Practice Relating to Rule 122. Pillage of the Personal Belongings of Persons Deprived of Their Liberty

Note: For practice concerning pillage in general, see Rule 52.
Geneva Convention III
Article 18 of the 1949 Geneva Convention III provides:
All effects and articles of personal use, except arms, horses, military equipment and military documents, shall remain in the possession of prisoners of war, likewise their metal helmets and gas masks and like articles issued for personal protection. Effects and articles used for their clothing or feeding shall likewise remain in their possession, even if such effects and articles belong to their regulation military equipment.
At no time should prisoners of war be without identity documents. The Detaining Power shall supply such documents to prisoners of war who possess none.
Badges of rank and nationality, decorations and articles having above all a personal or sentimental value may not be taken from prisoners of war.
Sums of money carried by prisoners of war may not be taken away from them except by order of an officer, and after the amount and particulars of the owner have been recorded in a special register and an itemized receipt has been given, legibly inscribed with the name, rank and unit of the person issuing the said receipt. Sums in the currency of the Detaining Power, or which are changed into such currency at the prisoner’s request, shall be placed to the credit of the prisoner’s account as provided in Article 64.
The Detaining Power may withdraw articles of value from prisoners of war only for reasons of security: when such articles are withdrawn, the procedure laid down for sums of money impounded shall apply.
Such objects, likewise sums taken away in any currency other than that of the Detaining Power and the conversion of which has not been asked for by the owners, shall be kept in the custody of the Detaining Power and shall be returned in their initial shape to prisoners of war at the end of their captivity. 
Convention (III) relative to the Treatment of Prisoners of War, Geneva, 12 August 1949, Article 18.
Geneva Convention IV
Article 97 of the 1949 Geneva Convention IV provides:
Internees shall be permitted to retain articles of personal use. Monies, cheques, bonds, etc., and valuables in their possession may not be taken from them except in accordance with established procedure. Detailed receipts shall be given therefor.
The amounts shall be paid into the account of every internee as provided for in Article 98. Such amounts may not be converted into any other currency unless legislation in force in the territory in which the owner is interned so requires or the internee gives his consent.
Articles which have above all a personal or sentimental value may not be taken away.
A woman internee shall not be searched except by a woman.
On release or repatriation, internees shall be given all articles, monies or other valuables taken from them during internment and shall receive in currency the balance of any credit to their accounts kept in accordance with Article 98, with the exception of any articles or amounts withheld by the Detaining Power by virtue of its legislation in force. If the property of an internee is so withheld, the owner shall receive a detailed receipt.
Family or identity documents in the possession of internees may not be taken away without a receipt begin given. At no time shall internees be left without identity documents. If they have none, they shall be issued with special documents drawn up by the detaining authorities, which will serve as their identity papers until the end of their internment.
Internees may keep on their persons a certain amount of money, in cash or in the shape of purchase coupons, to enable them to make purchases. 
Convention (IV) relative to the Protection of Civilian Persons in Time of War, Geneva, 12 August 1949, Article 97.
Additional Protocol II
Article 4(2)(g) of the 1977 Additional Protocol II provides for the prohibition of acts of pillage against “all persons who do not take a direct part or who have ceased to take part in hostilities”. 
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), Geneva, 8 June 1977, Article 4(2)(g). Article 4 was adopted by consensus. CDDH, Official Records, Vol. VII, CDDH/SR.50, 3 June 1977, p. 90.
UN Secretary-General’s Bulletin
Section 7.2 of the 1999 UN Secretary-General’s Bulletin states that pillage of persons hors de combat is prohibited. 
Observance by United Nations Forces of International Humanitarian Law, Secretary-General’s Bulletin, UN Secretariat, UN Doc. ST/SGB/1999/13, 6 August 1999, Section 7.2.
Burundi
Burundi’s Regulations on International Humanitarian Law (2007) states:
Concerning captured enemy military objects, the military material obtained from the captured persons must be seized and becomes war booty, with the exception of identity documents and effects used for clothing, food and personal protection. 
Burundi, Règlement n° 98 sur le droit international humanitaire, Ministère de la Défense Nationale et des Anciens Combattants, Projet “Moralisation” (BDI/B-05), August 2007, Part I bis, pp. 105–106; see also Part I bis, pp. 56 and 85, and Part I, p. 15.
Cameroon
Cameroon’s Instructor’s Manual (2006) states:
The following objects remain the property of the prisoner [of war]:
- Documents of personal identification (card, disc)
- Clothing, food and drink, and other personal effects.
- Effects for personal protection (helmet, protection mask). 
Cameroon, Droit des conflits armés et droit international humanitaire, Manuel de l’instructeur en vigueur dans les forces de défense, Ministère de la Défense, Présidence de la République, Etat-major des Armées, 2006, p. 231, § 122; see also p. 165, § 463.
Cameroon
Cameroon’s Disciplinary Regulations (2007) states with regard to the treatment of prisoners of war: “They must remain in possession of their effects and articles of personal use, except arms, military equipment and documents.” 
Cameroon, Règlement de discipline générale dans les forces de défense, Décret N° 2007/199, Président de la République, 7 July 2007, Article 33.
Canada
Canada’s Code of Conduct (2001) provides: “The personal property of … detained persons … shall not be taken.” 
Canada, Code of Conduct for CF Personnel, Office of the Judge Advocate General, 4 June 2001, Rule 8, § 2.
Canada
Canada’s Prisoner of War Handling and Detainees Manual (2004) states:
PW [prisoners of war] may retain all personal articles and effects which will not assist in any escape attempt, including articles of regulation military equipment issued for personnel protection (helmets, body armour, gas masks etc.). Items of substantial value may be removed, by order of an officer, if considered a security risk. Such items are to be documented and a receipt in triplicate prepared. The original of the receipt is to be given to the PW, one copy is to be stored with the property and the third is to be retained with the PW documents. 
Canada, Prisoner of War Handling, Detainees, Interrogation and Tactical Questioning in International Operations, B-GJ-005-110/FP-020, National Defence Headquarters, 1 August 2004, p. 3D-3, § D002.1.
Canada
Canada’s Code of Conduct After Capture Manual (2004) states:
In accordance with [the 1949 Geneva Convention III], CF [Canadian Forces] members who are PWs [prisoners of war] must be allowed to retain all of their personal property, except vehicles, arms, and other military equipment or documents. Protective equipment (helmets, gas masks, flak jackets, etc.), clothing or articles used for feeding must also be left in their possession, as must badges of nationality or rank, and decorations. They must also be allowed to maintain articles of sentimental value. 
Canada, The Code of Conduct After Capture for the Canadian Forces, B-GJ-005-110/FP-010, National Defence Headquarters, 28 October 2004, § 310.1.
Canada
Canada’s Code of Conduct (2005) states:
Disarming includes the search for and the taking away of equipment and documents of military value (e.g., weapons, ammunition, maps, orders, code books, etc.). The following material must remain with the PW [prisoner of war] or detainee:
a. identification documents/discs;
b. clothing, items for personal use, or items used for feeding; and
c. items of personal protection (i.e., helmet, gas mask, flak jacket, etc.). 
Canada, Code of Conduct for CF Personnel, Office of the Judge Advocate General, 2005, Rule 5, § 5.
The Code of Conduct provides:
PWs and detainees will be allowed to retain all personal effects and articles, as well as their metal helmets, gas masks, feeding utensils and articles of personal protection. Their weapons, other military equipment, military documents, etc. can be removed. Only an officer may order the removal of sums of money and valuables for safekeeping. If such action is taken, a receipt must be issued and the details recorded in a special register. 
