Norma relacionada
United States of America
Practice Relating to Rule 52. Pillage
Section A. General
The US Field Manual (1956) provides: “The pillage of a town or place, even when taken by assault, is prohibited.”
United States, Field Manual 27-10, The Law of Land Warfare, US Department of the Army, 18 July 1956, as modified by Change No. 1, 15 July 1976, § 47.
Pillage is also prohibited in the territory of the parties to a conflict as well as in occupied territory.
United States, Field Manual 27-10, The Law of Land Warfare, US Department of the Army, 18 July 1956, as modified by Change No. 1, 15 July 1976, § 272.
The manual further states: “A member of the armed forces who before or in the presence of the enemy quits his place of duty to plunder or pillage is guilty of the offense of misbehavior before the enemy.”
United States, Field Manual 27-10, The Law of Land Warfare, US Department of the Army, 18 July 1956, as modified by Change No. 1, 15 July 1976, § 397.
It also provides: “In addition to the ‘grave breaches’ of the Geneva Conventions of 1949, the following acts are representative of violations of the law of war (‘war crimes’): … pillage.”
United States, Field Manual 27-10, The Law of Land Warfare, US Department of the Army, 18 July 1956, as modified by Change No. 1, 15 July 1976, § 504(j).
The US Air Force Pamphlet (1976), analysing the situations in both national and occupied territories, recalls: “Article 33 [of the 1949 Geneva Convention IV] prohibits … pillage (also prohibited in Art. 47 [of the 1907] Hague Regulations).”
United States, Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air Operations, US Department of the Air Force, 1976, § 14-4.
The Pamphlet also provides:
In addition to the grave breaches of the Geneva Conventions of 1949, the following acts are representative of situations involving individual criminal responsibility:
…
(8) Plunder or pillage of public or private property.
United States, Air Force Pamphlet 110-31, International Law – The Conduct of Armed Conflict and Air Operations, US Department of the Air Force, 1976, § 15-3(c)(8).
The US Soldier’s Manual (1984) states:
When searching dwellings in enemy towns or villages, do not take nonmilitary items. Theft is a violation of the laws of war and US law. Stealing private property will make civilians more likely to fight you or to support the enemy forces. You do not want to have to fight both the enemy armed forces and civilians.
United States, Your Conduct in Combat under the Law of War, Publication No. FM 27-2, Headquarters Department of the Army, Washington, November 1984, p. 23.
Under the US Instructor’s Guide (1985), pillage means “to loot, to deprive of money or property by violence”.
United States, Instructor’s Guide – The Law of War, Headquarters Department of the Army, Washington, April 1985, p. 28.
The Guide also states: “In addition to the grave breaches of the [1949] Geneva Conventions, the following acts are further examples of war crimes: … pillaging.”
United States, Instructor’s Guide – The Law of War, Headquarters Department of the Army, Washington, April 1985, p. 13.
The US Rules of Engagement for Operation Desert Storm (1991) prohibits looting.
United States, Desert Storm – Rules of Engagement, Pocket Card, US Central Command, January 1991, reprinted in Operational Law Handbook, International and Operational Law Department, The Judge Advocate General’s School, United States Army, Charlottesville, Virginia, 1995, pp. 8-7 and 8-8, § F.
The US Naval Handbook (1995) states: “The following acts are representative war crimes: … plunder and pillage of public or private property.”
United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-2.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Transportation, US Coast Guard, October 1995 (formerly NWP 9 (Rev. A)/FMFM 1-10, October 1989), § 6.2.5(8).
The US Manual for Military Commissions (2007), Part IV, Crimes and Elements, includes in the list of crimes triable by military commissions:
PILLAGING.
a. Text. “Any person subject to this chapter who intentionally and in the absence of military necessity appropriates or seizes property for private or personal use, without the consent of a person with authority to permit such appropriation or seizure, shall be punished as a military commission under this chapter may direct.”
b. Elements.
(1) The accused appropriated or seized certain property;
(2) The accused intended to appropriate or seize such property for private or personal use;
(3) The appropriation or seizure was without the consent of the owner of the property or other person with authority to permit such appropriation or seizure; and
(4) The appropriation or seizure took place in the context of and was associated with armed conflict.
c. Maximum punishment. Confinement for 20 years.
United States, Manual for Military Commissions, published in implementation of the Military Commissions Act of 2006, 10 U.S.C. §§ 948a, et seq., 18 January 2007, Part IV, § 6(5), p. IV-5.
The US Naval Handbook (2007) states that “[p]lunder and pillage of public or private property” are examples of acts that could be considered war crimes.
United States, The Commander’s Handbook on the Law of Naval Operations, NWP 1-14M/MCWP 5-12.1/COMDTPUB P5800.7, issued by the Department of the Navy, Office of the Chief of Naval Operations and Headquarters, US Marine Corps, and Department of Homeland Security, US Coast Guard, July 2007, § 6.2.6.
The US Manual for Military Commissions (2010), Part IV, Crimes and Elements, includes in the list of crimes triable by military commissions:
PILLAGING.
a. Text. “Any person subject to this chapter who intentionally and in the absence of military necessity appropriates or seizes property for private or personal use, without the consent of a person with authority to permit such appropriation or seizure, shall be punished as a military commission under this chapter may direct.”
b. Elements.
