5.1. Unlawful and Wanton Extensive Destruction and Appropriation of Property
Article 2(d) of the Statute sanctions “extensive destruction and appropria- tion of property when it is not justified by military necessity and is carried out unlawfully and wantonly” as a grave breach of the Geneva Conventions of 1949.137This provision combines two separate acts: (i) the destruction of
property; and (ii) the appropriation of property.138The plain meaning of
Article 2(d) requires the destruction or appropriation to be extensive. However, one might well raise the question as to whether destruction or appropriation committed on a small scale fulfils the requirement of Article 2(d) in conjunction with Article 1 of the Statute which states that the Tribunal “shall have the power to prosecute persons responsible for serious violations of international humanitarian law.” Addressing this point, the Naletelic´ Trial
136 One scholar has noted that, according to the Naletilic´, Blasˇkic´, and Kordic´ Trial
Chambers, negligent damage, even if gross or reckless, would not come within the realm of the prohibition. The author contends that ‘none of these Trial Chambers offered any authority to support its conclusion that, under customary international law, the mens rea for that offence was so defined or so restricted.’ See Mettraux, International Crimes, supra note 31, p. 95, fn. 21 and the above text.
137 Article 2(d) of the ICTY Statute is based on Article 147 of Geneva Convention IV which
sanctions as a grave breach the extensive destruction and appropriation of property protected by the Convention, not justified by military necessity and carried out unlawfully and wantonly. See Articles 50, 51, and 130 of the 1949 Geneva Conventions I, II, and III respectively.
138 Brd–
anin Trial Judgment, para. 584. In Naletelic´, the Trial Chamber found that “two
types of property are protected under the grave breach regime: (i) property, regardless of whether or not it is in occupied territory, that carries general protection under the Geneva Conventions of 1949, such as civilian hospitals, medical aircraft and ambulances; and (ii) property protected under Article 53 of the Geneva Conventions IV, which is real or personal property situated in occupied territory when the destruction was not absolutely necessary by military operations.”, ibid, para. 575 (footnotes omitted).
Chamber ruled that “a single act may, in exceptional circumstances, be inter- preted as fulfilling the requirement of extensiveness, as for instance the bombing of a hospital.”139
With regard to the mens rea requirement for destruction of property, the
Bard–nin, Naletelic´, and Kordic´ Trial Chambers agreed that, in order to
uphold a conviction for this offence, the prosecution has to prove that the per- petrator had the intent to destroy the protected property or had acted in reck- less disregard of the likelihood of its destruction.140
As far as the mens rea of appropriation of property is concerned, the
Bard–nin Trial Chamber held that “the perpetrator must have acted intention-
ally, with knowledge and will of the proscribed result.”141In support of this
conclusion, the Bard–nin Trial Chamber endorsed the findings of the Naletelic´ Judgment on the law of “plunder” where this offence, as sanctioned under Article 3(e) of the Statute, has been defined in paragraph 612 as “willful and unlawful appropriation of property.”142This paragraph has a footnote which
reads as follows:
“The Cˇelebic´i Trial Judgment . . . does not explicitly discuss the subjec- tive element of plunder; however, it mentions looting by soldiers for their private gain and systematic economic exploitation of occupied territory, both, clearly implying intent, para. 590. The Blasˇkic´ Trial Judgment, para. 184 asserts that plunder is “wanton appropriation”, seemingly referring to the indifference to consequences for the victims rather than to a specific mens rea requirement. The Kordic´ Trial Judgment, para. 394, requires that the property be acquired “willfully”. The Jelesic´ Trial Judgment, para. 48, requires appropriation to be “fraudulent”, motivated by greed.”143
Accordingly, the Naletelic´ Trial Chamber concluded that “intent in the appropriation of property is the necessary subjective element of plunder.”144 139 Naletelic´ Trial Judgment, para. 576; Brd–anin Trial Judgment, para. 587; Blasˇkic´ Trial
Judgment, para. 157.
