Handing Over Portions of Eretz Yisrael in a Situation of Piku'ach Nefesh
YHE-HALAKHA: TOPICS IN HALAKHA
HANDING OVER PORTIONS OF ERETZ ISRAEL
IN A SITUATION OF PIKU'ACH NEFESHi
Rav Chaim Navon
For many years now a fierce debate has been raging in the State of Israel over the issue of "land for peace." Within the Torah observant community, beyond the political-security disagreement, there is also a fundamental halakhic controversy: Is it at all permissible to hand over portions of Eretz Israel in a situation of piku'ach nefesh, i.e., in order to save lives? That is to say, even were we to assume that handing over territories that are part of Eretz Israel would lead to peace, would it be permissible to do so? This is the question that we shall attempt to answer in this shiur. Let it be noted, however, that we shall not address either the factual issue or the ethical dimensions of the problem.
1. REASONS TO FORBID
We must first explain the reasons offered to forbid such a move, for surely we know that almost all the mitzvot in the Torah are set aside for piku'ach nefesh. Why then should the mitzva of settling the land of Israel be an exception?
A. "Lo techanem" (Devarim 7:2)
The first reason to forbid handing over areas of Eretz Israel to non-Jews is the prohibition of "lo techanem":
Mishna – One should not make jewelry for an idol… One should not sell them a thing which is attached to the soil…
Gemara – From where do we derive these rules? Rabbi Yose bar Chanina said: For the verse states: "Lo techanem" [which may be rendered]: do not allow them to settle (chanaya) on the soil. (Avoda Zara 19b-20a)
A similar interpretation was also given to the verse, "They shall not dwell in your land" (Shemot 33:23).
Let us examine the formulations of several Rishonim who discuss the parameters of the prohibition of "lo techanem":
He admonished us not to settle idolaters in our land, so that we not learn their heresies. This is what the blessed One says: "They shall not dwell in your land, lest they make you sin against Me." If the non-Jew wants to remain in our land, this is not permitted to us, unless he accepts upon himself not to worship idols, and then he may dwell there. He is called a "ger toshav" (a resident alien), namely, that he is a "ger" solely for the purpose that he is permitted to reside in the land… But an idolater may not dwell among us, and we may not sell or lease him land. And we have received the explanation: You must not allow them to settle on the land. (Rambam, Sefer Ha-mitzvot, negative commandment, no. 51)
There is a certain lack of clarity in the Rambam's words: At the beginning of the passage he implies that the prohibition applies only to idolaters; but the end of the passage implies that the allowance is limited to a ger toshav. The Rambam does not relate to the intermediate situation, which is relevant today: non-Jews who do not worship idols, but at the same time are not in the category of ger toshav. A similar ambiguity is found in the Rambam's ruling in the Mishneh Torah.
The Meiri puts forward a clearer position regarding non-Jews who are not idolaters:
Regarding normative law, this was only said in Eretz Israel and during the times that we mentioned, but outside Eretz Israel and in our times… this is permitted. And all the more so in places where idol worship is not common. For the essence of the prohibition relates to those idolaters, whose idols are in their houses, and there they burn incense and offer sacrifices to them. (Chiddushei ha-Meiri, Avoda Zara 20a)
It is interesting to note that Rav Kook made use of the argument that the prohibition of "lo techanem" does not apply to Moslems in his allowance to sell the agricultural land of Eretz Israel during the shemita year (Mishpat Kohen, no. 63).
All this is true in a situation that does not involve piku'ach nefesh; but in a situation of piku'ach nefesh, there is no reason to say that the prohibitions of "lo techanem" or "they shall not dwell in your land" should set aside the obligation to save lives. Moreover, there are those who argue that the prohibition of "lo techanem" is not a biblical prohibition, but merely an asmakhta – a rabbinic prohibition, supported by a biblical verse merely as a mnemonic or homiletic device (Responsa Radbaz, V, no. 2057) – which should certainly be set aside in a situation of piku'ach nefesh.
