(2011/5771)

The recent flurry of speeches and counter speeches between President Obama and Prime Minister Netanyahu has once again placed the issue of trading Israeli land for peace at the center of our attention. Rabbis have debated vigorously as to whether Halachah permits exchanging Israeli land for peace. Beginning with the Peal Partition Plan of 1937, the Rashei Yeshiva of Jerusalem’s venerable Yeshivat Merkaz HaRav, including Rav Yaakov Moshe Charlop, Rav Tzvi Yehuda Kook and Rav Avraham Shapira have vociferously opposed such offers arguing that it violates Halachah. The Lubavitcher Rebbe was also outspoken in his pronouncing a Halachic prohibition to exchange Israeli land for peace. However, Rav Ovadia Yosef and Rav Yosef Dov Soloveitchik argue that Halachah does permit such a deal. Each side in the debate about ceding land in return for peace presents Halachic claims. We will begin by citing a number of sources around which the debate focuses, after which we will explain how each side interprets these sources.

The Opinion of the Ramban

The Torah (BeMidbar 33:53) commands, “VeHorashtem Et HaAretz ViShavtem Ba, Ki Lachem Natati Et HaAretz LaReshet Ota,” “And you shall conquer the land [of Canaan] and settle in it, because it is for you I have given the land to inherit it.” The Ramban comments:

In my opinion, this is a positive commandment with which we are commanded to settle and conquer the land, as it is given to us and we must not reject our inheritance from God.

The Ramban explains his position at greater length in his critique of the Rambam’s Sefer HaMitzvot (additional positive commandment #4). He concludes his comments by stating:

Accordingly, [conquering and living in Eretz Yisrael] is a positive commandment that applies in all generations and obligates each individual, even during the time of exile, as is evident from many places in the Talmud. The Sifrei records that “it happened that Rabi Yehudah Ben Beteira, Rabi Matya Ben Charash, Rabi Chananya Ben Achi, Rabi Yehoshua, and Rabi Natan were departing Eretz Yisrael. They came to Platia and recalled Eretz Yisrael. Their eyes swelled with tears, and they tore their garments and mentioned the following verse: ‘And you shall conquer and settle in it, and be certain to do this.’ They proclaimed that settling and conquering the land of Israel is equivalent to all of the Mitzvot.”

From these comments of the Ramban, we see that he considers it a Mitzvah to conquer the land of Israel. The Ramban does not address surrendering this land for peace, but we shall soon see how those who oppose ceding land support themselves with his comments.

The Argument of the Minchat Chinuch

The Sefer HaChinuch (425) writes that if someone has the opportunity to kill a member of the seven Canaanite nations without endangering himself, failing to do so violates the Mitzvah to destroy them (Devarim 7:10). The Minchat Chinuch (a commentary on the Sefer HaChinuch) finds the Sefer HaChinuch’s ruling puzzling. Why should this Mitzvah apply only when there is no danger involved? Although most Mitzvot do not require us to sacrifice our lives to fulfill them, here, the Torah requires us to engage in battle with the seven nations. It is understood, the Minchat Chinuch points out, that the Torah’s laws do not assume that a miracle will occur (as explained by the Ramban’s comments to BeMidbar 5:20 and 13:2). Since the normal course of the world is that people die in battle, we see that the Torah commands us to fight with the seven nations even when it poses a risk to ourselves.

The argument for prohibiting exchange of land for peace combines the comments of the Ramban and Minchat Chinuch. It claims that the Torah obligates us to conquer Eretz Yisrael with force, so this Mitzvah, by its very nature, entails risking our lives. We thus cannot surrender portions of Eretz Yisrael even if we are certain that it will save lives, for this would violate our obligation to conquer. Among those who make this argument is Dayan Yehoshua Menachem Aaronberg (Teshuvot Devar Yehoshua 2:48 and Techumin 10:26-33). Of course, Dayan Aaronberg notes, if there is concern that military defeat (Heaven forbid) will remove more territory from Jewish control, the obligation to wage war does not apply.

Response to the “Ramban-Minchat Chinuch Argument”

The above argument against relinquishing land for the sake of peace is based on the Ramban’s belief that it is a Mitzvah to conquer Eretz Yisrael even if it involves loss of life. Rav Yehuda Amital (Alon Shevut 100:34-62) counters that the Rambam believes that the Mitzvah to conquer Eretz Yisrael does not apply today. He questions the ability of a rabbi to rule that we must risk life in accordance with the Ramban, if the Rambam does not agree with his assertion. Moreover, some Acharonim interpret the Ramban as ruling that only the Mitzvah of settling the land, but not conquering the land, applies today. The Pe’at HaShulchan (Hilchot Eretz Yisrael 1:3) rules in accordance with this view.

