Names and Games: Joseph’s Politics

Names and Games: Joseph’s Politics – Mikeitz Genesis 41-44

by

Howard Adelman

After Joseph was made Prime Minister of Egypt by Pharaoh and was renamed Zaphenath Pa’neah, and after he married Asenath (“she who belongs to the goddess Neith”) who was the daughter of the governor of On, Poti-phera (“whom Ra has given”), why does Joseph name his firstborn son, Manasseh (“God caused me to forget all of my father’s house,” ch. 51) and his second son, Ephraim (“God has made me fruitful in the land of my affliction.” Ch. 52)? After all, Manasseh is about the past, forgetting that past. Ephraim is about the present, the wealth and power Joseph currently enjoyed in Egypt. But Joseph came to power, not because of his past, but in spite of it, not because of his status at the time, for he achieved that status suddenly and precipitously after being a prisoner in a dungeon. He came into his position of power and wealth because he could interpret dreams and read the future. He was a diviner. Yet his first son was named in relationship to the past and his second in relationship to the present.

Naming is always very significant in the Torah. In terms of Joseph’s new name, scholars have suggested that Zaphenath is an early transcription error and that the name was probably Zat-en-aph. It means, “He who is called,” though other commentators have suggested that the name means “a revealer of secrets.” Since “Panea” is probably derived from the Egyptian word, “aneah,” ankh or ankhu, meaning “is alive,” Joseph’s new name, “Zaphenath Pa’aneah” is usually interpreted to mean, “he who is called Anakh” or “God speaks and he lives.”

It is God who was responsible for saving Joseph’s life through the serendipity of Judah suggesting that he be traded for money rather than allowed to be torn apart by wild animals. It is God who is responsible for the serendipity of the chance passing of the slave traders who were off to Egypt. It is God who is responsible for the attempt of Potiphar’s wife to seduce him and his rejection of her advances, either because he was not attracted to her or because he felt a strong loyalty to her husband or because he feared the consequences or a mixture of all three or because he was uninterested in women altogether. That rejection and her trumped-up charges led to his being thrown into prison.

It is God who is responsible then for Joseph’s chance meeting with the butler and the baker and his interpretation of their dreams. The butler survives, is released from prison, gets his old job back as a cup-bearer, hears of Pharaoh’s dream and informs Pharaoh of Joseph’s unique gift of divination. Though Pharaoh calls Joseph to explain his (Pharaoh’s) dreams about the fat and the thin cattle, the healthy wheat and the shrivelled stalks, Joseph would not be in that place at that time without God’s efforts to raise Joseph up and give him a new name and a new life as a wealthy and powerful Prime Minister of Egypt. Further, Joseph then insists that, “Not I; God will give an answer [that will bring] peace to Pharaoh.” (Genesis 41:16) Later, he will forget God as the source of his well-being.

What about Asenath? She belongs to the goddess Neith, the Egyptian god of war and hunting. One thinks back to Esau and envisions Joseph marrying a female version of his uncle. But if Esau was easy going, Neith is fierce. She carries the symbol of those Hebraic twins in the form of two bows that face one another on her shield. Neith has a fiery fury and is associated with rapids and the primordial waters of creation. She carries the scepter that is the symbol of power and authority. Like Joseph, she is the protector of the royal house of the Pharaoh. She is also a goddess who can give birth without having had sex, important because Joseph may have been gay and uninterested in having sex with Asenath. Neith is also the symbol of ankh, life that is part of Joseph’s new name.

The couple have two sons. Manasseh is the eldest, the first of a long line of successors bearing the same name, beginning with the son and successor to King Hezekiah (Kings 21:1). According to Matthew, Manasseh was an ancestor of Jesus as well as of men who divorced their foreign wives in bursts of Jewish puritanism. In the final descent, Manasseh was the patriarch of dissident idolatrous priests. It should be no surprise that future generations largely avoided the name Manasseh.

Joseph in his new life has all but forgotten his nine brothers who sold him into slavery, forgotten Reuben, his oldest brother who failed to save him, and even his younger beloved full brother, Benjamin. Not once did Joseph when he was all powerful inquire into the well-being of his father, Jacob. One can imagine that, as he became more powerful, he became even more narcissistic. And Manasseh was the symbol of that forgetting, for the name is derived from the verb נשה (nasha) meaning forget. If Joseph in his new life was given a new name and a new life and a name that meant life, his first son’s name was connected with נשם (nasham) meaning to breathe or gasp for life. If Joseph was the epitome of life lived to its fullest in an exhibition of power and authority, his eldest son found it difficult to breathe in a world in which Joseph’s past had been forgotten and even buried.

At least until his brothers were sent down to Egypt in search of food during the famine, Joseph had moved upward and away from his life as a shepherd to fulfill the destiny set out in his early dreams. But he had not yet witnessed his success through his brothers bowing down before him. He had moved away. He had moved up in the world. Manasseh was the symbol of that. For נשׂא (nasa’) means precisely moving up and away. Joseph had accomplished this because he had proven to be an oracle, משא (massa). But had he lifted himself up through his powers of divination or been lifted up? Did he hold his head up in independence and pride or, alternatively, in supplication? In carrying the enormous responsibilities of state, did he also carry a huge burden of guilt for his forgetfulness? Was Manasseh the projection of that forgetfulness?

But there is another side to Manasseh. Joseph takes a personal interest when he learns that his brothers have come down to Egypt to buy food. But they have come without Benjamin for Jacob would not risk the departure of the youngest son of his beloved Rachel. So while Joseph takes an inordinate interest, נשׁא (nasha), in these lowly Hebrews, he enters into a long family drama to both beguile and deceive (נשׁא – nasha) them, just as his mother deceived her father, Laban, when she stole his idols, as his father deceived Isaac when he stole Esau’s blessing. Joseph comes from a heritage of deception. As he espies his brothers, he charges them with being spies.

But נשה (nasha) also means to lend on credit. When Abraham first came down to Canaan, he refused to accept a gravesite as a gift. He insisted on paying for it. The brothers too come down to Egypt to pay for food. But Joseph ordered his minions to put the money of his brothers back into their sacks unbeknownst to them. And when they returned a second time, with both the original money as well as new money to once again pay for their food, Joseph had insisted that he would not acknowledge them unless they brought their brother with him on a second visit. This time, they came with Benjamin in tow in order to free Simeon and prove their honesty.

Once again, Joseph tricks them and not only puts back all their money into their packets, but puts his silver goblet in Benjamin’s sack. Then, after they leave, he sends his men after them to accost them and discover the goblet in Benjamin’s pack, but only after his brothers echo Jacob’s pledge to Laban when he sought his stolen idols. “Whichever one of your servants with whom it is found shall die, and also we will be slaves to my master.” (44:9) So Manasseh becomes the symbol not only of forgetting, but using all the variegated meanings of his name to connote a special way of re-enactment, remembering and recalling.

What about Joseph’s second son, Ephraim, the son whose name stands for and evokes the present wealth and status of Joseph? For Ephraim derives from פרה (para), to bear fruit or be fruitful. Joseph had been fruitful and bore two sons. Joseph enjoyed the fruits of his divining and management skills and had become wealthy and powerful. But there was a dark side. Joseph had forgotten his God and his father. When his brothers arrived, he remembered. He inquired after his father’s welfare after the passage of so many years. His father was still alive and still in mourning – for his wife Rachel who died in childbirth and for his favourite son whom he had come to believe had been eaten by wild animals when sent on a spying mission for him to look at what his brothers were up to.

The name Ephraim comes from פרס (paras) which also means to break in two or divide, a breach as in an agreement or covenantal arrangement with God. Joseph had violated his covenant with God as he became caught up with his status, with his position, with his wealth and with his power. Joseph had forgotten his father and his God. His two children were reminders both of the forgetting and the new idolatry into which he had sold himself and become enslaved. This is the core of the story, built on the multiple meanings of the two names of his children and the divide between the forgetting of the past and the glorying in the present. The text is also a series of twice-told tales as signs of the cosmic importance of what is being told. (In the appendix, I include Act 3, scene 4 of one of William Shakespeare’s lesser historical plays, The Life and Death of King John, to emphasize the importance of twice-told tales and repetition in literature and what they signify.)

Jacob repeats his words: “And take your brother, and get up, go back to the man. And may the Almighty God grant you compassion before the man, and he will release to you your other brother and Benjamin, and as for me as I am bereaved, I am bereaved.” [my italics] (Genesis 43:13-14) As Joseph told Pharaoh when he first met him and after Pharaoh told him his two dreams, “And concerning the repetition of the dream to Pharaoh twice, that is because the matter is ready [to emanate] from God, and God is hastening to execute it.” (Genesis 41:32) Because of the importance, because of the immanence, all must be a twice-told tale and each told in two different ways but saying the same thing, and each an echo of an earlier tale that, rather than becoming hackneyed through the repeated telling, gains breadth and depth.

Look at the number of twice-told tales in this one section:
1. Pharaoh’s two dreams – of the seven healthy and seven emaciated cows and the seven ears of healthy grain and then the seven thin and withered stalks.
2. There is a butler and a baker, each with dreams, but opposite interpretations and outcomes.
3. Pharaoh retells his two dreams twice to Joseph, the second time with a bit of elaboration – “I have not seen such ugly ones throughout the entire land of Egypt.”
4. There are two political authorities, that of Pharaoh and that of his second in command, Joseph. The latter is given a raiment of fine silk, a signet ring, a golden chain around his neck as symbols of his authority, as well as a chariot of the second rank. And we recall Tamar, the foremother of King David, taking Judah’s signet ring, his leader’s staff and belt as identifiers as surety for his promise of payment of a goat in return for sexual favours.
5. Joseph has the two sons mentioned above who mirror the present facing but forgetting the past.
6. When his ten brothers come down to Egypt and prostrate themselves before Joseph to buy grain and do not recognize him, we readers recognize the repeat of Joseph’s vision of the ten sheaves of whet bowing down to an eleventh.
7. Then there is Joseph’s accusation that the brothers are spies which adumbrates the story of the twelve spies, each from the tribe descended from one of the brothers, who were sent by Moses to spy on the land of Canaan; in this case, the accusation of coming from Canaan to spy on Egypt is a false charge.
8. Then there is the irony of the guilt the brothers felt when their brother Simeon is kept in prison and they all recognize that, “we are guilty for our brother, that we witnessed the distress of his soul when he begged us, and we did not listen. That is why this trouble has come upon us.” But it is that very brother, live and well, who is now causing them so much stress.
9. Reuben, just as he was when he believed that Joseph had been killed by wild animals, is distressed the most. He remonstrates his other brothers: “Didn’t I tell you, saying, ‘Do not sin against the lad,’ but you did not listen? Behold, his [Benjamin’s] blood, too, is being demanded!”
10. Just as Joseph went to prison when he first went to Israel, so Joseph put Simeon in prison. Recall from last week’s blog, it was Simeon along with Levi who kill all the adult males of Shechem in revenge for the “rape” of Dinah. Simeon was the rashest of the brothers, but very strong and fearless. He was also the one who was probably most jealous of Joseph. Did Simeon propose Joseph be killed? Did he push Joseph into the pit? There is much speculation on this given Simeon’s character and his relationship to Joseph. And this is an instance of what goes around comes around.
11. Putting their money secretly in their sacks echoes and should remind his brothers that they sold Joseph into slavery so they could put money in their sacks.
12. They keep repeating that they are honest, and Joseph insists on their proving their honesty, reminding us how they lied to their father about Joseph’s death.
13. In the meanwhile, Jacob is even more bereaved than ever. He lost Joseph – so he thinks. He lost Simeon who is now in jail. And he believes he might now lose Benjamin. This is an echo of Judah who lost two sons and withheld the third from Tamar only to have the breech in customary law reverberate against him so that it is he who fathers the child by his son’s widow.
14. The brothers travel twice to Egypt to purchase food. Two times, the money they paid was put back in their sacks. On the second trip on their return, twice the last payment was put there. Everything is a sign of double trouble and a message of the seriousness of each event.
15. Jacob prays: “may the Almighty God grant you compassion before the man, and he will release to you your other brother and Benjamin, and as for me as I am bereaved, I am bereaved.” (Genesis 43:14)
16. Twice the brothers prostrate themselves before Joseph just as Joseph dreamed twice that they would.

The whole of the parshat is an echo chamber. What is the connection between this doubling down and Joseph’s rising up out of the pit and going away? As Medici says twice in the first two segments of the Netflix series, deception is right if it serves a higher good. Unlike his father, Joseph did not practice deception out of self-interest, but in order to give his brothers time to become conscious and confess the error of their ways. He wanted them to discover and admit the truth about themselves instead of his confronting them directly with it. Joseph is the one who abandons political practice radically among the Israelites, shifting from the appeasement and cowardice of Abraham, the impotent politics of Isaac, a man suffering from PTSD, the politics of deception of his own father. He becomes the progenitor of a politics based on foreseeing and planning for the future where dreams foretell reality and deception is used to achieve a higher good. Finally, the Hebrews have developed, through Joseph’s example, a politics in which deceit is only used for lofty purposes. The nation finally has an ethical foundation to its spirit.

That is why Joseph is named, “God speaks and he (Joseph) lives.” And he lives on in us when we practice the art of honest politics.

Appendix: Act 3, scene 4 of Shakespeare’s The Life and Death of King John

The play is about the ethical beginnings of the British realm, the period when the Magna Carta was forged. In this scene, it is the French King, Philip, who is in despair. His fleet had been scattered into the winds. Angiers has been lost. Arthur Plantagenet, son of John’s elder brother, Richard, has been taken prisoner. Pandulph offers false comfort. Lewis, acknowledges that the loss is unprecedented. To be unique, however, in this sense is to be ashamed and to be unable to discover meaning in the loss.

K. Phi. So, by a roaring tempest on the flood,
A whole armado of convicted sail
Is scatter’d and disjoin’d from fellowship.
Pand. Courage and comfort! all shall yet go well.
K. Phi. What can go well when we have run so ill?
Are we not beaten? Is not Angiers lost?
Arthur ta’en prisoner? divers dear friends slain?
And bloody England into England gone,
O’erbearing interruption, spite of France?
Lew. What he hath won that hath he fortified:
So hot a speed with such advice dispos’d,
Such temperate order in so fierce a cause,
Doth want example: who hath read or heard
Of any kindred action like to this?
K. Phi. Well could I bear that England had this praise,
So we could find some pattern of our shame.

But then Constance, the mother of the captured Arthur, makes the King’s despair look feeble in one of the greatest passages of grief in literature:

Because my poor child is a prisoner.
And, father cardinal, I have heard you say
That we shall see and know our friends in heaven.
If that be true, I shall see my boy again;
For since the birth of Cain, the first male child,
To him that did but yesterday suspire,
There was not such a gracious creature born.
But now will canker-sorrow eat my bud
And chase the native beauty from his cheek,
And he will look as hollow as a ghost,
As dim and meagre as an ague’s fit,
And so he’ll die; and, rising so again,
When I shall meet him in the court of heaven
I shall not know him: therefore never, never
Must I behold my pretty Arthur more.
Pand. You hold too heinous a respect of grief.
Const. He talks to me, that never had a son.
K. Phi. You are as fond of grief as of your child.
Const. Grief fills the room up of my absent child,
Lies in his bed, walks up and down with me,
Puts on his pretty looks, repeats his words, [my italics]
Remembers me of all his gracious parts,
Stuffs out his vacant garments with his form:
Then have I reason to be fond of grief.
Fare you well: had you such a loss as I,
I could give better comfort than you do.
I will not keep this form upon my head
When there is such disorder in my wit.
O Lord! my boy, my Arthur, my fair son!
My life, my joy, my food, my all the world!

Constance exits followed by King Philip to check and ensure she will not harm herself. Lewis then comments:

There’s nothing in this world can make me joy:
Life is as tedious as a twice-told tale, [my italics]
Vexing the dull ear of a drowsy man;
And bitter shame hath spoil’d the sweet world’s taste,
That it yields naught but shame and bitterness.

