Practice Relating to Rule 49. War Booty
Israel’s Manual on the Laws of War (1998) states:
It is prohibited to take away prisoners’ personal effects and especially their identity papers, as well as the self-defense equipment (except weapons) issued to them by their army (gas masks, plastic sheets, steel helmets).
The manual also provides:
Over the years, the weapons arsenal of the IDF [Israel Defense Forces] has grown as a result of capturing spoils courtesy of the Arab armies. Some of them, such as the RPG and Kalashnikov, the T-54, “Ziel” trucks and 130 mm guns were even introduced into operational use in the IDF.
Other interesting items include an Iraqi MIG 21 plane, whose pilot defected to Israel, and guns captured in the Yom Kippur War and subsequently directed against the Egyptians. The crowning achievement was the case involving the capture of an Egyptian radar coach in the War of Attrition, brought intact to Israel.
One must distinguish between looting and taking spoils of war. Seized weapons, facilities, and property belonging to the enemy’s army or state become the property of the seizing state.
Israel’s Manual on the Rules of Warfare (2006) states:
Over the years, the IDF [Israel Defense Forces] has captured many weapons as spoils of war. A portion of the booty such as the RPG Kalashnikov submachine-gun, the T-54 tank, ZIL trucks and 130 mm artillery were even put to use in IDF campaigns.
Additional interesting items include a MiG 21 aircraft whose Iraqi pilot deserted to Israel and cannon captured during the Yom Kippur War and turned against the Egyptians. Similarly, the episode of the capture of an Egyptian mobile radar unit during the War of Attrition which was brought back complete to Israel will be remembered and the capture of weapons destined for the Palestinian Authority while they were being smuggled in on the ship Karine A.
The manual further states:
A distinction must be made between pillage undertaken by a soldier for private ends and the taking of spoils of war, performed by bodies authorised to do so by the IDF. Weapons, installations and property belonging to the enemy army or his country that have been captured become the property of the capturing country. Private property which is not governmental is immune from capture and turning into spoils of war. However, a military commander is also entitled to capture private property if it consists of weaponry or if it is something of important military use. For example, an officer can appropriate a civilian vehicle in order to evacuate the wounded urgently or capture a position on the balcony of a house if this is necessary for the purpose of creating a lookout post.
The Manual on the Rules of Warfare (2006) is a second edition of the Manual on the Laws of War (1998).
In the Al-Nawar case before Israel’s High Court in 1985, Judge Shamgar held:
All movable State property captured on the battlefield may be appropriated by the capturing belligerent State as booty of war, this includes arms and ammunition, depots of merchandise, machines, instruments and even cash.
All private property actually used for hostile purposes found on the battlefield or in a combat zone may be appropriated by a belligerent State as booty of war.
Israel’s IDF General Staff Order No. 50.0302 of 1983 states the following with regard to captured or abandoned aerial, anti-aircraft and naval equipment:
a. Aerial and anti-aircraft equipment – aircraft, airports and flight control equipment, cannons and anti-aircraft missiles, aircraft detecting radar equipment, electronic warfare anti-aircraft equipment or anti-air-radar or anti-air link station equipment.
b. Naval equipment – ships, boats or vessels and accessories or parts of any kind and any related equipment needed to operate a vessel, shore stations, ports, scuba gear and equipment for underwater operations.
2. In the event that equipment, as stated in paragraph 1 above, is captured from the enemy or abandoned, and in the event that aerial and anti-aircraft equipment belonging to the Air Force that fell on the ground is found, or aerial equipment belonging to the Navy that is found on the shore or port or on land, the following must be carried out:
a. If a soldier found or obtained equipment as stated in paragraph 1 above, or is aware of its existence, he must take all steps to collect it and ensure that it is complete, to prevent its loss or damage, and immediately notify the unit commander.
b. If a unit commander received a message as above, he shall notify the responsible command center, which must transmit the message to the nearest Air Force or Naval Base. The message must specify the equipment found and as far as possible its state of usability.
c. The Air Force or Naval Base that received the message must take appropriate measures to evacuate the equipment, in accordance with the orders of the Air Force or Naval Headquarters.