CHAPTER IIIBOOTY AND PLUNDERINGBooty.In section 1, the inhabitant of the enemy’s territory was described as a subject of legal rights and duties, who, so far as the nature of war allows, may continue to live protected as in time of peace by the course of law; further, in section 2, property, whether it be public or private, was likewise, so far as war allows it, declared to be inviolable—it therefore follows logically that there can exist no right to the appropriation of the property,i.e., a right to booty or plundering. Opinions as to this have, in the course of the last century, undergone a complete change; the earlier unlimited right of appropriation in war is to-day recognized in regard to public property as existing only in defined circumstances.In the development of the principles recognized to-day we have to distinguish.1. State property and unquestionably:(a) immovable,97(b) movable.972. Private property:(a) immovable,(b) movable.Immovable State property is now no longer forfeited as booty; it may, however, be used if such use is in the interests of military operation, and even destroyed, or temporarily administered. While in the wars of the First French Empire, Napoleon, in numerous cases, even during the war itself, disposed of the public property of the enemy (domains, castles, mines, salt-works) in favor of his Marshals and diplomatists, to-day an appropriation of this kind is considered by international opinion to be unjustified and, in order to be valid, requires a formal treaty between the conqueror and the conquered.The State realty may be used but must not be wasted.The Military Government by the army of occupation is only a Usufructuarypro tempore. It must, therefore, avoid every purposeless injury, it has no right to sell or dispose of the property. According to this juristic view the military administration of the conqueror disposes of the public revenue and taxes which are raised in the occupied territory, with the understanding, however, that the regular and unavoidable expenses of administration continue to be defrayed. The military authority controls the railways and telegraphs of the enemy’s State, but here also it possesses only the right of use and has to give back the material after the end of the war. In theadministration of the State forests, it is not bound to follow the mode of administration of the enemy’s Forest authorities, but it must not damage the woods by excessive cutting, still less may it cut them down altogether.State Personalty is at the mercy of the victor.Movable State property on the other hand can, according to modern views, be unconditionally appropriated by the conqueror.This includes public funds,98arms, and munition stores, magazines, transport, material supplies useful for the war and the like. Since the possession of things of this kind is of the highest importance for the conduct of the war, the conqueror is justified in destroying and annihilating them if he is not able to keep them.On the other hand an exception is made as to all objects which serve the purposes of religious worship, education, the sciences and arts, charities and nursing. Protection must therefore be extended to: the property of churches and schools, of libraries and museums, of almshouses and hospitals. The usual practise of the Napoleonic campaigns99so ruthlessly resorted to of carrying off art treasures, antiquities,and whole collections, in order to incorporate them in one’s own art galleries, is no longer allowed by the law of nations to-day.100Private realty.Immovable private property may well be the object of military operations and military policy, but cannot be appropriated as booty, nor expended for fiscal or private purposes of acquisition. This also includes, of course, the private property of the ruling family, in so far as it really possesses this character and is not Crown Lands, whose fruits are expended as a kind of Civil List or serve to supplement the same.Private personalty.Movable private property, finally, which in earlier times was the undeniable booty of the conqueror, is to-day regarded as inviolable. The carrying off of money, watches, rings, trinkets, or other objects of value, is therefore to be regarded as criminal robbery and to be punished accordingly.The appropriation of private property is regarded as partially permissible in the case of those objects which the conquered combatant carries on his own person. Still here also, opinions against the practise make it clear that the taking away of objects of value, money, and such-like is not permissible, and onlythose required for the equipment of troops are declared capable of appropriation.The recognition of the inviolability of private property does not of course exclude the sequestration of such objects as can, although they are private property, at the same time be regarded as of use in war. This includes, for example, warehouses of supplies, stores of arms in factories, depots of conveyances or other means of traffic, as bicycles, motor cars, and the like, or other articles likely to be of use with advantage to the army, as telescopes, etc. In order to assure to the possessors compensation from their government, equity enjoins that a receipt be given for the sequestration.“Choses in action.”Logically related to movable property are the so-called “incorporeal things.” When Napoleon, for example, appropriated the debts due to the Elector of Hesse and thus compelled the Elector’s debtors to pay their debts to him; when he furthermore in 1807 allowed the debts owed by the inhabitants of the Duchy of Warsaw to Prussian banks and other public institutions, and indeed even to private persons in Prussia, to be assigned by the King of Prussia, and then sold them to the King of Saxony for 200 million francs, this was, according to the modern view, nothing better than robbery.Plundering is wicked.Plundering is to be regarded as the worst form of appropriation of a stranger’s property. By this isto be understood the robbing of inhabitants by the employment of terror and the abuse of a military superiority. The main point of the offense thus consists in the fact that the perpetrator, finding himself in the presence of the browbeaten owner, who feels defenseless and can offer no opposition, appropriates things, such as food and clothing, which he does not want for his own needs. It is not plundering but downright burglary if a man pilfers things out of uninhabited houses or at times when the owner is absent.Plundering is by the law of nations to-day to be regarded as invariably unlawful. If it may be difficult sometimes in the very heat of the fight to restrain excited troops from trespasses, yet unlawful plundering, extortion, or other violations of property, must be most sternly punished, it matters not whether it be done by members of unbroken divisions of troops or by detached soldiers, so-called marauders, or by the “hyenas of the battlefield.” To permit such transgressions only leads, as experience shows, to bad discipline and the demoralization of the Army.101In the Franco-Prussian War, plundering and taking of booty were on the German side sternly forbidden. The Articles of War in question were repeatedly recalled to every soldier just as in time of peace, also numerous orders of the day were issued on the part of the higher authorities. Transgressions were ruthlessly punished, in some cases even after the War.
CHAPTER IIIBOOTY AND PLUNDERING
Booty.
