Practice Relating to Rule 51. Public and Private Property in Occupied Territory
Section A. Movable public property in occupied territory
Israel’s Manual on the Rules of Warfare (2006) states:
The population of occupied areas
International law governs the duty of the army and its authority over populations in occupied areas or in zones under military occupation during battle, The Fourth Geneva Convention includes a complete list of instructions that is binding upon the army in its dealings with the civilian population in an occupied area and regulate the army’s authority (for example, when is the confiscation of property permitted … and more).
The State of Israel claimed in the past that the Convention, at least in part, does not constitute customary international law, however, for political reasons it applies the humanitarian provisions of the Convention de facto
, with respect to everything concerning the Occupied Territories.
The Manual on the Rules of Warfare (2006) is a second edition of the Manual on the Laws of War (1998).
Israel’s IDF General Staff Order No. 50.0303 of 1977 states:
1. In this Order:
Occupied Territory – Territory outside the borders of State of Israel that was in enemy hands and passed to IDF [Israel Defense Force] control.
Area Commander – Territory for which the IDF appointed a military governor – the Military Governor. Territory for which no Military Governor was appointed – the Commander of the division whose forces are holding or securing said territory.
Seizure of property – taking over the property, including right of ownership.
Possession of property – taking over administration of property, including using it and benefiting from its produce, without having full ownership.
Land – Land of any kind and any form of possession, buildings, trees or anything else connected to the ground, such as orchards or railroads.
Movable property – Any property that is not land.
Abandoned property – Privately owned land or movable property, whose owner is unknown or had left the occupied area before the occupation or because of it.
2. This Order defines the powers of the military authorities regarding enemy property located in occupied territory. This Order does not relate to enemy property on the battlefield. That subject is detailed in General Staff Order 50.0301.
3. To remove all doubt, it should be clear that the provisions of this Order also apply to the police force, when operating under the command of the army owing to call up for reserve duty, or for a military or other type of mission.
4. No land or movable property in occupied territory may be seized or possessed or used without the consent of the owner unless it is necessary for the purposes of war and if allowed by the provisions of this Order.
5. When exercising his powers as per this Order, the Area Commander will take into account the needs of the civilian population of the occupied territory, and will ensure the availability of a supply of food and medical supplies.
6. The Area Commander will not exercise his powers as per this Order, except after consultation with the highest Quartermaster level in the occupied territory (representative of the General Staff-Logistic Branch, or of the command or division Quartermaster. If there is no such representative – the Formation Maintenance Officer, whose forces are in the area or are securing it).
7. In the event of doubt about the status of the property, the military legal adviser of the governing forces must be consulted before exercising powers, as per this Order, and if the governing headquarters are not yet established, with the appropriate Command Advocate.
8. No negotiations will be held with a civilian third party over compensation for property that has been seized or possessed or made use of as per this Order and no confirmations or statements will be offered to any civilian third party, except in accordance with the provisions of this Order.
9. All Commanders must ensure that their subordinates act as follows:
a. They will not commit acts of looting.
b. They will comply with the provisions of this Order and not abuse the powers it grants.
c. They shall not misuse the property covered by this Order.
10. This Order does not detract from what is stated in General Staff Order 33.0133 (Discipline – behavior in accordance with international treaties to which the State of Israel is party), rather supplements it.
11. General Staff – Logistics Branch may appoint a Commander of the Logistic Command or any other position with regard to occupied territory and grant him power to seize and take possession and give instructions regarding use of property, as specified in this command.
12. If a unit has seized land as per this Order, it will report immediately to the appropriate Command Lands Officer who will inform the Building Center and the General Staff-Logistic Branch. The latter will notify those concerned whether or not it had approved the seizure of the land.
13. The provisions of this Order shall deal with four types of property:
a. State-owned lands
b. Privately owned lands
c. State-owned movable property
d. Privately owned movable property
14. For the purpose of this Order, the movable property and lands will be considered state-owned also if owned by a corporation, where the state has shares granting it control over it or its assets or if it has the right to administer it.
Movable property owned by the occupied state
26. Instructions for handling movable goods and property of an enemy state, captured on the battlefield are detailed in General Staff Order 50.0301.
27. Occupation grants the State of Israel ownership and possession rights to movable goods owned by the occupied state that can be used for military operations (such as weapons, supplies, transportation and communication means, money and valuables and documents that are important for the war operations) and thus the IDF is entitled to seize such equipment. The Law of Movable Property, as mentioned above, is to be treated as the law of war booty, i.e. they become property of the State of Israel from the moment of seizure and should be treated according to General Staff Order 50.0301 regarding changes under the circumstances. If movable state property is held in private hands, they will be provided with confirmation of the seizure, according to clauses 30 to 37 below.
28. Movable goods that are the property of an occupied state may not be transferred or used, except according to the Order regulating handling of booty.
29. The provisions of this section do not apply to movable property that is not suitable for military use, and movable goods of the type described below that are private property and are to be treated as specified in sections 30 to 37 below:
a. Funds held by the occupied state, and which are in effect moneys belonging to people or private bodies.
b. Underwater cables linking the occupied territory with a neutral state.
c. Medical materials and medical warehouses of civilian hospitals.
d. Moveable property belonging to a local authority or movable property belonging to religious, charitable, educational, art or science institutions.
e. Art works and antiques.
Seizure of such movable property must always be approved, as specified in Section 30 below.
Obligations regarding enemy property
38. Whoever has acquired seized property, which is held or given for temporary use as per this Order, must take all measures to prevent breakage, damage or loss of the a/m property.
39. Destruction of property as mentioned above or use that compromises its integrity, are permitted only if military necessity so requires.