Boots to Booty: The Overarching Restraints Imposed by Jus ad Bellum Justifications on Property Acquisition in War

摘要

Historically, many wars have been fought to acquire property, either as the purpose for the war or a sanctioned byproduct of it. Plunder and pillage gave soldiers an added incentive to join in campaigns of conquest. Spoils and booty enriched victorious nations and humiliated the vanquished. War trophies filled royal dwellings, graced public squares, and filled museums. War produced terrible consequences not only to the defeated, but to noncombatants caught in the fray. Civilian inhabitants lost their possessions and lives. Armies damaged or destroyed cultural property as they marched across the enemy's domain. Scorched earth tactics led to starvation. Ironically, the lure of spoils eroded the discipline of fighting forces, whose attention shifted to stuffing their rucksacks even before the enemy had been defeated. Acts of pillage and plunder exacerbated the task of restoring peaceful relations in a post-war environment. Something had to be done to constrain the evil of war. In the 19th and 20th centuries, a two-front campaign sought to reign in the horrors of war through international law. First came the recognition that within war humanitarian rules observed by all belligerents were needed to protect noncombatants and cultural property from destruction. Later came efforts to attack the evil at its root by restricting resort to war in the first place. These two prongs of international law are typically characterized as 'jus in bello' for the laws within war, and 'jus ad bellum' for the laws that govern the resort to war. Studies on the resort to war focus on internationally accepted norms of legitimacy prior to the first salvo in war. Then the baton is passed to experts on the law of armed conflict and humanitarian law, who focus on constraints upon the conduct of war arising from conventions and customary international law. This paper addresses property acquisition in war through both lenses to identify the boundaries of permissible property acquisition in war.7.