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According to Halacha, is it a sin for a Jew to take control over some land in Eretz Yisrael when this land was taken against the will of its previous controller (regardless of whether it was occupied or empty, and whether there was violence involved in the transition)? Does this depend on whether the agent responsible for the removal of the previous controller was the State of Israel?

Regarding to the type of sin involved, I am thinking of the act of stealing but it could be another. Here are some commandments regarding stealing that might be relevant for the question (apart from the 8th commandment):

  • Not to steal personal property (Lev. 19:11).
  • To restore that which one took by robbery (Lev. 5:23).
  • Not to covet what belongs to another (Ex. 20:14).
  • Not to crave something that belongs to another (Deut. 5:18).
  • Not to steal personal property (Lev. 19:11).
  • To restore that which one took by robbery (Lev. 5:23).

Source here

My aim is to better understand the consequences for a Jew settler of moving into land taken over from Palestinian settlers by the state of Israel or private individuals.

Disclaimer:

1) Notice that use the concept of control instead of ownership since, apparently, Jews never own the land, which belong to G-d. Please correct if wrong.

2) There is no mischief or anti-semitism behind my enquiry. I just want to understand better the ongoing Israel-palestine conflict.

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    The commentators discuss what is the halachic proprietary status of Jewish land seized by the Romans during their conquest of Israel (see Gittin 55b and Bava Batra 48b). – Loewian Jul 30 '15 at 17:17
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    (1/2) It seems that there are objectively-provable statements of fact that this question could be narrowed down to. For example, "Does statement [X](link) by group Y (e.g. ICJ) to the effect that 'Z by Israel is illegal under international law L.' mean that Z is also forbidden by the Jewish Laws against stealing?" For specific X, Y, Z, and L. – Isaac Moses Jul 30 '15 at 17:28
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    (2/2) Alternatively, along @MonicaCellio's lines, a general question could be constructed non-controversially, e.g. "If someone lived in a house prior to a war and, as a result of the war, no longer lives there, is it stealing to move in? Do the affiliations of the two parties with sides of the war or the circumstances of the war matter for this?" – Isaac Moses Jul 30 '15 at 17:28
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    In general, if the question is about evaluating aspects of reality, especially if those aspects are related to controversy, it helps the question a great deal to make it specifically about aspects that can be either a) demonstrated objectively by citation, or b) stated precisely hypothetically, and then stipulated to (but that makes the question not precisely about the situation in reality). – Isaac Moses Jul 30 '15 at 17:31
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    @Danno The fact that there are tensions at play is exactly why this is a good question, not why it is an 'oversimplification' which can't be handled on our site. Don't forget that the OP is asking not telling or answering. He's allowed to not know everything on the subject. That's exactly why he's asking. – Double AA Jul 31 '15 at 19:26
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I will start by addressing the specific question that you have asked here: "According to Halacha, is it a sin for a Jew to take control over some land in Eretz Yisrael when this land was taken against the will of its previous controller (regardless of whether it was occupied or empty, and whether there was violence involved in the transition)?"

The answer to your basic question is, "no, there is no general prohibition against taking Eretz Yisrael by force (i.e. with violence)." War is not something that Judaism views as universally forbidden. Indeed, the conquering of the Land from the Canaanites by force was itself a commandment (Deut. 20:16). Your comparisons to theft are not really analogous: stealing is forbidden; conquering land is not forbidden. Therefore, there is at least one case where it is not a sin to take control of some land in Israel by force.

Of course, the conquering of the Land of Israel from the Seven Nations who were living there was a special case and not necessarily directly relevant to today. You mention that the motivation for your question is understanding the halachic issues regarding Jews nowadays moving into land previously controlled by non-Jews in Israel.

Your suggestion in the question was that perhaps this is a violation of the prohibition against stealing. It turns out that this actually cannot be the case because of a halachic technicality called קרקע אינה נגזלת ("land is not stolen"). This should not be understood as a permission to steal land; rather, it should be understood as a technical description of a scenario. In short, land that is taken from someone against his will is not considered to be "stolen" but rather still in the domain of the original owner. It is not necessary to completely understand this distinction for our discussion here; what is important is that the technical halachic prohibition against stealing cannot apply to land. (If you are interested in learning more about this halachic concept, see the Gemara at Sukkah 30a-b and Bava Kama 117b).

