Table of contents:
3. The perpetrator appropriated certain property.
3.1. The act of appropriation.
3.1.1. Evidence of the organized appropriation of property.
P.2. Evidence of the appropriation of property by military forces after an attack on a village.
P.2.2. Evidence that civilians aided the military by taking property from other civilians.
P.2.3. Evidence that soldiers looted property from houses.
P.3. Evidence of the abusive and illegal requisitioning of civilian property.
P.4. Evidence that pillage was committed in gangs by military personnel with arms or open force.
P.4.1. Evidence that pillage was committed in gangs by military personnel with arms or open force.
3.1.2. Evidence of isolated acts of theft or plunder.
P.5. Evidence of the appropriation of property by an individual soldier for their private gain.
P.5.1. Evidence of stealing from detainees or prisoners of war.
P.7. Evidence of the appropriation of a single item of high value.
Element:
3. The perpetrator appropriated certain property.
3.1. The act of appropriation.
3.1.1. Evidence of the organized appropriation of property.
A. Legal source/authority and evidence:
Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-T, Judgement (TC), 26 February 2001, para. 352:
"352. [ ] Such acts of appropriation include both widespread and systematised acts of dispossession and acquisition of property in violation of the rights of the owners and isolated acts of theft or plunder by individuals for their private gain. [ ]"
Prosecutor v. Zejnil Delalic et al., Case No. IT-96-21-T, Judgement (TC), 16 November 1998, para. 590:
"590. In this connection, it is to be observed that the prohibition against the unjustified appropriation of public and private enemy property is general in scope, and extends both to acts of looting committed by individual soldiers for their private gain, and to the organized seizure of property undertaken within the framework of a systematic economic exploitation of occupied territory. Contrary to the submissions of the Defence, the fact that it was acts of the latter category which were made the subject of prosecutions before the International Military Tribunal at Nürnberg and in the subsequent proceedings before the Nürnberg Military Tribunals does not demonstrate the absence of individual criminal liability under international law for individual acts of pillage committed by perpetrators motivated by personal greed. In contrast, when seen in a historical perspective, it is clear that the prohibition against pillage was directed precisely against violations of the latter kind. [ ]"
[B. Evidentiary comment:]
P.2. Evidence of the appropriation of property by military forces after an attack on a village.
A. Legal source/authority and evidence:
The Prosecutor v. Germain Katanga and Mathieu Ngudjolo Chui, Case No. ICC - 01/04-01/07, Decision on confirmation of charges (PTC), 30 September 2008, para. 334-35:
334. The Chamber finds that the evidence brought by the Prosecution is sufficient to establish substantial grounds to believe that, in the aftermath of the 24 February 2003 attack on Bogoro, the FNI/FRPI combatants intentionally pillaged property belonging mainly to the Hema population in the village of Bogoro.432 The Chamber finds that there is sufficient evidence to establish substantial grounds to believe that pillaging was committed by the FNI/FRPI combatants after the village of Bogoro was effectively controlled by the FNI/FRPI433 and that pillaging continued for several days after the battle ended.434
335. The evidence tendered by the Prosecution demonstrates that the FNI/FRPI combatants pillaged a large number of houses. Some of the common features of the pillaging included the removal of the roofing sheets, the breaking of the doors, and the removal of furniture and tables. The evidence also shows that the roofs of shops and businesses in the centre of Bogoro were also removed and looted, and that even one school and the church were pillaged.
Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-A, Judgement (AC), 17 December 2004, paras. 559, 576:
"559. The Trial Chamber relied on the testimony of Witness TW01 (based on transcripts from the Blaskić trial), which stated that the HVO "came in trucks, on tractors, and they plundered the lower part of the village, taking away everything they could at the time"777, later being aided by civilians "who carried, on their backs and wheelbarrows, valuable things."778
"777.Blaskic,T.9270.
778. Blaskic, T. 9270"
"576. The Trial Chamber relied on Witness TW12819 who testified that he: "saw cars and buses being taken away or trucks, if somebody had them. [He] saw looting and they just took all those things that they could take away right now and right there. And they were talking to each other saying, Take this now and leave the rest here. We will come back later and take the other stuff. And they took the stuff to Brnjaci."820"
"819. Based on transcripts from the Blaskic trial.
820. Blaskic, T. 9532."
[B. Evidentiary comment:]
P.2.2. Evidence that civilians aided the military by taking property from other civilians.
A. Legal source/authority and evidence:
Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-A, Judgement (AC), 17 December 2004, para. 559:
"559. The Trial Chamber relied on the testimony of Witness TW01 (based on transcripts from the Blaskic trial), which stated that the HVO "came in trucks, on tractors, and they plundered the lower part of the village, taking away everything they could at the time"777, later being aided by civilians "who carried, on their backs and wheelbarrows, valuable things."778
"777.Blaskic,T.9270.
