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Chapter Six Protected Property |
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If the people [of Georgia] raise a howl against my barbarity and cruelty, I will answer that war is war, and not popularity seeking. If they want peace, they and their relatives must stop the war. William T. Sherman, Letter to Major General H. W. Halleck, 4 September, 1864 |
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A Note To The Law Of War Student: Particularly relevant sections of underlying case readings are yellow highlighted. The student is, however, expected to at least be familiar with the entire reading. Where the case title is highlighted, as in Yamashita, the student is expected to read carefully the entire case. A Note to German Students: To facilitate your understanding I have included German language texts of treaties where available. The hyperlink will be identified by the words "German language version." |
The concept of "safety" zones where civilians may shelter and structures of particular cultural, historic or health and safety importance are inviolate from attack is not new. Hague Regulations, Article 25, provides that, "The attack or bombardment, by whatever means, of towns, villages, dwellings, or buildings which are undefended is prohibited."
Indeed, even before the common era the concept existed:
| 19. When thou besiegest a
city a long time, to make war against it to capture it, thou shalt not
destroy the trees thereof by forcing an axe against them; for of them
thou mayest eat, and thou shalt not cut them down, (for man liveth of
the trees of the field) to employ them in thy siege;
20. Only those trees of which thou knowest that they are not fruit-trees, thous mayest destroy and cut down; and (thus) thou canst build bulwarks against the city that wagest war against thee, until it be subdued. |
Deuteronomy Chapter XX.
Consider the applicability of Article 25 to the following
report of urban combat in Southern Russia.
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A correspondent for Reuters news agency witnessed the funerals of 27 people killed in the south-eastern village of Serzhen-Yurt in a bombing raid shortly after dawn. Nine children were among the dead, residents said. The Chechen authorities reported two other attacks. One was in the town of Vedeno, also in the south east, where a rocket was said to have killed 23 people. Shelling was reported to have claimed the lives of another 16 people in the western village of Samashki. The Russian bombardment came despite international calls for an end to Moscow's offensive in the breakaway republic after Thursday's rocket attack on the capital, Grozny, which killed around 140 people. |
BBC News, Sunday, October 24,
1999.
According to Amnesty International:
| In November 1998, Amnesty International wrote to the US and UK governments urging that life, safety and security of civilians must be the paramount consideration in any action taken to resolve conflicts and to insure the protection of civilians in accordance with international humanitarian law. Amnesty International also wrote to the Iraqi government and urged that all necessary measures be taken to protect the civilian population in Iraq. During the Gulf War in 1991 thousands of civilians in Iraq were killed in aerial bombardment of Baghdad and other cities by US and allied forces. In one such incident, more than 300 civilians were killed in the 'Amariya air raid shelter in Baghdad. |
Amnesty International-USA Press Release,
The Columbia Journalism
Review described the scene of the bombing:
| Nearly all the bodies were charred into blackness; in some cases the heat had been so great that entire limbs were burned off. Among the corpses were those of at least six babies and ten children, most of them so severely burned that their gender could not be determined. Rescue workers collapsed in grief, dropping corpses; some rescuers vomited from the stench of the still-smoldering bodies. |
Columbia Journalism Review,
May/June 1991.
In 1993, the
Security Council, in Resolution
819, alarmed at the situation in the Bosnian city of Srebernicia "as a
result of the continued deliberate armed attacks and shelling of the innocent
civilian population..." demanded that:
| ...all parties and others concerned treat Srebernica and its surroundings as a safe area which should be free from any armed attack or other hostile act; |
One
area of continuing interest is the law of siege which has
ancient and medieval
roots. The shelling of Grozny discussed above is not the only recent example of
a military force laying siege to a city. In 1995 the International Criminal
Tribunal for Former Yugoslavia
indicted
Ratko Mladic for, inter alia, conduct during the siege of Srebrenica
including violations of Resolution
819.
FM
27-10 provides that:
| The commander of the investing force has the right to forbid all communications and access between the besieged place and the outside. However, ... belligerents [must] endeavor to conclude local agreements for the removal from the besieged or encircled area of wounded, sick, infirm, and aged persons, children and maternity cases, and for the passage of ministers of all religions medical personnel and medical equipment on their way to such areas. ... Subject to the foregoing exceptions, there is no rule of law which compels the commander of an investing force to permit noncombatants to leave a besieged locality. ... Thus, if a commander of a besieged locality expels the noncombatants in order to lessen the logistical burden he has to bear, it is lawful, though an extreme measure, to drive them back, so as to hasten surrender. |
FM 27-10 at §44,
p.20.
