Rabbi Itzhak Dvir, Emunat Itecha 143, Nissan 5784, page 38

During the War of Iron Swords in Gaza, soldiers temporarily stay in the homes of local residents. Although the soldiers theoretically receive food supplies from the IDF, they often use the food found in these homes with the knowledge and consent of their commanders. There are also farms in Gaza, with fruits and vegetables, that the soldiers harvest as well. These scenarios raise questions regarding the obligation of terumot and ma'aserot from such usage, which this article seeks to address. ¹

A. Obligation of tithes and offerings in war spoils

We can begin to answer this question by examining the source of acquisition during wartime. The Gemara in Gittin 38a brings a proof from Sichon's conquest of Moav, which voided the prohibition of conquering the land of Moav. This, Chazal argue, is based on the principle that a gentile may acquire from a fellow gentile through an act of possession (kinyan chazakah). The Rishonim dispute the rationale of this rule:

1. According to Rashi (ibid.), this is not a new acquisition; rather, the war causes the residents whose country was conquered to despair from their property, thus rendering it ownerless. This effectively makes it available to the first one who comes upon it.

2. Tosafot (ibid.) argue that the Gemara's intent is an act possession through military conquest. The Rashba explains (ibid.) that the spoils are acquired through a special acquisition, sanctioned by Torah.

3. The Radbaz suggests that war spoils are acquired through the principle of dina demalchuta, the law of the land recognized among nations: "this is the law of kings when a country conquers another country by force of war."

Among these interpretations, there is a significant difference in the implications for the halachah in our case. According to Rashi, the acquisition of spoils of war passes through the process of hefker (ownerlessness). Consequently, the fruits are exempt from terumot and ma'aserot, similar to ownerless fruits. This may also be the basis of the Radbaz's argument, based on the principle of hefker beit din hefker (a court's declaration of hefker renders the item ownerless). However, according to Tosafot and the Rashba, the spoils are acquired through the acquisition of war, and therefore the fruits passed directly from the possession of the non-Jewish owners to the possession of the State of Israel without becoming ownerless – thus obligating them in terumot and ma'aserot.

However, practically speaking, in our case, there are several reasons to argue that even according to Tosafot and the Rashba, the fruits would be exempt from terumot and ma'aserot:

1. Fleeing before conquest

Most residents living in the conflict areas in the Gaza Strip were instructed to leave their homes even before the IDF entered their area, and indeed, most of them acted accordingly. Rabbi Tzvi Pesach Frank (Har Tzvi, Zera'im 1:17) wondered whether in such a case, one would consider the fruits ownerless, as they were abandoned by their owners even before they were acquired through war. Rabbi Herzog (Pesakim VeKetavim 3:37, at the end of the responsa) rejected this claim, citing the Mishnah (Sotah 8:6): "the beginning [i.e. cause] of fleeing is a downfall [on the battlefield]." Therefore, he argues, the acquisition through conquest takes place upon their fleeing from the area.

2. Lack of intent for acquisition

According to IDF regulations (Directive of the Chief of Staff 50.0303 §30), "Conquest does not confer ownership to the State of Israel or to the IDF, any rights of ownership or possession in movables, which are private property." The following sections do allow for the use of equipment necessary for combat, including food, provided that each use is documented and paid for a "full and fair price." Therefore, it is doubtful whether the State of Israel intends to acquire spoils of war. Posekim of the previous generation discussed this issue in light of the war spoils from the Arabs in the War of Independence.

Rabbi Yisraeli (Eretz Chemdah, p. 136) wrote: "it seems that the conquest of war is no different from any other acquisition, in which one acquires only when he intends to acquire." Rabbi Herzog (Pesakim VeKetavim 3:37) also seems that he took this approach regarding the properties that were conquered in the War of Independence, and in his opinion, as long as the state is not interested in buying the spoils, no acquisition takes place. For this reason, Rabbi Elyashiv (Kuvetz Teshuvot 1:217) ruled that when the Americans fought in WWII, they did not acquire the Jewish possessions of the countries they liberated from the Germans since they intended to return them to their original owners. In contrast, Rabbi Frank (Har Tzvi YD §109 on immersing vessels from the war spoils following the War of Independence) and Rabbi Klein (Mishneh Halachot 17:140 on Jewish possessions pillaged by the Nazis and then taken by the American army) maintained that the intent of the conquering party is inconsequential; during conquest, the spoils are acquired automatically.

According to Rabbi Yisraeli and Rabbi Herzog, who maintain that conquest by the IDF does not constitute a military acquisition, it seems that in practice, when Gazans see large areas demolished by the IDF, they despair of their movable property. Thus, this property is rendered ownerless. Rabbi Moshe Feinstein ruled to this effect (Iggerot Moshe YD I §216) in the context of property conquered in wartime that does not meet the criteria of wartime conquest: "if a war occurs that does not occur according to the king, it is likely to be ownerless."

