Introduction
The Sheikh Jarrah property dispute raises various halachic, legal, moral and political questions. As usual, here I will concentrate mainly on the halachic and moral issues, although we also need to explain the legal situation briefly by way of introduction.
Much of the land in the Sheikh Jarrah neighbourhood was acquired by Jews during the Ottoman rule, and remained in their possession throughout the British Mandate. Although there have been some claims made questioning the validity of the initial land purchases, the courts have consistently ruled that these are valid.
In 1948, all Jews were expelled from East Jerusalem (and other areas such as Gush Etzion) by the Jordanians, whereas large numbers of Arabs either fled or were expelled from their homes in West Jerusalem and other parts of the country.[1] Some of the Arab refugees were re-settled in the Sheikh Jarrah neighbourhood, in an agreement between the Jordanian government and UNRWA.
It is important to point out that while Israeli law recognises Israeli sovereignty over areas captured in 1948 as well as East Jerusalem and the Golan that were liberated in 1967 and subsequently annexed, it also recognises historical Jordanian sovereignty over Judea and Samaria (including East Jerusalem), during the 1948-1967 period.[2] This is apparent from the partial application of Jordanian law to Judea and Samaria (not including East Jerusalem),[3] as well as from the content of various court rulings. In relation to the Sheikh Jarrah property dispute, had the Jordanian government indeed transferred the ownership of the land to the residents, this would have been valid.[4]
In summary, under Israeli law, a sovereign power that captures and annexes territory has the right to re-allocate abandoned land within this territory to its citizens.[5] This right was exercised by the Israeli government in West Jerusalem and other places, and by the Jordanian government in parts of Judea and Samaria.[6] It was not exercised by the Jordanians in relation to the residents of Sheikh Jarrah, resulting in past and pending evictions from this neighbourhood.
The question we need to ask is whether this right in Israeli law is halachically and morally justified, while bearing in mind that the answer will not have any effect on the status of the land in Sheikh Jarrah, where it was not exercised.
Acquisition through Conquest
The idea of 'Right of Conquest', whereby sovereignty can be taken by force through war, is clear in a number of places in Tanach. The halachic significance of this can be seen most clearly from the description in the Torah, subsequently quoted by Yiftach in Sefer Shoftim, of how the Amorite king Sichon conquered the land of Amon, a nation whose land was forbidden to Bnei Yisrael. Capture by Sichon 'purified' this land and made it permissible for Bnei Yisrael to conquer and annex this territory.[7]
The gemara derives from here that individual property rights can also be abrogated through military conquest.[8] This applies to capture from non-Jewish and Jewish individuals alike.[9] However, the nature of this abrogation is subject to dispute. There are three main possibilities:
1) Ra'avad writes that he has no clear understanding of how private ownership can be terminated without consent. He therefore suggests, for lack of a better alternative, that the captors have only a temporary ownership while they are in control. This ownership forbids a third party from using the property, but the original owner remains the real owner and if he manages to recover his property, the secondary 'ownership' of the captors terminates automatically.[10]
2) Other rishonim understand that there is nothing extraordinary about property lost during war. Any transfer of ownership is based on the standard principle that owners lose rights to property that they have given up hope of recovering (יאוש).[11] According to this, the captors themselves can only acquire property that was abandoned before they arrived. Active dispossession of the owners is theft, but one who buys from the invaders has no obligation to return the property.[12]
3) Probably the most widely held view is that there is an inherent Right of Conquest, irrespective of previous owners giving up hope of recovery. According to this view, sovereign powers have exceptional authority during wartime.[13] The idea appears to be an extension of the concept of dina d’malchusa dina (the law of the government has validity).
There is little discussion of these topics among the classical commentators. However, Professor Yisrael Tzvi Gilat of Netanya Academic College writes extensively about the second two views quoted above and the practical differences between them.[14] One undeniable observation that he makes is that conceptually, these two views are almost diametrically opposed.
This can be seen most clearly in the case of an evil but powerful dictatorship that confiscates property without any moral justification.[15] According to the second view above, as the owners will certainly give up hope of recovering their property, they will also lose the halachic right to get it back.[16] According to the third view, an illegitimate government does not have the prerogative of dina d'malchusa.[17]
Modern Norms and Future Aspirations
According to either view, it is clear that in the modern world, where re-distribution of property by a conquering government is viewed as illegitimate, this would in general also not have halachic validity. Those who have their property confiscated usually do not give up hope of retrieving it;[18] neither can dina d'malchusa apply when it differs from commonly accepted practice.17
However, this illegitimacy is only relatively recent. Until just after World War II, Right of Conquest was an internationally recognised principle.[19] Norms do not change overnight, and it was only natural that the years following World War II were somewhat of a grey area. This uncertainty is probably part of the reason that many issues arising during those years remain unsettled today, and it would be foolish to think that one blog post could provide a definitive solution.
Regarding our future aspirations, it is important to attempt to find a resolution to an apparent conflict between current accepted norms and our halachic obligations in relation to Eretz Yisrael. If we accept the position of the Ramban, we are obligated to take control of all of Eretz Yisrael, irrespective of which non-Jews are living there at the time.[20] How are we to do this if conquest is illegitimate?
