by Rabbi Yisrael Kaniel – October 2, 2011
The last Torah section of the Five Books of Moses, V’Zot HaBracha, commands a special mark of distinction. As observant Jews around the world have completed a period of introspection and penitence and are about to conclude the very joyous holiday of Sukkot, on the last day of this holiday, known as Simchat Torah, reserved for reveling in G-d’s gift of the Torah to His people, this final Torah section is read. In V’Zot HaBracha, our great leader Moses concludes his final address to the nation that he led through the desert for 40 years and blesses the different tribes. Then, aside from the all-encompassing gift of the Torah, Moses stresses another gift that G-d bestowed to the His people, that He “drove the enemy away from before you…Thus Israel shall dwell secure, solitary, in the likeness of Jacob, in a land of grain and wine” (Devarim 33:27-28). Moses emphasizes the gift of the land bequeathed by G-d to His people and blesses the people of Israel to live securely and prosper in the land that they are about to conquer, the land of Israel. Moses’ emphasis of this point may remind us of a related note in the very beginning of the first Torah section of the Five Books of Moses, Bereshit.
The first commentary of Rashi on the Torah has become rather well known amongst many Jews. He notes the question of why G-d begins the Torah with the creation narrative, as opposed to first mentioning His directives to us. The answer is: “The power of His acts He told to His people in order to give them the estate of nations. For if the nations of the world will say to Israel, ‘You are thieves, for you conquered the lands of the seven nations,’ they will respond to them, ‘The whole earth belongs to the Holy One, Blessed is He. He created it and He gave it to whomever He pleased. It was His wish to give it to them, and it was His wish to take it from them and give it to us’”.
G-d granted the Land of Israel to the offspring of Abraham, Isaac and Jacob – the Jewish people. And after many years of exile, G-d granted His people again the opportunity to settle and gain sovereignty over that land. Settling this land has been met, however, over the years with confrontation from Arab neighbors who, after never declaring sovereignty over the land and never doing anything to cultivate this land, have chosen to question the Jewish right to this Land as described in the Torah. In fact, much Jewish blood has been spilt in the course of military and terrorist attacks from these neighbors. And, at times, the question has arisen as to the possibility of appeasing these neighbors by means of offering them part of the land that we have gained sovereignty over.
Several years ago, in fact, an entire debate had broken out as a result of an unusual push by the government of the modern State of Israel to relinquish a part of the country gained during the 1967 Six Day War, namely Gaza, in order to – somehow – quiet tensions. The push was rather unusual because the move was to be a unilateral one with nothing received in return and, despite previous questionable and mistaken maneuvers that have only caused Jews more angst, no such totally one-sided move of such major proportions had ever been entertained by any Israeli government since its inception. Nevertheless, this had been proposed and pushed by the government, and, as a result, public and private debate and discussions arose questioning the sensibility of this proposed policy. Sadly, despite the pitiful results of this action, more discussion ensued more recently concerning similar proposed actions on the part of the Israeli government.
In most cases, discussions on the question of offering part of the Land of Israel to its neighbors has centered on personal human musings, philosophizing and attempts at logically solving the issue. Even amongst the spiritual leaders of the Jewish community, declarations have often been issued based ostensibly on philosophical musings with no apparent care towards a reasoned, comprehensive and unbiased consideration of Torah sources. In some cases, certain spiritual leaders have resorted to throwing barbs at other major rabbinic figures who unquestionably base their conclusions on thoughtful analysis of the entire breath of Torah literature, albeit not so clear to the average man in the street. Consequently, a clear and comprehensive rendering of this issue, with a mind to all of Torah literature seems to be in order to clarify the Torah perspective on this matter to the Jewish public at large – at least to those who are interested.
The Torah states in Devarim 7:2, “Ve’lo techanem,” which the Sages interpret as “do not give them an encampment in the land” (Babylonian Talmud, Avoda Zara 20a). On the basis of this, Rambam (Maimonides) rules in Mishne Torah, Hilkhot Avodat Kokhavim 10:3-4 that it is forbidden for a Jew to sell houses or fields in the Land of Israel to a non-Jew. It is generally accepted in rabbinic literature that this prohibition applies to all non-Jews and not only to the “seven nations”. This is explicitly stated in Tosafot (Avoda Zara 20a), Sefer Ha’Eshkol (III, 123), Maharam Shik (Taryag Mitzvot, no. 426) and Chazon Ish (Shevi’it 24:1 and Hilkhot Avodat Kokhavim 65:1). Moreover, the contention that a distinction be made between selling to idolatrous gentiles and to those who do not practice idolatry and therefore permit sale to Moslems is unequivocally dismissed by such Torah luminaries as R. Shlomo Yosef Zevin (L’Or Ha’Halakha, p. 125), R. Naftali Zevi Yehudah Berlin (Teshuvot Meshiv Davar, 2:56, “Kuntres Dvar ha’Shmita”) and Chazon Ish (Shevi’it 24:3 and Hilkhot Avodat Kokhavim 65:3).
