V. Samantha Power, the UN Security Council and the Jordanian Resolution on Palestine

V. Samantha Power, the UN Security Council and the Jordanian Resolution on Palestine

by

Howard Adelman

This morning, I had planned to write a blog on Samantha Power’s relationship to the doctrine of the Responsibility to Protect and reserve my discussion of her role on the Security Council for my series of case studies. It would allow me to follow up on the question of the extent to which Samantha Power has become a supporter of Israel, an issue that I raised in yesterday’s blog. But I have also been itching to write about the recent UN Security Council vote on the Jordanian-sponsored Palestinian resolution that failed to pass. In particular, I wanted to write about my puzzlement over the Palestinian decision to push the vote for the end of last year, which I had not expected, instead of early this year when Venezuela and Malaysia, both strong supporters of Palestine, replaced two friends of Israel, Australia, which voted against the resolution, and Rwanda which abstained. If they waited, the Palestinians would have been assured of the nine votes needed, and, in any case, may still bring up the resolution again. As it is, most of us counting the numbers thought the Palestinians had enough support for the resolution tabled at the Security Council on the 30th of December and brought up for a vote on the 31st.. As it turned out, the key to the failure to pass turned out to be Nigeria.

I will deal with the voting itself tomorrow. In this blog I will present and analyze the resolution. On 31 December 2014, the UN Security Council convened to vote on a so-called compromise motion of the original draft circulated by Jordan just before Christmas. I have appended the resolution tabled on the 30th at the end of this blog. The additions to the 17 December resolution are in bold. Where there were changes in wording, the new wording is in bold and the older version is in italics.

There are a few significant but relatively minor differences between the two drafts, but both called for peace between Israel and the Palestinians to be negotiated within a limited time frame of one year. A preamble clause was added citing relevant previous UN resolutions on Jerusalem declaring that the annexation of East Jerusalem was illegal. Another preamble clause cited the advisory ruling of 9 July 2004 of the International Court of Justice that the wall constructed in the Occupied Territories had legal consequences. Instead of one of the parameters of a peace agreement referring to an agreed settlement of other outstanding issues, the word just was substituted. The biggest change, in line with the change in the preamble on Jerusalem, was to alter the paragraph calling for Jerusalem to be the shared capital of the two states. A more general wording called Jerusalem the capital, not a shared capital, of the two States. In other words, each state could have its capital in a part of Jerusalem.

Instead of weakening the original document through a compromise with the French version, the new version was even stronger, except for the clause on Jerusalem. The French were supposedly pushing for a resolution that might win American support. There was no chance of that. Further, the French voted in support of the resolution even though it still included the idea of finalizing a peace agreement within one year and did not seem to include any of their suggestions. The Palestinians misleadingly had insisted that their draft was a compromise with the French version. When the French were asked about this, they were non-committal and very diplomatic. The French Foreign Ministry said, “Our aim is to bring the international community together in support of the peace process. We therefore wish to see presented to the UN Security Council a text likely to get unanimity…The Palestinians have announced the submission of a text in New York. We will examine it in light of this objective.” There was no chance of the wording of the text achieving unanimity. Instead of it being a compromise with a phantom French text, the final text was stronger. The French supported it anyway.
Why? In putting the resolution to a vote in the Security Council, the French supported the Palestinian drive to avoid the American-Israeli diplomatic dead end by setting a short timetable for negotiations and an end to the occupation, The peace process had to move on and evolve. That meant taking Barack Obama at his word and adopting a multilateral approach, or, as the French envoy to the United Nations put it, with the vision of a two-state solution receding, “the peace process must evolve. If parties can’t take decisions alone, the international community has to share the burden.”