Canada, Code of Conduct for CF Personnel, Office of the Judge Advocate General, 2005, Rule 6, § 5.
The Code of Conduct further states: “The personal property of … detained persons … shall not be taken.” 
Canada, Code of Conduct for CF Personnel, Office of the Judge Advocate General, 2005, Rule 8, § 2.
Canada
Canada’s Use of Force Manual (2008) states:
Chapter 4: Use of Force in International Operations
402. Types of International Operations
1. In general, there are four types of international operational relationships in which the CF [Canadian Forces] may participate with each one having unique considerations pertaining to the use of force, self-defence and rules of engagement:
a. Alliance. Alliance operations refer to operations conducted under a formal standing alliance such as the North Atlantic Treaty Organization (NATO) or Canada-United States (CANUS). In these cases, there are formal policy, command-and-control and force structure instruments which will affect ROE [rules of engagement] development and application;
b. Coalition. A coalition is a less formal alliance which is normally limited to a specific mission. Coalitions normally lack the formal status of forces' agreements and infrastructure architectures that are common to alliances such as NATO. A coalition may operate under the legal umbrella of a UN Security Council resolution, but they are not UN missions. Once a mission or operation has been completed, the coalition is normally disbanded;
c. United Nations (UN). UN missions operate under a UN Security Council resolution and fall within the UN command-and-control structure; and
d. Unilateral. An international operation where Canadian forces are operating unilaterally within a region or area.
407. Supplementary Direction
3. Detainees. In support of the operational or security objectives of an international operation, Canadian forces may be required to detain persons. Reasons to detain include, but are not limited to, persons who do the following:
a. interfere with the accomplishment of the mission and related tasks;
b. otherwise use or threaten force against friendly forces, or the equipment and materials belonging to them, or under their protection;
c. enter an area under the control of friendly forces without prior authorization; and
d. are suspected of breaches of the law of armed conflict.
4. Where the use of deadly force is authorized in a given situation, that authority also includes the authority to detain persons against whom deadly force could have been used. In all other cases, specific ROE must be authorized in order to detain persons. The standards provided in the Geneva Conventions will be the minimum standard for the treatment of all detainees whether or not the Geneva Conventions legally apply during the operation. 
Canada, Use of Force for CF Operations, Canadian Forces Joint Publication, Chief of the Defence Staff, B-GJ-005-501/FP-001, August 2008, §§ 402.1 and 407.3–4.
Central African Republic
The Central African Republic’s Instructor’s Manual (1999) states in Volume 2 (Instruction for group and patrol leaders):
Captured combatants must be:
- disarmed and searched;
- handed over to superiors.
Disarming includes the search for and the taking away of equipment and documents of military value (e.g., weapons, ammunition, maps, orders, telecommunications material and code books, etc.). …
The following material must remain with the captured person:
- personal identification documents (ID card, ID discs);
- clothing, items for personal use, or items used for feeding;
- items of personal protection (helmet, gas mask). 
Central African Republic, Le Droit de la Guerre, Fascicule No. 2: Formation pour l’obtention du certificat technique No. 2 (Chef de Groupe), du certificat Inter-Armé (CIA), du certificat d’aptitude de Chef de Patrouille (CACP), Ministère de la Défense, Forces Armées Centrafricaines, 1999, Chapter III, Section II, § 2.1.
Côte d’Ivoire
Côte d’Ivoire’s Teaching Manual (2007) provides in Book I (Basic instruction):
Surrendering enemy combatants
2. Disarm them:
- only take objects of military use,
- theft is prohibited. 
Côte d’Ivoire, Droit de la guerre, Manuel d’instruction, Livre I: Instruction de base, Ministère de la Défense, Forces Armées Nationales, November 2007, p. 23.
In Book III, Volume 1 (Instruction of first-year trainee officers), the Teaching Manual provides:
III. Prisoners of war
III.2. Search and personal effects of prisoners
All prisoners must be disarmed and submitted to a thorough search. It is advisable to do this in a manner which does not violate the prohibition on inhuman or degrading treatment, and which respects the special protection accorded to women and child soldiers. The following objects can be confiscated: ammunition, military documents such as topographical maps, orders, note-books containing military information, transmission networks, codes and any other military equipment which is not intended specifically for personal protection, such as straps intended for the transport of ammunition cases, etc.
Military clothes and protection equipment must be left with the prisoners, such as boots, helmets, bullet-proof vests, gas masks, etc. They are not yet out of danger and could need these clothes and protection equipment. Furthermore, the prisoners must be allowed to keep their badges of rank, utensils used for their feeding, rations and water bottles. They must also be allowed to keep their identity cards and tags. They can also keep their personal effects, such as spectacles, watches and objects which have a sentimental value, such as photographs of their family members. Sums of money carried by prisoners of war may not be taken away from them except by order of an officer, after the amounts have been recorded in a special register and an itemized receipt has been given. Sums in the currency of the Detaining Power, or which are changed into such currency at the prisoner’s request, shall be placed to the credit of the prisoner’s account.
The Detaining Power may withdraw articles of value from prisoners of war only for reasons of security; when such articles are withdrawn, the procedure laid down for sums of money impounded shall apply. Such objects, likewise the sums taken away shall be returned to prisoners of war at the end of their captivity. In practice, all these details and this bookkeeping can appear difficult to realize in the heat of action. If the situation and time do not allow all these procedures, the minimum of the basic demands must be respected, by leaving with the prisoners all objects which clearly are means of identification and of personal protection, as well as food and water. All the rest can be put into an appropriate receptacle, like the prisoner’s munitions case, clearly marked with his name, and be sent to the rear, where information officials or administrators can examine the articles and ultimately send back the personal effects to the prisoners of war. 
Côte d’Ivoire, Droit de la guerre, Manuel d’instruction, Livre III, Tome 1: Instruction de l’élève officier d’active de 1ère année, Manuel de l’élève, Ministère de la Défense, Forces Armées Nationales, November 2007, pp. 43 and 45.
In Book IV (Instruction of heads of division and company commanders), the Teaching Manual provides:
II.2.5. Possessions of POWs
POWs [prisoners of war] can keep all their movable possessions, with the exception of vehicles, arms and other military equipment or documents. Protection equipment (such as helmets, gas masks, vests, etc.) also remains in their possession. Clothes and utensils used for their feeding, even if they belong to their government, also remain in their possession, just like the badges of rank and nationality, and decorations. They can also keep objects of sentimental value. If they do not have identity cards or papers, they are supplied with such documents. …
Sums of money can be taken from a POW only by order of an officer, by recording the amount of these sums and the particulars of their owner in a register, and by giving him a receipt. Sums in the currency of the Detaining Power, or which are changed into such currency, shall be placed to the credit of the prisoner’s account …
All goods, other than those belonging to POWs, are regarded as booty. Booty belongs to the government or State, and not to the unit or person carrying out the capture.
II.2.7. Search and personal effects of POWs
All prisoners must be disarmed and submitted to a thorough search. It is advisable to do this in a manner which does not violate the prohibition on inhuman or degrading treatment, and which respects the special protection accorded to women and child soldiers. Only war booty can be confiscated …, all other objects must be left with the POWs. 
Côte d’Ivoire, Droit de la guerre, Manuel d’instruction, Livre IV: Instruction du chef de section et du commandant de compagnie, Manuel de l’élève, Ministère de la Défense, Forces Armées Nationales, November 2007, pp. 63 and 64.
