Rule 122. Pillage of the personal belongings of persons deprived of their liberty is prohibited.Volume II, Chapter 37, Section E.
State practice establishes this rule as a norm of customary international law applicable in both international and non-international armed conflicts. This rule is an application of the general prohibition of pillage (see Rule 52).
The prohibition of pillage is a long-standing rule of customary international law already recognized in the Lieber Code, the Brussels Declaration and the Oxford Manual.
[1] The prohibition of pillage was first codified in the Hague Regulations.
[2] Pillage (or plunder) is identified as a war crime in the Report of the Commission on Responsibility set up after the First World War, as well as in the Charter of the International Military Tribunal (Nuremberg) established following the Second World War.
[3] The Third Geneva Convention provides that all effects and articles of personal use belonging to a prisoner of war, including for personal protection, shall remain in his or her possession, and the Fourth Geneva Convention permits internees to retain articles of personal use.
[4] The Fourth Geneva Convention also prohibits pillage.
[5]The prohibition of pillage of detainees is contained in some military manuals.
[6] The pillage of detainees is an offence under the legislation of numerous States.
[7]Pillage is a war crime under the Statute of the International Criminal Tribunal for the former Yugoslavia.
[8] In the
Tadić case before the International Criminal Tribunal for the former Yugoslavia in 1995, the accused was charged with plundering the personal property of captured persons but was acquitted on this charge in 1997 because of lack of evidence.
[9] In the
Delalić case before the International Criminal Tribunal for the former Yugoslavia in 1998, two of the accused were charged with the plunder of money, watches and other valuable property belonging to persons detained in the Čelebići prison-camp. However, the Trial Chamber dismissed the charge, finding that it lacked evidence that the property taken was “of sufficient monetary value for its unlawful appropriation to involve grave consequences for the victims”; therefore, it could not find that the violation of international humanitarian law was “serious”.
[10]Article 4 of Additional Protocol II prohibits the pillage of persons whose liberty has been restricted.
[11] Such pillage is a war crime under the Statutes of the International Criminal Tribunals for the former Yugoslavia and for Rwanda and of the Special Court for Sierra Leone.
[12] In his report on the establishment of a Special Court for Sierra Leone, the UN Secretary-General qualified violations of Article 4 of Additional Protocol II as violations of customary international law.
[13] The UN Secretary-General’s Bulletin on observance by United Nations forces of international humanitarian law prohibits pillage of any person not, or no longer, participating in military operations.
[14]The pillage of detainees is an offence under the legislation of numerous States.
[15]In the
Jelisić case before the International Criminal Tribunal for the former Yugoslavia, the accused was charged under Article 3(e) of the Tribunal’s Statute with the plunder of private property in violation of the laws and customs of war and the defendant pleaded guilty to the offence of having stolen money, watches, jewellery and other valuables from detainees upon their arrival at Luka camp in Bosnia and Herzegovina.
[16]No official contrary practice was found with respect to either international or non-international armed conflicts.
Practice contained in military manuals shows that this rule prohibits the taking of the personal belongings of detainees with the intent of unlawful appropriation. It does not prohibit the taking as war booty of objects which could be used in military operations, such as weapons and other military equipment, in international armed conflicts (see Rule 49).
The Third Geneva Convention provides that prisoners of war must remain in possession of their helmets, gas masks and like articles issued for personal protection. It sets out a specific procedure for the taking and deposit of sums of money carried by prisoners of war and for the withdrawal of articles of value for security reasons.
[17] A similar procedure for the taking and deposit of monies, cheques, bonds and other valuables in the possession of civilian internees is set out in the Fourth Geneva Convention.
[18]