The speech is, of course, ironic, because it is the twice-told tale that is anything but tedious for the repetition reveals the cosmic import of the events.

With the help of Alex Zisman

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Demography, Settlements and Jerusalem

Demography, Settlements and Jerusalem

by

Howard Adelman

Thus far, I have attended only to the framing of United Nations Security Council Resolution 2334. I now want to turn to the nub. There are four issues, not just one. I deal with three in this blog: demography and Jerusalem as well as settlements. In the next blog, I will take up the impact of the resolution on the two-state solution and the issue of borders.

The resolution condemned “all measures aimed at altering the demographic composition, character and status of the Palestinian Territory occupied since 1967, including East Jerusalem.” Secondly, the resolution reaffirmed “that the establishment by Israel of settlements in the Palestinian territory occupied since 1967, including East Jerusalem, has no legal validity and constitutes a flagrant violation under international law and a major obstacle to the achievement of the two-State solution and a just, lasting and comprehensive peace.” That is a mouthful. Demography and Jerusalem bracket the core thesis of settlements. The resolution demanded “that Israel immediately and completely cease all settlement activities in the occupied Palestinian territory, including East Jerusalem.” UNSC Res. 2334 required the freezing “by Israel of all settlement activity, including “natural growth,” and the dismantlement of all settlement outposts erected since March 2001.

As I stated, in my next blog on Resolution 2334, I will discuss whether and to what extent the settlements “dangerously imperil the viability of the two-State solution, particularly in light of the claim of that resolution that the two-state solution must be “based on the 1967 lines.” It is certainly a key repeated theme of the resolution which insisted on non-recognition of “any changes to the 4 June 1967 lines other than those agreed by the parties through negotiations.” But then why is there no reference made to the distinctions between Areas A, B and C that was arrived at through negotiations? As I stated above, a follow-up blog will focus on border issues and the impact of the resolution on the two-state solution.

Excluding Nahal settlements established by the IDF for security purposes and outposts created by Israeli settler groups that are not legally recognized by Israel, I focus only on so-called “legal” settlements, that is, settlements authorized by the Israeli government, though they may be considered illegal by most of the international community and, in a few cases (Ofra), even illegal under Israeli law because much of the settlement was built on privately held land. Further, it is important to distinguish between and among settlements in different areas.

I already wrote about the Resolution’s reference to the wall. Many settlements are on the eastern side of the wall. Excluding the 28 Jewish settlements in the Jordan Valley (population 15,000), there are less than 50,000 Israelis living in 10 different settlements that can be considered exurbs of Jerusalem as follows:

Kiryat Arba just outside of Hebron where the patriarchs and matriarchs
of Judaism are said to be buried and where Jews continuously lived
until the Hebron massacre of 1929. 7,100
Since the settlement was re-established in 1970, 16 settlers have
been killed in 8 different incidents, just over half the number
killed by Baruch Goldstein (29) in a single massacre.
Kokhav Ya’akov about 12 miles equidistant from both the Qalandiya
Checkpoint and Ramallah. 7,300
Beit El north of Jerusalem and just east of al-Bireh & Ramallah 6,500
Site of Jacob’s dream of angels going up and down a ladder
Geva Binyamin 5 km north-east of Jerusalem 5,200
Eli, Mateh Binyamin, north of Jerusalem and Ramallah 4,100
Ofra, northern West Bank between Jerusalem and Nablus 3,500
20 km. north of the old Green Line
Most built on expropriated privately owned land, hence illegal
under Israeli law; adjacent to Silwad and Deir Dibwan
Talmon, 18 km. north of Modin 3,700
Shilo, Mateh Binyamin 45 km. north of Jerusalem 3,400
Tekoa, Gush Etzion, 15 km. south of Jerusalem & 20 km. northeast of
Hebron; 5 killed in 3 separate incidents 3,500
Mitzpe Yeriho, 20 km. east of Jerusalem; 10 km. east of Ma’ale Adumim 2,300

Total 46,600

There are also over 90 settlements west of the wall or separation barrier with a total population of almost 400,000. In addition, there are almost 180,000 living in different very familiar Jewish neighbourhoods of Jerusalem on land captured in the Six Day War in 1967 – East Talpiot, French Hill, Gilo, Giv’at Hamivtar, Har Homa, Ma’alot Dafna, Neve Yaakov, Pisgat Ze’ev, Ramat Eshkol, Ramat Shlomo, Ramot and Sanhedria Murhevet. Further, there are about 3,000 residents and 1,500 Yeshiva students living in the Old City, overwhelmingly in the Old Jewish Quarter with a very few scattered Jewish families in East Jerusalem. This can be compared to a non-Jewish population of 30,000 in the Old City and just under 500,000 non-Jews in East Jerusalem.

As I indicated in my last two blogs, ALL of these areas are considered illegal under the Fourth Geneva Convention, including the re-establishment of the Jewish Quarter in the Old City that was totally ethnically cleansed of Jews when the Jordanian government captured the Old City in 1948 and expelled all its Jewish inhabitants. Jews had continuously resided in the city for centuries. Under that Convention, it does not matter whether the case is one of a returned population or of voluntary movements as opposed to forced relocation of Israelis, these areas are all considered illegal since the population moved there after Israel occupied and annexed some of these areas after the Six Day War. Right wing defenders of Israeli actions insist they are legal under international law because a) they were captured in a defensive war; b) the territory did not previously legitimately belong to a recognized state. But most interpreters of international law simply make occupancy of a territory held by a belligerent following the cessation of a conflict as the relevant marker.

Currently, about 1 out of every 10 Jewish Israelis live in areas considered illegal under international law. International law may be an ass in not making any of these distinctions. It also may be totally ineffective. One need only recall the effort to evacuate 9,000 Jews from Gaza and the political storm that caused within Israel in the forced removal of a population living in an area lacking all the deep religious attachments of the sites under consideration. Can you imagine the effort it would take to move over 600,000? That would certainly tear the country apart. Anyone who opposed settlements all these years has to at least recognize this.

Well, what about the 65,000 living east of the separation barrier in the Jordan Valley and in the 10 neighbourhoods listed above? Many of the latter areas have deep religious significance for Orthodox Jews. Why do they have to be evacuated? Why could the population there not continue to live in a Palestinian state? After all, almost 1.5 million Arabs live within the Jewish state. This was precisely the question asked courageously by a Palestinian law student who was head of the youth wing of Fatah at a conference at al-Qds University that I attended. But then, what about all the settlements west of the separation barrier? If they stayed in Israeli hands, then Israel would be acquiring territory by force even if subsequently ratified by negotiations. After all, in the Oslo talks, the Palestinians had agreed to a land swap of an almost equal amount of territory in exchange for the territory on which these settlements were located.

Recall that the resolution condemned “all measures aimed at altering the demographic composition, character and status of the Palestinian Territory occupied since 1967, including East Jerusalem.” It did not call for a swap. It did not call for returning the settlements east of the separation barrier to a nascent Palestinian state, but leaving the settlers in place. The resolution condemned the whole effort to settle Jews on land cleansed of Jews between 1948 and 1967 whether or not they lived on that land prior to 1967. Why 1967? Why not include the territory captured by the new state of Israel in the 1948 war?

The answer is simple. If you go back to 1948 for the Jews, you have to go back to 1948 for the Arabs and the territory was not sovereign Arab land then. In particular, in the 1947 division of territory recommended by UNSCOP, Jerusalem was to remain an international city under UN auspices. But the two principles pushing the members of the Security Council last week were: 1) no acquisition of territory by force and then by movements of people into a territory; and 2) the principle of self-determination, namely that a territory should become the sovereign land of the national group constituting the largest majority in a territory. But then in the areas of settlement west of the separation barrier excluding Jerusalem proper, there are about 400,000 Jews and only 100,000 Palestinians. Does not a land swap already agreed to make sense and be worthy of endorsement by the international community? The supporters of the resolution were not being puritans about the issue. They did not condemn the occupation and seizure of different parts of Jerusalem in 1948.

The real answer is that using 1967 rather than 1948 is already a compromise, but one which allows control of both the Old City as well as Eastern Jerusalem to go to a Palestinian state. And though the two sides eventually agreed on water sharing and on refugees, they could not agree on Jerusalem. Hence, John Kerry yesterday rehashing an old condominium proposal on Jerusalem that had been consistently rejected by both sides.

Further, there had been two separate thrusts to the settler movement. One was the establishment of secure borders for the Jewish state. Second there had been the claims made by the Israeli right for sovereignty over the whole of the Mandate territory. The current right wing government in Israel includes heirs to that belief. They repeat the mantra and make most members of the international community believe that this is the ultimate goal of the settlements and not a two-state solution.

In the Oslo Accords, the territory of the West Bank had been divided into three zones. In zone A, the Palestinians had exclusive administrative and security responsibility. In Zone B, the Palestinians exercised administrative responsibility but security was a matter of joint responsibility. In area C, where most of the populated settlements are located, Israel retained both administrative and security control. The jurisdiction of the Israeli municipal regional councils cover almost two-thirds of Area C. Palestinians are forbidden according to their agreement to engage in construction and development in area C. Therefore, some could with some legitimacy claim that the settlements could now be said to have taken place in this area by agreement.

The resolution did not condemn settlement activity only in areas outside those in which Israel had been given the right to control and settle by previous agreements. Rather, 1967 and the old green armistice line became the dividing line. Why? Because by allowing the Fourth Geneva Convention to trump agreements already entered into by the parties, the status of the settlements west of the separation barrier were left in question. So, certainly, was the status of East Jerusalem and especially the Old City.

There are other issues. Some parts of a few settlements, specifically Ofra, were built on land expropriated from private Arab citizens, contrary to the legalization of those settlements by Israel. There were issues of division over water supplies, the provision of access roads and the provision of equality of water and sanitary sewers available to Palestinian towns in comparison to the Israeli settlements. Often, this was not because of intent but because of the difficulty of getting the two sources of authority to agree, especially when one authority disputed the legitimacy of the other. As a result, Israeli settlements enjoy advanced infrastructure; the nearby Palestinian towns do not. Further, Jewish settlers in the West Bank remain and retain full Israeli citizenship while Palestinians in Area C live under martial law.

I have concluded that the resolution is not really about the settlements, but about the status of East Jerusalem and the Old City and about using the humanitarian laws of war as leverage on behalf of the Palestinians who are in the much weaker position. Unable to defeat the Israelis militarily with or without the help of the Arab states, the Palestinians have enlisted the international community using international humanitarian law, diplomacy and economic pressure to confront the Israeli settlement policy.

There is, of course, for many Israeli Jews, and now perhaps most, the issue of the right to settle and live in the West Bank. Eugene Rostow wrote resolution 242 which ended the 1967 war. He has always claimed that it gave Jews the right to settle anywhere in the old Mandate territory since the resolution did not obligate Israel to return ALL occupied land, but only occupied land in anticipation that there would be a future further division. Further, resolutions calling for withdrawal of Israeli forces from ‘all’ the territories were defeated, not only in the Security Council but in the General Assembly as well. The 1993 Oslo Accord and the 1995 Israel-Palestinian Authority Interim Status Agreement specify that the issue of settlements was to be negotiated and neither accord prohibited Jewish settlements in the West Bank. However, the international community has come to the conclusion that in the over two decades since, it is Israel that has been the obstacle to concluding a final two-state solution. It is Israel that has been using the interim period to predetermine the results of the permanent status negotiations.

The mantra at the time and continuously preserved, but with a seriously diminished status, has been the refrain, “secure and defensible borders” when Israeli settlements and the wall were intended to put facts on the ground that would help predetermine the outcome instead of waiting for “secure and recognized borders” to be determined in negotiations. The number of applications for new homes in the West Bank continues to grow with almost 4,500 applications in 2015. The equivocation of diplomatic linguistic compromises allowed others to interpret the requirements of Resolution 232 in very different ways, and in a way that seems to have displaced its previous emphasis on security. Israelis have always contended that the old Green Line, the armistice line determined by the ceasefire agreement in 1948, was NOT a border and should not be used as a reference for applying international humanitarian law. Israeli courts have upheld that opinion, but the international court in The Hague did not in its advisory and non-binding opinion.

The situation had now been radically changed by the resolution at the same time as Donald Trump is coming into office and the Israeli right wing government is reacting to the passage of the resolution with very aggressive diplomatic and economic moves putting, as I will argue in my next blog, the prospect of a two-state solution in never-never land. The debate may be conducted over the rhetorical issue of whether Israel is an occupying power when the territory occupied did not legitimately belong to another state and, therefore, was not foreign territory, but the debate will be won, not in the diplomatic halls or through international and domestic courts of law, however useful they have been, but in power games which Netanyahu and the new Trump administration seem ready and eager to play.

With the help of Alex Zisman

The Fourth Geneva Convention and the Wall

The Occupation, Acquisition and Annexation: The Fourth Geneva Convention and the 9 July 2004 Advisory Opinion of the International Court of Justice

by

Howard Adelman

Before I deal with why the 2004 advisory opinion of the International Court of Justice has been included in the preamble of a resolution focused on the illegality of building settlements, I want to clarify the difference between the “acquisition” of territory versus mere occupation, on the one hand, or the much more radical step of annexation. The last blog dealt with the issue of acquisition of territory. I perhaps should have started by explaining at least the difference between occupation and acquisition and between acquisition and annexation.

The issue of acquisition of territory under international law goes back to the competition among Western colonial powers dating back to the fifteenth century and the competition for colonial territories in disputes between Spain and Portugal and then between those two powers, backed by the interpretations of international law by the Pope, and the refusal of the other powers, most specifically the Netherlands, Britain and France, to comply with those international rulings. In a future blog I will discuss when an international authority in determining international law – currently a political entity like the UN or a legal entity like the International Court – loses respect for its jurisdictional authority.

There were two relevant mechanisms for acquiring new territories – so-called “discovery” of the territory and, second, conquest. Discovery has long been irrelevant, whether or not it was ever really just, but conquest has remained an issue. As I tried to point out in my first blog in this series, international law has attempted to prohibit the acquisition of territory by force of arms, particularly since the end of WWII, but this effort is most notable for the frequency of the breaches rather than the universality of its application either in time or space.

Given the hypocrisy with respect to acquisition, there exists a tension between occupation, the temporary control and jurisdiction over a territory, and annexation of such territory that ends an occupation, not by ceding the territory back to another power, but by making that territory an extension of the territory already under the governance of a power. Annexation by means of prescription, cession and accretion are not relevant here and, in any case, are now considered obsolete. The two modes of asserting sovereignty have been by occupation and by conquest. A main thrust of international law over the last century, but particularly since WWII, has been to deny the right of powers to acquire permanent jurisdiction over a territory and extend sovereignty by either conquest, occupation, or both.

Currently, international law overwhelmingly protects the rights of an existing population in a territory to determine the sovereignty over that territory. It also deems illegal the transfer of populations into that territory under the auspices of military conquest in order to change the demographic makeup such that the resident population and demographic shifts effect sovereignty claims. Yet, as I tried to show, in Crimea, Tibet, Kuwait, East Timor, Cyprus, the Western Sahara, Eritrea-Ethiopia, Kosovo (I dealt with this case in a number of articles and a book), as well as other areas that I did not discuss, sovereignty was determined in fact by power politics – sometimes one way and sometimes the other, but virtually never by international law. Thus, there is a real tension between international law and military force. In that tension, international law has won a number of rhetorical victories, but in virtually no case has it determined outcomes. Further, because of this failure, many would contend that international law has been placed in disrepute and the “law” that might is right has been reinforced.

The issue may be when an occupied territory or parts thereof can legally be transferred to the sovereignty of an occupying power. Note that a country can be in occupation of a territory even if the reasons for that occupation are totally legitimate under the laws of war. The ethics of conduct applicable to an occupying power under the rules of jus ad bellum are relevant solely on the ground of whether humanitarian international law is applicable. A “territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised.”

