Below, I reprint one critical response that I received to yesterday’s blog “On Boundaries and Borders” dealing with the current antics of the Trump administration on asylum seekers who cross the southern border at legal points and individuals who cross the Mexican-American border illegally, whether in search of asylum or simply a better life. The email is well worth reading. It is from a person who has lived for decades in America on the U.S.-Mexican border. I know her well; she is an intelligent, thoughtful, considerate and humane individual. This is an open reply to her.

She wrote:

“Howard, you present a strong academic argument with regard to the border situation and the boundary situation in the United States. It serves no good function to call our president a liar and wish that he and his supporters were behind walls.

“Our social services are stretched beyond their ability to cope and adding 50,000 new requests a year changes some of the country’s ability to provide for the legal poor in the United States.

“Instead of deciding in court whether or not the United States is a safe third country according to your (my italics) treaty, why don’t the lawyers and immigration advocates ask the Canadian government to take five or 10,000 each month. You can start an airlift similar to what the Israelis did in Yemen and receive these people in a much more humane way if you think what is being done here is inhumane. What you see on the television and read in the paper is not what is happening. I have been at an Immigration center in Tornillo Texas and, although there are some issues, they are doing the best they can with the number of immigrants that they have.

“Why doesn’t Canada do something practical and invite those from Central America to come live there rather than looking at the behavior of the Americans. If it is so objectionable, then do something about it except talk.”

The following points are made:

1. It serves no purpose to call the president of the U.S. a liar;
2. It perhaps serves less of a purpose to call for Donald Trump (and his supporters) to be put behind walls.
3. Texan (and perhaps American) social services are stretched beyond their ability to cope.
4. Adding 50,000 new requests a year changes the country’s ability to provide for the legal poor in the United States.
5. Going the legal route in accordance with the Canadian Safe First Country treaty to challenge Trump’s immigration policies is not helpful.
6. Canada should be asked to take in 5,000 or 10,000 per month.
7. The media misrepresent what is happening in the reception centres.
8. The people working in those reception centres, such as the one with which she is personally familiar in Tornillo, Texas, are coping as best they can given the influx of such large numbers.
9. Canada should walk the talk instead of criticizing Trump.

Let me take each point in turn.

1. Calling President Trump a Liar

Does it serve any purpose to call the president a liar? Normally, definitely not, even when a politician does tell a lie. The rules of civility should give the politician the benefit of the doubt and simply offer a correction. In the case of Trump, that norm needs to be suspended. Why?

• Trump repeatedly calls people with whom he disagrees liars, mostly when they are not, and, often, much worse;
• Trump repeatedly refers to those media outlets with the highest standards of proof checking as “the lying media,” echoing, as The Washington Post has noted, Hitler’s branding of the opposition press in Germany in the 1930’s as the “lűgenpresse,” the lying press.
• In all discourse, truth is a critical reference point; without truth, it is difficult to have either a civil or a rational discussion;
• As will be seen in my response, the analysis often depends on getting the facts straight;
• Calling Trump a liar is a fact, not a judgment; he is a well-documented serial liar; the quantity of lies seems to grow over time – recently, he told ten whoppers in one day. (The quality of both the lies and their quantity have been recorded in both The Washington Post and The New York Times);
• If there are no common objective reference points, you not only have difficulty expressing differences of interpretation and possible policy options, but you undermine the political process itself by creating suspicion about country and civil society institutions; that, in turn, undermines the democratic polity.

2. Walling in Trump and his supporters

As everyone should know who reads my blogs and other writings, I despise the common use of shame and humiliation. I believe it is dangerous. Yet, during the past week, Sarah Huckabee Sanders was asked to leave a restaurant in Virginia (the Red Hen in Lexington), Homeland Security Secretary Kirstjen Nielsen was booed at a Mexican restaurant, and Stephen Miller was confronted at another Mexican restaurant. Then we know that the general norms of civility have broken down.

But who initiated the breakdown? Sanders may insist that she tries her “best to treat people, including those I disagree with, respectfully,” but if that were true, who was at the podium in the White House is lying, is being condescending and, following the precedent of her boss, insults others?

When a well-known Trump apologist on Fox News, David Bossie, claimed his fellow Democratic Black panelist, Joel Payne was “out of his cotton-picking mind,” no half-hearted and seemingly insincere apology can make up for such insensitivity. Thankfully, Fox News offered a fulsome apology. “David Bossie’s comments today were deeply offensive and wholly inappropriate. His remarks do not reflect the sentiments of Fox News and we do not in any way condone them.”

Shunning, not engaging in counter insults, is an appropriate response in an effort to wall in serial lying and uncivil behaviour. As the Republican, Ana Navarro, has argued, if “you think the child-separation policy is in a different class — a human rights crime, an inhumane policy for which the public was primed by efforts to dehumanize a group of people (“animals,” “infest,” etc.) — then it is both natural and appropriate for decent human beings to shame and shun the practitioners of such a policy.”

Trump is a dangerous man. His populist approach to politics undermines both institutions and years of worked-out acceptable norms in democratic societies. Conservatives, both the trembling and the brave ones, recognize this. His attitude in substituting fantasy for reality is boundless, and he is in deep need of boundaries, for his own sake, for the sake of the GOP, for the sake of America and for the sake of the world.

3. Stretching American Social Services

Social services in America are indeed stretched behind the breaking point. But why? Your country spends a fortune incarcerating a far higher percentage of its population than any other Western country. Not only is the jailed person not contributing significantly to the economy; it costs a small fortune to house people this way using the rapidly expanding detention industry in the U.S. The vast majority of those interned are no danger to American communities. Many have been imprisoned for very minor infractions, such as smoking pot, and then for much longer terms than in other Western states.

Secondly, not only are funds diverted from social services to prisons, but Trump, through his tax policies, has put greater pressure on those social services. Third, as we know from all our research on refugees, placing people in detention centres generally does not deter arrivals, though perhaps separating a parent from his child may deter that particular refugee claimant from trying again.  It did Arnovis Guidos Portillo from El Salvador who was deported back to his country without his 7-year-old daughter Meybelin. He said, “I would advise anyone who wants to travel to the United States with their children not to do it. I would never want them to have to walk in my shoes.” He said this even though he has been hunted and persecuted by gang members for two years. Note that under Jeff Sessions’ rule, victims of gang violence are not eligible for refugee status.

Nevertheless. however hard it is to be incarcerated in America, however hard it is to be incarcerated with your children, however even harder it is to be both incarcerated and separated from your children, it is far worse to have to live in fear of your and your children’s lives under the terror regimes of both governments and gangsters. Finally, there are proven far better and far less costly ways of ensuring that the vast majority of refugee claimants turn up for their hearings than incarcerating them. Even under the existing punitive regime, 75% do appear. With tested better models, 94% will; the vast majority of asylum claimants need not be in detention centres.

4. Helping Refugees versus Helping the American Poor

The claim is made that there is a conflict between helping the deserving American poor and providing support and assistance to refugees. If that were true, why do regimes which take the most away from support for refugees also take the most support away from the deserving poor? Why do regimes that provide reasonable support for refugees, at far less cost to the economy than the American punitive system, also provide greater support for their working poor than the U.S.?

To be continued

What a discontented lot were the Israelites! If it is not the priestly hierarchy that stirs up protests, it is the physical deprivation of which Dathan and Abiram complained in an earlier chapter.

Numbers Chapter 20

Once again Moses and Aaron resorted to magic to overcome the crisis. Moses struck a rock with his staff and water gushed forth. That was insufficient. In the next chapter, once again the Israelites griped about the suffering they underwent during their forced marches.

Once again the protest was overcome with magic and the creation of a copper snake on a stick to cure the people of the poison when they were bitten by venemous real ones. But there is a third, and this time very real rather than abstract fear: the strength of the enemies that ten of the twelve scouts warned about.

The Israelites were not permitted to pass through the land of the Edomites; they retreated to go around them. It was during this time that Aaron expired on Mount Hor to be replaced by his son Eleazar; Miriam had died just before the encounter with the Edomites. Is there any connection between the Israelites avoiding battle when Miriam and Aaron were alive, but engaged in battle after their deaths? The Israelites took on the people of Arad in the Negev, the Amorites and those in Bashan and emerged victorious in all three wars. They destroyed their enemies and two-and-a-half tribes of Israelites occupied the land east of the Jordan River in the western part of what is now Jordan.

The wars are typical in part. They begin with diplomacy and the request to pass through the land with the promise that if the Israelites and their cattle use any water, they will pay for it. Just as the Edomites did, all three kings refused, but the rising tension and confrontation in the cases of Arad, the Amorites and Basham escalated into all-out war. Then the atypical part. Since these peoples were entirely destroyed by the Israelites, there was no need for peacemaking, cease-fire, peace enforcement, peacekeeping and post-conflict reconciliation. The Israelites simply replaced them on their land and in their cities.

In this section, we are dealing with real history. The geographical detail is precise and the historical record is backed up by artifacts, archeological reconstructions of the military forts and the Mesha Stele royal inscription by the King of Moab who described how he recaptured the land. I do not recall the order of the battles – I am sure they can be found in Finkelstein’s book, The Forgotten Kingdom, ​​The Archaeology of the Israelite Settlement.

