Norma relacionada
United States of America
Practice Relating to Rule 51. Public and Private Property in Occupied Territory
Section C. Private property in occupied territory
The US Field Manual (1956) provides, in the case of occupied territory:
If property which is appropriated by the occupant is beneficially owned in part by the State and in part by private interests, the occupation authorities should compensate the private owners to the extent of their interest. Such compensation should bear the same relationship to the full compensation which would be paid if the property were entirely privately owned as their interest bears to the total value of the property concerned. The occupant may take what measures it deems necessary to assure that no portion of the compensation paid on account of private interests accrues to the State.
If it is unknown whether certain property is public or private, it should be treated as public property until its ownership is ascertained.
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.
Private property cannot be confiscated …
The foregoing prohibition extends not only to outright taking in violation of the law of war but also to any acts which, through the use of threats, intimidation, or pressure or by actual exploitation of the power of the occupant, permanently or temporarily deprive the owner of the use of his property without his consent or without authority under international law.
Immovable private enemy property may under no circumstances be seized. It may, however, be requisitioned.
If private property is seized in conformity with the preceding paragraph, a receipt therefor should be given the owner or a record made of the nature and quantity of the property and the name of the owner or person in possession in order that restoration and compensation may be made at the conclusion of the war.
The rule stated in the foregoing paragraph includes everything susceptible of direct military use, such as cables, telephone and telegraph plants, radio, television, and telecommunications equipment, motor vehicles, railways, railway plants, port facilities, ships in port, barges and other watercraft, airfields, aircraft, depots of arms, whether military or sporting, documents connected with the war, all varieties of military equipment, including that in the hands of manufacturers, component parts of or material suitable only for use in the foregoing, and in general all kinds of war material.
The destruction of the foregoing property and all damage to the same is justifiable only if it is rendered absolutely necessary by military operations.
Submarine cables connecting an occupied territory with a neutral territory shall not be seized or destroyed except in the case of absolute necessity. They must likewise be restored and compensation fixed when peace is made …
The foregoing provision applies only to activities on land and does not deal with seizure or destruction of cables in the open sea.
Requisitions in kind and services shall not be demanded from municipalities or inhabitants except for the needs of the army of occupation. They shall be in proportion to the resources of the country, and of such a nature as not to involve the population in the obligation of taking part in operations of war against their country.
Such requisitions and service shall only be demanded on the authority of the commander in the locality occupied.
Contributions in kind shall, as far as possible, be paid for in cash; if not, a receipt shall be given and the payment of the amount due shall be made as soon as possible … Practically everything may be requisitioned under this article that is necessary for the maintenance of the army, such as fuel, food, clothing, building materials, machinery, tools, vehicles, furnishings for quarters, etc. Billeting of troops in occupied areas is also authorized.
The Occupying Power may not requisition foodstuffs, articles or medical supplies available in the occupied territory, except for use by the occupation forces and administration personnel, and then only if the requirements of the civilian population have been taken into account. Subject to the provisions of other international Conventions, the Occupying Power shall make arrangements to ensure that fair value is paid for any requisitioned goods.
Requisitions must be made under the authority of the commander in the locality. No prescribed method is fixed, but if practicable requisitions should be accomplished through the local authorities by systematic collection in bulk. They may be made direct by detachments if local authorities fail or if circumstances preclude resort to such authorities.
The prices of articles and services requisitioned will be fixed by agreement if possible, otherwise by military authority. Receipts should be taken up and compensation paid promptly. 
United States, Field Manual 27-10, The Law of Land Warfare, US Department of the Army, 18 July 1956, as modified by Change No. 1, 15 July 1976, §§ 394(b) and (c), 395, 406–407, 409–413 and 415–416.
The US Air Force Pamphlet (1976), analysing the situation in occupied territories, recalls: “Article 46 [of the 1907] Hague Regulations confirms that private property ‘… must be respected’ and that ‘Private property cannot be confiscated’.” 
United States, Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air Operations, US Department of the Air Force, 1976, § 14-6(a).
The Pamphlet adds: “Foodstuffs, articles or medical supplies may be requisitioned for the use of occupation forces and administrative personnel, but only if the requirements of the civilian population have been taken into account.” 
United States, Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air Operations, US Department of the Air Force, 1976, § 14-6(b).