The key terms of the resolution were:
• endorsement of the two-state solution with each state having secure and recognized borders
• the borders were to be based on the 1967 borders with agreed, limited and equivalent land swaps
• the right of the Palestinian state to have East Jerusalem as its capital
• rejecting settlements, including in East Jerusalem, as illegal
• defining the annexation of East Jerusalem as illegal
• calling for a just and agreed resolution of the Palestinian refugee problem on the basis of international law [not international practices] citing resolution 194 (III) which does not, contrary to what many have been led to believe, specify a “right to return”
• clauses denouncing the illegality of the wall in the West Bank and the blockade of Gaza
• reiterating peaceful means as the exclusive method of conflict resolution
• denouncing both terrorism and the failure to protect civilians in time of war
• acknowledging American peace efforts but effectively sidelining the USA and shifting the peace negotiations to the auspices of an international conference
• affirms the urgent need (not the requirement or the obligation) to get an agreement in 12 months
• security arrangements for both states to be secured by a third party presence
• a phased withdrawal of Israeli security forces to be completed by the end of 2017 at the latest

Even before the revised resolution was modified and submitted, there was strong opposition to the resolution circulated by Jordan on 17 December from within the Palestinian community, not including Hamas which opposed submitting a resolution altogether since Hamas adamantly opposes a two-state solution. The criticisms included:
• absence of an enforcement mechanism
• absence of penalties against Israel for its continued occupation, expansion of settlements, its imposition of “apartheid,” and its denial of Palestinian rights for 66 years
• failing to recognize the imbalance in power between the two sides and, instead, treating Israel and Palestine as equal partners
• the resolution did not mandate the creation of a Palestinian state within 12 months, but simply “affirmed the urgent need” for its creation
• the resolution introduced nothing new since there have been many UN resolutions already on record affirming “a just lasting comprehensive peaceful solution that brings an end to the Israeli occupation since 1967 and fulfills the vision of two independent, democratic and prosperous states, Israel and a sovereign, contiguous and viable State of Palestine living side by side in peace and security within mutually and internationally recognized borders.”
• The strongest criticism was aimed at the acceptance of the principle of negotiated “mutually agreed, limited and equivalent land swaps” since, for the critics, land acquired in 1948 is occupied and is not to be bartered away while legitimizing the land acquisitions by Israel in the 1948 war. (For those critics who do not even recognize partition, Israel itself must be dismantled and all of its territory is occupied land.)
• Resolution 194 (III) is interpreted as endorsing the right of refugee return, a right that cannot be negotiated or bargained away; the resolution, in effect, retreated in favour of a “negotiated solution” as supported by the Arab League Peace Initiative rather than a mandated requirement
• The major stress on Israeli security merely legitimizes the Israeli military occupation as a “security” arrangement and the IDF as a “security force” rather than an imperialist colonial occupying army
• Existing settlements are not labeled illegal, as UN resolutions usually do, but the resolution merely calls upon the parties to abstain from settlement activities.”

Even Marwan Barghouti, sitting in solitary confinement in an Israeli jail for calling for a new uprising, criticized the Jordanian resolution, although he does support both a two-state solution and putting a resolution before the Security Council. The revised document incorporated his criticisms of Jerusalem as a “shared capital” and his demand to include a reference to prisoners. He was also critical of the mild wording of the reference to the settlements and disliked the endorsement of land swaps, thereby, in his interpretation, legalizing the Israeli settlements. As far as he was concerned, any resolution had to label all Israeli settlements as illegal and, hence, that they be removed. Finally, the refugee right of return had to be endorsed.
There was a great deal of politics in the week leading up to the vote, some necessary, such as submitting the compromise back to the Arab League for ratification. But it became very clear, and Saeb Erekat, spokesperson for the Palestinians, repeatedly reinforced that interpretation, that the Palestinian delegation seemed very eager to bring the resolution to a vote before the New Year, that is, before they would have a guaranteed number of votes necessary to pass the resolution. Palestinian President Mahmoud Abbas phoned U.S. Secretary of State John Kerry to tell him that he intended to press ahead in spite of U.S., and, of course, Israeli opposition. Israel threatened retaliation because the Palestinians were engaging in an end run instead of negotiating directly with Israel. Israel did not want to be bound by third party imposed deadlines, even though the deadline was aspirational rather than mandatory. Israel had too much experience with so-called goodwill resolutions that were soon interpreted to be embedded with poison. Israel quickly acted upon its threat by withholding tax transfers to the Palestinian Authority due in the New Year just because of the initiative, even though it failed to pass.