Professor Israel Finkelstein gave me the following map when I interviewed him years ago for Israel Today.

https://thetorah.com/north-israelite-memories-of-the-transjordan-and-the-mesha-inscription/

What is clear is that the Israelite record of its history, though overlapping with the Moabite one, was different. In the Torah, the Moabites were confined to the area south of the Arnon Stream. In the Moabite account, their territory originally stretched up to Nebo and Heshbon giving them a right of first possession after they reconquered the territory from the Israelites.

Much of the battle between modern Israel and the Palestinians is over first possession. But both claims may be true if you trace history back before the Muslim conquest to the 9^th century BCE. Rabbi Dov Stein in the Israeli documentary produced by Nissim Mossek claimed, “that a significant part of the Arabs in the land of Israel are actually descendants of Jews who were forced to convert to Islam over the centuries.” As Ariella Oppenheimer wrote in her PhD thesis, both Palestinians and Ashkenazi Jews can trace their origins to the Kurds of Babylon from the territory where Abraham set out on his trek. After all, many Palestinians possess the Cohen chromosome.

Dr. Harry Ostrer, when he was Director of the Human Genetics Program at New York University School of Medicine, authored a study (Proceedings of The National Academy of Sciences, 9 May 2000) of an international team of researchers that he led and claimed that, “Jews and Arabs are all really children of Abraham…And all have preserved their Middle Eastern genetic roots over 4,000 years.”

If these historical, archeological and genetic claims are valid, then the Israeli-Palestinian war is more of a civil war than a war between states. Before I knew any of this, I recall my own experience years ago when I was invited to be part of a panel at Tulkarem in the West Bank near Nablus. On the panel were two others, the town’s eminent physician, a communist, and the more moderate mayor. The mayor spoke first, the doctor second and I was scheduled to speak third.

I was unable to speak. For the first time in my life, I was totally tongue-tied. The mayor of the town was the spitting image of my late father. Unless you were up close, you would not have been able to tell them apart. Eventually, I did apologize for and explain my inability to speak. I cannot recall their reaction. Perhaps I was too confused at the time.

Does any of this make a difference? It does suggest that the argument over prior possession may be a red herring. It may also suggest a reason why the conflict “between blood brothers” goes so deep and is seemingly so intractable. However, if Israelites and Palestinians can see each other as long- lost cousins now practicing a different religion than either practiced in the 9^th century BCE, does this offer a lever to foster peace while also explaining the deep determination of the Palestinians in the conflict and their deep love for the land?

With the help of Alex Zisman

In order to understand the “rebellion” of Korach better, my last blog traced the portrait of Moses as a so-called “humble” but challenged leader who rested that leadership on exclusive access to the word of God. The guest commentator at Torah study this past Shabat focused on the charge that Moses had gone “too far.” In response to that charge, Moses replies that it is Korach and his fellow protesters who have gone “too far.” What does the charge of going “too far,” of רַב-לָכֶם mean?

In the translation above, רַב-לָכֶם is interpreted in English as meaning “going too far.” Korach first accuses Moses of “going too far” for making both himself and Aaron holier than the rest of the congregation when holiness is a quality of the community and not of individuals. Moses responds and tells Korach that it is he who has gone “too far” for it is God who determines who is and who is not holy. Korach in his democratic claim for holiness is out of order.

“Rav,” from which we get the term “rabbi,” means a chief, a leader and, as an adjective, “rav” means “great.” The reference is to an authority figure and the depiction of the authority of the person referred to when used as an adjective. Essentially, Korach is accusing Moses of going beyond or outside his authority while Moses insists that Korach, in challenging Moses’ authority, even on the basis of the unanimous will of the Levite priests, is out-of-line.

The competing claims are not just about strength of leadership, but about the nature of that leadership. For Moses, all authority derived from God and it is he, Moses, who has been chosen by God to be the interface between God and the Israelites so that his leadership comes from a divine right of rule. Korach, in challenging this authority, exceeds his own role. For democratic election, even by unanimous consent of his fellow leaders, does not justify challenging Moses and, in essence, challenging God’s authority.

This is clearly a much more fundamental challenge to the leadership of Moses than that of Moses’ siblings, who accused him of lacking ethnic purity for marrying a Cushite woman. It is a much more fundamental challenge than that of the scouts who questioned Moses’ leadership and prophecy for the invasion of the Promised Land by focusing on the strength and power of the resident population.

However, רַב-לָכֶם can mean more than simply being out-of-line in terms of justifiable authority. The phrase can refer to the personal characteristics that thrust the individual into a position of going too far. The phrase can mean that Korach accuses Moses of being “too full of himself” both in the negative sense of arrogance, but also in a more positive but still critical sense of being so absorbed with his cause and his leadership that he has left behind his responsibility for communicating to his followers, and, perhaps more importantly, listening to those followers. Moses was accused of being too full of himself perhaps in both those senses.

Korach could also have been accused by Moses, not only of being out-of-line, but of being too full of himself for failing to listen to Moses and, through Moses, the word of the Lord, and of being too full of himself for taking on the mantle of leadership in challenging the leadership of Moses. The issue is not simply about formal and authentic authority but about ad hominem arguments about the character of the rivals. Thus, abundance of authority as an objective statement is one part of the contention; but the other side is the subjective quality of assuming too much for oneself.

The context of the narrative as depicted in the previous blog favours Moses in two respects. Objectively, he is God’s choice as the leader and the interface between God’s chosen people. If the people can be chosen, so can the leader. Further, in terms of personality, Moses is humble and did not seek the leadership role, unlike Korach. He was both a reluctant and a reticent leader. In contrast, Korach, even though he went to the assembly of Levites to win unanimous support, was one who initiated the leadership role he was now playing. Further, authentic authority is not derived from popular will but from divine will.

This is why this portion is so crucial in setting out the heart of the political theory of the Torah. Our contemporary sensibilities are democratic. Who among us supports a divine right of leadership? Yet the narrator of the text clearly does. The narrator unequivocally characterizes Korach’s claim as an uprising and conspiracy against the leadership of Moses, even though it appears, even in the narrator’s own description, simply to be a protest or petition or argument and not an uprising or challenge to Moses as leader. Korach challenges Moses’ performance, not his position.

However, is that a distinction without a difference? For Moses can only really perform as a leader if he is accepted as having legitimate authority. When Moses exaggerates the challenge Korach posed, and, even more, when he met Dathan’s and Abiram’s act of civil disobedience with not only exaggeration about the political action they took, but with distractions like saying, “I’m not a crook,” when no one made any such complaint, one immediately has to suspect the authenticity of such authority that depends on such an irrelevant defence and rationale.

If Moses mischaracterized the nature of both challenges, if Moses resorted to such defensiveness and irrelevancies to justify his legitimacy as the leading authority figure, does this not inherently weaken that claim for authority? How could it not? And so it is left to God (and magic) to determine who is right. But does not the means of resolution (the duel of the frying pans) as well as the apparent gross disproportion of the penalties meted out to the 250 Levites, to the Reubenites, Datham and Abiram, as well as Korach himself raise serious questions about the authentic source of authority of Moses?

A reader wrote asking:

“Can you elaborate more on a reason why Korach and his followers were punished so severely by God? What do you think is the main reason for God’s decision to execute and destroy so many human beings because of Korach’s action? What went absolutely wrong triggering God’s action? The decision to incinerate and swallow up human life must be the hardest one for God Himself considering that God is destroying His own creation created in His own image. Can we understand God’s decision and raise our awareness of its meaning for us?

“It seems to me that to understand God’s reason must be very important in order to understand the significance of Moshe’s role in his and in any generation, including ours.  Every generation needs Moshe, a man being blessed by God, giving him plenty of Ruach – God’s breath, spirit to teach man to be humble human being in any circumstances.  I need that lesson myself. Was Korach blessed? Was he rewarded with God’s spirit? I believe so. How was he using God’s blessing and his own will? Was he humble human being understanding his own limits?”

I believe a glimpse of the answer might be found in the source for the authority Korach cited in challenging Moses. Korach argued that, “all the congregation is holy.”כָל-הָעֵדָה כֻּלָּם קְדֹשִׁי) ) “Are,” not holiness as an aspiration. The Israelites were claimed by Korach to be a holy people, not just for being chosen, not just for that being the challenge for their realization, but because they had already achieved a holy status, and had achieved that status even before they entered the Promised Land. If that was the case, then what was the point of the whole historical struggle up until then and until now? God then would become a God of Being rather than a God of becoming – a God who reveals Himself over time.

If that is the case, then in spite of Korach’s evident merits as a political and religious leader, especially in contrast to the stumbles and bumbles of Moses who stutters as much in his actions as in his words, Korach metaphorically received the punishment that he deserved. For if the work of creation had been achieved, if the purpose of history had been accomplished, then from dust man came and to dust he could return. The earth swallowed him up, not heaven. The punishment metaphorically suited the crime.

What about Dathan and Abiram who had the opposite complaint – that the whole point of the wandering in the wilderness was a mistake? Even if it had been a success, it was not worth the cost in human lives and the extreme and disproportionate punishments meted out to challengers. If Korach was chastised for assuming he was at the end of history, Dathan and Abiram were chastised for giving up their faith in history. The cost had been too great. If the Shoah was part of that self-revelation, who needs a God who reveals Himself in history? Hence, they too had metaphorically been swallowed by the earth, but for the opposite reason to Korach.

What about the 250 other Levites, chieftains in their own right and chosen by the Assembly democratically to represent the voice of the people? They were not swallowed up by the earth. They were incinerated just as the two eldest sons of Aaron had been. They were taken up to heaven in the divine smoke for they had not made a metaphysical error but an error in judgement in following Korach and, thus, metaphorically in the use of the firer pans.

