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On Sunday, February 20, 2005, Israel’s cabinet voted 17-5 to approve the disengagement plan, which is scheduled to be implemented sometime after July 24th. This subject is now being hotly debated in Israel and both sides appeal to rabbis and rabbinic sources to buttress their arguments. In that context, we are reprinting below Prof. Golinkin’s responsum on “Returning Territories for the Sake of Peace” which first appeared in Moment magazine in December 1993, pp. 34, 89. The version below is taken from his book Responsa in a Moment, The Schechter Institute, Jerusalem, 2000, pp. 31-36.
Does Jewish law permit the State of Israel to give back all or part of the territories captured in 1967 for the sake of peace?
This is an extremely complex and emotional issue that has been widely debated by halakhic authorities since the Six-Day War. (See J. David Bleich, Contemporary Halachic Problems , Vol. II, New York, 1983, pp. 189-221; Journal of Halacha and Contemporary Society XVI (Fall 1988) pp. 55-95 and XVIII (Fall 1989), pp. 77-110. ). This is because Eretz Yisrael holds such a special place in Jewish tradition and history. (For the centrality of Eretz Yisrael in Jewish tradition, see Abraham Halkin, ed., Zion in Jewish Literature , New York, 1961; Lawrence Hoffman, ed., The Land of Israel: Jewish Perspectives , Notre Dame, 1986; and Benjamin Segal, Returning: The Land of Israel as Focus in Jewish History , Jerusalem, 1987.). Indeed, God’s very first conversations with Abraham concern Eretz Yisrael:
Go forth from your native land to the land that I will show you…I will give this land to your offspring (Genesis 12:1,7).
Raise your eyes and look out from where you are, to the north and south, to the east and west, for I give you all the land that you see to you and your offspring forever (Genesis 13:14-15).
This promise is reiterated on numerous occasions to Isaac (Genesis 26:1-6), Jacob (Genesis 35:11-12) and Moses (Exodus 6:2-8).
Furthermore, Eretz Yisrael, the Promised Land, is inherently holy. According to the Torah, Israel’s predecessors were expelled from the land because they defiled the holiness of the land (Leviticus 18:24-28 and Genesis 15:16). According to the rabbis, the land of Israel is the holiest of all lands (Mishnah Kelim 1:6). Prophecy only takes place in the land of Israel or regarding the land of Israel. (Mekhilta, Pisha , chapter 1, ed. Lauterbach, vol. 1, pp. 4-8 and especially Judah Halevi, The Kuzari , Part Two, paragraphs 13-14, translated by H. Hirschfeld, New York, 1964, pp. 89-92.). Eretz Yisrael is also special because many of the mitzvot , such as the Sabbatical year, can only be performed there ( Kiddushin 36b and Sota 14a). The rabbis went so far as to say that whoever lives outside of Eretz Yisrael is considered as one who has no God ( Ketubot 110b) and whoever is buried in Eretz Yisrael is considered as if he had been buried under the altar ( Ketubot 111a).
Now that we have established the Jewish people’s deep theological and spiritual ties to Eretz Yisrael, we can examine the conflicting halakhic claims regarding territorial compromise.
Those who oppose territorial compromise advance at least three basic arguments. Some declare that it is halakhically forbidden to return any part of ” Eretz Yisrael hashleimah ” [=”the complete land of Israel”]. Rabbi Theodore Friedman, however, has conclusively shown that there is no such concept in Jewish tradition, because Israel’s borders changed countless times throughout Jewish history both in theory and in practice. (Rabbi Theodore Friedman, Responsa of the Va’ad Halakhah of the Rabbinical Assembly of Israel 2 (5747), pp. 73-77 = David Golinkin, ed., Be’er Tuviah , Jerusalem, 1991, Hebrew section, pp. 53-58. For a visual presentation of Israel’s shifting borders in ancient times, see Prof. Jacob Milgrom in Moment , August 1996, pp. 52-53, 77 and The Macmillan Bible Atlas , Revised Third Edition, New York, 1993, maps no. 68, 69, 90, 98, 104-105, 158, 165, 170.). One example from the biblical period will suffice: God promised Abraham the land “from the River of Egypt” (Genesis 15:18), while he promised the Israelites the land from “the Wadi of Egypt” (Numbers 34:5). The “River of Egypt” is the Nile, while the “Wadi of Egypt” is Wadi el Arish, which is 180 miles east of the Nile!
