Practice Relating to Rule 50. Destruction and Seizure of Property of an Adversary
Israel’s Manual on the Laws of War (1998) states: “Unnecessary destruction of enemy property is forbidden … The only restriction is to refrain from destroying property senselessly, where there is no military justification.”
Israel’s Manual on the Rules of Warfare (2006) states:
Under the rules of The Hague Convention, it was determined that it is forbidden to destroy enemy property unnecessarily. The emphasis here is on “unnecessary” because, unlike the lives of civilians, there is no definitive defence of property during war. The exception is not to destroy property wantonly, without any military need to do so, out of vandalism. Consequently, there is no problem in destroying a building in which the enemy forces are hiding, or that is likely to serve as a hiding-place for the enemy’s troops. It is permitted to break through more conveniently via a fruit orchard, if there is a military need to do so. The categories should be remembered, however, that were mentioned above under specific installations of various kinds which must be protected (cultural monuments, facilities which if attacked are liable to cause collateral damage, etc.). The needless destruction of property is liable to constitute grounds for a claim for damages.
The Manual on the Rules of Warfare (2006) is a second edition of the Manual on the Laws of War (1998).
Israel’s Nazis and Nazi Collaborators (Punishment) Law (1950) punishes persons who have committed war crimes, including “wanton destruction of cities, towns or villages … and devastation not justified by military necessity”.
In the Al-Nawar case
before Israel’s High Court in 1985, Judge Shamgar held that Article 23(g) of the 1907 Hague Regulations “does not accord protection to property used for hostile purposes. Such property enjoys protection from arbitrary destruction, but it is still subject to the enemy’s right of appropriation as booty.”
In 2005, Israel’s Ministry of Justice stated:
4. Faced with the failure of the Palestinian leadership to comply with its obligations to fight terrorism, stop incitement and prevent the smuggling of weapons, Israel has been compelled to combat the ongoing threat to the lives of Israelis while upholding its obligations under international law. One such security measure is the demolition of structures that pose a real security risk to Israeli forces.
5. Terrorists often operate from within homes and civilian structures. When terrorists fire from within these buildings or activate roadside charges from orchards and fields, military necessity dictates the demolition of these locations. Under International Law, these locations are considered legitimate targets. Therefore, in the midst of combat, when dictated by operational necessity, Israeli security forces may lawfully destroy structures used by terrorists.
6. A further instance necessitating the demolition of buildings is the use made by terrorist groups of civilian buildings in order to conceal openings of tunnels used to smuggle arms, explosives and terrorists from Egypt into the Gaza Strip. Similarly, buildings in Judea and Samaria and the Gaza Strip are used for the manufacturing and concealment of rockets, mortars, weapons and explosive devices to be used against Israel. The demolition of these structures is often the only way to combat this threat.
7. Israel’s security forces adhere to the rules of International Humanitarian Law and are subject to the scrutiny of Israel’s High Court of Justice in hundreds of petitions made annually by Palestinians and human rights organizations.
8. Israeli measures are not a form of “collective punishment” as some have claimed, as if the intention were to cause deliberate hardship to the population at large. While the security measures do unfortunately cause hardships to sectors of the Palestinian population, this is categorically not their intent. Wherever possible, even in the midst of military operations, Israel’s security forces go to great lengths to minimize the effects of security measures on the civilian population not involved in terrorism.
9. In this context, Israel adopts measures in order to ensure that only terrorists and the structures they use are targeted. Furthermore, though permissible under the laws of armed conflict, Israel refrains whenever possible from attacking terrorist targets from the air or with artillery, in order to minimize collateral damage, a policy which has cost the lives of many Israeli soldiers in ground operations.
10. Finally, another practice used when necessary, is the demolition of illegally constructed buildings, generally employed in cases where buildings interfere with plans for the construction of public facilities such as schools or roads; pose a safety threat to their inhabitants; or interfere with historic landmarks. It should be stressed that all demolitions are conducted in accordance with due process guarantees, after a fair hearing subject to judicial review with the right to appeal and without distinction on the basis of race or ethnic origin. Those affected by a demolition order are entitled by law to appeal to the Israeli Supreme Court.
In 2009, in a report on Israeli operations in Gaza between 27 December 2008 and 18 January 2009 (the “Gaza Operation”, also known as “Operation Cast Lead”), Israel’s Ministry of Foreign Affairs stated that the operational order contained the following provision:
Destruction of property shall be allowed only for imperative operational necessity and provided that the damage for the property would be proportional to the military advantage gained by the destruction. The destruction of property for deterrence purposes is forbidden.