What were American objections? Since the resolution simply affirmed the need to end the occupation and arrive at an agreement in twelve months, it did not seem to cross Washington’s red line which adamantly opposed any unilateral action. But it did cross a line. For the results were a product produced by one side instead of a negotiated one. There was also an unstated process objection. The Americans were being sidelined. The Palestinians had become convinced that the Americans were too biased towards Israel and they could not get a fair deal as long as America was the key mediator. Quite aside from the insult to America’s status, the U.S. was convinced that there could be no deal without American help given the position and security concerns of the Israelis.

The United States also differed with the resolution on several substantive issues. Some issues, as the British Ambassador, Mark Lyall Grant stated, were largely linguistic, though nevertheless very significant, such as the language dealing with refugees. Others were problems with timelines even if only moral and not imposed. On Jerusalem, Israeli support for a divided Jerusalem was required. But Israel would never support any deal unless there were strong provisions to protect Israel’s security. The resolution was totally flimsy on that issue. When Americans said the resolution was not constructive, they usually added the clause that it failed “to address Israel’s security needs.” But the most important issue for the Americans, which could not be discussed, was the Israeli elections in March. The Americans were determined not to give Netanyahu a platform on which to beat a battle drum and increase his chances of forming the next government. Given their experience with Bibi, they had become convinced that, as long as he was at the helm, no agreement with the Palestinians was possible.

What was Samantha Power’s position? She insisted the resolution was “deeply imbalanced” and only addressed the issue of one side. In comments after the vote, she said that: “the effort of pushing the resolution to a vote, instead of giving voice to the aspirations of both Palestinians and Israelis, addressed only one side.” She insisted that the Palestinians, in pushing for the Security Council vote, had staged a “confrontation” that would push the parties farther apart. But she gave no evidence that she had any idea of how to get them together.

Did Samantha Power play any significant role in ensuring the failure of the resolution?

