Understanding the Distinction Between Property Destruction Governed by Hague Article 23(g) and the Rules Governing Attacks

This analysis follows my prior post explaining the obligations imposed by Article 23(g) of the Hague Regulations of 1907, annexed to Hague Convention IV. For the reasons stated below, the attack rules contained in Additional Protocol I (AP I) control destruction of objects under the control of an adversary, while Hague Article 23(g) governs destruction of property under the control of the destroying party. Hague Article 23(g) permits seizure or destruction of property even if that property is not a military objective as defined by Article 52(2) of AP I.

Hague Article 23(g) and the Attack Rules Impose Different Obligations

Pursuant to 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 destruction of virtually all property during hostilities was governed by Hague Article 23(g) prior to the adoption of AP I in 1977. AP I established special rules applicable to a subset of hostilities defined by Article 49(1) of AP I as “attacks.” The rules governing attacks superseded Hague Article 23(g), but only with respect to acts of violence falling within the definition of Article 49(1).

The attack rules and Hague Article 23(g) each impose different obligations. Crucially, Article 52(2) of AP I permits the targeting of only military objectives as defined therein. On the other hand, Hague Article 23(g) permits the destruction of all enemy property for reasons of imperative military necessity even if that property is not a military objective as defined by Article 52(2). It is therefore important to understand when the attack rules apply as opposed to Hague Article 23(g).

The Military Objective Requirements Contained in Article 52 AP I

The AP I, Article 52(2) definition of targetable military objectives delineates the scope of the attack rules. This provision defines military objectives 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.” Crucially, the first prong of this definition refers to objects which make an effective contribution to enemy military action.

An object generally cannot make an effective contribution to enemy military action unless the enemy exercises control over that object. Thus, an object cannot make an effective contribution to the military actions of Party A when that object is under the control of its enemy, Party B. Therefore, Party B cannot ordinarily target objects under its control on the basis that those objects constitute military objectives.

The International Committee of the Red Cross (ICRC) 1987 Commentary to Article 52 states that an object may qualify as a military objective under the purpose criterion on the basis of its intended future use (para. 2022). Theoretically, an object under the control of Party B could make an effective contribution to Party A’s military actions if and when Party A obtains control of that object. However, the future use in such cases may be too speculative to qualify the object as a military objective (U.S. Department of Defense, Law of War Manual, § 5.4.3.2.).

A specific area of land may also be a military objective based on location. However, according to the ICRC, this applies only if the area is inside the combat zone (ICRC, Commentary para. 2026). This condition is likely not satisfied when the destroying party enjoys uncontested control over the property to be destroyed.

This raises the issue of whether Article 52 applies to objects under the control of the destroying party. If it does, destruction of property under the control of the destroying party would be unlawful because such property could not generally satisfy the definition of a military objective.

Military necessity often requires destruction of property under the control of the destroyer. For example, a party may destroy enemy property under its control to build a road from the rear areas to the front lines. A party may seize enemy land under its control and destroy objects thereon to build a military base. A party may demolish buildings under its control for the purpose of building defensive fortifications. A party may destroy property under its control to produce a clear field of fire in preparation for a future attack. These normal and routinely conducted military activities demonstrate that the military objective requirements contained in Article 52 were never intended to apply to destruction of property by the party controlling that property.

Other authority also supports this conclusion. The ICRC Commentary to Article 49 of AP I states that the term “attacks” means “combat action” (para. 1880). The primary rationale for combat action is to contest control. Accordingly, property destruction by a party exercising uncontested control over that property is not “combat action.”

This conclusion is further buttressed by the definition of “attacks” in Article 49(1) as “acts of violence against the adversary.” The term “adversary” refers to combatants whenever it is used in AP I. Therefore, “acts of violence against the adversary” are acts of violence against enemy combatants, and/or objects under the control of enemy combatants. Destruction of property under the control of the destroying party does not involve acts of violence against an adversary.

Article 49(2) of AP I also states that the attack rules apply in the national territory of a party which is under the control of an adverse party. This implies that the attack rules do not apply to territory under the control of the assaulting party.

Finally, Article 52(2) applies only in cases of destruction, capture, or neutralization of property. Property may be seized in a manner that does not amount to destruction, capture, or neutralization. Thus, a party may seize a building previously captured to use for billeting troops without causing any damage to the property. Article 52(2) would not apply in this case.

