Practice Relating to Rule 51. Public and Private Property in Occupied Territory
In its written statement submitted to the ICJ in Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory in 2004, Saudi Arabia stated:
18. Both the 1907 Hague Regulations and the Fourth Geneva Convention of 1949 make clear that the occupying Power has a general duty to respect and protect private property. Article 46 of the 1907 Hague Regulations states the simple proposition:
“Private property cannot be confiscated.”
Article 53 of the Fourth Geneva Convention of 1949 likewise states:
“Any destruction by the occupying Power of real or personal property belonging individually or collectively to private persons … is prohibited, except where such destruction is rendered absolutely necessary by military operations.”
… [T]he Separation Wall cannot be excused as an absolute necessity … in all events it is not a military operation within the meaning of the Fourth Geneva Convention of 1949, but a disproportionate security measure.
35. … [T]he confiscation of private property by the occupying Power is illegal under humanitarian law, and … cannot be justified by the argument of necessity. Moreover, the confiscation of private property is carried out without meaningful legal recourse and wantonly. Such actions by an occupying Power constitute a “grave breach” of the Fourth Geneva Convention of 1949. Article 147 states:
“Grave breaches … shall be those involving any of the following acts: … extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.”
36. The confiscations are … wanton because the occupying Power carries out these confiscations with no regard to their humanitarian impact.
On the status of the wall as a military necessity, Saudi Arabia stated:
28. The Separation Wall is not a military necessity that absolves the occupying Power of its duties to the protected civilian population of the Occupied Palestinian Territory, including in and around Jerusalem, under international humanitarian law. The Separation Wall does not meet the test of necessity in international law, whether it is viewed generally or in terms of military requirements.
29. The International Law Commission’s Draft Articles on State Responsibility set forth the applicable tests for judging whether an argument of necessity may excuse an illegal act. Article 25 provides:
1. Necessity may not be invoked by a State as a ground for precluding the wrongfulness of an act not in conformity with an international obligation of that State unless the act:
(a) Is the only way for the State to safeguard an essential interest against a grave and imminent peril; and
(b) Does not seriously impair an essential interest of the State or States towards which the obligation exists, or of the international community as a whole.
2. In any case, necessity may not be invoked by a State as a ground for precluding wrongfulness if:
(b) The State has contributed to the situation of necessity.
30. This understanding of the meaning of “necessity” in international law clearly rebuts any and all arguments of the occupying Power that the Separation Wall is necessary and thus excuses its illegal acts … in all events, the occupying Power may not evoke necessity as its occupation of the Occupied Palestinian Territory, including in and around Jerusalem, and its illegal settlements therein, have manifestly “contributed to the situation of necessity.” This general understanding of the legal meaning of “necessity” in international law is fully applicable in humanitarian law where “military necessity” is provided for.