Denmark
Denmark’s Directive on the Ban on Torture (2008) states:
Central to the issue [of the ban on torture and cruel, inhuman or degrading treatment or punishment] is that detainees are treated well and humanely.
Examples:
Were the detainee’s possessions disposed of or destroyed without a legitimate reason? 
Denmark, Forbud Mod Tortur og Anden Grusom, Umenneskelig Eller Nedværdigende Behandling Eller Straf, FKODIR 005-01, Forsvarskommandoen, September 2008, pp. 4–5.
Djibouti
Djibouti’s Disciplinary Regulations (1982) states that prisoners “must be allowed to keep their personnel effects and items issued for personal use, except weapons and military equipment and documents.” 
Djibouti, Décret no. 82-028/PR/DEF du 5 mai 1982 portant règlement de la discipline générale dans les Forces armées, Article 31(1).
France
France’s LOAC Manual (2001), under the heading “Disarm”, restates Article 18 of the 1949 Geneva Convention III, and provides:
Disarming comprises the search for and the taking of material and documents of military importance. The following objects remain with the captured person: personal identification documents, clothing, foodstuffs and articles of personal use, articles for personal protection. 
France, Manuel de droit des conflits armés, Ministère de la Défense, Direction des Affaires Juridiques, Sous-Direction du droit international humanitaire et du droit européen, Bureau du droit des conflits armés, 2001, p. 48.
Under the heading “Prisoners of war”, the Manual further provides:
Disarming comprises the search for and the taking of material and documents of military importance (excluding: articles for individual protection, identification documents, clothing, foodstuffs and articles of personal use). This material becomes war booty. 
France, Manuel de droit des conflits armés, Ministère de la Défense, Direction des Affaires Juridiques, Sous-Direction du droit international humanitaire et du droit européen, Bureau du droit des conflits armés, 2001, p. 102.
Greece
The Hellenic Territorial Army’s Internal Service Code (1984), as amended, provides: “All effects and articles of personal use except arms, military equipment and military documents shall remain in the possession of PoWs [prisoners of war].” 
Greece, Hellenic Territorial Army Regulation of Internal Service Code, Presidential Decree 130/1984 (Military Regulation 20-1), as amended, Article 16.
Greece
The Hellenic Navy Regulations (1993), as amended, provide: “[P]ersonal belongings [of prisoners of war] shall be protected.” 
Greece, Hellenic Navy Regulations (Part A), Presidential Decree 210/1993, as amended, Article 1408.
Ireland
Ireland’s Basic LOAC Guide (2005) states:
The following articles must remain in the PWs [prisoners’ of war] possession:
- helmets, respirators and other such articles if required for personal protection;
- personal effects including items used for clothing and feeding; and
- badges of rank, nationality and decorations in addition to identity documents.
Money and other articles of value in possession of a PW may not be taken from him except by order of an officer and upon issuance of a receipt. 
Ireland, Basic Guide to the Law of Armed Conflict, TP/TRG/01-2005, Director of Defence Forces Training, Department of Defence, July 2005, p. 9.
Israel
Israel’s Manual on the Rules of Warfare (2006) states:
It is forbidden to confiscate the personal possessions of a prisoner-of-war, especially not their identity cards and their means of protection (excluding weapons) issued to them by their army (such as gas masks, plastic ground-sheets and steel helmets). 
Israel, Rules of Warfare on the Battlefield, Military Advocate-General’s Corps Command, IDF School of Military Law, Second Edition, 2006, p. 33.
The manual further states that the 1949 Geneva Convention III “reminds that … [the] personal belongings [of prisoners of war] must be returned to them”. 
Israel, Rules of Warfare on the Battlefield, Military Advocate-General’s Corps Command, IDF School of Military Law, Second Edition, 2006, p. 34.
The Manual on the Rules of Warfare (2006) is a second edition of the Manual on the Laws of War (1998).
Italy
Italy’s Combatant’s Manual (1998) states:
Prisoners cannot be deprived of effects and objects of strictly personal use, documents, indication of rank, decorations and personal objects of value, just as they may keep the helmet and gas mask they have with them. 
Italy, Manuale del Combattente, SME 1000/A/2, Stato Maggiore Esercito/Reparto Impiego delle Forze, Ufficio Dottrina, Addestramento e Regolamenti, 1998, § 252.
The manual further states that “prisoners are authorized to carry with them their personal effects, valuables, money, correspondence and parcels”. 
Italy, Manuale del Combattente, SME 1000/A/2, Stato Maggiore Esercito/Reparto Impiego delle Forze, Ufficio Dottrina, Addestramento e Regolamenti, 1998, § 252.
Mexico
Mexico’s IHL Guidelines (2009), in a section entitled “Basic rules of conduct in armed conflict”, states: “Do not keep the belongings of prisoners of war for yourself. They must be handed in and a receipt issued with the signature of the owner and the person who takes possession of them.” 
Mexico, Cartilla de Derecho Internacional Humanitario, Ministry of National Defence, 2009, § 14(t).
Netherlands
The Military Manual (1993) of the Netherlands provides that the appropriation of personal property of prisoners of war is an ordinary breach of IHL. 
Netherlands, Toepassing Humanitair Oorlogsrecht, Voorschift No. 27-412/1, Koninklijke Landmacht, Ministerie van Defensie, 1993, p. IX-6.
Netherlands
The Military Manual (2005) of the Netherlands states:
Prisoners of war must be left in possession of items for their personal use, helmets and other items for their personal protection.
The following items must be left in their possession:
- personal protective equipment (helmet, gas mask and flak jacket), eating equipment (water bottle and eating utensils), personal clothing (underwear, outer garments, rainwear, etc.) and items for personal care (toothbrush, etc.);
- personal effects (watch, pens, glasses, letters, etc.) and military emblems (badges of rank, etc.)
- identity documents (these may, of course, be inspected, but must be returned). 
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 0720.
In its chapter on peace operations, the manual states: “Personal effects and personal protection remain in the detainee’s possession.” 
Netherlands, Humanitair Oorlogsrecht: Handleiding, Voorschift No. 27-412, Koninklijke Landmacht, Militair Juridische Dienst, 2005, § 1226.
Peru
Peru’s IHL and Human Rights Manual (2010) states:
Military materiel (for example, weapons, ammunition, horses, military equipment and military documents) taken from captured prisoners of war during evacuation becomes war booty and passes into the logistic channels. Personal effects and items for personal use, however, must remain with the captured prisoners of war. 
Peru, Manual de Derecho Internacional Humanitario y Derechos Humanos para las Fuerzas Armadas, Resolución Ministerial No. 049-2010/DE/VPD, Lima, 21 May 2010, § 100(d), p. 297.
Poland
Poland’s Prisoner of War Handling Procedures (2009) states: “The capturing power shall: … immediately disarm prisoners, and take possession of any weapons and documents, excluding clothing, identity documents and protective equipment.” 
Poland, Norma Obronna NO-02-A020:2000, Procedury postępowania z jeńcami wojennymi, enacted by decision No. 134/MON related to the Approval and Enforcement of Regulatory Instruments in Respect of State Defence and Security, 21 April 2009, published in the Official Gazette of the Ministry of National Defence, No. 8, Item 99, April 2009, Section 2.1.
The Procedures further states:
3.2 Personal items
Prisoners of war may be permitted to keep items of mainly personal or emotional value. Personal effects retained by prisoners of war may be subject to controls, as defined by the capturing power.