All this tells us, though, is that taking someone's land against his will is not called stealing. That doesn't mean that it is permitted. In fact, Shulchan Arukh 376:1 rules that trespassing is forbidden and compares it to stealing. So the question here is, are Jews living in Judea and Samaria trespassing on the land of non-Jews?

Unfortunately, this is the point in our discussion where the answer depends on whose version of the facts you accept as true. The State of Israel claims that its wars have always been wars of self-defense and any land captured has always been taken for strategic reasons related to national security. Wars of self-defense are permitted according to halacha. If you accept this version of reality, all of the land controlled by the State of Israel was legally captured in a legitimate war and the Arabs who had been living there abandoned their land anyway!

On the other hand, someone who rejects this version of the facts could possibly come to a completely different halachic conclusion. That is part of the reason why there was so much resistance to your question in its original formulation. The original question was a question about the facts on the ground in Israel. We do not answer that kind of question on Mi Yodeya. Here, we can only answer questions where the scenario is well-defined and the question is about Judaism.

  • +1 i heard their is a source that it is not forbidden (but you have) to steal something back that was stolen from you – hazoriz Aug 5 '15 at 0:48
  • @Daniel Your answer seems to imply that conquering the land is above any other commandment. If it overrules stealing, does it overrule killing too, or not respecting the Sabbath? (If by "conquering" a piece of land you kill someone, or do an action forbidden that day) I would understand this in a context of War, a kind of "state of emergency", for example when the conquest is lead by the Messiah, as the other answer suggest, or in self-defence, but to make conquest above all the law seems to me an extreme position. Under your interpretation conquering the land is like an imperative above all – luchonacho Aug 6 '15 at 7:54
  • @Daniel Actually, I see that Deut. 20:16 is in fact a commandment among the 613. Yet, it seems there is a distinction between wartime and peacetime. Even more important, it seems that commandment was very context-oriented and does not applies to non-canaanites like Arabs (as I understand from here). Thus, the conquest of the land might be a commandment overruling other commandments (like killing, if they are Canaanites) but it might not be as absolute as you are suggesting to be (to kill Arabs). – luchonacho Aug 6 '15 at 8:26
  • @luchonacho I have added to my answer. – Daniel Aug 6 '15 at 13:11
  • According to Sheva Mitzvot Hashem Vol. 3, you are not allowed to conquer land from a ger toshav by force (unless in a defensive war or other cases of milchemet mitzva). If you consider Muslims a ger toshav, which Rambam probably does and others do as well (see Sheva Mitzvot Hashem in various places), it would be forbidden to wage war against Muslims or Christians who respect the Torah and believe they are following its ways. I understand that Eretz Yisrael is different though because it is a milchemet mitzvah (when done at the right time). – Emet v'Shalom Aug 6 '15 at 15:39
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Of course it is a sin to steal land in Israel for many reasons and there is no denying that! Anyone who does it is doing the wrong thing and it is not what God wants Jews to do now, as almost all Rabbis teach.

Even though it may not technically be stealing (because it is God-given Jewish land, and we never gave up hope to return to it after being driven out by the Romans [losing hope to reclaim your land doesn't make a difference in Jewish law anyway for the true owner always retains the rights to the land--see Shulchan Aruch CM 373]), being that the Messiah has not come yet, we can not conquer our land by force (through a war lead by the Jewish King [some hold he can be a different form of leader/government], unless it is a war in self-defense) if it is understood by the world as "stealing," because if the world honestly treats something as stealing then Jewish law treats it as stealing; we reflect the world's moral view (if it is actually moral) measure for measure (See R Reuven Margaliyot's Mishpitei Ger Toshav starting from this page where he discusses Jewish law ruling like Gentile law. This can flow from the concept of dina demalchusa dina, or the general Noahide dinim. I view it as a logical midda kenneged midda type of rule as that is how Hashem rules the world, meaning, since it can't be that international laws are more moral than Hashem's Torah will, He wants Jews to follow the derech haaretz under the umbrella of the Torah instruction to "do what is straight and good," which includes doing what is truly ethical in the eyes of both God and man (see Tosefta Shkalim 3:2 quoting Rabbi Akiva and Rabbi Yishmael) even if not explicitly commanded to do so, and to avoid the chillul Hashem when people judge Jews as being immoral and dishonest for taking land from innocent Palestinians).

