The Settlements and the Burial of Sarah in the Cave of Machpelah

Parashat Chayei Sarah חיי שרה 

by

Howard Adelman

There is just too much going on. This week and last week I spent two days of each week glued to my television to watch and listen to the historic impeachment hearings with respect to President Donald Trump of the United States. In Israel, this past week, not only did Benny Gantz fail in his efforts to form a government, but Israel’s Prosecutor General, Avichai Mandelbit, with an evident heavy heart for charging his mentor, Bibi Netanyahu, out of duty to the rule of law, announced the indictment of the Prime Minister of Israel on three charges, bribery, fraud and breach of trust, of which the most serious was bribery. Bibi called these legally laid charges “an attempted coup.”

The actions for which Netanyahu was charged echoed precisely what Trump has been accused of – using his official position, not to advance the national interests, but to undermine those interests by offering to trade favours – a meeting in the Oval Office and the release of over four hundred million dollars of armaments and aid – in return for the President of Ukraine announcing a probe into the role of the Bidens in a Ukraine utility company with a questionable record with respect to legality. Biden senior would possibly be Trump’s opponent in the coming presidential election campaign and the announcement of such a probe would stain Biden in the contest. The American President had allegedly held out the attraction of an Oval Office visit and releasing of funds for personal gain, namely besmirching the name of a possible, even perceived as likely, political opponent.

The third grenade rather than bombshell blew up in Canada amongst the Jewish community about how to respond to Canada neither voting Nay nor abstaining, but voting is support of a North Korean sponsored UN resolution at the UN General Assembly’s Third Committee supported by 164 other countries, entitled, “Right of the Palestinian people to self-determination,” a right that was uncontroversial for even Israel. This was the same week that the U.S. State Department announced that it would no longer consider the Israeli settlements in the West Bank illegal. In the past, both Liberal and Conservative governments have not just abstained but voted against similar resolutions. Why? Because the resolution calls for “an end to the Israeli occupation” and for the preservation of the “territorial unity, contiguity and integrity of all [my italics] of the Occupied Territory, including East Jerusalem.”

The radical shift in the Canadian voting pattern was on no one’s radar as far as I can tell and appeared to be linked with another favour of a third and very different kind, trading Canada’s positive vote in return for support for Canada acquiring a non-permanent seat on the UN Security Council. In this case, there was no claim that the exchange was illegal (the Netanyahu case) or improper and possibly an impeachable offence in the America case.

The Canadian switch was questioned, not because the action of passing the motion was either illegal or even improper, even if it was supported because of Canadian national interest, but because of opposition to the substance of the motion and the policy shift as well as lack of notice so that the policy change could have been debated. Prime Minister Justin Trudeau had just announced his new cabinet following the recent Canadian elections. The new Foreign Affairs Minister of Canada, François-Philippe Champagne, insisted that Canada had explained its position to its allies and had been in touch with members of the Jewish community about its decision to support the UN resolution.

The question was when, since it was clear that notice had only been given only very shortly before the vote was taken. The reaction among the established organizations of the Canadian Jewish community was initially relatively weak. Michael Mostyn of B’nai Brith expressed his organizations disappointment. Jeffrey Rosenthal co-chair of CIJA, the Jewish lobby Centre for Israel and Jewish Affairs, called the vote a “distressing departure.” Karen Mock, President of JSpace, downplayed the Canadian vote, insisting that it made no difference to its passage and did not imply that Canada supported all parts of the resolution, even though Canada’s vote this time was unqualified (there was no EOV, explanation of vote that underlined the parts which Canada supported, those it did not support yet why, on balance, Canada supported the resolution).