3.3 Military items
Prisoners of war evacuated from combat zones shall be permitted to possess military equipment necessary to ensure their safety (namely gas masks, respirators, protective clothing and helmets). Weapons, and items which could be used as weapons, shall be confiscated. 
Poland, Norma Obronna NO-02-A020:2000, Procedury postępowania z jeńcami wojennymi, enacted by decision No. 134/MON related to the Approval and Enforcement of Regulatory Instruments in Respect of State Defence and Security, 21 April 2009, published in the Official Gazette of the Ministry of National Defence, No. 8, Item 99, April 2009, Sections 3.2–3.3.
The Procedures further states:
Military items which are not the prisoners’ personal property shall be confiscated, archived and stored securely in an appropriate place.
The capturing power may decide what should be done with confiscated items.
Money confiscated from a prisoner of war shall be transferred onto the prisoner’s account. 
Poland, Norma Obronna NO-02-A020:2000, Procedury postępowania z jeńcami wojennymi, enacted by decision No. 134/MON related to the Approval and Enforcement of Regulatory Instruments in Respect of State Defence and Security, 21 April 2009, published in the Official Gazette of the Ministry of National Defence, No. 8, Item 99, April 2009, Section 3.6.
Russian Federation
The Russian Federation’s Regulations on the Application of IHL (2001) states:
Personal protection means all effects and items of personal use (except arms and ammunition, military equipment and military documents), badges of rank and nationality, sums of money and articles having a personal value may not be taken from the prisoners of war. Articles used for their clothing or feeding shall likewise remain in their possession. Articles of value may be withdrawn from the prisoner of war only for reasons of security. It can be done only by order of an officer in charge of the maintenance of the prisoners of war and after the money amount and particulars of the owner have been recorded in a special register and an itemised receipt has been given, legibly inscribed with the position, rank, family name, first name and the patronimic of the person issuing the said receipt. Such objects, likewise the sums taken away shall be returned in their initial shape to prisoners of war at the end of captivity. 
Russian Federation, Regulations on the Application of International Humanitarian Law by the Armed Forces of the Russian Federation, Ministry of Defence of the Russian Federation, Moscow, 8 August 2001, § 159.
Sierra Leone
Sierra Leone’s Instructor Manual (2007) states:
In any combat operation, when enemy combatants are first captured they straightaway become POWs [prisoners of war]. The first action to be taken therefore is to:
c. Search them and take away only documents and equipment of military value (arms and ammunitions, orders, maps, and notebooks containing military information etc).
d. Leave with them military clothing and protective equipment (such as combat helmets, body armour), decorations, insignia, badges of rank, eating equipments, ration packs and water bottles, personal possession including things like spectacles and articles of sentimental value like family photographs. 
Sierra Leone, The Law of Armed Conflict. Instructor Manual for the Republic of Sierra Leone Armed Forces (RSLAF), Armed Forces Education Centre, September 2007, p. 41.
South Africa
South Africa’s Revised Civic Education Manual (2004) states that prisoners of war are “entitled to protection” and that this protection includes “[r]etention of personal (non-lethal) belongings”. 
South Africa, Revised Civic Education Manual, South African National Defence Force, 2004, Chapter 4, § 74.
Switzerland
Switzerland’s Aide-Memoire on the Ten Basic Rules of the Law of Armed Conflict (2005) states:
Rule 5
I treat people that fall into my hands humanely. I disarm them and hand them over to my superior. … I respect their possessions. Only military objects that are not required for their clothing, nourishment, medical support or protection are taken away from them. At the same time, I always take my own safety and that of my comrades into account. 
Switzerland, The Ten Basic Rules of the Law of Armed Conflict, Aide-memoire 51.007/IIIe, Swiss Army, issued based on Article 10 of the Ordinance for Organization of the Federal Department for Defence, Civil Protection and Sports dated 7 March 2003, entry into force on 1 July 2005, Rule 5.
Switzerland
Switzerland’s Regulation on Legal Bases for Conduct during an Engagement (2005) states:
194 When searching captured persons, military items other than clothing, food, medicines or protection equipment (e.g. protective mask or helmet) are confiscated. Confiscated items are registered and securely stored according to the superior’s instructions.
195 Personal effects remain in the possession of prisoners. Valuables and large amounts of money may, however, be kept in a safe place, for reasons of security, against receipt. They must be handed over to the superior, together with a description, and returned to the owners at the end of their captivity or upon repatriation. 
Switzerland, Bases légales du comportement à l’engagement (BCE), Règlement 51.007/IVf, Swiss Army, issued based on Article 10 of the Ordinance on the Organization of the Federal Department for Defence, Civil Protection and Sports of 7 March 2003, entry into force on 1 July 2005, §§ 194–195. The German language version of the third sentence of § 195 notes: “… together with a description of the owner mit Bezeichnung des Eigentümers …”.
United Kingdom of Great Britain and Northern Ireland
In its chapter on the protection of civilians in the hands of a party to the conflict, the UK LOAC Manual (2004) states:
Internees must be permitted to keep articles of personal use, especially those of a personal or sentimental value. They may also keep a certain amount of money in the form of cash or coupons to enable them to make purchases. Money, other valuables and identity documents may only be taken away in accordance with established procedures, detailed receipts being given. 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 9.43.
On prisoners of war, the manual states:
The following action is to be taken in respect of prisoners of war when first captured:
d. The property listed below must remain in their possession:
(1) clothing, military and civilian including that for their special protection such as NBC suits;
(2) protective military equipment, for example, steel helmets, flak jackets and respirators;
(3) feeding utensils, ration packs and water bottles;
(4) badges of rank and nationality, military insignia;
(5) decorations and medals;
(6) identity cards, and discs …
(7) personal property, which the prisoners of war are able to carry with them, such as spectacles and articles of sentimental value like personal letters and family photographs, but see sub-paragraph f;
f. Personal property may only be removed for security reasons; this would include articles which could be used as weapons, such as razor blades and sharp knives, or which could affect security, such as cameras.
g. Sums of money may only be taken away on the order of an officer. The amount taken must be recorded in a special register and an itemized receipt, showing the name, rank and unit of the person issuing it, given. Money that is the private property of the prisoner of war is either credited to his account or returned to him at the end of captivity …
h. Articles of value may be taken for safe custody only. A record must be made and a receipt given. The articles must be returned intact at the end of captivity. 
United Kingdom, The Manual of the Law of Armed Conflict, Ministry of Defence, 1 July 2004, § 8.25.
United States of America
The US Instructor’s Guide (1985) states: “In addition to the grave breaches of the Geneva Conventions, the following acts are further examples of war crimes: … taking and keeping a captured enemy soldier’s personal property”. 
United States, Instructor’s Guide – The Law of War, Headquarters Department of the Army, Washington, April 1985, pp. 13 and 14.
