#3 Two State Solution? Land for peace in Jewish Law

Provide three reasons why Israel should allow for the creation of a Palestinian State

A.
B.
C.

Provide three reasons why Israel should NOT allow for the creation of a Palestinian State

A.
B.
C.

How strong are each of these arguments for these different areas?

Settling the land of Israel, conquering the land, retaining the land; are these Mitzvot today?

Rabbi Moshe ben Nachman 1194–1270), commonly known as Ramban/Nachmanides

The Rambam, as is well known, did not include the mitzva of settling the Land of Israel in his count of the 613 biblical mitzvot. The Ramban, in his criticisms of the Rambam's Sefer ha-Mitzvot, adds the mitzva of settling the Land of Israel as one of the commandments unjustly omitted by the Rambam

We were commanded to take possession of the land that God, blessed and exalted be He, gave our forefathers, Avraham, Yitzchak, and Ya'akov, and not 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)… 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 from what they said "Yehoshua's war of conquest," you understand that this mitzva is fulfilled through conquest… And I say that the mitzva about which the Sages expanded greatly, namely, living in the Land of Israel, to the point that they said that anyone who leaves it and lives outside the Land [of Israel] should be regarded in your eyes as an idolator… This is all part of this positive precept, for we have been commanded to take possession of the land and dwell in it. If so, it is a positive precept for [all] generations, binding upon every individual, even during the period of the exile, as is clear from many places in the Talmud. (Ramban, Commandments Omitted by the Rambam, positive precept no. 4)

In a different vein, the responsa of R. Shlomo ben Shimon Duran (Rashbash, son of the Tashbetz and a descendant of the Ramban) open with three letters about the limits of the Ramban’s mitzva of living in the Land of Israel.

Responsum #1 embraces the Ramban’s fundamental position but explains that one does not have to travel to the Land of Israel if the journey is too dangerous.

The Sages never address this exemption, the Rashbash writes, because “it doesn’t need to be said,” for “anyone with common sense recognizes that in a high-risk situation, it is forbidden to endanger oneself.”

Responsum #2 adds the additional exemptions of marriage, earning a living and learning Torah, for which one may even leave the Land of Israel, but its conclusion is less strident:

In truth, this commandment is not a commandment which includes the entirety of Israel in the Exile which now exists, but it is a general principle as our Sages stated in the Talmud in Ketubot, that it stems from the Oaths which The Holy One, Blessed be He, made Israel swear not to rush the End, and not to ascend like a wall...

“All of these factors, or some of them, kept many great individuals from making aliya; and even though some do not heed this, the court does not need to stop them.

Responsum #3, however, strikes a wholly different note:

It is fitting for both the layperson and the scholar to try to make aliya…. However, since the roads are presumed to be dangerous, I have written that a man or woman should not be compelled to make aliya, for the Sages, of blessed memory, did not address situations of danger, and each individual should decide for himself: If he is willing to endanger himself, he should make aliya; and if not, he should refrain.

Biblical prohibition to sell or give land away

Gratitude to G-d Vs. Peace with others

Melachim uMilchamot - Chapter 10:12
However, our Sages commanded us to visit the gentiles when ill, to bury their dead in addition to the Jewish dead, and support their poor in addition to the Jewish poor for the sake of peace. Behold, Psalms 145:9 states: "God is good to all and His mercies extend over all His works' and Proverbs 3:17 states: "The Torah's ways are pleasant ways and all its paths are peace."

Shabbat - Chapter Two: By Rabbi Moshe ben Maimon ("Maimonides")

1. The [laws of] the Sabbath are suspended in the face of a danger to life, as are [the obligations of] the other mitzvot. Therefore, we may perform - according to the directives of a professional physician of that local - everything that is necessary for the benefit of a sick person whose life is in danger...

3. It is forbidden to hesitate before transgressing the Sabbath [laws] on behalf of a person who is dangerously ill, as [reflected in the interpretation in the phrase of [Leviticus 18:5,] "which a person shall perform to live through them," as "['to live through them'] and not to die through them."

This teaches that the judgments of the Torah do not [bring] vengeance to the world, but rather bring mercy, kindness, and peace to the world. Concerning those non-believers who say that [administering such treatment] constitutes a violation of the Sabbath and is forbidden, one may apply the verse [Ezekiel 20:25]: "[As punishment,] I gave them harmful laws and judgments through which they cannot live."

