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Parshas Acharei Mos: Surrendering Land For Peace in Eretz Yisrael No definitive Halacha LeMa'aseh conclusions should be applied to practical situations based on any of these Shiurim.
At the end of this Parsha, the Torah indicates that only if the Jewish people observe the Mitzvos properly and do not follow the abominable practices of those who previously inhabited Eretz Yisrael will the land not vomit them out as well (VaYikra 18:26-28). The same idea is also found a little later in the Torah (Ibid. 20:22-23). Although the Gemara in Shabbos (23a) understands from the earlier set of Pesukim (Perek 18 Ibid.) that it is specifically the sins relating to Gilui Arayos, improper sexual behavior, that generate the punishment of the Jews being exiled from Eretz Yisrael and replaced there by other people, Rashi, commenting on one of those Pesukim (Ibid. Posuk 28), states that Eretz Yisrael by its very nature cannot tolerate in its midst people who commit Aveiros in general. The Ramban (on Pasuk 25 Ibid.) develops this point further, explaining that Eretz Yisrael is Hashem's special land and that He has given it to the Jewish people only on the condition that they will observe His Mitzvos; if they do not, they will naturally be expelled from there. The Mechilta (Parshas Beshalach-HaShirah, Parsha 10 s.v. Behar) also links settling in Eretz Yisrael with observing the laws of the Torah. It is clear from the Pesukim in Tehillim (105:44-45) that the Jews were given Eretz Yisrael specifically in order to observe Hashem's Torah therein, and the Torah itself indicates later (Devarim 19:8-9) that Hashem will give them even more land if they will observe all the Mitzvos properly; the Ramban (on Pasuk 8 Ibid.) stresses that this is the only way they will be given the additional land. On the other hand, the Torah also states clearly that if the Jews do not listen to Hashem's commandments, He will make the land desolate and allow the Jews' enemies to live there, while scattering the Jews among other nations outside of Eretz Yisrael (VaYikra 26:31-33). This idea that turning away from Hashem's Mitzvos will result in the quick departure of the Jews from Eretz Yisrael is also seen from the Pesukim recited as part of the second paragraph of Kerias Shema (Devarim 11:16-17), among other places. Rav Shimshon Raphael Hirsch ("The Nineteen Letters", Eighth Letter) writes that the Jewish people received the gifts of land and of statehood not as an end unto itself, but as a means to carry out the Torah; whether they retain the land depends upon whether they fulfill the requirements of the Torah. It is clear from all of the above that the Jewish national right to Eretz Yisrael is predicated on the commitment to the observance of the Torah, and that the expulsion of the Jews from this land is a punishment and a sign of Hashem's anger, as powerfully described towards the end of the Torah (Ibid. 29:23-27). What if the Jews, however, are not being physically expelled from the land, perhaps despite, for some reason, the inappropriate religious behavior of many of them, but they are nonetheless willing to abandon Eretz Yisrael, or certain parts of the land, and allow others to live and enjoy complete sovereignty there? Is this allowed? Is it permissible to give away land in Eretz Yisrael to Arabs? The Torah elsewhere, in describing the required conduct of Bnai Yisrael upon their entry into Eretz Yisrael, refers to the obligation to destroy the inhabitants of the land whom they encounter, and then states "V'Lo Techanem" which is usually translated as "do not show them any favor" (Devarim 7:2). The Gemara in Avodah Zarah (20a) however, derives from this phrase that there is a prohibition to grant these people encampment (Chaniyah) in Eretz Yisrael. Although the particular people referred to in the Posuk (Ibid.) are the members of the seven nations who previously lived in that land, as enumerated one Posuk earlier (Ibid. Posuk 1), it is the position of Tosafos (Ibid. s.v. D'Amar) that the prohibition to allow others to have land in Eretz Yisrael applies to other non-Jews as well. The Rambam (Hilchos Avodas Kochavim 10:6) rules that when Jews are in control of the situation in the country, it is forbidden to allow a non-Jew to live in the land even on a temporary basis; he says that to be able to live in Eretz Yisrael, the non-Jew would first have to become a "Ger Toshav," a partial convert who accepts