It does not matter whether the occupying power has or does not have legal rights or claims on the territory in question. If the political and/or military power did not have administrative control of the territory before the belligerency and does so after, it is an occupying power and in occupation of the territory in question. Further, the reasons for calling it an occupying power relate to humanitarian considerations with respect to the treatment of the local population and not with regard either to the justice of such occupation or the legal rights to ownership of the territory in question. As we shall see, the two issues, while distinguishable, are related.

This, the politicians on the right in Israel may and do refer to the territory of the West Bank as Judea and Samaria to press forward a legal claim to the West Bank territory, but that is of no relevance for determining whether the West Bank is occupied territory or whether Israel is an occupying power. Simply put, Israel is an occupying power; the West Bank, including East Jerusalem and the Old City, are occupied territories under international law. That situation of occupation continues until there is recognition of the party having legal jurisdiction AND that legal party also exercises de facto control over that territory. It is the latter point that gives rise to claims, whether valid or not, that Gaza remains occupied territory even though governance is now under the jurisdiction of Hamas. As long as a territory is under the control of foreign troops without the consent of local authorities or the local population, the territory is considered under occupation.

Thus, occupation says absolutely nothing about sovereign rights. Further, occupation is regarded as temporary even when, as in the case of the West Bank, it has lasted for almost fifty years. The occupying power must respect local laws already in place with two exceptions: a) if the local law undercuts international humanitarian law, and b) local law threatens the security of the occupying power. It is the latter tension between the responsibilities to humanitarian law, on the one hand, and to the security of the occupying power that are critical.

It is understandable why a reader might find it strange that the Fourth Geneva Convention concerning humanitarian law and, in particular, the protection of persons in time of war, may seem odd in a document concerned with halting and even reversing Israeli settlements in the West Bank. For, bracketing the issue of settlements for the moment, under any reasonably objective standards, Israel is exemplary by and large in adhering to humanitarian norms with respect to protection of the civilian population. That civilian population is guaranteed protection as long as the majority of individuals there do not become nationals of the Occupying Power. This is a major reason why East Jerusalamites, by and large, never took up the offer of citizenship in Israel when Israel annexed that territory and extended the boundaries of Jerusalem.

In addition to its own security, an occupying power has a responsibility for ensuring public order and safety while, at the same time, respecting the rights of all civilians under its jurisdiction, including not deporting, ethnically or religiously cleansing that population (article 49 Fourth Geneva Convention – henceforth I will cite only the relevant article). The Convention prohibits forced labour, (art. 51) and insists that the occupying power, offer workers protection (art. 52), respects municipal laws and the administration thereof (art. 54), ensures health services (arts. 55-57), protects the local religions (art. 58), provides welfare as needed (arts. 60-63), and ensures the administration of criminal law (arts. 64-78).

However, there are articles which Israel has been charged with abusing, such as prohibitions against confiscation and the destruction of property (art. 53) owned privately, cooperatively or collectively. The problem has not been the property of municipalities and of institutions dedicated to religion, charity and education, the arts and sciences. To the greatest extent, these have been respected. However, property seized for security purposes or taken over for the construction of settlements for Israeli Jews under the guise of security concerns have been viewed as breeches of international humanitarian law. The seizure of such property is allowed only if the property is absolutely required for security purposes and, even then, only during the conduct of hostilities.

There is this reservation. Confiscation of property is permitted when “absolutely necessary for military purposes” and imperative military requirements demand such confiscation. It is up to the military occupying power to make such a determination. However, international humanitarian law does NOT permit the occupying power to simply cite such military considerations. The latter must be demonstrated and cannot be used as a cover for clearly other purposes, such as the transfer of Israelis into the territory in question. That would be a bad faith application of the exemption provision. The criteria of reasonableness and proportionality apply.

A second area concerns the internment of locals because of security concerns (most of the remaining 159 articles), but comparatively speaking, Israel has treated individuals interned for security purposes well and has never exercised the use of capital punishment which is permitted under the Fourth Geneva Convention. Israel has never subjected the domestic population to forced labour for the occupying authority and certainly never subjected the civilian population to military conscription.
The most relevant of the articles of occupation that Israel has been found to breach is the prohibition against the transfer of the civilian population of the occupying power into the occupied territory. It does not matter whether that population is transferred there by the state or individuals and families move voluntarily on their own. It does not even matter whether that population moves to retake ownership of property once held, whether in the Old City or in parts of the West Bank. Under the Fourth Geneva Contention, the general principle is that such movements of peoples are not permitted. This is a key relevant element with respect to a Security Council motion against settlements and a reason for inclusion of this reference.

If the reference to the Fourth Geneva Convention helps clarify the areas of dispute and contention, why is there a reference to the 9 July 2004 advisory opinion of the International Court concerning the construction of a wall (though along most of its length it is a fence) in the Occupied Palestinian Territories? The answer is in the title. The territories are by the fact of the make-up of the existing population “Palestinian.” Hence, under the law, the Court deemed hat the construction of the wall (fence) was contrary to international law.

Israel denied the jurisdiction of the Court on this issue because the occupying power had not consented to its jurisdiction according to the rules of the Court. In so doing, the Israeli case for military necessity was never made and there is no reference in the considerations as to whether the construction of the wall/fence served a military purpose in protecting both the civilian populations of the territory under occupation and/or the territory under the sovereign authority of Israel. Rather, the advisory opinion has been written in the context of the efforts of twentieth century international law to reverse centuries of practice in which settlement activity and annexation were used to determine sovereignty and convert an occupied territory into a legal extension of existing territory under the sovereign authority of the occupying power.

Further, the Court claimed jurisdiction because the General Assembly, which requested the opinion by resolution ES 10/14 of 8 December 2003, was authorized to do so by Article 96, paragraph 1, of the Charter. The Court did not explain why the UN Charter provision trumped the rules of the court requiring consent by both contending parties, except to assert that its opinion was only advisory and not determinate. “The lack of consent by a State to its contentious jurisdiction has no bearing on its jurisdiction to give an advisory opinion.” The Court did attend to the prohibition against the General Assembly acting on its own and not fulfilling the requirement that the Security Council first authorize such a request by determining that the Security Council had failed to fulfill its responsibilities to maintain international peace and security in this case.

The Court ruled in an advisory capacity to the UN General Assembly, which had referred the question with respect to the issue of legality of the activity, that “the construction of the wall being built by Israel, the occupying Power, in the Occupied Palestinian Territory, including in and around East Jerusalem, and its associated régime, are contrary to international law.” With respect to continuing action, “Israel is under an obligation to terminate its breaches of international law; it is under an obligation to cease forthwith the works of construction of the wall being built in the Occupied Palestinian Territory, including in and around East Jerusalem, to dismantle forthwith the structure therein situated, and to repeal or render ineffective forthwith all legislative and regulatory acts relating thereto, in accordance with paragraph 151 of this Opinion.”

Third, with respect to remedial action, the Court ruled that “Israel is under an obligation to make reparation for all damage caused by the construction of the wall in the Occupied Palestinian Territory, including in and around East Jerusalem.” Fourth, with respect to the obligations of other states, “All States are under an obligation not to recognize the illegal situation resulting from the construction of the wall and not to render aid or assistance in maintaining the situation created by such construction; all States parties to the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949 have in addition the obligation, while respecting the United Nations Charter and international law, to ensure compliance by Israel with international humanitarian law as embodied in that Convention.” Fifth, with respect to the continuing obligations of the UN and specifically the Security Council, “The United Nations, and especially the General Assembly and the Security Council, should consider what further action is required to bring to an end the illegal situation resulting from the construction of the wall and the associated régime, taking due account of the present Advisory Opinion.”
The nub of the issue was that the wall was perceived, not primarily as a security measure, though no consideration was given to the extent to which the wall-fence significantly reduced acts of sabotage and terror in Israel proper. Rather, the wall was perceived as a de facto instrument of annexation, especially since the wall included a number of Israeli settlements within an enlarged Israel.

The route of the wall as fixed by the Israeli Government includes within the Closed Area (between the wall and the Green Line) some 80 percent of the settlers living in the Occupied Palestinian Territory. Recalling that the Security Council described Israel’s policy of establishing settlements in that territory as a flagrant violation of the Fourth Geneva Convention, the Court finds that those settlements have been established in breach of international law. It further considers certain fears expressed to it that the route of the wall will prejudge the future frontier between Israel and Palestine; it considers that the construction of the wall and its associated régime create a fait accompli on the ground that could well become permanent, in which case . . . [the construction of the wall] would be tantamount to annexation. The Court notes that the route chosen for the wall gives expression in loco to the illegal measures taken by Israel, and deplored by the Security Council, with regard to Jerusalem and the settlements, and that it entails further alterations to the demographic composition of the Occupied Palestinian Territory. It finds that the construction [of the wall], along with measures taken previously, . . severely impedes the exercise by the Palestinian people of its right to self determination, and is therefore a breach of Israel’s obligation to respect that right.

The inclusion of the reference to the Fourth Geneva Convention and the International Court’s advisory opinion on the wall/fence were not just rhetorical gestures to repeat past claims and determinations, but were directly relevant to the core diplomatic, political and legal debate on settlements and, in particular, whether an enlarged Jerusalem annexed by Israel and other territories with large settlement properties could be traded for land elsewhere without the full consent of the Palestinians.

With the help of Alex Zisman

Inadmissibility of the Acquisition of Territory by Force

The UN Resolution on Israeli Settlements
Part I: Inadmissibility of the Acquisition of Territory by Force

by

Howard Adelman

This series of blogs on the UN Security Council resolution condemning Israel for its continuing expansion of settlements in the West Bank, a resolution passed on Friday, offers an opportunity to investigate the Israeli-Palestinian conflict once again, but in the context of what has taken place over the last fifty years, within the current context in which we are witnessing the largest tectonic shift in the way politics has been conducted over the last century, and in the context of an even larger shift in the modes of communication we use to understand the world and converse about it in the first place. But I begin, not with these large themes, but with one specific motion passed 14-0 with one abstention, that of the United States, in response to the United Nations Security Council condemning Israel for its policy of expanding settlements in the West Bank. My effort is in the tradition of the oldest and almost obsolete mode of communication, a detailed analysis and a hermeneutic for comprehending what is happening and what is at stake within the emotional context of a lament.

For those who like their political analysis to be terse and to the point, that is easy enough. For the last forty years, I have been active, not on the front rows, but as a bit player on the world scene as the drama of the Israeli-Palestinian conflict unfolded even further than it had previously. I was a very active member of the Canadian Professors for Peace in the Middle East (CPPME) and, for one year following the death of Harry Crowe, served as its president. I was part of one of sixteen known Track II efforts of international diplomacy, that is, the use of academics to advance a peace process in a context where either side could participate, but never take responsibility or be accused of taking positions. The politics of deniability was at the heart of Track II diplomacy.

I was also a scholar who had studied refugees in general and the Palestinian refugee situation in detail, not only for scholarly purposes, but as an advisor to a Canadian diplomatic team as Canada gavelled the most important of the five sets of multilateral talks dealing specifically with the Palestinian refugee question. For that set of talks was also about deception as many of the matters that could not be sorted out in the bilateral talks, matters that had nothing to do with the refugee issue per se, were resolved in the refugee talks through the expertise and good offices of Canadian diplomats – issues such as: who spoke for the parties, who could represent them, how they were to be recognized.

During that time, I could be clearly labeled politically. I was an extreme dove, supporting the two-state solution and believing that Israel would have to give back most of the territory captured in the 1967 war, including East Jerusalem. while never expecting Israel to agree to the last part of that position. I was especially surprised when two different Israeli Prime Ministers, one from the right of centre and one from the left of centre, both Ehud Olmert and Ehud Barak, made unprecedented offers of peace that I had never expected, offers that included the provision of turning over East Jerusalem to the Palestinian state. Ehud Olmert in 2007 would go on to insist that unless Israel strongly pursued a two-state solution, the nation risked being compared to South Africa as an apartheid state by the world community. Not risked becoming an apartheid state, as many mistakenly interpreted his statement, but being identified as one.

During the last eight years, I have watched President Barack Obama spend a considerable amount of international and domestic political capital in what his administration perceived as a last chance at forging a two-state solution, only to conclude at the end of the process that the prospect was very dim. Further, publicly he placed almost the total blame for that failure on Prime Minister Benjamin Netanyahu of Israel. Finally, he indicated that in the light of those events, the U.S. would have to re-assess “aspects” of its relationship with Israel. One of those aspects became very clear as the U.S. did not veto but abstained on Resolution 2334 passed 14-0 in the Security Council on Friday just as the United States was on the verge of Donald Trump taking power, the Donald who clearly has a very opposed view on the Israeli-Palestinian conflict and a radically different approach than the one that had been used over the last forty years of my involvement in dealing with international conflicts.

The passing of that resolution on Friday was not an expression even of a last hurrah, but a de facto confession of moral impotence and hypocrisy that has been a deep part of the failure in dealing with the Israeli-Palestinian conflict. It is important to understand why this is so, why the movers of the motion felt so impassioned about it, why the passing of the resolution received such sustained applause and why the Obama administration and why Benjamin Netanyahu had such opposite responses when the motion was passed. The motion was really a pronouncement that the two-state solution was dead. The motion was a claim for rhetorical victory by the losing side, much as the United States in 1972 had claimed victory in extracting itself from the Vietnam War only to watch North Vietnam take over the south three years later. While many applauded and others raged at the passage of the UNSC resolution, I cried. Literally!

This series of blogs is intended to explain my position in great detail. I begin with the dissection of the resolution itself – in this blog dealing with the principle of the inadmissibility of the acquisition of territory by force. In subsequent blogs, I will deal with other issues in international politics, law and ethics – the principles of protection of civilians in times of war, the role of International Courts of Justice in dealing with highly complex international political issues, the demographic character of East Jerusalem and the West Bank, the danger of continuing Israeli settlements imperiling the two-state solution based on the 1967 lines (my italics), the role of past UN resolutions demanding a freeze on settlement activity, including freezing any opportunities for natural growth, the dismantlement of illegal outposts of the settler movement, and the compatibility of all these moves with the vision of the region in which two democratic states, Israel and Palestine, live side by side in peace within secure and recognized borders.

All of these elements of the resolution have to be analyzed within an historical pattern of perception in which all trends on the ground are simply perceived in negative terms because they are looked at strictly from the position of a defense of preserving one version of the two-state solution and the increasingly forlorn hope of the resurrection of a position I have defended and worked on for forty years, but for which there is no longer any realistic prospect. Further, all this is happening in a context in which the conduct of international politics and the even larger context of international political communication are both undergoing a seismic shift.

I have included the full UN Security Council resolution at the end of this blog, though it is preferable if it is read, and repeatedly read, before each step in the analysis. I also must explain that my blogs may be more irregular as much of my time increasingly goes to my new position as a nurse’s aid. Eventually, I will cover all the key problems with the resolution, the reasons for the American abstention and neither supporting nor vetoing the resolution, Donald Trump’s role in its passage, the response of the Israeli government as well as the leading opposition parties in Israel, the analysis of those who pushed the resolution and their rationale, the role of Egypt, the larger context of international diplomacy and communications, and the long term consequences of the resolution on all the relevant parties.

The Inadmissibility of the Acquisition of Territory by Force

On 23 December 2016, the UN Security Council passed UN Resolution 2334 included at the end of this blog. I have added the bolding. The relevant clause discussed in this blog is the first principle cited in the preamble and it reads as follows:

Guided by the purposes and principles of the Charter of the United Nations, and reaffirming, inter alia, the inadmissibility of the acquisition of territory by force.

Is it inadmissible to acquire territories by force?

The principle of the inadmissibility of the acquisition of territories by force is embodied in UNSC Resolution 242 passed on 22 November 1967 in the aftermath of the Six Day War. Chapter VI of the UN Charter calls on member states to settle their disputes by peaceful methods (inquiries, negotiations, mediation, conciliation, arbitration, judicial settlement, etc.) rather than war. In cases of failure to reach agreement, the issue must be referred to the Security Council. Chapter VI allows any state or consortium of states to bring a resolution before the UN Security Council. Note that Chapter VI only allows the UN to pass resolutions that are recommendations; resolutions that are passed, do not bind the member states engaged in a dispute. This is unlike resolutions passed under Chapter VII which are deemed obligatory. Resolutions under Chapter VI are commendatory, particularly since the UN has no enforcement mechanism.

