Practice Relating to Rule 51. Public and Private Property in Occupied Territory
Section C. Private property in occupied territory
France’s LOAC Manual (2001) incorporates the content of Articles 52 and 53 of the 1907 Hague Regulations.
During the First World War, France adopted a law to extend the jurisdiction of its courts to offences committed in invaded territory, and on this basis a number of German officers and soldiers were convicted by courts-martial, inter alia
, for arson.
In the Szabados case
before a French Military Tribunal in 1946, the accused, a former German non-commissioned officer of the 19th Police Regiment stationed in occupied France, was charged with, and found guilty of, inter alia
, arson and wanton destruction of inhabited buildings. The accused ordered the inhabitants of several houses in Ugine, regarded as harbouring “terrorists”, to leave the premises, whereupon three houses were set on fire. He personally threw hand-grenades into the houses. He also took part in the destruction by dynamite of a block of three more houses which it was found difficult to set on fire. The wanton destruction of inhabited houses by fire and explosive was regarded by the court as being a crime under Article 434 of the French Penal Code.
In the Rust case
before a French Military Tribunal in 1948, the accused, a German Obersturmführer
, was charged, inter alia
, with “abusive and illegal requisitioning” of French property, a case which, according to the prosecution, amounted to pillage in time of war, under Article 221 of the French Code of Military Justice and Article 2(8) of the 1944 Ordinance on Repression of War Crimes. Without giving reasons therefor, the Tribunal, however, made alterations in respect of the offences and found the accused guilty of “abusing powers conferred upon him for the purpose of requisitioning … vehicles by refusing to deliver receipts for such requisitions”. The accused was under an obligation to pay, or deliver receipts in lieu of immediate payment, for the requisition.
In its judgment in the Roechling case
in 1948, the General Tribunal at Rastadt of the Military Government for the French Zone of Occupation in Germany held that the accused, the proprietor of a German industrial trust and Reich Commissioner for the iron industry of the departments of Moselle and Meurthe-et-Moselle, was guilty of war crimes, inter alia
, for the exploitation and removal of important plant from metallurgical undertakings in occupied territories and for unlawful seizure of raw materials and commodities in those countries. The Court found that the foregoing actions amounted to a fraudulent seizure of private property belonging to the inhabitants of occupied countries, in violation of the 1907 Hague Regulations.
In its written statement submitted to the ICJ in Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory in 2004, France stated:
40. … [O]ne of the most serious breaches of the rules of international humanitarian law resulting from the construction of the wall along the chosen route no doubt concerns, prima facie, the property destruction caused by it, which is referred to in the Secretary-General’s Report.
41. On this subject international law calls for account to be taken of two considerations. First, it requires compensation which effectively makes good the entire injury suffered by the owners of the property in question. Second, it allows for account to be taken of “necessities of war”.
42. It is forbidden by Article 23 (g) of the Hague Regulations of 1907 “to destroy or seize the enemy’s property, unless such destruction or seizure be imperatively demanded by the necessities of war”. Article 53 of the Fourth Convention of 1949 provides:
“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.” In addition, under Article 147 of the Convention, “grave breaches” include the “extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly”.
43. By their wording, these prohibitions are not absolute and are subject to military necessity. It is important to note however that in these three provisions necessity is described in particularly strict terms: it must be “imperative” or “absolutely necessary”. It will be for the Court to make its own determination on this point.