Similar flexibility of boundaries is evident in the rabbinic period when the rabbis needed to define the borders of Israel for the purpose of observing mitzvot such as tithing and the Sabbatical year. The borders changed from mitzvah to mitzvah and the main criterion for inclusion seems to have been the Jewish population of the town. Thus Caesarea, a city inhabited by pagans and Jews, was originally considered part of Eretz Yisrael for the purpose of tithes and the Sabbatical year, but was later excluded. (Tosefta Oholot 18:16-17, ed. Zuckermandel, p. 617, along with a thorough explanation by Lee Levine, Caesarea Under Roman Rule , Leiden, 1975, pp. 67-68.). Similarly, Bet She’an, Bet Guvrin and Kefar Zemah were originally considered part of Eretz Yisrael vis-a-vis tithing, but Rabbi Judah the Prince excluded them from Eretz Yisrael when the Jewish population shrank. (Yerushalmi Demai , Chapter 2, fol. 22c and Hullin 6b and cf. the explanation of Gedaliah Alon, The Jews in Their Land in the Talmudic Age , II, Jerusalem, 1984, p. 731. ). Thus, the borders of Eretz Yisrael were fluid and the concept “the complete land of Israel” has no basis in our classical sources.
Others object to handing over territories to non-Jews on the basis of Deuteronomy 7:1-2:
When the Lord your God brings you to the land that you are about to enter and possess, and He dislodges many nations before you… seven nations much larger than you… you must doom them to destruction, grant them no terms and have no mercy upon them ( lo tehonem ).
This is the simple meaning of ” lo tehonem “, but the rabbis explained it to mean “do not give them a hold (hanayah) on the land” (Avodah Zarah 20a). Tosafot (ad loc.) interpret this to mean that one may not sell or give parts of Eretz Yisrael to any non-Jew. This approach would rule out any territorial compromise. However, many authorities rule that this prohibition applies only to idol worshippers such as the seven nations mentioned in the verse, lest they “turn your children away from me to worship other gods” (Deuteronomy 7:4). (Tur Hoshen Mishpat 249 and the Bah ad loc. ; Responsa of the Rashba , I, no. 8; the Meiri to Avoda Zarah 20a.). Therefore, since Moslems are not idol worshippers, many authorities rule that it is permissible to sell or give them parts of Eretz Yisrael (R. Raphael Meyuhass, Mizbah Adamah , Salonika, 1777, fol. 12b; R. Abraham Isaac Kuk, Responsa Mishpat Kohen , no. 63; R. Zvi Pesach Frank, Kerem Tziyon , vol. 3, p. 13; R. Yitzhak Isaac Halevi Herzog, Shanah B’shanah 5746, pp. 136-140; R. Shaul Yisraeli, Amud Hayemini , no. 12, par. 3; and R. Ovadiah Yosef cited below in note 12.). and territorial concessions to Arabs would thus be permitted.
Lastly, other opponents of territorial compromise rely on the opinion of Nahmanides. The book of Numbers (33:53) states: “And you shall take possession of the land and settle in it, for I have assigned the land to you to possess”. Nahmanides interprets that verse as a positive commandment: “…that we may not leave the land in the hands of other nations…and the Sages called this a commanded war”. (Nahmanides’ additions to Sefer Hamitzvot by the Rambam, no. 4 and cf. Nahmanides’ commentary to the verse.). In other words, we are commanded to conquer Eretz Yisrael and keep her in Jewish hands regardless of the danger and any loss of Jewish life that might occur in the process. However, some reject Nahmanides’ opinion because he is the only one who considers it a mitzvah to capture and retain the land of Israel. (Maimonides, Sefer Hahinukh and others do not include it in their enumerations of the 613 mitzvot. Cf. my book Responsa in a Moment , Jerusalem, 2000, pp. 77-82, where I accept Nahmanides’ approach to aliyah , which is based on his view that it’s a mitzvah to conquer the land, Even so, I am in favor of returning territories for the sake of peace for the reasons explained below.). Others have explained that even according to Nahmanides, this mitzvah only applies in the days of the Messiah. (R. Isaac de Leon in Megilat Esther to Sefer Hamitzvot ad loc. and others).
