Emer de Vattel is one of the most famous international lawyers at 18. century. He used to be envoy for several years and had sufficient experiences on the diplomatic affairs. His book, Le Droit des gens (“Law of Nations” in English), influenced the practice of international law in the 18. and the first half of 19. Century deeply. About the topic of the reasonability and legitimacy of plundering and pillaging during the conflict and war times between nations, he mainly discusses in the chapter 5 and 9, book III. <1>
  
When there is a war between countries and nations, the plundering and pillaging of enemy’s properties, based on Vattel, is just and one of undoubtful rights admitted by the law of nations. <2> Plundering seems not a kind and just conduct in common sense, and it reminds us of robbery, killing and burning of buildings. Then followed the question: how can be plundering become just? To what extent should the plundering be? On whom should the violence be imposed? Varte firstly confirmed the subject being plundered.
  
1. Who is the enemy?
  
Vattel at first divides enemy into two types—private and public.<3> His discussion focused only on the latter. After the declaration of war, the sovereigns became enemies. Since sovereign is the representation of nations and the society, the nation and the citizens living in the nations also become enemies against the opponent nations and citizens. The recognition of enemy follows the rule of personal jurisdiction, i.e., people coming from the nation in the war is definitely the enemy of other nations, no matter where he is. “Whilst a man continues a citizen of his own country, he is the enemy of all those with whom his nation is at war”.<4> Accordingly, children and women are all accounted as enemy, because of their inborn and unchanged connection with their belonged nations. They are not exempt from violence during the war time in that they have the possibility to support the action of their national army and to become barriers to the tactic action and the military program of the opponents. They are potential enemy of the opponent army compared the ways those men carrying weapons and fighting in the war. Hence there is definitely no measures and rights to protect them. The subject for a legal plunder is therefore conformed, and then the next task is to recognize the range of objects, or things belonging to the enemy.
  
2. What could be plundered/ pillaged?
  
Now that the range of enemy is settled, Vattel has further elaborated the margin of things belonging to the enemy. Since the sovereign has naturally the same right over what his subjects may own to enemies, therefore, “Everything, therefore, which belongs to that nation, —to the state, to the sovereign, to the subjects, of whatever age or sex, —everything of that kind, I say, falls under the description of things belonging to the enemy”.<5> In a word, as long as there exists an enemy, plundering and robbery is always understandable and legal, regardless of any humane consideration. The war is totally an endorsement of violence.
  
He then makes a more detailed distinction for the things belonging to the enemy: movable and unmovable. The former is also named as booty, such as a cow, a paint or a statue, which is a part from the original possession of the indigenous people; while the latter, which can be taken from enemy, is named as conquest. Under the circumstances of unmovable property, Vattel has separated it into two-part: edifice which “do honor to the human society”<6>, such as temples, tombs, public buildings and all works of remarkable beauty; and the fortress, ramparts, and every kind of fortification. The former should be protected while the latter could be destroyed casually. Nevertheless, if the edifice carrying owner of human society being an obstacle of the military progress, it can likewise be demolished. Therefore, no matter what the thing is, as long as it is carrying potential of worse situation, it could be legally looted, damaged or destroyed with the pretext of “benefit of war”.
  
3. Why is pillage legal? Where does the right come?
  
Since pillage is naturally related to violence and even crimes, why could it be conducted in an innocent way? First and foremost, to win a war is most possibly to weaken the power of enemy. Accordingly, a right to deprive the enemy of the means of resistance is ensured. However, fighting in the war raised violence, especially injury and death. In order to make the process more humane and to reduce pain and sorrow, there must be some measures to response to the concern. Hence comes the second right as follows: the right to pillage. Vattel claims confidentially that the implement of this right will lead to a more civil and humane outcomes than the traditional bloody fight in the battlefields.<7> To pillage properties of the enemies has twofold benefits. On the one hand, the number of resources in a society is a relatively stable during a short time. The possession of more resources means the deduction of the enemies. Without sufficient supplies, the enemy will be easy to surrender. Hence the war led to deduction of casualties and save more lives. On the other hand, the possession of booties is a reliable insurance for keeping the troops in high morale. Vattel takes a positive example of the Romans rules to allot the booties they pillaged in the war, and also praise the British prince for his resolution to take revenge by means of pillaging. Therefore, to pillage properties from enemies is both in- and outward, legal and moral measure to lead the war to a human direction.
  
