In the wake of World War II, courts in the Allied occupation zones prosecuted senior German industrialists for their active participation in systematic plunder of assets in occupied territories, including assets seized from Jewish owners. The prohibition against systematic pillage was confirmed by the case law of more tribunals.

In 1949, German businessman Herman Röchling was convicted by the a court in the French zone for war crimes and crimes against humanity committed in the course of Röchling’s combined activities as a leading industrialist and government functionary. Röchling was head of one of Germany’s top iron and steel producing companies when he was appointed to lead the coordination of Germany’s iron and steel production. This included, from May 1942, production taking place in occupied territories.

The court described the ‘systematic plundering of industry’, including a series of acts which it characterized as being both ‘simple economic spoliation in favor of the Reich and. . . spoliation and robbery in favor of his firm. . .which in both cases constitute war crimes’. These acts included ordering the removal of a significant amount of industrial machinery from factories in France, Holland, and Belgium and their shipment to Röchling factories;

In the Ministries case a number of civil servants were convicted of pillage for having issued decrees legalizing the theft of private property of Jewish deportees, the coerced transfer of share ownership of companies, the seizing of agricultural production, as well as coal, iron ore, and oil production in occupied territories.

In his comprehensive analysis of pillage case law, Stewart sets out four types unlawfulness which, when integrated to a transaction, may give rise to a violation of the prohibition against pillage. These include 1) the taking of state assets by illegitimate decree 2) the taking of state assets in violation of national regulation; 3) the taking of private property without consent and 4) the receipt of pillaged property, including through purchase or other commercial transaction (Stewart, Corporate War Crimes, pp. 63–6).

The post-war cases criminalized a range of transactions, such as the forced or unlawful sale of assets (cash, real estate, rolling stock), appropriation of natural resources (oil, iron ore, coal), seizure of machinery, theft of patents, theft of mining rights, theft of art, forced project participation or leasing arrangements, share conversions, price fixing, forced credit.

Sources:

Rochling et al., Judgment 25 January 1949, Superior Military Court of the French Occupation

Ministries trial, United States v. Ernst von Weizaecker, et al. (1949)

Corporate War Crimes (including a table of cases of pillage), James Stewart, OSJI, 2011

“War Crimes of an Economic Nature - Taking Property in War”, War Economies and International Law, Mark B. Taylor (Cambridge, 2021)

Western Saraha was occupied by neighbouring Morocco in 1975, before it could become independent of Spain. A resistance movement of the Sahrawi people arose and was met by military force by Morocco. UN Peacekeepers were deployed. A peace process was conducted but broke down in 2020, with Moroccan occupation of Western Sahara still in place.

In 2018, the High Court of South Africa detained a shipment of phosphates from Western Sahara and ruled that the cargo was illegally exploited by a state-owned company from Morocco.

The High Court did not rely on the law of pillage, applicable in occupied territories. It relied instead on the Permanent Sovereignty Over Natural Resources and the interpretation of this principle by the United Nations with respect to Western Sahara.

The High Court found that the plaintiffs “have established on a prima facie basis that, to use the terminology of UN General Assembly resolutions, sovereignty over the cargo of phosphate is vested in the people of Western Sahara. In other words, the people of Western Sahara own the cargo.”

In a series of ten rulings from 2015 to 2024, the Court of Justice of the EU has ruled that the EU´s trade, fisheries and aviation agreements with Morocco do not cover Western Sahara, as the people of the territory has not consented to them.

Sources:

Commission and Council v Front Polisario, 4 October 2024

Letter to the UN Secretary-General on Western Sahara Natural Resources, of Hans Corell, UN Legal Advisor (2002)

NM Cherry Blossom, High Court of South Africa, 23 February 2018

“Morocco has no ownership over Sahrawi Phosphates, Case summary,” Western Sahara Resource Watch, 23 February 2018