140 Brd–anin Trial Judgment, para. 589; Naletelic´ Trial Judgment, para. 577; Kordic´ Trial
Judgment para. 341.
141Brd–anin Trial Judgment, para. 590 (emphasis added).
142 Naletilic´ Trial Judgment, para. 612. 143 Naletilic´ Trial Judgment, fn. 1498, p. 208.
144 Ibid., (emphasis added). Most notably, other grave breaches which do not include, in
their definition, the words “wilful”, “wilfully” or “wantonly” must also be committed with intent. In Cˇelebic´i, the Trial Chamber found that grave breach of inhumane treatment consists of “an intentional act or omission, that is an act which, judged objectively, is deliberate and not accidental, which causes serious mental harm or physical suffering or injury or constitutes a serious attack on human dignity.” Cˇelebic´i Trial Judgment, para. 348. I am indebted to Professor Schabas for this observation, see Schabas, Mens Rea and the International Criminal Tribunal for the Former Yugoslavia, supra note 118, at 1021.
5.2. Wanton Destruction of Cities, Towns or Villages, or Devastation not Justified by Military Necessity
Wanton destruction of cities, towns or villages, or devastation not justified by military necessity are two separate crimes punishable as a violation of the laws or customs of war under Article 3(b) of the Statute.145The elements of
the crime of “wanton destruction not justified by military necessity” were identified by the Trial and Appeals Chamber in the Kordic´ case in the fol- lowing terms:
“(i) the destruction of property occurs on a large scale; (ii) the destruction is not justified by military necessity; and
(iii) the perpetrator acted with the intent to destroy the property in ques- tion or in reckless disregard of the likelihood of its destruction.”146
The mens rea required for the destruction or devastation of property under Article 3(b) was subject to a different understanding by the Yugoslavia Tribunal. According to the Blasˇkic´ Judgment, “the devastation must have been perpetrated intentionally or have been the foreseeable consequence of the acts of the accused.”147This approach was subject to slight modification
by the Kordic´, Naletilic´, Stakic´ Trial Chambers in which the mens rea of the crime of wanton destruction was defined as “the intent to destroy the prop- erty in question or reckless disregard of the likelihood of its destruction.”148
In Strugar, the Trial Chamber used different terms with regard to the mens
rea requisite for the offence in question. The Chamber ruled that “the mens rea requirement for a crime under Article 3(b) is met when the perpetrator
acted with either direct or indirect intent, the latter requiring knowledge that devastation was a probable consequence of his acts.”149However, one might
well raise the question as to whether knowledge that the act will probably
145 Strugar Trial Judgment, para. 290. Whereas in the Kordic´ and Naletilic´ cases the
accused were indicted with the offence of “wanton destruction not justified by military neces- sity”, in Blasˇkic´ and Strugar, the accused were indicted with the offence of “devastation not justified by military necessity”. In Brd–
anin, however, the prosecution has charged the accused
with both offences “wanton destruction of cities, towns and villages, or devastation not justi- fied by military necessity.”
146Kordic´ Trial Judgment, para. 346; Kordic´ Appeals Judgment, para. 74. See also Naletilic´
Trial Judgment, para. 579; Hadzˇihasanovic´ Rule 98 Trial Decision, para. 107; Stakic´ Trial Judgment, para. 761. In Strugar, the Trial Chamber applied this definition to the crime of dev- astation with appropriate adaptations to reflect “devastation”, for the crime of “devastation not justified by military necessity”,
147 Blasˇkic´ Trial Judgment, para. 183 (emphasis added).
148 Kordic´ Trial Judgment, para. 346; Naletilic´ Trial Judgment, para. 579 (emphasis added).
See also Koridc´ Appeal Judgment, para. 74.
cause the proscribed result is the same mens rea standard as foresight of the result of the act. Addressing this point, the Naletilic´ Trial Chamber found that there is no substantial difference between the two standards; “reckless disre- gard” is equal to “foreseeability of the consequences of the conduct and acceptance of the results as its very likely consequence.”150