Rule 49. War Booty

Rule 49. The parties to the conflict may seize military equipment belonging to an adverse party as war booty.
State practice establishes this rule as a norm of customary international law applicable in international armed conflicts.
The rule whereby a party to the conflict may seize military equipment belonging to an adverse party as war booty is set forth in the Lieber Code.[1] It reflects long-standing practice in international armed conflicts. It is also implicit in the Hague Regulations and the Third Geneva Convention, which require that prisoners of war must be allowed to keep all their personal belongings (as well as protective gear).[2]
This rule is also contained in numerous military manuals.[3] As Australia’s Defence Force Manual explains, “booty includes all articles captured with prisoners of war and not included under the term ‘personal effects’”.[4] The rule has also been referred to in case-law.[5]
According to the Lieber Code, war booty belongs to the party which seizes it and not to the individual who seizes it.[6] This principle is reflected in numerous military manuals.[7] It is also supported in national case-law.[8] As a result, individual soldiers have no right of ownership over or possession of military equipment thus seized. Some manuals explicitly state that it is prohibited for soldiers to take home “war trophies”.[9] It has been reported that in the United Kingdom soldiers have been court-martialled for trying to smuggle out weapons taken from the adversary following the Gulf War.[10]
Practice also indicates that booty may be used without restriction and does not have to be returned to the adversary.[11]
With respect to non-international armed conflicts, no rule could be identified which would allow, according to international law, the seizure of military equipment belonging to an adverse party, nor was a rule found which would prohibit such seizure under international law.
Numerous military manuals define war booty as enemy military objects (or equipment or property) captured or found on the battlefield.[12] Several other manuals specify that it must concern movable “public” property.[13] With respect to private property found on the battlefield, the UK Military Manual and US Field Manual specify that to the extent that they consist of arms, ammunition, military equipment and military papers, they may be taken as booty as well.[14] In the Al-Nawar case before Israel’s High Court in 1985, Judge Shamgar held that:
All movable State property captured on the battlefield may be appropriated by the capturing belligerent State as booty of war, this includes arms and ammunition, depots of merchandise, machines, instruments and even cash.
All private property actually used for hostile purposes found on the battlefield or in a combat zone may be appropriated by a belligerent State as booty of war.[15]
The definition of booty as used by Judge Shamgar goes beyond military equipment and relies on the wider definition found in Article 53 of the Hague Regulations, which defines the objects that may be seized in occupied territory as including “cash, funds, and realizable securities which are strictly the property of the State, depots of arms, means of transport, stores and supplies, and, generally, all movable property belonging to the State which may be used for military operations”.[16] To the extent that these objects may be seized, they are in effect war booty, even though technically they may not be captured or found on the battlefield. This link is also made in the military manuals of France, Germany and the Netherlands.[17] Germany’s manual, for example, states that “movable government property which may be used for military purposes shall become spoils of war”.
The capture of military medical units, both mobile and fixed, and military medical transports is governed by the First Geneva Convention.[18] Mobile medical units must be reserved for the care of the wounded and sick. Fixed medical units may not be diverted from their intended purpose as long as they are required for the care of the wounded and sick.
Additional Protocol I lays down further rules on medical ships and aircraft.[19] The capture of the materiel and buildings of military units permanently assigned to civil defence organizations is also regulated in Additional Protocol I.[20]
[1] Lieber Code, Article 45 (cited in Vol. II, Ch. 16, § 4).
[2] Hague Regulations, Article 4 (ibid., § 2); Third Geneva Convention, Article 18, first paragraph (ibid., § 3).
[3] See, e.g., the military manuals of Argentina (ibid., § 5), Australia (ibid., §§ 6–7), Belgium (ibid., § 9), Benin (ibid., § 10), Cameroon (ibid., § 12), Canada (ibid., §§ 13–14), Dominican Republic (ibid., § 15), France (ibid., § 16), Germany (ibid., § 17), Hungary (ibid., § 18), Israel (ibid., § 19), Kenya (ibid., § 20), Madagascar (ibid., § 21), Netherlands (ibid., § 22), New Zealand (ibid., § 23), Spain (ibid., § 25), Togo (ibid., § 26), United Kingdom (ibid., § 27) and United States (ibid., §§ 29–31).
[4] Australia, Defence Force Manual (ibid., § 7).
[5] See, e.g., Israel, High Court, Al-Nawar case (ibid., § 39).
[6] Lieber Code, Article 45 (ibid., § 4).
[7] See, e.g., the military manuals of Argentina (ibid., § 5), Australia (ibid., §§ 6–7), Benin (ibid., § 10), Bosnia and Herzegovina (ibid., § 11), Canada (ibid., § 13), Germany (ibid., § 17), Hungary (ibid., § 18), Israel (ibid., § 19), Kenya (ibid., § 20), Madagascar (ibid., § 21), Netherlands (ibid., § 22), New Zealand (ibid., § 23), Spain (ibid., § 25), Togo (ibid., § 26), United Kingdom (ibid., § 27) and United States (ibid., § 29).
[8] See, e.g., Israel, High Court, Al-Nawar case (ibid., § 39) and United States, Court of Claims, Morrison case (ibid., § 41).
[9] See, e.g., the military manuals of Canada (ibid., § 14) and United States (ibid., § 32).
[10] See the Report on UK Practice (ibid., § 40).
[11] See, e.g., the military manuals of Benin (ibid., § 10), Cameroon (ibid., § 12), France (ibid., § 16), Kenya (ibid., § 20), Madagascar (ibid., § 21), Netherlands (ibid., § 22) and Togo (ibid., § 26).
[12] See, e.g., the military manuals of Australia (ibid., §§ 6–7), Benin (ibid., § 10), Cameroon (ibid., § 12), France (ibid., § 16), Hungary (ibid., § 18), Kenya (ibid., § 20), Madagascar (ibid., § 21), Netherlands (ibid., § 22), Spain (ibid., § 25) and Togo (ibid., § 26).
[13] See, e.g., the military manuals of Argentina (ibid., § 5), Canada (ibid., § 13), Germany (ibid., § 17), New Zealand (ibid., § 23), United Kingdom (ibid., § 27) and United States (ibid., § 29).
[14] United Kingdom, Military Manual (ibid., § 27); United States, Field Manual (ibid., § 29).
[15] Israel, High Court, Al-Nawar case (ibid., § 39).
[16] Hague Regulations, Article 53 (ibid., § 245).
[17] France, LOAC Manual (ibid., § 16); Germany, Military Manual (ibid., § 17); Netherlands, Military Manual (ibid., § 22).
[18] First Geneva Convention, Articles 33 and 35.
[19] Additional Protocol I, Articles 22, 23 and 30.
[20] Additional Protocol I, Article 67.