Table of contents:
4.1. Intent to deprive the owner of the property.
P.8. Evidence inferred from an utterance, a document or a deed.
P.8.2. Evidence that the perpetrator threatened detainees with death.
P.8.4. Evidence that the perpetrator planned large-scale operations, including plunder.
P.8.5. Evidence that the perpetrator threatened people to hand over their possessions.
P.9. Evidence inferred from a circumstance.
P.9.1. Evidence that the perpetrator ordered the appropriation of property.
P.9.2. Evidence that the perpetrator and soldiers were robbing apartments during expulsions.
P.9.3. P.9.3.Evidence that the perpetrators soldiers and subordinate were present at the plunder.
P.9.4. Evidence that the perpetrator was acting in a supervisory role.
4.2. Intent to appropriate the property for private or personal use.
Element:
The Prosecutor v. Ante Gotovina et al., Case No. ICTR-06-90, Judgement (TC), 15 April 2011, para. 1782:
1782. In assessing whether the remaining acts of appropriation were unlawful, the Trial Chamber considered in particular evidence from witnesses who either observed the incidents, or otherwise could provide information about the circumstances surrounding these acts, as well as documentary evidence. In relation to a number of incidents, the appropriated items were unspecified. One incident of appropriation of property in Srb, Donji Lapac municipality from 8 August 1995, included the taking away of unspecified items which were then transported in a significant number of military and private vehicles and civilian buses commandeered by the HV for the duration of two to four days. Considering the large amount of items transported away from the town over several days, the Trial Chamber finds that the appropriation of at least of some if not most of these items could not plausibly be justified by military necessity. Similar considerations apply to the incident in Kistanje town on 9 August 1995, where 150-200 individuals were found to take items away. With regard to the remaining incidents involving unspecified items, the Trial Chamber considered in particular that in some instances acts of plunder were carried out simultaneously and by the same persons as acts of destruction. The Trial Chamber also considered that in other incidents members of Croatian military forces and civilians were plundering together, or at least at the same time and the same place and that in many instances items were taken from many houses. The Trial Chamber further considered that in the overwhelming number of incidents in which the appropriated items were specified, the possibility of military necessity could clearly be ruled out. Based on all the foregoing, the Trial Chamber finds that also for the remaining incidents involving unspecified items, there is no reasonable possibility that their appropriation was justified by military necessity. The Trial Chamber finds that their appropriation was unlawful.
4.1.I ntent to deprive the owner of the property.
P.8. Evidence inferred from an utterance, a document or a deed.
ICC, The Prosecutor v. Bosco Ntaganda , ICC-01/04-02/06, Decision on the Charges (PTC), 9 June 2014, para. 131:
"The Chamber now turns to the specific subjective elements related to counts 3, 11 and 17. It is established by the evidence presented that Mr. Ntaganda intended the civilian population as such or individual civilians not taking direct part in hostilities to be the object of the attack (count 3); his aforementioned criminal orders were either directed expressly against the Lendu or failed to distinguish between those who were taking a direct part in hostilities and those who were not. Concerning the crime of pillaging (count 11), the Chamber specifies that Mr. Ntaganda possessed the specific intent to deprive the rightful owner of his or her property and to appropriate it for private or personal use. His use of the expression "piga na kuchaji" specifically concerns the appropriation of goods as it means to fight and pillage everything. Moreover, as this expression extends to any goods encountered, it necessarily precludes appropriations limited to those justified by military necessity. Finally, Mr. Ntaganda intended the Mongbwalu church to be the object of the attack (count 17), as reflected by his instruction to a subordinate to destroy the church, if necessary."
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 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.8.2. Evidence that the perpetrator threatened detainees with death.
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:
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.8.4. Evidence that the perpetrator planned large-scale operations, including plunder.
