Chapter 7. The prohibition of the destruction of enemy-property in occupied territory

Abstract

The prohibition of the destruction of enemy property is a well-established principle in customary law. As Article 53 Fourth Geneva Convention (GCIV) prohibits only destruction, the occupying power reserves the right to requisition private property. With respect to public property, it is entitled to confiscate any movable property belonging to the occupied State for the purpose of military operations, and to administer real property belonging to that State. A so-called scorched earth policy involves the systematic destruction of whole areas by occupying forces in their withdrawing phrase before the arrival of the enemy forces. Exceptions to the general rule that prohibits the destruction of property are recognised only where there is imperative military necessity. Extensively destroying and appropriating property, not justified by military necessity and carried out unlawfully and wantonly is a grave breach of the Geneva Conventions and punishable as such, as recognised in Articles 147 and 148 GCIV.Keywords: customary law; enemy property; Fourth Geneva Convention (GCIV); grave breach; military necessity test; occupied territory; scorched earth policy