United States of America
The US Manual on Detainee Operations (2008) states:
Property Safekeeping and Confiscation Accountability. DODD [Department of Defense Directive] 2310.01E, Department of Defense Detainee Program, states, “Detainees and their property shall be accounted for and records maintained according to applicable law, regulation, policy or other issuances.” All personal effects and articles of personal use (except arms, military equipment, personal documents with intelligence value, and military documents) will remain in the possession of detainees, including effects and articles used for their clothing or feeding, unless the detaining force considers continued possession to cause a risk for the detaining force or other detainees, or the item is of intelligence or law enforcement value. Detainees will be permitted to retain individual protective gear and like articles issued for personal protection. This is especially important during initial detention and transportation to a more established detention facility when there is a risk that the detainees will be exposed to a chemical, biological, radiological, nuclear, or high-yield explosives threat. This rule does not prohibit the centralized management of such protective equipment by the DFC [detention facility commander] if such management is intended to enhance the overall protection of detainees. Badges of rank and nationality, decorations, and articles having, above all, a personal or sentimental value, may not be taken from detainees. Sums of money carried by detainees may not be taken away from them except by order of a commanding officer, after the amount and particulars of the owner have been recorded in a special register, and an itemized receipt has been given, legibly inscribed with the name, rank, and unit of the person issuing the said receipt. Sums in the currency of the detaining power, or those changed into such currency at the detainee’s request, will be placed to the credit of the detainee’s account. The detaining power may temporarily confiscate articles of value or necessity, including medications, from detainees when such action is determined to be necessary for reasons of security (including intelligence evaluations for the purpose of the security of the force). Procedures for such confiscation should be established by SOP [standard operating procedure] and should follow the rules applicable for the impoundment of money noted above. All personal property taken from detainees shall be kept in the custody of the detaining power and, if feasible, shall be returned in its initial condition to the detainees at the end of their detention. 
United States, Manual on Detainee Operations, Joint Chiefs of Staff, 30 May 2008, pp. III-7–III-8.
In the chapter on “Transport Procedures”, the manual states: “Detainee records and property will accompany them during transport.” 
United States, Manual on Detainee Operations, Joint Chiefs of Staff, 30 May 2008, p. V-1.
In the chapter on “Transfer or Release from Detention”, the manual states:
5. Transfer [of a detainee] Between Department of Defense Facilities
b. The DFC [detention facility commander] will:
(4) Account for and prepare impounded personal property for shipment with the escorting unit or separate shipment as appropriate.
6. Transfer or Release Mission
a. For transfer or release from within the JOA [joint operations area] to either other detention facilities or direct release of the detainee back into the community, the following requirements should be met:
(4) Account for and prepare impounded personal property for shipment with the escorting unit.
Figure VII-1. Transfer Accountability Measures
Personal Property. Ensure that confiscated personal property (that can be released) accompanies released detainees. Conduct an inventory and identify discrepancies. Ensure that detainees sign property receipts. 
United States, Manual on Detainee Operations, Joint Chiefs of Staff, 30 May 2008, pp. VII-3–VII-5.
The manual also states:
Detainee Categories
The DOD [Department of Defense] definition of the word “detainee” includes any person captured, detained, or otherwise under the control of DOD personnel (military, civilian, or contractor employee) … It does not include persons being held primarily for law enforcement purposes except where the United States is the occupying power …
a. Enemy Combatant. In general, a person engaged in hostilities against the United States or its coalition partners during an armed conflict. The term “enemy combatant” includes both “lawful enemy combatants” and “unlawful enemy combatants.”
b. Enemy Prisoner of War. Individual under the custody and/or control of the DOD according to Articles 4 and 5 of the … [1949 Geneva Convention III].
c. Retained Personnel … Personnel who fall into the following categories: official medical personnel of the armed forces exclusively engaged in the search for, or the collection, transport, or treatment of wounded or sick, or in the prevention of disease, and staff exclusively engaged in the administration of medical units and facilities; chaplains attached to enemy armed forces; staff of national Red Cross Societies and that of other volunteer aid societies duly recognized and authorized by their governments to assist medical service personnel of their own armed forces, provided they are exclusively engaged in the search for, or the collection, transport or treatment of, the wounded or sick, or in the prevention of disease, and provided that the staff of such societies are subject to military laws and regulations.
d. Civilian Internee … A civilian who is interned during an armed conflict, occupation, or other military operation for security reasons, for protection, or because he or she has committed an offense against the detaining power. 
United States, Manual on Detainee Operations, Joint Chiefs of Staff, 30 May 2008, pp. I-3–I-5; see also pp. viii and GL-3.
Australia
Australia’s Defence Force Discipline Act (1982), in an article on looting, provides:
A person, being a defence member or a defence civilian, who, in the course of operations against the enemy, or in the course of operations undertaken by the Defence Force for the preservation of law and order or otherwise in aid of the civil authorities –
takes any property from the body of a person … captured in those operations … is guilty of [a punishable] offence. 
Australia, Defence Force Discipline Act, 1982, Section 48(1).
Australia
Australia’s Defence Force Discipline Act (1982), as amended to 2007, states:
48 Looting
(1) A person who is a defence member or a defence civilian is guilty of an offence if, in the course of operations against the enemy, or in the course of operations undertaken by the Defence Force for the preservation of law and order or otherwise in aid of the civil authorities, the person:
(a) takes any property that has been left exposed or unprotected; or
(b) takes any property from the body of a person who has been killed or from a person who has been wounded, injured or captured; or
(c) takes any vehicle, equipment or stores captured from or abandoned by the enemy.
Maximum punishment: Imprisonment for 5 years. 
Australia, Defence Force Discipline Act, 1982, as amended to 2007, Division 5A, Subdivision D, § 48(1), p. 56.
Bulgaria
Bulgaria’s Penal Code (1968), as amended 1999, provides that any “person who, on the battlefield, takes away objects from … a captive … person, with the intention to unlawfully appropriate them” commits a punishable crime. 
Bulgaria, Penal Code, 1968, as amended in 1999, Article 405.
Chad
Under Chad’s Code of Military Justice (1962), taking property from prisoners of war is a criminal offence. 
Chad, Code of Military Justice, 1962, Article 62.
Chile
Chile’s Code of Military Justice (1925) provides for a prison sentence for “anyone who plunders the clothing or other objects belonging to … a prisoner of war in order to appropriate them”. 
Chile, Code of Military Justice, 1925, Article 263.
Colombia
Colombia’s Penal Code (2000) imposes a sanction on “anyone who, during an armed conflict, despoils … a protected person”. 
Colombia, Penal Code, 2000, Article 151.
Cuba
Cuba’s Military Criminal Code (1979) punishes “anyone who, in areas of military operations, for personal gain, plunders the money or other belongings of … prisoners”. 
Cuba, Military Criminal Code, 1979, Article 43(1).
Denmark
Denmark’s Military Criminal Code (1973), as amended in 1978, provides:
Any person who uses war instruments or procedures the application of which violates an international agreement entered into by Denmark or the general rules of international law, shall be liable to the same penalty [i.e. a fine, lenient imprisonment or up to 12 years’ imprisonment]. 
Denmark, Military Criminal Code, 1973, as amended in 1978, § 25(1).
Denmark’s Military Criminal Code (2005) provides:
Any person who deliberately uses war means [“krigsmiddel”] or procedures the application of which violates an international agreement entered into by Denmark or international customary law, shall be liable to the same penalty [i.e. imprisonment up to life imprisonment]. 
Denmark, Military Criminal Code, 2005, § 36(2).
El Salvador
El Salvador’s Code of Military Justice (1934) provides that “a soldier who plunders the clothes or other personal effects of … a prisoner of war in order to appropriate them” commits a punishable offence. 
El Salvador, Code of Military Justice, 1934, Article 70.
France
France’s Penal Code (1994), as amended in 2010, states in its section on war crimes common to both international and non-international armed conflicts: “Unless they are justified by military necessity, the following offences committed against a person protected by the law of armed conflict constitute … war crimes: … [s]tealing [or] extorting … objects.” 
France, Penal Code, 1994, as amended in 2010, Article 461-16.
Greece
Under Greece’s Military Penal Code (1995), “the soldier who takes money or other belongings away from a prisoner of war” is to be punished. 
