War Booty in the Modern Law of Armed Conflict
There is an often unnoticed lexical (and, by extension, substantive) controversy over the survival of war booty under the modern law of armed conflict. Most authors concede that this long-standing institution of the law of war has survived, albeit being severely restricted in its scope. Other commentators take the view that the notion has disappeared altogether.
In ancient times, the whole war enterprise was directed to gain territory and wealth by seizing enemy property. The wars of Assyria, Babylon, and later Rome provide examples of such conflicts. Under this conception of war as a predatory tool for enrichment and prestige, war booty was the whole aim of the war. It extended to all goods of the enemy, public and private, and even included their person through reduction of captured persons into slavery or extraction of ransom. War and booty were, thus, conterminous. One was nourished by the other. The aim of war being booty, the latter could only have the largest extension imaginable.
Mainstream View: Booty Survives but is Restricted
According to the majority contemporary view, war booty has not disappeared from the law of armed conflict. It has merely been considerably restricted in its scope. Taking something as booty implies that the seizing State not only exercises de facto power over the items taken, but that these things become its property and that the seizing State can therefore dispose of them at its discretion. The configuration of this modern law on booty is then as follows.
First, there is no booty regarding private property except for military papers, arms, and other martial material. The notion has been mainly restricted to some property of the State, i.e. to public property. In maritime warfare, any private goods seized are subjected to prize procedures, and for this reason, are not considered booty. These are prizes and must be subjected to a judgment by a prize court. Property passes only through the prize judgement and not through seizure. That is the main legal difference between booty and prizes: the time and way through which the property is acquired. There are no prizes in land warfare.
Second, the main domain of booty in land warfare (conduct of hostilities and occupied territories) is said to be acknowledged in Article 53(1) of the Hague Regulations of 1907.
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.
On the battlefield, all items of the enemy State serving warfare (e.g. weapons, tanks, mines, transport vehicles, etc.) are war booty, in analogy to the quoted provision. The view according to which public property is more generally subjected to the law of booty (and that Article 53 of Hague Convention IV is not applied to the battlefield) is no longer sustainable. However, it must be noted that State property found on the battlefield is almost without exception war booty; in such a context, it is highly unlikely that other State items than those useful for conducting military operations are found.
The goods subjected to booty must, according to the provision above, not only be State property, but moreover be useful for the conduct of war. This is interpreted to encompass also items which are useful in the context of war operations (e.g. sanitary material taken in a sanitary zone at some moment controlled by the adverse army; cash or funds which can be used to support military operations; etc.). In maritime warfare, warships of the adverse State are considered to be war booty, because they may be taken without a prize procedure. Prize procedures apply only to private-owned ships. Warships are acquired by the taking State on mere capture, without any prize procedure. The same applies to enemy military aircraft. Such warships or aircraft become thereby the property of the seizing State and can be destroyed, disabled, or incorporated into the fleet of the seizing State.
Third, the personal property of prisoners of war is not war booty. Article 4 of Hague Convention IV makes an exception for military items not being in their personal property but belonging to their State: “All their personal belongings, except arms, horses, and military papers, remain their property.” The domain of this exception is said to be the domain in which war booty remains applicable. Article 14(2) of Hague Convention IV reinforces this rule by stating indirectly the principle of non-booty for personal belongings: “It is likewise the function of the inquiry office to receive and collect all objects of personal use, valuables, letters, etc., found on the field of battle or left by prisoners who have been released on parole, or exchanged, or who have escaped, or died in hospitals or ambulances, and to forward them to those concerned.”
Likewise, Article 18 of the Third Geneva Convention (GC III) of 1949 holds,
All effects and articles of personal use, except arms, horses, military equipment and military documents, shall remain in the possession of prisoners of war, likewise their metal helmets and gas masks and like articles issued for personal protection. Effects and articles used for their clothing or feeding shall likewise remain in their possession, even if such effects and articles belong to their regulation military equipment.
The list of exceptions is extensive, but it is not regarded as exhaustive, so other items and means of transportation can also be confiscated. As an ICRC commentary to GC III says: “[P]risoners of war may have on them binoculars, communications equipment or other electronic gear issued to them for the execution of their duties. Such items are the movable property of the enemy prisoner’s State and may be confiscated by the Detaining Power as booty.”
Minority View: War Booty Abolished in the Modern Law
A minority view on this topic is that war booty has been completely abolished under the modern law, as set out by the Hague Regulations. Indeed, for some authors, the confiscations described above are not the outflow of any surviving right to booty. The conceptual difference between booty and such takings lies in this: (1) booty is the taking of some items for the enrichment of the seizing State, which also explains the lack of distinction of the source of the property, public or private, both leading manifestly to the same enrichment; (2) the modern takings (confiscations, sometimes also contributions or requisitions) are not based on the idea of enrichment but on the distinct aim of seizing goods for the conduct of hostilities or at least useful in that context. Thus, the seizing is put under the polar star of military necessity, a considerably narrower notion than that of enrichment. The notion of military necessity has here a restrictive function, not an expansive one. It abrogated the former right to booty and pillage and recognizes only the right to protect oneself by destroying such items (so that they cannot be used any more by the adverse party) or to reinforce oneself by incorporating such items into one’s own conduct of war (so that they sustain the military action undertaken). In the words of the above-quoted author,
The appropriation of objects that can be used in warfare is dictated by military necessity and is therefore justified; in contrast, the concept of booty encompasses the taking of items whose appropriation cannot be justified from the standpoint of military necessity, but which are intended to bring the person who appropriates them merely a material advantage. However, according to current legal principles, such a “right of booty” is granted neither to the state nor to individuals.
The consequence of this view is that other words and concepts should be used for these contemporary remnants of war booty, such as confiscation.
Conclusion
Words and legal concepts are linked to underlying phenomena of the real world and to aims pursued as well as legal constructions. The question of whether to maintain our vocabulary used for legal concepts when other aspects of the environment change requires us to probe into the philosophical depths and foundations of the law. Such an exercise allows a sharper understanding of these notions, requiring an exploration of ideas that are usually merely mentioned in passing without deeper reflection.
The matter addressed in this post could be considered a mere quibble over words; a purely lexical confrontation. But this would be a surface-level view. In fact, the issue goes far deeper into the definition and the very idea of war booty. In maritime warfare, the concept of war booty is excluded when a taking (of private property) is subjected to a prize procedure. While it could be argued that the concept of booty is analogously excluded when its aim is not enrichment but, rather, necessities of war, practice and legal opinion have not accepted this position. Overwhelmingly, the opinion of legal experts supports the position that the concept of war booty survives as an important legal construct and can have continued applicability in the context of military action driven by necessity. The aim of booty may have changed; the unilateral taking with immediate property effect remains and that is considered to be the core of booty.
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Robert Kolb is a Professor of Public International Law at the University of Geneva and former legal staff member of the ICRC. Prof Kolb is also a member of the legal section of the Swiss military high command (IHL section).
The views expressed are those of the author, and do not necessarily reflect the official position of the United States Military Academy, Department of the Army, or Department of Defense.
Articles of War is a forum for professionals to share opinions and cultivate ideas. Articles of War does not screen articles to fit a particular editorial agenda, nor endorse or advocate material that is published. Authorship does not indicate affiliation with Articles of War, the Lieber Institute, or the United States Military Academy West Point.
Photo credit: National Library of Scotland