Further, although the government may have the halachik power to take land in their jurisdiction and it is not technically stealing (called hefker beth din, dina dimalchuta, or other concepts; yet a government which follows the Torah may be necessary to have these halachik rights, as opposed to a secular government), an individual does not have the right to take the law into his own hands and 'conquer' the land from the inhabitants because that is actually stealing from people who have ownership the land, nor can individuals build in ways that have a detrimental effect on the previous right of passage that the peaceful inhabitants had established before this person moved in.

Anyway, taking of land can put Jews in great danger, so we are forbidden to do it even if you disagree with this understanding of how Jewish law works.

Aside, I don't know where people are getting this idea that you are allowed steal land when it is clearly forbidden as stealing to even trespass on someone's land, let alone take it from them by force, as is written in the Shulchan Aruch CM 376 (i.e. Code of Jewish Law). You can make all the hair-splitting distinctions you want, but that doesn't change the halacha nor the fact that it is forbidden according to all opinions (for one reason or the other).

When the Messiah comes, we hope that the entire world will recognize his stature (or at least those living in Palestine), so that we will not have to wage war to retake our land. Until then, many Rabbis support 'land for peace' initiatives, because we will get all of Israel back in the future anyway. At that time, Palestinians will live in a moral, just, holy, peaceful, and blessed Jewish society (it is assumed we will have a king too as Rambam says throughout that chapter), and they will be honored to be part of the glorious Jewish state.

As far as I know, the peaceful Palestinians at that time will be allowed to live in Israel. It is just that the government of Israel will maintain control of the land. I do not know the details as to who exactly owns that land and what will happen at Jubilee when land returns to its proper owner. It may be that when the lands will be divided by lot, as spelled out in the last chapters of Ezekiel, the moral non-Jews who live in the land will be able to stay in their towns (although the government will have power over the land as it has power over all land according to the halachik details) and therefore they will not ever have to leave at Jubilee because they own it (or because the state owns it, so the state will symbolically return it to the owners every 50 years). It is possible that even Jews will have to be transferred throughout the land to live within their own tribe's borders. I have to do more research on these matters.

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    A lot of the statements here are severely problematic, and it is difficult to get into that without a political discussion. This has nothing to do with 'owning thora'; you have no source for your claim of palestinian ownership, which makes your hard claim about stealing and chillul hashem very problematic. I also disagree that this site is to 'represent judaism to the world', but if it is as such, your answer would need more nuance and sourcing, because how your proofs are related to the actual question is currently not clear, and therefore not convincing. – RonP Aug 5 '15 at 18:39
  • @RonP: Yes, breakthrough and politically incorrect statements can be problematic. It doesn't mean they are wrong. Also, what do you mean by Palestinian ownership? – Emet v'Shalom Aug 5 '15 at 18:45
  • Just to clarify, your answer is basically: "only the Messiah can lead a holy conquest of the land". "Any other such actions that trespasses the Halacha is sinful when not lead by the Messiah". This is very interesting and it means the law is not absolute. The second part of your answer is that Land in Israel cannot be stolen but, according to an interpretation of the "spirit" of the Law, Jewish actions should also be in accordance to a certain "world moral view" (I wonder what that is), thus under this broader "commandments" it does become stealing. Is this Reform Judaism? – luchonacho Aug 6 '15 at 8:09
  • @luchonacho "the law is not absolute" That is virtually always the case with Halacha. You can always find some sort of exception to anything if you construct just the right case. – Double AA Aug 6 '15 at 16:15

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