certain specific Mitzvos upon himself, and he then adds that nowadays, this status of being a Ger Toshav cannot be put into effect. The Mishnah in Avodah Zarah (19b) prohibits selling a non-Jew land, or anything attached to the land, in Eretz Yisrael, and a later Mishnah (Ibid. 20b-21a) restricts even the rental of real estate and certain property in that land to non-Jews; the Rambam (Ibid. Halacha 3-4) and the Shulchan Aruch (Yoreh Deah 151:8,10) rule accordingly. It would thus appear that it is certainly forbidden to willingly give land in Eretz Yisrael to a non-Jew. It must be pointed out, though, that there are some who hold that this prohibition to grant encampment in Eretz Yisrael to a non-Jew refers only to an idolater, and not to any non-Jew. This appears to be the position of the Rambam in his Sefer HaMitzvos (Mitzvas Lo Ta'aseh 51) where he applies this prohibition, and one like it from earlier in the Torah (Shemos 23:33), specifically to people who worship Avodah Zarah. The Rashba, in a different context (Sheilos U'Teshuvos HaRashba Chelek 1 Siman 8), also states that the above cited Posuk which says "V'Lo Techanem" (Devarim Ibid.) does not refer to a non-Jew who does not worship Avodah Zarah; the Meiri, commenting on the aforementioned Gemara in Avodah Zarah (Beis HaBechirah on 20a Ibid. s.v. Kivar), clearly writes that the prohibition to sell land in Eretz Yisrael to a non-Jew does not refer to non-Jews who believe in G-d and are not idolaters. The Tur (Choshen Mishpat Siman 249) also seems to limit the prohibition to idolaters; the Bach (Ibid. s.v. Asur) apparently concurs, mentioning that Arabs (Yishmaelim) are excluded from this prohibition. Rav Avraham Yitzchak HaKohein Kook (Sheilos U'Teshuvos Mishpat Kohein Siman 63) accepts this position, as does Rav Tzvi Pesach Frank (Sheilos U'Teshuvos Har Tzvi, Inyanei Zeraim Chelek 2 Siman 44), among others. As mentioned above, however, the Rambam in his Mishneh Torah (Ibid. Halacha 6) appears to include any non-Jew (except for a Ger Toshav, which does not exist today) in this prohibition. Similarly, the Beis Yosef, commenting on the aforementioned Tur (Ibid. s.v. Asur), specifically includes Arabs (Yishmaelim), and hence, other non-idolaters, in the prohibition against giving something to a non-Jew; the S'ma (Choshen Mishpat Ibid. Sif Katan 2) too prohibits giving something away to a non-Jew (although he allows selling to non-Jews), and this may also be the position of the Shulchan Aruch (Ibid. Sif 2). The Netziv (Sheilos U'Teshuvos Meishiv Davar, Kuntres Davar Hashmatah, Daf 58a) clearly states that the prohibition to transfer land in Eretz Yisrael to a non-Jew applies to all non-Jews, not just idolaters; the Chazon Ish (Chelek Zeraim, Hilchos Shiviis Siman 24 Os 3) also writes that there is no distinction between idolaters and other non-Jews regarding this Halacha. He suggests that this very issue may be part of a dispute between Rambam (Ibid.) and the Ra'avad (Hasagas HaRa'avad Ibid.); the Netziv (Ibid.) asserts, however, that the Ra'avad would agree that giving away land to even non-idolaters is forbidden. Even assuming, though, that one can get around this prohibition to grant encampment in the land to non-Jews, either because it is inapplicable in the current situation, as suggested above by some, or because there may perhaps be some leniencies since the entire prohibition may be MideRabbanan, as is the position of the Radvaz (Sheilos U'Teshuvos HaRadvaz Chelek 6 Siman 2 Alafim 247, printed in Hashmatos on the page before Chelek 7) and of Rabbeinu Saadyah Gaon in his Sefer HaMitzvos, at least according to Rav Yerucham Perlow (Sefer HaMitzvos of Rav Saadyah Gaon, Chelek 2, Lo Taaseh 13-14, Daf 21b), there still is another issue to examine. The Torah states that Bnai Yisrael are required to clear out the land (of its inhabitants) and dwell in it (Bamidbar 33:53). According to the Ramban, both in his commentary on the Torah (Ibid.) and in his commentary on the Rambam's Sefer HaMitzvos (Hashmatas HaAsin, Mitzvas Aseh 4), this Posuk constitutes a Mitzvah incumbent upon every Jew to live in Eretz Yisrael. In the latter source, the Ramban indicates that included in this Mitzvah is the idea that the land may not be left in the control of any other nation, asserting that this obligation applies in any and all generations, even in the time of the exile. Since he also notes (Ibid.) that this Mitzvah requires Jews to wage war in order to obtain land in