Rabbi Ovadia Yosef former chief Rabbi of Israel before the Oslo accords Techumin vol 10
If the heads and commanders of the army, together with the government, state that saving of life is involved; that if areas of Israel are not given back, the danger exists of immediate war on the part of our Arab neighbors; And if the areas are returned to them, the danger of war will be averted; and that there is a chance of permanent peace; then it seems that according to all opinions it is permitted to return areas of Israel in order to achieve this aim, since nothing is more important than the saving of life.”

Video

Rules:

#1 All non Pikuach Nefesh considerations must be excluded from the deliberations
#2 Stay in the present. Future variables don’t have a bearing when it comes to these laws of saving lives now

Shulchan Aruch Harav 618:2 Laws of Yom Kippur
Even though the patient himself says that [he] does not have to eat, but there is a doctor — even a non-Jew — who says that he must eat, the patient should be given food as directed by the doctor, provided he is an expert.

Who are the decision makers if it is a danger or not? We hear different opinions as to the greater danger to holding on land or giving up land. Who are "the Doctors" the experts on the immediate dangers to life in the security realm?

Code of Jewish Law 329:6

Regarding non-Jews who besiege Jewish cities: if they come for money, we do not desecrate the Shabbat [to protect ourselves], but if they came to kill or come with no presented reason, we go out with weapons and desecrate the Shabbat. In a city that is near the border, even if they just come for straw or hay, we desecrate the Shabbat. Rem"a: Even if they haven't come but they want to come (Or Zarua).

Letters by the Lubavitcher Rebbe to U.K. Chief Rabbi, Lord Immanuel Jakobovits

I am completely and unequivocally opposed to the surrender of any of the liberated areas currently under negotiation, such as Yehudah and Shomron, the Golan, etc., for the simple reason, and only reason, that surrendering any part of them would contravene a clear Psak-Din in Shulchan Aruch (Orach Chayim, sec. 329, par. 6, 7). I have repeatedly emphasized that this Psak-Din has nothing to do with the sanctity of Eretz Yisroel, or with “days of Moshiach,” the Geula, and similar considerations, but solely with the rule of Pikuach-Nefesh. This is further emphasized by the fact that this Psak-Din has its source in the Talmud (Eiruvin 45a), where the Gemora cites as an illustration of a “border-town” under the terms of this Psak-Din—the city of Neharde’a in Babylon (present-day Iraq)—clearly not in Eretz Yisroel. I have emphasized time and time again that it is a question of, and should be judged purely on the basis of, Pikuach-Nefesh, not geography.

The said Psak-Din deals with a situation where gentiles (the term is goyim [nations], not enemies) besiege a Jewish border-town, ostensibly to obtain “straw and hay,” and then leave. But because of the possible danger, not only to the Jews of the town, but also to other cities, the Shulchan Aruch rules that upon receiving news of the gentiles (even only preparations), the Jews must mobilize immediately and take up arms even on Shabbos—in accordance with the rule that “Pikuach-Nefesh supersedes Shabbos.”

Should there be a question whether the risk does in fact create a situation of Pikuach-Nefesh, then—as in the case of illness, where a medical authority is consulted—the authority to make a judgment is vested in the military experts. If military experts decide that there is a danger of Pikuach-Nefesh, there could be no other overriding considerations, since Pikuach-Nefesh overrides everything else. Should the military experts declare that while there is such a risk, yet it should be taken for some other reason, such as political considerations (good will of the gentiles)—this would clearly be contrary to the Psak-Din, for the Psak-Din requires that Pikuach-Nefesh, not political expediency, should be the decisive factor.

Now in regard to the liberated areas, all military experts, Jewish and non-Jewish, agree that in the present situation giving up any part of them would create serious security dangers. No-one says that giving up any part of them would enhance the defensibility of the borders. But some military experts are prepared to take a chance in order not to antagonize Washington and/or to improve the “International image,” etc. To follow this line would not only go against the clear Psak-Din, but would also ignore costly lessons of the past.

One glaring case in point is “the Yom Kippur War.” Days and hours before the attack, there were urgent sessions of the government discussing the situation with the military. Military intelligence pointed to unmistakable evidence that an Egyptian attack was imminent, and the military experts advised a preemptive strike that would save many lives and prevent an invasion.

