Thursday, June 16, 2011

International Law 101: The Kosher Ham & Cheese Sandwich

The father of modern international law, L.F.L. Oppenheim, defined three determining principles for the rules of warfare: Justification, Humanity and Chivalry. The use of force should be justified, it should be employed only to the degree necessary to overcome the opponent, and there should be “a certain amount of fairness in offence and defence, and a certain mutual respect” (International Law, v. II, § 67).

It should immediately be apparent that Oppenheim’s principles do not provide a precise formula for deciding questions of right and wrong. The principles are essentially guidelines for the exercise of discretion. Therefore, when I am told that some conduct is a clear violation of international law, I tend to wonder if the critic’s certainty is based upon a solid foundation in the law of armed conflicts, or upon a personal sense of moral indignation. I wonder if that confidence might be shaken if the critic were to consider the possibility that deciding questions of international law is much harder than calling strikes in a baseball game. It is like making a kosher ham-and-cheese sandwich.

Rabbi, may I eat a ham sandwich? That is a question rarely asked. After all, the answer seems obvious. Ham is not kosher. But, in matters of law, things are rarely that clear cut. Thus, if you were to get up the courage to ask a rabbi, he might actually tell you that while ham is not kosher, there are circumstances under which you may eat it anyway. For example, a soldier in hostile territory is not subject to the prohibition. So, if a soldier behind enemy lines asks: Rabbi, may I eat a ham sandwich? The correct answer would appear to be yes. 

Military commanders often face such ham-and-cheese questions. That the issues may involve life and death makes the consequences clearer, but it does not necessarily make the appropriate answer more obvious. While the red lines may be clear, the best choice among a number of lawful answers in various, often extreme circumstances may not be.

So, let us imagine that our soldier goes on to ask, Rabbi, I found some cheese in the fridge. Can I have a ham-and-cheese sandwich? The answer would still appear to be clear. A ham-and-cheese sandwich is not more unkosher than a ham sandwich. Since a soldier in enemy territory is permitted to eat non-kosher food,  the answer would again appear to be yes.

Unfortunately, if you gave the right answer – yes – you will be lucky to keep your job. Critics will attack you for telling an observant Jewish soldier that he is permitted to eat a ham-and-cheese sandwich, when, if you had any common sense, you would have told him to hold the ham and simply eat a cheese sandwich. You have shown that you did not see the full picture. You were not sensitive to all of the relevant considerations. Saying that your answer was legally correct will not save you. It is not enough to be right, you must also be smart, and in the eyes of many, you have been proven a fool.

So, if our imaginary soldier now asks you, “Rabbi, can I have that ham-and-cheese sandwich?” you will answer, without hesitation, forget the ham, have a plain cheese sandwich.

Unfortunately, critics will now attack you for putting the lives of soldiers at risk. The rules of engagement were clear: If you are in hostile territory, eat whatever you find. Now you have blurred the lines. What was once a simple yes-or-no question has become a matter of discretion. Now, every soldier in a muddy fox hole behind enemy lines will have to check if and which kosher supervisory agency certified the food he managed to forage after days of going hungry. Once again, you have shown that you did not grasp the full picture. You were not sensitive to all of the relevant considerations. The law was clear. Now it is not.

You will try to explain that while it is permissible to eat non-kosher food under such circumstances, that doesn’t mean that you must, or that eating kosher is forbidden when it is possible. You will argue that there was nothing wrong in telling the soldier to eat a cheese sandwich. After all, it was the common sense answer. But that will not help you. Once again, you have failed.

Having learned from experience, you are ready to try once more.

If our imaginary soldier asks you, “Rabbi, can I have a ham-and-cheese sandwich?” you will call the commanding general and ask him why soldiers in enemy territory are not adequately supplied. A commission of enquiry will be established. With luck, someone else will be blamed. Probably the hungry soldier.

The problem with questions of international law, particularly those concerning warfare, is that they address situations that often have no good answers. Like all moral questions, they do not present clear choices between right and wrong, but rather demand unavoidable decisions about bad and worse. Someone will suffer. Someone may die. You are left to decide who, when and how many. Every reasonably foreseeable outcome will have unfortunate consequences, and so, every possible choice will be open to criticism.