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. 625:
"625. Neither of the accused has alleged the lawfulness of the taking of property from BH Muslim private individuals. The plunder did not involve property related to military operations or the needs of the occupant. Some of the evidence presented at trial explicitly refers to the planning of largescale operations including plunder against BH Muslims.1542 Other evidence points to systematic plunder due to the choice of BH Muslim apartments among possible targets as well as the means employed during the plunder.1543 The Chamber is satisfied that private property was unlawfully appropriated in Mostar following the attack on 9 May 1993 in a systematic way. The Chamber is satisfied that property was chosen because of its monetary value, not its military usefulness.1544"
1542. Witness P, T 2280; witness AC, T 7904; exhibit PP 456.
1543. Witness CC, T 4423; witness YY, T 7275-7276; exhibit PP 456.1.
1544. See especially witness U, T 2927, witness WW, T 7032, witness F, T 1106; exhibit PP 456.
[B. Evidentiary comment:]
P.8.5. Evidence that the perpetrator threatened people to hand over their possessions.
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 plea48 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 accused was sometimes accompanied by guards or Monika49 but he mostly acted alone. The Trial Chamber holds that these elements are sufficient to confirm the guilt of the accused on the charge of plunder."
"48. Factual basis, pp. 17-18.
49. Factual basis, Witness AA, p. 18."
[B. Evidentiary comment:]
P.9. Evidence inferred from a circumstance.
P.9.1. Evidence that the perpetrator ordered the appropriation of property.
A. Legal source/authority and evidence:
Prosecutor v. Mladen Naletilić and Vinko Martinović, Case No. IT-98-34-T, Judgement (TC), 31 March 2003, paras. 619, 621 622, 627, 630:
"619. Witness U (a BH Muslim) testified that, on 9 May 1993, HVO units not engaged in combat were involved in evicting people and taking property; ten HVO soldiers entered his apartment and, while allegedly looking for weapons, took away some gold jewellery, a computer and other valuables.1520 On that same day, seven armed men evicted Witness WW, her family and all BH Muslims living in the same building from their apartments in the DUM area;1521 on that occasion, Vinko Martinovi} ordered a soldier to drive away a car belonging to one of the neighbours of Witness WW.1522 "
"1520. Witness U, T 2927-2928.
1522. Witness WW, T 7014-7021. When witness WW returned to her apartment around mid-June, she found it emptied of valuables, witness WW, T 7032. These testimonies are corroborated by witnesses participating in the attack on Mostar. Witness Falk Simang, a mercenary fighting in the KB, admitted that after the attack on Mostar KB soldiers drove BH Muslims out of their homes and took away all valuables they could carry, witness Falk Simang, T 3830. Witness Q, a Danish mercenary fighting with the Vinko [krobo ATG, described an instance when soldiers from his unit met at Mladen Naletili} headquarters and went to loot valuables in Muslim houses using civilian cars, witness Q, T 2375."
"621. Between the end of July and 17 September 1993, Witness OO was repeatedly forced by the Vinko [krobo ATG, under the overall authority of Vinko Martinovic, to carry looted household appliances in areas of Mostar far away from the combat zones of the Bulevar.1529 Witness F testified that in the period between July 1993 and March 1994 he was once forced to loot apartments in an area under the responsibility of Vinko Martinovic, loading the booty on trucks that soldiers would drive away. Vinko Martinovics soldiers were there and he recognised Zubac, a subordinate of Martinovic, acting as commander.1530 According to witness II, Vinko Martinovic was never present during the plunder and it was his subordinates, who chose the prisoners.1531
622. Witness Sulejman Had`isalihovi}, after being captured by the HVO on 25 June 1993,1532 was forced by HVO soldiers to loot apartments in Mostar together with other prisoners, mostly at night.1533 This testimony is consistent with the statement of witness AC that Baja and other men were taking property away at night from BH Muslim apartments.1534 Witness F was forced to loot apartments after June 1993, loading the booty on trucks that soldiers would drive away.1535 Witness II was frequently ordered by soldiers from the Vinko [krobo ATG to loot abandoned apartments between the end of July and December 1993.1536 Witness AB testified that he was forced to loot apartments many times from mid-August 1993 onwards;1537 in one of these instances, Vinko Martinovi} was present and, while not explicitly ordering the looting, did nothing to prevent or stop it.1538"
"1529. Witness OO, T 5943.