If territories are acquired in a defensive war, not through intentional conquest, why is it inadmissible to hold onto such territories, particularly if the territory is largely being held both for defensive reasons and as bargaining chips in a future peace negotiation? The inadmissibility is directly tied to efforts to settle populations on that territory as distinct from acquiring those territories? What is the definition of acquisition of a territory by a state?

Further, since the Six Day War, Israel concluded two peace agreements, one with Egypt in which Israel gave back all territory captured as part of a full peace agreement. The other was with Jordan, a country which had walked away from any responsibility for the territory it had captured and annexed in the 1948 war. Article 2, paragraph 5 of the UN Charter requires states to refrain from using force “against the territorial integrity or political independence of any state.” Such a clause is only possibly applicable to the Golan Heights which Israel captured from Syria in 1967 and subsequently annexed. However, the bone of contention driving Res. 2334 is the West Bank, including East Jerusalem, captured in the 1967 war and claimed, not by an existing state, but by an aspiring Palestinian state.

It is notable that the supposed universal principle of the inadmissibility of the acquisition of territory by force only refers to Resolution 242 applicable to only one area of the many occupied by one state and taken from another, and then only after Israel acquired further territory following the Six Day War in 1967; it is not applicable to the additional territory Israel captured and annexed in the 1948 war.

Look at many of the other areas of the world to which the principle has not been applied. In 1975, Morocco occupied just over 100,000 square miles of desert flatlands in the Western Sahara (formerly the Spanish Sahara) that was also claimed by Mauritania when Spain gave up administrative control of the territory. The Polisario Front also fought to make the territory an independent self-governing state (the Sahrawi Arab Democratic Republic), even though the population totalled only about half a million. In the war that ensued, the Polisario Front was left with at most a third of the territory, while Morocco controlled the rest, including the whole Atlantic Ocean coast line, all in defiance of a 1975 decision by the International Court of Justice that upheld the right to self-determination of the people of the Western Sahara.

In contrast, the U.S. politically recognized Morocco’s right to the territory even when, subsequently, Morocco and the Polisario National Front agreed that a referendum would be held in which the people of the Western Sahara could determine their fate. That referendum has never been held, though periodically there have been diplomatic efforts to resolve the impasse. Under Trump, it is highly unlikely that the U.S. will bring pressure on Morocco and King Mohammed VI to sort out the problem of voter eligibility and the mode of conducting the referendum, especially given the access Morocco provides U.S. military forces to Atlantic ports and aircraft refueling. Thus, though the U.S. launched a war against Iraq in 1991 that could theoretically have been on the principle of the inadmissibility of conquering the territory of another state when Iraq invaded Kuwait, the U.S. used the Moroccan conquered territory as part of its war effort. In current U.S. policy stretching back to those years, including both Bush and Clinton administrations, the U.S. does “not automatically reject a territorial transfer brought [about] by force.”

The question arises: why is the U.S. willing to exempt Morocco from acquiring territory by force, especially given three factors – Morocco, unlike Israel, is an autocratic monarchy not a democracy; Morocco engages in extensive human rights abuses; finally, like the Israeli-Palestinian conflict, the tension is a source of instability in both areas – the Maghreb and in the former territory of the Palestinian mandate. Yet the Obama administration never challenged Morocco. President Obama even lauded the monarchy for its efforts at “deepening democracy” and “promoting economic progress.” Trump’s foreign policy will undoubtedly stress even more favouritism towards allies rather than rights of self-determination and the inadmissibility of the conquest of territory by force.

However, the key question raised in Friday’s vote was the policy of the UN. The UNSC this year renewed its peacekeeping mission in the Western Sahara (MINURSO) that was also passed on a Friday (almost eight months earlier on 29 April). In spite of a much greater UN presence there as a peacemaker than in Israel-Palestine, and perhaps because of that and the risks a more activist diplomatic stance might make on the security of its peacekeepers, the UN has not placed any significant pressure on Morocco. It has not even passed any resolutions on Morocco to cease and desist from its policies of expulsion in the area. When Ban Ki-moon visited the territory this past year and even called it “occupied,” a diplomatic firestorm ensued.

The original Res. 379 of 2 November 1975 simply urged the contending parties to desist from unilateral actions and instructed the Secretary General to report back. The stronger 6 November 1975 Resolution 380 deplored a march held by Morocco in the territory, called on Morocco to withdraw its troops and asked the contending parties to cooperate with the UN. The very recent 29 April 2016 Morocco resolution continued the pattern of its predecessors, including Res. 2218 of the previous year, renewing the peacekeeping mandate for an additional year while endorsing the efforts of UN envoys to reconcile the position of the parties and congratulating both parties for their positive efforts to reach a compromise. Nothing was ever said about the inadmissibility of the acquisition of territory by force.

The full resolution 2218 on the Western Sahara conflict can be found at the end of this blog.

This was not the case when Indonesia invaded East Timor, also in 1975, and the UNSC passed resolution 384 on 22 December 1975. Though that very much stronger resolution required all states to respect the territorial integrity of East Timor and the inalienable right to self-determination, the resolution never invoked the principle of the inadmissibility of the acquisition of territory by force. What forced the Indonesian withdrawal was the weakened state of the Indonesian economy and the active intervention of the Australians, propelled in good part by their oil interests in the area.

Only in the case of Kuwait, an independent state and full member of the UN, did the UN Security Council pass a resolution (660), but it authorized member states to take military action to resist and overturn the conquest. The members passed that resolution, not under the principle of the inadmissibility for the acquisition of territory by force, but under a much harsher Chapter VII principle of maintaining peace and security in the region. The resolution endorsed military intervention.

When North Vietnam conquered South Vietnam in 1975, no resolution akin to the anti-Indonesian one was passed. In no other case that I can find has there been the invocation of the principle of the inadmissibility of the acquisition of territory by force of arms.

Though the UN and other states put pressure on China to accede to the independence of Mongolia in 1961, the Chinese military takeover of Tibet in 1950 and its repression of the Tibetan uprising in 1959 never involved any invocation of the principle of the inadmissibility of the conquest of territory by force. At best, the General Assembly of the UN periodically took up the question of Tibet, but even China’s strongest critics never invoked the principle of the inadmissibility of the conquest of territory by force. Perhaps some resolutions had been morally stronger – charging China with acts of genocide in the fifties and insisting that Tibet had previously been an independent state, but the principle of the inadmissibility of the conquest of territory was not invoked.

The principle is applied exclusively to Israel. Further, the resolution applies only to Israel following the 1967 war.

There are many other cases. Do we need to add the supine character of the UN when it came to the Russian takeover of Crimea, Moscow’s coercive interventions in eastern Ukraine, never mind Russia/s military invasion of Georgia in 2008 ostensibly on behalf of self-determination in South Ossetia and Abkhazia. A United Nations member was being dismembered by force, and the UN was impotent to act.

In the case of Ethiopia’s two-year war with Eritrea which began on 6 May of 1998, the two parties reached a peace agreement. That agreement provided for an arbitration commission to determine borders. That commission found in favour of Eritrea and against the claims of Ethiopia that most of the territory of the border region it occupied belonged to Ethiopia, specifically the hundreds of towns and villages along the border in which the Ethiopian army destroyed the buildings and infrastructure in the area occupied, particularly that of the border towns of Senafe and Tsorona- Zalembessa. The UNSC proved unable to enforce a ruling by an independent boundary commission awarding the bulk of disputed border territory to Eritrea.

Ethiopia ignored the findings and continued to occupy the border territory and integrate it into the territory of Ethiopia. This was another example of a seizure of territory by force never condemned by the UN Security Council as a breach of the principle of the inadmissibility of the acquisition of territory by force. Instead, based on a report of the UNSC Monitoring Group, the UN reprimanded Eritrea for violating the UN resolution by importing weapons and ammunition from eastern Sudan and claimed that it had evidence that Eritrea supported the Ogaden National Liberation Front, the Tigray People’s Democratic Movement and Ginbot Seven. Eritrea had also been condemned by a human rights commission for arbitrary arrests, torture, rape, enslavement, murder and reprisals against family members of dissidents inside the country. There is no equivalent report on human rights abuses in the West Bank and Gaza except by Israel.

When Turkish forces took over Northern Cyprus and continued to administer the territory as if it is an extension of Turkey rather than part of the territory of an independent state and member of the UN, it did so under the pretext that Turkey had no jurisdiction or control over the territory of the Turkish Republic of Northern Cyprus which Turkey, but no other country, recognized as an independent de facto state. Turkey claimed that Northern Cyprus was not a “subordinate local administration.” The European Court of Human Rights had already previously ruled that Turkey exercised effective control over northern Cyprus. Nevertheless, the UN Security Council had never ruled that Turkey’s effective control was an example of the inadmissibility of the acquisition of territory through force.

Comparative historical examinations of other situations as well as of the case of Israel before 1967 clearly points to the fact that the Security Council has been using the language of a general principle to apply to one and only one case, thereby undermining that principle as a norm of international conduct and reinforcing the position that the acquisition of territory through force is, in fact, the accepted practice and not its obverse.

Next Blog: The UNSC Res. 2334 Part II: Occupation and Acquisition:
Legal Obligations and Responsibilities Under the Fourth Geneva Convention

Appendix 1:

Security Council Resolution 2334
Reaffirming its relevant resolutions, including resolutions 242 (1967), 338 (1973), 446 (1979), 452 (1979), 465 (1980), 476 (1980), 478 (1980), 1397 (2002), 1515 (2003), and 1850 (2008),
Guided by the purposes and principles of the Charter of the United Nations, and reaffirming, inter alia, the inadmissibility of the acquisition of territory by force,
Reaffirming the obligation of Israel, the occupying Power, to abide scrupulously by its legal obligations and responsibilities under the Fourth Geneva Convention relative to the Protection of Civilian Persons in Time of War, of 12 August 1949, and recalling the advisory opinion rendered on 9 July 2004 by the International Court of Justice,
Condemning all measures aimed at altering the demographic composition, character and status of the Palestinian Territory occupied since 1967, including East Jerusalem, including, inter alia, the construction and expansion of settlements, transfer of Israeli settlers, confiscation of land, demolition of homes and displacement of Palestinian civilians, in violation of international humanitarian law and relevant resolutions,
Expressing grave concern that continuing Israeli settlement activities are dangerously imperilling the viability of the two-State solution based on the 1967 lines,
Recalling the obligation under the Quartet Roadmap, endorsed by its resolution 1515 (2003), for a freeze by Israel of all settlement activity, including “natural growth”, and the dismantlement of all settlement outposts erected since March 2001,
Recalling also the obligation under the Quartet roadmap for the Palestinian Authority Security Forces to maintain effective operations aimed at confronting all those engaged in terror and dismantling terrorist capabilities, including the confiscation of illegal weapons,
Condemning all acts of violence against civilians, including acts of terror, as well as all acts of provocation, incitement and destruction,
Reiterating its vision of a region where two democratic States, Israel and Palestine, live side by side in peace within secure and recognized borders,
Stressing that the status quo is not sustainable and that significant steps, consistent with the transition contemplated by prior agreements, are urgently needed in order to (i) stabilize the situation and to reverse negative trends on the ground, which are steadily eroding the two-State solution and entrenching a one-State reality, and (ii) to create the conditions for successful final status negotiations and for advancing the two-State solution through those negotiations and on the ground,
1. Reaffirms that the establishment by Israel of settlements in the Palestinian territory occupied since 1967, including East Jerusalem, has no legal validity and constitutes a flagrant violation under international law and a major obstacle to the achievement of the two-State solution and a just, lasting and comprehensive peace;
2. Reiterates its demand that Israel immediately and completely cease all settlement activities in the occupied Palestinian territory, including East Jerusalem, and that it fully respect all of its legal obligations in this regard;
3. Underlines that it will not recognize any changes to the 4 June 1967 lines, including with regard to Jerusalem, other than those agreed by the parties through negotiations;
4. Stresses that the cessation of all Israeli settlement activities is essential for salvaging the two-State solution, and calls for affirmative steps to be taken immediately to reverse the negative trends on the ground that are imperilling the two-State solution;
5. Calls upon all States, bearing in mind paragraph 1 of this resolution, to distinguish, in their relevant dealings, between the territory of the State of Israel and the territories occupied since 1967;
6. Calls for immediate steps to prevent all acts of violence against civilians, including acts of terror, as well as all acts of provocation and destruction, calls for accountability in this regard, and calls for compliance with obligations under international law for the strengthening of ongoing efforts to combat terrorism, including through existing security coordination, and to clearly condemn all acts of terrorism;
7. Calls upon both parties to act on the basis of international law, including international humanitarian law, and their previous agreements and obligations, to observe calm and restraint, and to refrain from provocative actions, incitement and inflammatory rhetoric, with the aim, inter alia, of de-escalating the situation on the ground, rebuilding trust and confidence, demonstrating through policies and actions a genuine commitment to the two-State solution, and creating the conditions necessary for promoting peace;
8. Calls upon all parties to continue, in the interest of the promotion of peace and security, to exert collective efforts to launch credible negotiations on all final status issues in the Middle East peace process and within the time frame specified by the Quartet in its statement of 21 September 2010;
9. Urges in this regard the intensification and acceleration of international and regional diplomatic efforts and support aimed at achieving, without delay a comprehensive, just and lasting peace in the Middle East on the basis of the relevant United Nations resolutions, the Madrid terms of reference, including the principle of land for peace, the Arab Peace Initiative and the Quartet Roadmap and an end to the Israeli occupation that began in 1967; and underscores in this regard the importance of the ongoing efforts to advance the Arab Peace Initiative, the initiative of France for the convening of an international peace conference, the recent efforts of the Quartet, as well as the efforts of Egypt and the Russian Federation;
10. Confirms its determination to support the parties throughout the negotiations and in the implementation of an agreement;
11. Reaffirms its determination to examine practical ways and means to secure the full implementation of its relevant resolutions;
12. Requests the Secretary-General to report to the Council every three months on the implementation of the provisions of the present resolution;
13. Decides to remain seized of the matter.

