PILLAGE. — In its most common sense, it is the act in which the movable goods of a city or a part of the territory of an enemy State are abandoned to the plundering of the victorious soldiery.
In ancient military customs, it was considered a right of the victor to abandon to pillage cities and places that had resisted without surrendering; this was to the advantage of the soldiers, for whom the licence granted by victory allowed them to take revenge for the sufferings and losses they had endured, even going so far as to slaughter and abuse women. In the case of mercenary troops, pillage often entered, at least tacitly, into the terms of their conduct, or else served as a supplement to unpaid wages.
Pillage can also occur within the jurisdiction of a State during factional struggles or armed bands operating outside the law. In such cases, it constitutes a crime not of an international but of a national character.
I. IN ITALIAN CRIMINAL LAW. — In this context, the legal configuration of the act is more detailed; pillage assumes different legal qualifications depending on the direction of the agent’s activity. In the current Penal Code, it seemed logical to the new legislator that such acts could first be committed with the aim of undermining the security of the State.
In this case, one of the crimes against the personality of the State is realized, and due to their extreme gravity, they are punished with the maximum penalty following the death penalty, namely life imprisonment (art. 285 of the Penal Code). Furthermore, the new Penal Code contemplates in art. 419 the crime of devastation and pillage, whose criminal activity is directed against public order. The same acts, objectively considered, of devastation and pillage, qualified by a particular specific intent, assume a different specification of the crime. In the first case, the crime is determined by the fact that the offender’s intent must in any case be to undermine the security of the State. In the second case, however, only the security of property is prejudiced. But since the consequence is to alarm and intimidate the population (arts. 419–22), the crime is not considered merely an offence against individual things and property assets (whose protection is guaranteed by arts. 624–25), but against property as a social institution closely concerning public order (v. PROPERTY).
II. IN INTERNATIONAL LAW. — In the field of international law, the figure of pillage as that complex of acts committed by the soldiers of the victorious army and directed toward the forcible appropriation of goods found in a fortress or city taken by assault is a matter of opposing opinions. Some publicists (it would be better to say “maintained”) considered such a practice justified as a measure of punishment against a city taken by assault. Others maintained that pillage was lawful when directed against a belligerent who had violated the laws of war, linking this to ancient theories (Cicero, *De officiis*, I, 3, c. 6), which were not alien to theologians either, provided it was a just war (*Sum. Theol.*, II-II, q. 66, a. 8, ad 1). However, the most recent doctrine is opposed to these traditional theories and unanimously condemns acts of pillage. Now pillage is formally prohibited by the instruments that express the best part of contemporary international law (*Instruct. americ.*, art. 74; *Déclaration de Bruxelles*, arts. 18 and 39; *Manuel d'Oxford*, 1880, art. 32 and 1913, arts. 18–29).
Therefore, pillage can no longer be considered permissible either as a form of punishment, or as reprisal (v.), or justified on the grounds that it may serve as an effective means to spur soldiers to bravery. According to arts. 23 and 28 of the Regulations of the Hague Convention of 29 July 1899 and 18 Oct. 1907, a belligerent is prohibited “to destroy or seize enemy property, except where such destruction or seizure is imperatively demanded by the necessities of war.” And arts. 46 and 47 of the same Regulations contain general provisions on respect for private property and the prohibition of booty and pillage. No exception to this rule can be allowed, since the forcible spoliation of private individuals of what belongs to them is in itself a misdeed and can never become lawful in the context of war.
With regard to the Italian legal system, sanctions are found in it that were issued in fulfilment of the commitments deriving from international conventions. Thus, in the Military Penal Code of War: “Whoever commits an act directed toward pillaging a city or other places, even if taken by assault, shall be punished with death and degradation,” art. 186, which implements art. 28 of the Regulations of the Hague Convention of 1899.
Pillage, however, must not be confused with booty or war prize, which is permitted within certain limits even in contemporary international law. That is, it is lawful for a belligerent, in the course of raids or more or less stable occupations of enemy territories, to seize certain goods of the enemy State, such as arms, ships, money, etc.—in short, all those goods that are useful for the continuation of the war.
Certain limits must, however, be observed: 1) the right of prize may be exercised only by the belligerent State and not by individuals; 2) it may not be carried out except in the territory or territorial waters of the belligerent States or on the high seas; 3) it must not extend to the property of private individuals (cf. arts. 23 and 52 of the Hague Convention, 1907).
Maritime prize law is less clear, owing to the lack of a common international legislation and uniform practice among States. While it is understandable that warships along with arms may be subject to prize, it is less comprehensible that the same should apply to merchant ships. The principle defended in this regard in the 18th century by the Alliance of Neutral States—“free ship, free goods,” except for goods constituting contraband of war—was not, however, accepted by all.
The principle that prevailed before the International Conference of Paris (1856), which considered only ships and goods belonging to the enemy State or its subjects as legitimate prize, was practised only by some States.
The same occurred with the two principles accepted by the Conference of Paris: a) the flag of a neutral State covers the goods found on it, except for contraband of war; b) goods of neutral States are not subject to prize even on enemy ships, except again for contraband of war. Finally, the London Declarations (1909) were never ratified by the States; nor did the Permanent International Prize Court, established at the Hague Conference (1907), ever come into practical operation.
Ordinarily, at the outbreak of war, courts are established to deal with such matters.
III. IN MORAL THEOLOGY. — Pillage against the State constitutes a violation of legal justice (v. JUSTICE) and of the right of property, whether of private individuals or of the State itself, which is to be regarded as a common owner when it comes to its own goods. Even resistance to an usurping government or to unjust laws does not justify acts of pillage, since active resistance can be conceived without such acts. When, however, pillage is directed against private individuals, groups of persons, or moral persons, it constitutes an unjust damage. In both cases, obligations of restitution (v.) arise, and problems of cooperation (v.) in evil follow.
War indeed does not remove the right of property nor does it place enemies outside all law. This holds true also in the case of maritime prize or in relation to not only private individuals but also neutral States, except for the right to prevent, by legitimate means, contraband of war.