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Questions To Consider About Civilian Zones |
| 6.1.1 What things or places should be protected from combat damage? Would you include hospitals, civilians’ food stores and/or educational facilities. What if they’re used for military purposes? To feed and train workers at munitions plants? Should civilian housing areas be protected? What if they’re around a munitions plant? Consider dams and power stations? Sewage treatment facilities? Airfield used for both civil and military? Means of communication and transportation available to both civil and military authorities? |
| 6.1.2 If the Security Council declares a safe zone may a combatant attack what would otherwise be a legitimate military target within that zone? What if the opposing force moves antiaircraft forces into the safe zone and fires out of it? |
| 6.1.3 What is the difference, if any, between a safe zone and a neutralized zone? |
Certain types of property are identified by
the laws of war as exempt from attack (unless misused) or seizure. The
exemptions are made on both an humanitarian (schools and hospitals), cultural
(museums and monuments) and legal order (prevention of looting and pillaging)
basis. The following sections deal with those exemptions based upon property
types. Note, however, that the protection is not absolute:
| There must be some reasonably close connection between the destruction of property and the overcoming of the enemy's army. Thus the rule requiring respect for private property is not violated through damage resulting from operations, movement or combat activity of the army; that is, real estate may be used for marches, camp sites, construction of field fortifications, etc. buildings may be destroyed for sanitary purposes or used for shelter for troops, the wounded and sick and vehicles and for reconnaissance, cover and defense. Fences, woods, crops, buildings, etc. may be demolished, cut down, and removed to clear a field of fire, to clear the ground for landing fields, or to furnish building materials or fuel if imperatively needed for the army. |
FM 27-10 §56 at pp.23-24.
Much of the lasting damage from the Second
World War was done not to buildings or monuments, but rather to their contents.
Industrialized looting and massive destruction of art work was the norm in Nazi
occupied territories. Unfortunately, some distinction seems to have been drawn
between mistreatment of buildings and misappropriation of art works of value to
all humanity.
| The casualties of the Second World War were not limited to the human victims. Along with the millions of lives lost during the Holocaust, millions of works of art fell victim to the Nazi Regime. Although the capture of art and cultural property during a war is an ancient practice, the Nazis systematically looted Europe's art during World War II on an unprecedented scale. The theft of this art was not simply a case of the victors claiming the spoils. For Hitler, both the acquisition and cleansing of art fell squarely within his plan of a pure Germanic empire. Thus, "[l]ooting was carried out with typical German efficiency, planned beforehand and ruthlessly executed." Today, over fifty years after the end of World War II, thousands of pieces of art remain displaced because of Hitler's efforts. |
Kelly Ann Falconer, When Honor Will Not Suffice: The Need For A Legally Binding
International Agreement Regarding Ownership Of Nazi-Looted Art, 21 U. Pa. J. Int'l Econ. L.
383 (2000).
| Nazi ideology also
determined which art was considered valuable. Hitler did not like modern
art, so the Monets, Cezannes, and Picassos that were so popular on the
international art market were dubbed "degenerate art" and were
only valuable to the Nazis as items they could sell or exchange for the
art they preferred. The art they considered valuable included Germanic
art (though not modernist German art), as well as the work of many Dutch
painters (though Rembrandt's fondness for Jewish subjects was troubling)
and many French artists.
The Nazi obsession with art began to manifest itself well before the war began. In 1937, Hitler ordered German museums to clear their collections of degenerate artworks. There were "Degenerate Art" shows in Munich and throughout Germany, and many of the works were then sold at auctions of degenerate art. After a final auction in March 1939, the nearly 5000 degenerate artworks that remained were burned in a bonfire. The treatment of Jews in Germany deteriorated quickly after the Nazis came to power, of course, but the confiscation of personal property did not begin until Kristallnacht in November of 1938. Soon afterward, confiscated art began to fill warehouses and museums throughout Germany. ********** In Austria and Western Europe, the Germans systematically confiscated only property owned by Jews. In Eastern Europe, however, the pattern was different. Because the Slavs were considered an inferior race, the Germans looted and pillaged private homes, state museums, and churches. They took all the "Germanic art" that they could find and destroyed what they did not take. The Soviet Union was in particular badly looted. Its museums were ill-prepared for the German invasion and were quickly stripped of the art that the Germans wanted. What they did not want, they destroyed. Palaces, museums, libraries, and churches were completely plundered and left gutted. The numbers alone are mind-boggling: 427 Soviet museums were looted; 1670 Russian Orthodox churches were destroyed or damaged, along with some 500 synagogues. Thirty-four thousand objects were removed from Peterhof in Leningrad and sent to Germany before the palace was destroyed; at Novgorod, 30,000 valuable books were taken. The richest museums in the USSR together lost more than 500,000 items. Moreover, many of the items that were taken were completely unique, including the beautiful Amber Room of the Catherine Palace in Pushkin. The room's amber panels were dismantled by the Germans and sent back to Germany, and they have not resurfaced since the end of the war. |
Michelle I. Turner, The Innocent Buyer Of Art Looted During World War II, 32 Vand. J.