Tomorrow: The Machinations Behind the Vote on the Palestinian Resolution

Jordan: draft resolution tabled at the UN Security Council on 30/12/2014

Reaffirming its previous resolutions, in particular resolutions 242 (1967); 338 (1973), 1397 (2002), 1515 (2003), 1544 (2004), 1850 (2008), 1860 (2009) and the Madrid Principles,
Reiterating its vision of a region where two democratic states, Israel and Palestine, live side by side in peace within secure and recognized borders,
Reaffirming the right of the Palestinian people to self-determination and to independence in their State of Palestine, with East Jerusalem as its capital,
Recalling General Assembly resolution 181 (II) of 29 November 1947,
Reaffirming the principle of the inadmissibility of the acquisition of territory by force and recalling its resolutions 446 (1979), 452 (1979) and 465 (1980), determining, inter alia, that the policies and practices of Israel in establishing settlements in the territories occupied since 1967, including East Jerusalem, have no legal validity and constitute a serious obstruction to achieving a comprehensive, just and lasting peace in the Middle East,
Recalling also its relevant resolutions regarding the status of Jerusalem, including resolution 478 (1980) of 20 August 1980, and bearing in mind that the annexation of East Jerusalem is not recognized by the international community,
Affirming the imperative of resolving the problem of the Palestine refugees on the basis of international law and relevant resolutions, including resolution 194 (III), as stipulated in the Arab Peace Initiative,
Recalling the advisory opinion of the International Court of Justice of 9 July 2004 on the legal consequences of the construction of a wall in the Occupied Palestinian Territory,
Underlining that the Gaza Strip constitutes an integral part of the Palestinian territory occupied in 1967, and calling for a sustainable solution to the situation in the Gaza Strip, including the sustained and regular opening of its border crossings for normal flow of persons and goods, in accordance with international humanitarian law,
Welcoming the important progress in Palestinian state-building efforts recognised by the World Bank and the IMF in 2012, and reiterating its call to all States and international organizations to contribute to the Palestinian institution building programme in preparation for independence,
Reaffirming that a just, lasting and peaceful settlement of the Israeli-Palestinian conflict can only be achieved by peaceful means, based on an enduring commitment to mutual recognition, freedom from violence, incitement and terror, and the two-State solution, building on previous agreements and obligations and stressing that the only viable solution to the Israeli-Palestinian conflict is an agreement that ends the occupation that began in 1967, resolves all permanent status issues as previously defined by the parties, and fulfils the legitimate aspirations of both parties,
Condemning all violence and hostilities directed against civilians and all acts of terrorism, and reminding all States of their obligations under resolution 1373 (2001),
Recalling the obligation to ensure the safety and well-being of civilians and ensure their protection in situations of armed conflict,
Reaffirming the right of all States in the region to live in peace within secure and internationally recognized borders,
Noting with appreciation the efforts of the United States in 2013/14 to facilitate and advance negotiations between the parties aimed at achieving a final peace settlement,
Aware of its responsibilities to help secure a long-term solution to the conflict,
1. Affirms the urgent need to attain, no later than 12 months after the adoption of this resolution, a just, lasting and comprehensive peaceful solution that brings an end to the Israeli occupation since 1967 and fulfils the vision of two independent, democratic and prosperous states, Israel and a sovereign, contiguous and viable State of Palestine, living side by side in peace and security within mutually and internationally recognized borders;
2. Decides that the negotiated solution will be based on the following parameters:
– borders based on 4 June 1967 lines with mutually agreed, limited, equivalent land swaps;
– security arrangements, including through a third-party presence, that guarantee and respect the sovereignty of a State of Palestine, including through a full and phased withdrawal of the Israeli occupying forces, which will end the occupation that began in 1967 over an agreed transition period in a reasonable timeframe, not to exceed the end of 2017, and that ensure the security of both Israel and Palestine through effective border security and by preventing the resurgence of terrorism and effectively addressing security threats, including emerging and vital threats in the region;
– a just and agreed solution to the Palestine refugee question on the basis of Arab Peace Initiative, international law and relevant United Nations resolutions, including resolution 194 (III);
– a just resolution of the status of Jerusalem as the capital of the two States which fulfils the legitimate aspirations of both parties and protects freedom of worship; [v.s Jerusalem as the shared capital of the two States which fulfils the legitimate aspirations of both parties and protects freedom of worship;)
– the just (vs, an agreed) settlement of all other outstanding issues, including water and prisoners;
3. Recognizes that the final status agreement shall put an end to the occupation and an end to all claims and lead to immediate mutual recognition;
4. Affirms that the definition of a plan and schedule for implementing the security arrangements shall be placed at the centre of the negotiations within the framework established by this resolution;
5. Looks forward to welcoming Palestine as a full Member State of the United Nations within the timeframe defined in the present resolution;
6. Urges both parties to engage seriously in the work of building trust and to act together in the pursuit of peace by negotiating in good faith and refraining from all acts of incitement and provocative acts or statements, and also calls upon all States and international organizations to support the parties in confidence-building measures and to contribute to an atmosphere conducive to negotiations;
7. Calls upon all parties to abide by their obligations under international humanitarian law, including the Geneva Convention relative to the Protection of Civilian Persons in Time of War of 12 August 1949;
8. Encourages concurrent efforts to achieve a comprehensive peace in the region, which would unlock the full potential of neighbourly relations in the Middle East and reaffirms in this regard the importance of the full implementation of the Arab Peace Initiative;
9. Calls for a renewed negotiation framework that ensures the close involvement, alongside the parties, of major stakeholders to help the parties reach an agreement within the established timeframe and implement all aspects of the final status, including through the provision of political support as well as tangible support for post-conflict and peace-building arrangements, and welcomes the proposition to hold an international conference that would launch the negotiations;
10. Calls upon both parties to abstain from any unilateral and illegal actions, as well as all provocations and incitement, that could escalate tensions and undermine the viability and attainability of a two-State solution on the basis of the parameters defined in this resolution;
11. Reiterates its demand in this regard for the complete cessation of all Israeli settlement activities in the Palestinian territory occupied since 1967, including East Jerusalem;
12. Calls for immediate efforts to redress the unsustainable situation in the Gaza Strip, including through the provision of expanded humanitarian assistance to the Palestinian civilian population via the United Nations Relief and Works Agency for Palestine Refugees in the Near East and other United Nations agencies and through serious efforts to address the underlying issues of the crisis, including consolidation of the ceasefire between the parties;
13. Requests the Secretary-General to report on the implementation of this resolution every three months;
14. Decides to remain seized of the matter.