Greece, Military Penal Code, 1995, Article 164.
Iraq
Iraq’s Military Penal Code (1940) states: “Every person who, with the intent to appropriate for himself or unjustifiably, … takes the property of the prisoner whom he is ordered to guard, shall be punished.” 
Iraq, Military Penal Code, 1940, Article 115(a).
Iraq’s Military Penal Code (2007) provides: “Whosoever, with the intent of unlawful possession … confiscates monies from prisoners of war in his custody, is punishable with imprisonment for (15) fifteen years.” 
Iraq, Military Penal Code, 2007, Article 61(10).
Ireland
Ireland’s Geneva Conventions Act (1962), as amended in 1998, provides that any “contravention” of the 1977 Additional Protocol II, including violations of Article 4(2)(g), is a punishable offence. 
Ireland, Geneva Conventions Act, 1962, as amended in 1998, Section 4(1) and (4).
Italy
Italy’s Wartime Military Penal Code (1941) provides that the soldier who steals money or other objects from a prisoner of war, with the intent to appropriate them for himself or for others, is guilty of a punishable offence. 
Italy, Wartime Military Penal Code, 1941, Article 214.
Japan
Japan’s Law concerning the Treatment of Prisoners of War and Other Detainees in Armed Attack Situations (2004) states:
(1) In cases where a designated unit commander or a recognition officer of internment status has taken delivery of a captive person … the said commander or the said officer may retain the cash and articles (hereinafter referred to as “cash and articles”) the captive person carries at the time of his/her delivery; provided, however, that such articles set forth hereunder shall not be retained:
(i) Articles exclusively for personal protection, such as metal helmets and gas masks;
(ii) Uniforms, identification cards, rank badges and other badges of status or position, decorations and other badges indicative of achievements;
(iii) Personal articles provided by an Ordinance of the Ministry of Defense in addition to what is listed in the preceding two items.
(2) In cases of retaining the cash and articles pursuant to the provision of the preceding paragraph, a receipt shall be issued to the person who has taken delivery as prescribed in the preceding paragraph. 
Japan, Law concerning the Treatment of Prisoners of War and Other Detainees in Armed Attack Situations, 2004, Article 153(1) and (2).
New Zealand
New Zealand’s Armed Forces Discipline Act (1971) provides:
Every person subject to this Act commits the offence of looting, and is liable to imprisonment for life, who –
(a) Steals from, or with intent to steal searches, the person of anyone … captured in the course of any war or warlike operations in which New Zealand is engaged, or … detained in the course of operations undertaken by any service of the Armed Forces for the preservation of law and order or otherwise in aid of the civil power. 
New Zealand, Armed Forces Discipline Act, 1971, Section 31(a).
Nicaragua
Nicaragua’s Military Penal Law (1980) punishes “anyone who, in military operations, steals, for personal gain, the money or other belongings of … prisoners”. 
Nicaragua, Military Penal Law, 1980, Article 81.
Nicaragua
Nicaragua’s Military Penal Code (1996) provides for the punishment of the soldier who, in the zone of operations, “despoils … a prisoner of war of his or her clothes or other personal effects”. 
Nicaragua, Military Penal Code, 1996, Article 56(1).
Nigeria
Nigeria’s Armed Forces Act (1993), as amended in 1994, states:
A person subject to service law under this Act who-
(a) steals from, or with intent to steal, searches the body of a person … captured in the course of war-like operations, or … detained in the course of [an] operation undertaken by any service of the Armed Forces for the preservation of law and order or otherwise in aid of the civil authorities; or
is guilty of looting and liable, on conviction by a court-martial, to imprisonment for a term not exceeding seven years or any less punishment provided by this Act. 
Nigeria, Armed Forces Act, 1993, as amended in 1994, Article 51(a).
Norway
Norway’s Military Penal Code (1902), as amended in 1981, provides:
Anyone who contravenes or is accessory to the contravention of provisions relating to the protection of persons or property laid down in … the two additional protocols to [the 1949 Geneva] Conventions … is liable to imprisonment. 
Norway, Military Penal Code, 1902, as amended in 1981, § 108(b).
Paraguay
Paraguay’s Military Penal Code (1980) punishes “any soldier who has plundered … a prisoner of war”. 
Paraguay, Military Penal Code, 1980, Article 293.
Peru
Peru’s Code of Military Justice (1980) provides that despoiling prisoners of war is punishable. 
Peru, Code of Military Justice, 1980, Article 95(5).
Singapore
Singapore’s Armed Forces Act (1972), as amended in 2000, provides:
Every person subject to military law who –
(a) steals from or, with intent to steal, searches the person of anyone … captured in the course of warlike operations, or … detained in the course of operations undertaken by the Singapore Armed Forces for the preservation of law and order or otherwise in aid of the civil authorities … shall be guilty of looting and shall be liable on conviction by a subordinate military court to imprisonment. 
Singapore, Armed Forces Act, 1972, as amended in 2000, Section 18(a).
Somalia
Somalia’s Military Criminal Code (1963) states:
382. Arbitrary refusal to recognize the status of a lawful belligerent. – A commander who causes serious harm to lawful enemy belligerents who have fallen into his power … by not according them the treatment prescribed by law or by international agreements … shall be punished, unless the act constitutes a more serious offence, by military confinement for not less than three years.
398. Theft of money or other objects. A soldier who, to benefit himself or others, steals money or other objects from a prisoner of war shall be punished by confinement for up to five years, and, if the said soldier is in charge of escorting, supervising or guarding the prisoner, by military confinement for three to seven years. 
Somalia, Military Criminal Code, 1963, Articles 382 and 398.
Spain
Under Spain’s Military Criminal Code (1985), “the soldier who … strips … a prisoner of war of his personal effects in the area of operations, with the intent to appropriate them,” commits a punishable offence against the laws and customs of war. 
Spain, Military Criminal Code, 1985, Article 77(2).
Spain
Under Spain’s Penal Code (1995), “anyone who, on the occasion of an armed conflict … strips … a prisoner of war or an interned civilian of his personal effects” commits a punishable “offence against protected persons and objects in the event of armed conflict”. 
Spain, Penal Code, 1995, Article 612(7).
Sri Lanka
Sri Lanka’s Prisons Ordinance (1878), as amended to 2005, states:
PART II
DUTIES OF OFFICERS
JAILER
27. The jailer shall keep or cause to be kept the following records:–
(e) a record of the money and other articles taken from prisoners …
PART IV
ADMISSION, REMOVAL AND DISCHARGE OF PRISONERS
45. All money or other effects in respect whereof no order of a competent court has been made, and which may be brought into prison by any criminal prisoner or sent to the prison for his use, shall be placed in the custody of the jailer, and disposed of as may be directed by rules to be made under section 94.
PART XII
MISCELLANEOUS
94. …
(2) … [T]he Minister may make rules for all or any of the following purposes or matters:–
(c) the disposal of the clothing and property of prisoners on admission. 
Sri Lanka, Prisons Ordinance, 1878, as amended to 2005, Articles 27(e), 45 and 94(2)(c).
These articles apply to persons deprived of their liberty under Sri Lanka’s Emergency Regulations (2005) pursuant to section 19 of these regulations.
Sri Lanka
Sri Lanka’s Emergency Regulations (2005), as amended to 2008, states:
SUPERVISION, SEARCH, ARREST AND DETENTION
20. …
(11) Where any property is seized or detained under the provisions of this regulation a person effecting the seizure or detention shall issue a receipt in respect of such property to the person from whose custody such property was seized [or] detained. 