Appendix 2: The UN Security Council on the Western Sahara:

“The Security Council,
“Recalling and reaffirming all its previous resolutions on Western Sahara,
“Reaffirming its strong support for the efforts of the Secretary-General and his Personal Envoy to implement resolutions 1754 (2007), 1783 (2007), 1813 (2008), 1871 (2009), 1920 (2010), 1979 (2011), 2044 (2012), 2099 (2013), and 2152 (2014),
“Reaffirming its commitment to assist the parties to achieve a just, lasting, and mutually acceptable political solution, which will provide for the self-determination of the people of Western Sahara in the context of arrangements consistent with the principles and purposes of the Charter of the United Nations, and noting the role and responsibilities of the parties in this respect,
“Reiterating its call upon the parties and the neighbouring states to cooperate more fully with the United Nations and with each other and to strengthen their involvement to end the current impasse and to achieve progress towards a political solution,
“Recognizing that achieving a political solution to this long-standing dispute and enhanced cooperation between the Member States of the Maghreb Arab Union would contribute to stability and security in the Sahel region,
“Welcoming the efforts of the Secretary-General to keep all peacekeeping operations, including the United Nations Mission for the Referendum in Western Sahara (MINURSO), under close review and reiterating the need for the Council to pursue a rigorous, strategic approach to peacekeeping deployments, and effective management of resources,
“Expressing concern about the violations of existing agreements, and calling on the parties to respect their relevant obligations,
“Taking note of the Moroccan proposal presented on 11 April 2007 to the Secretary-General and welcoming serious and credible Moroccan efforts to move the process forward towards resolution; also taking note of the Polisario Front proposal presented 10 April 2007 to the Secretary-General,
“Encouraging in this context, the parties to demonstrate further political will towards a solution including by expanding upon their discussion of each other’s proposals,
“Taking note of the four rounds of negotiations held under the auspices of the Secretary-General and welcoming the commitment of the parties to continue the negotiations process,
“Encouraging the parties to continue cooperating with the Office of the High Commissioner for Refugees in implementing the January 2012 updated Plan of Action on Confidence Building Measures,
“Stressing the importance of improving the human rights situation in Western Sahara and the Tindouf camps, and encouraging the parties to work with the international community to develop and implement independent and credible measures to ensure full respect for human rights, bearing in mind their relevant obligations under international law,
“Encouraging the parties to continue in their respective efforts to enhance the promotion and protection of human rights in Western Sahara and the Tindouf refugee camps, including the freedoms of expression and association,
“Recognizing and welcoming, in this regard, the recent steps and initiatives taken by Morocco to strengthen the National Council on Human Rights Commissions operating in Dakhla and Laayoune, and Morocco’s ongoing interaction with Special Procedures of the United Nations Human Rights Council, including those planned for 2015, as well as the planned visit of the Office of the High Commissioner for Human Rights (OHCHR) in 2015,
“Also welcoming the implementation of the enhanced refugee protection programme developed by the Office of the United Nations High Commissioner for Refugees in coordination with the Polisario Front, which includes refugee and human rights training and awareness initiatives,
“Reiterating its request for consideration of a refugee registration in the Tindouf refugee camps and inviting efforts in this regard,
“Welcoming the commitment of the parties to continue the process of negotiations through the United Nations-sponsored talks,
“Recognizing that the consolidation of the status quo is not acceptable, and noting further that progress in the negotiations is essential in order to improve the quality of life of the people of Western Sahara in all its aspects,
“Affirming full support for the Secretary-General’s Personal Envoy for Western Sahara Ambassador Christopher Ross and his work in facilitating negotiations between the parties, and, welcoming to that effect his recent initiatives and ongoing consultations with the parties and neighbouring states,
“Affirming full support for the Special Representative of the Secretary-General for Western Sahara and Head of MINURSO Kim Bolduc,
“Having considered the report of the Secretary-General of 13 April 2015 (S/2015/246),
“1. Decides to extend the mandate of MINURSO until 30 April 2016;
“2. Reaffirms the need for full respect of the military agreements reached with MINURSO with regard to the ceasefire and calls on the parties to adhere fully to those agreements;
“3. Calls upon all parties to cooperate fully with the operations of MINURSO, including its free interaction with all interlocutors, and to take the necessary steps to ensure the security of as well as unhindered movement and immediate access for the United Nations and associated personnel in carrying out their mandate, in conformity with existing agreements;
“4. Welcomes the parties’ commitment to continue the process of preparation for a fifth round of negotiations, and recalls its endorsement of the recommendation in the report of 14 April 2008 (S/2008/251) that realism and a spirit of compromise by the parties are essential to achieve progress in negotiations;
“5. Calls upon the parties to continue to show political will and work in an atmosphere propitious for dialogue in order to enter into a more intensive and substantive phase of negotiations, thus ensuring implementation of resolutions 1754 (2007), 1783 (2007), 1813 (2008), 1871 (2009), 1920 (2010), 1979 (2011), 2044 (2012), 2099 (2013), and 2152 (2014), and the success of negotiations;
“6. Affirms its full support for the commitment of the Secretary-General and his Personal Envoy towards a solution to the question of Western Sahara in this context and calls for renewed meetings and strengthening of contacts;
“7. Calls upon the parties to continue negotiations under the auspices of the Secretary-General without preconditions and in good faith, taking into account the efforts made since 2006 and subsequent developments, with a view to achieving a just, lasting, and mutually acceptable political solution, which will provide for the self-determination of the people of Western Sahara in the context of arrangements consistent with the principles and purposes of the Charter of the United Nations, and noting the role and responsibilities of the parties in this respect;
“8. Invites Member States to lend appropriate assistance to these talks;
“9. Requests the Secretary-General to brief the Security Council on a regular basis, and at least twice a year, on the status and progress of these negotiations under his auspices, on the implementation of this resolution, challenges to MINURSO’s operations and steps taken to address them, expresses its intention to meet to receive and discuss his briefings and in this regard, and further requests the Secretary-General to provide a report on the situation in Western Sahara well before the end of the mandate period;
“10. Welcomes the commitment of the parties and the neighbouring states to hold periodic meetings with the Office of the United Nations High Commissioner for Refugees to review and, where possible, expand confidence-building measures;
“11. Urges Member States to provide voluntary contributions to fund confidence-building measures agreed upon between the parties, including those that allow for visits between separated family members, as well as food programmes to ensure that the humanitarian needs of refugees are adequately addressed;
“12. Requests the Secretary-General to continue to take the necessary measures to ensure full compliance in MINURSO with the United Nations zero-tolerance policy on sexual exploitation and abuse and to keep the Council informed, and urges troop-contributing countries to take appropriate preventive action including predeployment awareness training, and other action to ensure full accountability in cases of such conduct involving their personnel;
“13. Decides to remain seized of the matter.”

Joseph

Joseph – Parsha Vayeishev (Genesis 37)

by

Howard Adelman

This parsha is but the first of four (Miketz, Vayigash and Vayeh as well) telling the story of Joseph, a story which Andrew Lloyd Weber told in one musical evening in Joseph and the Amazing Technicolour Dreamcoat. That was not quite the interpretation of the story I would tell. My version is told in the shadow of Jacob wrestling with the stranger, perhaps the same stranger who would redirect Joseph’s search for his brothers from Shechem to Dotham. It is also the story told against the much fainter shadow of the treatment of Dinah, someone also effectively cast out by her brothers. And it is a story that, after this parsha, will be interrupted by the tale of Tamar and Judah.

“This, then, is the line of Jacob,” begins the parsha. But verse 2 which effectively ends the period of the three patriarchs, though Jacob would live many more years after Joseph was sold off to slavery in Egypt, does not, in fact, tell us about the entire lineage of Jacob, only of his twelve sons, including the late-born Benjamin who arrived after Jacob’s return from his uncle Laban. For in addition to the twelve sons that headed the twelve tribes of Israel, there was Dinah. Dinah was the seventh child of Leah after she gave birth to six sons. She was still young, probably a teenager, when the family returned and likely the youngest sibling except for Benjamin. She was probably just a year or two younger than Joseph who was seventeen when this week’s parsha begins.

Further, we are told that Jacob favoured Joseph. Not Benjamin who was indeed the youngest, but also the one Jacob may have partially resented for his beloved wife, Rachel, died in giving birth to him. Not Dinah who was about the same age as Joseph and Jacob’s only daughter. And why not? Don’t fathers usually dote on their daughters? Is it not strange that Jacob does not?

Dinah is clearly adventurous and perhaps a fun-loving teenager. Perhaps she was in search of a father figure. In Shechem, she goes out “to visit the women of the region.” Curiousity? To make friends her own age and get away from the stodgy old adults she felt suffocated her? Or, perhaps, even to get into some hanky-panky, where visiting the women of the region becomes an association with prostitutes rather than the wives and daughters of the local inhabitants. She goes out alone, unchaperoned. That was both dangerous and certainly contrary to standard practice. “Girls out alone are looking for trouble.” So the saying goes, however untrue.

Further, in the next portion, Tamar as a widow plays the role of a prostitute in order to get her father-in-law to sleep with her so she can conceive a child in his line. She does it when he went off to shear his sheep. Tamar is a widow. Judah is a widower. Thus, there is nothing wrong with their having sex. Tamar does not engage in intercourse for money, for bargaining for an ewe in return for sexual favours was a ruse, not the intention of making herself available. The only point here is that Dinah was never an adulteress – adultery was strictly forbidden. Nor was she a prostitute simply for “wanting to have some fun.” She would only have been a prostitute if she exchanged her sexual favours for money.

Dinah finds the “fun” she is looking for in Shechem. The spoiled local prince, used to having his way, espies her. Presumably he tries to woo her. Perhaps she resists. He rapes her. Or did he? The text reads that he took Dinah by force. But the precise Hebrew is that Shechem “saw her, and took her and lay with her by force.” (34:2) The force follows taking (as in taking a bride) and lying with her – וַיִּקַּח אֹתָהּ וַיִּשְׁכַּב אֹתָהּ וַיְעַנֶּהָ. The text does not say he forcefully took her. Further, the root,עָנָה , does not suggest coercion, but a response, a reaction, reciprocity and not that Dinah was taken by force. It suggests that she possibly responded and acceded to Shechem’s seduction.

Shechem was smitten. He not only wanted Dinah sexually. He fell in love with her and wanted to wed. He asked his father, Hamor, to pay the bridal price. Jacob heard that his daughter had been defiled, meaning, perhaps only that she had lost her virginity and not that she had been raped, but she had lost it to a man who was not a member of the tribe. To be defiled is something different than being a prostitute. This is explicitly made clear in reference to the High Priest. He (the high priest) “shall take a wife in her virginity. A widow, or one divorced, or a woman who has been defiled, or a harlot, these he shall not marry; but he shall take to wife a virgin of his own people, that he may not profane his children among his people; for I am the Lord who sanctifies him.” (Leviticus 20:13) Jacob learns that his daughter had lost her virginity to a man who was not a member of the tribe, presumably at the same time as he learned that the supposed “rapist” wanted to marry his daughter, a situation which usually allowed a perpetrator of rape to get off free of any reprimand.

Jacob, ever the cautious calculator, bides his time until his sons return from their shepherding duties. He is then told that the brothers were incensed. Perhaps they adored their little sister. Perhaps they felt guilty that she had been allowed to go off visiting by herself. Perhaps they had adopted a new moral dictum that rape was never forgivable, even if the rapist offered to marry the girl. After all, the text says that Shechem “had committed an outrage in Israel (my italics) by lying with Jacob’s daughter – a thing not to be done.” (Genesis 34:7) The new moral seemed to state that not only is rape a crime, but even sleeping with a shegetz is a crime, and then not just for a High Priest. A shegetz, from the Hebrew, sheketz, applies its connotations of detestable and abominable to non-Jewish young men.

For this transgression, which Shechem and his father probably did not know, not only Shechem, but his father and ALL the males of the tribe were slain. Not only slain. But murdered en mass after they had welcomed the Israelites to share their land, their women and their resources. The men of Shechem even went further. They agreed to be circumcised, but the text does not say that they agreed to adopt the God of Israel as their God. Hamor and Shechem convinced all the men of the city to go along with the deal. And when they were in terrible pain recovering from an adult circumcision, Simeon and Levi, two of Jacob’s sons, full brothers of Dinah, “took each his sword, came upon the city unmolested, and slew all the males.” (34:25) Even worse, the rest of Jacob’s sons, presumably including Joseph, unless the reference was only to full brothers, plundered the town, took all the women and children captive and appropriated all the herds and property.

Jacob was bothered by the action, not because it was heinous, but because his tribe was still relatively small and the local population could unite against the Israelites and destroy them. Jacob did not think of Dinah’s humiliation, which could in part have been redeemed if he had allowed her to marry Shechem. He did not say anything about the deceit and the horror of the crime his sons had committed. His only thought was to remonstrate his sons for putting them all in danger. Jacob had not changed character one whit since he had wrestled with the stranger. And then the brothers offered their lame excuse: “Should our sister be treated like a whore?” (v. 31) even though Hamor’s and Shechem’s offer made it unequivocally clear that she would not be treated like a prostitute. Further, there was never any question until they utter this phrase that their sister had offered herself for money. She was at most taken by force, but more likely cooperated in the seduction.

The plunder and looting never bothered Jacob. Uncalculated murder, mayhem and warfare did. On his death bed, after he had remonstrated Reuben for sleeping with his concubine, Reuben, “unstable as water,” was the one who disgraced his father, the same Reuben who prevented his brothers from murdering Joseph with the intention of saving him before he was sold to slave traders. Jacob did not seem to know or understand who Reuben was and the sense of responsibility he carried. Simeon and Levi were chastised for using weapons as tools of lawlessness and allowing anger to determine their actions, including the murder of men. Those two sons were cursed and were to be “scattered in Israel.” (Genesis 49: 4-6)

What does the Dinah tale have to do with the Joseph story that virtually monopolizes the Torah portion this week and for a month after? I will not repeat the full story. It is all-too-familiar. What I want to first do is set key elements of the story against the backdrop of the “rape” of Dinah.

First, Joseph is portrayed as a snitch. He tells his father that the four sons of his concubines, Bilhah and Zilpah, were engaged in evil, but we do not know what that evil was. Was Joseph, so much an expression of his creative imagination rather than rational calculation, making this accusation up? He is portrayed as a dreamer, not an exaggerator. But even then, was he not a whistle blower? There is no reason offered why he had to inform his father of his brothers’ behavior. But he is not quite the whistle blower, though he took enormous risks in informing on his brothers. Perhaps “snitch” is more accurate. We also learn that Joseph’s brothers despised him, presumably because he was his father’s favourite. They also treated him uncivilly, but this might have been more because he was a dandy and wore a coat of many colours. As Jacob was to Esau, so Joseph was to all his brothers. But also a snitch. A dandy. And his father’s favourite. We know where the detestation and rude treatment of Joseph by his brothers, however itself detestable, came from.

The brothers’ treatment of Joseph was adumbrated in their treatment of Dinah. Though the deplorable act of her two natural brothers killing all the men of Shechem and Haror’s town enormously overshadowed their treatment of Dinah, the way they thought of, discussed and referred to Dinah was horrific, though not nearly as great a crime as mass murder. Admittedly, they did not engage in honour killing just as they decided to fake Joseph’s death and instead sold him into slavery. The fact remains, Dinah, like Joseph, also had been terribly mistreated. Not only was she called a whore by her brothers, presumably attempting to defend their own honour more than hers. They never asked what Dinah wanted. They never gave any consideration of her feelings, her wishes, her desires or her persona.

They were not nice guys. And they became even worse.

There was a big difference between Dinah and Joseph. Dinah was an adventurer. Joseph was a dreamer, a dreamer who easily surpassed the reputation of his father’s. But Joseph as a youth lacked his father’s diplomacy. Tell it as it is without conniving or manipulation. Hence his dream of the sheaves in which the sheaves of his brothers bow down to those of Joseph. Joseph even had the gall to tell his brothers his dream. They despised the arrogant snitch and dandy even more. Even more troubling, he had a second dream of eleven stars, the sun and the moon all bowing down to him no longer disguised as a sheaf of wheat. Even his father and mother would eventually bow down to him. Can you imagine Jacob dreaming not only that Esau prostrated himself before him, but so did Isaac and Rebecca? That suggests how outlandish and inconsiderate Joseph’s behaviour was in telling both his father and his brothers of his dream.

Israel, not called Jacob here, sent Joseph to go out and look at how his brothers were taking care of his father’s sheep in Shechem. We know that something momentous is about to happen when Joseph responds to his father’s request with the phrase, “Hineni,” here I am. Jacob then adds: יד וַיֹּאמֶר לוֹ, לֶךְ-נָא רְאֵה אֶת-שְׁלוֹם אַחֶיךָ וְאֶת-שְׁלוֹם הַצֹּאן, וַהֲשִׁבֵנִי, דָּבָר “Go now, see whether it is well with thy brethren, and well with the flock.” His first instruction is to report back on how they were fulfilling their responsibilities. Perhaps, remembering his favourite son’s reputation as a snitch, his follow up instruction, as if it was a second thought, was to report back also on the well-being of his brothers.

Was Joseph responding like his great-grandfather, Abraham, and stating that he was offering himself to the other, God in Abraham’s case, in complete dedication and commitment? If so, why would he have a dream where the sun, the symbol of his father, prostrates before him? The daylight of reason and calculation bows down to the night of dreams and fantasies, whereas, in the case of his mother, were she alive, the light of the night would bow down to the bright shine of the day. Joseph stood before Jacob in a very different way than Abraham stood before his God.