The US Soldier’s Manual (1984) instructs troops: “Do not start fires in civilians’ homes or buildings or burn their property unless the necessities of war urgently require it. When searching dwellings in enemy towns and villages, do not take nonmilitary items.” 
United States, Your Conduct in Combat under the Law of War, Publication No. FM 27-2, Headquarters Department of the Army, Washington, November 1984, p. 23.
The US Instructor’s Guide (1985) provides:
Under the law of war, seizing and destroying certain enemy property is a crime. Assume, for example, that you are conducting a search in a built-up area. As you go from one building to another, you discover only a few weapons. But in one home you see some interesting art objects – hand-carved figures, for instance – and you decide to take one. Taking the hand-carved figure would be a crime which violates the law of war and the Uniform Code of Military Justice. You have no right to take such property. If, during that same search, you deliberately smash dishes, burn books, and scatter clothing, you would also violate the law of war by destroying property when it was not necessary, and you could be prosecuted for these crimes. 
United States, Instructor’s Guide – The Law of War, Headquarters Department of the Army, Washington, April 1985, pp. 5 and 6.
The Guide also emphasizes: “In addition to the grave breaches of the Geneva Conventions, the following acts are further examples of war crimes: … purposelessly burning homes.” 
United States, Instructor’s Guide – The Law of War, Headquarters Department of the Army, Washington, April 1985, p. 13.
Under the US Rules of Engagement for Operation Desert Storm (1991), troops are ordered to:
Treat all civilians and their property with respect and dignity. Before using privately owned property, check to see if publicly owned property can substitute. No requisitioning of civilian property, including vehicles, without permission of a company level commander and without giving a receipt. If an ordering officer can contract the property, then do not requisition it. 
United States, Desert Storm – Rules of Engagement, Pocket Card, US Central Command, January 1991, reprinted in Operational Law Handbook, International and Operational Law Department, The Judge Advocate General’s School, United States Army, Charlottesville, Virginia, 1995, pp. 8-7 and 8-8, § H.
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, Articles 46, 52 and 53 of the 1907 Hague Regulations. In respect of the seizure and management of private property, the Tribunal affirmed:
The seizure of Rombach [a plant in occupied Alsace] in the first instance may be defended upon the ground of military necessity. The possibility of its use by the French, the absence of responsible management and the need for finding work for the idle population are all factors that the German authorities may have taken into consideration. Military necessity is a broad term. Its interpretation involves the exercise of some discretion. If after seizure the German authorities had treated their possession as conservatory for the rightful owners’ interests, little fault could be found with the subsequent conduct of those in possession.
But some time after the seizure the Reich Government in the person of Goering, Plenipotentiary for the Four Year Plan, manifested the intention that it should be operated as the property of the Reich. This is clearly shown by the quoted statement in the contract which Flick signed. It was, no doubt, Goering’s intention to exploit it to the fullest extent for the German war effort. We do not believe that this intent was shared by Flick. Certainly what was done by his company in the course of its management falls far short of such exploitation. Flick’s expectation of ownership caused him to plough back into the physical property the profits of operation. This policy ultimately resulted to the advantage of the owners. In all of this we find no exploitation either for Flick’s present personal advantage or to fulfil the aims of Goering.
While the original seizure may not have been unlawful, its subsequent detention from the rightful owners was wrongful. For this and other damage they may be compensated.
In this case, Flick’s acts and conduct contributed to a violation of [Article 46 of the 1907 Hague Regulations] that is, that private property must be respected. Of this there can be no doubt. But his acts were not within his knowledge intended to contribute to a programme of “systematic plunder” conceived by the Hitler regime and for which many of the major war criminals have been punished. If they added anything to this programme of spoliation, it was in a very small degree. 
United States, Military Tribunal at Nuremberg, Flick case, Judgment, 22 December 1947.
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 Articles 46 and 52 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”. The Tribunal further stated that Articles 46 and 52 of the 1907 Hague Regulations
are clear and unequivocal. Their essence is: if, as a result of war action, a belligerent occupies territory of the adversary, he does not, thereby, acquire the right to dispose of property in that territory, except according to the strict rules laid down in the Regulations. The economy of the belligerently occupied territory is to be kept intact, except for the carefully defined permissions given to the occupying authority – permissions which all refer to the army of occupation. Just as the inhabitants of the occupied territory must not be forced to help the enemy in waging the war against their own country or their own country’s allies, so must the economic assets of the occupied territory not be used in such a manner.