Sri Lanka, Emergency Regulations, 2005, as amended to 5 August 2008, Section 20(11).
Turkey
Under Turkey’s Military Penal Code (1930), stealing from prisoners of war is an offence punishable by imprisonment. 
Turkey, Military Penal Code, 1930, § 127.
United Kingdom of Great Britain and Northern Ireland
The UK Army Act (1955), as amended in 1971, provides:
Any person subject to military law who –
(a) steals from, or with intent to steal searches, the person of anyone … captured in the course of warlike operations, or … detained in the course of operations undertaken by Her Majesty’s forces for the preservation of law and order or otherwise in aid of the civil authorities, … shall be guilty of looting and liable, on conviction by court-martial, to imprisonment or any less punishment provided by this Act. 
United Kingdom, Army Act, 1955, as amended in 1971, Section 30(a).
United Kingdom of Great Britain and Northern Ireland
The UK Air Force Act (1955), as amended in 1971, provides:
Any person subject to air-force law who –
(a) steals from, or with intent to steal searches, the person of anyone … captured in the course of warlike operations, or … detained in the course of operations undertaken by Her Majesty’s forces for the preservation of law and order or otherwise in aid of the civil authorities, … shall be guilty of looting and liable, on conviction by court-martial, to imprisonment or any less punishment provided by this Act. 
United Kingdom, Air Force Act, 1955, as amended in 1971, Section 30(a).
United Kingdom of Great Britain and Northern Ireland
The UK Armed Forces Act (2006) states:
4 Looting
(1) A person within subsection (4) commits an offence if, without lawful excuse –
(a) he takes any property from a person who has been killed, injured, captured or detained in the course of an action or operation of any of Her Majesty’s forces or of any force co-operating with them; or
(b) he searches such a person with the intention of taking property from him.
(4) A person is within this subsection if he is –
(a) a person subject to service law; or
(b) a civilian subject to service discipline. 
United Kingdom, Armed Forces Act, 2006, Section 4.
Venezuela
Under Venezuela’s Code of Military Justice (1998), as amended, it is a crime against international law to “plunder … prisoners of war”. 
Venezuela, Code of Military Justice, 1998, as amended, Article 474(11).
Yemen
Under Yemen’s Military Criminal Code (1998), any person who despoils a prisoner is guilty, upon conviction, of a war crime. 
Yemen, Military Criminal Code, 1998, Article 20.
Bosnia and Herzegovina
In 2007, in the Šimšić case, the Appellate Panel of the Court of Bosnia and Herzegovina, when addressing the alleged seizure of detainees’ personal belongings by the accused, stated that “the value of the seized property … must be significant or permanent and related to a larger number of persons so as to constitute a severe violation of international humanitarian law”. 
Bosnia and Herzegovina, Court of Bosnia and Herzegovina, Šimšić case, Judgment, 7 August 2007, p. 69.
Canada
In 2008, in the Amnesty International Canada case, Canada’s Federal Court dismissed an application for judicial review on the basis of the Canadian Charter of Rights and Freedoms with respect to persons detained by the Canadian Forces (CF) in Afghanistan and their transfer to Afghan authorities. The Federal Court stated:
[13] To assist in resolving this dispute in a timely and efficient manner, the parties have jointly agreed to have the issue of whether the Charter applies in the context [of] Canada’s military involvement in the armed conflict in Afghanistan determined on the basis of the following questions, pursuant to Rule 107(1) of the Federal Courts Rules:
1. Does the Canadian Charter of Rights and Freedoms apply during the armed conflict in Afghanistan to the detention of non-Canadians by the Canadian Forces or their transfer to Afghan authorities to be dealt with by those authorities?
2. If the answer to the above question is “NO” then would the Charter nonetheless apply if the Applicants were ultimately able to establish that the transfer of the detainees in question would expose them to a substantial risk of torture?
[16] For the reasons that follow, I have determined that the answer to both of the questions posed by the motion is “No”. As a result, the applicants’ application for judicial review must therefore be dismissed.
II. Background
[44] Even before the Afghan Compact was concluded, the governments of Canada and Afghanistan had signed a document outlining the nature of Canada’s involvement and powers within Afghanistan: see the “Technical Arrangements between the Government of Canada and the Government of the Islamic Republic of Afghanistan”, dated December 18, 2005.
[47] The Technical Arrangements further provide that:
Canadian personnel may need to use force (including deadly force) to ensure the accomplishment of their operational objectives, the safety of the deployed force, including designated persons, designated property, and designated locations. Such measures could include the use of close air support, firearms or other weapons; the detention of persons; and the seizure of arms and other materiel. Detainees would be afforded the same treatment as Prisoners of War. Detainees would be transferred to Afghan authorities in a manner consistent with international law and subject to negotiated assurances regarding their treatment and transfer. …
[59] Theatre Standing Order 321A further provides that while in Canadian custody, detainees are to be “treated fairly and humanely” in accordance with “applicable international law and CF Doctrine”.
IV. Does the Canadian Charter of Rights and Freedoms apply during the armed conflict in Afghanistan to the detention of non-Canadians by the Canadian forces or their transfer to Afghan authorities to be dealt with by those authorities?
[162] Insofar as the relationship between the Governments of Afghanistan and Canada is concerned, the two countries have expressly identified international law, including international humanitarian law, as the law governing the treatment of detainees in Canadian custody.
[166] … [I]n relation to the treatment of detainees, Article 1.2 of the Technical Arrangements provides that detainees are to be afforded “the same treatment as Prisoners of War”, and are to be transferred to Afghan authorities “in a manner consistent with international law and subject to negotiated assurances regarding their treatment and transfer.” …
[179] The understanding between the Governments of Afghanistan and Canada that Afghan and international law are the legal regimes to be applied to the detainees in Canadian custody is also reflected in Canadian documents dealing with the treatment of detainees.
[180] In particular, Task Force Afghanistan’s Theatre Standing Order 321A recognizes international law as the appropriate standard governing the treatment of detainees. In this regard, Article 3 states that it is Canadian Forces policy that all detainees be treated to the standard required for prisoners of war, which it describes as being the highest standard required under international law.
[181] Moreover, Article 18 of TSO 321A provides that while in Canadian custody, detainees are to be “treated fairly and humanely” in accordance with “applicable international law and CF Doctrine”. …
VI. Conclusion
[336] … [A] number of concerns … flow from the Court’s finding that the Charter does not apply in the circumstances of this case.
[337] As was noted by Justice Binnie in Hape, the content of human rights protections provided by international law is weaker, and their scope more debatable than Charter guarantees …
[338] Moreover, the enforcement mechanisms for those standards may not be as robust as those available under the Charter, and have even been described as “rather gentle” …
[342] That said, the Supreme Court of Canada has carefully considered the scope of the Charter’s extraterritorial reach in R. v. Hape, and has concluded that its reach is indeed very limited. Applying the Supreme Court’s reasoning in Hape to the facts of this case leads to the conclusion that the Charter does not apply to the actions of the Canadian Forces in Afghanistan in issue here.
[343] Before concluding, it must be noted that the finding that the Charter does not apply does not leave detainees in a legal “no-man’s land”, with no legal rights or protections. The detainees have the rights conferred on them by the Afghan Constitution. In addition, whatever their limitations may be, the detainees also have the rights conferred on them by international law, and, in particular, by international humanitarian law. 
Canada, Federal Court, Amnesty International Canada case, Judgment, 12 March 2008, §§ 13, 16, 44, 47, 59, 162, 166, 179–181, 336–338 and 342–343.
