Practice Relating to Rule 52. Pillage
With reference to Israel’s Law of War Booklet (1986), the Report on the Practice of Israel states: “IDF [Israel Defense Force] regulations … strictly prohibit any act of pillage or looting.”
Israel’s Manual on the Laws of War (1998) states:
Looting is the theft of enemy property (private or public) by individual soldiers for private purposes …
Today, at any rate, looting is absolutely prohibited. The Hague Conventions forbid looting in the course of battle as well as in occupied territory … Looting is regarded as a despicable act that tarnishes both the soldier and the IDF [Israel Defense Forces], leaving a serious moral blot … During the Galilee War, there were unfortunately cases of looting of civilians in Lebanon including a case where even officers – a major and captain – were demoted to the rank of private and [received] a long prison term.
Israel’s Manual on the Rules of Warfare (2006) states: “The rules of military jurisdiction contain several provisions that define breaches of the rules of warfare as military offences that can be prosecuted in a court of law, such as the rule of pillage.”
The manual further states:
Pillage is the theft of the enemy’s property (whether private or public) by individual soldiers for personal ends. In the Bible, pillage is depicted as a negative action, as for example in the incident of Achan, when Achan was put to death because he “took of the accursed thing” (Book of Joshua, Chapter VII). In other cultures, pillage was allowed, and the expectation of it was used by the conqueror as an incentive for its soldiers.
Today, pillage is strictly forbidden. The Hague rules forbid pillage both in time of battle and in conquered territory. The Geneva Conventions contain directives prohibiting the pillage of the wounded and sick, survivors of shipwrecks, civilians and cultural property. Pillage is considered as a despicable act, and stains the soldier and the army with a serious moral stain. In clause 74 of the IDF’s [Israel Defense Forces’] Military Justice Law, pillage is prohibited and the sentence for it is up to ten years’ imprisonment. During operations in Judaea, Samaria and the Gaza Strip there were unfortunate incidents of pillage of its inhabitants, and in one of the incidents officers of the rank of Major and Captain were even sentenced to reduction to the rank of private and long terms of imprisonment. Even soldiers who stole weapons in the course of the “Defensive Shield” campaign in 2002 were tried and sentenced to terms of imprisonment.
In addition, the manual states:
The court-martialling of officers for pillage, in accordance with the Military Jurisdiction Law referred to [above], is a good example of the domestic enforcement of the ban on pillage under international law.
The Manual on the Rules of Warfare (2006) is a second edition of the Manual on the Laws of War (1998).
Israel’s Nazis and Nazi Collaborators (Punishment) Law (1950) punishes persons who have committed war crimes, including “plunder of public or private property”.
Israel’s Military Justice Law (1955) states: “A soldier who loots or breaks into a house or another place in order to loot is liable to imprisonment.”
The Report on the Practice of Israel states that any claim of looting would be immediately investigated and all necessary measures taken. The report refers to Israeli Defense Force military court-martial cases in which soldiers were convicted of looting.
In its judgment in the Ayalon case in 2003, Israel’s Military Court of Appeal stated:
A combination of considerations – law, discipline, morality, and utility – illustrate the extent to which the offense of looting is bad for its perpetrators and for the entire IDF [Israel Defense Forces]. It violates the law, morality, military ethics, and impairs the operational capability and professionalism of the military organization as a combat body.
E.5 Universal combat ethics
The absolute prohibition on looting – that is, “theft or robbery of enemy property (private or public) by individual soldiers for their private purposes” (Y. Dinstein, Laws of War [Tel Aviv, 1983], p. 156) – was adopted in international customary law and was later enshrined in the Hague Regulations (articles 28 and 47) and in article 33 of the Fourth Geneva Convention Relative to the Protection of Civilian Persons in Time of War, of 1949. In many countries, this prohibition has been set forth in statute. For example, in the United States, section 103 of the Uniform Code of Military Justice states:
(a) All persons subject to this chapter will secure all public property taken from the enemy for the service of the United States, and shall give notice and turn over to the proper authority without delay all captured or abandoned property in their possession, custody, or control.
(b) any person subject to this chapter who-
(1) fails to carry out the duties prescribed in subsection (a);
(2) buys, sells, trades, or in any way deals in or disposes of captured or abandoned property, whereby he receives or expects any profit, benefit, or a advantage to himself or another directly or indirectly connected with himself; or
(3) engages in looting or pillaging;
shall be punished as a court-martial may direct.
An example of adoption in international law of the absolute prohibition on looting can be found in the judgment of the international criminal tribunal that was established in regard to war crimes in Yugoslavia (International Criminal Tribunal for the Former Yugoslavia), which held that acts of looting, such as those that are motivated by greed, are war crimes for which the looter is to be held criminally liable:
[I]t 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 Nurnberg and in the subsequent proceedings before the Nurnberg 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. Consistent with this view, isolated instances of theft of personal property of modest value were treated as war crimes in a number of trials before French Military Tribunals following the Second World War. Commenting upon this fact, the United Nations War Crimes Commission correctly described such offences as “war crimes of the more traditional type”. Prosecutor v. Zejnil Delalic et al
, ICTY Case no. IT-96-21-T (Celebici
camp case) Trial Chamber, 16 November 1998 at par. 590.
Israel’s IDF General Staff Order No. 50.0303 of 1977 states that all commanders must ensure that their subordinates “will not commit acts of looting”.
In 2010, in a position paper submitted to the Public Commission to Examine the Maritime Incident of 31 May 2010 (the Turkel Commission), established by the Israeli Government to examine the Gaza flotilla incident, Israel’s Military Advocate General stated:
The paradigmatic example of that [a “prima facie
breach of an absolute prohibition in the law of armed conflict”] is the taking of private property (which is not battle equipment, which can be taken as booty) – such as money or personal belongings of various types. In such a case, the very taking constitutes a prima facie breach of the law of armed conflict and raises suspicion of the crime of plundering, and thus the duty to investigate arises immediately
[emphasis in original]
Israel’s Military Justice Law (1955), which prohibits looting, applies to soldiers but also to “a person employed in the service of the Army, or a person employed in an undertaking which serves the Army and which the Minister of Defence has defined, by order, as a military service, … a person employed on a mission on behalf of the Army”, “even though they may not be soldiers”.