X: Reconciling Strategy and Just War Norms

X: Reconciling Strategy and Just War Norms

by

Howard Adelman

Some military strategies are much more compatible with international just war norms than others. Some are totally incompatible. Thus, in Iraq and Afghanistan, an application of strategy that makes the battle for the hearts and minds of a population rather than one which regards the whole population as potential enemies is almost bound to be more sensitive to just war norms, at least for the dominant power. However, even a war based on the belief that the enemy population must itself be demoralized and force must be used to destroy support for its leadership, but which purports to follow just war norms, is not a strategy of “total war” in which a dominant power simply blasts a civilian population to smithereens. The latter is totally incompatible with the application of just war norms.

An insurrectionary military group, such as ISIS, the Islamic State of Iraq and al-Sham (to be distinguished from the ancient Egyptian goddess, Isis), or ISIL (the Islamic State of Iraq and the Levant) is not the same as Hamas. When Ramadan began, Abu Muhammad al-Adnani announced that henceforth the ISIS leader, Abu Bakr al-Baghdadi, would be known as the caliph and ISIS itself would be just the Islamic State. The Islamic State, which fights by directly exterminating civilian populations of those it regards as heretics, is not to be equated with Hamas or the Muslim Brotherhood. Hamas is not an advocate of “total war” from an insurrectionist perspective. Yet it is quite willing to reign rockets on the civilian population of Israel, but does not advocate the extermination of Israelis as heretics. The Hamas military arm is not even made up of Jihadists even though Hamas and Islamic Jihad often collaborated in the war against Israel.

But Hamas may be more dangerous than ISIS when the hearts and minds of Westerners enter the equation. After all, Hamas won in a fair election and has a degree of political legitimacy. Though Hamas has murdered alleged collaborators and even Fatah lackeys when Hamas first took power, it has not targeted uninvolved civilians for slaughter. ISIS cannot even get along with other terror groups like al-Qaeda or the al-Qaeda-affiliated Al-Nusra Front. In contrast, Hamas has agreed to enter a coalition government with the Palestinian Authority without even getting any cabinet posts.

Whereas ISIS is fighting a bloody media war to gain recruits and conquer more territory and economic assets to become self-sustaining, the Hamas media war is aimed at the hearts and minds of Europeans and Arab states to gain support and help escape its economic isolation and its severely restricted geographical area. Hamas is an economic basket case with its society largely funded by external, including Western, donors, not an economically rich terrorist machine expanding its territory and sources of economic exploitation. Hamas is fighting a media war to win the hearts and minds of Europeans. Hamas has been able, in part, to rule for seven years because of Western “humanitarian” aid and Western human rights protesters opposed to the blockade, at least the blockade imposed by Israel.

