Rule 122. Pillage of the personal belongings of persons deprived of their liberty is prohibited.
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]
[1] Lieber Code, Article 44 (cited in Vol. II, Ch. 16, § 470); Brussels Declaration, Articles 18 and 39 (ibid., §§ 471–472); Oxford Manual, Article 32(a) (ibid., § 473).
[2] Hague Regulations, Article 47 (ibid., § 460).
[3] Report of the Commission on Responsibility (ibid., § 475); IMT Charter (Nuremberg), Article 6(b) (ibid., § 465).
[4] Third Geneva Convention, Article 18 (cited in Vol. II, Ch. 37, § 241); Fourth Geneva Convention, Article 97 (ibid., § 242).
[5] Fourth Geneva Convention, Article 33, second paragraph (cited in Vol. II, Ch. 16, § 466).
[6] See, e.g., the military manuals of Canada (cited in Vol. II, Ch. 37, § 245), Netherlands (ibid., § 246) and United States (ibid., § 247).
[7] See, e.g., the legislation of Australia (ibid., § 249), Bulgaria (ibid., § 250), Chad (ibid., § 251), Chile (ibid., § 252), Colombia (ibid., § 253), Cuba (ibid., § 254), El Salvador (ibid., § 255), Greece (ibid., § 256), Iraq (ibid., § 257), Ireland (ibid., § 258), Italy (ibid., § 259), New Zealand (ibid., § 260), Nicaragua (ibid., §§ 261–262), Nigeria (ibid., § 263), Norway (ibid., § 264), Paraguay (ibid., § 265), Peru (ibid., § 266), Singapore (ibid., § 267), Spain (ibid., §§ 268–269), United Kingdom (ibid., §§ 270–271), Bolivarian Republic of Venezuela (ibid., § 272) and Yemen (ibid., § 273); see also the draft legislation of Argentina (ibid., § 248).
[8] ICTY Statute, Article 3(e) (cited in Vol. II, Ch. 16, § 480).
[9] ICTY, Tadić case, Second Amended Indictment and Judgment (cited in Vol. II, Ch. 37, § 279).
[10] ICTY, Delalić case, Initial Indictment and Judgment (ibid., § 281).
[11] Additional Protocol II, Article 4(2)(g) (adopted by consensus) (ibid., § 243).
[12] ICTY Statute, Article 3(e) (cited in Vol. II, Ch. 16, § 480); ICTR Statute, Article 4(f) (ibid., § 482); Statute of the Special Court for Sierra Leone, Article 3(f) (ibid, § 469).
[13] UN Secretary-General, Report on the establishment of a Special Court for Sierra Leone (cited in Vol. II, Ch. 37, § 276).
[14] UN Secretary-General’s Bulletin, Section 7.2 (ibid., § 244).
[15] See, e.g., the legislation of Colombia (ibid., § 253), New Zealand (ibid., § 260), Nicaragua (ibid., § 262), Nigeria (ibid., § 263), Singapore (ibid., § 267), Spain (ibid., §§ 268–269), Bolivarian Republic of Venezuela (ibid., § 272) and Yemen (ibid., § 273); see also the legislation of Bulgaria (ibid., § 250), Italy (ibid., § 259), Nicaragua (ibid., § 261) Paraguay (ibid., § 265) and Peru (ibid., § 266), the application of which is not excluded in time of non-international armed conflict, and the draft legislation of Argentina (ibid., § 248).
[16] ICTY, Jelisić case, Initial Indictment and Judgment (ibid., § 280).
[17] Third Geneva Convention, Article 18 (ibid., § 241).
[18] Fourth Geneva Convention, Article 97 (ibid., § 242).