The answer is that the obligation to take control does not necessarily require war or the use of force. It may seem far off now, but the ideal solution would be to persuade the non-Jewish residents to either formlly accept the seven Noachide laws, or leave voluntarily. Ramban himself writes that had the rebellion of the spies not taken place, there would never have been any need for war when we first entered Eretz Yisrael. The seven nations would all have left voluntarily, as the Girgashi did.[21]
In the ancient world and until relatively recently, war was the most commonly accepted way to resolve international disputes. Thank G-d we live in a time where this has changed, and superior methods exist. We aspire to see further improvements, where our enemies will stop attacking us and we will have no need for any kind of war.
[1] This started in 1947, and there is considerable historical dispute
as to how many left under what circumstances. Expulsions may have taken place
at the hands of fellow Arabs (mainly for military purposes) or Jewish groups
such as the Irgun and the Hagana, and many fled either under threat from either
of the above, or of their own volition (due to fear, or perhaps just to improve
standard of living). See for example Wikipedia.
[2] This is despite the fact that during the 1948-1967 period itself,
the Israeli government, as well as the entire world, did not recognise
Jordanian sovereignty over West Jerusalem (the UK recognised their sovereignty
over the rest of the 'West Bank'). See Wikipedia.
[4] Claims to this effect were dismissed by the courts as being
unevidenced, but the clear implication is that had they been true, the rulings
would have been different. See for example https://www.ngo-monitor.org.il/sheikh-jarrah-property-claims/
(in Hebrew). See also footnote 6 below.
[5] I am not a legal expert and it is possible that there are
exceptions to this. The point of this post is to discuss whether the general
principle is halachically and morally justified, whether or not it is applied
fairly under Israeli law.
[6] Evictions of Jews from Migron, Amona and other places were based on
the same principle, where land was classed as privately owned due to the
actions of the Jordanian authorities. In these cases, the courts ruled that the
Jewish residents must be evicted despite the fact that no individuals proved ownership
of the land and were thus unable to reclaim it.
[7] See Bamidbar 21:21-31, Shoftim 11:12-28, Gitin 38a.
[8] The discussion in the gemara is regarding capture of slaves,
although it is relevant for other property as well.
[9] Gitin 38a, see Tosfos ad loc. (ד"ה
אבל בחזקה).
Although Rashi explains the gemara slightly differently, it is still clear that
the acquisition discussed is a forced one. See P'nei Yehoshua for an
explanation of Rashi's reading of the gemara.
[10] Corrections of the Ra'avad, Rif Gitin 20b. In the case of the
gemara that he is dealing with, the 'original owner' is the slave himself and
the captors are non-Jews. In this case, if the non-Jewish captors sell the
slave to a Jew, their temporary ownership is significant enough to warrant a
bill of release from the Jewish buyer before the slave can go free.
[11] Ri Migash quoted in Shita Mekubetzes to Bava Metsia 24b; Tosfos
Rid, Gitin 38a; Yad Rama, Sanhedrin 94b.
[12] One who steals cannot acquire through יאוש alone. See Pesakim
uK'savim of R' Hertzog, siman 37, who applies this principle to fields
abandoned by Arabs in the War of Independence.
[13] Rashba to Gitin 38a writes explicitly that יאוש
is not required, as the Torah declared that forced requisition during war is a
valid means of transfer of ownership. Responsa of the Rif (quoted by the Itur, Mem
– Moda'a 41a) and the Rambam (Blau edition, siman 209) also rule that the king
has the power to approve confiscation of property during wartime (however, it
is somewhat problematic that the Rambam seemingly omits this concept in Yad
HaChazaka).
[15] Professor Gilat shows that rulings of different Batei Din conflict
over this issue, in relation to property seized by the Nazis.
[16] If the property was abandoned prior to requisition, or was sold
subsequently.
[17] See The
right to resist abuse of power. According to this view, יאוש
does not have effect on land ownership, even during wartime. This is the reason
the Rashba gives for rejecting the second explanation above.
[18] Historically, in times where the vast majority would give up hope,
any individual declaration to the contrary would have no effect. See Bava
Metsia 24b, which states that such declarations are akin to protests about a
house that collapsed or a ship that sunk.
[20] Sefer Hamitzvos, Mitzvah 4 in his collection of positive mitzvos
that the Rambam ‘forgot’. See War and
Peace for a brief discussion as to the Rambam's position.
[21] Commentary on the Torah, Bamidbar 14:9. R' Nachum Eliezer
Rabinovitch claims that even according to the Ramban, we were only permitted to
wage war in order to take control of Eretz Yisrael as a one-off event in the
time of Yehoshua (see this
shiur in Hebrew). Subsequently, this mitzvah is not sufficient
justification for the loss of human life. While in my view this is a very
difficult reading of the words of the Ramban, I certainly agree that in an era
where the world has progressed enough to make aggressive wars unacceptable, we
should hold ourselves to the same standard.
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