Don’t conflate illegal pillage with “spoils of war” and other lawful takings

On Just Security, a Canadian law school professor pilloried a U.S. presidential candidate for saying in reference to Iraq: “You know, it used to be to the victor belong [sic] the spoils.  Now, there was no victor there, believe me…But I always said:  Take the oil.”  To the professor, this “called for actions that amount to [the] war crime” of “pillage.”

Whatever one’s political views may be, let’s get some more clarity on this issue; I believe it’s much more nuanced than the professor’s post suggests.  Among other things, I disagree with the notion that every taking is, ipso facto, an unlawful “pillage” under international law.

In his essay the professor concedes that the candidate’s statement “was true over two hundred years ago” but claims that in the intervening period “[s]tates decided to criminalize pillage in armed conflicts.”  Curiously absent is any real discussion of what U.S. law and the International Committee of the Red Cross (ICRC) considers to be “spoils of war” under international law.  Nor is there any mention of several other legal concepts that could result in the transfer of assets in the aftermath of armed conflict.

To be clear, the purpose of my post is not to support or critique any presidential candidate, or to try to figure out exactly what was meant or precisely at what point in time the remark was supposed to reference.  I’m just not going to attempt to get into that debate, and I’m also not going to try to divine the political meaning of the assertions of either the candidate or the professor.  That’s for readers to determine.

Rather, I simply want to speak in broad generic terms as to some of the circumstances when a nation might legitimately acquire property from another country in the context of armed conflict, as well as other situations in which a government may be lawfully obliged to turn over assets to another power as a result of belligerent acts.

Let’s start by defining our terms.  Pillage is indeed an international crime, but it does not make illegitimate every seizure of property in a defeated state.  Rather, pillage applies principally to private property.  (Incidentally, in most nations with oil resources – including Iraq the oil itself is not private property, but is owned by the government and it’s extracted by a government-owned company or under license by a commercial producer.)

Anyway, here’s how the ICRC defines pillage:

Pillage (or plunder) is defined in Black’s Law Dictionary as “the forcible taking of private property by an invading or conquering army from the enemy’s subjects.” The Elements of Crimes of the Statute of the International Criminal Court specifies that the appropriation must be done “for private or personal use.”  As such, the prohibition of pillage is a specific application of the general principle of law prohibiting theft.

In contrast, U.S. law defines the concept of “spoils of war” in 50 U.S.C. § 2204 as “enemy movable property lawfully captured, seized, confiscated, or found which has become United States property in accordance with the laws of war.”  That statute tracks with the still-in-effect Hague Regulations of 1907Those Regulations provide in Article 53 that:

An army of occupation can only take possession of cash, funds, and realizable securities which are strictly the property of the State, depots of arms, means of transport, stores and supplies, and, generally, all movable property belonging to the State which may be used for military operations.

All appliances, whether on land, at sea, or in the air, adapted for the transmission of news, or for the transport of persons or things, exclusive of cases governed by naval law, depots of arms, and, generally, all kinds of munitions of war, may be seized, even if they belong to private individuals, but must be restored and compensation fixed when peace is made.

The ICRC likewise explains what becomes “spoils of war”:

Movable government property that can be used for military purposes becomes spoils of war.  It can be freely seized by the occupying power, whose property it becomes without the need for compensation.  Such property includes, for example, cash, other financial assets, realizable securities, all military equipment, and means of military transport.

So it would seem that the questions as to oil (or any other asset) in an occupied state would be:  Is it government property?  Is it movable?  Can it be used for military purposes?  Obviously, the issue is very fact-specific (for example, Iraq is not currently an occupied state), but international law would not appear to rule out every uncompensated seizure of oil by a bona fide occupying power.

Parenthetically, in a related matter, the ICRC has noted that parties to the conflict may seize military equipment belonging to an adverse party as war booty,” and further reports that some nations assert that “private property actually used for hostile purposes found on the battlefield or in a combat zone may be appropriated by a belligerent State as booty of war.”

Immovable property is considered differently under international law. The Hague Regulations provide in Article 55 that:

The occupying State shall be regarded only as administrator and usufructuary of public buildings, real estate, forests, and agricultural estates belonging to the hostile State, and situated in the occupied country. It must safeguard the capital of these properties, and administer them in accordance with the rules of usufruct.

Not being much of an expert on usufruct,” I found New Zealand’s Military Manual (1992) – which is listed by the ICRC on this issue – does a good job in explaining a bit more as to what this means:

Enemy public immovable property may be administered and used but it may not be confiscated.

Real property belonging to the State which is essentially of a civil or non-military character, such as public buildings and offices, land, forests, parks, farms, and mines, may not be damaged unless its destruction is imperatively demanded by the exigencies of war. The Occupying Power becomes the administrator and usufructuary of the property and must not exercise its rights in such a wasteful or negligent way as will decrease the property’s value. A usufructuary has no right of disposal or sale.

The Occupying Power may, however, let or utilize public land and buildings, sell the crops on public land, cut and sell timber and work the mines but he must not make a contract or lease extending beyond the conclusion of the war and the cutting or mining must not exceed what is necessary or usual.  It must not constitute abusive exploitation.

I think the last sentence is worthy of emphasis in this discussion.  Of course, we also need to remember that, in any event, no conquering nation can lawfully reduce the country it is occupying to destitution. For example, the DoD Law of War Manual points out (§11.14.1):

To the fullest extent of the means available to it, the Occupying Power has the duty of ensuring the sufficiency of food and medical supplies for the population; it should, in particular, bring in the necessary foodstuffs, medical stores, and other articles if the resources of the occupied territory are inadequate.  Other articles may be understood to include all urgently required goods that may be essential to the “life of the territory.”

That said, there may be another way a nation could acquire assets from a defeated nation beyond that to which an occupying power may be entitled.  Specifically, there appears to be no “per se” bar in international law to incorporating economic matters – i.e., to include resource allocations – as part of a victorious belligerent’s demands in a peace settlement.

Furthermore, wholly apart from the law of occupation and/or peace negotiations, there is the rather well-settled principle in international law of State responsibility.  Its application is not limited to armed conflict, but could arise in that context, and might result in a transfer of assets if a belligerent (victor or vanquished) can establish it was a victim of an international wrong perpetrated by the adversary state.

Specifically, the principle holds that “[e]very internationally wrongful act of a State entails the international responsibility of that State.”  The concept of “responsibility” includes:

  1. The responsible State is under an obligation to make full reparation for the injury caused by the internationally wrongful act.
  1. Injury includes any damage, whether material or moral, caused by the internationally wrongful act of a State.

Moreover, reparation for the injury caused by the internationally wrongful act shall take the form of restitution, compensation and satisfaction, either singly or in combination.”   Additionally, the International Court of Justice’s statute explicitly authorizes it to adjudicate the nature or extent of the reparation to be made for the breach of an international obligation.”  Again, it would not seem that an otherwise appropriate reparation would necessarily be barred by international law simply because it involved a commodity transfer.

Importantly, as I’ve said, all of this is very fact-specific (the U.S, for example, is no longer an occupying power in Iraq) but I think a fuller discussion of the intricacies of the law that might apply is helpful to inform the dialog and to reduce misunderstandings in future situations.

Just for the record, I am a registered independent, and as a retired military officer I do not publicly support any candidate.

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