Karen, nevertheless, insisted that, “The occupation should be condemned. The right of self-determination for all people’s emphasized, and the direction the U.S. is going re annexation and settlement expansion should definitely be opposed if we want Israel to remain Jewish and democratic.” Yet the resolution only supports the Palestinian people’s right to self determination and the Jews are left as resident aliens. Further, the resolution does not simply oppose annexation and settlement expansion, but deems all settlements illegal – contrary to a ruling of the Israel Supreme Court. The territory on the east side of the Old Green Line is referred to as “occupied Palestinian territory,” including the Jewish quarter in Old Jerusalem, that is occupied by Israel when it belongs to the Palestinian people according to the resolution.

Israel’s ambassador to Canada, was much stronger than B’nai Brith and CIJA, and certainly JSpace. “We think the resolution is not a substantive resolution, but an attempt to delegitimize Israel and is part of the whole package that should be rejected out of hand.” The Israeli Supreme Court has upheld the practice of “enclave law” in Area C of the West Bank wherein Israeli Military Orders are deemed to include the application of Israeli domestic law, such as educational, labour, welfare, property and health law. The effect was to make the combined military legislation and extraterritorial application of domestic legislation as, in effect, making the old Green Line irrelevant in law. In contrast, Palestinians still resident in the territory are ruled under a combination of Jordanian and military law. Any future of the development of law with respect to the territories as a whole was left to future negotiations. This was the case prior to the efforts to expand Israeli sovereignty to significant parts of the territory of the West Bank while expanding the application of the concept of what was to be included under sovereign control.

These momentous events, in Israel, the U.S. and Canada, took place in the very week that we read Parashat Hayyei Sarah in synagogues, a portion that begins with Abraham’s purchase of the cave of Machpelah as a burial site for his beloved Sarah. (Genesis 23:1-20) Sarah died in Kiriath Arba – now Hebron – where Israel now had one of its most controversial settlements in the West Bank. In that portion, Abraham was a “resident alien” among the Hittites, the dominant population then in the area. The Hittites offer the grave site free to Abraham. However, twice Abraham politely rejected the offer and insisted on paying for the grave site at “market rates” – four hundred shekels of silver, a price that seems exorbitant – for the cave and the surrounding fields just outside of Hebron.

There we have it all coming together in one week – discussions of illegal and improper favours for favours and the issue of the illegality or legality of settlements against the biblical and historical background in which the founding father of the Jewish people purchased a gravesite at market rates. What is the import and significance of Abraham purchasing Sarah’s gravesite and does it have anything to say about the UN vote this past week as well as the parallel controversies over favours for favours in Israel and in the United States?

I begin with the Biblical text first and note that the purchase agreement immediately follows the very famous story of Abraham’s almost completed sacrifice of his own son Isaac, the so-called Akeidah. It is also very noticeable that Isaac is nowhere in sight at the burial of his mother. He only reappears in the next chapter from of all places the location where Hagar, Abraham’s concubine who had been thrown out into the desert with her son Ishmael, was promised by God that she would be a mother of a nation with so many members that they could not be counted.

Isn’t this very odd? Isaac’s father seemed willing to kill his son, presumably to demonstrate his faith, but is saved from doing so. Hagar is thrown in the desert and is also rescued by God. Then Isaac does not return to see his mother or at least attend her grave, but visits the very place where Hagar was visited by God.  Did Isaac bring Hagar and Ishmael back with him as one midrash insisted? Isaac and his older brother by thirteen years, Ishmael, together bury their father in the cave of Machpelah. (Genesis 25:9) Did Isaac go to see Hagar because he resented that his own mother did not stand in the way of what Abraham had done to him? Or did the two, Isaac and Ishmael, just get together to share their common sense of rejection, for though Abraham did not slay his son, there is no indication that he embraced him following the trauma of his father trying to kill you.  Instead, father and son went their separate ways. (This depiction captures somewhat the coldness of Queen Elizabeth and her husband towards their own children in the current third year of the TV series, The Crown.)