When Joseph went out to report on his brothers – one might ask why he was not out in the fields tending the sheep himself – he meets a stranger. He does not wrestle with him until dawn. Instead, the stranger – the man – asks him what or whom he was looking for since Joseph seemed lost. Not lost in the sense of not knowing where he was. But lost in the sense of bewildered when he could not find his brothers where they were supposed to be. They were not in the place where Abraham offered his sacrifice, where Joseph’s half-brothers killed all the adult males and conquered the city, but in a city nearby occupied by the Habiru who did not attack the Israelites, as Jacob feared, when the latter ravished Shechem, for the Habiru had always stood in rebellion against the overlordship of Shechem and his father.

Did Jacob send Joseph out to espy on his brothers because he feared their insensitivity to others and was worried that his sons might arouse the local populace because they resented the Israelites feeding their flocks on the rich pastures not rightfully belonging to them? For when Joseph told the stranger of his mission, the stranger told him that his brothers were not in Shechem, but were now in Dothan (דתין or דתן). They were not where they were supposed to be, but in the lush vale in Dothan. They were halfway between Shechem, now a holy place conquered by the Israelites, and Megiddo, that ancient fortress. Dothan was halfway between the symbol of both betrayal and promise and the fortress standing for the rule of might. Did its inhabitants fear the Israelites who had a powerful god or were they eager to prove they were bolder and stronger than these recent intruders who were now trespassing on their pasture land?

The brothers spied Joseph coming after them. They knew Joseph was a snitch and they were not where they had been told to be. So they conspired to kill their brother whom they always resented. Why then? Why there? Why were the brothers not in Shechem? Did it matter that they were not? Shechem is the first city Abraham entered when he reached the land of Canaan (Genesis 12:6) and where God proclaimed his promise to give the land to Abraham and his descendants. Jacob, when he returned from his uncle Laban in Padan-Aram, stopped in Shechem. Shechem is where he wrestled with the stranger or the angel. Shechem is where Jacob was renamed Israel. Shechem is the place where the rape or seduction of Dinah took place. So Shechem is both a very holy place as well as a place of defilement.

דת (dat), the first letters of Dothan, is a feminine noun. It means edict. It means law. It also means elect. Joseph was elected to lead his brothers. Israelites were elected to be a light unto the nations. “Dat” also refers to both a doorway and well, an entry point and a rich source of the abundance of the earth. It is the turning point where the Israelites will fulfill the promise made to Abraham and go down to Egypt, to the wealth of Egypt, where they would eventually become slaves and then gain their freedom and acquire their Torah and book of laws in their return to Canaan. Jacob was placed in the pit by his brothers when Reuben, the eldest, told his younger siblings not to get blood on their hands, but leave Jacob to be killed by the wild animals thereabout, though Reuben, carrying the responsibilities of the eldest, planned to come back and rescue Joseph.

The land, that will be Israel, was never forgotten as a promise. Although his brothers did not kill him and sold him as a slave to a group of Ishmaelite traders on route to Egypt, Joseph never forgot the land that he was promised to inherit and rule and, in his will, instructed that his bones be carried back and buried in that land. (Genesis 50:25) And it would be at Shechem that God repeated the promise and ordered Israel to return, both blessing and cursing the narrative of the nation’s tribulations. So Joshua split the nation, just as Jacob had once done, placing half in front of Mount Gerizim and half before Mount Ebal to confirm that, on the one hand, they would be blessed if they obeyed the law, and the other half to confirm that they would be cursed if they did not. Thus, Shechem, which was such a symbol of treachery and betrayal to both the goyim and by Jacob’s sons even their own father, was the place that finally and ironically would lead a cluster of rivalling tribes of one family into becoming a nation under the rule of law. But the Israelites were not yet ready. They had to be sent down to Egypt via Gothan for 400 years.

What role did Joseph’s dreams play in that trajectory and what role did the earlier treatment of Dinah? Though Joseph is carried off to Egypt in slavery, the crux of the narrative turns around the polarity of loyalty versus treachery. Shechem was where the sons of Joseph, Ephraim and Manasseh, buried the bones of their father on the very spot that Jacob bought initially from the family of Hamor. And Shechem became not only a symbol of both loyalty and betrayal, but a city that would stand for the rule of law. Further, it became, like Philadelphia, a city of brotherly love, a city of refuge, a city to which refugees from tyranny and the miscarriages of justice could flee and receive protection. However, it was at Gothan that Joseph was cast out as a refugee, placed into slavery and taken to Egypt.

In the process, a version of the trick that Jacob played on his father, Isaac, would be played on him. But instead of Jacob wearing the skin of a goat on his arm to appear hairy like Esau, his sons had soaked Joseph’s many-coloured coat in goat’s blood, suggesting that he was killed and eaten by wild animals. Dinah will disappear from history, the fate of an adventurer taking risks in an unknown land. Joseph will loom even larger in history than even Jacob as he becomes the vehicle for saving both the Egyptians and the Israelites from famine. For Jacob bends and uses his fantasies and dreams rather than deceit and manipulation to assume and wield power. Joseph is the progenitor of a very different kind of politics than the politics of might is right or the calculating politics of a Kissinger (Jacob) who uses positions of power to advance self-interests. Joseph will lead because he is a visionary of a global political landscape where helping one’s own and helping the other are synergistic and not oppositional. Joseph, the hero of the story, stands in contrast to Dinah who was treated as a prostitute by her brothers.

But it is well not to forget that Jacob was a whistleblower or a snitch, with all the problems of discerning whether what is leaked is false news or profound revelations.

With the help of Alex Zysman

Genesis Chapter 37 בְּרֵאשִׁית
א וַיֵּשֶׁב יַעֲקֹב, בְּאֶרֶץ מְגוּרֵי אָבִיו–בְּאֶרֶץ, כְּנָעַן. 1 And Jacob dwelt in the land of his father’s sojournings, in the land of Canaan.
ב אֵלֶּה תֹּלְדוֹת יַעֲקֹב, יוֹסֵף בֶּן-שְׁבַע-עֶשְׂרֵה שָׁנָה הָיָה רֹעֶה אֶת-אֶחָיו בַּצֹּאן, וְהוּא נַעַר אֶת-בְּנֵי בִלְהָה וְאֶת-בְּנֵי זִלְפָּה, נְשֵׁי אָבִיו; וַיָּבֵא יוֹסֵף אֶת-דִּבָּתָם רָעָה, אֶל-אֲבִיהֶם. 2 These are the generations of Jacob. Joseph, being seventeen years old, was feeding the flock with his brethren, being still a lad even with the sons of Bilhah, and with the sons of Zilpah, his father’s wives; and Joseph brought evil report of them unto their father.
ג וְיִשְׂרָאֵל, אָהַב אֶת-יוֹסֵף מִכָּל-בָּנָיו–כִּי-בֶן-זְקֻנִים הוּא, לוֹ; וְעָשָׂה לוֹ, כְּתֹנֶת פַּסִּים. 3 Now Israel loved Joseph more than all his children, because he was the son of his old age; and he made him a coat of many colours.
ד וַיִּרְאוּ אֶחָיו, כִּי-אֹתוֹ אָהַב אֲבִיהֶם מִכָּל-אֶחָיו–וַיִּשְׂנְאוּ, אֹתוֹ; וְלֹא יָכְלוּ, דַּבְּרוֹ לְשָׁלֹם. 4 And when his brethren saw that their father loved him more than all his brethren, they hated him, and could not speak peaceably unto him.
ה וַיַּחֲלֹם יוֹסֵף חֲלוֹם, וַיַּגֵּד לְאֶחָיו; וַיּוֹסִפוּ עוֹד, שְׂנֹא אֹתוֹ. 5 And Joseph dreamed a dream, and he told it to his brethren; and they hated him yet the more.
ו וַיֹּאמֶר, אֲלֵיהֶם: שִׁמְעוּ-נָא, הַחֲלוֹם הַזֶּה אֲשֶׁר חָלָמְתִּי. 6 And he said unto them: ‘Hear, I pray you, this dream which I have dreamed:
ז וְהִנֵּה אֲנַחְנוּ מְאַלְּמִים אֲלֻמִּים, בְּתוֹךְ הַשָּׂדֶה, וְהִנֵּה קָמָה אֲלֻמָּתִי, וְגַם-נִצָּבָה; וְהִנֵּה תְסֻבֶּינָה אֲלֻמֹּתֵיכֶם, וַתִּשְׁתַּחֲוֶיןָ לַאֲלֻמָּתִי. 7 for, behold, we were binding sheaves in the field, and, lo, my sheaf arose, and also stood upright; and, behold, your sheaves came round about, and bowed down to my sheaf.’
ח וַיֹּאמְרוּ לוֹ, אֶחָיו, הֲמָלֹךְ תִּמְלֹךְ עָלֵינוּ, אִם-מָשׁוֹל תִּמְשֹׁל בָּנוּ; וַיּוֹסִפוּ עוֹד שְׂנֹא אֹתוֹ, עַל-חֲלֹמֹתָיו וְעַל-דְּבָרָיו. 8 And his brethren said to him: ‘Shalt thou indeed reign over us? or shalt thou indeed have dominion over us?’ And they hated him yet the more for his dreams, and for his words.
ט וַיַּחֲלֹם עוֹד חֲלוֹם אַחֵר, וַיְסַפֵּר אֹתוֹ לְאֶחָיו; וַיֹּאמֶר, הִנֵּה חָלַמְתִּי חֲלוֹם עוֹד, וְהִנֵּה הַשֶּׁמֶשׁ וְהַיָּרֵחַ וְאַחַד עָשָׂר כּוֹכָבִים, מִשְׁתַּחֲוִים לִי. 9 And he dreamed yet another dream, and told it to his brethren, and said: ‘Behold, I have dreamed yet a dream: and, behold, the sun and the moon and eleven stars bowed down to me.’
י וַיְסַפֵּר אֶל-אָבִיו, וְאֶל-אֶחָיו, וַיִּגְעַר-בּוֹ אָבִיו, וַיֹּאמֶר לוֹ מָה הַחֲלוֹם הַזֶּה אֲשֶׁר חָלָמְתָּ: הֲבוֹא נָבוֹא, אֲנִי וְאִמְּךָ וְאַחֶיךָ, לְהִשְׁתַּחֲו‍ֹת לְךָ, אָרְצָה. 10 And he told it to his father, and to his brethren; and his father rebuked him, and said unto him: ‘What is this dream that thou hast dreamed? Shall I and thy mother and thy brethren indeed come to bow down to thee to the earth?’
יא וַיְקַנְאוּ-בוֹ, אֶחָיו; וְאָבִיו, שָׁמַר אֶת-הַדָּבָר. 11 And his brethren envied him; but his father kept the saying in mind.
יב וַיֵּלְכוּ, אֶחָיו, לִרְעוֹת אֶת-צֹאן אֲבִיהֶם, בִּשְׁכֶם. 12 And his brethren went to feed their father’s flock in Shechem.
יג וַיֹּאמֶר יִשְׂרָאֵל אֶל-יוֹסֵף, הֲלוֹא אַחֶיךָ רֹעִים בִּשְׁכֶם–לְכָה, וְאֶשְׁלָחֲךָ אֲלֵיהֶם; וַיֹּאמֶר לוֹ, הִנֵּנִי. 13 And Israel said unto Joseph: ‘Do not thy brethren feed the flock in Shechem? come, and I will send thee unto them.’ And he said to him: ‘Here am I.’
יד וַיֹּאמֶר לוֹ, לֶךְ-נָא רְאֵה אֶת-שְׁלוֹם אַחֶיךָ וְאֶת-שְׁלוֹם הַצֹּאן, וַהֲשִׁבֵנִי, דָּבָר; וַיִּשְׁלָחֵהוּ מֵעֵמֶק חֶבְרוֹן, וַיָּבֹא שְׁכֶמָה. 14 And he said to him: ‘Go now, see whether it is well with thy brethren, and well with the flock; and bring me back word.’ So he sent him out of the vale of Hebron, and he came to Shechem.
טו וַיִּמְצָאֵהוּ אִישׁ, וְהִנֵּה תֹעֶה בַּשָּׂדֶה; וַיִּשְׁאָלֵהוּ הָאִישׁ לֵאמֹר, מַה-תְּבַקֵּשׁ. 15 And a certain man found him, and, behold, he was wandering in the field. And the man asked him, saying: ‘What seekest thou?’
טז וַיֹּאמֶר, אֶת-אַחַי אָנֹכִי מְבַקֵּשׁ; הַגִּידָה-נָּא לִי, אֵיפֹה הֵם רֹעִים. 16 And he said: ‘I seek my brethren. Tell me, I pray thee, where they are feeding the flock.’
יז וַיֹּאמֶר הָאִישׁ, נָסְעוּ מִזֶּה–כִּי שָׁמַעְתִּי אֹמְרִים, נֵלְכָה דֹּתָיְנָה; וַיֵּלֶךְ יוֹסֵף אַחַר אֶחָיו, וַיִּמְצָאֵם בְּדֹתָן. 17 And the man said: ‘They are departed hence; for I heard them say: Let us go to Dothan.’ And Joseph went after his brethren, and found them in Dothan.
יח וַיִּרְאוּ אֹתוֹ, מֵרָחֹק; וּבְטֶרֶם יִקְרַב אֲלֵיהֶם, וַיִּתְנַכְּלוּ אֹתוֹ לַהֲמִיתוֹ. 18 And they saw him afar off, and before he came near unto them, they conspired against him to slay him.
יט וַיֹּאמְרוּ, אִישׁ אֶל-אָחִיו: הִנֵּה, בַּעַל הַחֲלֹמוֹת הַלָּזֶה–בָּא. 19 And they said one to another: ‘Behold, this dreamer cometh.
כ וְעַתָּה לְכוּ וְנַהַרְגֵהוּ, וְנַשְׁלִכֵהוּ בְּאַחַד הַבֹּרוֹת, וְאָמַרְנוּ, חַיָּה רָעָה אֲכָלָתְהוּ; וְנִרְאֶה, מַה-יִּהְיוּ חֲלֹמֹתָיו. 20 Come now therefore, and let us slay him, and cast him into one of the pits, and we will say: An evil beast hath devoured him; and we shall see what will become of his dreams.’
כא וַיִּשְׁמַע רְאוּבֵן, וַיַּצִּלֵהוּ מִיָּדָם; וַיֹּאמֶר, לֹא נַכֶּנּוּ נָפֶשׁ. 21 And Reuben heard it, and delivered him out of their hand; and said: ‘Let us not take his life.’
כב וַיֹּאמֶר אֲלֵהֶם רְאוּבֵן, אַל-תִּשְׁפְּכוּ-דָם–הַשְׁלִיכוּ אֹתוֹ אֶל-הַבּוֹר הַזֶּה אֲשֶׁר בַּמִּדְבָּר, וְיָד אַל-תִּשְׁלְחוּ-בוֹ: לְמַעַן, הַצִּיל אֹתוֹ מִיָּדָם, לַהֲשִׁיבוֹ, אֶל-אָבִיו. 22 And Reuben said unto them: ‘Shed no blood; cast him into this pit that is in the wilderness, but lay no hand upon him’–that he might deliver him out of their hand, to restore him to his father.
כג וַיְהִי, כַּאֲשֶׁר-בָּא יוֹסֵף אֶל-אֶחָיו; וַיַּפְשִׁיטוּ אֶת-יוֹסֵף אֶת-כֻּתָּנְתּוֹ, אֶת-כְּתֹנֶת הַפַּסִּים אֲשֶׁר עָלָיו. 23 And it came to pass, when Joseph was come unto his brethren, that they stripped Joseph of his coat, the coat of many colours that was on him;
כד וַיִּקָּחֻהוּ–וַיַּשְׁלִכוּ אֹתוֹ, הַבֹּרָה; וְהַבּוֹר רֵק, אֵין בּוֹ מָיִם. 24 and they took him, and cast him into the pit–and the pit was empty, there was no water in it.
כה וַיֵּשְׁבוּ, לֶאֱכָל-לֶחֶם, וַיִּשְׂאוּ עֵינֵיהֶם וַיִּרְאוּ, וְהִנֵּה אֹרְחַת יִשְׁמְעֵאלִים בָּאָה מִגִּלְעָד; וּגְמַלֵּיהֶם נֹשְׂאִים, נְכֹאת וּצְרִי וָלֹט–הוֹלְכִים, לְהוֹרִיד מִצְרָיְמָה. 25 And they sat down to eat bread; and they lifted up their eyes and looked, and, behold, a caravan of Ishmaelites came from Gilead, with their camels bearing spicery and balm and ladanum, going to carry it down to Egypt.
כו וַיֹּאמֶר יְהוּדָה, אֶל-אֶחָיו: מַה-בֶּצַע, כִּי נַהֲרֹג אֶת-אָחִינוּ, וְכִסִּינוּ, אֶת-דָּמוֹ. 26 And Judah said unto his brethren: ‘What profit is it if we slay our brother and conceal his blood?
כז לְכוּ וְנִמְכְּרֶנּוּ לַיִּשְׁמְעֵאלִים, וְיָדֵנוּ אַל-תְּהִי-בוֹ, כִּי-אָחִינוּ בְשָׂרֵנוּ, הוּא; וַיִּשְׁמְעוּ, אֶחָיו. 27 Come, and let us sell him to the Ishmaelites, and let not our hand be upon him; for he is our brother, our flesh.’ And his brethren hearkened unto him.
כח וַיַּעַבְרוּ אֲנָשִׁים מִדְיָנִים סֹחֲרִים, וַיִּמְשְׁכוּ וַיַּעֲלוּ אֶת-יוֹסֵף מִן-הַבּוֹר, וַיִּמְכְּרוּ אֶת-יוֹסֵף לַיִּשְׁמְעֵאלִים, בְּעֶשְׂרִים כָּסֶף; וַיָּבִיאוּ אֶת-יוֹסֵף, מִצְרָיְמָה. 28 And there passed by Midianites, merchantmen; and they drew and lifted up Joseph out of the pit, and sold Joseph to the Ishmaelites for twenty shekels of silver. And they brought Joseph into Egypt.
כט וַיָּשָׁב רְאוּבֵן אֶל-הַבּוֹר, וְהִנֵּה אֵין-יוֹסֵף בַּבּוֹר; וַיִּקְרַע, אֶת-בְּגָדָיו. 29 And Reuben returned unto the pit; and, behold, Joseph was not in the pit; and he rent his clothes.
ל וַיָּשָׁב אֶל-אֶחָיו, וַיֹּאמַר: הַיֶּלֶד אֵינֶנּוּ, וַאֲנִי אָנָה אֲנִי-בָא. 30 And he returned unto his brethren, and said: ‘The child is not; and as for me, whither shall I go?’
לא וַיִּקְחוּ, אֶת-כְּתֹנֶת יוֹסֵף; וַיִּשְׁחֲטוּ שְׂעִיר עִזִּים, וַיִּטְבְּלוּ אֶת-הַכֻּתֹּנֶת בַּדָּם. 31 And they took Joseph’s coat, and killed a he-goat, and dipped the coat in the blood;
לב וַיְשַׁלְּחוּ אֶת-כְּתֹנֶת הַפַּסִּים, וַיָּבִיאוּ אֶל-אֲבִיהֶם, וַיֹּאמְרוּ, זֹאת מָצָאנוּ: הַכֶּר-נָא, הַכְּתֹנֶת בִּנְךָ הִוא–אִם-לֹא. 32 and they sent the coat of many colours, and they brought it to their father; and said: ‘This have we found. Know now whether it is thy son’s coat or not.’
לג וַיַּכִּירָהּ וַיֹּאמֶר כְּתֹנֶת בְּנִי, חַיָּה רָעָה אֲכָלָתְהוּ; טָרֹף טֹרַף, יוֹסֵף. 33 And he knew it, and said: ‘It is my son’s coat; an evil beast hath devoured him; Joseph is without doubt torn in pieces.’
לד וַיִּקְרַע יַעֲקֹב שִׂמְלֹתָיו, וַיָּשֶׂם שַׂק בְּמָתְנָיו; וַיִּתְאַבֵּל עַל-בְּנוֹ, יָמִים רַבִּים. 34 And Jacob rent his garments, and put sackcloth upon his loins, and mourned for his son many days.
לה וַיָּקֻמוּ כָל-בָּנָיו וְכָל-בְּנֹתָיו לְנַחֲמוֹ, וַיְמָאֵן לְהִתְנַחֵם, וַיֹּאמֶר, כִּי-אֵרֵד אֶל-בְּנִי אָבֵל שְׁאֹלָה; וַיֵּבְךְּ אֹתוֹ, אָבִיו. 35 And all his sons and all his daughters rose up to comfort him; but he refused to be comforted; and he said: ‘Nay, but I will go down to the grave to my son mourning.’ And his father wept for him.
לו וְהַמְּדָנִים–מָכְרוּ אֹתוֹ, אֶל-מִצְרָיִם: לְפוֹטִיפַר סְרִיס פַּרְעֹה, שַׂר הַטַּבָּחִים. {פ} 36 And the Midianites sold him into Egypt unto Potiphar, an officer of Pharaoh’s, the captain of the guard. {P}

