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its properly constituted, non-political military courts, on condition that these courts sit in theoccupied country. Courts of appeals shall preferably sit in the occupied country. 205These courts must be regularly constituted courts affording all the judicial guarantees thatare recognized as indispensable by civilized peoples. 206 These courts must also comply withrequirements for judicial proceedings regarding protected persons in occupied territory. 20711.11.3.1 U.S. Practice for Properly Constituted, Non-Political Military Courts.The United States has a long history of using provost courts in occupied territory. 208 In U.S.practice, provost courts have been used as properly constituted, non-political military courts.Service regulations have addressed the use of provost courts. 20911.11.3.2 Applicable Law in Properly Constituted, Non-Political Military Courts.Properly constituted, non-political military courts shall apply only those provisions of law thatwere applicable prior to the offense, and that are in accordance with general principles of law, inparticular the principle that the penalty shall be proportionate to the offense. 210 The requirementthat properly constituted, non-political military courts shall apply only those provisions of lawthat were applicable prior to the offense reflects the general rule that penal laws cannot beretroactive and that there cannot be an offense or penalty unless the act in question was205 GC art. 66 (“In case of a breach of the penal provisions promulgated by it by virtue of the second paragraph ofArticle 64, the Occupying Power may hand over the accused to its properly constituted, non-political military courts,on condition that the said courts sit in the occupied country. Courts of appeal shall preferably sit in the occupiedcountry.”).206 Refer to § 8.16 (Criminal Procedure and Punishment).207 Refer to § 10.29 (Judicial Proceedings Regarding Protected Persons in Occupied Territory or Internees in aBelligerent’s Home Territory).208 For example, EARL F. ZIEMKE, THE U.S. ARMY IN THE OCCUPATION OF GERMANY, 1944-1946, 144 (1975) (“Asinstruments for shaping relations between the population and the occupation forces, military government courts wereregarded as most important. They were expected, on the one hand, to enforce sternly the authority claimed in theproclamation and ordinances and, on the other, to point up for the Germans the difference between nazism anddemocracy by giving fair and impartial trials to all accused. Modeled after Army courts martial, the militarygovernment courts convened on three levels: summary (one officer), intermediate (one or more officers), andgeneral (not less than three officers). Summary courts could impose up to one year in prison and fines in marks upto $1,000; intermediate courts, ten years in prison and fines to $10,000; and general courts, the death penalty andunlimited fines.”); WINTHROP, MILITARY LAW & PRECEDENTS 803-04 (“In the late civil war there was established atNew Orleans by the President, by an order of October 20, 1862, a civil court entitled the ‘Provisional Court ofLouisiana,’ with both civil and criminal jurisdiction. … As to its jurisdiction of crimes, this appears maintained in anextended opinion of its judge, Hon. C.A. Peabody, in the cases of U.S. v. Reiter and Louis, charged with murder andarson. … Other Provost Courts, with a jurisdiction assimilated in general to that of justices’ or police courts, wereestablished from time to time by military commanders during the war;”).209 See, e.g., DEPARTMENT OF THE ARMY PAMPHLET 27-9-2, Military Judges’ Benchbook for Provost Courts (Oct. 4,2004).210 GC art. 67 (“The courts shall apply only those provisions of law which were applicable prior to the offence, andwhich are in accordance with general principles of law, in particular the principle that the penalty shall beproportionate to the offence.”); GC COMMENTARY 341 (“Article 67 relates to the military courts before which theOccupying Power may bring accused persons under the terms of the preceding Article.”).772