1530. Witness F, T 1106-1108.
1531. Witness II, T 4962.
1532. Witness Sulejman Had`isalihovic, T 1222.
1532. Witness Sulejman Had`isalihovic, T 1222.
1533. Witness Sulejman Had`isalihovic, T 1247.
1534. Witness AC, T 7912.
1535. Witness F, T 1106.
1536. Witness II, T 4962.
1537. Witness AB, T 7867. The Prosecution Final Brief, p 121, refers instead to witness ZZ.
1538. Witness AB, T 7880-7881."
"627. With regard to the incidents occurring in the DUM area on 13 June 1993, it has been established that a large-scale operation of plunder, in connection with evictions, was carried out by soldiers acting under the supervision of Vinko Martinovic. Vinko Martinovic ordered the modalities of the evictions; such modalities included plunder of BH Muslim property in the neighbourhood. He organised his men during this operation and took no action even after police had inquired about the events.1548 Vinko Martinovic is therefore responsible under Articles 3(e) and 7(1) of the Statute."
"1548. Exhibit PP 456.1."
"630. Plunder was carried out by HVO soldiers directly1557 or forcing prisoners to do it for them.1558 In this respect, Mladen Naletilic was giving specific orders as to the modalities of the operations.1559"
"1557. Witness U, T 2927-2928; witness GG, T 4756.
1558. Witness Sulejman Hadzisalihovic, T 1246; Witness II, T 4962; witness CC, T 4423-4426.
1559. Exhibits PP 456.1, and PP 456.2. These exhibits are reports by two different officials at the Command of the HVO 1st Military Police Battalion in Mostar, alleging that soldiers participating in the operation were "Tutas men" acting on "Tutas orders." See also witness AC, T 7907-7911, stating that his unit, the Benko Penavic ATG under the authority of Mladen Naletilic, was often divided into groups, one of which had the task to ethnically cleanse a portion of Mostar. Specific instructions were given that plunder of Muslim property was part and parcel of these cleansing operations."
[B. Evidentiary comment:]
P.9.2. Evidence that the perpetrator and soldiers were robbing apartments during expulsions.
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. 620:
"620. Two reports by the Military Police in Mostar recount that, on 13 June 1993, Vinko Martinovic with 40 armed soldiers was expelling BH Muslims from their apartments in the DUM area on Mladen Naletilics orders. During these expulsions, apartments were robbed; the looting did not stop even after the police had inquired into the situation.1523 Witness GG was dispossessed of his car and other belongings by six HVO soldiers between the end of May and middle-June 1993 in the DUM area.1524 Exhibits PP 456.4 and PP 458.1 show protests from the ABiH 4th Corps Commander Arif Pacalic for large evictions of civilians from the DUM area on 13 and 14 June 1993; the first of these documents also reports robbery from ousted people.1525 Witness P testified that in the days before 14 June 1993 violent evictions of BH Muslim residents in Mostar involved robbery of private property.1526 A memorandum by an international observer states that evictions of BH Muslims on 12 and 13 June 1993 took place in upper middle-class neighbourhoods where the most desirable properties were to be found. In particular, on 13 June 1993 around 5 p.m., thirty soldiers evicted BH Muslims from their apartments, and proceeded to take away the name-plates on the doors.1527 An ECMM report of 14 June 1993 also corroborates these findings, describing expulsions and dispossession of apartments in the DUM and Vatikana areas of Mostar.1528"
"1523. Exhibits PP 456.1, PP 456.2. The latter document explicitly defines the course of conduct by Vinko Martinovic as "pillage".