Palestinian Refugees and Jews from Arab Lands

Palestinian Refugees and Jews from Arab Lands

by

Howard Adelman

The following article appeared in my email. For the few who already received it and my response, please forgive the repetition. The other recipients (96%) were blocked. My new method of avoiding blocks is to omit the article as an attachment. Also, excuse my further digression from the current and world economic order to delve once again into the Israeli-Palestinian conflict.

The return of Palestinian refugees and international law

The first step to solving the Palestinian refugee problem is Israel’s own clear recognition of the historical facts.

Arutz Sheva recently held an enlightening conversation with history buff Itamar Tzur on the topic of the “return” of Palestinian “refugees.”

According to the UN, there originally were 710 thousand Arab refugees who left or were forced out of their homes as a result of the War of Independence. At about that time, right after World War II, there [WERE] about 50 million other refugees in the world. They all eventually found new homes. However, the Palestinian refugee problem, with help from the UN, has gotten worse, and there are now about 5 million Palestinians claiming refugee status.

A special UN organization, UNRWA, was established in 1949 to deal with the Palestinian refugees separately from the UNHCR, which deals with all other refugees around the world. UNRWA was established, said Tzur, because no other nation was willing to take them and because their continued status as stateless refugees allows them to cast blame on Israel.

It’s important to note, said Tzur, that the UN passed a resolution at the time, Resolution 174, urging that the Palestinian refugees “wishing to return to their homes and live at peace with their neighbors” be allowed to do so. However, the Arabs themselves did not agree to this resolution because it included recognition of the Jewish state.

“The millions of refugees from the 40’s and 50’s were settled long ago, and none of them spoke about going back to their original homes. It’s only the Palestinians who are promised this kind of solution, while they are in the meantime receiving the highest funding of any refugee group in the world.”

According to Tzur, the solution will begin with the recognition by Israelis themselves of what actually happened historically “We must remember that the ‘Nakba’(disaster) that supposedly occurred to the Palestinian Arabs is overshadowed by the ‘Nakba’ that was perpetrated against the Jews from Arab countries at the same time.” This awareness must begin with us.

Tzur also noted that we need to be aware of the treatment of other expulsions from different nations. “We should be looking at the recent historical precedents. During the last century, there have been mass deportations all over the world. After World War II, 12 to 17 million Germans were expelled from Europe to East or West Germany. There were about 14.5 million expelled from India to Pakistan and vice versa. In the 1970’s nearly 200,000 Greeks were expelled from their homes in Cyprus. In the 80’s 300,000 Muslims were forced to leave Bulgaria and Turkey. Even in the 90’s there were mass deportations. Kuwait expelled some 200,000 Palestinians after the first Iraq war. This is just the tip of the iceberg.”

“During the 50’s and 60’s, the young State of Israel absorbed 800,000 Jewish refugees from Arab countries who were forced to leave with no compensation for their property or possessions. Meanwhile, the 700,000 Palestinian refugees from 1949 have mushroomed to 5,000,000 who are knocking on the doors of the State of Israel under the delusion of a right of return that is supposedly recognized by International Law.”

My response follows:

Shimon Cohen,
Arutz Sheva.

“The first step to solving the Palestinian refugee problem is Israel’s own clear recognition of the historical facts.” True!

Then when writing an article entitled, “The return of Palestinian refugees and international law,” it would be helpful if the facts cited were all correct and if relevant facts were not omitted. The flaws could have been because Itamar Tzur was not adequately reported or was misunderstood. Or they may have been the result of Tzur being a “history buff” and not a historian.

1. The original number of Palestine refugees in 1948 is reasonably accurate, though on the low end of the 711,000-726,000 range, the higher number drawn from the Final Report of the United Nations Economic Survey Mission for the Middle East and 711,000 figure according to the General Progress Report and Supplementary Report of the United Nations Conciliation Commission for Palestine.
2. That number referred to both Arab and Jewish Palestine refugees; the definition of a Palestine refugee was “a person “whose normal place of residence was Mandatory Palestine between June 1946 and May 1948, who lost both [my italics] their homes and means of livelihood as a result of the 1948 Arab-Israeli conflict.”
3. Note, a refugee in this definition did not have to cross an international border. Second, of the total, approximately 35,000 were Jewish.
4. In addition to the Jewish Palestine refugees who were resettled within Israel, many of those displaced still live in what was Mandatory Palestine, including:
a) Arab Palestinians who lost their homes and livelihood but continued to live within the Green line on territory administered by Israel;
b) The approximately 60,000 Arab Palestinians who were repatriated to Israel under a family reunification program over the years;
c) Approximately 16% of Arab residents of the West Bank are both Jordanian citizens and so-called Palestinian refugees, but would be called internally displaced persons in current parlance;
d) Almost 40% of Gazan residents are descendants of 1948 Palestinian refugees and all of them would be dubbed internally displaced persons in current parlance.
5. The number 50 million refugees after WWII refers to both refugees and internally displaced (did not cross an international border) after WWII.
6. Most, but absolutely not all, found new nations in which they could belong.
7. “The Palestinian refugee problem, with help from the UN, has gotten worse, and there are now about 5 million Palestinians claiming refugee status.”
a) It is questionable whether the UN should be blamed for what its members decide, including the U.S. and Israel.
b) When we were advising the Canadian-led Palestinian refugee talks and discussed transferring aid from UNRWA to the Palestinian authority directly in Gaza and the West Bank (Judea and Samaria) rather than through the UN, Israel objected, claiming that the funds coming into the area would decrease, resulting in an additional burden on Israel as the administrative authority for those areas;
c) Those 5 million refugees are NOT claiming refugee status. Making such an assertion indicates little knowledge of the operations of the international refugee regime. The Palestinian refugees, or the vast majority of them, are not seeking Convention refugee status. They are so-called “humanitarian” refugees, products of displacement from war and not Convention refugee claimants who want the status of a Convention refugee so they can claim admission to a signatory country to the Convention.
8. “A special UN organization, UNRWA, was established in 1949 to deal with the Palestinian refugees separately from the UNHCR.” This wording clearly implies UNHCR existed at the time. It did not. UNHCR was established on 14 December 1950 and implemented in 1951 initially to deal with European refugees, but not as a welfare issue but as a mode of providing a route to permanent membership status for the refugees remaining after WWII. The practice before 1950 was to deal with each group of refugees on a regional basis and as a humanitarian issue only. Thus, for example, there was a parallel organization set up at the time to deal with Korean refugees. The humanitarian organization was viewed as having responsibility for the housing, food and health of the refugees until a more permanent solution could be found. No rights were inferred at the time in the use of the term “refugee.”
9. When UNRWA was established, there was no foreknowledge that it was introduced “because no other nation was willing to take them” and certainly not “because their continued status as stateless refugees allows them to cast blame on Israel.” There is no historical evidence for either claim that I know of. With respect to the first assertion, UNRWA was in fact established with the conviction that, with the assistance of redevelopment and rehabilitation aid, the refugees would be assisted to settle in the Arab countries where most were located or, especially in Iraq seen as very hospitable to development modeled on the Tennessee Valley Authority. That plan did not work out, not because countries wanted to “blame” Israel, but because the Arab countries in which the refugees were located, including Jordan, though Jordan least of all, were determined to eradicate Israel as a state. Do not forget that Jordan, unlike the other Arab states, did give the refugees, both those in Jordan proper as well as those in the West Bank that Jordan annexed, full Jordanian citizenship; 120,000 Palestinians in Jordan today who came from the Gaza Strip were not given citizenship.
10. UNRWA evolved over its first decade from being a temporary humanitarian agency into a UN educational and welfare agency for Palestinian refugees, propelled by the antipathy of the Arab states accepting Israel as a state.
11. “(T)he UN passed a resolution at the time, Resolution 174, urging that the Palestinian refugees ‘wishing to return to their homes and live at peace with their neighbors’ be allowed to do so. However, the Arabs themselves did not agree to this resolution because it included recognition of the Jewish state.” The whole of resolution 174, or at least the relevant article 11, should be quoted. Resolution 174 article 11 reads as follows: “refugees wishing to return to their homes and live at peace with their neighbours should be permitted to do so at the earliest practicable date, and that compensation should be paid for the property of those choosing not to return and for loss of or damage to property which, under principles of international law or equity, should be made good by the Governments or authorities responsible.” Note the following:
a) There is no “urging”; the resolution is couched in the language of choice, both for the refugees themselves and Israel, and the resolution recommends that Israel make that choice of granting permission;
b) even that recommendation is qualified – the refugees have to be willing to live in peace;
c) if the refugees do not decide to return and if Israel does not permit them to do so, the tone of the resolution shifts to requiring those parties responsible, presumably the states that initiated or engaged in the war, to compensate the refugees. It does not say that Israel should provide that compensation, though an independent judge might determine that Israel was responsible financially at least for the refugees forced out of their homes who were not an evident military threat to Israel at the time.
12. To assert that the Arab states did not agree to the resolution because it would include recognition of the Israeli state is misleading. For it is possible not to recognize a state without being determined to eliminate it as a political entity. The latter was the goal for almost all Arab states, except Jordan and, to some degree Lebanon.
13. “The millions of refugees from the 40’s and 50’s were settled long ago, and none of them spoke about going back to their original homes.” Just not true. Most resettled refugees accepted their new homes as permanent, but most longed to return and spoke of return often. Further, many were militants who were determined to return through the use of coercion and displacement of the government ruling the home state. Cubans in the sixties and Tutsis in 1990 were prime examples.
14. The biggest error is to suggest that “Palestinians have been ‘promised’ return.” They never were. The right of return only gradually emerged as the central interpretation of Article 11, contrary to historical analysis, and gradually became the accepted meaning of Article 11 after 1967. Up until then, to assert that the refugees had a “right of return” was interpreted as accepting Israel as an irremovable entity.
15. Tzur evidently said that 5,000,000 Palestinian refugees “are knocking on the doors of the State of Israel under the delusion of a right of return that is supposedly recognized by International Law.” The delusion about international law is correct, but the depiction of 5 million demanding reentry into Israel is patently false based on surveys among Palestinian refugees. That is not because these Palestinian refugees have given up on “a right of return,” but because they distinguish between actual return and the recognition of the right even if they decide not to return.
16. Nevertheless, in spite of all these errors, it is right of Tzur to remind us all of the forced exodus of Jews from Arab lands, the even larger numbers involved, the fact that no compensation was ever offered to them [see the series on Arab Jews https://mail.google.com/mail/u/0/?hl=en&shva=1#inbox/158b762bf59f6b2c?compose=158b0d40f9eccc9c%5D, and, further, that the Palestinian refugee solution should be set within the context of resolutions and outcomes applied to other refugee populations around the world since the end of WWII. A “right of return” is not recognized under international law.

