Rules Governing Property Destruction Outside of the Attack and Occupation Contexts

The rules governing property destruction occurring outside of attack operations and the occupation phase of military operations are contained in Article 23(g) of the Hague Regulations of 1907, annexed to Hague Convention IV. Pursuant to these rules, property may be destroyed when required by imperative military necessity. However, imperative military necessity need be shown only when destroying non-military objectives. This corresponds to the position set forth in the U.S. Department of Defense (DoD) Law of War Manual. It may be difficult to impose criminal liability for property destruction except with respect to narrowly defined categories of property.

Property Destruction Under Hague Article 23(g)

Pursuant to Article 23(g) of the Hague Regulations (hereinafter Hague Article 23(g)), it is forbidden “to destroy or seize the enemy’s property, unless such destruction or seizure be imperatively demanded by the necessities of war.”

The Hague Regulations were intended to prohibit the “wanton destruction” of private property (Scott, The Hague Peace Conferences of 1899 and 1907, vol. I, p. 537). However, modern military manuals generally include both public and private property within the scope of Hague Article 23(g). Such manuals include the DoD Law of War Manual (§ 5.17.1) and Australia’s manual, The Law of Armed Conflict (para. 12.42). In addition, the provisions of Hague Article 23(g) represent customary international law.

While Hague Article 23(g) governed all forms of hostilities, Additional Protocol I (AP I) established separate rules for “attacks” as defined by Article 49(1) of that instrument. According to the International Committee of the Red Cross (ICRC) Commentary to AP I, Article 49’s use of the term “attacks” refers to “combat actions.” Moreover, as noted by Professor Sean Watts and Colonel Winston Williams, “damage conducted out of contact with an enemy or against objects under a force’s own control” does not fall within the ambit of attacks.

According to the DoD Law of War Manual, military operations not constituting an attack include a vast swathe of activities ranging from establishing defensive fortifications to certain types of cyber operations (§ 5.17.2.2; § 16.5.1). Seizure or destruction of property not resulting from attacks remains subject to Hague Article 23(g), except in the context of belligerent occupations.

The rules governing “attacks” are different from those prescribed by Hague Article 23(g). For example, Article 52(2) of AP I prohibits attacks against non-military objectives, whereas Hague Article 23(g) contains no such limitation. Similarly, Article 51(5)(b) of AP I requires proportionality determinations when incidental civilian injuries or property losses are expected to result from an attack. Hague Article 23(g) imposes no such requirement. On the other hand, Hague Article 23(g) permits property destruction only for reasons of imperative military necessity, while Article 52(2) of AP I imposes no requirement for imperativeness when conducting attacks.

The degree of military necessity required to destroy a military objective should be the same regardless of whether Hague Article 23(g) or the attack rules apply. Consider a hypothetical situation in which an unoccupied dwelling is destroyed for the purpose of depriving the enemy of a firing position in anticipation of future combat operations. Interpreted literally, Hague Article 23(g) mandates a showing of imperative military necessity, even though the dwelling may constitute a military objective under Article 52(2) of AP I. On the other hand, assume that during combat a dwelling is attacked which is being used as shelter by a senior enemy commander and three noncombatants. The attack rules would not condition the legality of the attack on the existence of imperative military necessity, even though the attack may result in the deaths of three innocent civilians.

It is extremely unlikely that the policy or practice of nations is to require a higher degree of military necessity to destroy an unoccupied dwelling than to kill innocent civilians. As such, the requirement for imperative military necessity under Hague Article 23(g) cannot be considered customary international law in situations involving the destruction of military objectives.

The DoD Law of War Manual adheres to this position, stating that imperative military necessity is not required to destroy property outside of the attack context if that property qualifies as a military objective (§ 5.17.2.1). The law likely does not require a higher degree of military necessity to destroy property than to kill innocent civilians, so this conclusion makes sense. On the other hand, the DoD Law of War Manual retains the requirement for imperative military necessity when destroying non-military objectives. This position is also justified.

Hague Article 23(g) was intended to codify a long-existing rule of warfare, which permitted the “devastation of whole districts” when required by the “imperative necessities of war” (Holland, The Laws of War on Land, p. 43–44). Hague Article 23(g) imposes no limit on the extent to which civilian property may be destroyed other than imperative military necessity. The requirement of imperativeness is therefore a necessary limitation when applied to non-military objectives.

I am aware of no other national military manual which contains a detailed explanation of the law governing destruction of property outside of the attack and occupation contexts. For example, the military manuals of the United Kingdom (para. 11.75), Canada (§ 1237), and Australia (para. 12.42) discuss Hague Article 23(g) in the context of occupations. This is inconsistent with the Hague Regulations and customary international law, both of which provide for separate rules governing property destruction in the occupation context. These military manuals reveal considerable confusion as to the circumstances in which Hague Article 23(g) applies.

Canada’s Law of Armed Conflict manual also cites Hague Article 23(g) in support of its statement that “property of any type or ownership” may be destroyed “either during or preparatory to combat” when there is “some reasonable connection between the destruction of the property and the overcoming of the enemy forces” (§ 1237). This suggests a complete abandonment of the requirement for imperative military necessity, which would be inconsistent with Hague Article 23(g).

Finally, the prohibitions contained in Hague Article 23 cover only intended injuries. Incidental destruction caused by events such as the operation of tanks on roads is not covered by Hague Article 23(g). Instead, incidental destruction is governed by general principles of military necessity (§ 5.17.2.4), as supplemented by the AP I duty of constant care to spare civilian objects.

