During the 1980s a well-known rabbinic figure in the American Jewish community who later moved to Israel aggressively argued at many public venues that Halachah requires the State of Israel to expel the Arab residents of Israel.64While some may have regarded this rabbinic figure as an effective community organizer, all agree that he was not a posek of significant stature. For example, communities did not consult him to issue rulings regarding their mikva’ot or Sifrei Torah. He cited the following passage from the Rambam (Hilchot Avodat Kochavim 10:6) as support for his argument:
When the Jews are in control (Yad Yisrael Tekifah), it is forbidden for us to permit Nochrim to reside amongst us. Even if he is only a temporary resident or an iterant merchant, he cannot pass through our land unless he accepts the seven Noahide laws as the Torah (Shemot 23:33) states, “They shall not dwell in your land.” If he accepts the seven Noahide laws, he is classified as a Ger Toshav (a Nochri who is permitted to reside in our land). However, we do not accept a Ger Toshav at a time (such as nowadays) when the Yoveil (Jubilee) laws do not apply. When the laws of Yoveil do not apply, we accept only a Ger Tzedek (a full-fledged convert).
In this essay, we shall present the opinion of two halachic authorities, Rav Yitzchak Herzog and Rav Yehudah Amital, regarding this issue.
Needless to say, anti-Zionist Jews who argue that the Talmud’s call not to retake Eretz Yisrael by force (Ketubot 111a) applies in our times certainly would argue that Halachah does not obligate us to expel nochri residents of Eretz Yisrael. In fact, they would argue that it is forbidden to expel nochrim from Eretz Yisrael, as this would constitute taking the land by force. We shall show, however, that even poskim of the Religious Zionist community agree that under current circumstances, there is no such obligation and there may even be a prohibition to do so.
Rav Herzog and Rav Kook – Moslems as De Facto Gerei Toshav
Rav Herzog was passionately devoted to the goal of operating the modern State of Israel in accordance with Halachah. He even composed a manuscript (published many years later by Rav Itamar Warhaftig) entitled Techukah L’Yisrael Al Pi Hatorah (legislation for Israel based on the Torah), which grapples with many of the challenging issues involved in administering the state in harmony with Halachah in modern times.65This work was composed shortly before the United Nations voted to establish the State of Israel in 1947. Rav Herzog’s readers should marvel at the forethought Rav Herzog demonstrates in his writing, as many of the challenges we currently face were noted by Rav Herzog long before they arose.
One of the issues he grapples with (cited in Techumin 2:169-179) is the fact that the United Nations would vote to establish the State of Israel only if the new state would promise to grant equal rights to all its residents, including freedom of worship. This requirement appears to contradict the aforementioned Rambam. However, Rav Herzog notes that Ra’avad (ad. loc.) disagrees with the Rambam and argues that the Torah’s prohibition for nochrim to reside in our land applies only to the seven nations of Canaan whom we were obligated to conquer in the times of Yehoshua. Moreover, the Kesef Mishneh (ad. loc) adds that even according to the Rambam, if a nochri on his own accepts the seven Noahide laws, he is permitted to reside in Eretz Yisrael. The Rambam merely excludes a rabbinic court from accepting a ger toshav.
Rav Herzog approvingly cites Rav Avraham Yitzchak Kook (Teshuvot Mishpat Kohen 58, 60 and 63), who argues that in case of great need (sha’at hadechak) one may rely on the opinions of the Ra’avad and Kesef Mishneh. Rav Kook regards Moslems as essentially adhering to the seven Noahide laws, especially due to the fact that they are strict monotheists (see Rambam Hilchot Ma’achalot Asurot 11:17).66Rav Kook issued this ruling in regard to his permission to sell farmland in Eretz Yisrael temporarily to avoid the restrictions of shemittah (heteir mechirah). Rav Herzog applies this leniency in the context of Jews agreeing to establish an independent state that permits nochrim to reside in its midst.
Moreover, Rav Herzog endorses Rav Kook’s argument that if an entire nochri community adheres to the seven Noahide laws, a beit din is not required to confer upon that community the status of ger toshav. Rav Kook writes that the Ramban (Makkot 9a) explains that a beit din is necessary to insure that the candidate is sincerely committed to observing the seen Noahide laws. Such reassurance, Rav Kook believes, is not necessary when the entire community is committed to observing the Noahide code.
