Practice Relating to Rule 51. Public and Private Property in Occupied Territory
New Zealand’s Military Manual (1992) provides that, in occupied territory, “confiscation is the taking of enemy public movable property without the obligation to compensate the State to which it belongs. All enemy public movable property which may be usable for the operations of war may be confiscated.”
New Zealand’s Military Manual (1992) provides that, in the case of occupied territory:
Enemy public immovable property may be administered and used but it may not be confiscated.
Real property belonging to the State which is essentially of a civil or non-military character, such as public buildings and offices, land, forests, parks, farms, and mines, may not be damaged unless its destruction is imperatively demanded by the exigencies of war. The Occupying Power becomes the administrator and usufructuary of the property and must not exercise its rights in such a wasteful or negligent way as will decrease the property’s value. A usufructuary has no right of disposal or sale.
The Occupying Power may, however, let or utilize public land and buildings, sell the crops on public land, cut and sell timber and work the mines but he must not make a contract or lease extending beyond the conclusion of the war and the cutting or mining must not exceed what is necessary or usual. It must not constitute abusive exploitation.
Public real property which is of an essentially military nature such as airfields and arsenals remain at the absolute disposal of the Occupying Power.
New Zealand’s Military Manual (1992) provides: “Enemy private movable property, other [than] arms and military papers captured or found on a battlefield, may be appropriated only to the extent such taking is permissible in an occupied area.”
The manual further states that, in occupied territory:
If property is of mixed ownership, that is partly owned by the State and partly owned by private persons, then, if the Occupying Power appropriates the property for its own benefit, the private owners should be compensated for their portion of the property.
Private property may not be confiscated.
The seizure of private movable property is governed by Art. 53 [of the 1907 Hague Regulations]. By this rule, all appliances adapted for the transmission of news or for the transport of persons or goods by land, sea or air, except where naval law governs, stores or arms (in general, every kind of war material, even if it belongs to private individuals), may be seized, but they must be restored and the compensation fixed when peace is made.
These objects may be seized by, but do not become the property of, the Occupying Power. The seizure operated merely as a transfer of the possession of the object to the Occupying Power while the ownership remains in the private owner. Insofar as the objects seized are capable of physical restoration they must be restored at the conclusion of peace and insofar as they have been consumed or have been destroyed or have perished, a cash indemnity must be paid when peace is made. Within this rule fall: cables, telegraph and telephone plant; television, telecommunications and radio equipment; horses, motorcars, bicycles, carts and carriages; railways and railway plant, tramways; ships in port, river and canal craft; aircraft of all descriptions, except ambulance aircraft; sporting weapons; and all kinds of property which could serve as war material.
No provision in [the 1907 Hague Regulations] obliges the belligerent who effects the seizure to give a receipt or to carry out the seizure in any formal manner, but the fact of seizure should obviously be established in some way, if only to give the owner an opportunity of claiming the compensation expressly provided for.
Requisition may be made of all commodities necessary for the maintenance of the occupying army. Within this category fall such things as: food and fuel supplies, liquor and tobacco, cloth for uniforms, leather for boots, and the like. The taking of such articles is forbidden unless they are actually required for the needs of the occupying army. Even if foodstuffs, goods or medical supplies available in the occupied territory are subject to requisition because they are needed for the forces of occupation and for administrative personnel, they may be requisitioned only after the requirements of the civilian population have been taken into account. In any case, the articles taken must be duly requisitioned and the amount taken must be in proportion to the resources of the country.
Articles requisitioned should be paid for in ready money but, if this is not possible, a receipt must be given for them and payment of the amount due must be made as soon as possible. Articles properly requisitioned become the property of the Occupying Power and pass out of the ownership of their former owner. As payment for these articles is made either at the time of requisition or becomes due at that time and is made later, a requisition may, in effect, be a compulsory sale on the order of the Occupying Power.
Requisition can only be demanded on the authority of the commander in the locality occupied. It is not necessary, however, that his order for the requisition should be produced, as the articles taken must be paid for or a receipt given. The assistance of the local authorities of the invaded territory may be invoked to obtain the supplies. When it is impossible to obtain this assistance, special parties under an officer should be detailed to collect what is required. Except in case of emergency, no one under the rank of commissioned officer is, by the regulations of practically all armies, permitted to requisition.
Requisitions of supplies may be made in bulk, that is, a community may be called upon to supply certain quantities, or a return may be called for from inhabitants giving the amounts in their possession of which a proportion may then be requisitioned, or the householders may be requisitioned to feed or partly feed the soldiers quartered on them. In fact, any way that is convenient may be employed provided that the above mentioned rules and the provisions of [the 1949 Geneva Convention IV] are observed.
The right to billet troops on the inhabitants follows from the right to requisition. The prices to be paid for requisitioned supplies may be fixed by the commander of the occupying force. The prices of commodities on sale may also be regulated.