However, the politicians, with the acquiescence of some military experts, rejected this action on the ground that such a step, or even a general mobilization, before the Egyptians actually crossed the border, would mean being branded as the aggressor, and would jeopardize relations with the USA. This decision was contrary to the said Psak-Din of the Shulchan Aruch, as pointed out above. The tragic results of that decision bore out the validity of the Shulchan Aruch’s position (as if it were necessary), for many lives were needlessly sacrificed, and the situation came close to total disaster, but for G‑d’s mercies. Suffice it to mention that the then Prime Minister later admitted that all her life she would be haunted by that tragic decision.

I know, of course, that there are Rabbis who are of the opinion that in the present situation, as they see it, it would be permissible from the viewpoint of the Shulchan Aruch to return areas from Eretz Yisroel. But it is also known on what information they based this view. One argument is that the present situation is not identical with the hypothetical case of a state of “being besieged by gentiles.” A second argument is that the present surrendering of some areas would not endanger lives.

That these arguments are based on misinformation is patently clear. The Arab neighbors are prepared militarily; what is more, they do demand these areas as theirs to keep, and openly declare that if not surrendered voluntarily, they will take them by force, and eventually everything else. A Rabbi who says that the said Psak-Din of the Shulchan Aruch does not apply in the present situation is completely misinformed on what the situation actually is.

A further example of how facts can be publicly distorted is in connection with the surrender of the oil wells in Sinai. Some warned at that time that it would be a terrible mistake to give them up, since oil, in this day and age, is an indispensable vital weapon, for without it planes and tanks are put out of action as surely as if they had been knocked out. Nevertheless, there were Rabbis that defended the surrender of the oil wells—again having received and accepted the “information” that the country has ample oil reserves that would last for months. When it was suggested to them to verify this information with anyone who has some idea about the physical limitations of storing oil to build up reserves—especially in a small country with limited storage space—the suggestion was ignored. Sure enough, before long the Government found it necessary to demand from the USA urgent oil deliveries, because the reserves would last only a few days. Moreover, prominent members of the Government publicly admitted that it was a serious mistake to have surrendered the oil wells.

Be it also noted that since the surrender of the oil wells in Sinai—according to the Government’s figures—some 2.5 billion dollars was paid by it to Egypt for oil from the very same wells that had been surrendered. Not to mention the fact of having to buy oil also in the spot market, all at exorbitant prices.

I was taken to task for placing so much emphasis on the security of Eretz Yisroel, the argument being that what has protected the Jewish people during the long Golus has been the study of Torah and the practice of Mitzvos; hence Torah-observant Jews should not make the inviolability of Eretz Yisroel as the overriding cause. I countered that they missed the point, for my position has nothing to do with Eretz Yisroel as such, but with the Pikuach-Nefesh of the Jews living there—which would apply to any part of the world.

It is said that my pronouncements on the issues are more political than Rabbinic. Inasmuch as the matter has to do with Pikuach-Nefesh, it is surely the duty of every Jew, be he Rabbi or layman, to do all permitted by the Shulchan Aruch to help forestall—or, at any rate, minimize—the danger. In a case of Pikuach-Nefesh, every possible effort must be made, even if there is a safek (doubt) and many doubts whether the effort will succeed.

Chief Rabbi Jakobovits raised objections which are indicated with an * and were answered by the Rebbe as foll[ows].

The only subject matter under discussion—at any rate, from my treatment of it—is the purely Halachic subject of Pikuach-Nefesh as it affects the question of returning any part of the liberated areas. Be it also remembered that we are not dealing with an academic question, but one of actuality and urgency, since definite action has been taken in regard to some areas (in Sinai), and as regards others (Yehudah, Shomron, Golan, etc.) commitments have been made, and some of them would have probably been surrendered long ago, but for the fact that the other side refused to take them, demanding more.

Since the subject matter, as noted, is purely Halachic, namely the question of Pikuach-Nefesh, the sanctity of the territories is irrelevant; so is irrelevant one’s political affiliation or philosophy, or one’s personal attitude to the Government, and the like. A Rabbi has to rule on the matter purely from the objective viewpoint of the Halachah, without allowing any other considerations or opinions, however strongly he may feel about them, to change, G‑d forbid or to cloud his Halachic judgment.

Chief Rabbi Jakobovits:
*There are Rabbis who have reached the same conclusion regarding the Territories precisely because of the sanctity of Eretz Yisroel.