According to this approach, we are no longer commanded to conquer Eretz Yisrael. Thus, if surrendering land will lead to peace, it would be permissible to do so. The Mitzvah of settling the land of Israel can still be fulfilled in those areas that remain under Israeli control. Rav Aharon Lichtenstein, in a speech at Yeshivat Har Etzion in which he defended the Camp David accords with Egypt, cited Rav Yosef Dov Soloveitchik, Rav Moshe Feinstein, and Rav Yitzchak Hutner as believing that Israel is permitted to exchange land for peace.

The Prohibition of Lo Techaneim

The Mishnah (Avodah Zarah 19b) prohibits the sale of Israeli real estate to non-Jews, providing another possible reason to prohibit ceding land. This is based on the Torah’s words, “Lo Techaneim,” “Do not show mercy on [ Nochrim]” (Devarim 7:2), with regard to land sales. The Gemara (Avodah Zarah 20a) interprets these words as, “Lo Titein Lahem Chanayah Bakarka,” “Do not give them [non-Jews] permanent dwelling in the Land.” Some prohibit giving land to Nochrim even to save lives (see Teshuvot Dvar Yehoshua 2:48), while others argue that this prohibition may be ignored if lives would thereby be saved (see Rav Ovadia Yosef, Techumin 10:34-47). Rav Ovadia also points to the minority of authorities, such as the Bach (Choshen Mishpat 249:2), who claim that Lo Techaneim does not apply to non-Jews who do not worship idols, such as Muslims.

Israel’s Acceptance of United Nations’ Security Council Resolution 242

In the wake of the conclusion of the Six Day War, the United Nations Security Council unanimously passed resolution 242 which calls upon Israel to exchange territories (not all territories, but some territories) it captured in the war in exchange for peace with is Arab neighbors. Security Council resolutions constitute international law which Halachah might regard as binding similar to the Halachic principle of Dina DeMalchuta Dina (the law of the land must be respected). Moreover, Israeli Prime Minister Golda Meir in 1972 announced Israel’s acceptance of Resolution 242. Halachah requires us to honor international treaties even if they contradict Torah principles, due to concern for Chillul Hashem (as we find Yehoshua honored his treaty with the Givonim despite its inconsistency with Halachah; Rambam Hilchot Melachim 6:3 and 5). Thus, even if one finds the Ramban-Minchat Chinuch argument compelling, he must consider the Halachic implications of Israel’s acceptance of Resolution 242.

A Questionable Peace

Until now, we have discussed the question of surrendering land to secure peace. One might argue that the issue that Israel faces now is whether to surrender land in exchange for an uncertain peace. The question that arises is whether land may be exchanged when we are uncertain of the results of this action. In this situation, Rav Hershel Schachter (Journal of Halachah and Contemporary Society, 16:79-80) offers one suggestion for determining how to proceed:

This question seems comparable to that of a sick individual who must decide the course of action his doctors should undertake. The Poskim discuss the case of a patient who is fatally ill but who could receive treatment that would prolong his life although cause painful side effects. In such a situation, since there is no consensus whether going ahead with such treatment is desirable, the decision is left to the sick individual [see Nishmat Avraham, Yoreh Deah 155:2 and 349:3, and Be’Ikvei HaTzon 34 -.]. Likewise, in the case of a nation in mortal danger, faced with a solution of dubious value, the decision on the course of action to be taken should be in the hands of the majority of those affected.

Professor Eliav Schochetman (Techumin 17:107-120) disagrees with this approach. He cites numerous sources to demonstrate that the nation cannot decide matters of Halachah. Moreover, he cites the ruling of Rav Mordechai Eliyahu that in a case in which doctors disagree regarding the plan of action for a sick patient, the doctors should adopt a policy of maintaining the status quo (Sheiv Ve’Al Ta’aseh). Similarly, reasons Professor Schochetman, since there is disagreement among military experts if exchanging land for peace is prudent or reckless, the status quo should be maintained.

Conclusion

Rabbinic authorities along with the rest of the Jewish community have been debating the question of exchanging land for peace since 1937. Unfortunately, the intense debate that raged between Ben-Gurion and his followers on the one hand, and Jabotinsky and his camp on the other hand in 1937 regarding whether to accept the Peal Partition Plan to divide Palestine into Jewish and Arab states, was all for naught since the Arab leadership refused to consider accepting a Jewish State in Palestine of any size. Sadly, the current internal Jewish debate concerning the exchange of land for peace with the Palestinians is also moot, since the Palestinian Authority’s recent alliance with Hamas clarifies beyond a shadow of a doubt that the Palestinian Authority is not a partner for peace. Sadly, the land for peace debate remains in 2011 a theoretical issue, just as it was in 1937, due to the intransigence of the Palestinian Arab leadership.