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

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?

The Language God Talks: On Science and Religion By Herman Wouk, (Little, Brown & Co), 183 pages, $23.99

Reading a great literary work can be a deeply spiritual experience. In exceptional moments, art allows us to hear God’s voice. Not surprisingly, when Noble Prize winning physicist and avowed atheist Richard Feynman told Herman Wouk that calculus is the language God talks, Wouk knew he had something, and it was something too valuable to be buried among the conversations with Feynman that he recalled in The Will to Live On: This is our Heritage (2001).

Richard Feynman had expressed an idea with mystical appeal, philosophical depth and the ring of a catchy title. Herman Wouk just couldn’t pass up a winning title simply because he lacked a suitably grand idea for a book to go with it. And so we got The Language God Talks: On Science and Religion.

A great book inspires superlatives. A truly bad one can be the basis for a really good laugh. But what does one write when an acclaimed author sets out to answer ultimate theological questions, promises to reconcile religion and science and explain faith in a post-modern world, but does not seem to deliver? Not surprisingly, kind reviews of The Language God Talks tend to avoid the book’s content and focus upon the author’s well-known biography, his past accomplishments, and perhaps comment upon his fluid, inviting writing style.

Wouk does not directly answer the questions he poses. In all his meandering through the American space program, Big Bang theory and Columbia University’s famous Core Curriculum, Wouk knows that the clash between his faith and Richard Feynman’s atheism is neither one of religion versus science nor one of ancient faith confronting contemporary culture. In This is my God (1959), Wouk wrote: “Modern theologians now take for granted – as the rabbis long ago suggested – that Genesis is a mystic vision of the origin of things, put in the purest and strongest words, intelligible to the child, inspiring to adult genius, clear enough to survive in primitive eras, and deep enough to challenge sophisticated cultures.” The man who wrote that knows that the differences between him and Feynman are not to be sought in the questions he poses as narrative hooks.

Wouk surely also knows that the awe of experiencing “the language God talks” cannot be rationalized. Explaining the experience of God’s “voice” is like describing the sensation of hearing a musical performance. Writing “da da da dah, da da da dah” will not evoke Beethoven’s Fifth Symphony in the mind of a person who has never heard it, any more than saying “the people saw the thunder and the lightening and the sound of the shofar” actually provides us with a rational understanding of the theophany at Sinai. Discussing the language that God talks requires common ground. Some shared experience or symbolism must serve as the metaphor that evokes the unique and otherwise ineffable consciousness. The point is made by German theologian Rudolf Otto at the beginning of The Idea of the Holy (1923): “The reader is invited to direct his mind to a moment of deeply-felt religious experience… Whoever cannot do this, whoever knows no such moments in his experience, is requested to read no farther.”

Feynman’s atheistic gibe that Wouk should learn calculus because “it’s the language God talks” is a more profound insight into what Otto meant than anything Wouk says in his attempts to make his case for faith to the reader or the doubting physicist. Ultimately, the argument must come down to “you had to be there,” and rational argument will not take either Feynman or the reader back to Wouk’s Sinai.

Nevertheless, Wouk, the Columbia-educated Pulitzer Prize winner, seems convinced that he must provide an intellectual argument for his naïve faith. After devoting two books to telling what he believes (This is My God and The Will to Live On) he seems to need to say why he believes. But Herman Wouk the novelist knows better. What cannot be described or explained rationally provides poor material for a work of non-fiction, and all the more so autobiography, which well may be the least penetrating literary form.

The most revealing form of literature is the novel. In a great novel, the characters the author creates become independent of his will, and he must allow them to be what they must be. Although the author is not any of the characters, that sense of what his characters must be most intimately reflects who the author is and what he believes. Herman Wouk is a great novelist, and it is therefore in his novels that one must seek the answer to why, in a world in which one can so easily live without faith, he continues to believe.

At the beginning of The Will to Live On, Wouk wrote that since publishing This is My God, “I have been writing afterwards and epilogues to successive editions”. Ultimately, The Language God Talks is not an independent book; it too is an epilogue – an updated afterward to War and Remembrance. It is a personal note in which Wouk tells his readers that if they want to understand why he still begins his day studying the Talmud and putting on tefillin, they need only try to identify with the author of War and Remembrance. If they can do that, they will know the unspoken answers to Wouk’s questions.

Avinoam Sharon

Democracy Still Matters

In his explanation of why democracy has lost its luster (in his mind and the minds of those who take him seriously) Roger Cohen, perhaps the most clueless columnist ever to write for the NY Times, writes: "Democracies seemed blocked, as in Belgium, or corrupted, as in Israel, or parodies, as in Italy, or paralyzed, as in the Netherlands."

Even though the generally clueless Cohen has been complimentary in regard to Ahmadinejad's Iiran, I was surprised at his unjustified swipe at Israel until he went on to advise us to "read the remarkable Tony Judt" whom he describes as: "a British intellectual transposed to New York whose rigorous spirit of inquiry epitomized Anglo-American liberal civilization".