Various questions have been raised in latter-day rabbinic literature as to what extent a “sale” constitutes “encampment”. While some maintain that there is no prohibition against selling land to a non-Jew who already owns land, Rav Kook and Chazon Ish reject this claim. While some condone exchanging land, Chazon Ish, in a letter to R. Betzalel Zolti, unequivocally forbids this. While some feel that sale for a limited period of time is permitted, Chazon Ish (Shvi’it 24:4 and Hilkhot Avodat Kokhavim 65:4) also rejects this. And while some have questioned whether ceding land to Arab sovereignty is considered a “sale”, this is strongly repudiated by R. Betzalel Zolti, former Chief Rabbi of Jerusalem (“Torah she’beal Peh” 11, pp. 44-54) and R. Ovadiah Hadaya (“Noam” 11, pp. 183-184), and even those who question this predicate it upon the assumption that Jews are allowed to remain in their land and only political sovereignty is transferred. Unilateral handing over of sovereignty in conjunction with removing Jews from their homes is assumed prohibited without question.
Consequently, in light of the above, any form of providing any non-Jewish individual, let alone an entire group, with the acquisition of real estate in the Land of Israel is riddled with serious objections by major rabbinic authorities and toys with the transgression of a Torah prohibition. Like most of Torah law, such a law as “lo techanem” can only be suspended in the case of preservation of life. It is only such a consideration of preservation of life that motivated R. Yohanan Ben Zakkai and his contemporaries to surrender to Rome, as described in the Babylonian Talmud (Gittin 56a). At that time, the rabbis calculated that victory over Rome had no reasonable chance, and the Jews at the time would be wiped out if they continued to confront Rome, while there was a strong chance for a relatively peaceful outcome if this were attempted. On the other hand, as Rabbi J. David Bleich points out in Contemporary Halakhic Problems, II, p. 220, “Assuredly, return of territory cannot be countenanced in a situation in which the return of land may, in itself, contribute to increased danger by rendering the military situation even more precarious.” To think that, in today’s day, transferring of land to our neighbors is being done to preserve life clearly ignores the readily apparent danger that this will only bring more bloodshed (as has been confirmed even more since the State of Israel’s handing over of Gaza).
One may ask whether all land under Jewish sovereignty is considered by Jewish law to be part of the Land of Israel, or can certain parts be considered by Jewish law as not part of the Land of Israel and, therefore, not subject to the aforementioned Torah prohibition. Commenting on the verse, “Every place where your foot shall tread shall belong to you” (Devarim 11:24), The Tannaitic source known as Sifre (Ekev 51) indicates that the Torah is thereby declaring that all conquered territories, even those lying outside the biblical boundaries of the Land of Israel, are endowed with its sanctity. Rambam (Mishne Torah, Hilkhot Melakhim 5:6), however, stipulates that such sanctity can be garnered only if the land is acquired by a king acting upon the directive of the Sanhedrin. Nevertheless, Rabbi Avraham Y. HaKohen Kook, first Chief Rabbi of the Land of Israel, argues (Mishpat Kohen, 145), based on a discrepancy in Rambam’s language in Mishne Torah, Hilkhot Terumot 1:2, that sanctification is conditioned upon the Sanhedrin only in non-obligatory wars, whereas in obligatory wars no such condition exists. Therefore, Rabbi Shiloah Raphael (5733 issue of “Torah she’beal Peh”) points out that territories conquered as a result of the Six-Day War, since it was a defensive war, are automatically endowed with the sanctity of the Land of Israel. This argument is echoed by Rabbi Eliezer Waldenberg (Tzitz Eliezer, X, 1:18). And although Rambam states that conquered territory lying outside the borders of the Land of Israel becomes sanctified only if conquered by a king, Rabbis Waldenberg and Raphael as well as Rabbi Judah Gershuni (“Or HaMizrach”, Nissan-Tammuz 5733) all affirm that the reference does not apply exclusively to a monarch but includes any government of Israel. It should be noted, moreover, that Gaza, in particular, has been asserted in Teshuvot Radvaz, V, no. 1105 to have definitely been conquered at the time of Joshua by the people of Israel who ascended from Egypt.
