Morals of the Church
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Section — Prümmer, Manuale Theologiae Moralis

§ 4. On Booty To Be Taken In War

47.

47. Preliminary Note. Since this booty to be taken pertains to well-known owners, it is acquired by occupation not properly but broadly so called. For occupation properly so called is concerned with things belonging to no one, as was said above. Nevertheless old Roman law considered the goods of enemies as things belonging to no one, which therefore could be acquired by true and properly so-called occupation. Hence it established: "Things captured in war ... become his who first obtained possession of them."27 Canon law indeed adopted this doctrine, but limited it to a just war.28

Just as customs have changed with regard to hunting, so similarly in present times, with regard to booty during war, much milder usages prevail than in ancient times. Hence also on this point the authority of the old doctors is not to be exaggerated. In ancient times the saying was held as an adage: "The right of war is unlimited"; and St. Thomas29 wrote: "Concerning booty one must distinguish; because, if those who despoil enemies have a just war, the things which they acquire by violence in war become theirs; and this does not have the character of robbery, whence they are not held to restitution." But now, through international agreements, the right of plundering in time of war has been determined in many things (although not in all).30

General Principles Of Present International Law:

  1. All those things can be seized from the goods of the enemy which are necessary for waging a just war, for example weapons, food, clothing. Such exactions today are customarily called "contributions" and "requisitions."

  2. Booty taken does not pertain to individual soldiers, but to the belligerent government, according to that saying: "Things acquired in war fall to the republic."

  3. Outside the case of true need, individual soldiers cannot licitly take from enemies, by their own authority, either food to eat or clothing to wear.

  4. Since war is not waged against individual citizens and private persons, but against the whole kingdom, the goods of private persons are inviolable, unless, however, there is urgent necessity, or those private persons illicitly attack the soldiers. Thus at least in land war; for in naval war international statutes concerning this matter have not yet been accepted by all nations.

Corollaries. 1. Soldiers who, laboring under hunger, seize food from enemies without the authority of a superior officer act illicitly indeed, but they are not obliged to restitution, because the prohibition is made rather for preventing abuses and for preserving military discipline than for establishing an obligation of justice. 2. Soldiers seizing other goods of notable value from enemies without legitimate authority are held under grave obligation to restitution, not indeed from natural law, but from international agreements; and if in some war these are not observed on both sides of the belligerents, they can no longer effect that those soldiers ought under grave obligation to restore.31

27 L. 1, D. 41, 2.

28 Cf. Ferraris, Prompta bibliotheca, s. v. bellum, art. 3.

29 S. theol. 2, 2, q. 66, a. 8 ad 1.

30 Among the international agreements made concerning this matter those stand out which were entered at The Hague of the Dutch on 29 July 1899 and 18 Oct. 1907. Other agreements for naval war also were made at London on 26 Feb. 1909.

31 We wrote more broadly concerning this matter of great moment in Linzer Theol. Quartalschrift 1918.

Lawful means in warOccupationLawful Occupation