or interim appointments may satisfy this requirement, whereas the wholesale destruction of professional structures, permanent transfer of competences or mass replacement of personnel may predetermine the institutional future of the occupied State. The author convincingly demonstrates that personnel policy is therefore capable of producing effects far beyond individual employment decisions: it may alter the legal culture and administrative capacity of the State for decades.

A further strength of the study is its reconstruction of the historical origins of Article 54. Cosialls Ubach recalls that the provision was not contained in the original ICRC draft and was introduced during the 1949 Diplomatic Conference at the suggestion of the Belgian delegation. Its emergence was closely connected with the European experience of occupation during the Second World War, when occupying authorities sought to pressure judges and officials into supporting their policies, abandoning loyalty to legitimate governments or performing functions incompatible with their previous institutional duties. The historical genealogy of the provision therefore confirms that Article 54 was designed not only to protect individuals from direct punishment but also to prevent administrative structures from being gradually converted into instruments of foreign political authority.

Especially valuable is the author’s identification of the three complementary purposes underlying the rule. Article 54 performs an institutional function by preserving the continuity of administration and justice; a personal function by protecting office-holders against intimidation, coercion and retaliation; and a political-legal function by preventing the Occupying Power from using local institutions to simulate a transfer of sovereignty or legitimise the new authority. This tripartite construction provides a particularly useful analytical framework for understanding why the provision protects the status of officials while nevertheless permitting removal in certain circumstances.

The discussion of the personal scope of Article 54 is similarly nuanced. Rather than adopting an excessively formal conception of “public official”, the study proposes a functional approach based upon the nature of the activity performed, the person’s integration into public structures and the responsibility exercised on behalf of the community. This allows the provision to encompass not only central government officials but also municipal personnel, civil registrars, tax officials, technical staff, public hospitals and schools, transport authorities, public undertakings and elected local officials where they exercise genuinely public functions. The analysis is especially relevant to contemporary administrations, where functions historically performed directly by the State may have been outsourced or entrusted to hybrid public entities.

Judicial independence receives appropriately heightened protection within the article. Cosialls Ubach demonstrates that altering the “status” of a judge cannot be reduced to formal dismissal or reduction in rank. It may include changes to jurisdiction, disciplinary guarantees, access to files, security, promotion, working conditions or case allocation where these are designed to influence judicial decisions. Likewise, transfer to a nominal tribunal lacking genuine competence or the selective removal of sensitive cases may constitute an unlawful alteration of judicial status. This functional understanding significantly strengthens the protection offered by Article 54 and connects the law of occupation with the broader requirement of an independent administration of justice.

The treatment of freedom of conscience constitutes another of the article’s most original elements. The author rejects a narrow understanding confined to religious or philosophical belief. Reasons of conscience may arise from professional ethics, fidelity to the constitutional order, refusal to participate in violations of humanitarian law or objection to exercising public powers in the name of a foreign authority. Importantly, the protected response need not always consist of complete resignation. It may also involve refusal to perform a particular act, recusal from a specific matter or transfer to neutral functions. The author therefore proposes a graduated approach in which permanent removal should be reserved for situations where the objection substantially prevents performance of the office and no less restrictive alternative remains available.

This interpretation is complemented by a careful distinction between remaining in public office and being required to perform limited forms of compulsory work under Article 51. An official may resign from a position whose institutional significance creates an unacceptable conflict of conscience and yet remain liable, under strictly defined conditions, to perform a necessary technical task for the benefit of the population. The example of an engineer responsible for essential sanitation infrastructure illustrates the point effectively. By contrast, judicial decision-making cannot simply be requisitioned as compulsory labour because adjudication necessarily depends upon independence and conscience.

The power of removal is consequently subjected to a demanding legal framework. Cosialls Ubach argues that dismissal cannot be treated as an attribute of sovereign discretion. It requires legitimate purpose, necessity, individual assessment, proportionality, temporariness, procedural safeguards and consideration of the effects upon institutional continuity. Particularly important is the procedural dimension: notification of reasons, the possibility of responding, preservation of records and some form of independent review become essential safeguards against arbitrary or politically motivated dismissals. Before removing large numbers of officials, the Occupying Power must also evaluate whether the services for which it remains responsible can continue functioning.