Although the example of the ham-and-cheese sandwich may seem to trivialize the issue,  it is not that different from other dilemmas concerning the law of armed conflicts. Like real questions of international law, all the right answers can get you into trouble.  And so, as in the case of the ham-and-cheese sandwich, the “right” answer may depend more upon your values and integrity than upon clearly defined laws and customs. Ultimately, for a person as for a nation, the right answer is an expression of our sense of justification, humanity and chivalry.

Avinoam Sharon

(c) 2011 Avinoam Sharon

Wednesday, April 13, 2011

Iyunei Shabbat - Shabbat Hagadol

Passover marks the beginning of forging the children of Israel into a nation. On Passover, the nation of Israel became free. This event in Jewish history is referred to in various contexts in Jewish life. For example, in reciting the Sabbath kiddush we say: “It is the first among our days of sacred assembly that recall the Exodus from Egypt.” The explanation for the obligation to put on tefillin is that “with a mighty hand the Lord freed you from Egypt” (Exodus 13:9, and see 13:16). And the reason we are given for observing the commandments is: “We were slaves to Pharaoh in Egypt and the Lord freed us from Egypt with a mighty hand” (Deut. 6:21).
But was the Exodus from Egypt an objective in and of itself, or was it a means to another end? What is the defining event that we commemorate on Passover?
When Moses is sent to Pharaoh, he is instructed to say: “I have said to you, Let my son go, that he may worship me” (Exodus 4:23). In other words, the purpose of the Exodus from Egypt is not the liberation of Israel for the purpose of being free, but rather the liberation of Israel to serve God. At Sinai, God offers: “Now then, if you will obey Me faithfully and keep My covenant, you shall be My treasured possession among all the peoples. Indeed, all the earth is Mine” (Exodus 19:5), and Israel responds, “All that the Lord has spoken we will do” (19:8), and the covenant between God and Israel is sealed. Thus, it may be argued that the defining moment of the Exodus was not freedom from the yoke Pharaoh, but subjugation to the kingship of God. That being the case, perhaps the festival of Shavuot should be seen as the holiday celebrating the defining event in Jewish history.
However, arguably, neither liberation from Egyptian servitude, nor the kingship of God were the objective of the Exodus, but rather national sovereignty, as we perhaps may learn from the promises we recall at the Passover Seder: “I am the Lord. I will free you from the labors of the Egyptians and deliver you from their bondage. I will redeem you with an outstretched arm and through extraordinary chastisements. And I will take you to be My people, and I will be your God. And you shall know that I, the Lord, am your God who freed you from the labors of the Egyptians. I will bring you into the land which I swore to give to Abraham, Isaac, and Jacob, and I will give it to you for a possession, I the Lord” (6:6-8).
It is, therefore, interesting that the only holiday that celebrates Jewish sovereignty in the Land of Israel is the modern celebration of Israel’s Independence Day. As for the theophany at Sinai, while we refer to Shavuot as zman matan torateinu – the time of the giving of our Torah – it is not described that way in the Torah or by the Prophets. The Torah refers to Shavuot as hag habikurim – the Festival of the First Fruits. No express connection between Shavuot and the giving of the Torah can be found in the Bible, nor is the connection mentioned by either Josephus or Philo. It is noted only later, by the sages: “R. Eleazar said: All agree in respect to Azereth [Shavuot] that it must also be ‘for you’. What is the reason? It is the day on which the Torah was given” (TB Pesahim 68b). But is it possible that the reason that the Torah does not dedicate a special holiday to these events is that they are the true subject of Passover?
1.      From the above, it would appear that Passover is the holiday that marks the defining event in Jewish history, but what is the defining event that it celebrates? Do the primary value lessons of Passover culminate in liberty and freedom, or does Passover mark the beginning of a process that leads to other objectives and values?
2.      In what sense is Israel’s identity forged by the Exodus, and in what sense is it forged by the theophany at Sinai and by taking possession of the Land of Israel?
3.      Should Passover be understood as a retrospective holiday that celebrates the past (the Exodus), or a prospective holiday that envisages the future (Sinai and/or the land of Israel)? How might our decision in regard to that historical perspective influence the value lessons of Passover?