Law of War Handbook 2005

a.  Weapons, ammunition, and equipment or documents with intelligence

value will be confiscated and turned over to the nearest intelligence unit.

(AR 190-8)

b. EPWs and retained personnel are allowed to retain personal effects such

as jewelry, helmets, canteens, protective mask and chemical protective

garments, clothing, identification cards and tags, badges of rank and

nationality, and Red Cross brassards, articles having personal or

sentimental value and items used for eating except knives and forks. See

Art. 18, GPW and AR 190-8.73

c.  But what about captured persons not entitled to EPW status? See Art 97,

GC.74

d. War trophies. It has consistently been the U.S. policy to limit the types

and amounts of property taken from the battlefield and retained by the

individual soldier. All enemy property captured is the property of the

U.S. However, the personal property of EPWs is usually protected from

confiscation and seizure.75 Soldiers are not even supposed to barter with

EPWs for personal items.76 However, because of perceived abuses that

occurred in not enforcing this policy, Congress legislated two important

provisions: 10 U.S.C. $2579" and 50 U.S.C. • ̃2201.7WoD has yet to

73 Ltr, HQDA, DAJA-IA 198718009, subj: Protective Clothing and Equipment for EPWs. See also, Pictet, at

166, n. 2.

74 Art. 97 essentially allows the military to seize, but not confiscate, personal property of those civilians
protected by the Fourth Convention. The difference is important. Confiscate means to'take permanently.
Seizing property is a temporary taking. Property seized must be receipted for and returned to the owner after
the military necessity of its use has ended. If the property cannot be returned for whatever reason, the seizing
force must compensate the true owner of the property. See Operational Law Handbook (2004) and Elyce K.K.
Santerre, From Confiscation to Contingency Contracting: Property Acquisition on or Near the Battlefield, 124
MILL. REV. 11 1 (1989), for a more detailed discussion of the distinction between, requisition, seizure, and
confiscation of private property and when it is lawful to do so.

77 Despite the Congressional requirement in 1994 for DoD to establish regulations for handling war trophies
within 270 days of the statute's enactment, DoD has yet to provide any DoD level guidance on how to handle
these objects.

78 Commonly called The Spoils of War Act of 1994, it limits the transfer of captured enemy movable property
to the same procedures applicable to the similar military property. (i.e., Arms Export Control Act). It excludes
"minor articles of personal property which have lawfully become the property of individual members of the
armed forces as war trophies pursuant to public written authorization from the Department of Defense." 50
U.S.C. 5 2205. The obvious intent was to exempt war trophies as outlined in 10 U.S.C. • ̃ 2579. However, the
96
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