B. The mitzva of settling Eretz Israel according to the Ramban
Further support for a prohibition to hand over parts of Eretz Israel in a situation of piku'ach nefesh is brought from the famous words of the Ramban in his strictures to the Rambam's Sefer ha-Mitzvot. The Rambam omits the mitzva of settling the land of Israel from his count of the 613 Torah mitzvot. The Ramban disagrees with him, and adds the mitzva of settling Eretz Israel to the list of Torah laws:
We were commanded to take possession of the land that God, blessed and exalted be He, gave our forefathers, Avraham, Yitzchak, and Yaakov, and not to leave it in the hands of other nations or in desolation. This is what He said to them: "And you shall dispossess the inhabitants of the land and dwell in it; for I have given you the land to possess it. And you shall divide the land for an inheritance" (Bamidbar 33:53-54). And this mitzva was repeated in other places, as He, blessed be He, said: "Go in and possess the land which the Lord swore to your fathers" (Devarim 1:8). And He spelled out the details of this mitzva to them regarding the borders and boundaries, as He said: "And go to the mountain of the Emori, and to all the places near it, in the plain, in the hills, and in the lowland, and in the Negev, and by the sea side, etc." (Devarim 1:7), so that they not leave out any of it. And the proof that this is a mitzva is from what the blessed One said regarding the spies: "Go up and possess it, as the Lord God of your fathers has said to you, Fear not, nor be discouraged" (Devarim 1:21). And He also said: "Likewise when the Lord sent you from Kadesh-Barne'a, saying, Go up and possess the land which I have given you" (Devarim 9:23). And when they did not want to go up after this statement, it is written: "Then you rebelled against the commandment of the Lord your God, and you believed Him not, nor hearkened to His voice" (ibid.). This shows that it was a mitzva, and not a mission or a promise. This is what the Sages called obligatory war. And thus they said in the Gemara in Sota (44b): "Rav Yehuda said: Yehoshua's war of conquest – all agree is obligatory; David's war for [greater] comfort - all agree is optional." And the formulation of the Sifrei is: "'And you shall possess it and dwell therein' (Devarim 26:1) – by virtue of your possessing it, you shall dwell therein." And do not go wrong and say that this mitzva relates to the war against the seven nations that we are commanded to destroy, as it says: "And you shall utterly destroy them" (Devarim 7:2) – this is not so. For we are commanded to kill those nations when they fight against us, but if they wish to make peace, we make peace with them and leave them under certain conditions. But we are not to leave the land in their hands or in the hands of any of the nations in any generation…. And from what they said "Yehoshua's war of conquest," you understand that this mitzva is fulfilled through conquest… (Ramban, Commandments omitted by the Rambam, positive commandment, no. 4)
It would appear that the Ramban sees the military conquest of Eretz Israel as a mitzva; and it is plainly evident that war involves casualties. The Minchat Chinukh discusses this point. This is what the Sefer Ha-chinukh says regarding the mitzva to wage war against the seven Canaanite nations:
One who transgresses, and has the opportunity to kill one of them without endangering himself, but fails to do so, has cancelled this positive commandment. (Sefer Ha-chinukh, no. 425)
The Minchat Chinukh raises an objection against the Chinukh's reservation, that the mitzva only applies when he does not put himself into danger:
This matter requires study, for all mitzvot are set aside where there is danger, but nevertheless the Torah commands [us] to fight against them, and we know that the Torah does not hang its laws on a miracle, as is explained by the Ramban, and it is the way of the world that people from both sides die in time of war. Accordingly, we see that the Torah commands [us] to fight against them even when there is danger, and if so, danger is set aside in this situation, and there is a mitzva to kill him even if this puts him in danger. The matter requires further study. (Minchat Chinukh, ibid.)
We see from here that, according to the Ramban who maintains that there is a mitzva to conquer the land and to defend it, the mitzva of conquering the land sets aside considerations of piku'ach nefesh.
Rav Nachum Eliezer Rabinowitz (Techumin 4, 5) understands that according to the Ramban, it was only Yehoshua who was granted an allowance to wage war for the sake of conquering Eretz Israel, but later generations were only permitted "conquest" in the sense of the duty of conquest that was cast upon Adam, "ve-kivshuha" ("and conquer it"; Bereishit 1:28) – i.e., by peaceful means. But this does not appear to be the plain meaning of the Ramban's words. Some have argued that even according to the Ramban the mitzva of obligatory war does not apply in our time, because such war is only permitted when approved by way of inquiry through the Urim and Tumim (Ramban, in his strictures to Sefer ha-Mitzvot). Others have rejected this, pointing to the wars of the Chashmonaim during the second Temple period, and the Bar Kochva revolt, supported by Rabbi Akiva, which took place after the destruction of the Temple. It seems that inquiry by way of the Urim and Tumim, and so too the requirement of a king, are a mitzva, but not indispensible; at least in the case of an obligatory war. Some, however, answer that only in the case of a defensive war, "saving Israel from the hand of the enemy," is there no need for the Urim and Tumim.