1524. Witness GG, T 4757 (confidential).
1525. Exhibits PP 456.4, PP 458.1.
1526. Witness P, T 2280-2281 (confidential).
1527. Exhibit PP 456.
1528. Exhibit PP 456.3."
[B. Evidentiary comment:]
P.9.3. P.9.3.Evidence that the perpetrators soldiers and subordinate were present at the plunder.
A. Legal source/authority and evidence:
Prosecutor v. Mladen Naletilić and Vinko Martinović, Case No. IT-98-34-T, Judgement (TC), 31 March 2003, paras. 621, 628, 631:
"621. Between the end of July and 17 September 1993, Witness OO was repeatedly forced by the Vinko krobo ATG, under the overall authority of Vinko Martinovic, to carry looted household appliances in areas of Mostar far away from the combat zones of the Bulevar.1529 Witness F testified that in the period between July 1993 and March 1994 he was once forced to loot apartments in an area under the responsibility of Vinko Martinovic, loading the booty on trucks that soldiers would drive away. Vinko Martinovics soldiers were there and he recognised Zubac, a subordinate of Martinovic, acting as commander.1530 According to witness II, Vinko Martinovic was never present during the plunder and it was his subordinates, who chose the prisoners.1531"
"1529. Witness OO, T 5943.
1530. Witness F, T 1106-1108.
1531. Witness II, T 4962.
1532. Witness Sulejman Had`isalihovic, T 1222."
"628. Regarding the other plunder incidents, Vinko Martinovic was present on some occasions when his soldiers committed acts of looting;1549 sometimes explicitly organising how plunder should take place.1550 On other occasions, apartments were looted by soldiers in areas under his responsibility1551 and by soldiers subordinate to Martinovic himself, even if he was not present on the spot.1552 The evidence shows that Vinko Martinovic knew that plunder was occurring in several instances during this period and failed to take the necessary and reasonable measures to prevent it or to punish the perpetrators.1553 The Chamber finds him responsible of plunder in locations other than the DUM neighbourhood under Articles 3(e) and 7(3) of the Statute."
"1549. Witness WW, T 7020; witness AB, T 7880. The Chamber has however not found that by 9 May 1993 the Vinko [krobo ATG was formally established; due to this uncertainty, and in favour of the accused, the incident recounted by witness WW will therefore not be regarded as a ground for responsibility under Article 7(3) of the Statute.
1550. Witness OO, T 5943.
1551. Witness F, T 1106-1108.
1552. Witness F, T 1107; witness II, T 4962; witness OO, T 5943."
"631. Mladen Naletilic knew that this kind of operations was being carried out by soldiers under his authority since he was present in some instances of plunder.1560 He was therefore put on notice, but disregarded his duties of taking reasonable measures to prevent plunder or punish the perpetrators. The Chamber finds Mladen Naletilic responsible for plunder committed in Mostar by the KB, including the Vinko krobo ATG, pursuant to Articles 3(e) and 7(3) of the Statute."
"1560. Witness Falk Simang, T 3830."
[B. Evidentiary comment:]
P.9.4. Evidence that the perpetrator was acting in a supervisory role.
A. Legal source/authority and evidence:
Prosecutor v. Mladen Naletilić and Vinko Martinović, Case No. IT-98-34-T, Judgement (TC), 31 March 2003, paras. 627 628:
"627. With regard to the incidents occurring in the DUM area on 13 June 1993, it has been established that a large-scale operation of plunder, in connection with evictions, was carried out by soldiers acting under the supervision of Vinko Martinovic. Vinko Martinovic ordered the modalities of the evictions; such modalities included plunder of BH Muslim property in the neighbourhood. He organised his men during this operation and took no action even after police had inquired about the events.1548 Vinko Martinovic is therefore responsible under Articles 3(e) and 7(1) of the Statute.
