Practice Relating to Rule 52. Pillage
The Military Manual (1993) of the Netherlands states: “Pillage is the taking of goods belonging to civilians during an armed conflict. It is a form of theft. Pillage is prohibited.”
The manual also specifically states that, in the course of non-international armed conflicts, pillage is prohibited at any time and anywhere.
The Military Handbook (1995) of the Netherlands provides: “Pillage, the taking of property of civilians, is prohibited.”
The Military Manual (2005) of the Netherlands states: “Pillage, and the unjustified destruction or seizure of enemy property, are forbidden.”
The manual further states: “Pillage is the removal of civilian property during an armed conflict. It is a form of theft. Pillage is forbidden. Pillage must be distinguished from the seizure of goods as spoils of war.”
In its chapter on non-international armed conflict, the manual states:
It is expressly prohibited to carry out the following acts against the civilian population or individual civilians, wounded, sick or prisoners:
- threatening anyone with the above-mentioned acts or treatment.
In its chapter on peace operations, the manual states that “looting or pillage are prohibited”.
The Definition of War Crimes Decree (1946) of the Netherlands includes “pillage” in its list of war crimes.
Under the Military Criminal Code (1964), as amended in 1990, of the Netherlands, the soldier “who abuses, in time of war, the power, opportunities or means given to him as a soldier for committing theft may be punished for pillage”.
Under the International Crimes Act (2003) of the Netherlands, “pillaging a town or place, even when taken by assault” is a crime, whether committed in an international or a non-international armed conflict.
In the Esau case
in 1948, the Special Criminal Court at Hertogenbosch in the Netherlands acquitted the chief commissioner of Germany’s high frequency research council of charges of plunder of public and private property for ordering the removal of scientific instruments and gold from factories in the Netherlands. The Court held that the accused had only ordered the removal of property which he considered would be of assistance to the German war effort, in accordance with Article 53 of the 1907 Hague Regulations. On appeal by the prosecutor in 1949, the Special Court of Cassation of the Netherlands quashed the lower court’s decision, holding that the relevant law of the Netherlands adopted the same definition of war crimes as Article 6(b) of the 1945 IMT Charter (Nuremberg) and included “plunder of public and private property, wanton destruction of cities … or devastation not justified by military necessity”. According to the Court, the requirement that the acts not be justified by military necessity did not apply to plunder as this was prohibited by international law. Accordingly, the removal of the property in question was unlawful unless the property fell within one of the categories of goods which the occupant was exceptionally entitled to seize from private individuals by virtue of Article 53(2) of the 1907 Hague Regulations. Considering the property in question, the Court concluded that, with the exception of the short wave transmitter, none of the goods could be deemed to be excepted from the general inviolability of private property in war.
In the Fiebig case
before the Special Criminal Court at The Hague in the Netherlands in 1949, the accused, a delegate of the Minister of the Reich for Armaments and Munitions, was found guilty of war crimes for participating in the economic spoliation of the Netherlands and the removal of stocks of food. As to the contention of state of necessity raised by the accused, the Court held that, even if there was a so-called “war necessity” for Germany to plunder occupied countries, this was no excuse for a method of plunder which was contrary to the laws of war, in the very circumstances envisaged by the treaty which prohibited it. It also stressed that the fact that spoliation of occupied territory was a systematic government policy of Germany made it a fortiori
a prohibited act and a war crime.
Charges [brought against Gatanazi]: