Sacking

SACKING. - In its most common sense it is the act by which the movable goods of a city or a part of the territory of an enemy State are abandoned to the mercy of the victorious soldiery for plundering.

In ancient customs of war it was considered a right of the victor to abandon to pillage cities and places that had offered resistance without coming to terms in time; this redounded to the profit of the soldiers, for whom the license produced by victory granted compensation for the sufferings and losses endured, extending even to slaughter and the abuse of women. In the case of mercenary troops, pillage was many times included in the terms, at least tacit, of their contract, or else it was the supplement for wages not paid.

Pillage can also occur within the boundaries of a State in the struggles of parties or of armed bands outside the law. In these cases it is a crime of a character no longer international, but national.

I. IN ITALIAN CRIMINAL LAW

In this the configuration of the act is more detailed; s[acking] takes on a different legal classification depending on the direction of the agent's activity. In the Criminal Code in force it appeared logical to the new legislator that such acts can first of all be committed for the purpose of attacking the security of the State.

In this case one of the crimes provided against the personality of the State is realized, and because of their maximum gravity they are punished with the maximum penalty that succeeded the death penalty, namely life imprisonment (art. 285 of the Criminal Code). Furthermore, the new Criminal Code contemplates in art. 419 the crime of devastation and of s[acking], whose criminal activity is directed against public order. The same acts, objectively considered, of devastation and of s[acking], qualified by a particular specific intent, take on a different specification of crime. In the first case the crime is determined by the fact that the offender's purpose must in every case be that of attacking the security of the State. In the second case, however, in itself only the security of things is prejudiced. But since there is the consequence of alarming and intimidating the population (arts. 419-22), the crime is not considered committed only against individual things and patrimonial goods (whose protection is guaranteed by arts. 624-25), but rather against property, understood as a social institution closely affecting public order (v. PROPRIETÀ).

II. IN INTERNATIONAL LAW

In the field of international law the figure of s[acking], as that complex of acts committed by the soldiers of the victorious army and directed at the appropriation, by force and violence, of the things found in the fortress or in the city taken by assault, is the object of contrary opinions. Some publicists hold (better one would say "held") such a usage to be justified as a measure of punishment against a city taken by assault. Others maintain (or maintained) as lawful sacking directed against a belligerent who violates the laws of war, linking it to ancient theories (Cicero, De officiis, I, 3, c. 6), to which not even the theologians were averse, provided it was a just war (Sum. Theol., 2ª-2ª, q. 66, a. 8, ad 1). The most recent doctrine, however, is contrary to the traditional theories and unanimously condemns acts of sacking. Now sacking is formally prohibited by the acts that express the best part of present-day international law (Instruct. americ., art. 74; Déclaration de Bruxelles, artt. 18 and 39; Manuel d'Oxford, 1880, art. 32 and 1913, artt. 18-29).

Therefore, sacking must no longer be considered admissible, whether as punishment or as reprisal (v.), nor justified by the fact that it can prove an effective instrument for inciting soldiers to [arilimento]. Under the terms of artt. 23 and 28 of the Regulations of the Hague Convention, 29 July 1899 and 18 Oct. 1907, a belligerent is forbidden "to destroy or seize the enemy's property, unless such destruction or seizure be imperatively demanded by the necessities of war." And artt. 46 and 47 of the same Regulations contain general provisions on respect for private property and the prohibition of booty and sacking. No exception can be allowed to the rule, since the forced despoiling of private persons of what belongs to them is in itself a misdeed and can never become lawful on the occasion of war.

As regards the Italian legal order, it contains sanctions issued in fulfillment of the commitments deriving from international conventions. Thus in the Cod. pen. militare di guerra: "Whoever commits an act directed at bringing about sacking in a city or other places, even though taken by assault, is punished with death and degradation," art. 186, which implements art. 28 of the Regulations of the Hague Convention of 1899.

Booty or prize of war, however, is not to be confused with sacking; it is permitted within certain limits, even in present-day international law. That is, it is lawful for a belligerent, on the occasion of incursions or more or less stable occupations of enemy territories, to take possession of certain goods of the enemy State, such as weapons, ships, money, etc., in short of all those goods that are useful for the prosecution of the war.

Certain limits, however, must be observed, namely: 1) the right of prize may be exercised only by the belligerent State and not by individuals; 2) it cannot 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 goods of private persons (cf. artt. 23 and 52 of the Hague Convention, 1907).

Less clear is the right of maritime prize, for want of a common international legislation and a uniform practice among States. If it is understandable that warships together with weapons may form the object of prize, less understandable is that this may be done with merchant ships. The principle defended in this regard in the 18th century by the Alliance of Neutral States, "free ship," with the exception of goods constituting contraband of war, was not, however, accepted by all.

Also the principle that prevailed before the International Conference of Paris (1856), which considered as the object of legitimate prize only ships and goods belonging to the enemy State or to its subjects, was practiced only by some States.

The same happened with the two principles accepted by the Paris Conference: a) the flag of a neutral State covers the goods found on board it, except for contraband of war; b) the goods of neutral States are not the object of prize even on enemy ships, except here too for contraband of war. Finally, even the declarations of London (1909) were never ratified by the States; nor did the Permanent International Court of Maritime Prizes, established at the Hague Conference (1907), receive practical implementation.

Ordinarily, at the beginning of a war, courts are constituted for the questions on the merits.

III. IN MORAL THEOLOGY

Sacking against the State constitutes a violation of legal justice (v. GIUSTIZIA) and of the right of property either of private individuals or of the State itself, which is to be regarded as a common owner, when it is a matter of its own goods. Even resistance to a usurping government or to imposed laws does not justify acts of sacking, since active resistance can also be conceived without acts of sacking. When, moreover, the sacking is directed against private individuals, individuals, groups of persons or moral persons, it constitutes unjust damage. In the one and the other case there follow obligations of restitution (v.) and there arise the problems of cooperation (v.) in evil.

In international law, even when States wage a just war, they must respect as far as possible the right of property of the legitimate possessors of captured goods.

War in fact does not take away the right of property and does not place enemies outside every law. This holds also in the case of maritime prize or with regard not only to private individuals, but also to neutral States, save for the right to prevent, by legitimate means, the contraband of war.

Francesco Ercolani