We should note that the Chazon Ish (24:3) vigorously opposed this ruling of Rav Kook. He notes that in order to be classified as a ger toshav and thereby eligible to reside in Eretz Yisrael, a nochri not only must practice the seven Noahide laws, but also must accept their authority as stemming from the Divine Authority obligating Am Yisrael with 613 mitzvot and nochrim with seven mitzvot as revealed by Hashem to Moshe Rabbeinu, a belief to which Moslems do not subscribe.
Rav Herzog – Christians and Polytheistic Religions
Having dealt with the issue of Moslems, Rav Herzog struggles with the fact that the nascent state certainly would have to tolerate Notzrim who are not strict monotheists from residing in its midst. While Moslems and Druze (who also are strict monotheists) constitute the overwhelming majority of nochrim who reside in Eretz Yisrael, other nochrim must be admitted as well. Moreover, the Jewish State would be expected to allow its residents to practice any religion, include polytheistic ones, despite the fact that the Torah repeatedly demands that we eliminate avodah zarah from our land.
At first, Rav Herzog presents the Meiri (Bava Kama 113a), who argues that Christianity is not defined as avodah zarah. While this opinion does not constitute normative Halachah, the Rama (O.C. 156) seems to rule that shittuf avodah zarah, “partnering” Hashem with other powers, is not prohibited for nochrim despite the fact that this constitutes avodah zarah for Jews. However, Rav Yechezkeil Landau (Teshuvot Noda Biy’hudah 2 Y.D. 148) argues that shittuf avodah zarah is forbidden even for nochrim and that the Rama agrees to this as well. Many other poskim agree with this assertion.67See Pri Megadim (Y.D. 65 Siftei Da’at 45), Teshuvot Me’il Tzedakah 22, Teshuvot Sha’ar Ephraim 24, and Teshuvot Shav Hakohen 38.
Moreover, Rav Herzog notes that the United Nations would expect the Jewish State to allow members of other religions which are undoubtedly polytheistic to reside in its midst.68Interestingly, although this was not a relevant concern to the impoverished State of Israel in its early years, in recent years this has become a major challenge, as workers from Eastern Europe and Asia have come to Israel in large numbers to support the burgeoning Israeli economy. He notes, though, that the Jewish State at least would be able to prohibit barbaric practices such as the rite of a wife killing herself by fire after the death of her husband, since the British government forbade such practices in the colonies it administered.
Rav Herzog’s Pragmatic Considerations
Rav Herzog proceeds to note that the application of this Halachah must carefully consider the current state of the Jewish people in general and specifically in Eretz Yisrael. He writes, “We will receive the Jewish State through the consent of the United Nations, and there is no doubt that until the arrival of Mashiach, we shall be dependent on them for protection against a sea of surrounding enemies.”
Rav Herzog continues:
What can we do? Tell the nations of the world we cannot accept this condition [that all Nochrim will be permitted to reside in Eretz Yisrael and enjoy the freedom to practice their polytheistic or semi-polytheistic religions] because our Holy Torah forbids this?... I believe that there is not one Rav in Israel who is intelligent and has common sense who believes that we should respond accordingly…Even if one assumes that by accepting the State with this condition the Jewish State will transgress, I would even say that this sin is condoned due to Pikuach Nefesh (danger to life)…It is easy to imagine the reaction of the [United] Nations to such an approach from us (forbidding polytheists from residing in Eretz Yisrael). It is very possible to say that this will create danger for the entire Jewish people.
Rav Herzog notes that the obligation to eliminate idolatry from our midst was issued at a time when the Jewish people were conquering Eretz Yisrael in the time of Yehoshua and were not dependent on the approval of the nations of the world. Rav Herzog believes that in the current circumstance, this mitzvah does not apply, just as it does not apply when Jews live outside of Eretz Yisrael or when there is no Jewish sovereignty. After all, the aforementioned Rambam conditions this mitzvah on the fact that “yad Yisrael tekifah.”
