Ukraine Symposium – Seizure of Private Real Property and Transfer of Civilians into Occupied Territory

In May 2025, the Institute for the Study of War (ISW) reported that “Russia is inventorying real estate in occupied Ukraine in order to seize property from Ukrainian residents, likely in part to facilitate the transfer of Russian citizens to occupied territories” (see also here, here, and here). According to ISW, Russia’s Deputy Prime Minister, Marat Khusnullin, stated that “251,750 real estate objects” in occupied Ukraine were entered “into the Russian Unified State Register of Real Estate.” In response, Petro Andryushchenko, a former advisor to the mayor of Mariupol, asserted that these efforts point to Russia’s intent to “nationalize all the inventoried real estate objects in occupied Ukraine, essentially ‘looting’ the property from its Ukrainian owners.”

If accurate, the practice would signal a ratcheting up of Russian expropriation activities that the UN’s Office of the High Commissioner for Human Rights (OHCHR) condemned last year. A report on the human rights situation in Ukraine, noted that Russian authorities in Ukraine had adopted legislation on the expropriation of residential “abandoned property” in occupied territory, according to which individuals must prove ownership or risk the property being transferred to local occupation authority councils. OHCHR pointed out that the law of armed conflict (LOAC) prohibits an occupying power from confiscating private property and bars far-reaching changes to the existing legal order of occupied territory.

This post examines two issues raised by these and similar reports. It begins by surveying the law governing an occupying power’s seizure of private property, although it does not analyze the law on destruction of private property or pillage (see Geneva Convention IV, art. 53 and art. 33, respectively). For the purposes of this post, seizure includes: “confiscation,” which denotes a coercive deprivation of property; “requisition,” which refers to seizure followed by compensation or restoration; and “expropriation,” which is the taking of property in accordance with legislation. Attention then turns to the transfer of an occupying power’s nationals into the territory it occupies. This issue is closely related to the seizure of property, as in many cases, the seizure takes place in anticipation of the arrival of the occupying power’s nationals.

Before turning to those issues, two points are in order. First, Russia purports to have annexed former Ukrainian territory. However, the so-called annexation was of no legal effect under LOAC or international law more generally (see GC IV, art. 47; see also here, here, and here). The territory was and remains part of Ukraine, and its Russian occupiers are bound fully by the law of belligerent occupation. Second, the rules addressed below are restricted to situations of international armed conflict, as occupation is a legal status limited to such conflicts.

Seizure of Property 

The general rule regarding the seizure or destruction of property during an armed conflict is found in the 1907 Hague Regulations, Article 23(g), which provides that it is “especially prohibited … to destroy or seize the enemy’s property, unless such destruction or seizure be imperatively demanded by reasons of necessities of war.” Although it has sometimes been questioned whether Article 23(g) applies only during hostilities or also to occupation (see International Court of Justice, Wall advisory opinion, para. 124), the prevailing weight of opinion is that it governs the treatment of civilian property at all times (see Dinstein, para. 596). For instance, the U.S. Department of Defense (DoD) Law of War Manual observes that “[t]he general rule that enemy property may not be seized or destroyed unless imperatively demanded by the necessities of war also applies to property during the occupation of enemy territory” (§ 11.18.2).

Beyond this general rule, analysis of the specific rules governing the seizure of property during occupation requires distinguishing between the seizure of public (State-owned) property and private property. To better understand the latter, it is helpful to summarize the former.

Prohibitions and restrictions regarding the seizure of enemy public property have long enjoyed a place of prominence in warfare (e.g., 1863 Lieber Code, art. 31; 1874 Brussels Declaration, art. 6, 7; 1880 Oxford Manual, arts. 50, 52). In treaty law, the Regulations attached to the 1899 Hague Convention II and 1907 Hague Convention IV address the subject with separate rules for movable and immovable public property. Generally, an “army of occupation can only take possession of … movable property belonging to the State which may be used for military operations” (1907 Hague Regulations, art. 53). On the other hand, immovable public property (e.g., public buildings and land) may only be administered by the occupying power subject to the rule of usufruct, which safeguards the property against sale, waste, or destruction (1907 Hague Regulations, art. 55). However, it may be used temporarily for the needs of the occupying force or the local population (on public property, see Law of War Manual, § 11.18.5).

As with public property, there are longstanding rules regarding the treatment of private property by an occupying power, rules that are more restrictive than those governing the seizure of public property (e.g., Lieber Code, arts. 22, 37, 38; Brussels Declaration, art. 38; Oxford Manual, art. 54). The key treaty law resides in the Regulations annexed to the 1907 Hague Convention IV. Article 46 of that instrument provides that “private property … must be respected. Private property cannot be confiscated,” a prohibition that distinguishes it from public property (see also DoD, Law of War Manual, § 11.18.6). In this regard, note that the distinction between movable and immovable private property plays a less prominent role than in the case of public property seizure.