Criminal Liability for Property Destruction

The rule governing criminal liability for property destruction in the context of attacks is clear. Under Article 8(2)(b)(ii) of the Rome Statute, intentional destruction of property that is not a military objective constitutes a war crime. However, it may be difficult to prosecute war crimes outside of the attack or occupation contexts.

Article 8(2)(a)(iv) of the Rome Statute imposes criminal liability for the “extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.” This provision applies only when the property destroyed is protected under one of the 1949 Geneva Conventions (GC). The property protected by the GCs primarily involves medical related property, such as hospitals and medical transports (GC I, arts. 19–37; GC II, arts. 22–23, 39–40; GC IV, arts. 18, 21–22). According to the ICRC’s Commentary on GC IV, the general provision protecting property contained in Article 53 of GC IV is strictly limited to the occupation context (see also Prosecutor v. Kordic, para. 335–337). Therefore, it is probably not possible to prosecute under Article 8(2)(a)(iv) outside of the occupation context, except with respect to the narrow categories of property listed above.

Articles 8(2)(b)(xiii) and 8(2)(e)(xii) of the Rome Statute represent the most likely avenue for prosecution of war crimes involving property destruction outside of the attack and occupation contexts. These provisions parrot the language of Hague Article 23(g). However, the International Criminal Court (ICC)’s Elements of Crimes provides for a defense on the basis of simple military necessity, as opposed to imperative military necessity (arts. 8(2)(b)(xiii)(5), 8(2)(e)(xii)(5). The UN Preparatory Commission charged with developing the Elements of Crimes states that deletion of the term “imperative” was “very controversial,” thereby indicating heightened awareness among member nations of the significance of this action (Dörmann, Elements of War Crimes Under the Rome Statute of the International Criminal Court, p. 249–50). Therefore, removal of the term “imperative” should not be treated as inconsequential.

A factor complicating prosecutions under Articles 8(2)(b)(xiii) and 8(2)(e)(xii) is that Element 3 of the Elements of Crimes conditions liability on the property being protected under the “international law of armed conflict”(arts. 8(2)(b)(xiii)(3) and 8(2)(e)(xii)(3)). In other words, liability under these Articles is triggered only by another violation of international law. As noted by the Preparatory Commission, Articles 8(2)(b)(xiii) and 8(2)(e)(xii) of the Rome Statute are “a renvoi to [other] specific rules defining the protection against seizure or destruction” (Dörmann, Elements of War Crimes, p. 250).

The problem with this approach is that the other rules protect only specific types of property, such as hospitals, civil defense property, etc. Other provisions generally protect property in specific situations, such as property in non-defended localities. There are also several treaties dedicated to the protection of cultural property. However, outside of the attack and occupation contexts, I am aware of no specific rule (other than Hague Article 23(g)) which broadly affords general protection to ordinary civilian property.

The extent to which this may complicate prosecutions is unclear. In Prosecutor v. Katanga, the ICC ruled that violation of Article 147 of GC IV, which prohibits wanton destruction of property, satisfies Element 3 of Article 8(2)(b)(xiii) (para. 314). However, Article 147 applies only to property protected by GC IV. As noted above, the property protections contained in Article 53 of GC IV apply only in the occupation context. This factor appears not to have been considered by the ICC.

There are special problems with prosecuting crimes involving destruction of protected cultural property outside of the attack context. Articles 8(2)(b)(ix) and 8(2)(e)(iv) of the Rome Statute impose criminal liability for attacks directed against religious, educational, cultural, and historic objects (hereinafter “protected cultural property”). The ICRC’s Commentary claims that these provisions apply only in the context of attacks as defined by AP I, Article 49(1) (Dörmann, Elements of War Crimes, p. 216). The ICC’s recent decision in Prosecutor v. Ntaganda did not resolve the issue of whether the term “attacks” as used in Article 8(2)(e)(iv) of the Rome Statute (and presumably also in Article 8(2)(b)(ix)) may be afforded a broader interpretation than permitted by Article 49(1) of AP I.

Arguably, destruction of protected cultural property could also be prosecuted under Articles 8(2)(b)(xiii) or 8(2)(e)(xii) of the Rome Statute, as there is no requirement for an “attack” under these provisions. However, the Preparatory Commission report indicates that the requirement for imperative military necessity was dropped from these Articles because they deal with “property in general” as opposed to protected cultural property (Dörmann, Elements of War Crimes, p. 249–50). Significantly, the ICC held that destruction of a mosque could not be prosecuted under Article 8(2)(e)(xii), but instead must be prosecuted under the provisions of the Rome Statute dedicated to protected cultural property (Prosecutor v. Yekatom, para. 96).

This result appears to be correct. Hague Article 23(g) was never intended to protect cultural property. Instead, this type of property was covered by Article 27 of the Hague IV Regulations. Moreover, since 1907, several treaties have come into force imposing specific protections for cultural property. It would be inconsistent with the spirit if not the letter of these agreements to treat ordinary objects the same as highly significant cultural, religious, and historic sites.

Conclusion

Hague Article 23(g) is one of the most important and least understood provisions in the law of armed conflict. This provision governs property destruction outside of the attack and occupation contexts. It is of fundamental importance to recognize the distinctions between Hague Article 23(g) and the laws governing property destruction in the context of attacks and occupations.

***

Jeffrey A. Lovitky is a former member of the U.S. Army JAG Corps who practices law in Washington D.C. The views expressed herein are the author’s alone.

Photo credit: Unsplash