778. Blaskic, T. 9270"
[B. Evidentiary comment:]
P.2.3. Evidence that soldiers looted property from houses.
A. Legal source/authority and evidence:
Prosecutor v. Dario Kordić and Mario Čerkez, Case No. IT-95-14/2-A, Judgement (AC), 17 December 2004, para 576:
"576.The Trial Chamber relied on the testimonies of Witness AF and Witness AN, who witnessed soldiers looting valuables from the houses in Tulica and driving off with them;803 an HVO soldier pushing a wheelbarrow full of electronic equipment, including a television set, stereo and video-equipment;804 and HVO soldiers driving around in cars belonging to the villagers.805"
"803.WitnessAF,T.4060.
804.WitnessAN,T.15665-66.
805. Witness AN, T. 15665-66."
[B. Evidentiary comment:]
P.3. Evidence of the abusive and illegal requisitioning of civilian property.
A. Legal source/authority and evidence:
P Rust, UNWCC, LRTWC, vol IX, p. 70:
"It was alleged by the Prosecution that in September, 1944, a local inhabitant, Marcel Schmitt, was ordered and forced by the accused to supply horses and vehicles with which he had to carry German ammunition and that eh was compelled to repair German military bicycles, motor-cycles and electrical installations. It was also alleged that several other French civilians had been subjected to the same treatment, and that the acts of requisitioning were illegally effected in that no receipts were delivered to the owners of the horses and vehicles."
[B. Evidentiary comment:]
P.4. Evidence that pillage was committed in gangs by military personnel with arms or open force.
P.4.1. Evidence that pillage was committed in gangs by military personnel with arms or open force.
A. Legal source/authority and evidence:
F Holstein and Twenty Three Others, UNWCC, LRTWC, vol. VIII, p 24-25:
"On 27 June, the place was thoroughly pillaged and twelve houses were set on fire and burnt to the ground. On 28th June, at 1pm, the Germans left the locality."
"Eleven houses were set on fire and property of the inhabitants was looted."
"The village was also pillaged."
[B. Evidentiary comment:]
3.1.2. Evidence of isolated acts of theft or plunder.
P.5. Evidence of the appropriation of property by an individual soldier for their private gain.
P.5.1. Evidence of stealing from detainees or prisoners of war.
A. Legal source/authority and evidence:
Prosecutor v. Goran Jelisić, Case No. IT-95-10-T, Judgement (TC), 14 December 1999, para. 49:
"49. The factual basis attached to the guilty plea indicates that the accused stole money, watches, jewellery and other valuables from the detainees upon their arrival at Luka camp by threatening those who did not hand over all their possessions with death. [ ] The Trial Chamber holds that these elements are sufficient to confirm the guilt of the accused on the charge of plunder."
[B. Evidentiary comment:]
A. Legal source/authority and evidence:
Prosecutor v. Enver Hadihasanović and Amir Kubura, Case No. IT-01-47-T, Judgement (TC), 15 March 2006, para. 1874:
"1874. In view of the above evidence, the Chamber finds that plunder was committed repeatedly and extensively in Guča Gora in June 1993. The Chamber notes that household appliances, furniture, and clothing were stolen from the houses belonging to the inhabitants of Guča Gora. Contrary to the allegations of the Defence for the Accused Hadihasanović, the Chamber considers that the value of the plundered property and the repeated acts of plunder make it possible to conclude that the offence was serious."
Prosecutor v Milan Martić, Case No. IT-95-11-T, Judgement (TC), 12 June 2007, para. 382:
"382. The Trial Chamber heard evidence that Serb soldiers and policemen who participated in the attack looted shops and businesses and took tractors, cars and livestock.1125 The Trial Chamber finds that this looting was done on a large scale, noting in particular the evidence that nearly every household in Saborsko had a tractor stolen. The Trial Chamber finds that this appropriation resulted in grave consequences for the victims, taking into account the overall effect on the civilian population and the multitude of offences committed."
Prosecutor v. Mladen Naletilić and Vinko Martinović, Case No. IT-98-34-T, Judgement (TC), 31 March 2003, paras. 614, 624:
"614. [ ] Plunder may be a serious violation not only when one victim suffers severe economic consequences because of the appropriation, but also, for example, when property is appropriated from a large number of people. In the latter case, the gravity of the crime stems from the reiteration of the acts and from their overall impact."
"624. Although single instances of plunder, taken in isolation, may not reach the threshold of seriousness set out above in order to vest the Tribunal with subject matter jurisdiction, collectively they show a clearly serious pattern of plunder against a large part of the BH Muslim population in Mostar."
Prosecutor v. Dragoljub Kunarac et al., Cases No. IT -96-23-T and IT-96-23/1-T, Decision on Motion for Acquittal, 3 July 2000, paras. 15 16:
"15. 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. [ ]
16. [ ] It is inappropriate to include within that term a theft from only one person or from only a few persons in the one building. [ ]"
P.7. Evidence of the appropriation of a single item of high value.
