44. The term “appropriate” also includes indirect appropriation from an intermedi- ary by purchasing stolen property. First and foremost, a literal interpretation of the ICC Elements of Crimes supports this reasoning. Given that the term “appropriate” appears in the elements without qualification, a literal interpretation would extend the term to situations where a purchaser “appropriates” the property from a warring faction or foreign army. As this section will show, an analysis of customary international law on the topic provides compelling corroboration of this literal interpretation.
45. A considerable body of international precedent explicitly supports the view that receiving stolen property during war falls within the rubric of the term “appropriate” as employed in the ICC Elements of Crimes. In one example, an individual named Willi Buch was convicted of pillage for purchasing silverware at auction, which the German Kommandantur at Saint-Die had illegally requisitioned in occupied France.91 In a similar case, a German couple and their daughters were convicted of pillage for purchasing furniture and other property from a German custodian in charge of an aban- doned farm.92 When reflecting upon the daughters’ convictions, the UN War Crimes Commission reasoned that “[t]he case against the daughters of the Bommer couple is an illustration of how receiving stolen goods may, under the same principles, equally constitute a war crime.”93
46. A range of other cases apply this thinking to corporate representatives for pil- lage, by openly accepting that receiving stolen property constitutes pillage. A Tribunal of Military Government for the French Zone of Occupation in Germany tried and con- victed representatives of the Roechling firm for pillage arising out of the commerce in illegally seized scrap metal from the German Raw Materials Trading Company, known by the acronym ROGES.94 Herman Roechling, the director of the Roechling firm, was convicted of pillage for purchasing illegally seized property known as “Booty Goods” from ROGES. The tribunal rejected Roechling’s claim that the seizures were justified by the Reich annexing French territory because “[k]nowingly to accept a stolen object from the thief constitutes the crime of receiving stolen goods.”95 Hermann Roechling was thus convicted of pillage on the basis that he was “a receiver of looted property.”96
3 6 C O R P O R A T E W A R C R I M E S
47. In a much larger number of instances, individuals were convicted of pillage for appropriating property from an intermediary in terms that tacitly support this position. A table annexed to this manual indicates that at least 26 pillage cases have involved receiving stolen property during war. In the IG Farben case, for instance, company rep- resentatives were convicted of pillage for purchasing “land, buildings, machinery, equip- ment” from the Boruta factory, which the Reich Ministry of Economics had seized.97 Similarly, representatives of the firm Krupp were convicted of pillage for purchasing
an office in Paris “not from the rightful owners of the premises but from the provisional administrator of the Société Bacri Frères by virtue of a decision of a commissariat for Jewish questions.”98 And in one final example, the chairman of the Hermann Goering Works was convicted of pillage because his company “was the recipient of considerable property seized in Poland.”99 These and the other examples evidenced within the annex confirm that, as a matter of custom- ary international law, pillage can involve either direct or indirect appropriation from the rightful own 48. This definition is not conceptually troubling. While it is essential not to confuse the scope of pillage in customary international law with domestic notions of theft, national law is helpful in confirming that there is nothing philosophically objectionable in treat- ing receiving stolen property as a subset of pillage. In at least one national jurisdiction, theft and receiving stolen property are also amalgamated into a single offense on the basis that the original thief and the receiver both appropriate property with the intent to deprive the rightful owner of the asset.100 As the commentary to the U.S. Model Penal Code argues, “[a] nalytically, the receiver does precisely what is forbidden by [the prohibition against theft]—namely, he exercises unlawful control over property of another with a purpose to deprive.”101 On a s imilar basis, a leading British commentator has rightly observed that “[a]lmost every handling is also a second theft—the handler dishonestly appropri- ates property belonging to another with the intention permanently to deprive the other of it.”102 So while a number of other countries still maintain a distinction between theft and receiving stolen property that derives from the way the crimes developed histori- cally,103 this d istinction neither affects the definition of pillage in international law nor raises compelling conceptual criticisms that justify a departure from customary inter- national law.
“It is not correct to say, as defense counsel says, that because a crime has been completed no further crime may follow from it. Receiving stolen goods is a crime in every civilized jurisdiction and yet the larceny, which forms its basis, has already been completed.” U.S. Military Tribunal
at Nuremberg,
49. There is thus good reason to agree with the United Nations War Crimes Commis- sion’s conclusion that “[i]f wrongful interference with property rights has been shown, it is not necessary to prove that the alleged wrongdoer was involved in the original wrongful appropriation.”104 As a result, the purchase by commercial actors of “appro- priated” natural resources falls within the meaning of pillage, irrespective of whether the commercial actors were implicated in the initial extraction of the resources. This highlights how many commercial actors involved in the purchase of conflict commodi- ties can commit pillage as principal perpetrators even though they were not involved in the initial misappropriation.
VIII. Ownership of Natural
Resources
50. In order to establish a case of pillage, property must be appropriated without the consent of the rightful owner. Consequently, a court tasked with adjudicating allegations of pillage will have to determine ownership of the property in question. This chapter draws on four areas of law that might require consideration in determining ownership of natural resources. Which of these areas of law is relevant will depend on the circum- stances of each particular case, but as a general rule national law and constitutional principles are most likely to define ownership within war crimes cases involving allega- tions of natural resource pillage.