Be this as it may, according to the plain sense of the Rambam, the Rambam disagrees with the Ramban on this point, and maintains that there is no Torah mitzva to settle Eretz Israel, and all the more so that settlement of Eretz Israel does not set aside the mitzva of piku'ach nefesh. At the very least, then, we are left with a disagreement among the Rishonim. Some mention in this context the rule that "in cases of doubt regarding life and death issues we follow the more lenient position."
Mention should also be made of Rav Goren's position that in a situation where there is concern that we would lose in a war, even the Ramban would agree that it is preferable to give up parts of Eretz Israel in order to prevent such a war: "If, God forbid, it would become clear that we lack the strength and might to defeat our enemies, according to a realistic assessment of the balance of power, in such a case any peace arrangement, even an unstable one, would clearly be preferable to a rout, God forbid, in the field of battle" (Techumin 15, p. 16). Rav Chayim David Halevi regarded this as a decisive factor regarding the matter under discussion (Torah She-be-al Peh 21, p. 43). Accordingly, when there are those who argue that retaining certain territories in Eretz Israel endangers our hold on the entire country, and will eventually lead to disaster – it is clear, according to them, that there is no obligation to settle the land, even according to the Ramban. There is room, however, to argue that their assessment of the situation is wrong; but in such a case there is no halakhic disagreement, but rather a factual one.
C. Border town
A third source for forbidding the handing over of territory even in a situation of piku'ach nefesh is brought from the Rambam's ruling regarding a "border town." This source does not relate to the mitzva of settling Eretz Israel, but rather to matters of security. It seems to imply that Halakha has a firm position regarding security considerations:
If gentiles besieged Israelite cities – if they came over monetary matters, they [= the Israelites] should not desecrate the Shabbat because of them or wage war against them. But in the case of a city close to the border, even if they only came for straw and stubble, they should go out against them with weapons and desecrate the Shabbat because of them. And in all places, if they came to kill, or if they waged battle, or if they laid a siege without spelling out their intentions, they should go out against them with weapons and desecrate the Shabbat. (Rambam, Hilkhot Shabbat 2:23)
The Rambam's source is the Gemara in Eruvin 45a. This is the way that Rashi explains the law of a "border city":
A city close to the border – a city that separates between the territory of Israel and the territory of the nations.
They should go out against them – lest they capture it, and from there it will be easier for them to conquer the land. (Rashi, Eruvin 45a)
According to Rashi, the law of a "border city" states that even if the gentiles came only to plunder, we desecrate the Shabbat in order to fight against them, for we are afraid that they came there to capture the city, and from there to conquer the entire country.
Certain authorities conclude from this that the normative law is that non-Jews are not to be trusted, and that they must not be given control over cities from which it would be possible to conquer all of Eretz Israel. This, however, seems to be an exceedingly strange proof. We are not dealing here with a scriptural decree, but rather with a realistic assessment regarding the matter of piku'ach nefesh. Were we to come to the conclusion that handing over territories would not increase the danger, but rather diminish it, we would be dealing with a different reality, to which this halakha does not relate (e.g., where there is a peace treaty, or for some other reason). So too writes Rav Chayim David Halevi. This seems also to be the position of the Rema, who writes as follows: "But nevertheless, the matter should always be considered in light of the circumstances" (Shulchan Arukh, Orach Chayyim 329:7).
2. THE REASONS TO PERMIT
Those who permit the surrendering of portions of Eretz Israel rely first and foremost on the law of piku'ach nefesh, which sets aside all the Torah's commandments (with the exception of three: idolatry, murder and incest). We saw above how these authorities reject the proofs brought by those who forbid. But they also add several arguments that are worthy of discussion.
