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Convention (IV) relative to the Protection of Civilian Persons in Time of War. Geneva, 12 August 1949.
. -- PROHIBITED DESTRUCTION (1)
1. ' Object of the protection afforded '
The intention in the Stockholm Draft had been to cover only private property and to protect civilians by ensuring that the property in their possession as individuals and necessary for their existence (houses, clothing, food, tools and instruments needed in their work, means of transport, etc.) should be saved from destruction unnecessary for the pursuit of the war. Certain delegations at the Diplomatic Conference, having drawn attention to new conceptions concerning property, pointed out that the Hague Regulations, Article 23 [p.301] (g)
when referring to the destruction of "the enemy's property", did not specify that the reference was to the property of enemy "nationals". The Conference agreed with their view and consequently agreed to refer in this Article to property owned collectively or belonging to the State; it must be agreed, however, that this extension gives the provision a character which does not altogether fit in with the general scope of the Convention.
In the very wide sense in which the Article must be understood, the prohibition covers the destruction of all property (real or personal), whether it is the private property of protected persons (owned individually or collectively), State property, that of the public authorities (districts, municipalities, provinces, etc.) or of co-operative organizations. The extension of protection to public property and to goods owned collectively, reinforces the rule already laid down in the Hague Regulations, Articles 46
according to which private property and the property of municipalities and of institutions dedicated to religion, charity and education, the arts and sciences must be respected.
It should be noted that the prohibition only refers to "destruction". Under international law the occupying authorities have a recognized right, under certain circumstances, to dispose of property within the occupied territory -- namely the right to requisition private property, the right to confiscate any movable property belonging to the State which may be used for military operations and the right to administer and enjoy the use of real property belonging to the occupied State.
The prohibition of destruction contained in the present Article may be compared with the prohibition of pillage and reprisals in Article 33
2. ' Scope of the provision '
In order to dissipate any misconception in regard to the scope of Article 53, it must be pointed out that the property referred to is not accorded general protection; the Convention merely provides here for its protection in occupied territory. The scope of the Article is therefore limited to destruction resulting from action by the Occupying Power. It will be remembered that Article 23 (g)
of the Hague Regulations forbids the unnecessary destruction of enemy property; since that rule is placed in the section entitled "hostilities", it covers all property in the territory involved in a war; its scope is therefore much wider than that of the provision under discussion, which is only concerned with property situated in occupied territory.
[p.302] 3. ' Reservation '
The prohibition of destruction of property situated in occupied territory is subject to an important reservation: it does not apply in cases "where such destruction is rendered absolutely necessary by military operations". The occupying forces may therefore undertake the total or partial destruction of certain private or public property in the occupied territory when imperative military requirements so demand.
Furthermore, it will be for the Occupying Power to judge the importance of such military requirements. It is therefore to be feared that bad faith in the application of the reservation may render the proposed safeguard valueless; for unscrupulous recourse to the clause concerning military necessity would allow the Occupying Power to circumvent the prohibition set forth in the Convention. The Occupying Power must therefore try to interpret the clause in a reasonable manner: whenever it is felt essential to resort to destruction, the occupying authorities must try to keep a sense of proportion in comparing the military advantages to be gained with the damage done.
A word should be said here about operations in which military considerations require recourse to a "scorched earth" policy, i.e. the systematic destruction of whole areas by occupying forces withdrawing before the enemy. Various rulings of the courts after the Second World War held that such tactics were in practice admissible in certain cases, when carried out in exceptional circumstances purely for legitimate military reasons. On the other hand the same rulings severely condemned recourse to measures of general devastation whenever they were wanton, excessive or not warranted by military operations. Article 6 (b) of the Charter of the International Military Tribunal describes "the wanton destruction of cities, towns or villages or devastation not justified by military necessity" as a war crime. Moreover, Article 147
of the Fourth Convention includes among the "grave breaches" liable to penal sanctions under Article 146
, "extensive destruction... of property, not justified by military necessity and carried out unlawfully and wantonly."
Notes: (1) [(1) p.300] See ' Final Record, ' Vol. I, p. 118; Vol.
II-A, pp. 719-721, 829, 856; Vol. II-B, pp. 417-418; Vol.
III, p. 134;