Pillage means theft during war. Curiously, Articles 8(2)(b)(xvi) and 8(2)(e)(v) of the ICC Statute prohibit: “Pillaging a town or place, even when taken by assault.” Only the first of these words has any legal significance. The remaining nine are beginning to cause a great deal of confusion that risks undermining justice.

Here is some evidence of that confusion:

• This past month, I attended a conference in Kinshasa, Democratic Republic of Congo on Economic Crimes in Times of War where a prosecutor I very much respect raised the inclusion of “a town or place, even when taken by assault” in this offense as a possible barrier to using pillage to address the illegal exploitation of natural resources;

• A number of academics writing about pillage have pointed to this language to suggest that this offense might not apply to commercial actors involved in the illegal exploitation of conflict commodities or that the war crime of pillage in the ICC Statute clearly contemplates other situations; and

• Perhaps most strangely, in the recent judgment against Congolese politician Jean-Pierre Bemba, the International Criminal Court itself has interpreted the words “a town or place, even when taken by assault” as implying that the pillage of a single house would not suffice.[1]

Having spent a number of years researching and writing about pillage as applied to natural resources (see the fruits of these labors here and a conference summary here), I very much disagree with these views. In what follows, I explain why I view these additional nine words as legally redundant, archaic, unnecessary and confusing. In particular, I provide five reasons why I am of this opinion in a bid to clarify what I perceive to be an unfortunate but understandable misreading.

First, the ICC’s Element of Crimes, which set out requisite legal elements for each crime in the ICC Statute, make no mention of “town”, “place” or “assault” at all, implying that these additional words are legally redundant. The Elements of Crimes read as follows:

1. The perpetrator appropriated certain property.
2. The perpetrator intended to deprive the owner of the property and to appropriate it for private or personal use.[*]
3. The appropriation was without the consent of the owner.
4. The conduct took place in the context of and was associated with an international or non-international armed conflict.
5. The perpetrator was aware of factual circumstances that established the existence of an armed conflict.

[*]     As indicated by the use of the term “private or personal use”, appropriations justified by military necessity cannot constitute the crime of pillaging

I have expressed disagreement with one particular aspect of this definition, namely “for private or personal use” (See here, paras. 16 – 17). My misgivings are, however, beside the point for present purposes. Regardless of this particular disagreement, it is still noteworthy that the definition in the ICC Elements makes no mention of “town”, “place” or assault.”

Second, other courts and tribunals that have prosecuted pillage (under the labels plunder, looting and spoliation) never refer to “town”, “place” or “assault” either. The Statutes of the International Criminal Tribunal for Rwanda (ICTR) and the Special Court for Sierra Leone (SCSL), for instance, simply list “pillage” among war crimes applicable within their jurisdiction.[2] The fact that these and other authoritative applications of pillage make no reference to “town”, “place” or “assault” confirms that this language in the ICC Statute is legally vacuous.

Third, the reference to “a town or place, even when taken by assault” is archaic and practically obsolete. This wording comes from The Hague Regulations of 1907, Article 28 of which states that “[t]he pillage of a town or place, even when taken by assault, is prohibited.” But the history behind the provision reveals that the wording has no contemporary significance – it merely covers over an old exception that has no relevance to modern warfare. In other words, it does no normative work.

As late as the eighteenth century, pillage was perfectly legal.[3] Its subsequent prohibition came in stages. In the first instance, pillage was prohibited but subject to one important exception. As Bentworth explains “the old custom of pillage… was still retained where a besieged town was taken after having been stormed; but this was by way of penalty for obstinacy.”[4] Although pillage was prohibited, if a local population required an invading force to go to the great trouble of laying a siege, their town could be pillaged if the siege proved successful.

In the second stage, however, the laws of war sought to repeal even this exception and outlaw pillage categorically. Thus, the Hague Regulations of 1907 emphasis that “the pillage of a town or place, even when taken by assault, is prohibited.” As this history reveals, the archaic language in this provision was only meant to insist that the prohibition now extended to and encompassed the exception too; it was never meant to restrict the basic, broad proposition that pillage means theft during war.

Fourth, the inclusion of the references to “town”, “place” and “assault” in the ICC Statute was unnecessary, even if one did want to remain faithful to The Hague Regulations of 1907. Tellingly, a different provision in the very same Hague Regulations also stipulates more simply that “[p]illage is formally prohibited.”[5] The decision to include the more obscure, archaic, legally redundant alternative that referenced “town”, “place” and “assault” in the ICC Statute was therefore a poor choice.

Fifth and finally, this language is especially confusing. On its face, it appears unclear, outdated and a reflection of only European experiences of warfare. Already, it has understandably misled some of the very best prosecutors, judges, and academics who work in this field. My only hope is that the poor drafting of this component of the ICC Statute, which is without legal effect, does not inhibit principled applications of the rule in appropriate cases.

 

[1] See Bemba Trial Judgement, para 117 (stating that “Article 8(2)(e)(v) relates to ‘pillaging a town or place’, and therefore the pillaging of a single house would not suffice.”)

[2] Statute of the International Criminal Tribunal for Rwanda, Article 4(f); Statute of the Special Court for Sierra Leone, Article 3(f ).

[3] In 1718, for example, Vattel reflected that “it is not, generally speaking, contrary to the laws of war to plunder and lay waste to a country.” Vattel, The Law of Nations, (1797), p. 291-292. For other examples, see Grotius, Rights of War and Peace, pp. 332-334. See also, Takahashi, Cases on International Law During the Chino-Japanese War, 1899, pp. 155-156.

[4] Norman Bentworth, The Law of Private Property in War, (1907), p. 8. Similarly, Lawrence explains that during the Middle Ages, “[w]hen a place was taken by storm it was given up to pillage and rapine, no attempt to restrain the passions of the victorious soldiery being made by their commanders.” Lawrence, The Principles of International Law, (1899) p. 38.

[5] Hague Regulations 1907, Article 47.