Pillaging of assets and property

IHL prohibits the pillaging of property and assets in both international and non-international armed conflicts. Pillaging is considered a war crime under IHL. It is a long-standing rule of IHL which permits no exceptions.

What counts as “pillaging”?

Put simply, pillaging means theft that occurs during an armed conflict. Under IHL, pillaging is defined as the intentional and unlawful appropriation of property for personal or private use.

Pillaging encompasses a broad range of acts. It is not limited to the forcible taking of property but also encompasses the indirect taking of property. For businesses operating in conflict zones, this could include the acquisition of property or an asset which is unlawful because it was done through the use of threats, intimidation or a position of power derived from the business’s presence in the armed conflict.

The prohibition of pillaging applies not only to the enemy’s property in a conflict, but also to the property of civilians, the wounded, sick or shipwrecked persons and prisoners of war.

What counts as “property” and “assets” in this context?

Property and assets are broadly defined under IHL to encompass both public and private property.

The definition of property includes natural resources, such as oil and gas. Businesses operating in the natural resources sector must be especially prudent to not illegally exploit natural resources, which could amount to pillaging.

Recent prosecutions of businesses and businesspeople for pillaging

In the aftermath of World War II, numerous representatives of businesses were prosecuted for pillaging in Nazi-controlled territory to support the war effort.

However, prosecutions of businesses and businesspeople for pillaging are not a far-fetched or historical risk. More recently, in 2015 a Belgian-American national and businessman named Michel Desaedeleer was arrested and charged with pillaging in connection with the trafficking of blood diamonds during the armed conflict in Sierra Leone.

The non-international armed conflict in Sierra Leone spanned more than a decade. During this conflict, there was an ongoing struggle between governmental forces and rebel groups, in particular the Revolutionary United Front (RUF), and the perpetration of war crimes and crimes against humanity, including murder, abduction, sexual violence and the conscription of child soldiers. Owing to the widespread international crimes committed and the devastation caused by the war, the United Nations Security Council in cooperation with the government of Sierra Leone created the Special Court for Sierra Leone (SCSL).

During the conflict, the RUF forced civilians to mine diamonds which it then sent to the former Liberian President, Charles Taylor, who was convicted in 2012 by the SCSL for war crimes and crimes against humanity, for on-sale on the international market. Mr Desaedeleer was accused of having participated, along with the RUF and Charles Taylor in the war crime of forced enslavement of civilians for the purpose of mining blood diamonds and then looting the blood diamonds. Mr Desaedeleer’s involvement was alleged to have been that the RUF used him to export diamonds from Sierra Leone and that Mr Desaedeleer facilitated this by exporting the diamonds directly from the mines, bypassing the need to travel via Sierra Leone’s capital city, Freetown. A deal to this effect was concluded between Mr Desaedeleer’s company and the founder of the RUF, who was at the time the President of the Commission for the Management of Strategic Mineral Resources. It was alleged that the RUF earned between USD $25 million and $125 million per month as a result of this deal, which it used to purchase weapons and equipment for its combat efforts. Mr Desaedeleer was arrested in 2015 on a European Arrest Warrant issued by Belgian authorities. He died in 2016 while in custody in Belgium.

While Mr Desaedeleer died before he was prosecuted for the alleged crimes, the case is significant because it marked the first time that a businessperson had been arrested for alleged pillaging and looting of property as a war crime. It demonstrates that IHL and corresponding risks apply broadly to businesspeople who are either directly or indirectly linked to an armed conflict. Consequently, the case should serve as a timely reminder for businesses and businesspeople that entering into deals and agreements with parties to an armed conflict could entail significant legal consequences.

How can businesses avoid pillaging?

A business operating in a conflict zone must use extreme caution to ensure that it, and its personnel, do not acquire resources or property without the freely given consent of the owner. This might raise questions about which authorities have effective control over a particular region.