In section 1, the inhabitant of the enemy’s territory was described as a subject of legal rights and duties, who, so far as the nature of war allows, may continue to live protected as in time of peace by the course of law; further, in section 2, property, whether it be public or private, was likewise, so far as war allows it, declared to be inviolable—it therefore follows logically that there can exist no right to the appropriation of the property,i.e., a right to booty or plundering. Opinions as to this have, in the course of the last century, undergone a complete change; the earlier unlimited right of appropriation in war is to-day recognized in regard to public property as existing only in defined circumstances.
In the development of the principles recognized to-day we have to distinguish.
1. State property and unquestionably:
(a) immovable,97(b) movable.97
(a) immovable,97
(b) movable.97
2. Private property:
(a) immovable,(b) movable.
(a) immovable,
(b) movable.
Immovable State property is now no longer forfeited as booty; it may, however, be used if such use is in the interests of military operation, and even destroyed, or temporarily administered. While in the wars of the First French Empire, Napoleon, in numerous cases, even during the war itself, disposed of the public property of the enemy (domains, castles, mines, salt-works) in favor of his Marshals and diplomatists, to-day an appropriation of this kind is considered by international opinion to be unjustified and, in order to be valid, requires a formal treaty between the conqueror and the conquered.
The State realty may be used but must not be wasted.
The Military Government by the army of occupation is only a Usufructuarypro tempore. It must, therefore, avoid every purposeless injury, it has no right to sell or dispose of the property. According to this juristic view the military administration of the conqueror disposes of the public revenue and taxes which are raised in the occupied territory, with the understanding, however, that the regular and unavoidable expenses of administration continue to be defrayed. The military authority controls the railways and telegraphs of the enemy’s State, but here also it possesses only the right of use and has to give back the material after the end of the war. In theadministration of the State forests, it is not bound to follow the mode of administration of the enemy’s Forest authorities, but it must not damage the woods by excessive cutting, still less may it cut them down altogether.
State Personalty is at the mercy of the victor.
Movable State property on the other hand can, according to modern views, be unconditionally appropriated by the conqueror.
This includes public funds,98arms, and munition stores, magazines, transport, material supplies useful for the war and the like. Since the possession of things of this kind is of the highest importance for the conduct of the war, the conqueror is justified in destroying and annihilating them if he is not able to keep them.
On the other hand an exception is made as to all objects which serve the purposes of religious worship, education, the sciences and arts, charities and nursing. Protection must therefore be extended to: the property of churches and schools, of libraries and museums, of almshouses and hospitals. The usual practise of the Napoleonic campaigns99so ruthlessly resorted to of carrying off art treasures, antiquities,and whole collections, in order to incorporate them in one’s own art galleries, is no longer allowed by the law of nations to-day.100
Private realty.
Immovable private property may well be the object of military operations and military policy, but cannot be appropriated as booty, nor expended for fiscal or private purposes of acquisition. This also includes, of course, the private property of the ruling family, in so far as it really possesses this character and is not Crown Lands, whose fruits are expended as a kind of Civil List or serve to supplement the same.
Private personalty.
Movable private property, finally, which in earlier times was the undeniable booty of the conqueror, is to-day regarded as inviolable. The carrying off of money, watches, rings, trinkets, or other objects of value, is therefore to be regarded as criminal robbery and to be punished accordingly.
The appropriation of private property is regarded as partially permissible in the case of those objects which the conquered combatant carries on his own person. Still here also, opinions against the practise make it clear that the taking away of objects of value, money, and such-like is not permissible, and onlythose required for the equipment of troops are declared capable of appropriation.
The recognition of the inviolability of private property does not of course exclude the sequestration of such objects as can, although they are private property, at the same time be regarded as of use in war. This includes, for example, warehouses of supplies, stores of arms in factories, depots of conveyances or other means of traffic, as bicycles, motor cars, and the like, or other articles likely to be of use with advantage to the army, as telescopes, etc. In order to assure to the possessors compensation from their government, equity enjoins that a receipt be given for the sequestration.
“Choses in action.”
Logically related to movable property are the so-called “incorporeal things.” When Napoleon, for example, appropriated the debts due to the Elector of Hesse and thus compelled the Elector’s debtors to pay their debts to him; when he furthermore in 1807 allowed the debts owed by the inhabitants of the Duchy of Warsaw to Prussian banks and other public institutions, and indeed even to private persons in Prussia, to be assigned by the King of Prussia, and then sold them to the King of Saxony for 200 million francs, this was, according to the modern view, nothing better than robbery.
Plundering is wicked.
Plundering is to be regarded as the worst form of appropriation of a stranger’s property. By this isto be understood the robbing of inhabitants by the employment of terror and the abuse of a military superiority. The main point of the offense thus consists in the fact that the perpetrator, finding himself in the presence of the browbeaten owner, who feels defenseless and can offer no opposition, appropriates things, such as food and clothing, which he does not want for his own needs. It is not plundering but downright burglary if a man pilfers things out of uninhabited houses or at times when the owner is absent.
Plundering is by the law of nations to-day to be regarded as invariably unlawful. If it may be difficult sometimes in the very heat of the fight to restrain excited troops from trespasses, yet unlawful plundering, extortion, or other violations of property, must be most sternly punished, it matters not whether it be done by members of unbroken divisions of troops or by detached soldiers, so-called marauders, or by the “hyenas of the battlefield.” To permit such transgressions only leads, as experience shows, to bad discipline and the demoralization of the Army.101
In the Franco-Prussian War, plundering and taking of booty were on the German side sternly forbidden. The Articles of War in question were repeatedly recalled to every soldier just as in time of peace, also numerous orders of the day were issued on the part of the higher authorities. Transgressions were ruthlessly punished, in some cases even after the War.