6.b.i. [Mental element for Element 3] [Consequence of appropriation]: the perpetrator meant to appropriate certain property; OR

6.b.i. [Mental element for Element 3] [Consequence of appropriation]: the perpetrator meant to appropriate certain property; OR

De minimis requirement

In the Tadić Appeals Decision on Jurisdiction, the Appeals Chamber stated that:

"[...] the [misappropriation] must be 'serious', that is to say, it must constitute a breach of a rule protecting important values, and the breach must involve grave consequences for the victim. Thus, for instance, the fact of a combatant simply appropriating a loaf of bread in an occupied village would not amount to a 'serious violation of international humanitarian law' although it may be regarded as falling foul of the basic principle laid down in Article 46, paragraph 1, of the Hague Regulations (and the corresponding rule of customary international law) whereby 'private property must be respected' by any army occupying an enemy territory."[1]

The Čelebići Trial Chamber found that:

"the evidence [...] fails to demonstrate that any property taken from the detainees in the Čelebići prison-camp was of sufficient monetary value for its unlawful appropriation to involve grave consequences for the victims."[2]

In the Kunarac Decision on Motion for Acquittal, the Trial Chamber held that:

"The word 'plunder' in its ordinary meaning suggests that more than the theft of property from one person or even from a few persons in the one building is required. Plunder is synonymous with 'pillage', which more clearly emphasises that there must be theft involving a more extensive group of persons or a pattern of thefts over some identifiable area such as, for example, the Muslim section of a village or town or even a detention centre. The Celebici Judgment held that plunder included unjustified appropriations both by individual soldiers for their private gain and by the organised seizures within the framework of a systematic exploitation of enemy property. In Prosecutor v. Blaskic, the accused's conviction for plunder was based upon the large-scale activities of his subordinates over a widespread geographical area. Neither judgment therefore found it necessary to consider whether plunder requires the thefts to be widespread."

"Nevertheless, in the view of the Trial Chamber, the use of the word 'plunder' in Article 3(e) of the Statute refers to its ordinary meaning of involving unjustified appropriations of property either from more than a small group of persons or from persons over an identifiable area such as already described. This interpretation is more consistent with plunder being a violation of the laws or customs of war. It is inappropriate to include within that term a theft from only one person or from only a few persons in the one building. There is no evidence in the present case which satisfies the interpretation adopted. There will therefore be a judgment of acquittal in favour of Kunarac on Count 13."[3]

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

"[...] if read to mean that as far as the jurisdiction of the Tribunal is concerned plunder must involve grave consequences for the victims, thus amounting to a 'serious violation'."[4]