Transnat'l L. 1511, 1515-1517 (1999) (footnotes omitted). See also the OSS
Documentation Project on Nazi art looting.
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Hague Regulation Article 56 The property of municipalities, that of institutions dedicated to religion, charity and education, the arts and sciences, even when State property, shall be treated as private property. All seizure of, destruction or willful damage done to institutions of this character, historic monuments, works of art and science, is forbidden, and should be made the subject of legal proceedings. Hague Regulation Article 27 In sieges and bombardments all necessary steps should be taken to spare as far as possible edifices devoted to religion, art, science, and charity, hospitals, and places where the sick and wounded are collected, provided they are not used at the same time for military purposes. The besieged should indicate these buildings or places by some particular and visible signs, which should previously be notified to the assailants. |
See also, 1954 Hague Convention for the Protection of Cultural Property in the Event of an Armed Conflict.
Human Rights Watch produced an extensive report on NATO bombing during the Kosevo conflict. It included the following discussion of the attack on Serb Radio and Television Headquarters:
One of the worst incidents of civilian deaths...was the bombing of state Serb Radio and Television (RTS) headquarters in Belgrade...According to military sources there was considerable disagreement between the United States and French governments regarding the legality and legitimacy of the target, and there was a lively public debate regarding the selection of Yugoslav civilian radio and television as a target group. The NATO attack [was postponed due to French disapproval]. According to [sources] Western news organizations, who were using the facility to forward material from Yugoslavia were alerted...that the headquarters would be attacked. Attacks also had to be rescheduled because of rumors that foreign journalists ignored warnings... When the initial warnings were given...the Yugoslav government also found out about the intended attack. When the target was finally hit in the middle of the night...authorities were no longer taking the threat seriously, given the [ten days] which had transpired since the initial warning. As a consequence, sixteen RTS civilian technicians and workers were killed and sixteen were wounded. Paragraph 7 of the 1956 ICRC guidelines describing lists of targets that are legitimate military objectives includes "installations of broadcasting and television stations; [and] telephone and telegraph stations of fundamental military importance." In a May 13 letter to NATO...Human Rights watch questioned the legitimacy of the target group...The reasoning was that the system was not "...being used to incite violence...which might have justified their destruction. At worst, as far as we know, the Yugoslav Government was using them to issue propaganda supportive of its war effort. And, in fact, NATO has stated that it bombed the television facilities because they were being used as a propaganda tool of the Milosevic government. As a consequence, Human Rights Watch believes [the stations were not a legitimate target]. Even if one could justify legal attacks on civilian radio and television, there does not appear to be any justification for attacking urban studios, as opposed to transmitters. After strikes on the Belgrade and Novi Sad headquarters, Yugoslav state broadcasters were able to easily move operations...In this case, target selection was done more for psychological harassment of the civilian population than for direct military effect. The risks involved to the civilian population...thus grossly outweighed any perceived military benefit. |
Human Rights Report, Civilian Deaths In The NATO Air
Campaign, Vol.12 No.1 (D) at pp. 27-28 (February, 2000).
| I had spoken to Powell regularly throughout the day. ...At ten p.m., I called to give him a final update. I was tired; at the end of the conversation I heard myself say how much I'd like to blow up the giant Saddam statue and the Victory Arch in downtown Baghdad. The Victory Arch, a monument to the war against Iran, was a huge sculpture of two hands, said to be Saddam's, holding two swords crossed. We'd spared both the statue and the Victory Arch during the air campaign because they weren't military targets. To my surprise, Powell was all for it-- although he suggested we check with the president first. Pentagon lawyers vetoed the idea a couple of days later... |
H. Norman Schwarzkopf, It Doesn't Take A Hero, (Bantam, 1992) p.
455.
The general rule regarding captured individual enemy military
equipment is found in Geneva Convention III at Article 18, and provides that
other than personal effects it is treated as war booty. That rule, however, does
not give a belligerent unfettered leave to loot.
| The walls of one large hall of [Goering's] country estate were covered with paintings. They had been the personal property of a well-known Dutch art dealer who after the occupation had been compelled to turn over his collection to Goering for a ridiculous price. |
Albert Speer, Inside The Third Reich, (Avon, 1970) p.244.
Looting, pillage and the confiscation of personal property of a non-military nature are, in fact, generally forbidden.