I have stated repeatedly that my unequivocal stand against returning any part of Yehudah and Shomron, etc. is the same as on returning the Sinai oil wells, and any part of Sinai. Even those Rabbis who “reached the same conclusion on the territories precisely because of the sanctity of Eretz Yisroel” will admit that there is no question of sanctity involved in regard to Sinai and Sinai oil, but it is only a question of Pikuach-Nefesh, plain and simple.

Chief Rabbi Jakobovits:

*Everyone agrees that “Pikuach-Nefesh supersedes Shabbos” as well as any other consideration. For this teaching we do not require the “Straw and Hay” rule. The argument among the Rabbis, as among others, is not about this teaching or this rule, but on what constitutes “Pikuach-Nefesh” in the present situation.

The contention that “the argument among Rabbis … is not about (the rule of Pikuach-Nefesh), but on what constitutes Pikuach-Nefesh in the present situation” is true, of course. I already addressed that point in my previous letter, though I did not wish to overemphasize it, for obvious reasons. I pointed out that the other Rabbis based their evaluation of the present situation on misinformation presented to them together with the Shailah. I cited one glaring example of misinformation in that the Rabbis were told that the Government had ample oil reserves to last for months. Another item of misinformation was that the situation in Eretz Yisroel was described to them as not being comparable with the situation that the Gemora in Eiruvin speaks of, where the enemy is actually besieging the Jews, and there is the danger of further penetration.

This is obviously a misrepresentation, for everybody knows that the Golan, Shomron and Yehudah are the very borders with Syria and Jordan, which are under strong influence of the PLO, etc. These avowed enemies are not only besieging Eretz Yisroel, but have actually carried out bloody attacks, and openly declared their determined intention to take everything back by force. A further “distinction” between the existing situation and that of the Gemora on which the opinion of those Rabbis was partially formulated was that in the case of the Gemora situation the enemy came to take “hay and straw” that belonged to Jews, whereas in the present situation, the enemy is demanding the return of territories that had been taken from them. This argument, too, has been published, and not anonymously.

Of course, I am not debating with those that believe that the Arabs have a legitimate Torah claim for the return of territories that “belong to them,” because there is no common ground on which to debate. But, they should surely keep in mind that if the Arabs have a legitimate claim to the pre-’67 territories, they have an equally legitimate claim to the Old City. To be sure, “a Dayan must rule on the basis of testimony before his eyes”; but the public is entitled to know precisely on what arguments and reasons he arrived at his decision, and this is something one is entitled to know even If the Psak-Din concerns one Pruta, not to mention the Pikuach-Nefesh of three million Jews, and if there has been an error of facts, a Dayan should readily retract.

The Rabbis who declared that territories may be surrendered “for peace” based their opinion, among other things, on the information supplied to them (not by military experts) that territorial concessions would advance the cause of peace with the Arabs. Hence, they argued that the principle of Pikuach-Nefesh that is at the root of the “Straw and Hay” rule is not relevant to the situation at hand, but to the contrary.

Actually, it is clear from the said Halachah that the deciding factor is not what the enemy demands or promises, but whether it is a case of —opening the land before the enemy; in other words, giving them an opportunity to breach the defenses. Whether or not the return of territories would indeed be such a case is, of course, for the military experts to decide, and not for politicians.

Chief Rabbi Jakobovits:

*The fate of Israel and the lives of its Jews depend just as much on factors beyond the competence of military experts. For instance, Jewish lives could be endangered by sanctions or economic collapse leading to starvation; or by Arabs becoming a majority, by retaining over a million Arabs within Israel multiplying at twice the Jewish rate; or by a dramatic decline in the Jewish population through mass-emigration, itself caused by political and economic factors as well as the despair on the prospect of peace. Hence the opinion of political and other experts can have no lesser bearing on defining “Pikuach-Nefesh” than purely military calculations.

To argue that the fate of the country and the lives of the people depend also on factors beyond the competence of military experts, and that if political and economic factors will be ignored, it would lead to Pikuach-Nefesh later on, does not affect the immediate decision in relation to the return of territories. All the more so since it is certain that returning further territories will immediately weaken security, and would be an irreversible act, whereas the political and economic climate is unpredictable. So are, by and large, the other arguments that “territorial concessions under certain conditions might reduce the threat of war, or enhance Israel’s ability to defend itself,” etc. These are highly speculative conjectures, and I am certain that no military commander would bet on such chances. I repeat, the Halachah is clear—and it is, after all, the viewpoint of Halachah that is at the heart of the debate.

