United States of America
Practice Relating to Rule 122. Pillage of the Personal Belongings of Persons Deprived of Their Liberty
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”.
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.
In the chapter on “Transport Procedures”, the manual states: “Detainee records and property will accompany them during transport.”
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.
The manual also states:
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.