A. Legal source/authority and evidence:
Prosecutor v. Mladen Naletilić and Vinko Martinović, Case No. IT-98-34-T, Judgement (TC), 31 March 2003, para. 614:
"614. [ ] Plunder may be a serious violation [ ] when one victim suffers severe economic consequences because of the appropriation [ ]."
B. Evidentiary comment:
In the Tadić Case, the Appeals Chamber held that under article 3, read together with article 1 of the ICTY Statute, only serious violations of international law fall under the jurisdiction of the ICTY.[1] The Appeals Chamber held that: "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."[2] The Appeals Chamber confirmed these findings in Kordić and Čerkez.[3]
Under the Rome Statute, the crime of pillage is contained in article 8(2)(b), under the category of "other serious violations of the laws and customs applicable in international armed conflict." It is therefore clear that, as with article 3 of the ICTY Statute, the Rome Statute requires the appropriation to be serious. In order for appropriation to be considered serious the property appropriated must have to have a sufficient value, which must be assessed on a case-by-case basis. An appropriation would also be considered serious where it affects a large number of people; the overall effect on the civilian population and the multitude of offences committed would render it serious.[4]
It should be noted, however, that under general international law, the question remains whether the appropriation of property is required to be serious in order to constitute the crime of "pillage". In Delalić et al, the Trial Chamber held that the offence of the unlawful appropriation of public and private property has been referred to as "pillage", "plunder" and "spoliation": under article 47 of the Hague Regulations and article 33 of the Geneva Convention IV the crime which is referred to is "pillage" and under the Nuremberg Charter, Control Council Law No 10, and the ICTYs Statute the crime which is referred to is "plunder".[5] The Trial Chamber held that the term "pillage", in its traditional sense, implied an element of violence not necessarily present in the offence of plunder that it was not necessary to determine whether the two terms were synonymous under international law. The Trial Chamber held that the plunder should be understood to embrace all forms of the unlawful appropriation of property for which individual criminal responsibility attaches under international law, including pillage.[6] The Trial Chamber noted that the crime of pillage included acts of looting committed by private soldiers for their private gain and that such incidents of looting had been the subject of Prosecutions before the International Military Tribunal at Nuremberg. The International Military Tribunal, however, in its application of the crime of pillage, held that the terms "plunder" "exploitation" and "spoliation" could be used interchangeably and applied to the widespread and systematized acts of dispossession and acquisition of property, which took place in violation of the rights of owners in the territories which were under the belligerent occupation of Nazi Germany during World War II. [7]
In Delalić the Trial Chamber held further that isolated instances of theft of personal property of modest value had been treated as war crimes in a number of trials before French Military Tribunals after the Second World War. The Trial Chamber referred, in this regard, to the Trial of Alois and Anna Bommer and their daughters (the Bommer case).[8] In this case, the accused were found guilty of the theft and receipt of stolen goods that had belonged to French citizens.[9] Although the accused were convicted of crimes under the French Penal Code, the Tribunal, when passing sentence, referred to an Ordinance of 28 August 1944, which likened such crimes to the war crime of pillage, as provided for in article 122 et seq of the French Code of Military Justice. The definition of pillage under the French Code of Military Justice defined pillage to include an element of violence. The Bommers had not used any violence to remove the property, however, the Tribunal used the Ordinance to liken the Bommers removal of the property to pillage. The United Nations War Crimes Commission, in its notes on the case, indicated that there had been no need for the Tribunal to use the Ordinance and that this seemed to have been done as the result of French Courts deeply-rooted tradition of dealing with war crimes on the basis of common penal law.[10] The United Nations War Crimes Commission (UNWCC) noted further that "the main point of the trial is that relating to theft as a war crime, technically distinct from pillage is likened to it and emerging as one of its varieties in the laws and customs of war as understood by one nation." It stated that war crimes were not limited to the crimes which appeared in the Hague Conventions or in existing documents relating to the laws and customs of war. It described this as a principle which had been recognized in the most recent instruments of international law and referred as authority to Article 6(b) of the Nuremberg Charter, which states that: " Such violations shall include, but shall not be limited to..".[11] Without discussing the correctness of the reasoning of the French Military Tribunal and the United Nations War Crimes Commission[12] in its notes on the case, the Bommer case and the other cases which the Trial Chamber referred in the Delalić case, therefore, seem to be authority for treating ordinary domestic crimes such as theft as war crimes, rather than an application, or extension, of the war crime of pillage.
The ICTY has, therefore, held that the crime of pillage applied to isolated incidents of the appropriation of property. The judgments on which it relied do not appear to support this conclusion. The IMT, consequently, only applied the crime of pillage to widespread and systemized acts of appropriating property. It is therefore not clear that the under general international law, the appropriation of property has to be extensive in order to constitute these crimes.
