United States of America
Practice Relating to Rule 51. Public and Private Property in Occupied Territory
Section B. Immovable public property in occupied territory
The US Field Manual (1956) provides that, in the case of occupied territory:
Valid capture or seizure of property requires both an intent to take such action and a physical act of capture or seizure. The mere presence within occupied territory of property which is subject to appropriation under international law does not operate to vest title thereto in the occupant.
The occupying State shall be regarded only as administrator and usufructuary of public buildings, real estate, forests, and agricultural estates belonging to the hostile State, and situated in the occupied country. It must safeguard the capital of these properties, and administer them in accordance with the rules of usufruct.
Real property of a State which is of direct military use, such as forts, arsenals, dockyards, magazines, barracks, railways, bridges, piers, wharves, airfields, and other military facilities, remains in the hands of the occupant until the close of the war, and may be destroyed or damaged, if deemed necessary to military operations.
Real property of the enemy State which is essentially of a non-military nature, such as public buildings and offices, land, forests, parks, farms, and mines, may not be damaged or destroyed unless such destruction is rendered absolutely necessary by military operations … The occupant does not have the right of sale or unqualified use of such property. As administrator, or usufructuary, he should not exercise his rights in such a wasteful and negligent manner as seriously to impair its value. He may, however, lease or utilize public lands or buildings, sell the crops, cut and sell timber, and work the mines. The term of a lease or contract should not extend beyond the conclusion of the war.
In the Flick case before the US Military Tribunal at Nuremberg in 1947, the accused, the principal proprietor of a large group of German industrial enterprises (and four officials of the same group), which included coal and iron mines and steel producing plants, was charged with war crimes, inter alia, for offences against property in the countries and territories occupied by Germany. Flick was found guilty on this count of the indictment. The Tribunal quoted, inter alia, Article 55 of the 1907 Hague Regulations. With reference to the plants located in Ukraine and Latvia and regarded as State property, the Tribunal found:
The Dnjepr Stahl plant had been used for armament production by the Russians. The other was devoted principally to production of railroad cars and equipment. No single one of the Hague Regulations … is exactly in point, but adopting the method used by the I.M.T., we deduce from all of them, considered as a whole, the principle that State-owned property of this character may be seized and operated for the benefit of the belligerent occupant for the duration of the occupancy. The attempt of the German Government to seize them as the property of the Reich of course was not effective. Title was not acquired nor could it be conveyed by the German Government. The occupant, however, had a usufructuary privilege. Property which the Government itself could have operated for its benefit could also legally be operated by a trustee. We regard as immaterial Flick’s purpose ultimately to acquire title. To covet is a sin under the Decalogue but not a violation of the Hague Regulations nor a war crime.
The conclusion follows that, wherever the occupying power acts or holds itself out as owner of the public property owned by the occupied country, Article 55 [of the 1907 Hague Regulations] is violated. The same applies if the occupying power or its agents who took possession of public buildings or factories or plants, assert ownership, remove equipment of machinery, and ship it to their own country, or make any other use of the property which is incompatible with usufruct.
In the Krupp case
before the US Military Tribunal at Nuremberg in 1948, the accused, officials of the Krupp industrial enterprises occupying high positions in political, financial, industrial and economic circles in Germany, were charged with war crimes, inter alia
, for the destruction and removal of property, and the seizure of machinery, equipment, raw materials and other property. The Tribunal quoted Article 55 of the 1907 Hague Regulations. It also stated that it “fully concurs with the Judgement of the I.M.T. that the [1907 Hague Convention (IV)], to which Germany was a party, had by 1939 become customary law and was, therefore, binding on Germany not only as Treaty Law but also as Customary Law”.
In the Krauch case (The I.G. Farben Trial) before the US Military Tribunal at Nuremberg in 1948, the accused, officials of I.G. Farben Industrie A.G., were charged, inter alia, with war crimes for offences against property in countries and territories which came under the belligerent occupation of Germany. The charges were regarded as violations of, inter alia, Article 55 of the 1907 Hague Regulations. Some of the accused were convicted on this count. The Tribunal held:
The foregoing provisions of the Hague Regulations are broadly aimed at preserving the inviolability of property rights to both public and private property during military occupancy. They admit of exceptions of expropriation, use, and requisition, all of which are subject to well-defined limitations set forth in the articles.
[I]t is illustrative of the view that offences against property of the character described in the [1943 Inter-Allied Declaration against Acts of Dispossession] were considered by the signatory powers to constitute action in violation of existing international law.
In 1992, in its final report to Congress on the conduct of the Gulf War, the US Department of Defense stated:
In violation of [the 1907 Hague Regulations] … public (municipal and national) property was confiscated … [I]mmovable national public property may be temporarily confiscated under the concept of usufruct – the right to use another’s property so long as it is not damaged.
Specific Iraqi war crimes include:
– Illegal confiscation/inadequate safeguarding of Kuwaiti public property, in violation of Article 55 [of the 1907 Hague Regulations] …
– In its intentional release of oil into the Persian Gulf and its sabotage of the Al-Burqan and Ar-Rumaylah oil fields in Kuwait, unnecessary destruction in violation of [Article] 55 [of the 1907 Hague Regulations].