The difference between the two organizations is best illustrated by the UN political attacks against Israel for firing rockets in its own self-defence against Hamas and Gaza while the UN largely silently cheers when a country like the US, which is not directly threatened by ISIS, uses drones and Western fighter jets to shoot up trucks loaded with armed jihadists as they cross the desert of Iraq. The UN even pays for the education of almost half the citizens of Gaza, openly criticizes Israel, and acts as an apologist for Hamas even though its schools are used not only to house refugees but to store rockets.

The most common thread connecting Hamas and ISIS is not the Muslim religion (which is so variable in the interpretations of its texts), but the reliance of each organization on the twin legs of militancy and martyrdom. Both are used to restore and enhance each organization’s popularity. Both are children of the modern age of communications. ISIS may broadcast its beheadings and Hamas may hide its kangaroo justice, but the reason in each case is the same – to selectively use different types of militancy to defend and advance their respective positions in the Muslim and then the larger world.

The most significant difference is that Hamas is embedded in a dense civilian population; ISIS is not. The main strike force used by Hamas was not its rockets but its military units on the ground who fought soldiers of the IDF. However, the question in whether they used “human shields”, that is embedded themselves so deeply in the civilian population and in such various ways that it became very difficult if not impossible for their enemies to fight them without killing civilians either in total error, as when significant numbers of civilians were in a location where there were no militants nearby and Israel could not offer a strategic reason for targeting that locale, or because a belligerent was close by without the knowledge of the Gaza civilians and sometimes without the IDF knowing that civilians were close by. However, sometimes civilians were coerced or induced or even cooperated to host militants, in which case is the civilian complicit and therefore subject to being attacked by the IDF? In each of these different cases, the ethical criticism of Israel would be quite different as would be the application of the norms by which the action is judged.

In the case of the air war, the rockets and mortars shot off by Hamas had no guidance systems so could not be used unless civilian targets were acceptable. Even if Hamas wanted to discriminate between Israeli civilians and military units, it was unable to do so without totally disabling its storehouse of rockets. If the types of weapons available to fight an air war are such that they, by their very nature, cannot discriminate between civilians and militants, does that make what Hamas does automatically a war crime. However, if, in actual practice, those rockets and mortars kill and maim relatively few civilians, if, in fact, one application of just war theory would lead to the total immobilization of Hamas’ air weapons – its rockets and mortars – does the imperative of Hamas to use the weapons trump concerns about discriminating between civilian and military targets? The very fact that we can ask this question means that Hamas is not outside the bounds of international humanitarian law and is accountable under that law. Hamas, to repeat, is not an extremist warrior jihadist group indifferent to moral and legal norms.

Both the Israeli government and Hamas fought a war in which each side was governed by just war norms. Both sides targeted civilian buildings, but there seemed to be no intention on either side of using its military hardware and firepower to wantonly kill civilians on the other side in spite of what Israel has said about Hamas or what Hamas has claimed about Israel. As Benny Morris described with respect to the latter, Israel demonstrated “no willingness to exact a heavy price in blood from the enemy’s civilians.” Nevertheless, Israel was willing to tolerate more collateral damage to civilian targets and to civilians than would otherwise have been the case if Israel had adopted a strategy of trying to win the hearts and minds of Gazans. Hamas was willing to adopt military weapons that landed on civilian targets and maimed and wounded civilians on the ground when faced with the alternative of being almost totally defanged

The problem of applying just war norms in an impartial and detached manner is much more difficult when a war strategy includes civilian demoralization as part of its strategy versus a war that tries to win over a population and alienate it from its leaders. Nevertheless, unless a more forceful response was the dominant strategy, it is unlikely we would be concerned very much about just war norms. For the norms of discrimination between civilians and militants and the principles of proportionality would be much more scrupulously followed.

