Land For Peace

By Rabbi Joshua Flug

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I. Intro- The most prominent debate in Israeli politics is the debate about whether to
give back land in exchange for peace. In this shiur outline, we will present the
halachic issues that relate to this discussion. Please keep in mind that the debate
extends well beyond the halachic issues and that the facts and consequences of
withdrawal are widely debated.
II. Is there an inherent prohibition to return land? - After the six day war, a number
of article were written about the status of the newly acquired land. R. Ya'akov
Betzalel Zolty (1920-1982) wrote an article in 1969 about the possibility of giving
back land (in the absence of any terrorist demands). The issues he discusses are
discussed by other poskim in the context of the land for peace discussion
a. Is returning the land a violation of the mitzvah (bitul mitzvah) of yishuv and
kibbush Eretz Yisrael?
i. The Torah writes that there is a mitzvah to capture the land of Israel
and settle there. {}
ii. Ramban (1194-1270) implies that the mitzvah of capturing land
applies in all generations, even during the galus. {}
1. R. Yizchak DeLeon (15th century-there is a dispute as to
whether he is the author of this work) writes that the reason
why Rambam does not codify the mitzvah of yishuv or kibush
Eretz Yisrael is that it only applies before galus and after the
coming of Mashiach. {} However, during galus, the Gemara
states that there is a sh'vuah that the Jewish people won't
"climb the wall." {} Therefore, there cannot be a mitzvah to
capture or settle Eretz Yisrael during the galus.
2. Rashbash (c. 1400-1467) addresses the issue of climbing the
wall and claims that the sh'vuah only applies to the Jewish
people as a community, but each individual has a mitzvah of
living in Eretz Yisrael. He further writes that even Rambam
agrees that there is a mitzvah d'rabanan to live in Eretz Yisrael.
{}
iii. Is Ramban of the opinion that there should be a national conquest
during the galus?
1. R. Ovadia Yosef (b. 1920) writes that according to Ramban,
there is only a mitzvah on individuals to inhabit the land.
There is no national obligation to conquer the land and govern
it. {}
 2. R. Shaul Yisraeli (1909-1995) disagrees and maintains that as
long as there is no violation of the sh'vua, there is an obligation
to conquer Eretz Yisrael. This can be accomplished by
individuals. {}
a. R. Yisraeli further cites the opinion of R. Avraham
Borenstein (Avnei Nezer 1838-1910) who writes that if
the Jews are given permission to settle the land, they
can even go as a tzibbur and that wouldn't be a violation
of "climbing the wall" {}
iv. Is there a fulfillment of kibbush Eretz Yisrael when the Jewish people
don't have full control of the land?
1. R. Yehoshua Trunk of Kutna (1820-1893) writes that one
cannot fulfill the mitzvah of kibbush (and perhaps not even
yishuv) if the Jewish people don't have the absolute right to do
what they want on their land. {}
2. R. Avraham Pitrokovski (early 20th century) disagrees and
maintains that the mitzvah only involves settling the land and
developing the land. He specifically references R. Yehoshua
M'Kutna's teshuva and disagrees. {}
b. Is there a prohibition against returning land in Eretz Yisrael to gentiles?
i. The discussion here is limited to returning land for purposes that do
not involve pikuach nefesh. The pikuach nefesh angle will be
addressed later.
ii. The Gemara derives from the verse Lo Sechanem {} that there is a
prohibition against giving or selling land in Eretz Yisrael to non-Jews.
{}
iii. R. Zolty notes that there are two ways to understand this prohibition:
1. The prohibition is a formal prohibition against selling or giving
any land in Eretz Yisrael to a non-Jew.
2. The prohibition is not the sale per se, but rather allowing the
non-Jews to have a more permanent establishment in Eretz
Yisrael. This approach is implied from Rambam's comments
in Hilchos Avodah Zarah. {}
iv. R. Zolty notes that there are three important differences between the
two approaches: {}
1. A land swap for a larger piece of land-If the prohibition is a
formal prohibition against sales or gifts of land, then even a
land swap would be prohibited. If the prohibition is to allow
 the non-Jews a more permanent establishment, then perhaps a
land swap would be permissible.
2. A temporary sale- If the prohibition is formal, perhaps even a
temporary sale would be prohibited. If the prohibition is to
allow the non-Jews a more permanent establishment, a
temporary sale might be permissible.
3. Giving autonomy to non-Jews on the land that they already
have- If the prohibition is formal, when there is no actual
transfer of land, only a transfer of power, there is no
prohibition. If the prohibition is to give the non-Jews a more
permanent establishment, transfer of power would be the
ultimate form of giving them a more permanent establishment.
v. Are lands that were not settled by the Olei Bavel included in the
prohibition against Lo Sechanem? [See map that delineates the areas
inhabited by the Olei Bavel. {}]
1. R. Yosef Babad (1801-1874) writes that the prohibition only
applies to the lands captured by the Olei Bavel. {}
2. R. Avraham Yeshaya Karelitz (1878-1953) disagrees with
Minchas Chinuch and asserts that the prohibition applies to all
lands captured by the Olei Mitzrayim. {}
3. The practical difference would be the Golan which was
captured by the olei Mitzrayim but not the olei Bavel. [Gaza
was not captured by the olei Mitzrayim or the olei Bavel.]
III. The Role of Pikuach Nefesh- Does Pikuach Nefesh Cancel the Mitzvah of
Kibbush Eretz Yisrael and the Prohibition of Lo Sechanem?
a. Ramban writes that inhabiting the land of Israel is considered part of
milchemes mitzvah. {}
b. Minchas Chinuch writes that there is no consideration for pikuach nefesh
