Practice Relating to Rule 50. Destruction and Seizure of Property of an Adversary
Iraq’s Military Penal Code (1940) punishes “every person who, while unnecessitated by war, damages or destroys movable or immovable property, cuts down trees, destroys agricultural crops, or orders to commit such acts”.
Iraq’s Law of the Supreme Iraqi Criminal Tribunal (2005) identifies as a grave breach of the 1949 Geneva Conventions “[e]xtensive destruction and appropriation of property not justified by military necessity and carried out unlawfully and wantonly”.
The law also characterizes “[d]estroying or seizing the civilian property of an adverse party” as a serious violation of laws and customs applicable in international armed conflicts “unless such destruction or seizure be imperatively required by the necessities of war”.
With regard to non-international armed conflict, “[d]estroying or seizing the property of an adversary, unless such destruction or seizure is imperatively demanded by the necessities of the conflict” constitutes a serious violation of the laws and customs of war.
Iraq’s Military Penal Code (2007) states:
First: Whosoever utilizes the horror of war or misuses military power for unlawful or coercive seizure of other persons’ possessions, or unauthorized collection of monies or funds or exceeding limitations of all warfare expenditure for his personal benefit, is punishable with imprisonment for a minimum period of (10) ten years.
Second: Whosoever, without military necessity, destroys or vandalizes movable or immovable assets or cuts trees or destroys agricultural crops, or ordered the same to be executed, is punishable with imprisonment.
In its judgment in the Al-Anfal case in 2007, the Iraqi High Tribunal listed the following elements for the crime of destroying or confiscating the property of an adversary:
1. The perpetrator must destroy the given properties or confiscate them.
2. The properties must be confiscated by the hostile side.
3. These properties must be included in the protection from destruction or confiscation according to the International Law of Armed Conflict.
4. The perpetrator must be aware of factual circumstances which prove the ownership of these properties.
5. The lack of military necessity calling for destruction or confiscation of those properties.
6. The conduct must be carried out within a national armed dispute context correlated with it.
7. The perpetrator must be aware of factual conditions which prove the existence of armed dispute.
The Tribunal further stated:
The elements of proof regarding the hostile side’s destruction or confiscation of properties as a crime of war are many, such as burning them down to ashes, deforming them or causing damages, looting the legitimate estate which was rendered legally, and an evidence that such properties were not used for hostile purposes.
Destroying or confiscating the properties occurred as a result of attack meaning any action accompanied by hostile military operations during armed conflicts as well as when this attack leads to destruction or confiscation of properties on the condition that the attack is premeditated, as it is the role of the court to prove that the accused, while committing his action, was expressing his intention directly to destroy those properties or confiscate them.
Another legal requirement to prove elements of the crime is that those properties must be included in protection from destruction or seizure according to the international law of armed conflict. The elements of proving this requirement is that there must be a proof that these properties were not used for hostile purposes.
In 2012, in its Report on Iraqi Children After 2003, the Ministry of Human Rights of Iraq stated:
The [M]inistry of Migration and [D]isplacement … recorded in 2006 that the number of displaced families is 250,000 with a[n] average of 5 persons per family. On[e] third of these numbers are children, which indicates the size of [the] agony of such children … even upon return to their original areas where issues like … lack of housing due to war and destruction operations by terrorist groups [are present].