1. King Shlomo
King Shlomo handed over cities in Eretz Israel to Chiram, king of Tzor, and nowhere do we find that Chazal criticized him for this:
Now Chiram king of Tzor had helped Shlomo with cedar trees and cypress trees, and with gold, according to all his desires, that then king Shlomo gave Chiram twenty cities in the land of the Galil. (I Melakhim 9:11)
It is not at all clear that we can decide normative law based on the actions of biblical heroes. For while we do not find that Chazal criticized Shlomo for this, not finding such criticism does not prove that they viewed his actions favorably.
2. Halakhic rulings on matters of state and society
Rav Chayyim David Halevi raised a fundamental consideration regarding halakhic rulings on matters of state and society:
There are those among us, including believing Jews, who are inclined to think that God's Torah is incapable, as it were, of answering the present-day questions that arise in modern society – social, economic and political problems, as if God's Torah does not have a solution to these problems or the likes of them.
There is a certain amount of truth to this argument, but nevertheless a person may not put forward such an argument, unless he has mastered the Talmud and the codes. For the simple truth is that regarding many of the issues that trouble modern society, a reasonable halakhic solution can be found in every generation…
Nevertheless, we have said that there is a certain amount of truth to this argument. For there a certain area in the Torah in which things are intentionally vague and unclear. Nowhere do we find in the Torah a clear description of a political or economic regime. Even the section dealing with the king is vague, to the point that the Talmudic rabbis disagree whether the appointment of a king is obligatory or optional. And even though the greatest Rishonim have ruled that it is obligatory, nevertheless the greatest commentators have spoken sharply against monarchy as a form of government. Surely this commandment came to organize political life in a Torah-observant society – why then was it given in such a vague and obscure manner? This phenomenon repeats itself in several areas of live touching upon state and society. In my opinion this is the strength and greatness of the Torah, that it does not impose a clearly defined regime, whether political or economic. And this is for two reasons:
1. By the very essence of these areas of life, they are given to change from one period to the next, whereas God's Torah is an eternal Torah, and the Torah intentionally refrained from establishing clear and defined parameters for them.
2. The Torah did not want to force us to conduct our worldly life according to a specific regime, and left the matter to our free choice.
But on the other hand, the Torah gave mitzvot, which are principles, that fit every regime in every generation and every form of life, and their objective is to prevent the negative in every possible regime.
All of the above does not deny "da'at Torah," the idea that the Torah has what to say on every aspect of life. On the contrary, we find sources that there is an obligation to seek out "da'at Torah" even regarding political and security matters… We are not dealing here with fixed laws, on the basis of which decisions must be made, but rather the Torah's perspective….
We are dealing here with political negotiations with our neighbors, in the wake of which we will return territories, and perhaps achieve peace, and if we don't do this, we will perpetuate the hostile situation and stand before dangers. What is this danger? You may say actual physical destruction, that is, that our enemies will have the power to conquer us and to destroy us, God forbid! Does this require a halakhic allowance? Perhaps negotiations and return of territories will save us? Rather, we are dealing with the danger of political isolation, an embargo on arms supply or economic support, or the like; does such a situation have a parallel in Halakha, to permit or to forbid? Were the people of Israel ever in a similar situation? Or perhaps Halakha doesn't deal with such delicate and complicate political situations!
This is what we said above – this is the power of Halakha, that it did not intervene in the details of the laws governing the state, and all it teaches are fundamental principles. In my humble opinion, it seems as exceedingly obvious that the guiding principle in all this is guaranteeing the security of the nation in every context of negotiations on the basis of a very broad understanding of the Torah's mitzva, "that you shall live with them." Therefore, the discussion regarding the return or retention of the territories must be based on a clear and simple principle – what is the best way to guarantee the security of the state, which is the preservation of the nation. This is a halakha that is not written, and it certainly does not stem from the law of piku'ach nefesh, but rather from simple logic…
We are left then with one clear and simple assumption: The decisive factor in this case is the preservation and security of the nation. And therefore any government of Israel that will come to the conclusion that the surrender of territories will prevent wars and bloodshed, and in its wake it will bring true peace - is permitted, and even obligated to do so. And in contrast, a withdrawal that is liable to cause any kind of security risk is absolutely forbidden. (Rav Ch.D. Halevi, Torah She-be-al Peh 21)
These are very profound words. Rav Ch.D. Halevi argues that as a matter of principle, the Torah did not wish to set a rigid policy from the outset, but rather it left the choice to the people of every generation, in accordance with the situation and general moral principles. For this reason Halakha does not relate to the issue of "land for peace," and the issue depends on the benefit that such a policy would bring the nation and the state.