The story of Korach is a metaphysical and metaphoric tale rather than a literal one. Datham and Abiram, the 250 other Levites, and Moses himself, all screw up. Moses most of all. But the latter did so in political and sociological terms. He was full of mindblindness even more than he was infused with humility. But he never deviated for his belief in God as one who reveals Himself in history. Korach thought the Israelites had arrived. Dahlan and Abiram thought they never would, and, even if they did, it was not worth the cost. The 250 never gave any indication that they had surrendered to either view but did follow Korach in his protest and thus made an error in judgement rather than a metaphysical error. They were allowed to rise to heaven rather than being swallowed up by the earth. Each received metaphorically the “punishment” appropriate to the crime. Moses received the worst punishment of all – denial of entry into the Promised Land just when he was at the edge of fulfilling that stage of the journey.

How Moses must have suffered compared to Korach, the 250 or Dathan and Abiram!

With the help of Alex Zisman

We ended Part I of the discussion of the rebellion of Korach with a common depiction of Korach as a leader of rebellious Levite priests and Moses as the epitome of humility who is both a strong and wealthy political leader satisfied with his own portion and in need of no material support from the community. In addition, Moses has an exclusive conduit to God’s voice and orders. He is humble, in this interpretation of both humility and Moses. Why?

Because Moses is reluctant, a person neither seeking the limelight nor anxious to serve as a prophet. Neither does Moses measure himself against others but only against exacting divine standards. This is the main reason God chose Moses to be the political leader of the Israelites as well as being imbued with the responsibility or prophecy. Moses is humble because he is sought after rather than seeks to be God’s instrument. That is why he is chosen as the vehicle for God’s messages to the people of Israel – ha-mashpili lir’ot – and why the Israelites follow and trust Moses. This is why Moses can face God and God can reveal Himself through the mediation of Moses.

I want to question this apologetic for the punishment of Korach, not initially by a close analysis of Korach, but by examining Moses in the overall context of the Book of Numbers to provide context and then, in tomorrow’s blog, with a close reading of one phrase to depict Moses in Parashat Korach.

Numbers, set during the forty years of wandering in the desert before the Israelites entered the Promised Land, begins with God’s command to Moses to conduct a census. By verse 47 of chapter 1 we learn that the Levite priests were not included in the census of the Israelites. One immediately wonders, why not count the Levites? Perhaps it was because they would not be a source of military personnel. Perhaps because they did not have to pay taxes as the royalty of the ancient Israelites. The Levites had higher and holier duties – attending to the care of the Tabernacle and the rituals of worship. In Chapter 3 we get another explanation. The Levites are akin to the first-born who are to be surrendered to the service of God.

More importantly, we encounter an apparent contradiction. I:47 commanded Moses not to count the Levites “by their ancestral tribe.” Chapter 3:5 records God’s instruction to, “Record the Levites by ancestral house and by clan, every male among them from the age of one month. The issue is not whether they are counted but how they are counted. While each adult male in every other tribe is recorded as an individual, the Levites are recorded hierarchically “by ancestral house and clan.” The Levites, unlike the other tribes, were given a hierarchical rather than an egalitarian structure beneath a singular elder.

In Numbers 5:12, Moses gets a very different set of commandments concerning how a woman was to be treated by a jealous husband whether justified or unjustified by that jealousy. The Levite priest administers the test to tell whether the woman “defiled” herself with someone other than her husband or did not by seeing whether she suffers from “the curse of adjuration,” a ceremony almost as magical as the duel of the frying pans. The test is designed to ferret out the truth in a somewhat angular version of how the problem was dealt with in Deuteronomy 22:13-21 in Parashat Ki Tetze which begins with a husband who grew tired of his wife and slandered her with a charge of sexual betrayal or that she fooled him and was not a virgin when he married her.

The issue in Deuteronomy was finding out if the husband was guilty of slander. In Numbers, the test is to find whether the woman betrayed her husband. We are thus introduced to a second major theme in Korach, not simply of hierarchical organization within a tribe, but a test of whether a woman defiled herself by breaking faith with her husband. The Israelites are the wife of the Lord.  The magical practice and test is different, but the issue is not; both narratives are about honouring one’s spouse, in Korach, by the Levites on the divine level.

The priests are organized differently than the other tribes. They are subject to a test as if they were females, a test of betrayal rather than of a test for males of slander. That is so they can fulfill their primary function – invoking the name of the Lord to bless the Israelites on behalf of God who is the only agent who, in the end, can bestow a sacred blessing, a blessing that will reveal the true face of God, or, if withheld, God’s turning his back on the Israelites and hiding his face. In each case, when the person fails the test, if a female, she will be subject to sagging thighs, breasts and belly, and, if a male, a frown or a droopy mouth rather than having a face “that is lifted up.”

Then comes the divine priestly benediction repeated in virtually every Jewish synagogue and recited by a Cohen, Birkat Kohanim.

6:24 May the Lord bless you and guard you. יְבָרֶכְךָ יהוה, וְיִשְׁמְרֶךָ

6:25 May the Lord’s face light upon you and be gracious to you.

יָאֵר יהוה פָּנָיו אֵלֶיךָ, וִיחֻנֶּךָּ

6:26 May the Lord lift up his face unto you and give you peace.

יִשָּׂא יהוה פָּנָיו אֵלֶיךָ, וְיָשֵׂם לְךָ שָׁלוֹם

Thus, when the people brought their offerings to the Temple, they were given to the Levites in accordance with the various types of service they had been assigned in the hierarchy. Given their functions, the Levites had to be cleansed by Moses. In Numbers 8:6-7.

As a result, Aaron was assigned the responsibility of making expiation for them to cleanse them (Numbers 8:21) This was their graduation ceremony at which they received their degrees.

The attention then shifts to the average Israelite and the sacrifices he must make, particularly on Passover. (Numbers 9-10) Only when all these elements were in place could the Israelites set out on their journey from the wilderness. Then Moses is challenged, first by his own brother Aaron and his sister Miriam for marrying a Cushite woman. (Numbers 12:1) They also made a claim that the Lord also spoke to them. God intervenes and chastises the two siblings, extolling Moses for his humility and insisting that it is only with Moses that God speaks face-to-face.

It is only then that we hear the story of the twelve scouts, leaders from the different tribes, sent out to spy on the Promised Land and to report back to Moses. Ten are pessimistic. Two are not. Moses is upset at the report of the pessimists who also affirmed that the land indeed flowed with milk and honey, but warned that the people were powerful and the cities fortified. For their intelligence, they are accused of “false news,” of spreading calumnies among the Israelites, exaggerating the size of the inhabitants and their ruthlessness.

The news demoralized the Israelites. As Moses and Aaron humbled themselves by letting their faces fall to the ground as is the custom among Muslims until this day, the two optimists, Joshua and Caleb, asked that they trust the Lord to deliver this land flowing with milk and honey to them. In Numbers 14:9 they are told that conquest will only be possible if they do not rebel against the Lord and set aside their fears of the inhabitants. When the Israelites rose up to pelt them, the Lord intervened, appeared in the mist of the people and accused the Israelites directly of spurning Him. The morale and determination of the Israelites would be a test of the power of the Lord and of His ability to deliver what He promised. Moses intervenes with God and defends the people from God’s wrath for their lack of faith.

Thus, the rebellion of Aaron and Miriam against Moses is deflected. The rebellion of the people against Moses’ plan to conquer the land in accord with God’s promise is deflected. And God tells Moses how the people are to offer sacrifices to Him once they enter the land. It is in the context of the narrative that the so-called rebellion of Korach takes place. It is against this background that the protest of Korach has to be explicated.

With the help of Alex Zisman

The story of Korach read this past Shabat is perhaps more relevant today than any of the portions of Numbers read in the last 4-6 weeks. The story is also simple. The interpretations and implications are not.

Korach, a great grandson of Levi with an impeccable priestly heritage, organizes an elite protest of 250 elders of repute chosen by the assembly to confront Moses, not Aaron. But that is not how the narrator describes the action. The dissent is characterized as “rising up,” “combining against” Moses and Aaron. Not a petition. Not a protest. Not even a confrontation. The action is described by the narrator as a rebellion. And commentators generally agree.

Yet, there are no arms involved. There is no claim that Korach and his fellow priestly complainants would refuse to follow Moses’ instructions. Or even that they wanted to remove Aaron from his role as High Priest, though the implication may be that they wanted at least parity with Aaron who, on appearance, received his appointment through nepotism.

How does Moses handle the protest? Initially by a technique with which we are all familiar through the behaviour of Donald Trump – by distraction. Moses insists that the issue is one of the right of access to God, not parity among Israelites or even priests. More significantly, Moses, when confronted by another pair of dissidents, suggests that the protesters are accusing him of corruption when they have said nothing about Moses taking money or bribes. Finally, Moses insists that they are not just complaining about Aaron’s supreme authority in matters of worship, but they are in rebellion against God. What appears initially as a claim about status and parity has now been characterized by Moses as a challenge to the authority of God Himself.

How is the matter settled? By a duel. By a duel of frying pans.