Eretz Yisrael, it would obviously preclude giving away land which Jews already have there. The Rambam, however, does not enumerate this Mitzvah on his list of 613 Mitzvos; the Megillas Esther (In his Biur to Mitzvos Aseh L'Daas HaRamban) explains that this is because the Rambam does not believe that this Mitzvah applies nowadays. This would mean that according to the Rambam, one perhaps may indeed give away land in Eretz Yisrael nowadays. It should be noted, though, that according to some authorities, like the Avnei Neizer (Sheilos U'Teshuvos Avnei Neizer Chelek Yoreh Deah Siman 454 Os 6-7) and the Chazon Ish (Kovetz Igaros of the Chazon Ish Chelek 1 Igeres 175), the Rambam too agrees that this Mitzvah is in fact applicable today as well. It must be stressed, however, that based on a different Posuk in this Parsha (Vayikra 18:5), the Gemara in Sanhedrin (74a) allows one to ignore all but three Mitzvos (the Aveiros of idolatry, illicit sex, and murder) in the face of life-threatening danger; the Gemara in Kesubos (19a) states similarly that nothing takes precedence over saving a life (Pikuach Nefesh) besides those three Mitzvos. The Rambam (Hilchos Yesodei HaTorah 5:1-2) and the Shulchan Aruch (Yoreh Deah 157:1) rule accordingly. If it could be determined, then, that giving away land in Eretz Yisrael would save even one Jewish life, doing so would be permissible and indeed obligatory because none of the Mitzvos discussed above take precedence over saving a life. Indeed, the Gemara in Pesachim (56a) indicates that if not for a promise from a Novi, as explained by Rashi (Ibid. s.v. V'Lo), it would have been acceptable for Chizkiyah HaMelech to give away even parts of the Beis HaMikdash itself in order to save lives. Moreover, the Gemara in Gittin (56a-56b) relates that Rabban Yochanan Ben Zakkai was willing to surrender Yerushalayim and the Beis HaMikdash to the Romans because he was convinced that it was necessary to make peace. It thus seems clear that in order to achieve peace and save lives, Jews may give away land in Eretz Yisrael if it is apparent that those results will transpire. This may not, however, necessarily be the case. While it is true that saving a life usually takes precedence over all (but three) Mitzvos, as noted above, the Minchas Chinuch (to Mitzvah 425 Os 1) writes that during a war, this principle does not apply. Since the Torah sanctions and indeed mandates war at times, and it is natural that war endangers lives, apparently the rule that saving a life over-rides all other considerations does not apply during a war, as the very nature of war implies a risk to life. This same idea is articulated, among others, by the Netziv in his commentary on the Gemara in Eiruvin (Sefer Meromei Sadeh to Daf 45a Ibid. s.v. Peirush Rashi) and in Kiddushin (Ibid. in Daf 43a Ibid. s.v. Mah) where he discusses the right of a king to wage war and insist that the people endanger their lives. It is important to note that the Ramban, in his commentary on the Rambam's Sefer HaMitzvos (end of Hashmatas HaLavin), indicates that anyone in charge of the government may substitute for the king regarding certain wars; this point is further discussed by Rav Shlomo Zevin (Sefer L'Or HaHalachah page 16) and others. When the Jewish people in Eretz Yisrael are in a state of war, which is obligatory, at least according to the Ramban, commenting on the Rambam's Sefer HaMitzvos cited above (Hashmatas HaAsin Mitzvas Aseh 4), in order to conquer - and maintain control - over the land, not to mention self-defense considerations, discussed by the Gemara in Sotah (44b) and by the Rambam (Hilchos Melachim 5:1), the idea that saving a life takes precedence over all else is suspended, and the other Mitzvos discussed above are in effect. This is, however, only if the war is one which the Jews are capable of winning, as documented by Rav Moshe Tzvi Neriah (Maamar on Heter Milchamah B'Shabbos, printed in Choveres "Torah SheBa'al Peh" 5727) and others; there is no obligation to fight a losing battle, as apparently was the case in the story mentioned by the Gemara in Gittin (Ibid.) It must therefore be determined, when weighing whether to surrender land in Eretz Yisrael, not only whether this will in fact lead to peace and save lives, but also whether the current situation is one of war, and if so, whether it is one which the Jews are capable of winning, before arriving at a decision. If you have any questions or comments, please click here |