3. PUSHING OFF CONQUEST OF THE LAND FOR ECONOMIC REASONS
As support for the approach of Rav Ch.D. Halevi, we can bring the Gemara in Chagiga:
Many cities were conquered by those who left Egypt, but not by those who left Bavel, because the first sanctification was valid for its time, but not for the future, and they left them [unsanctiifed] so that poor could be supported by them during the sabbatical year. (Chagiga 3b).
We see here that important and cherished mitzvot may at times be pushed aside because of social, and even economic considerations, and that decisions regarding communal matters must only be made after exceedingly careful consideration.
(Translated by David Strauss)
 There are those who argue that if an entire nation acts in the accepted human manner and in principle accepts the norms of the seven Noachide laws, its members are treated today as resident aliens (ger toshav). But even if we accept this position, it is not clear whether this also applies to the matter of "lo techanem."
Rav Nachum Rabinowitz argues that a nation that is already found in Eretz Israel may continue to live there if its members are fundamentally committed to the seven Noachide laws. Attaining the status of "ger toshav" before a court is only necessary for a non-Jew who is not already a resident of Eretz Israel, and wishes now to settle there (Responsa Si'ach Nachum, Yoreh De'a, no. 93).
 "When Israel has the upper hand over the nations of the world, we are forbidden to allow an idol-worshipping heathen to remain in our midst. Even to reside temporarily and even to pass from place to place for business, he must not pass through our land, unless he accepts upon himself the seven Noachide commandments. As it is stated: 'They shall not dwell in your land' – even for an hour. If he accepted upon himself the seven commandments, he is a 'resident alien'" (Rambam, Hilkhot Avoda Zara 10:6). The Ra'avad disagrees with the Rambam regarding the prohibition of business.
 Rav Ch.D. Halevi raises another consideration: The rationale underlying "lo techanem" is "lest they make you sin against Me"; and this only applies in a case where non-Jews are encouraged to settle among us, but not in a case of a transfer of sovereignty.
 The Griz (in his novellae on the Torah, Parashat Beshalach, on the verse, "Zevulun was a people that jeopardized their lives" [Shoftim 5:17]) explains that according to the Chinukh, the law of piku'ach nefesh is only set aside in the case of a war fought against the seven Canaanite nations, but not when a person encounters an individual member of one of those nations. Rav Goren presented a similar view (Techumin 15).
 Iggerot Moshe, Choshen Mishpat 2, no. 78.
 According to them, this is similar to a case where our enemies succeeded in planting nuclear bombs across the country, and threaten to detonate them and kill the entire population, God forbid, if we do not hand over portions of Eretz Israel. Would anyone disagree about the need to hand over the territories in such a case?
 Members of Chabad are particularly fond of this source.
 It should be noted that it is clear from this Talmudic passage that the law applies even outside Eretz Israel, and thus we see that it is not connected to the mitzvah of settling Eretz Israel, but rather to the concern regarding piku'ach nefesh.
 Apparently, in a city that is not close to the border, it is highly likely that indeed they only came for straw and stubble; or that there they will at most capture that city itself, but not other cities. It should be noted that the Ra'avan (no. 363) explained this differently: In a city that is close to the border, the non-Jewish invaders can easily kill the inhabitants without having to worry about other Jews taking revenge against them.
 Torah She-be-al Peh, 21.
 The Rema wrote this in the wake of the Terumat ha-Deshen, no. 156. There is, however, room to say that his words, "the matter should always be considered in light of the circumstances," refer exclusively to the other leniencies cited by the Terumat ha-Deshen. But the realistic discussion itself proves that we are not dealing here with a scriptural decree, but rather with an assessment that can change in accordance with circumstances.
 "Da'at Torah" is not determined according to fixed laws serving as a given, but rather according to particular principles, "the Torah's judgment," and the facts given to the Torah authorities by the nation's political leaders.