Who wins? Moses. How? By the same fate that met Aaron’s two eldest sons when they erred in how the fire pans were to be used. Korach’s 250 other protesters were incinerated by a divine fire. The other challengers to Moses’ political performance, rather than opposition against a priestly hierarchy, (still to be described), were all swallowed up by the earth rather than incinerated. Yet Korach and his followers in asking for parity did not indicate that they were challenging Aaron’s (and his descendants’) exclusive right to use fire pans to burn incense before the Lord at the High Altar. Except perhaps by implication. For they were questioning Moses’ claim of exclusive access to the word of God and Aaron’s reciprocal exclusionary role in the human worship of that same God.

Questioning Moses’ and Aaron’s claims for exclusionary status became a high crime worthy of instant death. As a result, never again could a Levite, let alone an ordinary Israelite, challenge the authority of the High Priest. From then on, the Holy of Holies was even more off limits to other Levite priests as well as ordinary Israelites. The Levites would retain their exclusive duties regarding the Tent of Meeting, but only Aaron and his descendants, the High Priest among the priesthood, would be responsible for the furnishings of the Shrine and the altar. The other Levites were permanently demoted.

How and why did a democratically authorized complaint rise to treason worthy of capital punishment without any right of appeal? And, most interestingly, why was Korach not himself incinerated or swallowed up by the earth? After all, he led the protest. “The earth opened its mouth and swallowed them up with their households, all Korach’s people and all their possessions.” (17:32) All Korach’s people. And all their property. But not Korach himself.

But the text appears contradictory. For later it is written that Korach, though not incinerated, was swallowed up; instead of being consumed by fire instantly, he was buried alive. Further, his sons were excluded from this capital punishment. “Whereupon the earth opened its mouth and swallowed them up with Korach.” The fire consumed the two hundred and fifty men—and they became an example. “The sons of Korach, however, did not die.” (Numbers 26:10-12)

Deuteronomy (11:6) even suggests that Korach was not part of the rebellion even though he was a leader of the protest. For of the leadership, only Dathan and Abiram, sons of Reuben, were destroyed by burial. (See also Psalm 106) As was Korach. Numbers 17:5 states unequivocally that Korach did die in depicting the culmination of the duel of the frying pans that were to be hammered to decorate the high altar as a reminder of what happens to traitors, But the text does not say there how he died; it appears that he, unlike the other priests, unlike the eldest sons of Aaron who were consumed by fire, was swallowed up by the earth. So he, like Dathan and Abiram, was delivered to a dastardly death.

The text becomes even more confusing when the protest and consequence of Korach’s so called co-conspirators are described. Whereas Korach addressed Moses with the complaint, Dahlan and Abiram, Reubenites rather than Levites, with no complaints about parity in priestly duties, went further. After all, they were descendants of the first born. They would not even talk to Moses. They would not obey his summons. “Will you put out the eyes of these men? We will not come up!” (16:14)

Dahlan and Abiram also seemed more aware of the fate that awaited them as a result of the disagreement. And they seemed to be even more incensed at the extreme response to a verbal or a silent protest of civil disobedience than even the issue of status at the centre of the Korach dispute. Further, the problem was not simply that Moses as a leader had failed thus far to bring them to a land of milk and honey and/or had not settled them on farms or vineyards, (or, if you rely on the new criticism, that Moses indeed had taken them from the wilderness and settled them in a fertile land, but one that required strenuous farming labour as opposed to a land flowing with milk and honey), but that Moses was a tyrant in gouging out the eyes of protesters.

As a result, the Reubenites as a whole were not simply demoted as Reuben had once been; they ultimately disappeared as a tribe. Like their primal ancestor, Reuben, who had slept with Bilah, his father Jacob’s concubine (Genesis 35:22), the Reubenites now were also accused of usurping power and authority, though there is no evidence in the text that they did anything more than disobey, and not simply express their dissatisfaction with the state of events.

To the style and substance of the protest of the Reubenites, Moses was even far more defensive and much more deeply involved in the political art of distraction. Though Dahlan and Abiram never accused Moses of any crime, Moses proclaimed his innocence. He not only had never taken a bribe, but he had not asked for any support from the community to pay for his leadership. Like Trump, he never drew a salary. He had not so much as taken a donkey, the same defence that the Prophet Samuel offered in the Haftorah reading this past Shabat (I Samuel 12:3). Moses and Samuel both claimed that they had played a benign role and had not been either exploitive or self-interested.

What is going on? What was the high crime worthy of a punishment of death? And why the discrimination concerning the penalties meted out?

Before I turn to Korach as well as the protest of Dahlan and Abiram, I want to zero in on Moses’ behaviour more intensely. But it is first important to put forth the dominant interpretation of the text, namely, that Korach was a rebel deserving of punishment and that Moses, whatever his failings, was a blessed and great leader of his people. This is not a view restricted to the Orthodox and the ultra-Orthodox but is one shared by many if not most Reform interpreters.

Rabbi Lisa Grushcow writes, “In Korach, we learn of a tribal leader who believes he is equal to – and is jealous of – Moses. The portion reminds us to look within and see where we are on the spectrum of humility and arrogance, and on the scale of selfishness and selflessness.” There is no reference in the text to Korach being motivated by jealousy. That is an interpolation. Korach does not believe he is equal to Moses, but does initiate a discussion of priestly parity rather than democratic politics, though the text makes clear that Korach observed democratic niceties and made sure that the 250 selected to join him were chosen by the assembly. Finally, by loading the dice in making the political issue one of psychology, and a narrow band at that, the comparison clearly seems, on the surface at least, to favour Moses over Korach.

“Arrogance is comparing yourself to other people, and humility is comparing yourself to yourself.” Korach does the former; Moses does the latter. Case closed! Dena Weiss, citing Rav Kook, insists that the political claim and the psychological portraits are linked.

Korach does not insist that he is the greatest. He does not even, in fact, compare himself to others except in the sense of asking for ritual parity – a religious-political rather than psychological claim. We are all equal before God. He offers an argument against superiority. Moses, though he fell on his face on hearing the petition, does not exhibit humility either, even in the sense of insisting that he is simply being true to himself. Instead, Moses proposes a duel, the duel of the frying pans, as a proof of who has been chosen by God as God’s messenger. Moses seems self-assured of victory.

“Korah’s claim is that Moshe and Aharon are monopolizing the available leadership roles in a way that is not justified. All of the people are holy and worthy of serving God, yet Moshe and Aharon are in the positions that are most prominent and most proximate to God. Moshe demonstrates that he and Aharon are both suited to their roles and chosen by God, and his response highlights what it is about his character that makes him so deserving. Moshe’s reaction teaches us what it means to truly serve God with wisdom and humility, whatever your role is and whatever your talents may be.

“Moshe never responds to Korah on Korah’s own terms. Korah wants Moshe to justify a claim that Moshe is better, but Moshe will not. Moshe’s concern is to demonstrate that he is intrinsically worthy. He devises a test to legitimate Aharon’s right to be the Kohen Gadol, by having all of the pretenders to the priesthood offer incense alongside Aharon. When God chooses Aharon in this test, the choice of Aharon will be vindicated.”

Weiss claims that the superiority of Moses is demonstrated by both his accomplishments and his humility in refusing to compare himself to Korach. Instead, Moses “shows the importance of holding oneself to an absolute standard. He isn’t less corrupt than other politicians; he is simply not corrupt. He isn’t better than his competition; he is just objectively good. He looks only at his own behavior and evaluates it on its own terms.”

However, Weiss does admit that the examples Moses offers are both underwhelming and strange. What does a claim of non-corruption have to do with Korach’s request that equality among priests be discussed? Is Moses like Trump, making a claim that he is already so wealthy he does not need to be corrupt? Further, to be wealthy is to prove yourself worthy. However, a statement about one’s wealth is inherently comparative, undermining the claim of humility based on a refusal to engage in comparison. But, the rebuttal goes: the issue of wealth or poverty, humility of character rather than humility of circumstances, is what counts. The latter is relational and situational. The former is absolute.

“(T)he humility of someone who is weak, impoverished, and unlettered can’t be compared to the humility of one who is strong, wealthy, smart, and even tall. For the first one’s humility comes to him naturally on account of his lowliness, whereas for the second, his soul’s advantages and his own talents awaken a spirit of arrogance in him and inspire him to step on the heads of the people beneath him.”

Trump, on the other hand, is both a man of great wealth but not the least bit modest. Moses, in comparison, is a model of humility, not because he believes he is undeserving or has accomplished little, but because he measures himself against an absolute standard. Is he the best he could be in his own eyes? In God’s eyes?

Does the text support the claim that this is really not a political battle but a clash about virtue, a fight between the merits of arrogant leadership, even if rooted in popular support, versus “true” modesty even if running against popular will?

With the help of Alex Zisman

What have I been doing binging on watching 24 episodes of the Israeli hit Fauda from its first two seasons? A third season is scheduled to come out in 2019. I had vowed to watch only those series with at most 6 (though one time it was 8) episodes. I did not like getting hooked. I have clearly broken my promise to myself. (When I read about the show online, I learned that I am not the only one.)

One explanation I offer is that I initially thought that it was an 8-episode series in one season because, unless you scrolled down, only the titles of 8 episodes appeared on the TV screen. I soon learned otherwise – there were 12 episodes. And there were two seasons. But I kept watching.

In March of this year, this original Israeli production of this action thriller, now on Netflix, swept 11 Israeli awards. For 2016, the show, which initially debuted in 2015, won six prizes at the Israeli Academy Awards; the excellent acting, script, plot and settings partially explain why I kept watching. The New York Times declared the show the best international series in 2017 and 2018.