628. Regarding the other plunder incidents, Vinko Martinovic was present on some occasions when his soldiers committed acts of looting;1549 sometimes explicitly organising how plunder should take place.1550 On other occasions, apartments were looted by soldiers in areas under his responsibility1551 and by soldiers subordinate to Martinovic himself, even if he was not present on the spot.1552 The evidence shows that Vinko Martinovic knew that plunder was occurring in several instances during this period and failed to take the necessary and reasonable measures to prevent it or to punish the perpetrators.1553 The Chamber finds him responsible of plunder in locations other than the DUM neighbourhood under Articles 3(e) and 7(3) of the Statute."
"1548. Exhibit PP 456.1.
1549. Witness WW, T 7020; witness AB, T 7880. The Chamber has however not found that by 9 May 1993 the Vinko [krobo ATG was formally established; due to this uncertainty, and in favour of the accused, the incident recounted by witness WW will therefore not be regarded as a ground for responsibility under Article 7(3) of the Statute.
1550. Witness OO, T 5943.
1551. Witness F, T 1106-1108.
1552. Witness F, T 1107; witness II, T 4962; witness OO, T 5943."
[B. Evidentiary comment:]
4.2.I ntent to appropriate the property for private or personal use.
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. 1875:
"1875. The Chamber finds that property such as household appliances, furniture, and clothing was stolen. Although the rules on war booty authorised the ABiH to seize private property that could be used directly for military purposes, the Chamber considers that household appliances, furniture and clothing do not fall into the category of property having direct military use. Additionally, contrary to the rules on war booty established by the ABiH Supreme Command, the evidence does not demonstrate that receipts were given in exchange for the confiscation of this property. The Chamber therefore concludes that the property in question was unlawfully and deliberately appropriated and that such appropriation went beyond the scope of war booty."
IG Farben Trial, UNWCC, LRTWC, Vol X, p 50:
"If management had been taken over in a manner that indicated a mere temporary control or operation for the duration of the hostilities, there might be some merit to the defence. The evidence, however, shows that the interests which Farben proceeded to acquire, contrary to the wishes of the owners, were intended to be permanent. The evidence further establishes that the action of the owners was involuntary, and that the transfer was not necessary to the maintenance of the German army of occupation. As the action of Farben proceeded to acquire, contrary to the wishes of the owners, were intended to be permanent. The evidence further establishes that the action of the owners was involuntary, and that the transfer was not necessary to the maintenance of the German army of occupation."
Krupp Trial, UNWCC, LRTWC, Vol X, p 73:
"It was alleged by the Prosecution that these acts of plunder and spoliation were carried out in consequence of a deliberate design and policy on behalf of the German Government. The territories occupied by Germany had been exploited in a ruthless way far beyond the needs of the army of occupation and in disregard of the needs of the local economy, and were out of proportion to the resources of the occupied territories.
B. Evidentiary comment:
This element specifying that the perpetrator had the intent to deprive the owner of the property in question and to appropriate the property for private or personal use is in addition to the intent and knowledge required by Article 30 of the Rome Statute. Like genocide and persecution, the crime of pillage requires a specific intent.
The judgments of the ICTY and IMT tend to infer the requisite intent from the circumstances under which the appropriation took place. In other words, the appropriation had been carried out in such a way that it could be concluded that the persons appropriating the property did so with intent.
It should also be noted that the required intention to appropriate the property "for private or personal use" indicates that the person appropriating the property should know that the appropriation is not justified by military necessity".[13] As stated in the Simic Trial Judgment, para. 100:
"179. Articles 48 and 49, The Hague Convention (IV).
180. Article 52, The Hague Convention (IV).
181. Article 53, para. 2, The Hague Convention (IV).
182. Article 51 reads: (1) No contribution should be collected except under a written order, and on the responsibility of the commander-in-chief. (2) The collection of the said contributions shall only be effected as far as possible in accordance with the rules of assessment and incidence of taxes in force. (3) For every contribution a receipt shall be given to the contributors. For lawful appropriation of property see also Naletilic Trial Judgement, para. 616."
