In our previous column, we discussed how Jewish law has come to prohibit taking booty during wartime, in spite of many biblical precedents that explicitly permit it. In this week’s column, we’ll discuss the obligation of returning property taken in wartime.
This is a particularly sensitive issue, in light of efforts since World War II to bring about the return of vast properties of Jews stolen by the Nazis and by gentile neighbors in Europe.
Amazingly, as Rabbi Michael Avraham has shown, the matter was even debated in the midst of the Holocaust, when scholars in the Kovno Ghetto discussed whether Jews could take property from those already killed in order to use it for barter or to pay off German soldiers. The debate is an incredible testament to the honesty of those Jews who did not want to steal items belonging to others.
In general, Jewish law requires people to return lost or stolen property and even provides legal incentives for thieves to repent and restore the owner’s property. Thus, if a neighbor of a European Jew had taken money from their home – or, for that matter, if Swiss banks held Jewish money in their accounts – they would be obligated to return the money to the owner or their heirs.
Yet as rabbis J. David Bleich and Shlomo Levi have noted, the laws regarding plundered property are more complex, since the objects frequently change hands amid the turmoil of warfare, especially in vast and lengthy conflicts. Additionally, given the displacement caused by war, many despair of ever finding their property, leaving those belongings in legal limbo.
GENERALLY SPEAKING, Jewish law recognizes three ways in which a person may lose his ownership of a stolen object: the owner despairs of recovery (yi’ush); the object was lost in an irretrievable domain like the intertidal space of the seashore (zuto shel yam); or through the wartime right of conquest (kibush milhama).
The feeling of despair of recovering one’s objects, of course, is subject to the experience of the victim as well as through legal assumptions determined constructively by the law. Generally speaking, for example, medieval scholars assumed that Jews do not despair of recovering valuable religious items, such as manuscripts and sacred books. Yet during World War I, it was known that marauding Russian soldiers were looting books to use them for scraps because of the scarcity of paper. In that circumstance, Rabbi Meir Arak asserted that if someone came upon these books, one could assume that the owner had despaired of recovering them, since they would likely assume their possessions suffered the typical fate of others in similar circumstances.
This assumption, however, might not be true in different locales during World War I and certainly in other wars. Following the Holocaust, some decisors assumed that one may assert that book owners would despair of recovering their belongings from the Nazis, who would have burned such objects. Yet as rabbis Pinchas Teitz and Yehiel Weinberg noted, this was not always the case with the Germans, who for various reasons sometimes preserved libraries and other religious artifacts. They could certainly be assumed to keep universally valuable objects like jewelry, silverware and artwork.
The owners may similarly not have despaired when attempts were made to hide or smuggle out the objects. Indeed, after the Holocaust, many returned to their hometowns to search for the fate of their possessions. Similarly, it’s not easy to claim that property under war falls under the category of irretrievable items, since the fate of the objects was subject to human prerogative (as opposed to natural phenomenon like hurricanes or earthquakes).
The claim of “right of conquest,” however, assumes a very different nature. According to the Talmud, gentiles may acquire ownership of property seized during war, even from Jews, with the conquest itself serving to establish title. According to most commentators, this is irrespective of whether the owner despairs of their ownership; in fact, this seems to be precisely the type of possession assumed by the Bible in cases of war plundering.
Yet even under this notion, title might be taken only by attacking armies and their soldiers. It would not operate for other civilians, or possibly even for armies that were not technically at war with those from whom they stole (like raiding marauders). In other words, the sheer fact of war does not simply make objects ownerless; they would need to be seized by conquering soldiers for this concept to apply.
In this respect, another consideration comes into play. Jewish law mandates going beyond the letter of the law to do, in the words of the Bible, “the right and the good.” For the sake of equity, we may sometimes demand of people to return lost or stolen objects, even if they had been acquired after the original owner had despaired of getting back their possessions.
As Bleich notes, scholars disagree whether such a principle definitely applies in the case of war booty. Yet one could further argue that given international laws prohibiting war looting, it becomes an even greater imperative to meet global standards of ethical behavior. Of course, each case requires individual attention to the circumstances of the objects in question. Yet, in general, the pursuit of restoring property after the Holocaust (and other wars) is certainly just and noble.
In this respect, Jewish law certainly embraces the evolution of global military ethics to prohibit war plundering and restoring ownership of properties seized during battle. While Judaism may sometimes permit warfare, it does so for the pursuit of justice. This ethos must guide us both during and after combat.
Dedicated to the memory of Margit Kirsche, a Holocaust survivor who died this week after a life of honesty and generous spirit.
The writer, a presidential scholar at Bar-Ilan University Law School, is the author of A Guide to the Complex: Contemporary Halakhic Debates and directs the Tikvah Overseas Students Institute. Facebook.com/RabbiShlomoBrody