I was certainly not entranced because of the dubbing of the Hebrew into English. Though not badly done, I generally find dubbing too annoying. This happened when I watched Berlin Babylon. I simply quit after 3 episodes. But most (evidently 70%) of the conversation of Fauda is in Arabic with English subtitles; that is one relief. Further, I learned that I could watch in the original Hebrew plus subtitles if I followed the following procedure:

• You should get to the Fauda show on Netflix and press the icon
• You will see at the bottom left “Audio and subtitles”
• Scroll down and press enter:
• Check English on the subtitle and scroll down and check Hebrew on the Audio.

These very simple instructions were too difficult for me and I simply watched the few remaining shows in the dubbed format. That alone is an indication of how compelling I found the series.

Another explanation for my compulsion in watching a terrorist and counter-terrorist thriller was because of its psychological and political realism. That is because Lior Raz and Avi Issacharoff, who wrote the script, both served in the elite IDF’s Duvdevan Counter-Terrorism Unit. (In Hebrew, duvdevan means cherry and the unit is considered the crème de la crème.) While all special units of the IDF of necessity are intelligence gathering operations, unlike the Israeli Seals (S-13), the Air Force 669 unit and the Yamam police unit, which are dedicated to hostage rescue, Duvdevan focuses on infiltration, and intense and aggressive actions. Unlike the Yamas undercover police unit, Dudevan does not concentrate on ambushes.

Formed in 1987 to handle the first Palestinian Intifada in which 160 Israelis were killed, Duvdevan was an undercover unit made up of soldiers who spoke fluent Arabic, had mastered Arab and Muslim practices and habits, and was capable of rapid, efficient and effective counter-terrorist interventions and undercover operations against Palestinian militants and terrorists who worked from bases in the crowded urban centres of Nablus, Jenin and Ramallah, Khan Junis, Jabalia and Hebron. Most of the episodes were shot in the Israeli Arab town of Kafr Qasim. In the series, the unit is simply called the Mistaravim or undercover unit engaged in hit-and-run operations on a daily basis, though the first 12 episodes were actually shot during an actual war – Operation Protective Edge. However, these special forces form a counter-terrorism rather than combat unit ready for deployment in war.

The work the unit is engaged in makes for great drama that is both exciting and very dangerous, but the series also concentrates on the personal and psychological costs to the members of the unit. In the episodes, the members of the unit are not just action figures; they have troubled lives, much of that trouble having to do with the work they do.

But the realism of the show comes even more powerfully from the way that the Palestinian security forces, the Hamas units and the ISIS terrorists are portrayed. They too have rich personal lives and are not just stick figures. The series humanizes the combatants on both sides, even though both sides are mostly engaged in inhumane practices. The realism is also enhanced by the range of weapons and their accurate use – Glock pistols, micro-Uzis (compact and concealable), SIG-Sauer 228 9mm pistols and M16s for backup. There is the usual RBT (Reality-Based-Training) involving boxing and martial arts and getting beaten up by your own unit commanders and fellow members to toughen up a member of the unit. Lior Raz also plays Doron, the main character in the series.

In real life, in January 2008, the unit assassinated a major Islamic Jihad commander in the West Bank; the storyline borrows from real life events in creating the fictional narrative, sometimes suggested by the dedications. I believe the role of Taufiq Hammed (Hisham Sulliman) at the beginning of the series, where Taufiq is called Abu Ahmad and nicknamed “the panther,” was based partially on the life and death of a real terrorist.

If Abu Ahmad was a thorough professional terrorist, two Palestinians are portrayed as villains. Walid Al Abed (Shadi Mar’l), who begins as a twenty-year-old toady to Abu Ahmad, emerges as a combination of childish infantilism and ruthless killer. Whatever his pathological mixture of jealousy, suspicion and devotion to murder, and whatever his faults before he is killed, he cannot be compared to the psychopathic very handsome and very urbane Nidal “El Makdessi” (played brilliantly by Firas Nassar), an ISIS terrorist fanatic.

A source of the power of the film is that the Palestinian side has a much wider range of characters, from Bedouin friends of the Jews to co-operative Palestinian security commanders to various stripes of terrorist. But the variety of Palestinian women are almost more intriguing than the men, especially Dr. Shirin El Abed (eeed them yesterday. Today, I am tempted. The main problem is not simply tiredness, but I have difficulty rai Walid’s cousin and eventual wife, but also Doron’s mistress. It is usually the women who infuse both sides with the bounty of humanity, even the one woman in the undercover unit, Nurit (Rona-Lee Shim’on). Though capable of killing, she breaks into tears when she has to watch captives being tortured.

The pattern of each episode is also unusual since each one generally starts with a striking and very violent incident. Instead of being the violent culmination of a series of actions, the opening serves as the base from which the psychological dimensions of the conflict are exposed. This is not a series about the politics of the Israeli-Palestinian conflict, but about the internal, interpersonal and group tensions that arise in such conflicts. For the war between the Israelis and the Palestinians is matched within each side by rivalries, and, on the Palestinian side, also by ideology that simply makes the Israeli-Palestinian struggle only a small part of the drama.

Fauda translates as “chaos”, but the story is not about chaos in any ordinary meaning of the term since, on both sides, there is a very high degree of organization, discipline and order. The plot may become confusing at times because of the large cast of characters, but the drama itself is very focused, the message always given to the unit when they head out for an assignment. “Keep focused.” I would have preferred the title, “Tit-For-Tat,” or even “Tit Tit for Tat,” for the running motif is blood for blood, brother shot, brother-in-law killed, father shot, the other father killed. It may seem endless, but there is a positive note that runs through the series.

And this is the ultimate reality. This week alone, the IDF retaliated in Gaza against terrorist rocket fire and the Israeli Air Force pummeled nine Hamas targets. By mid-week, Israel’s Shin Bet Security Agency thwarted a mass bombing of Jerusalem and Tel Aviv targets by capturing the conspirators. The series is reality.

In the 1960s, I first met Anatol Rapoport through his wife Gwen at the University of Michigan in Ann Arbour. Subsequently, in 1970 his family moved to the Wychwood Park neighbourhood in Toronto to ensure his children would not have to serve in the Vietnam War. My youngest daughter, and Gwen and Anatol’s son, Tony, became romantically involved as teenagers. Anatol, a professor of psychology at the University of Toronto (as well as a brilliant pianist), was a mathematician who invented, in collaboration with Ken Boulding and Ludwig von Bertalanffy, general systems theory, known in its popular form as game theory. The simple Tit-For-Tat game provided enormous insight then into the Soviet-American rivalry at the time and forms the foundation of the Fauda series.

Fauda is a case study of Rapoport’s insights into fights, violence, war and peace. Anatol’s entry into the 1980s computer competition on Tit-For-Tat had only four lines of code. The program begins with cooperation between opponents, similar to the cooperation between Captain Gabi Ayub (Itzik Cohen) of the IDF and Abu Maher (Qader Harini) head of the Palestinian Authority’s Security Service. Tit-For-Tat is not just about revenge, about blood for blood. It is also about how positive reciprocal behaviour begets positive behaviour from the other side. But when one side defects from that cooperation, mayhem breaks out. Players on each side are rewarded for cooperation whether with the other side or with other members of one’s own team. Players when they shift into selfishness are sanctioned by punishment from the other side or rivals within and among one’s own side.

That is the base line real power of the series. In all its aspects, it explores the various dimensions of Tit-For-Tat game theory. When behaviour becomes self-centred, as it does even for Doron, the results can be catastrophic, perhaps nowhere more than when Doron turns against his Palestinian mistress when his own father is killed by terrorists. Blood feuds are perhaps the most basic part of the negative side of game theory, even though game theory also provides insights into the establishment of cooperation. And contrary to many who have watched the series, I do not believe the message is that the conflict is intractable. (My highly respected colleague Derek Penslar holds such a view, substantiated because Fauda shows that Israel has become part of the Middle East.)

One side implication was Rapoport’s work on social network analysis. The speedy flow of information through social networks is crucial to effective cooperative action allowing both the diffusion of innovation as well as the epidemic of contamination to flow through social organizations and work either creatively or destructively. Just as the Vietnam War was a war that neither side could win, though North Vietnam emerged initially as the ostensible victor, the Israeli-Palestinian conflict is one that neither side can ultimately win even though Israel is clearly the victor at this time.

To remain victorious Israel will have to reward the Palestinian Authority for its cooperation while, at the same time, punishing those who undermine that potential through violence. To the extent it fails to do so, to that extent will divisions and bad blood be created among the members of its own side, let alone between Israel and the Palestinians. The Tit-For-Tat format, however depressing in most instances, is also uplifting in that there is both a demonstration of cooperation as well as conflict between the two sides and among the members of each side.

With the help of Alex Zisman

On 18 May 2018, the UN Human Rights Council passed a resolution calling for the Council to “investigate all alleged violations and abuses of international humanitarian law and international human rights law” in the Occupied Palestinian Territory and particularly the occupied Gaza Strip, since 30 March. That was the official date when demonstrations under the banner of the “Great March of Return” along the border of Gaza with Israel began.

Is there an international law that obligates countries, that is, independent nation-states, to permit refugees to return from the land from which they fled or were expelled? This is a key question. For it determines what the rights of the protesters are as well as the nature of the current conflict on the Gazan border. This does not mean that other alleged violations of international law and international human rights law did or did not occur. But until the latter issues are contextualized under the claim of an international right of return, it is difficult to really grasp the nature of the conflict let alone determine what if any international humanitarian or human rights laws were abused.