when it comes to milchemes mitzvah because the Torah never guaranteed that
everyone will survive the war and yet, the Torah states that you must fight the
war, knowing that some people may die. {}
c. How does this apply to the discussion of land for peace?
i. R. Yehoshua Ehrenberg writes that because it is a mitzvah to capture
these lands, one certainly cannot return them because of a threat of
pikuach nefesh (assuming that they will be able to hold on the land
regardless). {}
ii. R. Ovadia Yosef disagrees and maintains that since there is no mitzvah
of the tzibbur to conquer Eretz Yisrael nowadays, there is no
 obligation to place one's life in danger in order to fulfill the mitzvah on
the individual. {} [R. Ovadia's position regarding land for peace is that
pikuach nefesh is the ultimate arbiter in this discussion. This position
proved to be a critical political force in the negotiations leading up to
the Oslo Accords. Click here to access two articles that discuss the
matter.]
iii. Even if one doesn't consider settling Eretz Yisrael as part of a
milchemes mitzvah, there are two reasons why pikuach nefesh might
not be a consideration:
1. Rambam writes that a war of self defense is always considered
a milchemes mitzvah. {} R. Shaul Yisraeli writes that
therefore, even if one doesn't consider yishuv and kibbush
Eretz Yisrael to be an inherent mitzvah, the fact that now these
lands are captured and the nation is trying to defend these lands
from terrorists makes it an automatic milchemes mitzvah and
we don't follow the ordinary rules of pikuach nefesh. {}
2. The Netziv (1817-1893) writes that pikuach nefesh is not a
factor in a milchemes reshus. The way of the world is that one
nation conquers another and there are going to be casualties on
both sides. {}
IV. The Problem of Giving Away Border Territories
a. The Gemara states that if the enemy besieges a border city, even if their claim
is only for straw (i.e. they claim that they don't want to conquer the land, only
take the straw), one goes out to war even on Shabbos because such a city can't
fall into the hands of the enemy. The Gemara implies that this is not related to
the mitzvah of kibbush Eretz Yisrael because it gives Neharda as an example
of such a city. {}
i. Nevertheless, Rashi interprets the Gemara that if there were to be a
city similar to Neharda under Jewish control, that would be considered
a city which one must defend. {} The implication is that we are
dealing with the mitzvah of kibbush Eretz Yisrael (or at least it is a
possible component).
ii. Rambam implies that it relates to pikuach nefesh and is not relevant to
kibbush Eretz Yisrael. {}
iii. R. Ovadia Yosef notes that regardless of whether one follows Rashi or
Rambam, this rule is for strategic purposes. However, nowadays, that
we have an air force and missiles the strategic advantage of border
cities is minimized. {}
1. R. Shaul Yisraeli strongly disagrees with the assertion because
just as we have jets and missiles, they also have the means to
 strike from a distance. [This whole discussion was pre-Oslo
and we can see from recent history what happens when the
Palestinians in Gaza get their hands on mid and long range
missiles.] Furthermore, it is counterintuitive to argue that
because of the threat of terrorism, we will give back the land
and rely on our air force and missiles. If the air force and
missiles don't work sufficiently now to ward off terrorism, how
can you rely on them when you give back the land? {}
iv. R. Pinchas Hirschprung (1912-1998) writes that there are times where
strategically it does make sense to give up land and that must be
decided by military experts. If they determine that Eretz Yisrael will
be safer by giving back the land, then you can give it away. {}
b. What are the Criteria in Determining Whether One Can Give Back Land for
the Purposes of Safety?
i. On the one hand, there are some that argue that giving back the land
will put the rest of the nation in greater danger. On the other hand,
others argue that it will achieve peace and make Eretz Yisrael more
secure.
ii. R. Shlomo Kluger (1783-1869) discusses a parallel case regarding
pikuach nefesh where certain physicians claim that a person should
undergo a certain operation and that will allow him to live and others
disagree and claim that the operation will kill him. [Click here to
access the entire teshuva.] He writes that if both opinions have equal
weight, in theory, one should not change the current status quo (shev
v'al ta'aseh adif). However, if the patient wants to, he may decide to
undergo the operation because his desire for life outweighs other
considerations. {}
iii. If it is up to the ill patient to decide in a situation when there is a
dispute among experts, then if military experts dispute whether giving
back land will make Eretz Yisrael safer, we would ostensibly defer to
the people to make that decision. However, there are a number of
considerations:
1. R. Hirschprung notes that we can only validate the opinion of a
military expert if he gives an opinion from a military
standpoint and not a political standpoint. If he claims that we
should give back the land because it is the right thing to do or
because there is political pressure from other countries to do
so, we cannot count his opinion. {}
2. R. Hershel Schachter notes that the opinion of the people only
matter in determining whether this is a war that is being won or
whether it is being lost. If majority of the people think that it is
being lost, one follows the majority and one can give up land,
but if not, one must defend the land. {} [He also notes that if
there are people who believe that the war is being won but
nevertheless, we should give back the land, their opinion is not
counted. We are only trying to figure out whether this will
promote a safer Eretz Yisrael or not.]
 ‫‪ .4‬כתובות קיא‪.‬‬ ‫‪ .1‬במדבר לג‪:‬נג‬