For a far more extensive understanding of the context and of the issue, see:

Howard Adelman and Elazar Barkan (2011) No Return, No Refuge. New York: Columbia University Press.

Jacob and Esau

And Jacob Fought the Angel – Part B

by

Howard Adelman

Who then was Jacob? What was he like? I have tried to indicate that he was far from just a passive patsy. The struggle he had with the so-called angel was not an epiphany in which a new person was born, but an event in which Jacob came to realize himself in his full potential. His character did not fundamentally change as Wiesel suggests. Nor was this simply and simplistically a marking of a new point of maturation as the visiting rabbi to our Torah study group had suggested. Rather, the very same character was subjected to an ultimate test, a test that proved that he was worthy of being renamed Israel.

Who was the stranger, the man with whom he fought? He was not an assailant or an aggressor as Elie Wiesel depicted. For the struggle is NOT about aggression. It is about using one’s body to achieve a meeting of hearts. Why then did Jacob insist on receiving the stranger’s blessing before he released him. Did Jacob believe that the stranger had an inheritance to bestow upon him? If so, what was the inheritance? To be God’s messenger. The man was NOT an angel, NOT a messenger, but God in an embodied form. He did not bring a message but a blessing with enormous consequences in history.

Why did the man or God not want to continue the wrestling match beyond dawn (שָׁ֫חַר)? It was at the dawning of a new day that the angels urged Lot to rise and take his wife and two daughters and flee Sodom. (Genesis 19:15) It is after dawn that God wracks havoc on the world. With the exception of Yom Kippur and Tisha B’Av, fasting begins on all other fast days at dawn rather than when the sun sets the evening before. I believe that it is because neither Yom Kippur nor Tisha B’Av are about mitzvot. Mourning requires twenty-four hours. Blessings begin at daybreak, at sunrise (netz hachamah), at the moment when one can see and recognize another. For mitzvoth are always intersubjective. Catastrophes tend to be individually or collectively singular.

But what about shabat? Is it not a blessing in itself? Does not shabat begin at sunset (shkiah)? Do we not welcome shabat like the return of a dearly beloved at the Friday evening service? It is not only because we need the full night to recover from a week of work so that we can truly celebrate and enjoy the day of rest. We need to be completely inside a new metaphysical time zone, a time that requires a radical shift in the unconscious to appreciate. Whereas our usual habits in the day are to be seekers and acquisitors, we require a very different bodily and mental state on shabat. Friday night is used to rejuvenate ourselves, to cocoon away from external stimuli.

But that is not how Jacob and the stranger spend the night. They wrestle until the dawn of day. And not to collect speckled and streaked and mottled sheep. But to what end? So that Jacob can prove he can last. So that Jacob can prevail. So that Jacob can be recognized for who he truly is and be blessed with a new name to signify that recognition. So that Jacob can be reborn in full self-consciousness of who he is. The sun rises on its own account. Out of the darkness, out of the sea of the unconscious life, Jacob will now rise higher and higher in the sky to look down upon a much bigger world. Jacob comes to recognize his own significance, why he was placed in this world. Jacob will have his own gunfight at noon. But he will not shoot. He will not be shot at. He is now destined to reach the zenith of who he is and will be ever after. The rest will be the responsibility of his descendants. The rest will be commentary as his twelve sons and daughter carry the responsibility for the continuation of his lineage.

But is this not Elie Wiesel’s thesis, that Jacob is reborn a new man? Yes and no. I argue his character is unchanged. It has just gone through its final stage of fulfillment. He does not become a new man such that his personality changes. He retains the name of Jacob while Abraham discarded the name Abram. But he becomes a new man because he comes to full self-consciousness of who he is and who he is destined to become. Abraham was promised that he would become the father of a great nation. So was Isaac. But neither absorbed that message into their inner being. Because both remained beholden to God and dependent upon Him. Abraham was even willing to sacrifice his son because he was told to do so. Jacob acquires his own place in the sun. Jacob, in contrast, stood up to God. Jacob wrestled with a man he had come to recognize at dawn was God.

God’s vanity was not damaged in the process, as Elie Wiesel contends. There is not even a hint of that in the text. Further, it is what God wanted for the forefathers of the Jewish people. It is not that Jacob’s task was any different than that of his father or grandfather. It was the same task. But only Jacob made it part of his entire being. Only Jacob absorbed the full responsibility for achieving that task. Jacob all along was neither a coward nor a rash individual. He was truly courageous because he calculated his chances, he figured the odds and he took steps to mitigate untoward damages. But most of all, he was unstinting. He would not give up. He would not even surrender to God’s will as his grandfather had. For faith and trust are not irrational leaps but must be earned. And it must stand on the ground of love, not a rational calculation. This is what he had been taught by his two wives and was a lesson that neither Abraham nor Isaac ever learned. Hence the schisms of their children instead of a unity that absorbed and raised up differences.

A reader, and esteemed writer in his own right, after my last blog, wrote me as follows:

I’ve come to think of the ‘man’ as the embodiment of Jacob’s physical insecurity; the embodiment of his abiding terror in the face of physical courage, which Jacob, the younger brother, and naturally somewhat in awe of Esau’s primordial power, feared he lacked. Before meeting Esau, he had to face his terror and overcome it, leaving him wounded but brave. The irony is that Esau turned out to be such a mensch. No doubt, he had a match the night before, too, not a wrestling match, but a brilliant debate, which he won.

That is dead on. The historical rabbinical portrayal of Esau as the embodiment of evil is so mistaken. Esau was a mensch. He was an honest down-to-earth guy, ruddy in complexion and hairy like an animal. But he certainly was not a beast. He loved his brother and could forgive him even for the most heinous acts in terms of everyday ethics. But Jacob had a higher, a loftier destiny that he took into his very being. He struggled with God and prevailed because he took on the responsibility for the future of the world, for the future of humanity, for the future of a people destined to be a light unto the nations.

Elie Wiesel said that Jacob, before Peniel, was honest and anxious to avoid risks. He was neither honest and only anxious to take unnecessary risks. He was courageous, as Aristotle recognized, because he was not rash. He was a second-born. He had proven his dedication. He had proven he was a man in his own right and not the weakling manipulated by others in Elie Wiesel’s depiction. He did not simply obey. He figured out how to get around and use the treachery of his uncle Laban. He figured out how to earn the loyalty of both his wives so that they clung to him rather than their own father. Finally, rather than being “incapable of initiative,” it was he as well as the stranger, who would be revealed at the dawning of the next day to be God, who initiated the historic battle and emerged a winner, not by defeating God, but by fully absorbing God’s creativity, God’s sense of responsibility, God’s sense of service to the future of his own nation and that of humanity. The lesson was embedded into his very being.

Esau was the mensch. Jacob was the father of a different nation, one that would have to survive by wile rather than natural strength or numbers, one that would have to create wealth rather than wrest it out of an unforgiving ground. That requires political calculation, not naiveté. That requires not risking all even when your brother demonstrates he is a mensch of the highest order. For a mensch can turn on you if you cross him. His righteousness can turn on a dime into a withering critique and determined opposition. And as a leader, Jacob would be required to make tough decisions. So rather than a follower, he had always been a leader. In the battle with the stranger, he came to realize who he was and what his responsibilities were. He could not risk it all in reconciling with his brother. That is why Esau comes across the next day as the very opposite of the evil one, as the trues mensch in the story.

A reader of my blog sent me the following referenced to Delacroix’s depiction of Jacob wrestling with the “angel” that can be found in St. Sulpice in Paris

https://www.google.ca/search?q=delacroix+jacob+wrestling+with+the+angel&espv=2&biw=1280&bih=622&tbm=isch&imgil=ssx62EkzFnyWWM%253A%253B2Si9hecy7O1ucM%253Bhttp%25253A%25252F%25252Fwww.allposters.com%25252F-sp%25252FJacob-Wrestling-with-the-Angel-1850-Posters_i2576155_.htm&source=iu&pf=m&fir=ssx62EkzFnyWWM%253A%252C2Si9hecy7O1ucM%252C_&usg=__ED2wDG_2LucUwTU9kNcfLsa8iLI%3D&ved=0ahUKEwi-goSYpf7QAhXJ5oMKHY3fBGEQyjcILw&ei=ecpWWP7hEMnNjwSNv5OIBg#imgrc=ssx62EkzFnyWWM%3A

This portrait captures the essence of the battle. There is no winged angel on one side larger than life wrestling with Jacob or dancing with him in a loving embrace. Love and struggle can be soul mates. They are not opposites. Rachel’s reciprocal love for her husband and Leah’s unreciprocated love for the same man did not end up ultimately in contestation, but in giving Jacob the strength to realize who he was, the strength to found a nation in which there may be disputes, in which there may be differences, but in which there should be no civil war, a nation in which even a dandy like Joseph could become a great leader. So much for the vision of a warrior king!

Let me repeat what my correspondent had written. The struggle was the embodiment of Jacob’s physical insecurity; the embodiment of his abiding terror in the face of physical courage, which Jacob, the younger brother, and naturally somewhat in awe of Esau’s primordial power, feared he lacked. Before meeting Esau, he had to face his terror and overcome it, leaving him wounded but brave. Does not Delacroix capture this combination of inner and outer struggle, this metaphysical battle that was so physical in the struggle with both God and man?

Elie Wiesel was correct. Jacob’s father, Isaac, suffered from Post Traumatic Stress Disorder. Isaac was blind to the crisis that he had undergone, blind to the merits of the younger twin so enamored was he by Esau’s strength and physical acumen. Even though Isaac had relegated himself to a life of “serenity and meditation,” even though it was he who was the nebbish, not Jacob, that very blindness in the cunning of history would produce a Jacob. Isaac loved the older twin, blind to the merits of the younger which Rebecca could clearly see.

Who would not grow up insecure when you had a father who seemingly did not love you.? But who would not also grow up very secure, more secure even than Esau, with a mother so devoted not only to you but to who you were destined to become. Jacob was vulnerable. But he was also strong. How do you capture and portray both aspects of his character? Delacroix in the end, as much as he humanizes both Jacob and God, ultimately fails because he portrays Jacob as a muscular man rather than as one who wins by guile and calculation, through feints and thrusts like a master of the martial arts. Jacob was more a Bruce Lee than a Sampson figure. Jacob recognized that in battle, and life was a battle, deceit and feints were as important if not more important than blatant honesty. In the end, Jacob proved he was the superior one, proved he had what it took to be a leader because, at his foundation, he was a dreamer. He was a visionary. Abraham may have had visions, but he was not a visionary, merely God’s obedient lackey.

When Jacob had his ladder dream, he was not ready to climb up the ladder. He had to learn that his quest was not upward, not to be a God in heaven, but to be an earthly leader. He had enough sense not to envision climbing the ladder, but enough sense to realize that angels climb down as well as ascend. Unlike his father and grandfather, Jacob did not pledge unstinting trust in God. It was and remained conditional. The proof is in the pudding and not in the recipe, not in the words and promises, however tantalizing. If God delivers, I too will deliver. It will and must be the same in dealing with other individuals and nations. There can be peace between us, but only if in your heart and in your deeds you are peaceful and not because you sign a piece of paper. There must be concrete reciprocity. And to get that, Jacob had to prevail – not kill God, but prove both that he could survive and that he could do so as a self-conscious individual.

Elie Wiesel might trivialize Jacob’s quarrels with Laban, his concern with labour contracts, his mundane preoccupations and his commonplace conversations with his wives and concubines. But the devil is indeed in the details, not in grand metaphysical visions. Jacob was not a man without will or authority, but was a man who knew how to bide his time and wait for the right moment. He allowed Laban to search the belongings of his entourage when Laban caught up with him instead of insisting that he be regarded as innocent until there was some proof that he or someone in his entourage had stolen Laban’s idols. He did not stand on a soapbox and preach the right to privacy when faced with the military might of his father-in-law. This was not crass cowardice, but clever calculation. Jacob always showed he knew where and when to stand his ground and when to retreat.

Wiesel is so down on ordinary worldly matters that he is as blind as Isaac. What is viewed as a shortcoming is Jacob’s strength. For Jacob, this life is an embodied life. For Jacob, his God is an embodied God. And one prevails by taking over the responsibility from God for the embodied world. This does not mean, as rabbinic commentators were prone to do, showering Jacob with virtues he did not possess. Wiesel, in spite of his superior reading, is prone to do the same when he dubs Jacob honest. Jacob is not the just man. Jacob is not pure. Jacob is not a man of traditional piety. Jacob was very far from being righteous. Jacob was very far from being Jesus.

And what about Esau? Commentators usually go to the opposite extreme, portraying him as evil when he was just physical, portraying him as an enemy when he was nothing of the kind. In fact, he was too kind and not overwhelmed by his own strength. He could have easily grabbed the lentil soup from Jacob instead of trading his birthright for it. He did not use his strength to get his own way. For Rachel and Leah had also taught him that love was more important than strength. But Rebecca realized that his very virtues made him unsuited to be a leader of people. It is not that she loved Esau less and Jacob more, but that she had the clear-eyed vision, which her blind husband lacked, to understand and see who her children were. Honesty and justice and fairness were not the supreme virtues. Realpolitik was more important.

But realpolitik leaves its scars. Jacob limped after the battle and would be forever wounded. Not just anywhere, but in the sinew of his thigh. Why is the portion between the hip and the knee so important? Because without your leg working, you cannot stand on your own two feet. God wrestling with Jacob touched the hollow of his thigh, tore the elastic tissue connecting the muscle to the femur and the pelvic bone as well. When that happens – as currently I know all too well – you cannot walk except in extreme pain and dependent on another for help.

But this was not only a physical handicap with which Jacob was left. Recall that when Abraham sent his servant to search out a wife for his son, Isaac, he made that servant press his hand under his thigh to prove that he would keep his word. (Genesis 24:2). Abraham’s thigh stayed in position and his servant fulfilled his pledge. Jacob’s thigh bone was displaced and his sinew torn so that he henceforth walked like a cripple in great pain. (Genesis 32:31) So God was NOT a servant who would allow Jacob to assume an enormous responsibility for his people and for the world painlessly. Like women who bear their children in pain, Jacob and his descendants would always know and always remember when they refused to eat the sinew of the thigh muscle, that assuming such a responsibility comes at great cost and pain. Jacob and humanity were now on their own in a way that they had not been before.

This did not mean that God would not help them. It only meant that they could not, that they should not, count on that help. Even Jesus had to cry out, “Why have you forsaken me?” because Jesus had not learned the lesson that Jacob had, that God was not a steadfast servant at the beck and call of humans. When Jacob, now renamed Israel, was about to die, he made Joseph pledge by putting his hand under his thigh that Joseph would assume the responsibility of burying his father in the homeland rather than Egypt. (Genesis 49:29) For Jacob was to be the father of a people in a homeland and not relegated for all time to a diaspora existence.

But what of Esau, the mensch, Esau, who had loved his younger brother, who had not used his strength at the time of the porridge incident or when they met again years after their long estrangement to subdue Jacob? When his father, Isaac, had been tricked into giving the blessing he had planned to give Esau but, in the cunning of history, had given it to Jacob, Esau cried out in desperation, “Father, have you but one blessing to give?” Isaac had another. Esau would not be able to use his physical prowess to become master of the world. Esau wept, convinced that his mission in life had failed. But Isaac blessed Esau. “See your abode shall enjoy the fat of the earth and the dew of heaven above. Yet by your sword shall you live but you shall serve your brother.” And then the prophetic warning. “When you grow restive, you shall break his yoke from your neck.” (Genesis 27::39-40)

The cunning of history would play with Isaac’s blessing, for Isaac was a man of laughter and in tune with irony. Esau’s descendants would not enjoy the fat of the earth, but the fat under its surface. And rather than be showered from the dew from heaven, they would use that black and silken “fat” or energy to turn salt water fresh. And they would break free and come into their own, not serving the descendants of cunning and political craft, but committed to fulfilling Esau’s earthly honesty and deep love for his brother.

But that day has yet to come. The cunning of history has yet to deliver.