How the bible becomes relevant with modern day international law

Contemporary Jewish decisors have affirmed the modern international prohibition of taking spoils from private enemy property.

‘TRIUMPHAL PROCESSION with Spoils of War,’ Pieter Soutman, 1648. (photo credit: Wikimedia Commons)
‘TRIUMPHAL PROCESSION with Spoils of War,’ Pieter Soutman, 1648.
(photo credit: Wikimedia Commons)
A few months ago, the United States returned to the Philippines the Balangiga bells that were taken as spoils from a victorious battle in 1901. This was the latest of incidents in which one nation successfully demanded the restoration of property seized in battle from years beforehand.
In this column, we’ll review the halachic attitude toward taking war booty, while in the next column, we’ll discuss the obligation of returning property seized in warfare.
As Prof. David Elgavish has shown, seizing war spoils was seen in antiquity as an entitlement of the victors. Cyrus, according to the Greek historian Xenophon, declared upon his conquest of Babylonia, “It is an eternal law the wide world over, that when a city is taken in war, the citizens, the persons and all their property fall into the hands of the conquerors. It is not by injustice, therefore, that you hold what you have taken.”
In some cases, the captors even went to war for the sake of their enemy’s riches, or at the very least used them as an incentive to encourage soldiers to fight on their behalf. All matters were subject to plunder, including people and the treasures of palaces and temples.
Jewish law initially followed this permissive attitude, as seen by the Torah’s directives in war. If an enemy rejects a peace offer, “You shall put all of its males to the sword. You may, however, take as your booty the women, the children and the livestock, and everything in the town – all its spoil – and enjoy the use of the spoil of your enemy, which the Lord gives you” (Deuteronomy 20:13-14). This dispensation, in fact, is codified within Jewish law.
Elsewhere, the Torah describes an elaborate centralized distribution of spoils, which include the soldiers, the clergy, the Temple treasury, and citizens (Numbers 31:25-47).
Many battles recorded in the Bible depict the plundering of the losers – by the Israelites and their enemies alike – with booty at times seen as a sign of divine approval or wrath. God, in fact, assures Abraham that his descendants will leave slavery with great wealth, a promise that is fulfilled during the Exodus, when the Jews took the possessions of their Egyptian neighbors. Some medieval interpreters apologetically asserted that the booty was in lieu of payment for their years of servitude; otherwise, they wouldn’t have taken the property. Yet the simplest read of the text is that God approves of bounty-taking in wars that he blesses. As later decisors asserted, while stealing is normally prohibited, the rules of warfare permit such behavior as part of the broader conquest.
YET IN spite of these precedents, contemporary Jewish decisors have affirmed the modern international prohibition of taking spoils from private enemy property.
This prohibitive sentiment, in part, stems from the problematic nature of war spoils seen in many biblical stories.
On a pragmatic level, concern with spoils can lead to military mistakes, as painfully discovered by the Moabites, who prematurely ended their warfare to focus on gathering booty, only to be surprised and defeated by the Israelites (II Kings 3:23). The kingdoms of Gog (Ezekiel 38:10-13) and Egypt (Exodus 15:9) are accused of unjustly going to war for the sake of booty, only to fall for their lust of money. In one case, King Saul’s hungry soldiers ravage the animal spoils to the point in which they also consumed the blood, drawing great rebuke (I Samuel 14:32).
Most fundamentally, the first Jewish warrior, Abraham, refused to take “even a shoe strap” for himself when he defeated four kingdoms, because he wanted his material success to be attributed to God, not to his warfare (Genesis 14:22-23). Similarly, when the Jewish people defeats its enemies in the Purim story, it was prohibited from taking booty, to highlight the purity of its intentions: defense and deterrence, not wealth or vengeance. Indeed, based on this sentiment, Rabbi Naftali Tzvi Yehuda Berlin asserted that the need to protect ourselves from corrupt motivations should lead us to shun all booty, even if the Torah may permit it.
The IDF, like other militaries around the world, permits its soldiers to capture enemy weaponry and military articles, which it has in many cases incorporated into its own arsenal. Yet following various Hague regulations and Geneva conventions, it strictly prohibits taking any personal effects, even from terrorists.
As rabbis Shlomo Rosenfeld and Yedidya Zuckerman have argued, Jewish law respects these regulations for three major reasons.
Firstly, according to Jewish law, war booty is a collective possession controlled by national leaders. They may choose to do with it as they wish, including the decision to not use it at all.
Secondly, as Rabbi Haim Hirschensohn and Shaul Yisraeli argued, Halacha demands that Israel respect the military conventions that it has officially affirmed. Accordingly, even if one believes that the Bible mandates seizing booty, Jewish law still requires one to refrain from such action under Israel’s international commitments. Violating such agreements would be a grave desecration of God’s name.
Finally, and perhaps more importantly, Judaism embraces the moral advancement that the world has made in this realm. As the Bible indicates and world history exemplifies, plundering was an incentive behind many great atrocities. Removing such motivations is an important measure toward reducing bloodshed and making combat more humane when it is ethically necessary. This is one small step toward the fulfillment of the ultimate biblical teaching on war and peace.
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.