Should there be uncertainty about whether property is public or private in character, it is to be regarded as public until ownership can be ascertained (DoD, Law of War Manual, § 11.18.4.3). It also merits note that certain property of municipalities and religious, charitable, educational, and cultural institutions is treated as private property (Hague Regulations, art. 56, DoD, Law of War Manual, § 11.18.6.4).

Russia and Ukraine are party to Hague Convention IV and, therefore, are bound by the aforementioned rules. However, those rules also undoubtedly reflect customary international law binding on all States, whether a Party to the instrument or not. As noted by the International Military Tribunal (IMT) at Nuremberg, by the outbreak of the Second World War, Hague Convention IV’s Regulations “were recognized by all civilized nations and were regarded as being declaratory of the laws and customs of war” (see also IMT for the Far East ). The International Court of Justice concurred with this characterization in its Nuclear Weapons advisory opinion (para. 79)).

The International Committee of the Red Cross (ICRC) came to the same conclusion in its Customary International Humanitarian Law study. Addressing both private and public property, Rule 51 provides,

In occupied territory:

(a) movable public property that can be used for military operations may be confiscated;

(b) immovable public property must be administered according to the rule of usufruct; and

(c) private property must be respected and may not be confiscated;

except where destruction or seizure of such property is required by imperative military necessity.

Accordingly, any coercive transfer of ownership of Ukrainian private real property would run afoul of both treaty and customary law. This is so even if the owners are compensated for their loss; the action remains unlawful. As observed by the US Military Tribunal at Nuremberg in the I.G. Farben trial,

Where private individuals, including juristic persons, proceed to exploit the military occupancy by acquiring private property against the will and consent of the former owner, such action, not being expressly justified by any applicable provision of the Hague Regulations, is in violation of international law. The payment of a price or other adequate consideration does not, under such circumstances, relieve the act of its unlawful character (p. 1131).

Indeed, as Yoram Dinstein has noted (drawing on the Krupp Trial before the US Military Tribunal and the Loizidou case before the European Court of Human Rights), ownership need not be transferred to violate LOAC. It is enough that “the owner is prevented from exercising his rightful prerogatives” (Dinstein, para. 689). This interpretation is reflected in the DoD Law of War Manual, which states

The prohibition against confiscation of private property extends not only to outright taking in violation of the law of war, but also to any acts that, through the use of threats, intimidation, or pressure, or by actual exploitation of the power of the Occupying Power, permanently or temporarily deprive the owner of the use of such property without the owner’s consent, or without authority under international law (§ 11.18.6.1).

There are certain exceptions to these rules applicable to the seizure of real property, though none permits the purported Russian conduct. For example, even during occupation, it is sometimes permissible to expropriate real property, thereby depriving owners of their property rights. However,  this is only lawful when needed for the public good and pursuant to the law of the occupied State that remains in place during the occupation (Hague Regulations, art. 43; Dinstein, para. 693). Eliav Lieblich and Eyal Benvenisti point out that although the law of belligerent occupation does not expressly provide for expropriation, “[i]n practice powers to expropriate have been read into the occupant’s general powers under article 43 to act in favor of the local population” (Lieblich & Benvenisti, § 6.1.3). Such limitations clearly render the Russian expropriation cited in the introduction unlawful.

Further, an occupying power may also “take temporary possession of enemy property (real or personal, and public or private) where required for direct military use in military operations,” although it cautions that “[i]n the case of private property, an Occupying Power, where possible, should requisition the property and offer compensation to the owner” (DoD, Law of War Manual, § 11.18.2.2, emphasis added). Indeed, the DoD Law of War Manual emphasizes that “[p]rivate real (immovable) property may under no circumstances be seized. It may, however, be requisitioned” (§ 11.18.6.3; see also Lieblich & Benvenisti, § 6.1.2).

The reference to requisition is based in part on Article 52 of the Hague Regulations. That article allows requisition “for the necessities of the Army of occupation” subject to “payment of the amount due … as soon as possible.” Interpretation of Article 52 as extending to immovable private property is consistent with not only the DoD Law of War Manual (see above) but also the Krupp judgment, which interpreted the provision as extending to “billets for the occupying troops and the occupation authorities, garages for their vehicles, [and] stables for their horses … for the proper functioning of the occupation authorities” (p. 137).

Importantly, requisitioned immovable private property must be returned once the operational military requirement is satisfied and transfer of title to third parties is prohibited (Lieblich & Benvenisti, § 6.1.2). Thus, any Russian seizure of Ukrainian real estate would be unlawful not only because it does not serve military needs but also because of its permanent nature, including the transfer of ownership.

