In this post I'd like to deal with another response to the milchemet mitzvah argument. My thesis is based on Rabbi Bleich's position and is not entirely my own, but some is, to my knowledge, original. Any flaws in those arguments should not be attributed to Rabbi Bleich.
It is well known that the plain reading of the Ramban affirms that the mitzvah of settling Israel is required even today. Rabbi Bleich however argues that the Three Oaths negate the other half of the obligation, which is to capture the land. As he puts it, if the Oaths mean anything they must mean at the very least that Israel cannot capture land by force. A similar argument is made by the Megillat Esther, that the requirement to capture the land is only in force when we are not subjugated by the nations.
I spoke to Rabbi Bleich about this argument and mentioned that if the Oaths have the force to prevent Israel from having to embark on a milchemet mitzvah, why wouldn't they prohibit the original capture of land in 1948 (or even earlier)? Taken to their logical conclusion, the Oaths should prohibit the State of Israel completely. His answer, from what I could ascertain, is that the consent of the world mitigated the force of the Oaths and allowed the Jews to settle there. He noted that the Ohr Sameiach made the consent argument. (Others also proffered this argument). While the consent allowed the Jews to create a state in 1948, it did not require them to fight to defend any land captured subsequently. In other words, the Oaths did not apply then, but they apply today, and therefore the obligation to capture the land is suspended.
Thinking about it later I realized that the argument seems flawed. If consent allowed Israel to capture land in 1948, why shouldn't that same consent mitigate the Oaths today, therefore reinstating the obligation to wage war to capture Eretz Yisroel? What was so unique about that consent that it could suffice before the State was created but is nonapplicable today?
To summarize, the argument seems to go like this: The Oaths are binding as a halachic matter (I realize this argument is controversial and for some responses see Gil's translation of Rabbi Aviner's Shelo Yaalu Choma). They negate the communal requirement to capture the land according to the Ramban. Therefore as long as the Oaths are in effect, there is no obligation to retain land if transferring it will save lives. The Oaths were not in effect from the initial settlement after the Balfour Declaration (because of the sovereign's consent) but are in effect today. My question is: why?
I think the answer lies within a complex web of facts and law. First, it's important to understand what exactly has to occur for consent to negate the Oaths. According to the Maharsha, "building the wall" is allowed if done with the permission of the king. It's unlikely that the Maharsha truly meant to limit this concept to a king, and he probably meant the permission of the sovereign (The Ramban makes this point in regard to the obligation for a king to wage a milchemet mitzvah where he expands the concept to whomever is ruling the country at the time; see mitzvah 4 in the mitzvot our master forgot).
Who was the sovereign in 1919? The world as constituted in the League of Nations. It's important to remember that in San Remo in 1922, when the League of Nations created the Mandate for Palestine, sovereignty remained in the League and not in the British Crown. The British were merely administrators and did not have full sovereign rights over the territory (although they of course had some of the powers usually associated with the sovereign). At that conference, in a document that became public international law, the Mandate was designed to facilitate
the establishment in Palestine of a national home for the Jewish people, it being clearly understood that nothing should be done which might prejudice the civil and religious rights of existing non-Jewish communities in Palestine....
Contrary to the assertions of Frumteens a National Home is a State. But one thing Frumteens is right about: the Mandate did not support a Jewish State in all of Palestine, but only in part of it. It did not deny the possibility, but did not agree to help establish a sovereign state for the Jews throughout the entire Mandate. In other words, the consent of the sovereign in this case allowed the Jews to settle all of Palestine, and in theory to make it a Jewish State in its entirety. But if the Arabs decided to establish sovereignty in parts of the Palestine, the Mandate would have no objection.
The Jews settled the land and obtained sovereignty on May 14, 1948. Prior to then the British returned the Mandate to the League's successor, the United Nations. The UN, as we all know,
voted to partition the Mandate into two separate states. Although 181 is nonbinding, it could be viewed as consent for the Jews to be sovereign over the parts laid out in the Partition Plan. The next year, on May 11, Israel was admitted to the UN. While it's is unclear if the UN recognized Israel's right to the land is captured outside of the partition plan's boundaries, it certainly consented to Israel's right to some of the land. At the very least there was implicit consent over Israel's right to control a part of the land.
Ah, but Frumteens argues, who cares about consent? The whole issue is that the Jews cannot "ascend like a wall", meaning they can only become sovereign if they take Palestine peacefully and unopposed. Since that clearly did not happen (witness all the riots, intifadas, and of course wars), the Jews still violated the Oaths. Consent of the world means nothing because
[t]here was a war - the war of '48, where 6,0000 Jews were killed. The Arabs, who were living in and around the land, did not give the Jews any permission to take it. Other countries did, and there is no such halachic status that the UN is like some kind of Sanhedrin Hagadol that can bind other nations to its decisions (any Zionist can tell you that). In any case, there is no comparison to a Coresh or any other "peaceful ascent", since - hello!! - in order to create the State of Israel they had to fight a bloody war with the Arabs!!!. So why in the world is that called a "peaceful ascent"?Frumteens' argument has no basis in Halacha, law, or politics. Put simply (and correct me if I'm wrong) Halacha considers the sovereign the person in charge, not the people who lived in the area. For the most part international law in 1922 (and probably in 1947) did not recognize it either. The concept of self-determination was nascent and not a norm of international law.
It seems unlikely that the Oaths denied the Jews the right to defend territory already granted to them by the sovereign. If one wanted to take over Israel when the Romans controlled it, he'd have to face the Roman army, not the people. The people simply had no legal existence as sovereigns and are not relevant to the discussion.
As a matter of law and Halacha, the sovereign was the League or the UN until 1948. Those bodies consented to Jewish sovereignty. The response by the inhabitants is conceptually no different than if 50 years later Brazilian citizens came to Israel and attacked. Once consent was granted, Israel could be created. The response of the natives was aggression and Halacha and international law recognizes the Jews right to respond in self-defense. In other words, we are dealing with two distinct time frames: 1) the sovereign (king in the parlance of the Maharsha) grants the Jews the right to build the state and 2) the inhabitants attack. The Oath was already suspended by the time the Arabs attacked and that attack is halachically irrelevant to mitigate the suspension.
Getting back to my earlier point, consent sufficed to allow Israel to capture a degree of land (up to the 1949 borders). Did that consent extend to the West Bank and Gaza? I doubt it. Although one can argue that the Mandate still applies today because no country has been (legally) sovereign in those areas since 1949, that argument ignores the ascent of the norm of self-determination as a bedrock principle in international law. The people who live there are relevant and certainly have NOT consented to Israel taking over the West Bank and Gaza.
It would seem therefore that the Oaths currently do apply in those areas since Israel lacks the consent of the sovereign (who are the people), and concurrently the obligation to conquer the land is suspended. However at the very least some of the land they controlled in 1949 was captured in accordance with the Ramban's position and Israel would be obligated to fight to retain it. How much of that land depends on what type of consent was obtained and over how much territory. The rest of the land Israel controls it can retain because the land is necessary to defend the country from its enemies even if an active fight for the land is prohibited. Israel can keep the land for instrumentalist reasons: as a corollary of the requirement to defend Jews from their enemies, which the Rambam brings down as a basis for a milchemet mitzvah.
I'd appreciate comments from both a halachic and legal perspective.
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