When a person holds that opinion of Tony Judt - the reformed Marxist who repented his youthful Zionism and undesired Judaism by advocating the destruction of the state of Israel - it is understandable why he might take every opportunity to take gratuitous and irrelevant swipes at Israel. What isn't clear is why the Times publishes him. Is the readership of the Times truly made up of America's intellectually challenged?

How I Became An Evil Settler

Ha'aretz 13 September 2020:

I am a "settler." Because I am a settler, artists and members of the academic community - some of whom are my close friends - have decided to boycott my home. I am a settler, the archetypical Other of Israeli evil.

Otherness is the darling of people who hate. It allows people of every stripe, left, right and center, to dissociate from certain people as a dehumanized class without thought or regret, and to hate without pangs of guilt. Throughout history, Jews have played the role of Other. In the world community today, Israel itself often plays the role of Other. Now I am the Other. I am the Other because I am a "settler," and in the eyes of some, that is what defines me.

How did I become this embodiment of all that is wrong and unjust?

When I married, I had hoped to continue to live in Jerusalem, to raise my family in the city in which I had grown up. But the Israeli Government had different ideas. By the time I married, successive Israeli Governments - left and right - had pursued a policy of discouraging young couples from purchasing homes in the major cities, and of directing them to development towns and to the Territories. It was a policy that, for example, made it necessary for a young couple to put up as much as 60 percent of the purchase price of an apartment in cash in order to qualify for a mortgage or other housing loans, while providing free land and subsidized housing assistance of 85 percent and more of the cost of a home in "areas of national priority."

My wife and I did not want to live in an area of national priority. We didn’t want to leave Jerusalem. But after moving from one rented flat to another four times in five years, I wrote to the Minister of Housing. He replied. He advised me that generous incentives were available to those who moved to rural communities and to the Territories.

Like many in our situation, we began to look. We found a small community near the Green Line, overlooking Ben-Gurion Airport - a settlement "in the national consensus." It was a community that had been built after the Government had convinced the Supreme Court that it was absolutely needed to serve vital interests of national security.

Despite the high-sounding pronouncements of the politically correct, greater legal minds than Oded Kotler, Zeev Sternhell, Cynthia Nixon and Mandy Patinkin had determined that there was nothing illegal about building my home. And even after the Government of the late prime minister Yitzhak Rabin announced a policy of "drying up" the settlements, my community continued to receive preferential loans, grants and generous incentives from his Government.

But things have changed. Negotiations for the establishment of a Palestinian state have turned me and my neighbors into political pawns. The security barrier now separates us physically from the State of Israel. The two policies have contributed to rendering my home a valueless asset, an economic trap - a prison. Yet, no Israeli government, left, right or center, has been willing to state what will become of me or of my neighbors.

Like most settlers, I am a Zionist. I believe that settling the Land of Israel is about national self-determination. I believe - in true Zionist tradition - that Zionism is about Jewish national sovereignty in the Jewish homeland, not about its specific borders. I believe that the so-called "settler leaders" who declare their determination to remain in their communities even if they become part of a Palestinian state, represent a misguided minority that puts the Land of Israel before Jewish sovereignty. Their messianic view is not Zionism at all. It is a betrayal of Zionism.

A Zionist, by virtue of his ideals, must say that if the duly elected Government of the State of Israel has decided that a particular piece of territory is to be relinquished to another sovereign, or that a particular community does not serve the national interest, then he will move to a place where the Jewish national interest will be realized. The opposite statement is anti-Zionist.

Nevertheless, I am now dismissed as an irredeemable Other - unworthy of education, of culture and of support. I am condemned for my choices by those who have robbed me of choice. The signatories of the various petitions and supporters of the boycotts might bear in mind why I have become the object of their anger, hate and condemnation. It is because, like them, I dreamt and continue to dream of a better Israel. It is because, by and large, we value the same ideals. So, when they accuse me, they should bear in mind that I am guilty only by association with them.

J. Weiner, A. Sharon & M. Morrison, Peacekeepers: Will They Advance Any Prospective Arab-Israeli Peace Agreement?

I . I n t r o d u c t i o n

The establishment of a peacekeeping force is widely accepted to be an essential part of any future Israeli-Palestinian peace. The final-status settlement proposed by the Clinton administration specified “security arrangements that would be built around an international presence.” In discussing the issue of security, American diplomat Dennis Ross, who was one of the American negotiators of the 1995 Interim Agreement on the West Bank and the Gaza Strip and the 1997 Protocol Concerning the Redeployment in Hebron, and who served as President Clinton’s Middle East coordinator, has written: “The key lies in an international presence that can only be withdrawn by the agreement of both sides.”

Among the most prominent nongovernmental initiatives recommending the inclusion of peacekeeping forces are the “Geneva Accord” and the Bipartisan Statement on U.S. Middle East Peacemaking, entitled “A Last Chance for a Two-State Israel-Palestine Agreement,” drafted and signed by ten former senior U.S. government officials and presented to the administration of U.S. President Barack Obama (the “Bipartisan Statement”).