The demonstrations supported and organized behind the scenes by Hamas were called the “Great March of Return” for a reason. Further, the committee organizing the mass demonstrations along the Gaza-Israeli border called for “peaceful,” not militant, demonstrations, and did not call for efforts to return by either force or the mass of numbers, but to “visit” the area adjacent to the Israeli security fence. Even Hamas, a key organization behind the protests, called on Palestinians to remain “peaceful” even if militancy was indirectly strongly supported.

Indeed, the vast majority of demonstrators could be located 500-700 metres from the fence. There is no evidence that any of these demonstrators were killed or injured. However, most international reports, and, indeed, Israeli ones, conflated the two types of demonstrations even though, upon initial examination, this would seem to undermine Israeli efforts to win the war for international public opinion. Why would Israel do that?

One reason is that Hamas, unlike Gandhi’s marches in India, did not rule out the use of force. Quite the reverse. Hamas insisted that its members would not hesitate to use force if Israel used force to disperse the demonstrators. With one aberrant exception, I could find no evidence that Israel used force to disperse the demonstrators who stayed away from the fence. Instead, Israel threatened to take severe measures against Palestinians who tried to damage the security fence or, even worse, force their way into Israel.

Hamas, which controls Gaza, celebrated the demonstrations in advance for the “sacrifices for the sake of adhering to their rights, maintaining their identity, sticking to their land, resisting all attempts to wipe them out, and rejecting all forms of normalization.” If a peaceful demonstration was planned that did not challenge the Israeli security fence, why would there be any sacrifices? Hamas made clear that the demonstrations were about the “right of return,” about the refusal to surrender their claim to land in Israel or even to the land of Israel in general. Their identity was as intricately tied to the land as the Zionist program of return over the twentieth century. Further, Israel’s efforts to deny such rights were equated with genocide and with the attempt to eradicate the culture and identity of a people. To that end, there could be no normalization between a Palestinian entity in Gaza and Israel since the very creation and continued existence of Israel was itself considered the genocidal act.

In the words of Hamas, Land Day (March 30^th) “is a source of inspiration that reminds Palestinians of the right of return” and “will remain an occasion of sacrifice for the sake of restoring Palestine.” The tents set up 500-700 meters from the border were called the “Tents of Return.” The violence was not simply the result of the efforts of a small portion of the demonstrators attacking the security fence, but of the context which defined the right of return as an either/or choice – either Palestine or Israel but not both.

If Palestinians believe in and want to operationalize a “right of return,” it cannot be accomplished except by war. As Elazar Barkan and I demonstrated in our book, No Return, No Refuge – Rites and Rights in Minority Repatriation,” (Columbia University Press, 2011) there has not been one case of significant return of a minority driven out or which fled except behind an army. The Tutsi return to Rwanda between 1990 and 1994 was only made possible through war. This was also true of the Kosovars. In other words, not only Hamas, but the Palestinian Authority that supported the demonstrations, were holding onto the principle of a “right of return.” This is not a right written into international law and was not even part of the UN armistice agreement of 1949.

The source cited as promulgating the “right of return” is most often the section of the 1949 UN Resolution 194 dealing with refugees. That section resolved that “the refugees wishing to return to their homes and live at peace with their neighbors 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 the property which, under principles of international law or in equity, should be made good by the Governments or authorities responsible.”

Resolution 194, as stated above, widely cited as the basis of a right to return, never declares that it is a right. In fact, even among Palestinians, the passage was only interpreted as a right in later UN resolutions of the late 1960s and ’70s. In 1949, it was stated as a moral recommendation. In effect, Israel “should” consent to return and to providing compensation to those who decided not to return. From 1949-1967, few self-respecting Palestinians would make a request to Israel to allow their return for that would de facto accept Israel as a nation-state with the authority to make such a decision.

However, in the aftermath of 1967 and the Six Day War, Rashid Khalidi reformulated the right to return from a right to individual Palestinians to move back to their individual homes or, alternatively, claim compensation, to the right to return to a Palestinian homeland. It became a general claim of a right to self-determination for the Palestinian people.

During the Oslo negotiations between 1993 and 2001, the multilateral talks on water went well. The discussions on security and the recognition of Palestinians having an independent state also were successful. There was even a tentative but never completely resolved agreement to an exchange of territories, land for peace. However, there was no agreement reached on Jerusalem. Further, what some of us expected to be the toughest issue of all, the discussion of the right of return of the refugees, in fact did achieve a breakthrough, even though ratification depended upon agreement on all other issues. That deal took Khalidi’s revision of the right of return another step by defining it as a return to the anticipated Palestinian state with compensation paid for lost properties in the territory governed by Israel. As a quid pro quo of these agreements, the Palestinians recognized Israel’s right to exist and renounced the use of violence and terrorism.

When the Palestinian Papers were leaked by Al-Jazeera on the years of peace negotiations revealing that the Palestinian negotiators were willing to surrender the demand for a right of return in exchange for recognition of an independent Palestinian state, the revelation was greeted by widespread shock and outrage that this centrepiece of Palestinian identity had been surrendered. Omar Barghouti, in an 11 September 2017 article, “Virtual Statehood and the Right of Return,” argued that, “Palestinian officials who have time and again colluded in eroding official international support for UNGA 194, as the Palestine Papers have amply shown.”

Barghouti was outraged that the core meaning that had emerged on Resolution 194 had been traded away simply for the recognition of the right of Palestinians to have a state of their own. He claimed that surrendering the “right of return” in Resolution 194 “is entirely divorced from the will of the Palestinian people, and those advocating it have no democratic mandate from the people to employ it in any way that jeopardises our UN-sanctioned rights.”

The demand for a “right of return” is a defining element of the Palestinian political movement and has, as Hamas and Barghouti noted, become central to the question of Palestinian identity. A large minority had accepted that proposition during the Oslo discussions and, therefore, had resisted those negotiations. However, since the collapse of Oslo, the issue has indeed become a defining element for possibly a majority of Palestinians, not just members of Hamas, and in an inverted proportion to the possibility of its realization.

However, the implication of retaining such a “right” entails perpetual war against Israel. The proposition poses a Hobson’s choice. Either there is a Palestinian state to displace Israel or there is no deal. Though Israelis may not like reading this, it is an understandable position. For if one insists on return, return to the original homeland as one’s own, such a goal can only be advanced through war and not through a peace agreement.

Therefore, the “peaceful demonstrations” of the Palestinians on Land Day on 30 March meant only war by other means. The demand for return is a political slogan, not a pragmatic outcome of peace negotiations. The slogan, simple and easy to repeat, reinforces an identity and the Palestinian claim to be the aggrieved party. It is not intended to advance the possibility of some return for some who lost their homes in 1948. Nor is it any longer a call for a return to a newly established Palestinian state alongside Israel. The slogan is now used to emphasize one’s bona fide status as a spokesperson for Palestinian nationalism and continuing rather than resolving the conflict with Israel.

In sum, the demonstrations planned for Land Day on 30 March were parts of the propaganda war in the battle between Israel and a major stream of the Palestinian movement in the effort to continue rather than end the conflict. The three previous wars in Gaza over the two decades of the twenty-first century resulted in widespread property destruction as well as a huge loss of life. “Peaceful” demonstrations along the security fence might result in some casualties – but nowhere near the number resulting from open general war. Further, international sympathy for the Palestinian cause would be enhanced through actions immersed in a Gandhian framework, even if not exhibiting Gandhian tenets.

In sum, the right of return was not part of the original meaning of Resolution 194. It became part of the meaning in the late sixties and seventies. It then morphed to mean a right of return to one’s own homeland as well as a return to one’s lost properties. Finally, it has become the slogan for a return of Palestine as the homeland for the Palestinian people and the elimination of Israel. The Great March of Return demands a Palestinian right to return to a pre-1948 homeland in historic Palestine.

It is in this context that breaches of international humanitarian law and human rights law must be examined as well as examining the details on the conduct of the war by either side.

With the help of Alex Zisman

From the previous analyses, what seems clear is that there were peaceful demonstrations as well as relatively small militant actions from the Palestinian side, although near the end of May the war escalated. In response to Israel killing three Islamic Jihad members in an observation tower watching a Palestinian trying to plant a bomb near the fence, the jihadists fired a total of 51 mortars in two volleys into Israel. One mortar got through the Iron Dome Defence to damage a kindergarten but no lives were lost. In return for the mortar fire, Israel resumed its bombing of Gaza positions.

Though these were unequivocally military actions, even in the Great March of Return, the vast majority of those killed or wounded by the IDF were not peaceful protesters. They were militants who tried to cut the barbed wire, destroy Israeli equipment and even breach the fence. Many were armed and many more attacked Israeli troops with fiery Molotov cocktails.

What happened on the Gaza border in the six weeks from 20 March until mid-May was a militant attack on the border against the background of large peaceful demonstrations, but none, not even the one on Nakba Day, was as large as projected by either side. Perhaps the leaflets dropped by Israeli aircraft warning that live fire would be used against those who came near the fence deterred many from showing up at the peaceful demonstrations. From the number of militants that participated, clearly militants were also deterred. But not entirely. Gaza militants continued their fiery kite attacks and resumed shelling Israel. Israel resorted to the use of airstrikes on command centres of the jihadists, not against the demonstrators or even the militants attacking the fence, but against military sites where Israel claimed mortar and machine gun fire had been used. Eventually, Egypt brokered a ceasefire.