We need to be somewhat cautious here. Until now, we have assumed that the IDF does not intend to acquire the spoils. However, evidence from the field indicates that the IDF allows its soldiers to use food without restriction or monitoring. Therefore, it is possible that the IDF actually intends to acquire these spoils despite the explicit law.

3. Lack of intent to conquer

Rabbi Yaakov Ariel addresses the issue of war spoils during Operation Defensive Shield (5762-2002). He distinguishes between conquest with the intent to conquer land and a military operation, launched to achieve certain objectives. The latter lacks the status of military conquest; consequently, the status of "spoils of war" would not be conferred on the property. A similar argument is made by Rabbi Moshe Sternbuch in Responsa Teshuvot Vehanhagot (II §317):

In their time, everything belonged to the king. When a different king came and conquered, the [property] became his monetary acquisition. This is effectively one of the main goals of war: to take over additional land so it shall be his. However, here [in the battle against the black natives of South Africa], they did not come to take monetary acquisitions, that is, that the land would become theirs. Rather, they aimed to subjugate [the natives] under them. And in this way, it is possible that the monies (i.e. possessions) are not theirs [i.e the white colonists].

At the time of war in the Gaza Strip, the State of Israel never declared its intent to conquer the area, so this raises a doubt whether we can apply the status of military conquest to this act of war. As noted above, in absence of military acquisition, the remaining spoils would become ownerless and thus exempt from terumot and ma'aserot.

4. When international law does not recognize military acquisition

As noted above, according to the Rabaz, acquisition via conquest stems from dina demalchuta, the accepted law of the land (or, perhaps, recognized international law): "That the law of kings is that when they conquer a country by force of war, all of the houses and fields and vineyards become his." However, this international consensus changed over the years. The Hague Convention states (IV §28) "The pillage of a town of place, even when taken by assault, is prohibited."² The Geneva Convention, too (IV §33) states that "Pillage is prohibited." Based on this, it is possible that military acquisition is no longer in effect, so the fruits would be ownerless. However, Rabbi Frank (Har Tzvi, Zera'im 1:17) maintained that these articles were not written to deny the conquering country the war spoils; rather, to prevent individual soldiers from looting and pillaging, taking private ownership of the war spoils. Indeed, this the rationale provided by IDF war guidelines for the prohibition against looting: "For there is nothing more damaging to morale or deleterious to discipline than pillage and theft."³ During the current war, the State of Israel confiscated cash and ammunition as spoils of war.⁴

B. Terumot and ma'aserot from produce grown by non-Jews

The Tana'aim dispute whether there is an obligation to separate terumot and ma'aserot from crops grown in the fields of non-Jews. According to Rabbi Eliezer (Gittin 47a), crops grown by non-Jews are exempt from terumot and ma'aserot. However, according to Rabbi Yossi and Rabbi Shimon (Menachot 66b), "a non-Jew's acquisition does not exempt [the produce] from ma'aserot," meaning that non-Jewish ownership of the land does not exempt from terumot and ma'aserot. According to their opinion, the determining stage is the stage of miru'ach, that is, the completion of processing and packaging in the field. Only if the produce was in the possession of a non-Jew at this point, would it be exempt from terumot and ma'aserot. Consequently, concerning produce found by soldiers in a house that was harvested by non-Jews, there is no doubt that they are exempt from terumot and ma'aserot, as both the cultivation and the miru'ach were performed by the non-Jew. For this reason, the halachic question focuses only on fruits and vegetables that the soldiers harvest themselves from the non-Jew's produce.

In practice, both Rambam (Terumot 1:10) and Shulchan Aruch (YD §371:4) follow the opinion that produce grown by a non-Jew is subject to terumot and ma'aserot when mira'uch is performed by a Jew. Nevertheless, there are several leniencies regarding fruits harvested by soldiers:

1) Mabit (2:196) argues that the obligation of terumot and ma'aserot on non-Jewish produce, which has been completed by a Jew, is rabbinic; therefore, today when the obligation of terumot and ma'aserot is entirely rabbinic, it is necessary to separate only from dagan, tirosh, and yitzhar (grain, grape juice/wine, and oil), which are mandatory by Torah law, and there is no need to separate the rest of the fruits and vegetables, which are obligated by rabbinic law (talat de-rabbanan; when there are three rabbinically ordained obligations, one need not be stringent).

2) Rabbi Shlomo Zalman Auerbach (Minchat Shlomo I §56) understands from the Gra's wording (YD §331:29) that only a significant type of processing (such as squeezing for wine and oil) performed by a Jew obligates the fruits in terumot and ma'aserot. In contrast, produce merely harvested by a Jew is not obligated (Rabbi Auerbach himself did not rely on this distinction, as it does not seem to be the opinion of many Rishonim).