Chief Rabbi Jakobovits:
*Surely, any G‑d fearing Jew, let alone Rabbi, must affirm that the ultimate security of Jews in the Land of Israel lies neither in armies nor in borders but in our spiritual worthiness through “the study of Torah and the practice of Mitzvos,” and that this must be our over-riding and most urgent aim as well as the principal teaching of all Rabbis, as confirmed by the whole of our sources and our history.

Of course, every G‑d fearing Jew must affirm that the security of Jews anywhere in the world, particularly in the Holy Land, lies with the study of the Torah and the practice of Mitzvos. But, when it comes to a question of Pikuach-Nefesh, as indeed in any situation, be it a matter of health or Parnossah, G‑d Himself ordained that in addition to the strict observance of Torah and Mitzvos and absolute Bitochon in Him, a Jew is required to do what is necessary in the natural order of things. This, too, is part of the teachings of Rabbis.

Summary

1. The subject matter of the controversy centers on a Shailoh in Halachah, namely Pikuach Nefesh. Therefore, the position of both the Rabbis whose opinion differs from mine, as well as my position, must rest exclusively on the Halachah and treated purely as a Halachah-Shailoh.
2. The Shailoh is not a theoretical one, but a practical one that is high on the actual agenda, namely, whether—from the Halachah view—it is permitted, mandatory, or forbidden to return liberated areas in the so-called West Bank and Gaza, as well as in Sinai, including oil wells, military installations, etc. The Psak-Din on this Shailoh must, of course, be based on the actual and factual circumstances of the situation as they affect the security of Eretz Yisroel and of our brethren living there.
3. Both sides in the controversy, namely the Rabbis who ruled that it is Halachically permissible to make territorial concessions and those (myself included) who oppose this view, based their decisions on the principle of Pikuach Nefesh; the difference being that the former concluded that territorial concessions would avert or minimize Pikuach Nefesh, while the latter hold that any territorial concessions would create or aggravate Pikuach Nefesh.
4. There can be no difference of opinion among Rabbis that in a case of Pikuach Nefesh it is the duty of a Rabbi not to remain silent and wait until approached to express his opinion. A Rabbi who waits to be approached in such a situation is termed meguneh (reproachable, blameworthy). Similarly there can be no difference of opinion about the duty of every Jew, without exception, to do everything possible (consistent with the Shulchan Aruch) to avert the danger of Pikuach Nefesh. The Rabbi himself may not consider his duty done simply by pronouncing his Psak-Din, but must take every possible action in this direction. Indeed, there are many precedents of Gedolei Yisroel actually doing things on Shabbos and Yom Kippur which but for the fact of Pikuach Nefesh would be most serious transgressions.
5. Since, as noted, the sole deciding factor is Pikuach Nefesh, it is quite irrelevant what political orientation or party the Rabbi issuing the Psak-Din subscribes to, for his Psak-Din must not be influenced in the slightest by anything except the Halachah alone.
6. The evidence on which a Rabbi or Beth Din bases the Psak-Din must strictly conform to the principle of דן דין אמת לאמתו [judging a case with ultimate truth]—that is to say, the judgment must be based on true facts and on objective truth. If there is any doubt about the veracity of the presented evidence, it is the duty of the Rabbi or Beth Din to investigate and verify the facts and ascertain the real and complete truth; and upon discovery that the Psak-Din was based on a misrepresentation of the Shailoh or of the facts submitted to them, they must, of course, promptly retract the erroneous Psak-Din and rectify it.

Rabbi Ovadia Yosef former chief Rabbi of Israel 2003

My dear brothers of Israel, residents of Judea and Samaria:

It is my intention to make clear my position concerning Judea and Samaria. I have explained more than once since my Halachic ruling, that giving up land for peace has no validity in light of the current situation.

I had intended only and purely [ceding territory if it leads to]authentic peace, one in which Jerusalem and its surroundings will be secure in peace and quiet. But now, our eyes see that surrendering our holy land causes a danger to life.

This is not the peace for which we prayed. Therefore, the Oslo Accords are null and void.

I speak peace and they come to wage war. (Psalms 120:7) We have no one on whom to rely other than our father in heaven.