Rav Herzog concludes that the Jewish State in 1947, created as a partnership between the Jewish people and the United Nations, hardly could be compared to the kingdom of David and Solomon in which we were complete masters of our fate and were empowered to fulfill the commands regarding the elimination of avodah zarah. Rav Herzog argues that it is permissible to enter into such a partnership for the benefit of our nation, especially since we just had experienced the terrible tragedy of the Holocaust. Rav Herzog compares such an enterprise to the partnership made by the Jews of the Second Temple period with the polytheistic Persian Empire that helped us achieve a foothold in the land of our forefathers.
Rav Amital – Israel’s Declaration of Independence
Rav Herzog’s approach clearly was accepted by the overwhelming majority of observant Jews, as the leaders of both the Religious Zionists (such as Rav Zerach Warhaftig) and members of Agudath Israel69The Agudath Israel issued a statement applauding the establishment of the State of Israel without condemning the freedom of religion that was granted. (such as Rav Kalman Kahane) signed Israel’s Declaration of Independence despite the fact that it grants both full rights to the nochri citizens of the State as well as full religious freedom to all nochrim.
Moreover, Rav Yehuda Amital (Daf Kesher 2:340) adds that once this agreement was made, we cannot annul it even if it was made under duress. Rav Amital points to the Rambam (Hilchot Melachim 6:3), who states, “We cannot act deceptively in regards to the agreements we have made.” The Radbaz (ad. loc.) explains that “This is based on Yehoshua’s interactions with the Givonim, due to concern for Chillul Hashem.”70See Yehoshua 9:4-27. According to this approach, even if expelling nochrim would not constitute a danger to the existence of the State of Israel, the State would not be obligated to destroy places that are designated for avodah zarah, as the Declaration of Independence promises freedom of religion. Avi Levinson argues that this is not a simple matter, as perhaps this consideration does not stand in the face of such severe matters.
The Rambam’s requirement that those with whom we have made a treaty accept the seven Noahide laws seems to hold true regarding most nochrim who are citizens of the State of Israel today.71We should note that this ruling of the Rambam also serves to justify nochrim serving as commanding officers over Jews in the Israel Defense Forces. For additional discussion of this issue, see Rav Yaron Zilberstein’s essay in Techumin (29:471-475).
Thus, even if one argues that the situation has changed and now “yad Yisrael tekifah,” we cannot change our policy due to considerations of chillul Hashem. Furthermore, paraphrasing Rav Herzog, I believe that there is not one Rav in Israel who is intelligent and has common sense who thinks that Israel is not dependent on the good will of its partners (such as the United States, India and China) for its survival and that this good would be severely diminished by expelling some or all of its nochri residents. Any rational individual who has assessed the situation appropriately understands that we have not reached the state of yad Yisrael tekifah, and even with what some consider the fourth strongest armed forces in the world, we cannot compare the current State of Israel to the times of Yehoshua, David, or Solomon. Indeed, Rav Ovadia Yosef writes (Techumin 10:44, published in 1989) that we currently are unable to remove Avodah Zarah and its worshippers from our midst.
Similarly, Rav Yaron Zilberstein (Techumin 29:471-475) writes regarding those nochrim who serve as loyal soldiers in the IDF, “Rejecting them either socially or economically will push them into the open arms of our enemies and will impinge on the military viability of the State of Israel.”
Moreover, Rav Hershel Schachter (B’ikvei Hatzon p. 216) notes that mainstream halachic thought regards the prohibition to take Israel by force as inapplicable once we have permission of the nations of the world, as Rav Meir Simchah of Dvinsk commented when the Balfour Declaration was issued. Accordingly, one could argue that the State of Israel is forbidden by Halachah take actions that would reasonably enrage the nations of the world, as this would throw into question our halachic right to maintain the State of Israel.72Rav Ovadia Yosef (Techumin 10:43-45) makes a similar argument in a related context. This, of course, does not preclude the State of Israel defending itself, which any fair-minded individual recognizes as entirely reasonable and unobjectionable.
Conclusion
The claim of the aforementioned rabinnic figure that Halachah demands that Israel expel all of its nochri residents is both unreasonable and unfounded. However, the prohibition of allowing nochrim to reside in our midst still has some application, as Rav Eliyahu Bakshi-Doron (Techumin 14:11-19) forbids encouraging nochri (even Moslem) tourism to Israel if it emphasizes visits to holy spots. In addition, as Rav Herzog notes the State of Israel is fully entitled to expel nochrim who assist those who participate in suicide bombings or launch missiles at innocent civilians.