Plunder of public or private property

Notion(s) Filing Case
Appeal Judgement - 17.12.2004 KORDIĆ & ČERKEZ

79. The Appeals Chamber has not previously set out a definition for the crime of plunder as mentioned in Article 3(e) of the Statute. The Trial Chamber held that the essence of the offence was defined as:

all forms of unlawful appropriation of property in armed conflict for which individual criminal responsibility attaches under international criminal law, including those acts traditionally described as “pillage’”[1]  

The Appeals Chamber concurs with this assessment. It notes that in accordance with Geneva Convention IV, the Statute itself does not draw a difference between public or private property.[2]

82. The question remains at what point the breach actually involves grave consequences for the victim. The Trial Chamber in Čelebići referred to the Tadić Appeal Decision on Jurisdiction, when it held that there is a consequential link between the monetary value of the appropriated property and the gravity of the consequences for the victim.[3] The Appeals Chamber agrees with this conclusion. However, it stresses that the assessment of when a piece of property reaches the threshold level of a certain value can only be made on a case-by-case basis and only in conjunction with the general circumstances of the crime.[4]

83. The Appeals Chamber is, moreover, of the view that a serious violation could be assumed in circumstances where appropriations take place vis-à-vis a large number of people, even though there are no grave consequences for each individual. In this case it would be the overall effect on the civilian population and the multitude of offences committed that would make the violation serious.

84. The Appeals Chamber therefore finds that the crime of plunder is committed when private or public property is appropriated intentionally and unlawfully. Furthermore, the general requirements of Article 3 of the Statute in conjunction with Article 1 of the Statute relating to the seriousness of the crime must be fulfilled.

[1] Trial Judgement, para. 352 (footnote omitted), referring to Čelebići Trial Judgement.

[2] Cf. Commentary to Geneva Convention IV [Pictet, Jean, ed., Commentary, IV Geneva Convention relative to the Protection of Civilian Persons in Time of War (1949), International Committee of the Red Cross, 1958] p. 226; Tadić Appeal Decision on Jurisdiction, para. 94.

[3] Čelebići Trial Judgement, para. 1154.

[4] The Appeals Chamber in this context notes that the requirement of grave consequences stems from the special jurisdictional provisions of the Statute. This discussion is therefore without prejudice to the general – less stringent – requirements for the crime of plunder under international criminal law.

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ICTR Statute Article 4(f) ICTY Statute Article 3(e)
Notion(s) Filing Case
Decision on Motions for Acquittal - 11.03.2005 HADŽIHASANOVIĆ & KUBURA

37. […] The Appeals Chamber therefore finds that the customary international law rule embodied in Article 3(e) is applicable in all situations of armed conflict [international and non-international], and is not limited to occupied territory.[1]

38. The Appeals Chamber is satisfied that violations of the prohibition against “plunder of public or private property” under Rule 3(e) entail, under customary law, the individual criminal responsibility of the person breaching the rule. […]

See also the omitted portions of paras 37-38 where the Appeals Chamber discusses legal sources.

[1]           Kordić Appeals Judgement, para. 78 (“[t]he prohibition of plunder is general in its application and not limited to occupied territories only”).

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ICTY Statute Article 3(e)