Practice Relating to Rule 51. Public and Private Property in Occupied Territory
Section B. Immovable public property in occupied territory
Australia’s Defence Force Manual (1994) states that, in occupied areas, “enemy public immovable property may be administered and used but it may not be confiscated”.
Australia’s LOAC Manual (2006) states that, in occupied areas, “[e]nemy public immovable property may be administered and used but it may not be confiscated”.
The manual also states:
Military land and buildings belonging to the state, such as supply depots, arsenals, dockyards and barracks, as well as airfields, ports, railways, canals, bridges, piers, and their associated installations, remain at the disposal of the occupying power until the end of the occupation. The occupying power is liable for any waste or destruction resulting from such use. Structures of this type may only be destroyed or damaged if military operations render this absolutely necessary.
The LOAC Manual (2006) replaces both the Defence Force Manual (1994) and the Commanders’ Guide (1994).
Australia’s Criminal Code Act (1995), as amended to 2007, states with respect to war crimes that are committed in the course of an international armed conflict:
268.51 War crime – destroying or seizing the enemy’s property
(1) A person (the perpetrator) commits an offence if:
(a) the perpetrator destroys or seizes certain property; and
(b) the property is property of an adverse party; and
(c) the property is protected from the destruction or seizure under article 18 of the Third Geneva Convention, article 53 of the Fourth Geneva Convention or article 54 of Protocol I to the Geneva Conventions; and
(d) the perpetrator knows of, or is reckless as to, the factual circumstances that establish that the property is so protected; and
(e) the destruction or seizure is not justified by military necessity; and
(f) the perpetrator’s conduct takes place in the context of, and is associated with, an international armed conflict.
Penalty: Imprisonment for 15 years.
(2) Strict liability applies to paragraph (1)(c).