This chapter begins with an overview of the origins, development and consolidation of the prohibition of extensive destruction and appropriation of property not justified by military necessity in IHL. This prohibition epitomises a fundamental, overarching rationality of contemporary jus in bello, that is the aspiration to strike a balance between imperatives of humanity and civilian protection on the one hand, and considerations of military necessity on the other, representing opposing polarities (and competing paradigms) of the law of armed conflicts. At the same time, this discussion illuminates the evolution of the prohibition as one that mirrors crucial historical and normative shifts of the law of occupation. In particular, the prohibition reflects the evolution of law of occupation from an intermediate regime preceding territorial conquest (until the early nineteenth century) to a temporary, exceptional regime of authority without sovereignty (since the Hague Conventions of 1899 and 1907), reflecting the prohibition of acquisition of territory by force in contemporary international law, established in Article 2(4) of the UN Charter. The new regime no longer bestows on occupying powers any of the prerogatives of domestic governments over the economies, demographics and legislative frameworks of occupied territories. This shift, in fact, emerges in parallel to the prohibition against the use of force and the affirmation of the principle of self-determination as peremptory norms of international law. The analysis then proceeds to the contemporary scope of the prohibition of destruction and appropriation of property not justified by military necessity under 145international criminal law (ICL). After analysing the most important jurisprudence of international criminal tribunals on the crimes of ‘plunder’ and ‘spoliation’, the chapter discusses the current, three-fold criminalisation of unjustified destruction and appropriation of property under Article 8 of the Rome Statute (RS) of the International Criminal Court (ICC), and the analogies and differences between the offences. The analysis will highlight how IHL and ICL set out complementary legal frameworks in this area. This complementarity is both normative, since the relevant ICL war crimes were drafted using the prohibitions previously defined by IHL treaties as models, and interpretative, since these war crimes require cross-referencing to IHL notions to be correctly understood. Once the main features of the interplay between IHL and ICL are clarified in relation to destruction and appropriation of protected property, the chapter assesses whether the practices of dispossession of Palestinian land and demolitions of Palestinian property carried out by Israeli authorities over the last decades of the occupation meet the criteria of the specific crimes under the Rome Statute. Considering the factual reality of the West Bank that frames the situation faced by Bedouin communities, this chapter thus critically engages with the core elements of the discourses mobilised to justify the systematic nature of the practices of dispossession and demolition developed by the infrastructure of the Israeli occupation and supported by the HCJ.[5] In light of the above, this chapter builds on the former ICC Prosecutor’s statement on Khan al Ahmar by highlighting the reasons why the ICC should closely scrutinise facts amounting to crimes of unjustified destruction and appropriation of property perpetrated by the Israeli authorities in Bedouin communities in the West Bank. As watermarks of an institutional project employing systematic, large-scale, and interdependent jus in bello violations, the extensive destruction of property without military necessity supports objectives outlawed and criminalised by jus ad bellum: conquest and annexation resulting from an unlawful use of force, as the discussion that follows illustrates
Denying the Cornerstone of Jus in Bello in Palestine: Bedouin Communities and the War Crimes of Extensive Destruction and Appropriation of Property not Justified by Military Necessity
DANIELE, Luigi
2025-01-01
Abstract
This chapter begins with an overview of the origins, development and consolidation of the prohibition of extensive destruction and appropriation of property not justified by military necessity in IHL. This prohibition epitomises a fundamental, overarching rationality of contemporary jus in bello, that is the aspiration to strike a balance between imperatives of humanity and civilian protection on the one hand, and considerations of military necessity on the other, representing opposing polarities (and competing paradigms) of the law of armed conflicts. At the same time, this discussion illuminates the evolution of the prohibition as one that mirrors crucial historical and normative shifts of the law of occupation. In particular, the prohibition reflects the evolution of law of occupation from an intermediate regime preceding territorial conquest (until the early nineteenth century) to a temporary, exceptional regime of authority without sovereignty (since the Hague Conventions of 1899 and 1907), reflecting the prohibition of acquisition of territory by force in contemporary international law, established in Article 2(4) of the UN Charter. The new regime no longer bestows on occupying powers any of the prerogatives of domestic governments over the economies, demographics and legislative frameworks of occupied territories. This shift, in fact, emerges in parallel to the prohibition against the use of force and the affirmation of the principle of self-determination as peremptory norms of international law. The analysis then proceeds to the contemporary scope of the prohibition of destruction and appropriation of property not justified by military necessity under 145international criminal law (ICL). After analysing the most important jurisprudence of international criminal tribunals on the crimes of ‘plunder’ and ‘spoliation’, the chapter discusses the current, three-fold criminalisation of unjustified destruction and appropriation of property under Article 8 of the Rome Statute (RS) of the International Criminal Court (ICC), and the analogies and differences between the offences. The analysis will highlight how IHL and ICL set out complementary legal frameworks in this area. This complementarity is both normative, since the relevant ICL war crimes were drafted using the prohibitions previously defined by IHL treaties as models, and interpretative, since these war crimes require cross-referencing to IHL notions to be correctly understood. Once the main features of the interplay between IHL and ICL are clarified in relation to destruction and appropriation of protected property, the chapter assesses whether the practices of dispossession of Palestinian land and demolitions of Palestinian property carried out by Israeli authorities over the last decades of the occupation meet the criteria of the specific crimes under the Rome Statute. Considering the factual reality of the West Bank that frames the situation faced by Bedouin communities, this chapter thus critically engages with the core elements of the discourses mobilised to justify the systematic nature of the practices of dispossession and demolition developed by the infrastructure of the Israeli occupation and supported by the HCJ.[5] In light of the above, this chapter builds on the former ICC Prosecutor’s statement on Khan al Ahmar by highlighting the reasons why the ICC should closely scrutinise facts amounting to crimes of unjustified destruction and appropriation of property perpetrated by the Israeli authorities in Bedouin communities in the West Bank. As watermarks of an institutional project employing systematic, large-scale, and interdependent jus in bello violations, the extensive destruction of property without military necessity supports objectives outlawed and criminalised by jus ad bellum: conquest and annexation resulting from an unlawful use of force, as the discussion that follows illustratesI documenti in IRIS sono protetti da copyright e tutti i diritti sono riservati, salvo diversa indicazione.