3) Some argue that today, when the obligation of terumot and ma'aserot is rabbinic, "the acquisition of a non-Jew exempts from ma'aserot," and their ownership of the land exempts even fruits harvested by a Jew.⁵

In light of all of the halachic doubts involved, it is customary to avoid reciting a blessing on the separation of terumot and ma'aserot on fruits belonging to non-Jews that were harvested by Jews.⁶ In our case, there is an additional leniency because the area of the Gaza Strip, where the warfare is taking place, is located in olei Mitzrayim territory. Some argue that within these borders, the non-Jew's ownership exempts the fruits from the obligation of terumot and ma'aserot. Rabbi Yaakov Ariel implies (BeOhalah Shel Torah 4:42) that this reasoning alone would be sufficient to exempt such fruits from terumot and ma'aserot, were it not for the uncertainty regarding the status of the IDF's conquest, as explained above.

C. Terumot and ma'aserot in olei Mitzrayim territory

As mentioned above, according to the majority of posekim, the Gaza Strip is located outside the borders of olei Bavel. According to Rabbeinu Gershom and Semag, these areas are entirely exempt from terumot and ma'aserot. In contrast, Rambam believes that Chazal obligate terumot and ma'aserot even for produce grown within olei Mitzrayim borders. Kaftor Vaferach notes that in practice, those living in these areas follow Rashi's opinion; namely, they separated terumot and ma'aserot with a blessing only from grain, wine, and oil. Out of piety (darchei chasidut), they would separate terumot and ma'aserot without a blessing also from other types of produce. This is also the ruling of Rabbi Yisraeli. In light of all the permissible aspects discussed so far, it is doubtful if the measure of piety would also be necessary in the case at hand.

Rabbi Yaakov Ariel extensively discusses the obligation of terumot and ma'aserot in the Gaza Strip and ruled practically to be stringent due to the doubt that perhaps the Israeli occupation during the Six-Day War renewed the sanctity of these areas, obligating them in the separation of terumot and ma'aserot. There is no place here to discuss the recent dispute regarding the renewal of sanctity by Israeli occupations, because even if we assume that Israeli occupations renewed the sanctity in the Gaza Strip, we must consider whether the sanctity remains following the withdrawal of IDF forces from the area (in 2005). To settle this question, we must understand why the sanctity of olei Bavel was not annulled during the exile compared to the sanctity of olei Mitzrayim, which was annulled during the exile. Rambam (Hilchot Beit Habechirah 6:16) wrote:

When Ezra returned [to the Land of Israel] and consecrated it, it was not sanctified by means of conquest, but rather through an act of possession (chazakah). Therefore, every place which was repossessed by the [exiles returning from] Babylon and consecrated when Ezra consecrated [the land] the second time, is sacred today, even though it was taken from them.

This implies that the sanctity of Ezra was not annulled because it included settlement. In light of this, there is room to discuss the sanctity of the Gaza Strip, where there was Jewish settlement. However, the Kesef Mishneh differs (ibid.), arguing that following Yehoshua's conquest, there was Jewish settlement, and yet its sanctity was annulled during the exile. Therefore, Rabbi Israeli and Rabbi Auerbach explain that this holds true regarding settling the land that came without conquest. However, for territories conquered in war, even if they were settled later, their sanctity is annulled following exile. The Radbaz wrote that in Ezra's time, in addition to settlement, they sanctified the land verbally, and therefore their sanctity was not annulled.

Based on the above, it seems that even if sanctity applied to the territories conquered during the Six-Day War, according to all opinions, with the withdrawal of the IDF from the Gaza territories, the sanctity was annulled from them. It appears that due to the IDF's actions in the Gaza Strip at present, there is no doubt that a renewed sanctity did not occur because at present there is no intention to conquer the place but to purge it from terror. If, God willing, the country changes its intentions in the Gaza Strip, it is once again possible that the sanctity of these places has been renewed.

Conclusion

Fruits found in Arab homes in the Gaza Strip that were harvested by Arabs are exempt from terumot and ma'aserot. Furthermore, there lacks a basis for the terumot and ma'aserot obligation for fruits picked by Jews in these places, for several reasons:

1. It is possible that war spoils are considered hefker, and ownerless status exempts produce from terumot and ma'aserot.

2. Even according to the opinion that war spoils are not hefker, there is doubt whether war spoils are acquired by Israel in the present reality; if not acquired, the fruits should be defined as ownerless.

3. Some opinions state that Gentile ownership of the land today exempts produce from terumot and ma'aserot.

4. Some opinions state that in the present time, Gentile ownership of the land within the olei Mitzrayim borders negates the obligation of terumot and ma'aserot again.

5. The obligation to separate terumot and ma'aserot for olei Mitzrayim boundaries for produce other than grain, wine, and oil produce is considered darchei chasidut. It is doubtful whether one would need to be stringent in our case, since the land belongs to non-Jews.

In light of all of the above, it seems that this produce should not be obligated in terumot and ma'aserot. However, one who wants to be stringent to fulfill all opinions should separate terumot and ma'aserot without a blessing.