The article is also notable for recognising that discrimination and coercion frequently operate through indirect administrative techniques rather than explicit criminal punishment. Loss of promotion opportunities, denial of housing, pension restrictions, adverse security classifications or discriminatory transfers may function as concealed reprisals against officials who invoke conscience or refuse political collaboration. This broader perspective is indispensable to an effective reading of Article 54, since institutional capture can occur incrementally through employment decisions that appear neutral when examined individually.

A further important contribution is the connection established between violations of Article 54 and broader questions of international responsibility. The author notes that the provision does not itself transform every unlawful dismissal into an international crime. Nevertheless, systematic persecution of judges or public officials on political, national, ethnic or religious grounds may contribute to crimes against humanity where the relevant contextual elements are present. Arbitrary detention, deportation or disappearance of members of the judiciary may also generate individual criminal responsibility, while mass dismissals can constitute evidence of unlawful institutional transformation or de facto annexation.

The analysis is particularly effective in demonstrating why collective purges are difficult to reconcile with the underlying logic of occupation law. An Occupying Power may legitimately remove an individual who presents a concrete security risk, has participated in serious crimes or cannot perform the required function. What Article 54 resists is the conversion of such individualised powers into categorical exclusion based upon previous affiliation, nationality, political identity or mere membership in the former administration. Institutional reform therefore does not eliminate the obligation to preserve local capacity or dispense with individual assessment.

The visual dimension of the article reinforces this argument particularly well. Images of Iraqi judges, police officers, health personnel, engineers and public infrastructure demonstrate that administration under occupation is not an abstract bureaucratic concern. The photograph of Chief Investigative Judge Ra’id Juhi emphasises the particular vulnerability of judicial independence, while the images of Iraqi police and technical personnel illustrate how maintaining local institutional capacity is inseparable from the Occupying Power’s obligation to preserve public life.

Methodologically, the article combines close treaty interpretation, the ICRC Commentary, leading contemporary scholarship on occupation law and the practical consequences of institutional decision-making. Its principal merit lies in moving beyond a literal reading of the final sentence of Article 54 and reconstructing the provision as part of the internal logic of the law of occupation. The resulting framework is both doctrinally coherent and operationally useful.

From a broader perspective, the study contributes to one of the central debates surrounding modern occupations: how far an Occupying Power may reform dysfunctional or abusive institutions without crossing the line from temporary administration into sovereign transformation. Cosialls Ubach does not argue for institutional immobility. Necessary reforms remain possible, particularly where required to protect fundamental rights or ensure essential services, but they must satisfy a cumulative test based upon genuine necessity, connection with the occupier’s legal obligations, proportionality, temporariness, minimal alteration and benefit to the population.

Overall, this article constitutes a substantial contribution to the contemporary law of belligerent occupation. Andrés Miguel Cosialls Ubach convincingly demonstrates that Article 54 of the Fourth Geneva Convention should be understood as a mechanism for preserving institutional continuity without permitting institutional appropriation. Its underlying logic can be summarised through four particularly effective propositions developed in the conclusion: continuity without appropriation, legal obedience without political allegiance, replacement without punishment, and reform without sovereign transformation. This functional and protective interpretation offers a coherent framework for reconciling administrative necessity, judicial independence, individual conscience and the provisional character of occupation.

Abstract

This review examines Andrés Miguel Cosialls Ubach’s analysis of Article 54 of the Fourth Geneva Convention and the legal status of judges and public officials under belligerent occupation. The article argues that the provision neither guarantees absolute security of tenure nor grants the Occupying Power unrestricted authority to dismiss local officials. Instead, removal must be understood as a functional and exceptional power subject to necessity, proportionality, individual assessment, non-discrimination, temporariness, reversibility and procedural control. Through a systematic interpretation of Article 54 alongside Article 43 of the Hague Regulations and Articles 47, 51 and 64 of the Fourth Geneva Convention, the study develops a broader theory of institutional continuity under occupation. Particular attention is devoted to judicial independence, freedom of conscience, compulsory labour, loyalty to the displaced sovereign, public-service continuity and the prohibition of politically motivated institutional transformation. The article concludes that the law of occupation requires continuity without appropriation, legal obedience without political allegiance, replacement without punishment and reform without sovereign transformation.