(1) The accused appropriated or seized certain property;
(2) The accused intended to appropriate or seize such property for private or personal use;
(3) The appropriation or seizure was without the consent of the owner of the property or other person with authority to permit such appropriation or seizure; and
(4) The appropriation or seizure took place in the context of and was associated with hostilities.
c. Maximum punishment. Confinement for 20 years.
United States, Manual for Military Commissions, published in implementation of Chapter 47A of Title 10, United States Code, as amended by the Military Commissions Act of 2009, 10 U.S.C, §§ 948a, et seq., 27 April 2010, § 5(5), p. IV-5.
The US Regulations Governing the Trials of Accused War Criminals in the Pacific Region I (1945) established military commissions which had jurisdiction over offences such as “plunder of public or private property”.
United States, Regulations Governing the Trials of Accused War Criminals in the Pacific Region I, 1945, Regulation 5.
The US Regulations Governing the Trials of Accused War Criminals in the Pacific Region II (1945) established military commissions which had jurisdiction over offences such as “plunder of public or private property”.
United States, Regulations Governing the Trials of Accused War Criminals in the Pacific Region II, 1945, Regulation 2(b).
Under the US Uniform Code of Military Justice (1950), abandoning one’s place of duty to plunder or pillage and engaging in looting or pillaging are punishable offences.
United States, Uniform Code of Military Justice, 1950, Articles 99 and 103.
Under the US War Crimes Act (1996), violations of Article 28 of the 1907 Hague Regulations are war crimes.
United States, War Crimes Act, 1996, Section 2441(c)(2).
The US Military Commissions Act (2006), passed by Congress following the Supreme Court’s decision in Hamdan v. Rumsfeld in 2006, amends Title 10 of the United States Code as follows:
Ҥ 950v. Crimes triable by military commissions
“ …
“(b) OFFENSES.—The following offenses shall be triable by military commission under this chapter at any time without limitation:
“ …
“(5) PILLAGING.—Any person subject to this chapter who intentionally and in the absence of military necessity appropriates or seizes property for private or personal use, without the consent of a person with authority to permit such appropriation or seizure, shall be punished as a military commission under this chapter may direct.
United States, Military Commissions Act, 2006, Public Law 109-366, Chapter 47A of Title 10 of the United States Code, 17 October 2006, p. 120 Stat. 2626, § 950v(b)(5).
The US Military Commissions Act (2009) amends Chapter 47A of Title 10 of the United States Code as follows:
“ § 950t. Crimes triable by military commission
“The following offenses shall be triable by military commission under this chapter at any time without limitation:
“ …
“(5) PILLAGING.—Any person subject to this chapter who intentionally and in the absence of military necessity appropriates or seizes property for private or personal use, without the consent of a person with authority to permit such appropriation or seizure, shall be punished as a military commission under this chapter may direct.
United States, Military Commissions Act, 2009, § 950t(5).
In the Pohl case before the US Military Tribunal at Nuremberg in 1947, the accused, top ranking officials of the SS, were charged with taking part in the commission of plunder of public and private property. They were found guilty, inter alia, of the looting of property of Jewish civilians in eastern occupied territories.
United States, Military Tribunal at Nuremberg, Pohl case, Judgment, 3 November 1947.
In the Von Leeb case (The German High Command Trial) before the US Military Tribunal at Nuremberg in 1948, the accused, former high-ranking officers in the German army and navy, were charged, inter alia, with war crimes and crimes against humanity against civilians in that they participated in atrocities such as plunder of public and private property. The evidence showed that the looting and spoliation which had been carried out in the various occupied countries were not the acts of individuals, but were carried out by the German Government and the Wehrmacht for the needs of both. It was carried out on a larger scale than was possible by the army, as shown by the evidence, and seemed to have been sometimes based upon the idea that in looting, the individual was not depriving the victim of the property, but was depriving the Reich and the Wehrmacht. However, the evidence failed to show any specific criminal responsibility on the part of the accused in connection with charges of plunder and spoliation. Furthermore, the Tribunal stated that “most of the prohibitions of both the Hague and Geneva Conventions, considered in substance, are clearly an expression of the accepted views of civilized nations”. It notably mentioned Article 47 of the 1907 Hague Regulations. The Tribunal added that military necessity “does [not] justify the seizure of property or goods beyond that which is necessary for the use of the army of occupation. Looting and spoliation are none the less criminal in that they were conducted, not by individuals, but by the army and the State.”
United States, Military Tribunal at Nuremberg, Von Leeb case (The German High Command Trial), Judgment, 28 October 1948.
In its judgment in the John Schultz case in 1952, the US Court of Military Appeals listed robbery, larceny and burglary as crimes “universally recognized as properly punishable under the law of war”.
United States, Court of Military Appeals, John Schultz case, Judgment, 5 August 1952.
In 1992, in its final report to Congress on the conduct of the Gulf War, the US Department of Defense condemned the following Iraqi war crimes: “looting of civilian property in violation of [the 1907 Hague Regulations]”, “pillage, in violation of Article 47 [of the 1907 Hague Regulations]” and “pillage of Kuwaiti civilian hospitals, in violation of Articles 55, 56, 57, and 147 [of the 1949 Geneva Convention IV]”.
United States, Department of Defense, Final Report to Congress on the Conduct of the Persian Gulf War, 10 April 1992, Appendix O, The Role of the Law of War, ILM, Vol. 31, 1992, pp. 632 and 635.
