1. Destruction and appropriation of property

1. Destruction and appropriation of property

Since the concept of war crimes was introduced by Article 228 of the Peace Treaty of Versailles, and developed later by the charters of the international military tribunals at Nuremberg and Tokyo, international humanitarian law prohibits the war crime of excessive destruction and appropriation of civilian property during armed conflicts when not justified by ‘military necessity’.

Grave breach

The four Geneva Conventions of 1949 1 did not use the term ‘war crimes’. Instead, the term ‘grave breaches’ was used. However, Protocol I Additional to the Conventions, adopted in 1977, considered these grave breaches to be war crimes (Article 85(5)). And so did the Rome Statue of the International Criminal Court (ICC) of 1998,2 bringing these breaches within the jurisdiction ICC.

One of these grave breaches of the Geneva Conventions (I, II and IV) is the

extensive destruction or appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.

‘Wanton’ means grossly careless and malicious. Wanton destruction therefore implies a reckless disregard for the grave consequences of one’s action for the safety of people or property. It differs from gross negligence in that it is the result to a wilful act. It is in a way the opposite of the principle of precaution contained in Article 58(c) of Additional Protocol I, which states that the parties to a conflict shall, to the maximum extent feasible, “take the other necessary precautions to protect the civilian population, individual civilians and civilian objects under their control against the dangers resulting from military operations.”

The rule of military necessity was first defined in the Lieber Code in 1863 as “the necessity of those measures which are indispensable for securing the ends of the war, and which are lawful according to the modern law and usages of war.”3 According to the International Committee of the Red Cross (ICRC), the “four foundations” of military necessity are “urgency, measures which are limited to the indispensable, the control (in space and time) of the force used, and the means which should not infringe on an unconditional prohibition.”4 In other words, while granting military commanders considerable autonomy regarding the appropriate tactics for carrying out a military operation, military necessity cannot be used by warring parties to justify violations of the laws of war and other international legal obligations, including the prohibition of unlawful destruction or appropriation of civilian property.

War crime

Article 8(2)(a)(iv) of the Rome Statute lists a number of war crimes that fall under the jurisdiction of the ICC, in particular when committed “as part of a plan or policy or as part of a large-scale commission of such crimes.” These include grave breaches of the Geneva Conventions, including the “Extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.”

As the Article specifically references the Geneva Conventions, the person(s) or property concerned must be protected under the corresponding Convention (I, II or IV). For instance, in the First Convention (Articles 33 to 36), the crime only applies to the destruction of buildings or material belonging to medical units. In the Fourth Convention, it applies to civilian hospitals and property in occupied territory. Thus, only the destruction of these property protected by the Conventions can be considered a grave breach, and therefore a war crime, under the Rome Statute.

Civilian objects

However, in Article 8(b)(i) and (ii), the Statute also considers intentional attacks against civilian population and civilian objects in general as a war crime:

(i) Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities;

(ii) Intentionally directing attacks against civilian objects, that is, objects which are not military objectives.

These are violations of the laws and customs regulating international armed conflicts and reflect two basic rules in Protocol I Additional to the Geneva Conventions contained in Articles 51(2), 52 and 85(3)(a).

Civilian objects are defined by Article 52(2) as “all objects which are not military objectives,” which are in turn defined as “those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage.”5 Roads, bridges, railways and the likes are usually considered military objective as they can be used by the parties to a conflict for military purposes.

Thus, in order to be considered a crime under international law, the destroyed or appropriated property must be civilian (not contributing to military action) and the attack not justified by military necessity (gaining military advantage). A civilian object may become a military objective only when it makes an effective contribution to military action and its destruction in the circumstances ruling at the time provides a definite military advantage. This advantage cannot be potential or indeterminate; it must be “concrete and perceptible” and “not hypothetical and speculative.”

It should be noted that this provision also includes undefended and demilitarised areas, e.g. after ceasefires or withdrawals:

(v) Attacking or bombarding, by whatever means, towns, villages, dwellings or buildings which are undefended and which are not military objectives.