Further, the God who took mercy upon Hagar and her son and the God who seemingly cruelly ordered Abraham to sacrifice his son are opposites. Both sides of this schizophrenic God, a God of mercy and justice versus a God willing to traumatize Isaac just to test Abraham’s faith, gave promises that the Ishmael line and the Isaac line as both seeds of Abraham would both thrive and proliferate. What is one to make of such a tale and what relevance does it have in the controversies over settlements in the West Bank? Further, what is one to make of this short vignette that ends with God promising that Isaac’s descendants will inherit all the land of Canaan while Ishmael is destined to become a father of the Bedouin living between Canaan and Egypt, that is Paran (Genesis 21:21), presumably the Sinai desert?

 The very recent resolution that Canada reversed course and not by supporting Palestinian self-determination, but by endorsing the Green Line of 1949, a temporary armistice line, as the basis for negotiation, and further insisted that the territory east of the Green Line, including French Hill and the Old City of Jerusalem, were “occupied territories,” that is, “territory under the authority and effective control of a belligerent armed force.” That certainly characterizes the Crimea, now occupied by Russia, and even the Donbass of eastern Ukraine where Russian troops and its local proxies have instigated a violent secessionist conflict. “Occupied territory” is not the applicable phrase to a territory administered under a peace treaty or agreement, such as Area C administered by Israel in accordance with the Oslo Accords.

Although settling the West Bank, or parts of the territory by Israel, may or may not be illegal, they are certainly regarded as inadvisable by many and an “obstacle to peace.” Certainly, most countries regard the settlements as obstacles to peace. And almost all countries, other than Israel, the U.S., and its few dependent island states, regard the expansion of settlements as obstacles. This is a political rather than an international legal issue as is the effort that would be necessary to transfer 450,000 settlers out of Area C that now contains only about 100,000 to 150,000 Palestinians.

This where this week’s parashat comes in. For can anyone say that those residents are alien residents any longer, especially if the people bought their homes? But that simply raises the question of whether the public lands, as distinct from private land purchased, were state occupied or administered lands. This is a political rather than a legal issue. The terms “inadvisable” and “obstacle” may be appropriate or not, but the reference to “illegal” settlements and to occupied territory seems inapplicable since the only peace agreement of relevance is the one formally entitled the 1993 “Declaration of Principles on Interim Self-Government Arrangements” which specifically not only recognized the Palestinian Authority as the representative of the Palestinian people, but allowed the PA to create an autonomous government there but left Israel, de facto and de jure, as the legal authority over Area C. Further negotiations were to settle what happened to Jerusalem in Area C, the possibility of return of the Palestinian refugees, the status of Israeli settlements, security and borders. The PA was only given administrative control over Areas A and B.

The powers and responsibilities of the PA and of Israel were set out in Article IV of the Accords. Article VII specifically stated that the withdrawal of military government “would not prevent Israel from exercising the powers and responsibilities not transferred to the PA. Further, Israel would continue to be responsible for internal security and public order of both settlements and Israelis. The International community generally considers the settlements to be illegal under international law and the UN has repeatedly insisted that the settlements are in violation of the Fourth Geneva Convention. However, according to the Israeli Supreme Court and the Oslo Accords, the only relevant document for making such a decision is a peace agreement and not an international court of law. Until the Trump administration this past week, the U.S. considered the settlements illegitimate, but not illegal.

All this is to say that mutually binding agreements, such as the one made between Abraham and the Hittites and the one made between the Israeli government and the PA, ought to be the reference point and not the resolutions of other parties, including the UN or the U.S. It is a legitimate argument to insist that Canada should judge its support for UN resolutions in the light of legal agreements rather than UN and international politics. In that case, the Canadian shift in policy could be depicted as a trade of favour for favour, not one that would be deemed illegal as in the Bibi case, or one that might be deemed as impeachable according to American law as in the Trump dealings with the President of Ukraine, but as improper given the context in which the resolution was passed, its content and the lack of time allowed for Canadians and the Parliament of Canada  to consider such a dramatic shift in policy.