This had been a war both in terms of the announced intent of the Palestinians, the militant attacks on the Israeli border and the IDF response. The applicable international law includes the rules governing just war. Israel was accused of using disproportionate force in repelling the militants, mainly because only 1 Israeli soldier was injured while 113 Palestinians were killed and many more injured. Many op-eds and statements went further and accused Israel of using lethal force to kill “unarmed protesters” since most of those killed were not carrying rifles.

The dispute was not focused on whether either side could be faulted under jus ad bellumrules, those governing the decision to go to war, as much as most countries might have disagreed with the Palestinian initiative in allowing militants as well as peaceful protesters to challenge the border. Given the political aims of either side, each side in its own eyes had legitimate reasons for resorting to militance.

For those of the persuasion that refugee return was a crucial goal for Palestinians, the means used in the militant attacks on the fence against a background of a peaceful demonstration seem to be justified by the principle of right intentions since, if refugee return is considered a legitimate political goal, then only military means seems able to achieve such a goal. The Palestinian effort, as far as Hamas is concerned, passes the test of a last resort. There is almost no likelihood of Israel agreeing to go out of existence. Neither Israel nor the Palestinians were fighting a war of aggression, that is a war extraneous to their own self-defence as a nation. And the only way the war can be fought to correct the alleged wrong done to them by the Zionists is a war to end the state of Israel and, by Israel, to defend the Jewish state, a war of self-defence.

The one criterion where the initiation of the war in 2018 by the Palestinians in Gaza might be considered as contravening the jus ad bellum rule is the one contending that war should only be resorted to if there is a high probability of success. Clearly the Palestinians had almost no chance of winning the war on the ground. However, wars these days are fought as much if not more on media as public theatre to win hearts and minds over to one’s cause. And given the results, Hamas can be recognized for winning on that battlefield.

Dialogue is not an alternative to war for either side since the aims of each party are absolutely incompatible. Dialogue might lead to limited truces but it is highly unlikely to end the resort to warfare if the aims of each side remain in place. Similarly, Israel does not engage in all out warfare against the Palestinians in Gaza because its aim is not victory over Hamas let alone the Palestinians, but the prevention of physical harm to Israeli territory and personnel.

However, most of the controversy is over the application of jus in bello rules, those governing the conduct of war. Many commentators questioned the proportionality of the Israeli response to the demonstrations and even the militant attacks on the border fence. Israel defended itself and insisted that, without the use of sufficient force at the security fence, thousands, even tens of thousands, would have poured through the breach and the result would have been both many Israeli casualties and many more Palestinian ones than the 100+ that were killed over the 6-7 weeks.

The issue of proportionality is not about the absolute numbers killed, though the criticisms have largely been based on that. The rule of proportionality demands that civilians not be killed as collateral damage in setting violence against violence. The exact proportion of civilians allowed to be killed without infringing just war norms as a ratio to militants has never been defined and, in any case, is very context dependent. On the surface, if about 80% of those killed were militants, this would appear to fall well within the range and proportions permitted under just war theory.

But though those killed may have been militants, many of them killed were not armed. In that case, should they be classified as civilians? Israel argues that their actions and intentions made them legitimate targets. Many humanitarian and human rights organizations claimed that intentionally killing unarmed persons on the other side of a conflict is a war crime. If the Jewish maid in the movie Exception had actually managed to kill Himmler, would she have been persecuted for a war crime? One would hope not.

The issue is not whether the militants were carrying arms at the time they were killed, but whether they were actively involved in a violent struggle with the opposition. Did each side take precautions to minimize the chances of innocent civilians being killed? Note that Palestinian demonstrators peacefully demonstrating, even if for a war aim, were innocent civilians. They become legitimate targets only if they are engaged in the violent struggle against the opposed forces. Trying to cut a border fence with armed militants behind you ready to plunge through that fence is normally considered part of an armed conflict.

Others accuse the Israelis of committing war crimes because of the type of force used, in this case, live ammunition that killed unarmed militants and some civilians, and tear gas that made many Palestinian peaceful demonstrators sick because the prevailing winds tended to blow the gas over the tent camps. Further, those who accuse Israel of war crimes insist Israel did not sufficiently explore alternatives to the use of live ammunition. After all, every Palestinian killed died on the Palestinian side of the fence. The fence was breached by very few. Israel was accused of breaking the norm of “last resort” in the way it resisted the Palestinian attacks on the fence. Domestic police use tear gas to disperse peaceful demonstrators.

In the context, however, the use of tear gas was imprecise. Also, gas drifted onto peaceful protesters. There was relatively little use of rubber bullets because of the range required. To control rioters, the “skunk” trucks used in the West Bank that spout foul-smelling water known as “skunk” that Israel regularly uses were also not employed because they too lacked the range. Besides, those trucks were not armored.

However, Israel unsuccessfully tried to use water cannons in the first stages of this conflict, but that did not seem to work very well. Using remote model aircraft with knives to cut down burning kites or balloons with Molotov cocktails is certainly permissible as is the use of those kites and balloons as part of warfare by the Palestinians. But when they are aimed at civilians and civilian properties? So too were the use of AK-47s and grenades a legitimate use of arms in the war between Israel and Hamas-led Palestinians. Israel claims that it used just enough force to ensure there was no breakthrough otherwise the casualties would have been much higher. If that anticipation was reasonable, then, arguably, both the wire cutters and the armed Palestinians did “pose an imminent danger to the lives of others.”

The one war crime that Palestinians are repeatedly accused of by defenders of Israel is of using human shields behind which the militants attack the Israeli forces. Alan Dershowitz calls this “the dead baby strategy.” (“Why Does the Media Keep Encouraging Hamas Violence?” 17 May 2018)

However, contrary to his assertion, and with no presentation of evidence, the accusation of Palestinians using human shields in the Gaza 2018 conflict seems misplaced, at least in this conflict. It is a false claim made by Israel and by Israeli defenders in the diaspora. First, there were very few cases of Palestinians being able to attack Israeli troops. Further, though there may have been the odd case of a possible use of a human shield, such as when a seven-year-old neared the fence (she, fortunately, was not shot), but no evidence has been provided that she was deliberately sent to approach the fence to serve as a shield for militants following behind her. In general, there does not seem to be a prima facie case that the Palestinians employed human shields during the 2018 conflict.

International and state leaders had urged restraint on both sides with most of the advice aimed at Israel. I too may believe that more restraint might have been attempted, but advocating less restraint does not make the use of less restraint in itself a war crime. The issue is whether a state or a belligerent is exceedingly unrestrained in its approach to dealing with the threat. Given Israeli warnings beforehand through dropped leaflets, given Israel’s unequivocal warnings about its red lines for the employment of the use of force and given the relatively low numbers killed in a battle that went on for 6-7 weeks, even though lethal force was used, far more by the Israelis than the Palestinians, for neither side does there seem to be much evidence that either belligerent used lethal means outlawed by the laws of war. Disagreements over the degree of force used and the rationale for it does not in itself mean that a war crime was committed.

There are recent clear and unequivocal incidents of war crimes committed by states such as in the American Vietnam War, the Soviet War in Afghanistan, the actions of the Serbs in the war in the former Yugoslavia, the use of banned chemical weapons by Syrian forces against its own people and certainly by the Islamicist terrorists who deliberately target civilians. However, there is no situation or actions committed by either side as a pattern in the 2018 Gaza conflict that seems to merit a general charge, though there may be individual cases justifying such a charge. Further, since in both cases the actions were considered as efforts at self-defence by both parties of their interests and war aims, the actions of neither the Palestinians nor the Israelis even came close to a breach of international law as when Trump ordered a militant response to the gas attacks of the Syrians without the authority of the Security Council. Sometimes breaches of international humanitarian law are defended on the basis of higher humanitarian principles.

Back to the issue of restraint. Just war norms demand that, given the military objectives, only sufficient force should be used to accomplish the military goals. Some commentators misconstrue this as requiring that minimum force be used to prevail, but that is not accurate. The word is “sufficient” not “minimum.” And interpretations by military strategists legitimately vary over what sufficient force is required. For the use of less force may be sufficient to prevail, but it may, on the other hand, have a much greater risk of higher casualties, particularly on one’s own side. There is no objective standard for defining restraint but only the guideline for commanders in the field who must weigh risk against the probability of success. This does not open the door to savage and unrestrained use of violence. Such situations demand careful judgement in the use of the tools of violence and the extent they are employed.

In sum, I may adamantly disagree with the goals of Hamas. Co-founder Mohamoud al-Zahar described the tactics accurately: “This is peaceful resistance bolstered by a military force and by security agencies.” The words were carefully chosen. Bolstered in this case meant using militants in a separate operation to attack the fence but the main effort was a large peaceful demonstration. Neither the peace cover nor the militant attacks attracted as many participants as planned and expected.

I also may adamantly criticize Netanyahu and the Israeli government for the tactics they employed to combat Hamas and the jihadists, but there seems little if any justification for a general prima facie case of commission of war crimes against Israel. This is true with respect to either side, certainly with respect to the justifications for recourse to war given the objectives of each side or the observation of moral boundaries within which each side operated.

