House Demolition - Legal Issues

Legal Issues

The Lieber Code, promulgated in 1863 by President Abraham Lincoln, was one of the first declarations specifically prohibiting the wanton destruction of a district in wartime. Article 28 of the Fourth Hague Convention of 1907 similarly specified that "pillage of a town or place, even when taken by assault, is prohibited." The massive destruction of civilian property inflicted during Second World War II prompted international jurists to address the issue again in 1945 when the Nuremberg Charter was enacted, establishing the procedures and laws by which the Nuremberg trials were to be conducted. Article 6(b) of the Charter thus condemned the "wanton destruction of cities, towns or villages, or devastation not justified by military necessity" and classified it as a violation of the laws or customs of war. The same definition was replicated in the founding charters of the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Court.

The use of house demolition under international law is today governed by the Fourth Geneva Convention, enacted in 1949, which protects non-combatants in occupied territories. Article 53 provides that "Any destruction by the Occupying Power of real or personal property belonging individually or collectively to private persons ... is prohibited." In its accompanying commentaries, the International Committee of the Red Cross refers to demolition only being justified by "imperative military requirements", which the Convention itself distinguishes from security considerations. The ICRC has clarified that the term "military operations" refers only to "movements, maneuvers, and other action taken by the armed forces with a view to fighting" and does not cover action undertaken as a punishment. In a further reservation, the ICRC regards the tactic as legitimate only "where such destruction is rendered absolutely necessary by military operations". The use of collective punishments is forbidden by the Hague Conventions, as well as by Article 50 of the Fourth Geneva Convention, which expressly prohibits the imposition of punishments on a protected person for an offense that he or she has not personally committed.

Israeli use of house demolitions has been particularly controversial. However, Israel, which is a party to the Fourth Geneva Convention, asserts that the terms of the Convention are not applicable to the Palestinian territories on the grounds that it does not exercise sovereignty in the territories and is thus under no obligation to apply the treaty in those areas. This position is rejected by human rights organisations such as Amnesty International, which notes that "it is a basic principle of human rights law that international human rights treaties are applicable in all areas in which states parties exercise effective control, regardless of whether or not they exercise sovereignty in that area."

A number of war crimes prosecutions have included charges relating to the illegal destruction of property. A number of those prosecuted by the International Criminal Tribunal for the Former Yugoslavia have been prosecuted for ordering "wanton destruction", and the International Criminal Court has also indicted at least one individual for similar offences in Darfur.

International law nonetheless still permits a fairly wide degree of latitude for military commanders to destroy civilian property when required to do so by military necessity. In U.S. v. Von Leeb, one of the Nuremberg trials held in 1948, Wilhelm Ritter von Leeb and six other senior German generals were accused of the wanton devastation of Soviet villages during a German retreat on the Eastern Front. The acts of destruction were carried out in anticipation of the enemy advancing through the devastated zones in the imminent future and were conducted in mid-winter, when the lack of shelter could reasonably be expected to impede the Russians' progress. The civilian population had been evacuated beforehand. The tribunal found von Leeb and his co-defendants not guilty on the charge of devastation, taking the view that "a great deal of latitude must be accorded" to a commander in a tactical situation such as the one that von Leeb found himself in.