In addition to clearly violating LOAC, the seizure of enemy private property is a war crime. The Rome Statute, for instance, criminalizes “Destroying or seizing the enemy’s property unless such destruction or seizure be imperatively demanded by the necessities of war” during an international armed conflict (art. 8(2)(b)(xiii)). This is the international criminal law expression of the general LOAC rule set forth in Article 23(g) of the 1907 Hague Regulations (see above). Notably, the statute extends this offense to conflicts that are non-international in character (see art. 8(2)(e)(xii)).

Transfer of Occupying Power’s Citizens to Occupied Territory

In addition to prohibiting the seizure of real property, the law of occupation also prohibits the transfer of an occupying power’s citizens into occupied territory. Article 49 of Geneva Convention IV is the core treaty law prohibition on point. It states, “The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies.” An ICRC commentary on the article explains that the provision is “intended to prevent a practice adopted during the Second World War by certain Powers, which transferred portions of their own population to occupied territory for political and racial reasons or in order, as they claimed, to colonize those territories” (see also Dinstein, para. 736).

State verbal practice confirms that the prohibition is today uncontroversial. For instance, the DoD Law of War Manual provides, “The Occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies” (§ 11.12.5; see also Canada, Manual on Law of Armed Conflict, § 1220(1); United Kingdom, Manual of the Law of Armed Conflict, § 11.55). Moreover, it undoubtedly reflects customary international law, a point articulated in Rule 130 of the ICRC’s Customary International Humanitarian Lawstudy which asserts, “States may not deport or transfer parts of their own civilian population into a territory they occupy.”

While the law explicitly prohibits a State’s affirmative transfer of nationals into territory it occupies, Courts have interpreted the prohibition as extending to even encouraging settlement in occupied territory. For instance, the International Court of Justice addressed Article 49 in its Wall advisory opinion.

That provision prohibits not only deportations or forced transfers of population such as those carried out during the Second World War, but also any measures taken by an occupying Power in order to organize or encourage transfers of parts of its own population into the occupied territory (para. 120).

Along the same lines, the UN Security Council has consistently maintained that Israeli settlements are in breach of the Fourth Geneva Convention (see, e.g., UNSCR 465 (1980); UNSCR 446 (1979)). For example, in 2016, it condemned (14-0 vote with the United States abstaining),

all measures aimed at altering the demographic composition, character and status of the Palestinian Territory occupied since 1967, including East Jerusalem, including, inter alia, the construction and expansion of settlements, transfer of Israeli settlers, confiscation of land, demolition of homes and displacement of Palestinian civilians, in violation of international humanitarian law and relevant resolutions (UNSCR 2334 (2016)).

In addition to violating LOAC, the transfer of an occupying power’s citizens into occupied territory is a war crime (see, e.g., ICC Statute, art. 8(2)(b)(viii); IMT Nuremberg, Case of the Major War Criminals, Judgment; International Law Commission (ILC), 1996 Draft Code of Crimes, art. 20(c)(i)). Further, Additional Protocol I to the four 1949 Geneva Conventions explicitly includes the transfer of a population into occupied territory as a “grave breach” (Article 85(4)(a)). Russia and Ukraine, unlike the United States, are Party to the Protocol.

Conclusion

The law of belligerent occupation clearly prohibits both the seizure of private real property and the transfer of the occupying power’s nationals into occupied territory. Such actions contravene longstanding LOAC rules enshrined in the 1907 Hague Regulations and the Geneva Convention IV. Moreover, the prohibitions unquestionably reside in customary international law. The reported Russian practices not only violate LOAC strictures but also may amount to war crimes that any State may prosecute. These reports warrant close scrutiny and must not be ignored by the international community.

***

Michael N. Schmitt is the G. Norman Lieber Distinguished Scholar at the United States Military Academy at West Point. He is also Professor of Public International Law at the University of Reading and Professor Emeritus and Charles H. Stockton Distinguished Scholar-in-Residence at the United States Naval War College.

Major Alex Hernandez is an active-duty Army judge advocate and a military professor assigned to the Stockton Center for International Law in Newport, Rhode Island.

The views expressed are those of the authors, and do not necessarily reflect the official position of the United States Military Academy, Department of the Army, or Department of Defense.

Articles of War is a forum for professionals to share opinions and cultivate ideas. Articles of War does not screen articles to fit a particular editorial agenda, nor endorse or advocate material that is published. Authorship does not indicate affiliation with Articles of War, the Lieber Institute, or the United States Military Academy West Point.

Photo credit: Yevhenii Vasiukov