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