On the other hand, there are at least three arguments in favor of territorial compromise:
Rabbi Ovadiah Yosef, former Sephardic Chief Rabbi of Israel, has emphasized that pikuah nefesh , the saving of human life, takes precedence over all the commandments in the Torah except for idol worship, forbidden sexual relationships and murder ( Sanhedrin 74a). Thus, even if it were a mitzvah to keep the territories under Jewish sovereignty, pikuah nefesh would take precedence. As Rabbi Yosef states:
Therefore, if the military commanders along with the members of the cabinet decide that it is an issue of pikuah nefesh . . . that if territories are returned, the threat of war shall be decreased and there is the possibility of lasting peace, it appears that according to all halakhic opinions it is permissible to return territories of Eretz Yisrael for the sake of attaining this goal, for nothing stands in the way of pikuah nefesh . (Torah Shebe’al Peh 21 (5740), p. 14 and again ibid. 31 (5750), p. 16. Of course, some say we will save more Jewish lives by not returning the territories, but today most Israeli political and military leaders disagree. ).
Secondly, there is a clear biblical precedent for handing over Israeli territory for the sake of peace:
Since King Hiram of Tyre had supplied Solomon with all the cedar and cypress timber and gold that he required [for building the Temple], King Solomon, in turn, gave Hiram twenty towns in the region of Galilee (I Kings 9:11). (The parallel passage in II Chronicles 8:2 says the opposite, but that version seems to be later apologetics – see Entziklopedia Mikrait , vol. 4, col. 6. For other explanations, see Radak to both verses as well as Jacob Myers, The Anchor Bible: II Chronicles, Garden City, New York, 1965, p. 47.).
If King Solomon was permitted to give away twenty towns in the Galilee as a token of friendship for services rendered, we too are permitted to give away sections of Eretz Yisrael for the sake of peace.
And this leads us to the last point. Peace is one of the great ideals of Judaism: “By three things is the world preserved: by justice, by truth and by peace” (Avot 1:18). “If the Jewish people worships idols but lives in peace with each other, God forgives them” ( Sifrei Naso , par. 42). “Great is peace, for all major prayers and blessings end with the word Shalom” (ibid. ). But it is not enough to sit back and wait for peace to happen. The Psalmist said: “Seek peace and pursue it” (Psalm 34:15). “Hillel said: be of the disciples of Aaron, loving peace and pursuing peace” (Avot 1:12), while the parallel passage explains that Aaron used to run back and forth between two antagonists until peace was achieved. (Avot D’rabi Nattan , Version B, Chapter 24, ed. Schechter, p. 49 and cf. Version A, Chapter 12, pp. 48-49. ).
In conclusion, we have here a classic case of conflicting values in Judaism – our love of Eretz Yisrael vs. our desire to save human life and our desire to pursue peace. The choice is not an easy one and has justifiably aroused strong emotions on both sides of the issue. Yet, in light of the sources presented above, it seems clear that when the majority of the political and military leaders of the State of Israel decide that giving up certain territories will ultimately save lives and lead to peace, Jewish law permits us – and perhaps even requires us – to do so.
All four volumes of Rabbi Prof. David Golinkin’s Responsa In A Moment – Halakhic Responses to Contemporary Issues as well as other books by the author are available for purchase from the Schocken-JTS Press Bookstore.
Prof. David Golinkin is the President of the Schechter Institute of Jewish Studies in Jerusalem. Feel free to reprint this article in its entirety. If you wish to abbreviate the article, please contact Rabbi Golinkin at: email@example.com.
The opinions expressed here are the author’s and in no way reflect an official policy of the Schechter Institute.
David Golinkin is President of The Schechter Institutes, Inc. and President Emeritus of the Schechter Institute of Jewish Studies. For twenty years he served as Chair of the Va’ad Halakhah (Law Committee) of the Rabbinical Assembly which gives halakhic guidance to the Masorti Movement in Israel. He is the founder and director of the Institute of Applied Halakhah at Schechter and also directs the Center for Women in Jewish Law. Rabbi Professor Golinkin made aliyah in 1972, earning a BA in Jewish History and two teaching certificates from The Hebrew University in Jerusalem. He received an MA in Rabbinics and a PhD in Talmud from the Jewish Theological Seminary of America where he was also ordained as Rabbi. For a complete bio click here.