Destruction Of Property Under the Control of the Destroying Party

Hague Article 23(g) is not limited in its applicability to military objectives as defined by Article 52(2). Therefore, destruction of property under the control of the destroying party is permitted for reasons of imperative military necessity pursuant to Hague Article 23(g).

Hague Article 23(g) would be rendered superfluous if it incorporated the military objective requirements in Article 52. This would be inconsistent with Rule 50 of the ICRC’s Customary IHL Study, which recognizes Hague Article 23(g) as an independent rule of customary international law separate from those governing attacks. Notably, Rule 50 does not limit permissible destruction to military objectives as defined by Article 52(2) of AP I.

Incorporating the military objective requirement into Hague Article 23(g) would also be inconsistent with Articles 8(2)(b)(xiii) and 8(2)(e)(xii) of the Rome Statute of the International Criminal Court. These provisions codify Hague Article 23(g) in the criminal context. They are viewed as representing customary international law and do not limit permissible property destruction to military objectives as defined by Article 52(2) of AP I (Dörmann, War Crimes under the Rome Statute, p. 345).

Significantly, AP I never mentions the term “enemy’s property.” The ICRC Commentary states that the treaty does not address the rules related to Hague Article 23(g) (para. 1380). Accordingly, outside of the attack context, AP I did not modify Hague Article 23(g) by limiting the latter’s applicability to Article 52(2) military objectives.

It is true that Article 48 of AP I states that parties “shall direct their operations only against military objectives.” This provision suggests that every military operation must be directed against military objectives. However, Article 48 cannot be interpreted literally because it would prohibit numerous military activities which do not target military objectives as defined by Article 52(2), such as recruitment, training, and logistics operations. In any event, Hague Article 23(g) permits destruction of property only when justified by imperative military necessity. Accordingly, property destroyed pursuant to Hague Article 23(g) is a legitimate objective of military action, even if that property is not a “military objective” as defined by Article 52(2).

In sum, the military objective requirements contained in Article 52(2) apply when destroying property under the control of an adversary. However, Hague Article 23(g) applies when the destroying party exercises control over the property, with certain exceptions such as for war booty.

For example, a commander would be prohibited during an attack from targeting a civilian dwelling which is not a military objective as defined by Article 52(2). However, the same dwelling may be destroyed based on military necessity after coming under the control of the attacking party pursuant to Hague Article 23(g). The critical point is that Hague Article 23(g) is triggered when enemy property comes into the control of a party, regardless of whether such control results from an attack or any other reason.

This does not mean that property may be destroyed immediately after its capture. Three of the International Criminal Court Appeals Chamber judges in Prosecutor v. Ntaganda stated that property destruction during ratissage operations conducted immediately after an attack was part of a single planned operation (Ibanez Carranza, para. 1168; Bossa, para. 10; Eboe-Osuji, para. 132). This suggests that destruction of property immediately after its capture may be governed by the attack rules instead of Hague Article 23(g).

Finally, it may appear inequitable that property not targetable as a military objective may be destroyed pursuant to Hague Article 23(g). However, humanitarian considerations justify this result. Property which is a military objective may be attacked even when expected to cause civilian deaths, provided proportionality rules and other precautions are satisfied. However, the maximum force against civilians implicitly permitted by Hague Article 23(g) is that required to move them away from the property to be destroyed. Therefore, commanders should be afforded greater latitude in destroying property pursuant to Hague Article 23(g) than during attacks.

Property Destruction in The Occupation Context

Article 53 of the Fourth Geneva Convention prohibits destruction by an occupying power of both public and private property “except where such destruction is rendered absolutely necessary by military operations.” The term “military operations” is not the same as military requirements. Nonetheless, the Pictet Commentary suggests a similar interpretation to Hague Article 23(g), noting that destruction of property by an occupying power may be justified when “imperative military requirements so demand” (p. 302). Article 53 reflects customary international law (ICRC, Customary IHL, rule 51).

Article 53 does not limit property destruction by an occupying power to military objectives as defined by Article 52(2) of AP I. Military necessity is likely to be a more compelling justification during hostilities, as opposed to occupations by which time most armed resistance has ceased. Therefore, the fact that non-military objectives may be destroyed during occupations based on imperative military necessity a fortiori justifies such destruction during hostilities.

Conclusion

The rules governing attacks permit the targeting of only military objectives as defined by Article 52(2) of AP 1. On the other hand, Hague Article 23(g) permits seizure or destruction of enemy property even if that property is not a military objective as defined by Article 52(2). The test of whether the attack rules or Hague Article 23(g) applies is based on which party exercises control over the property.

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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.

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