3. The perpetrator appropriated certain property.

3.1. The act of appropriation.

3.1.1. Evidence of the organized appropriation of property.

3.2. Certain property

3. The perpetrator appropriated certain property.

3.1. The act of appropriation.

In Mucic et al. (Čelebići), the Trial Chamber held that,

"[...] it must be observed that the offence of the unlawful appropriation of public and private property in armed conflict has varyingly been termed 'pillage', 'plunder' and 'spoliation'. Thus, whereas article 47 of the Hague Regulations and article 33 of Geneva Convention IV by their terms prohibit the act of 'pillage', the N¨¹rnberg Charter, Control Council Law No. 10 and the Statute of the International Tribunal all make reference to the war crime of 'plunder of public and private property'. While it may be noted that the concept of pillage in the traditional sense implied an element of violence not necessarily present in the offence of plunder, it is for the present purposes not necessary to determine whether, under current international law, these terms are entirely synonymous. The Trial Chamber reaches this conclusion on the basis of its view that the latter term, as incorporated in the Statute of the International Tribunal, should be understood to embrace all forms of unlawful appropriation of property in armed conflict for which individual criminal responsibility attaches under international law, including those acts traditionally described as 'pillage'. It will be noted that it is not possible, absent a complete analysis of the existing legal framework for the protection of public and private property under international humanitarian law, to here set out a more comprehensive description of the circumstances under which such criminal responsibility arises."[1]

The SCSL Trial Chamber in Fofana found that:

"According to the definition of pillage as stated above, an essential element of pillage is the unlawful appropriation of property. Black's Law Dictionary defines appropriation as 'the exercise of control over property; a taking or possession'. In the act of looting, the perpetrator unlawfully appropriates the property. Destruction of property by burning, however, does not, by itself, necessarily involve any unlawful appropriation. Thus, while both looting and burning deprives the owner of their property, the two actions are distinct in that the latter crime may be committed without appropriation per se. [...] the destruction by burning of property does not constitute pillage."[2]

The Appeal Chamber upheld this finding, stating that:

"[...] a necessary element of the crime of pillage is the unlawful appropriation of property. Consequently, burning and other acts of destruction of property not amounting to appropriation as a matter of law, cannot constitute pillage under international criminal law."[3]

3.1.1. Evidence of the organized appropriation of property.

The Trial Chamber in Naletilić and Martinović (Tuta and Štela) observed that:

"The term is general in scope, comprising not only large-scale seizures of property within the framework of systematic economic exploitations of occupied territory but also acts of appropriation committed by individual soldiers for their private gain. In fact, under international law, plunder does not require the appropriation to be extensive or to involve a large economic value. Dispossession of personal property, a common way individual soldiers gain illicit booty, is considered a war crime of the more traditional type. Isolated instances of theft of personal property were treated as war crimes in a number of trials before French Military Tribunals and other courts following the Second World War although, in each instance, the overall value of the robbery was modest. Further, the Commentary on the Additional Protocols clarifies that 'pillage' is prohibited whether organised or resulting from 'isolated acts of indiscipline'. A different question is whether plunder committed on a small scale fulfils the requirements of Article 3(e) in conjunction with Article 1 of the Statute, which states that the Tribunal 'shall have the power to prosecute persons responsible for serious violations of international humanitarian law'."[4]

3.2.C ertain property