Practice Relating to Rule 51. Public and Private Property in Occupied Territory
Section C. Private property in occupied territory
The Extraordinary Penal Law Decree (1943), as amended in 1947, of the Netherlands punishes whoever
during the time of [the Second World War] intentionally makes or threatens to make use of the power, opportunity or means, offered him by the enemy or by the fact of the enemy occupation, unlawfully to injure another in his possessions or unlawfully benefit himself or another.
The Definition of War Crimes Decree (1946) of the Netherlands includes “exaction of illegitimate or of exorbitant contributions and requisitions” in its list of war crimes.
In its judgment on appeal in the Esau case
in 1949, the Special Court of Cassation of the Netherlands considered that the removal of scientific instruments and gold from factories in the Netherlands was unlawful unless the property fell within one of the categories of goods which the occupant was exceptionally entitled to seize from private individuals by virtue of Article 53 of the 1907 Hague Regulations. The Court held that the term “munitions of war” used in Article 53 should not be extended to materials and apparatus such as boring machines, lathes, lamps, tubes and gold, but they could be for technical or scientific reasons. Accordingly, the Court concluded that, with the exception of the short wave transmitter, none of the goods could be deemed to be excepted from the general inviolability of private property in war.
In the Fiebig case
before the Special Criminal Court at The Hague in the Netherlands in 1949, the accused, a delegate of the Minister of the Reich for Armaments and Munitions, was charged with, and convicted of, illegal requisitions. In its judgment, the Court emphasized that the requisitions were not covered by Article 23(g) of the 1907 Hague Regulations and that they constituted a violation of Article 52 of the 1907 Hague Regulations. Clearly, according to the Court, Article 23(g) could not be construed as authorizing the systematic removal of Dutch property to Germany and the emptying of factories, warehouses and private houses. Article 52 was violated because most of the removed commodities did not serve the necessities of the occupying army but supported the general war effort of Germany. Furthermore, no authorization of requisition was granted by the military commander. In addition, the requisitioned property did not fall within the category of private property susceptible of seizure in accordance with Article 53 of the 1907 Hague Regulations.