June 22, 2024
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A Soldier’s Abandoned Belongings

The horrific October 7 attacks were such a surprise and shock that soldiers stationed elsewhere or away on leave for the holiday dropped everything they were doing and ran to the south to join the fight. Soldiers who were not on their base went straight to the south. Soldiers who were on their base packed quickly and left. Over seven months later, many personal items remain on those bases in the north. Meanwhile other soldiers and reservists were sent to those bases. I was asked whether soldiers currently in the north may use some of the left items. For example, may they use a personal phone charger left at the base on October 7? What about shoe polish or clothing?

 

I. Conquered Property

A similar but more common question is whether a soldier may use personal items found in a house conquered/occupied during war. For example, Israel ordered evacuation of various cities during the current war. After the evacuation, soldiers entered the cities and took control. Many soldiers spent time in various houses and buildings. Are they allowed to use or take items found in those buildings?

The IDF forbids soldiers from taking items that belong to enemy soldiers or civilians. However, it is valuable to discuss what halacha says about it, both for the sake of learning and also for cases where the IDF does not apply. Rav Ya’akov Ariel (cont., Israel) was asked about a unit whose commander determined that the IDF forbids only taking items but allows use of items within a captured building (Be-Ohalah Shel Torah, vol. 6, no. 58). Religious soldiers asked whether halacha allows them, for example, to heat up their food in a captured oven.

Rav Ariel quotes the verse which explicitly permits using items conquered in war: “And you shall eat the spoils of war” (Deut. 20:14). While a soldier is expected to fight idealistically, and not for profit, there is room for him to acquire the items he conquers. Rav Avraham Dovber Kahane-Shapiro (20th Cen., Lithuania) explores at length the technical mechanics of how a soldier acquires the conquered goods (Devar Avraham, vol. 1, no. 10). Regardless of these mechanics, a soldier acquires ownership. Rav Ariel asks what the effect is of the IDF prohibition. Does it prevent the soldier from acquiring the object or does it merely forbid the soldier from using an item that technically belongs to him? Meaning, is this a prohibition on the object (cheftza) or the person (gavra)? If the IDF rule prevents a soldier from acquiring the object then the soldier cannot use it at all. If the rule merely forbids him to take the object to which he is legitimately entitled, then perhaps he may use it within the captured building. Since the source of the acquisition is a biblical verse, a gezeiras ha-kasuv, Rav Ariel concludes that the IDF rule only places a limitation on the soldier (gavra).

 

II. Temporary and Terrorist Property

However, sometimes Israel sends the IDF to take over an area temporarily. The various wars in Gaza over the past two decades, including the current war, are examples of temporary military occupation. It is not clear that in a conquest of that nature, a soldier acquires any items. Therefore, Rav Ariel concludes, we must act strictly and refrain from taking any items in a temporarily conquered building. However, if it is common practice among IDF soldiers to use conquered items while in a conquered building, then we can assume that the IDF rule does not apply to this practice. Rav Ariel concludes that it is permitted to use the items although it seems to me from his arguments that we should conclude that it is forbidden to do so when the military occupation is temporary.

Rav Yosef Tzvi Rimon (cont., Israel) was asked a more specific question: Can you take items that belong to captured terrorists? If the IDF destroys that personal property, can soldiers take from it before it is destroyed? Rav Rimon points to the IDF rule forbidding soldiers from taking spoils of war. He adds an insight he heard from Rav Aharon Lichtenstein who explains that the Torah forbids taking spoils from Amalek because that war should be undertaken solely for divine purposes. When people benefit personally from the war, it detracts from the intent and transforms the commanded military killings into forbidden murder. While this does not technically apply to current wars, its message remains cogent. A war is a national undertaking from which no individual should profit.

 

III. Abandoned Property

When someone finds an object, one of the key determinants to whether he may keep it is whether the original owner gave up on finding it (yei’ush). If the soldiers who evacuated their bases in the north have given up on retrieving their abandoned items, then anyone can come and take them. Shulchan Aruch (Choshen Mishpat 262:3) says that if you find the item after you can reasonably assume that the original owner gave up, then you may keep the item. However, if the item came into your possession before the owner had yei’ush, then you may not keep it. It would seem that we need to determine if most soldiers who abandoned their personal property gave up on those items and, if so, when. Without any clarity on that issue, we have to act strictly. I am too distant to know the sentiments of those soldiers.

Items left in community property might be different. Both Rav Shlomo Zalman Auerbach (20th Cen., Israel) and Rav Moshe Feinstein (20th Cen., US) rule that schools may sell personal items left in their buildings after the term is over (cited in Piskei Ha-Mishpat 262:2n12). Once the students have left for a reasonable amount of time (a month or two), the school acquires any items remaining on the property (kinyan chatzer) even if they are labeled with individual names (although a student may later request reimbursement for his item). If so, perhaps the IDF acquired all the personal items abandoned on bases. According to this reasoning, IDF hierarchy may give permission to soldiers to use the items.

Even if the original soldiers retain ownership of their personal items, there may be room for new soldiers at the base to use at least some of these items. Rav Shabsai Cohen (17th Cen., Poland) offers an important ruling with common application. In his Shach commentary (Shulchan Aruch, Choshen Mishpat 358:1), he quotes Tosafos who forbid feeding someone from a friend’s food even if you know the friend would agree. According to Tosafos, the friend must knowingly permit you to give someone else his food, otherwise you are stealing it. Shach disagrees and says that if you are certain that your friend would say yes, then you may use the item (give away the food) without his explicit permission. According to the Shach, you do not need explicit permission to use someone else’s items. You just need to know that if asked, he would allow you to use it.

The question then becomes whether soldiers from bases in the north who are now in Gaza would allow other soldiers to use their personal items. Presumably it depends which items. I suspect that they would object to someone else using their toothbrush or wearing their undergarments. And I suspect that they would gladly allow other soldiers to use their cell phone chargers and shoe polish. But, again, I am distant from the reality of IDF soldiers. Responsible parties (the IDF rabbinate?) should make these evaluations based on intimate knowledge of IDF soldiers in the field.


Rabbi Gil Student is editor of TorahMusings.com.

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