Another consideration that must be considered is the serious view taken by Jewish law with regards border towns or cities. Jewish law, as recorded in Shulchan Arukh (Orach Chayim 329:6), sanctions military defense of “a city close to the border” even on the Sabbath against occupation by the enemy even when the enemy seeks only to plunder it for “straw and hay” because security considerations designed to defend against future danger to Jewish lives require that border areas remain in Jewish hands. As Rabbi Bleich notes in Contemporary Halakhic Problems, III, p. 304, “Applying the selfsame consideration to the current dilemma, it may well be the case that return of territory, the retention of which is essential for purposes of security, may only enhance the danger to the inhabitants of the State of Israel in any future conflict. Similarly, present concessions may not appease the enemy but, on the contrary, may whet his appetite and enhance his strategic capabilities in demanding surrender of additional territory.”
One last matter of consideration is a rather peculiar historical note recorded in the Biblical book of Melakhim I (9:10-11): “And it was at the end of twenty years during which Solomon had built the two houses, the Temple of the L-rd and the king’s house. Hiram, the king of Tyre, had supplied Solomon with cedar wood, and with cypress wood, and with gold, as according to all his wishes, then King Solomon gave Hiram in return twenty cities in the land of Galilee.” While one or more contemporary rabbis have chosen to ignore all that was previously said, and choose to use this anecdote as proof that territorial concessions are permissible, the great medieval Jewish scholar and leader R. Isaac Abravanel, in light of the Torah prohibition as delineated above, questions Solomon’s giving away cities in the Land of Israel contrary to the Torah. Upon serious, deep and searching analysis of the relevant events described, Abravanel concludes that Hiram had been contracted to supply lumber and gold for the construction of Solomon’s Temple and palaces. In return, he received his annual payment of produce, as recorded in other verses. At the completion of the construction, Solomon wished to renew the contract by giving Hiram twenty cities from which to extract the wheat, barley, oil and other produce contracted upon. He chose particularly the region of Galilee, which is noted for these products. The cities were to remain part of the Land of Israel. Hiram’s sole jurisdiction over these cities was for the purpose of extracting the produce during the period of the contract. Upon inspecting these cities, Hiram was displeased. He thought them unproductive, and consequently returned them to Solomon, rejecting the new method of payment and renewing the contract with the previous method of paying the produce itself. Solomon, in order to prove to Hiram that he had not attempted to swindle him, settled his countrymen in 20 other cities that Hiram had given to Solomon to demonstrate that they would make the land productive. This interpretation is also followed by the 19th century Torah great known as Malbim and disputed by no known Torah exegete of note.
In summation, there is an undisputed Torah prohibition of handing over possession of any part of the Land of Israel to a non-Jew. No rabbinic authority of any note has ever entertained the possibility of unilaterally handing over any parcel of the Land of Israel if it meant that the current Jewish owner of the property would have to leave it. And any other form of handing over parts of the Land of Israel is met with severe objections by rabbinic authorities of note. Major rabbinic luminaries and decisors on Jewish law, the likes of Rabbis Kook and Waldenberg assert unequivocally that any parcel of land conquered under the auspices of any Jewish government during an obligatory war retains sanctity as part of the Land of Israel – let alone Gaza that has a history of Jewish sovereignty going back to Joshua. Moreover, jeopardizing border cities or towns and the concomitant fear of any possibility of endangering Jewish lives are treated with great severity by Jewish law. And historical narratives such as that of R. Yohanan Ben Zakkai and Solomon cited above pose no serious difficulty upon careful and concerted study of the sources.
In light of the aforementioned, the view of Torah and Jewish law as expressed through the Talmud and rabbinic scholars over the ages appears rather apparent. Land granted to the Jewish people by G-d is not a soccer ball to be kicked back and forth in an attempt to score points against opponents. And Jews living in Jewish sovereign land are not players in a poker game taking limited risks to gain an advantage. Any portion of the Land of Israel is a gift of G-d to the Jewish people to be cherished and embraced and not to be relinquished. It is a gift to hold on to. And the Jewish people living in the Land of Israel are a conglomerate of Jewish individuals whose lives may not be put at risk without carefully calculated thought. The idea that “we have to try something,” as was bandied about amongst proponents of the government’s disengagement plan from Gaza, is clearly not carefully calculated thought or strategy. In fact, it does not take a major military strategist to recognize the monumental dangers that such a plan can lead to – and, in fact, led to. And it treats the lives of Jews in the Land of Israel with a cavalier abandon that is contrary to Torah and Jewish law.
Being an issue of a Torah prohibition, it is rather apparent that anyone asked to lend a hand in violating this prohibition should treat the situation just as if he were asked to violate other Torah prohibitions such as theft, eating pork or transgressing Shabbat.
We read in Mishle (19:21), “Many are the thoughts in the heart of man, but the counsel of G-d will stand.” May all members of the Jewish people put aside personal thoughts and musings, and learn to act solely according to the counsel of G-d. And may G-d see fit to bring true peace to all of the Jewish people with the speedy arrival of His long-awaited messenger, the Messiah.