‫‪ .5‬שו"ת רשב"ש ס' ב‬

‫‪ .2‬רמב"ן השמטות לספר המצוות מ"ע ד‬

‫‪ .6‬מאמר של הגר"ע יוסף תורה שבעל פה חוברת לא‬

‫‪ .7‬חוות בנימין חלק א' ב‪:‬יג‬

‫‪ .3‬מגילת אסתר השמטות למ"ע ד‬

‫‪ .8‬אבני נזר יו"ד א‪:‬תנד אות נו‬

‫‪ .9‬ישועות מלכו יו"ד ס' סו‬

 ‫‪ .10‬פסקי תשובה א‪:‬רמח‬

‫‪ .15‬כיבוש עולי בבל ומלחמת השחרור‬

‫‪ .11‬דברים ז‪:‬ב‬

‫‪ .12‬עבודה זרה כ‪.‬‬

‫‪ .16‬מנחת חינוך ס' צד‬

‫‪ .13‬רמב"ם הל' עבודה זרה י‪:‬ד‬

‫‪ .14‬מאמר הרב זולטי תורה שבעל פה חוברת יא‬

‫‪ .21‬חוות בנימין חלק א' ב‪:‬יג‬ ‫‪ .17‬חזון איש הל' שביעית ס' כד‬

‫‪ .18‬מנחת חינוך ס' תכה‬

‫‪ .22‬העמק דבר בראשית ט‪:‬ה‬

‫‪ .19‬שו"ת דבר יהושע ב‪:‬מח )הוספות(‬

‫‪ .23‬ערובין מה‪.‬‬

‫‪ .20‬רמב"ם הל' מלכים ה‪:‬א‬

‫‪ .28‬מאמר הרב פנחס הירשפרונג הפרדס שבט‪-‬אדר‬ ‫‪ .24‬רש"י שם‬
‫תשל"ט‬

‫‪ .25‬רמב"ם הל' שבת ב‪:‬כג‬

‫‪ .26‬מאמר הרב יוסף תורה שבעל פה חוברת לא‬

‫‪ .29‬ספר החיים ס' שכט פרק ט‬

‫‪ .27‬חוות בנימין חלק א' ב‪:‬יג‬
‫‪ .30‬מאמר הרב הירשפרונג שם‬

‫‪ .31‬בעקבי הצאן לב‪:‬ח‬