One side or the other may have come too close to those boundaries of norms for my sensitivities in the conduct of the war, but neither breached those boundaries in general. The casualties, however distasteful, however upsetting, do not seem to be intentionally evil and outside the international moral code on the conduct of war, though some individual incidents require further investigation. The military means used by Israel may have been incommensurate for my tastes (and my proneness as a peacenik), but they do not seem to have been incommensurate with the threat faced given the risks of a reliance on the use of less force. Israel was not intentionally targeting civilians in general. Gazans were not resorting to their older tactics of using Katyusha rockets against civilian targets. Though Israel may have lost the media war, and lost it by a wide margin, the country may have pushed Hamas into finally adopting a peace strategy.

Time may tell.

With the help of Alex Zisman

The Palestinian flotilla to break the blockade has been stopped by the Israeli navy. The air battle in Gaza has taken a more serious turn as, following a large missile barrage on Israel from Gaza, aircraft bombed central Gaza in reprisal. In my previous blogs in this series, I have depicted two very different wars in Gaza in 2018, the public relations war and the militant war on the ground, in the air and possibly at sea. In the public relations war, the centrepiece has human rights and it still remains the most important war.

This is in spite of the fact that Hamas and even more radical groups:

• Try, and even sometimes succeed, in sending armed infiltrators into Israel
• Try to kidnap Israeli soldiers
• Engage in arson attacks against Israel with fiery kites and Molotov cocktails attached to the tails of kites
• Send missiles against Israel

These actions often targeting civilians and civilian property overlap with the debate over human rights.

There are two very different wars over human rights. The second war is the war over the protection of civilians caught up in the recent wars between Gaza and Israel. The first is the competition between the Palestinians and the Israelis over who can be the worst human rights abuser in their respective territories. Sometimes, the two are linked. In that latter rivalry, the Palestinians win hands down but that should be no solace for Israel which has recently been moving in the direction of a human rights abuser.

For example, Jafar Farah, Director of the government-funded Haifa Mossawa Center that advocates on behalf of Palestinian Arab citizens in Israel, was arrested at a protest rally and claimed that his leg had been intentionally broken by a police officer. This is in Haifa, the so-called “capital of coexistence.” More recently, 19 Israeli Palestinian protesters were arrested on 18 May in Haifa after the police dispersed a demonstration protesting the killings in Gaza. The incident turned into a public relations and legal victory for the Palestinian Israelis. Hassan Jabareen, Adalah’s general director and head of the protesters’ legal team, stated, “We succeeded to turn the courtroom from a space used against protesters into a space where police violence was exposed and rejected…due to social media, due to all of the videos, photos and testimonies that were posted by the people that told the true story of what happened on Friday night.”

In comparison, in 2014, a Gazan boy had his kneecaps shot off in public for posting an anti-Hamas comment on Facebook.

Following a request by Palestine and the Arab Group of States, on 18 May 2018, a special session of the UN Human Rights Council was held which ended with a resolution by Member States to investigate weeks of violence on the Israeli border with Gaza calling for the Council to “investigate all alleged violations and abuses of international humanitarian law and international human rights law” in the Occupied Palestinian Territory and particularly the occupied Gaza Strip, since 30 March, the date when demonstrations along the border with Israel began, dubbed the Great March of Return. The resolution was adopted by 29 votes in favour, with two (Australia and the U.S.) against and 14 abstentions.

Britain, along with four other EU countries, abstained. Alistair Burt, the Minister for the Middle East, explained the vote in the British House of Commons as follows:

We abstained on calls for a commission of inquiry into recent violence in Gaza during the UN Human Rights Council session on Friday. The substance of the resolution was not impartial and it was unbalanced. We could not support an investigation that refused to explicitly examine the action of non-state actors such as Hamas. An investigation of that kind would not provide us with a comprehensive assessment of accountability. It would risk hardening positions on both sides and move us further away from a just and lasting resolution to the Israeli-Palestinian conflict.

However, the United Kingdom continues to fully support the need for an independent and transparent investigation into recent events. We call directly on Israel to carry out a transparent inquiry into the Israeli Defence Forces’ conduct at the border fence and to demonstrate how this will achieve a sufficient level of independence. We believe this investigation should include international members. We urge that the findings of such an investigation be made public, and, if wrongdoing is found, that those responsible are held to account. The Foreign Secretary stressed the importance of Israel conducting an independent investigation when he spoke to Prime Minister Netanyahu on 16 May.

On the face, the UNHRC resolution is odd. First, Palestine seems to be regarded as a state. On the other hand, not only the West Bank, but Gaza is referred to as occupied territory. Second, one would never know from the resolution that combatants were involved on the Gazan side. The reference is only to demonstrators even though the mandate is to investigate the violence and “all alleged violations and abuses of international humanitarian law and international human rights law.” Third, the head of the UNHRC had all along denounced Israel’s use of excessive force and said nothing about militance on the Gaza side.

The most relevant international law usually cited in reference to international conflicts and conflicts in occupied territories is the Geneva Convention relative to the Protection of Civilian Persons in Time of War (GCIV), commonly referred to as the Fourth Geneva Convention. Adopted in 1949 and declared universally applicable in 1993 as customary law, the Fourth Geneva Convention, unlike the first three, deals with the humanitarian protection of civilians in war zones. Most of its clauses (27-141) deal with the status of “protected persons” that are irrelevant to this analysis. The most important relevant clauses are 1 and 4.

Civilians deserving protection are not simply passive onlookers. They may be protesters as they were in the camps behind the berms 300 metres from the Gaza-Israel border. However, as in the 1975 Moroccan government “green march” across the border into the Spanish colony of Western Sahara, a distinction was made between civilians and military that crossed the border. Civilians may engage in civil disobedience and ignore the injunctions of a military force. When such a group comes into conflict with an opposing military force, depending on the circumstances, they may be considered combatants. By definition then, they are not civilians. In the case of the conflict at the Gaza-Israeli border, the overwhelming majority of Palestinian demonstrators were without a doubt civilians. The question is whether those who tried to reach and breach the fence were.

Some of them were armed only with wire cutters. However, if they were not members or quasi members of any military or police force, they were still civilians. This may or may not be true of the 14-year-old girl who was killed while trying to cut through the fence with her wire cutters. On the other hand, the medic who treated Dr. Loubani when he was shot in the legs and himself was killed by an Israeli sniper even though wearing a medical jacket, was most likely a non-civilian since Musa Abuhassanin, aka Musa Jabr Abu Hasanin, was a known Hamas militant. In any case, it seems that about 80% of those killed were militants so the questions concerning the others killed requires an assessment under the Fourth Geneva Convention.

Note the definition is of civilians, not unarmed non-combatants. (Imams may be unarmed, but if they belong to a military organization, though non-combatants, they are not civilians who enjoy protection under the Fourth Geneva Convention.) A civilian is, “a person who is not a member of the military, police or firefighting force.”

On 31 March 2018, Amnesty International denounced Israel’s “violent suppression” of unarmed Land Day protests, stating: “Having consistently ignored the human rights of Palestinian refugees for 70 years, Israel must at least hear their demands and allow peaceful demonstrations and protests to take place.” But Israel did. The camps 500-700 metres from the fence were not normally attacked, though on some days tear gas drifted into them because of the prevailing winds. One tear gas attack directly on a demonstration seemed to be an aberration. The peaceful demonstrations continued every day over a six-week period. Live ammunition was overwhelmingly used against those who tried to breach the fence and some stone throwers and fiery kite fliers.

Yet Amnesty called for “independent and effective investigations to be launched immediately into reports that Israeli soldiers have unlawfully used firearms against unarmed protesters.” Did Israel or did it not? It may have in some cases. My review of the evidence indicates that Israel generally did not use live ammunition against those defined as civilians.  The problem is that Amnesty International first makes the judgement and then calls for an inquiry into what it claims are facts.

Unfortunately, to some degree, Prime Minister Justin Trudeau did the same thing. Prior to Prime Minister Justin Trudeau’s statement criticizing Israel for its use of excessive force, proponents of the Palestinian cause had claimed that Canada flouted the Fourth Geneva Convention under Article 1 by not ensuring respect for the Convention because Canada allegedly failed to take any concrete action opposing Israel’s violations of the Fourth Geneva Convention.

There has been no equivalent international support for Shurat HaDin’s request that the Prosecutor of the International Criminal Court investigate the Hamas leadership and, in particular, the deliberate targeting of Israeli civilian farms and towns. Further, very little criticism from the international media is leveled against organizations like the Palestinian Center for Human Rights (PCHR) which in the same paragraphs claims Israel uses excessive force against Palestinian peaceful demonstrators while it depicts Palestinians “swarming” to the border to break through the border fence.

The response to the Great March of Return is depicted as “suppression” by Israel and unsubstantiated claims are repeatedly made that Israeli IDF forces deliberately target peaceful demonstrators. The proof: the number of casualties characterized as “unjustified” and the result of the deliberate targeting of civilians. The demonstrations are repeatedly referred to as “fully peaceful” and Israeli responses as “fallacious incitement.”

PCHR reiterated its call “upon the High Contracting Parties to the 1949 Fourth Geneva Convention to fulfill their obligations under Article 1; i.e., to respect and ensure respect for the Convention in all circumstances and their obligations under Article 146 to prosecute persons alleged to commit grave breaches of the Fourth Geneva Convention.” To understand the core of the external human rights conflict we will move in the next blog to the analysis of the Fourth Geneva Convention.

With the help of Alex Zisman