Hague Regulation 53 provides:
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An army of occupation can only take possession of cash, funds, and realizable securities which are strictly the property of the State, depots of arms, means of transport, stores and supplies, and, generally, all movable property belonging to the State which may be used for military operations. All appliances, whether on land, at sea, or in the air, adapted for the transmission of news, or for the transport of persons or things, exclusive of cases governed by naval law, depots of arms, and, generally, all kinds of munitions of war, may be seized, even if they belong to private individuals, but must be restored and compensation fixed when peace is made. |
In the British Manual of Military Law,
Lauterpacht discusses Hague regulation 53, noting that within it fall
"cables, telegraph and telephone plant, television, telecommunications and
radio equipment; horses, motorcars, bicycles, carts, carriages, railways and
railway plant, tramways, ships in port, river and canal craft, aircraft of all
descriptions except ambulance aircraft, sporting weapons and all kinds of
property which could serve as war material." He adds in a note that
"there is no justification for the view that 'war material' means material
which could be used immediately and without being processed in any way for
warlike purposes..."
In addition to the personal equipment
seized from prisoners, all war materials found on the battlefield are
subject to seizure as booty of war. See, Morris Greenspan, The Modern Law Of Land
Warfare (University of California Press, 1959) at pp.290-291.
| Whatever enemy property a belligerent may appropriate he may likewise destroy. To prevent the enemy from making use of them, a retreating force may destroy arms, ammunition, provisions and the like, which they have taken from the enemy or requisitioned, and cannot carry away. But they may not destroy provisions in the possession of private enemy inhabitants in order to prevent the enemy from making use of them in the future. |
Hersch Lauterpacht, Oppenheim's International Law, Vol. II §152 at 414 (7th Ed.
1952).
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Questions To Consider About Protected Property |
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6.2.1 Why do the Geneva Conventions protect both property and persons? Several reasons can be suggested including:
Posit an argument that in the balance between lives and property, one or the other is entitled to primacy, and explain your reasons why. Apply that answer to Serbia conduct in Kosevo which combined terror with the destruction of the things the Albanian population needed to survive: crops, housing, infrastructure. |
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| 6.2.2 How does the Serbian conduct differ from the dehousing policy practiced by Allied air forces against the Japanese in WWII? Was that policy, as applied in the firebombing of Japanese cities, consistent with legal obligations as they now exist? Was it legal under the law of war in 1944-45? | ||||||||
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6.2.3 Why would monument protection be of interest to warring parties? Consider the following examples:
What factors distinguished those incidents? Hint: Consider the relative strength of the parties, as well as existing treaty obligations. |
Certain military property, chiefly related to health
care, is exempted from attack and seizure is subject to limitations.
Thus, for example, the Geneva
Wounded And Sick Convention provides that:
| Fixed establishments and mobile medical units of the Medical Service may in no circumstances be attacked, but shall at all times be respected and protected by the Parties to the conflict. Should they fall into the hands of the adverse Party, their personnel shall be free to pursue their duties, as long as the capturing Power has not itself ensured the necessary care of the wounded and sick found in such establishments and units. |
GWSC at Article 19.
Article 21, however, imposes some limitations on that protection. It may cease if they "...are used to commit, outside their humanitarian duties, acts harmful to the enemy. Protection may, however, cease only after a due warning has been given, naming, in all appropriate cases, a reasonable time limit and after such warning has remained unheeded." Note, however, that protection is not lost merely because the personnel "of the unit or establishment are armed, and that they use the arms in their own defence, or in that of the wounded and sick in their charge." Article 22.
The material of mobile medical units of the armed forces which fall into the hands of the enemy is reserved for the care of the wounded and sick. The buildings, material and stores of fixed medical establishments of the armed forces remains subject to the laws of war, but may not be diverted from that purpose as long as they are required for the care of wounded and sick. Commanders of forces in the field may make use of them, in case of urgent military necessity, provided that they make previous arrangements for the welfare of the wounded and sick who are nursed in them. Article 34.
Taken together, these provisions create a unique regime in
which property which would otherwise be of unquestionable military utility is
inviolate (when lawfully used) and largely exempt from seizure. Similar
analytical factors apply to medical personnel. Thus, for example, in Vowinckel
v. Federal Trust, 10 F.2d 19, (9th Cir. 1926) the court held that a
doctor who entered the service of the German Army as a Red Cross surgeon was not
part of the forces of the enemy for U.S. domestic law purposes because
"...it would seem clear that Red Cross surgeons and nurses, who are engaged
exclusively in ameliorating the condition of the wounded of the armies in the
field, and in alleviating the sufferings of mankind in general, are not enemies
of the United States in any proper sense of that term."
| Questions To Consider about Exempted Military Property |
| 6.3.1 If medical supplies are largely exempt for purposes of health and safety, should a similar analysis apply to other items, such as food and clothing, necessary for the well-being of captured troops? |
| 6.3.2 When should a medical unit be considered outside the bounds of its humanitarian duties? If it fights in defense of its patients, but occupies a strategic position, where does the conduct fall? |