The relatively recent displays of opportunism in the Iraq war have brought to mind a question about common wartime activities such as looting (or souvenir hunting, if you will). Looting has been given such a negative connotation in our media that one gathers this activity is frowned upon, but I’m not sure what kind of crime it is.
Under which country’s laws are these crimes prosecuted? If Iraqis broke into an Iraqi museum to steal a painting or a sculpture or a relic, of course, they are committing a simple crime in their own country; but what if it was a Coalition soldier? Would it be a crime prosecuted by the Iraqi legal system?
Suppose the soldier brought or sent the stolen item out of Iraq. Is it now smuggling, and who prosecutes that?
Or is it military law?
How does this relate to the vast bulk of war trophies taken from the Nazis after World War Two? Are those things illegal to own, sell, or buy, even after more than sixty years? Are their liberators arrested? I’m speaking both of small things such as helmets, uniforms, medals, insignia, weapons, and other military items taken by soldiers as souvenirs, but of larger thefts. This page details the ongoing pursuit of many works of art taken during World War Two, presumably by the Nazis, but in some cases by invading soldiers (see the entry for November 24, 2000).
I guess as a follow-up question: we blame the Nazis, rightly, for a lot of stolen art treasure; the castle of Mad Lugwig of Bavaria was crammed full of ill-sorted loot. They can’t have taken it all, can they?
No. In this case, a US soldier stealing Iraqi art would be prosecuted by US military authorities. The Uniform Code of Military Justice applies to our troops, regardless of their geographic location.
I recall that there are provisions in various treaties relating to wartime theft, but I’m not in the office today. I’ll try to look them up next week.
The fact that they could be tried under american law doens’t mean they couldn’t also be prosecuted under Iraki law. Actually, I can’t see how the Iraki courts couldn’t be competent for a crime commited on their own territory.
I would suppose the case could be made that at the time of the crime the Iraqi court and government (or the Nazi court and government) had been disestablished. Further, I would guess that at some point Nazi (or Iraqi) law ceased to exist.
At what point in German history did it become legal to deface a photo of Hitler? When the Nazi state fell? When the new German Republic was established? When the Parliament passed some sort of bill denouncing portions (or the corpus) of Nazi law?
In any case, military law would get first crack at such people and then the concept of Double Jeopardy would come into play.
Not necessarily so. The concept of double jeopardy apply within the frame of the american legal system. A foreign court won’t necessarily apply it or recognize the ruling of an american court. So, the american looter could be tried by an american military court, sentenced (or not), a
Not necessarily so. The concept of double jeopardy apply within the frame of the american legal system. A foreign court won’t necessarily apply it or recognize the ruling of an american court. So, the american looter could be tried by an american military court, sentenced (or not), and 10 years down the road, while vacationing in Irak, be arrested and tried again by an Iraki court.
It would depend on the Iraki legal system, on existing treaties between the two nations, on how the crime is defined in both country (for instance, the looter could be off the hook due to some technical element according to american law, while the Iraki law doesn’t make such an exception), on how serious a crime it is considered in both coutries (say, looting is worth two slaps on the wrist according to american law, but is a capital crime accroding to Iraki law), whether or not the american trial is considered to have be genuine, honest trial or a parody of justice, etc…
As for when the law ceased to exist, this can only be determined by Iraki law. For instance, a German court won’t rule that there’s any point in time when German law (generally speaking) didn’t apply on German territory . There can only be a point in time when a particular law didn’t apply. This point might be defined retroactively. So, assuming that for some reason, there’s no statute of limitation for a particular crime, a German court would be perfectly able to try someone for a crime commited on May 10 1945, five minutes after the German capitulation. That could include, for instance, a war crime committed by an american soldier. On the other hand, they wouldn’t try now someone if it was discovered that he defaced a photo of Hitler in 1938 (still assuming no statute of limitation) because the “anti-defacing law” isn’t in the books anymore. It’s a case by case issue.