United States of America
Practice Relating to Rule 51. Public and Private Property in Occupied Territory
Section A. Movable public property in occupied territory
The US Field Manual (1956) provides 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.
An army of occupation can only take possession of cash, funds, and realizable securities which are strictly the property of the State, depots of arms, means of transport, stores and supplies, and, generally, all movable property belonging to the State which may be used for operations of war.
All appliances, whether on land, at sea, or in the air, adapted for the transmission of news, or for the transport of persons or things, exclusive of cases governed by naval laws, depots of arms, and, generally, all kinds of ammunition of war, may be seized, even if they belong to private individuals, but must be restored and compensation fixed when peace is made.
All movable property belonging to the State susceptible of military use may be taken possession of and utilized for the benefit of the occupant’s government. Under modern conditions of warfare, a large proportion of State property may be regarded as capable of being used for military purposes. However, movable property which is not
susceptible of military use must be respected and cannot be appropriated.
[emphasis in original]
Under the US Uniform Code of Military Justice (1950), members of the armed forces “shall secure all public property taken from the enemy for the service of the United States, and shall give notice and turn over to the proper authority without delay all captured or abandoned property in their possession, custody or control”.
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. In its judgment, the Tribunal quoted, inter alia, Article 53 of the 1907 Hague Regulations. It also found:
The only exception to the public property rule that the occupying power, or its agents, is limited by the rules of usufruct is the right to “take possession of” certain types of public property under Article 53 [of the 1907 Hague Regulations]. But the exception applied only with respect to certain named properties and “all moveable property belonging to the State which may be used for military operations”, and thus is not applicable to such properties as means of production.
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 53 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”.
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 53 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.
The payment of a price or other adequate consideration does not, under such circumstances, relieve the act of its unlawful character. Similarly where a private individual or a juristic person becomes a party to unlawful confiscation of public … property by planning and executing a well-defined design to acquire such property permanently, acquisition under such circumstances subsequent to confiscation constitutes conduct in violation of the Hague Regulations.
[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 the Von Leeb case (The German High Command Trial)
before the US Military Tribunal at Nuremberg in 1948, the accused, former high-ranking officers in the German army and navy, were charged, inter alia
, with war crimes and crimes against humanity against civilians in that they participated in atrocities such as wanton destruction of cities, towns and villages and devastation not justified by military necessity. The Tribunal stated: “Most of the prohibitions of both the Hague and Geneva Conventions, considered in substance, are clearly an expression of the accepted views of civilized nations.” It notably mentioned Article 53 of the 1907 Hague Regulations.
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 … (Confiscation of private property is prohibited under any circumstance, as is the confiscation of municipal public property. Confiscation of movable national public property is prohibited without military need and cash compensation …).