This means that, in the Gaza War, just war norms can be applied since there is no a priori way of condemning either side. On the other hand, on each side there are bound to be cases where it is crucial to look into whether the norms of discrimination between civilians and militants and of proportionality were attended to properly in the conduct of the war.  However, it is first necessary to understand whether the war was just in the first place.

In the case of Israel, the answer is fairly easy — unless one already has a built-in prejudice in one’s approach to the Zionist state. The 2014 Gaza War was clearly and unequivocally a war of national defence against a party reigning rockets down on its civilian population. This is true even if Israel might have provoked the war by rounding up Hamas operatives in the West Bank after the killing of three teenage Yeshiva boys by Hamas operatives, either as a rogue operation or one under the direct control of Hamas. What makes the Hamas position problematic is that its ultimate aim is to exterminate Zionism and destroy the product of the self-determination of the Jewish people. If Olmert had not imposed a blockade when Hamas came to power, the aggressive intent of Hamas would have been clearer. But Israel would have won a moral battle in international eyes but at the cost of a much stronger, better armed and more militant Hamas. Israel is unwilling to bet on Hamas becoming moderate in order to legitimate itself when, if Israel loses the bet, its very existence is put at risk.

Nevertheless, the existential threat to Israel does not permit Israel to engage in total war against the civilian population of Gaza. And it does not do so and has not done so. But Israel has chosen to ignore the hearts and minds of Gazans and to win each battle by diminishing its military capacity and enhancing the fear of Israeli reprisals. As a result of adopting such an approach, Israel is more tolerant of collateral damage than it would be otherwise, and many more civilians in Gaza were maimed and killed than if the alternative strategy were adopted. But unless one is a Rousseauian purist with human rights trumping everything, just war norms are not there to determine strategy but to determine whether the execution of that strategy falls within just war norms.

In some cases, the implementation of the strategy may not have conformed with just war standards. In general, Israel clearly went out of its way to spare the lives of civilians, once the caveat is accepted that it adopted a more militant strategy than an opposing strategy which would have encouraged more attention and consideration of just war norms. This does not mean Israel in its militancy abused just war norms. There may indeed be instances where Israel was careless or indifferent to the civilian collateral damage. That has to be ascertained by gathering case-by-case evidence and cannot be accomplished by a priori begging the question.  

Hamas has to be judged by the same norms and within the context of the strategy it chose to adopt. It could have, and I think it should have, adopted the path of peace that Fatah eventually adopted to seek a resolution of the Palestinian-Israeli conflict. But the strategy it did adopt neither put it outside the application of just war norms nor allows independent judges to determine in advance that Hamas was guilty of criminal activity. Given the choices it faced and the military means at hand, could the killing of civilians be seen as collateral damage? However, if Hamas can be shown to have been complicit in the killing of the three Yeshiva students, that was a criminal act and should be seen as such. So probably was the kangaroo justice meted out to alleged collaborators. But given the context, the fact that either side chose to deal with the situation by a more militant strategy than I personally saw as imprudent and unnecessary does not mean either side broke the norms of just war.

I recognize that I am interpreting the application of just war norms from a contextual or Grotian perspective and not an absolutist Kantian perspective that makes human rights the absolute ruler in applying international norms to the exclusion of any real genuine concern with military strategy. The Kantian or deontological approach has become the reigning doctrine in human rights organizations and for international legal experts and philosophers, but it is not the dominant outlook for teaching the application of just war norms in military colleges. For obvious reasons. Military colleges are there to teach people how to win wars and to do so with sensitivity and consideration of just war norms. They are not there to prevent armies from adopting strategies and methods which might lead them to lose.

On a personal note, it is relatively easy to combat the realists who would totally ignore and subvert just war norms, and the moralists who also subvert just war norms by trying to use them to rule out war but in the end merely support the weaker party in a conflict and, thereby, indirectly contribute to the civilian death toll. What is really difficult is trying to uphold just war norms in the face of more militant strategies, whether employed by the Israeli government or by Hamas, but applying those norms in as impartial and objective way as possible.