When discriminatory laws are passed which affect the property rights of private individuals, subsequent transactions based on those laws and involving such property will in themselves constitute violations of Article 46 of the Hague Regulations.
Another erroneous contention put forward by the Defence is that the laws and customs of war do not prohibit the seizure and exploitation of property in belligerently occupied territory so long as no definite transfer of title was accomplished. The Hague Regulations are very clear on this point. Article 46 stipulates that “private property … must be respected.” However, if, for example, a factory is being taken over in a manner which prevents the rightful owner from using it and deprives him from lawfully exercising his prerogative as owner, it cannot be said that his property “is respected” under Article 46 as it must be.
The general rule contained in Article 46 is further developed in Articles 52 and 53. Article 52 speaks of the “requisitions in kind and services” which may be demanded from municipalities or inhabitants, and it provides that such requisitions and services “shall not be demanded except for the needs of the Army of Occupation.” As all authorities are agreed, the requisitions and services which are here contemplated and which alone are permissible, must refer to the needs of the Army of Occupation. It has never been contended that the Krupp firm belonged to the Army of Occupation. For this reason alone, the “requisitions in kind” by or on behalf of the Krupp firm were illegal. All authorities are again in agreement that the requisitions in kind and services referred to in Article 52, concern such matters as billets for the occupying troops and the occupation authorities, garages for their vehicles, stables for their horses, urgently needed equipment and supplies for the proper functioning of the occupation authorities, food for the Army of Occupation, and the like. 
United States, Military Tribunal at Nuremberg, Krupp case, Judgment, 30 June 1948.
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, Articles 46, 52 and 53 of the 1907 Hague Regulations. Some of the accused were found guilty of 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. Where private individuals, including juristic persons, proceed to exploit the military occupancy by acquiring private property against the will and consent of the former owner, such action, not being expressly justified by any applicable provision of the Hague Regulations, is in violation of international law.
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 … private 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.
[W]ith respect to private property, these provisions relate to plunder, confiscation, and requisition which, in turn, imply action in relation to property committed against the will and without the consent of the owner … If, in fact, there is no coercion present in an agreement relating to the purchase of industrial enterprises or interests equivalent thereto, even during time of military occupancy, and if, in fact, the owner’s consent is voluntarily given, we do not find such action to be a violation of the Hague Regulations … On the other hand, when action by the owner is not voluntary because his consent is obtained by threats, intimidation, pressure, or by exploiting the position and power of the military occupant under circumstances indicating that the owner is being induced to part with his property against his will, it is clearly a violation of the Hague Regulations. 
United States, Military Tribunal in Nuremberg, Krauch case (The I.G. Farben Trial), Judgment, 29 July 1948.
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 Articles 46 and 52 of the 1907 Hague Regulations. The Tribunal found that the accused gave orders to seize or destroy foodstuffs and other property, such as cattle and horses, but the evidence did not show that these measures were not warranted by military necessity. The Tribunal emphasized that military necessity “does [not] justify the seizure of property or goods beyond that which is necessary for the use of the army of occupation” and stated:
The devastation prohibited by the Hague Rules and the usages of war is that not warranted by military necessity. This rule is clear enough but the factual determination as to what constitutes military necessity is difficult. Defendants in this case were in many-instances in retreat under arduous conditions wherein their commands were in serious danger of being cut off. Under such circumstances, a commander must necessarily make quick decisions to meet the particular situation of his command. A great deal of latitude must be accorded to him under such circumstances. What constitutes devastation beyond military necessity in these situations requires detailed proof of an operational and tactical nature. We do not feel that in this case the proof is ample to establish the guilt of any defendant herein on this charge. 
United States, Military Tribunal at Nuremberg, Von Leeb case (The German High Command Trial), Judgment, 28 October 1948.
In its judgment in the John Schultz case in 1952, the US Court of Military Appeals listed arson as a crime “universally recognized as properly punishable under the law of war”. 
United States, Court of Military Appeals, John Schultz case, Judgment, 5 August 1952.
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] … private … property was confiscated … (Confiscation of private property is prohibited under any circumstance …).” 
United States, Department of Defense, Final Report to Congress on the Conduct of the Persian Gulf War, 10 April 1992, Appendix O, The Role of the Law of War, ILM, Vol. 31, 1992, p. 620.