[emphasis in original]
The Federal Court of Appeal subsequently upheld the findings of the Federal Court. It stated:
I conclude that the motions judge made no errors in answering the way she did the two questions that were before her. The Charter has no application to the situations therein described. There is no legal vacuum, considering that the applicable law is international humanitarian law. 
Canada, Federal Court of Appeal, Amnesty International Canada case, Judgment, 17 December 2008, § 36.
Malaysia
In 2010, during the consideration of the status of the 1977 Additional Protocols by the Sixth Committee of the UN General Assembly, a statement of the delegation of Malaysia was summarized by the Committee in its records as follows:
8. [The delegate of Malaysia] said that …
10. … [t]he laws of naval warfare incorporated the fundamental principles of international humanitarian law, including necessity and proportionality …
11. [In the case of the attacks by the Israel Defense Forces on the Mavi Marmara and five accompanying vessels in May 2010] … [w]here vessels were captured, the protections provided in the Second and Fourth Geneva Conventions of 1949 and [the 1977 Additional] Protocol I continued to apply to the persons on board the vessels. 
Malaysia, Statement by the delegation of Malaysia before the Sixth Committee of the UN General Assembly on the Status of the Protocols Additional to the Geneva Conventions of 1949 and relating to the protection of victims of armed conflict, 18 October 2010, as published in the summary record of the 13th meeting, 8 December 2010, UN Doc. A/C.6/65/SR.13, §§ 8, 10 and 11.
Somalia
In 2011, in its report to the Human Rights Council, Somalia stated:
Somalia has not ratified AP II [1977 Additional Protocol II] and it is therefore not directly applicable to Somalia as a matter of treaty law. The Government is aware that many provisions of AP II represent customary IHL rules and therefore apply to the situation in Somalia. Such provisions include Article 4 providing guarantees to persons taking no active part in hostilities … due to the fact that these norms are reflected in Common Article 3 of the [1949] Geneva Conventions. 
Somalia, Report to the Human Rights Council, 11 April 2011, UN Doc. A/HRC/WG.6/11/SOM/1, § 75.
United Kingdom of Great Britain and Northern Ireland
In 2010, in its closing submissions to the public inquiry into the circumstances surrounding the death of Baha Mousa and the treatment of those detained with him by UK armed forces in Iraq in 2003, the UK Ministry of Defence stated:
12. The treaties setting out rules of IHL are supplemented by rules of customary international law (CIL), i.e. rules which are recognized as binding by States, even though they do not appear in treaty texts. … [I]n relation to the rules described below the Government accepts that they reflect CIL. It is suggested that the rules which are of most relevance to this inquiry are:
12.16. … Pillage of the personal belongings of persons deprived of their liberty is prohibited. 
United Kingdom, Ministry of Defence, Closing Submissions to the Baha Mousa Public Inquiry on Modules 1–3, 25 June 2010, §§ 12 and 12.16, pp. 28 and 32.
[emphasis in original]
UN Secretary-General
In 2000, in his report on the establishment of a Special Court for Sierra Leone, the UN Secretary-General stated:
Violations of common Article 3 of the Geneva Conventions and of Article 4 of Additional Protocol II thereto committed in an armed conflict not of an international character have long been considered customary international law … Under the Statute of the International Criminal Court (ICC), … they are recognized as war enemies. 
UN Secretary-General, Report on the establishment of a Special Court for Sierra Leone, UN Doc. S/2000/915, 4 October 2000, § 14.
No data.
No data.
International Criminal Tribunal for the former Yugoslavia
In the Tadić case before the ICTY in 1995, the accused was charged with participation in the plunder and destruction of personal and real property of non-Serbs and looting of valuables of non-Serbs both when they were captured and upon their arrival in camps and detention centres. 
ICTY, Tadić case, Second Amended Indictment, 14 December 1995, §§ 4 and 4.2.
In its judgment in 1997, the ICTY Trial Chamber held that, in the absence of evidence, the accused could not be convicted of having taken part in the plunder and looting of valuables or personal property. 
ICTY, Tadić case, Judgment, 7 May 1997, §§ 448 and 464.
International Criminal Tribunal for the former Yugoslavia
In the Jelisić case before the ICTY in 1995, the accused was charged with violation of the laws and customs of war (plunder of private property). 
ICTY, Jelisić case, Initial Indictment, 21 July 1995, § 42.
In its judgment in 1999, the ICTY Trial Chamber found the accused guilty of the plunder of private property under Article 3(e) of the 1993 ICTY Statute. It held that plunder was the “fraudulent appropriation of public or private funds belonging to the enemy or the opposing party perpetrated during an armed conflict and related thereto”. It further held: “The individual acts of plunder perpetrated by people motivated by greed might entail individual criminal responsibility on the part of its perpetrators.” The defendant pleaded guilty to the offence of having stolen money, watches, jewellery and other valuables from detainees on their arrival at Luka camp in Bosnia and Herzegovina. 
ICTY, Jelisić case, Judgment, 14 December 1999, §§ 46–49.
International Criminal Tribunal for the former Yugoslavia
In the Mucić case before the ICTY in 1996, the accused were charged, inter alia, with violations of the laws and customs of war (plunder of private property) for having “participated in the plunder of money, watches and other valuable property belonging to persons detained at Čelebići camp”. 
ICTY, Mucić case, Initial Indictment, 21 March 1996, § 37.
However, in its judgment in 1998, the Trial Chamber eventually dismissed this count. 
ICTY, Mucić case, Judgment, 16 November 1998, §§ 584–592 and 1154, and Part VI (Judgment).
The Trial Chamber stated:
[E]ven when considered in the light most favourable to the Prosecution, the evidence before the Trial Chamber fails to demonstrate that any property taken from the detainees in the Čelebići prison-camp was of sufficient monetary value for its unlawful appropriation to involve grave consequences for the victims. Accordingly, it is the Trial Chamber’s opinion that the offences, as alleged, cannot be considered to constitute such serious violations of international humanitarian law that they fall within the subject matter jurisdiction of the International Tribunal pursuant to Article 1 of the Statute. Count 49 of the Indictment is thus dismissed. 
ICTY, Mucić case, Judgment, 16 November 1998, § 1154.
Eritrea-Ethiopia Claims Commission
In its Prisoners of War (Eritrea’s Claim) partial award in 2003, the Eritrea-Ethiopia Claims Commission, in considering the property rights of persons deprived of their liberty, stated:
73. Article 18 of [1949] Geneva Convention III requires that POWs [prisoners of war] be allowed to retain their personal property. Cash and valuables may be impounded by order of an officer, subject to detailed registration and other safeguards. If prisoners’ property is taken, it must be receipted and safely held for later return. Under Article 17, identity documents can be consulted by the Detaining Power, but must be returned to the prisoner. The Commission believes that these obligations reflect customary international law.
79. Taking of prisoners’ valuables and other property is a regrettable but recurring feature of their vulnerable state. The loss of photographs and other similar personal items is an indignity that weighs on prisoners’ morale, but the loss of property otherwise seems to have rarely affected the basic requirements for prisoners’ survival and well-being. Accordingly, while the Commission does not wish to minimize the importance of these violations, they loom less large than other matters considered elsewhere in this Award. 
Eritrea-Ethiopia Claims Commission, Prisoners of War, Eritrea’s Claim, Partial Award, 1 July 2003, §§ 73 and 79.
[footnotes in original omitted]
No data.
No data.