Vattel has observed the humane practice of the above mentioned the right is not easy, because violence is under such circumstance unavoidable. Hence, he comes up with another more moderate measure: contribution.
  
"Whoever carries on a just war has a right to make the enemy’s country contribute to the support of his army, and towards defraying all the charges of the war. Thus he obtains a part of what is due to him; and the enemy’s subjects, by consenting to pay the sum demanded, have their property secured from pillage, and the country is preserved."<8>
  
In brief, the enemy could pay a sum of properties for preservation of the rest, after they reached a compromise with the opponents. But to which extent, on what kind of things, and of what amount the booty should be initiatively confiscated, Vattel only gives an ambiguous answer, i.e., it is all based on the treaties of the conflicted countries before the war. What’s worse, he has also confirmed the rights of the army to destroy things which cannot be conveniently carried away, so that they can set a barrier on the reuse by enemy. In the end, contribution becomes and impractical method existing only in theory.
  
How could a soldier be exempt from responsibility after he committed much violence and many crimes on enemy’s soldiers and citizens? Vattel claims that the core of war is the conflict between sovereigns. However, sovereigns cannot directly fight against each other, they need therefore instrument to implement their thoughts and to achieve their goals. The soldier is there for his instrument to execute its will. For sovereign cannot be regulated by another, the instrument is also free from responsibilities. Only he who sovereigns has the right to punish his citizens. Therefore, no matter how it’s violent and disastrous, as long as the method could reach the goal of winning the war, the conduct of violence will be forgiven.
  
4. Conclusion
Vattel is an international lawyer promoting school of natural law. He is trying to establish an international relations dominated by natural law, namely, a relationship of morality, justice, and humanity. However, he cannot get rid of the limitation to defense the sovereign. His endeavor to make the war more humane at the beginning became a legal pretext to implement violence in the end; he emphasizes humanity, but neglects the mercy of protecting woman and children; he thinks highly of the value of properties and edifices with culture, tradition, and art, but then, at the next second, comes out many exceptional situations which could under the pretext of legitimacy be destroyed. The absolute justice is always accompanied with instability to converts into and justice, which, during a long running of time, became a best excuse for the imperial to pillage and to exploit the indigenous people in their colonies. As the commentary of Jeremy Bentham on Vattel, “it is not just to do what is unjust”.<9>
  
  
【Notes】
  
<1> Law of Nations: or, Principles of the Law of Nature; Applied to the Conduct and Affairs of Nations and Sovereigns (1st Amer. ed., corr. and rev. from the latest London ed.). (1796).
<2> This is an odd situation that the totally contrary concept plunder and right is place the together. Right means the logic legitimacy to prevent someone from damages caused by others. A concept of protecting and safeguarding justice standing with a concept of promoting people to do things evil, the result of which is the unjust covers a coat of justice so that awful crimes could be reasonably committed.
<3> The private enemy, whose aim to raise conflict and to use violence is only for fun or evil purpose, is never innocent. While the Public Enemy, on the other hand, desiring nothing odious like the private one but only to maintain its damaged or advanced rights. Vattel, pp. 389.
<4> Vattel, pp. 390.
<5> Vattel, pp.390.
<6> Vattel, pp.435.
<7> Vattel, pp.431.
<8> Vattel, pp.433.
<9> Nussbaum. (1947). A concise history of the law of nations. Macmillan, pp.160-161.
  
  
This short essay is the preperation for the short report of the Seminar "Koloniales Unrecht, postkoloniale Restitution? —— Provenienzforschung zwischen Geschichte, Recht und Politik".
  
2023.6.5-6.6 im Weltmeseum Wien