Although the need for a peacekeeping force appears to enjoy broad support, it should be noted that the “Road Map”5 proposed by the United States, the European Union, Russia, and the United Nations (together “the Quartet”) in 2003 does not suggest the inclusion of peacekeeping forces, although it does envisage a monitoring mechanism for its interim phases. Similarly, the 2002 “Arab Peace Initiative” does not include any mention of peacekeeping forces. Tellingly, however, former U.S. National Security Advisers Brent Scowcroft and Zbigniew Brzezinski, both of whom were among the authors of the Bipartisan Statement, have pointed out the need for supplementing the initiative with a multinational peacekeeping force.

It is against this background that the authors set out to examine, from an Israeli perspective, the feasibility of establishing a form of multinational peacekeeping force as part of a future Israeli-Palestinian peace accord.

For entire article click here

A modest proposal for solving the kosher slaughter problem

One morning, when I was a child suffering from one or another of those children’s illnesses, our family doctor stopped by to see how I was faring before he left for a brief vacation. “Where are you going,” my mother asked. “Hunting,” the doctor replied. And in that lack of politically correct tact so typical of youth, I blurted out: “Jews don’t hunt!”



I was reminded of that recently, when I read of the decision of the New Zealand government to ban kosher slaughter – shehita – under the Animal Welfare Commercial Slaughter Code. I wondered if we, as Jews, should not be more understanding of New Zealand’s sincere desire to address the issue of cruelty to animals. The requirements of kosher slaughter are intended to minimize suffering. If stunning or some other method might reduce suffering even by a minute amount, should we not try to find ways to address that positively?



Clearly, New Zealand’s motives are pure. New Zealand is not Switzerland, where the hypocritical ban on shehita was prompted by historic anti-Semitism. Indeed, around the time the Swiss first set about outlawing kosher meat, they also began the process of creating forty-one federal hunting reserves so the compassionate Swiss could kill animals for sport.



But we are not concerned with the Swiss, but rather with New Zealand, which has admirably followed in the concerned footsteps of Iceland, Norway, Sweden and Spain.



Well, actually Spain should not be in the list at all. Spain only prohibits shehita of cattle. It would seem that Spanish sensibilities require that you first stun cattle before slaughter, unless you wish to torture the beasts in the corrida de toros.



As for Iceland, well, the Icelandic Hunting Club will be glad to help you hunt reindeer and seal, and boasts that its clients have achieved 100% success. Maybe Iceland isn’t a good example of a shehita ban that is not hypocritical. Maybe not Norway, either. In addition to offering the opportunity to hunt such big game as moose and reindeer, Norway offers the thrill of watching dogs chase deer to exhaustion.



I GUESS this leaves Sweden. Now, according to the official website, Sweden views hunting as “a wise, long-term use of renewable natural resources.”



Sweden recommends that people who wish to shoot moose first visit a moose-hunting training range. To ensure that a maimed animal does not suffer unnecessarily from a poorly placed shot, hunters of hoofed animals are required to have a trained tracker dog available on two-hour notice. After all, we wouldn’t want a wounded moose to suffer more than a few hours before it is dispatched by a conservation-minded hunter.



It would seem then that New Zealand stands alone in its sincere desire to prevent cruelty to animals by banning kosher slaughter. At least so one might suspect until one Googles “hunting New Zealand” and discovers “the ultimate New Zealand red stag trophy hunting experience.”



New Zealand Fish and Game describes game bird hunting as “one of the great social recreational sports where rewarding friendships are made and maintained for many years.” New Zealand sells hunting licences to adults over 18, to juniors between the ages of 12 and 18, and even offers hunting licenses for children under 12. It would seem that for the squeamish New Zealanders, kosher slaughter of chickens and cattle for food is more morally repugnant than taking children out for a day of fun and camaraderie, shooting animals with a bow and arrow so that they can hang antlers over their beds.



In looking at the laws and policies of the countries that ban kosher slaughter, one gets the feeling that there must be one of two underlying motivations: either anti-Semitism or a desire to regulate hunting and collect hunting license fees.



I am sure that all would loudly deny any anti-Semitic motive, even despite historical evidence to the contrary. That, of course, leaves only the desire to regulate hunting. And so I would like to suggest a proposal for solving the kosher slaughter problem.



I would recommend that Switzerland, Sweden, New Zealand, Iceland and Norway recognize kosher slaughter as “Jewish ritual hunting.”



Spain can simply refer to kosher slaughterers as matadors.


By so doing, shehita will become an integral part of the sporting culture of each nation. It will contribute to the wise, long-term use of renewable natural resources and encourage camaraderie. Compassionately slaughtered kosher meat will become as socially acceptable as the venison cut from hunted deer, decorative antlers or the meat of bulls ritually tortured in the ring.


If this modest proposal will not mitigate suffering, at least it may serve to lessen hypocrisy.



Avinoam Sharon

The Jerusaelm Post 16 June 2010