Practice Relating to Rule 51. Public and Private Property in Occupied Territory
South Africa’s LOAC Manual (1996) states that soldiers must “respect civilians and their property”.
In its written statement submitted to the ICJ in Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory in 2004, South Africa stated:
48. The Separation Wall, as described in detail in the report of the Special Rapporteur of the Commission on Human Rights on the situation of human rights in the Occupied Palestinian Territories (E/CN.4/2004/6), has resulted in vast expropriation of land and has destroyed homes, shops, schools, water networks and agricultural land belonging to Palestinians. These acts are expressly prohibited by Article 53 of the Fourth Geneva Convention which states that “any destruction by the Occupying Power of real or personal property belonging individually or collectively to private persons, or to the State, or to other public authorities, or to social or cooperative organizations, is prohibited, except where such destruction is rendered absolutely necessary by military operations”.
49. The justification put forth by the Government of Israel for such a contravention of the aforementioned Article 53 and the construction of the Separation Wall itself, is that the purpose of the Separation Wall is for the security of Israel and such destruction or seizure of Palestinian property is demanded by the necessities of war, as permitted by Article 23 of the Hague Regulations of 1907. It must be made clear that the concept of “military necessity” does not release a state from the obligations of complying with international humanitarian law. The Geneva Conventions and Additional Protocols have already struck the balance between the demands made on the law of the conduct of war and the requirements of humanity.