This is because, due to the cessation of military action, such places no longer make an effective contribution to military efforts and should not therefore be military objectives.

The provision develops previous ones contained in Article 25 of the Hague Regulations, Article 2 of the Hague Convention No. IX, and Articles 14 and 15 of the Fourth Geneva Convention. Indeed, the word ‘civilian’ includes not only people not taking active part in the hostilities but also fighters who have surrendered their arms and no longer take part in the hostilities.6

Excessive attacks

The prohibition of attacks against civilian objects should be particularly observed when such attacks are indiscriminate and carried out with the knowledge that they will cause clearly excessive loss or damage, which is a violation of the proportionality principle contained in Article 85(3)(b) and (c) of Additional Protocol I and Article 8(b)(iv) of the Rome Statute:

Intentionally launching an attack in the knowledge that such attack will cause incidental loss of life or injury to civilians or damage to civilian objects or widespread, long-term and severe damage to the natural environment which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated.

The proportionality has to be measured on a case-by-case basis against the “concrete and direct military advantage anticipated” by a “reasonable military commander.” Although the Rome Statute adds the word “overall”, the military advantage must still be direct.

Other war crimes

The same article of the Rome Statute also considers as war crimes:

(xiii) Destroying or seizing the enemy’s property unless such destruction or seizure be imperatively demanded by the necessities of war;

(xvi) Pillaging a town or place, even when taken by assault.

Both of these provisions are based on the Hague Regulations (Article 23(g) and Article 28 respectively). “Pillage” is defined by the Rome Statute and by Article 33 of the Fourth Geneva Convention as the “appropriation of property for private, personal use.” It should therefore be distinguished from the ‘official’ destruction or appropriation of property discussed above.

As to the enemy’s property, Article 53 of the 1907 Hague Regulations provides that “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 military operations.”

Non-international conflicts

Finally, it is important to note that paragraphs (2)(c) and (e) of Article 8 of the Rome Statute contain provisions applicable in armed conflicts not of an international character that are almost identical to those provided for in relation to international armed conflicts (see below for a discussion on international and non-international armed conflicts). These include:

(i) Intentionally directing attacks against the civilian population as such or against individual civilians not taking direct part in hostilities;

(ii) Intentionally directing attacks against buildings, material, medical units and transport, and personnel using the distinctive emblems of the Geneva Conventions in conformity with international law;

(v) Pillaging a town or place, even when taken by assault;

(xii) Destroying or seizing the property of an adversary unless such destruction or seizure be imperatively demanded by the necessities of the conflict.

Like those occurring in international armed conflicts, the Rome Statute considers these acts to also constitute serious violations of the laws and customs applicable in armed conflicts, and therefore war crimes. But while these provisions reflect those contained in Article 13(2) of Protocol II Additional to the Geneva Conventions, which deals with non-international armed conflicts, they neither mention the protection of civilian objects nor the proportionality principle. However, it is generally accepted that the general protections provided in Article 13(1) and (2) include civilian objects by implication.

Summary

The wanton and unlawful destruction and appropriation of civilian property is considered a grave breach of the Geneva Conventions, and therefore a war crime that falls under the jurisdiction of the ICC. The previous chapter provided various examples indicating that such acts have been committed by the Syrian and the Iranian regimes in certain parts of Syria in an extensive and excessive manner in the meaning of Rome Statute and other relevant international instruments.

Furthermore, they have often been committed alongside other war crimes, such as deliberate attacks on civilians and civilian objects, pillage and destroying or seizing the enemy’s property without that being demanded by the necessities of the war.

Finally, it does not matter much whether the conflict in Syria is considered international or non-international, as the Rome Statute covers both situations, even though the authors of this report would argue that the war in Syria should be treated as an international armed conflict (see below).

Notes & References:

1. The Geneva Conventions and Protocols are available here.

2. The Rome Statute is available here.

3. Article 14, available here.

4. ICRC, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949, 1987.

5. For more on the definition of military and civilian objects, see here.

6. For more on the definition of ‘civilians’, see.